COZ17 v Minister for Immigration and Citizenship [2025] FCA 1403

1. This is an appeal from a decision of the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) dismissing an application for judicial review of a decision of the Immigration Assessment Authority. By that decision, the Authority affirmed the decision of a delegate of the Minister not to grant the appellant a Temporary Protection Visa.
2. The appellant is unrepresented and was assisted by an interpreter in Tamil and English. The appellant did not file written submissions or make oral submissions at the hearing of the appeal. The Minister filed written submissions which were sight-translated to the appellant before the commencement of the hearing.
3. The notice of appeal raises one ground of appeal. In essence, the ground alleges that the Authority engaged in a legally unreasonable failure to exercise its power to request new information under s 473DC of the Migration Act 1958 (Cth). Specifically, the question on the appeal is whether, having had regard to an updated DFAT Country Information Report for Sri Lanka (2017 DFAT Report) that considers the likelihood of returnees being fined for illegally departing Sri Lanka, it was legally unreasonable for the Authority not to exercise its discretion under s 473DC(3) of the Act to get new information from the appellant as to whether he would be able to afford any such fine. In turn, the affordability of the fine was said to be relevant to whether any such penalty imposed on the appellant by the Sri Lankan authorities for his illegal departure from Sri Lanka would amount to persecution or serious harm.
4. The Minister submitted that this ground of appeal was not run below and, therefore, the appellant requires leave in order to raise this ground. For the reasons set out below, I consider that leave should be granted for the appellant to rely upon this new ground. However, this new ground has not been established. Nor am I otherwise able to discern error in the reasons of the primary judge. As such, the appeal must be dismissed with costs.

1. The appellant is a male citizen of Sri Lanka who arrived in Australia in October 2012 as an unauthorised maritime arrival.
2. On 16 March 2016, the appellant applied for a Visa. His claims to fear harm if returned to Sri Lanka were summarised in the Authority's reasons (dated 17 May 2017) at [6] and included a fear that he will be harmed or killed by the Sri Lankan authorities on account of his two illegal departures from Sri Lanka and his asylum application abroad.
3. On 21 October 2016, a delegate of the Minister for Immigration and Citizenship refused the appellant's Visa application (delegate's Decision).
4. On 17 May 2017, the Authority affirmed the delegate's decision (Authority's Decision).
5. Relevantly, the Authority found first that there were exceptional circumstances warranting a consideration by it of new information under s 473DD of the Act, being the 2017 DFAT Report, with respect to the appellant's claim to fear harm by reason of his illegal departures and asylum application abroad. Specifically, in its statement of reasons at [5], the Authority found that:

I have obtained new information, specifically information on the treatment of Sri Lankans of Tamil ethnicity and citizens who have departed Sri Lanka illegally and sought asylum abroad (information not specifically about the applicants but about a class of persons of which the applicants are a member) from the most recent Department of Foreign Affairs and Trade (DFAT) country report for Sri Lanka which was published on 24 January 2017. The delegate relied on the 18 December 2015 DFAT report for Sri Lanka which the 24 January 2017 report updates. I am satisfied that there are exceptional circumstances to justify considering this new information.

1. Secondly, the Authority found that the appellant did not face a real chance of harm for any reason including by reason of being a returning asylum seeker. In common with the delegate, the Authority accepted that there are penalties under the Immigrants and Emigrants Act (IAEA) for departing Sri Lanka illegally. Further, at [59] and [61]-[62] of its reasons in the context of considering whether the appellant met the criteria for a refugee under s 5H(1) of the Act, the Authority found that:

I accept that as the applicant departed Sri Lanka without a passport, he may be found to have committed an offence under the IAEA. Country information indicates that persons who have departed Sri Lanka illegally may face penalties that can include up to five years imprisonment and fines of up to SLR200,000; in practice, penalties are applied to such persons on a discretionary basis and usually in the form of a fine [citing the 2017 DFAT Report in the accompanying footnote].

...

On return to Sri Lanka, I find the applicant would be charged and fined under the IAEA and then released. In the less likely event that the applicant elected to plead not guilty to the offence under the IAEA, he would either be granted bail on personal surety or have a family member act as guarantor [ibid]. There is no suggestion the applicant was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face any chance of imprisonment, but it is highly likely that he will be fined. As noted above, DFAT has assessed the risk of mistreatment for people suspected of an offence under the IAEA is low. While the applicant may be subjected to poor prison conditions during a short period of detention, I am not satisfied that the prison conditions to which the applicant may be subject of themselves constitute serious harm as defined by the Act. Further, I am not satisfied the applicant will face a real chance of serious harm during any brief time spent in detention. On the evidence before me, I find the imposition of any fine, surety or guarantee would not of itself constitute serious harm. I have considered the possibility of a custodial sentence, but there is no country information before me that indicates that custodial sentences are being levelled against illegal departees with a profile such as the applicant. In the context of a significant number of Sri Lankan nationals being returned to Sri Lanka, and the absence of any profile that would elevate the penalty the applicant would face, I find there is not a real chance that the applicant would face imprisonment.

I am also satisfied that the provisions and penalties of the IAEA are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced. Accordingly, I am satisfied that any process or penalty the applicant may face on return to Sri Lanka because of his illegal departure would not constitute persecution for the purpose of the Act. In light of this I find that the applicant does not face a real chance of serious harm from Sri Lankan authorities due to his illegal departure, travel to Australia or for any other reason.

(Emphasis added.)

1. Equally, in considering whether the appellant would suffer "significant harm" as defined by the Act so as to meet that criterion for complementary protection under s 36(2A) of the Act, the Authority found at [71] of its reasons that:

While I accept the applicant may be subjected to questioning and may be required to pay a fine or provide a surety on return to Sri Lanka, I am not satisfied that this amounts to significant harm.

1. The appellant was represented by a solicitor at the time of filing his application for judicial review in the Circuit Court but not thereafter. Before the primary judge, the appellant raised three grounds of judicial review challenging the Authority's Decision, namely that:

(1) s 473DD of the Act prohibited the Authority from considering the 2017 DFAT Report (ground 1);

(2) if, contrary to ground 1, the Authority had power to consider the 2017 DFAT Report, then the new information should have been put to the appellant under s 473DC(3) of the Act so that the appellant could make submissions on whether exceptional circumstances existed or not, and the Authority's failure to do so denied the appellant procedural fairness (ground 2); and

(3) the Authority erred in considering the appellant's entry interview as the entry interview was not before the delegate at the time of making the decision (ground 3).

1. On 29 September 2021, the primary judge dismissed each ground of appeal: COZ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 89 (the primary judgment).
2. Relevantly, on ground 2, the primary judge found at [38]-[39] of his reasons:

In relation to Ground 2, the submission appears to advance that the Authority should have put the new country information to the applicant under s 473DC of the Act. Section 473DC of the Act permits the Authority to get new information and would permit the Authority, if it sought to do so, to obtain the applicant's response to new country information. The Authority was not, however, the subject of any statutory obligation requiring it to do so. In that regard, the Court has taken into account the provisions of part 7AA, including in particular, s 473CA, s 473DA and s 473DB of the Act.

Given those statutory provisions and s 473DE(3)(a) of the Act, it cannot be said to be legally unreasonable for the Authority to proceed with the review without putting to the applicant the more recent country information. The Authority was not required to give the applicant a further opportunity to put on new information and submissions having already done so, nor was the Authority required to give the applicant an opportunity to put on submissions as to whether there are exceptional circumstances to justify taking into account the most recent country information. The very nature of the same being the most recent country information reflects a reasonable exercise of the Authority's powers under s 473DD(a) of the Act in considering the same. There was no legally unreasonable failure to exercise the Authority's powers under s 473DC(3) of the Act in these circumstances. Accordingly, no jurisdictional error is made out by Ground 2.

1. I summarised the principles governing leave to raise a new ground on appeal in FGQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 944 at [30]- [32] as follows:

[T]here is an extensive body of case law outlining the principles which govern when a Court will permit an appellant to rely upon a new ground on the appeal. Fundamentally, the question is "whether it is in the interests of justice to grant leave" to rely upon the new ground: Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187 at [14] (Derrington J) and [110] (O'Bryan J); MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11; (2021) 284 FCR 152 at [2] (Allsop CJ).

Various matters can and often do go to the question of whether it is in the interests of justice to grant leave: see Tohi at [13] (Derrington J). One "important consideration" is whether the ground has merit: Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; (2017) 258 FCR 1 at [33] (Gilmour and Mortimer JJ); Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2010] FCA 1120 at [43] (Banks-Smith J). The assessment of the merits should generally occur at a "reasonably impressionistic basis": AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365 at [55] (Derrington J).

Without being exhaustive, other considerations which may be relevant include:

(1) whether the appellant has provided an adequate explanation for why the ground was not raised below: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134; (2005) 147 FCR 51 at [166] (Madwick J);

(2) the prejudice to the respondent in permitting the ground to be agitated: SZQYM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 779; (2020) 169 ALD 579 at [136] (Allsop CJ); and

(3) the prejudice to the appellant if leave is not granted: Tohi at [13](5) (Derrington J).

1. Although ground 2 of the judicial review application also refers to s 473DC(3) of the Act, the ground is now put in a different way. In the Circuit Court, the appellant contended that the 2017 DFAT Report should have been put to him as a matter of procedural fairness, so he could make submissions on whether the 2017 DFAT Report fell within the "exceptional circumstances" in which new information can be considered under s 473DD(a)(i) of the Act. The appellant no longer presses that argument. Rather, the appellant now contends the Authority should have invited him under s 473DC(3) of the Act to provide factual information in response to the 2017 DFAT Report, and that the Authority's failure to do so was legally unreasonable.
2. The Minister contends that this is a different argument from that raised in the Circuit Court, and that leave is therefore required to raise it for the first time on the appeal.
3. In this regard, the Minister submits that leave should be refused because:

(1) no explanation has been given for the failure to raise the new ground at first instance;

(2) the new ground invites consideration of the differences between the 2017 DFAT Report on which the Authority relied and the 2015 report on which the delegate had relied but neither report was in evidence before the primary judge;

(3) leave would undermine the statutory scheme whereby original jurisdiction to review migration decisions is vested in the Circuit Court; and

(4) the new ground lacks sufficient prospects of success given that the Authority was not required to give reasons for any consideration of whether to exercise the power in s 473DC(3) to get new information from the appellant.

1. Ultimately, however, the Minister correctly in my view did not interpret the grounds of appeal as relying upon a comparison of the 2015 and 2017 DFAT reports and as such, the Minister's objection identified at (2) above falls away.
2. While accepting that there is considerable force in the Minister's submissions, in all of the circumstances, I consider that it is in the interests of justice to grant leave to the appellant to raise the new ground. First, there is no apparent prejudice which the Minister would suffer if leave were granted to rely upon the new ground. Secondly, while put with a different emphasis, I consider that the new ground is very closely related to ground 2 of the original application for judicial review. Thirdly, I have taken into account the seriousness of the consequences of the appeal for the appellant if he is unsuccessful even though I have ultimately dismissed the appeal.

1. Sections 473DC and 473DD of the Act formed part of the "fast track reviewable decisions" regime in Part 7AA which have since been repealed. At the time of the Authority's decision, s 473DC conferred a discretion on the Authority to get any new information it considers relevant and invite a person to give new information. Specifically, s 473DC provided that:

(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.

1. However, before the Authority obtains new information, relevantly the Authority must be satisfied that exceptional circumstances exist. Specifically, s 473DD provided that:

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; ...

1. As the Minister accepted, these discretionary powers are conferred on the implied condition that they are to be exercised within the bounds of legal reasonableness: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [21] per Gageler, Keane, and Nettle JJ and at [86] per Gordon J. This is so even though s 473DC(2) makes it clear that the Authority is not under any obligation to get new information in any circumstances.
2. In my view, the Minister correctly submits that the Authority's failure to exercise the power under s 473DC of the Act to request new information from the appellant about whether he would be able to afford any fine imposed by the Sri Lankan authorities for his illegal departure was not legally unreasonable.
3. First, there was no general duty on the Authority to consider the exercise of the discretion to seek information under s 473DC: see FGQ18 at [46].
4. Secondly, the delegate expressly found that people who have been convicted of illegal departure have faced fines of between 5,000 and 50,000 rupees (citing the 2015 report by DFAT). In this regard, the delegate was not satisfied that the appellant would be unable to pay a fine or secure his release on bail given that he has family to assist him. As such, I agree with the Minister that this was not a case where the Authority relied upon a wholly new dispositive issue in affirming the decision of the delegate.
5. Thirdly and in any event, any error of the kind alleged by the appellant would not have been material and therefore jurisdictional in nature. The appellant's ultimate challenge is to the finding in the Authority's reasoning that the imposition of any fine "would not of itself constitute serious harm" to the appellant (at [61] of the Authority's Decision). However, the appellant does not challenge the Authority's finding that Sri Lankan laws punishing illegal departures "are laws of general application that apply to all Sri Lankans equally. The law is not discriminatory on its terms, nor is there country information before me that indicates that the law is applied in a discriminatory manner or that it is selectively enforced" (at [62] of the Authority's Decision). In this regard, s 5J(4) of the Act provides that to establish a well-founded fear of persecution, not only must the persecution constitute "serious harm" to the person, but it "must involve systematic and discriminatory conduct".
6. Accordingly, even if the Authority had sought information under s 473DC of the Act about the appellant's ability to pay any fine, its decision to refuse the appellant's Visa application could not have changed. In other words, as the Minister submits, the Authority's finding as to the appellant's ability to pay any fine imposed for his illegal departure was "one of two separate and independent bases for the Authority's finding that the imposition of a fine was not persecutory; the second being that the penalties imposed were pursuant to laws of general application not discriminatorily applied".
7. Finally, while the appellant does not challenge the primary judge's findings with respect to grounds 1, 2 and 3 of the application for judicial review on the present appeal, for completeness I have considered whether any error with respect to these grounds is apparent.

(1) With respect to ground 1, the primary judge held that there was no prohibition which prevented the Authority from considering new information of its own initiative where, as here, it found that there were exceptional circumstances justifying a consideration of the new information. I can see no error in his Honour's reasoning on this point.

(2) With respect to ground 2, the Minister's statutory obligation in s 473DE to put new information to the appellant did not apply to the 2017 DFAT Report. This is because s 473DE(3)(a) of the Act excludes new information that "is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member". Information contained in the 2017 DFAT Report was of this character because it concerned the general procedures applicable to all returnees. As such, as the primary judge held, "it cannot be said to be legally unreasonable for the Authority to proceed with the review without putting to the applicant the more recent country information".

(3) With respect to ground 3, the primary judge held it was clear from the affidavit of Joshua Robert Compton that the delegate did in fact have regard to the entry interview "by downloading the applicant's written interview and oral recording, prior to conducting the [Visa] interview" (see primary judgment at [40]). As such, the factual premise of ground 3 was not made out. I can therefore see no error in his Honour finding that ground 3 was also not made out.

1. It follows that the appeal must be dismissed. Further, as the appellant was wholly unsuccessful on the appeal, the ordinary rule as to costs should apply, namely, that the appellant should pay the first respondent's legal costs in defending the appeal.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perry.