DAT17 v Minister for Immigration and Border Protection

The (proposed) Amended Notice of Appeal 17 On 3 July 2013 DAT17, now legally represented, filed and served an Amended Notice of Appeal. 18 DAT17's Amended Notice of Appeal expressly abandons Grounds 1 and 4 as originally advanced. Grounds 2 and 3 remained as originally expressed. Additionally a proposed new Ground 5 is sought to be relied upon as follows: (New) Ground 5: The IAA erred when it did not invite the Applicant for an interview in respect of the following new claims pursuant to s 473DC of the Migration Act: i. The new claim to the effect that the applicant's and his family's 'ability to subsist has been affected by the "arrest of his uncle under Detention Order made in terms of the Prevention of Terrorism (Temporary Provisions) Act No 48 of 1979 (PTA) and disappearance of another uncle (substantial contributors of financial supporters to the applicant's family)' contained in the Written Submissions [CB831] ii. The new claim to the effect that the applicant's uncle [P] was shot and killed by the STF who alleged he was a former LTTE cadre. Such failure amounting to an unreasonable exercise of the discretion under s 473DC of the Migration Act and accordingly amounting to a legal error. Such failure amounting to an unreasonable exercise of the discretion under s473DC of the Migration Act and accordingly amounting to legal error. 19 DAT17 sought leave to rely on "new Grounds 2, 3 and 5 which were not argued in the lower Court". However, neither Ground 2 nor 3 are new, in the sense that they are as stated previously in the Appellant's original Notice of Appeal. Further, neither are new in the sense that they had not been raised by the Appellant in the court below, although the circumstances with respect to each are strikingly different. 20 Mr Kay Hoyle accepts that Ground 2 was, in substance, advanced before the primary judge. Having regard to the position taken by the Minister that no objection was taken, the Court is satisfied the Appellant does not require leave to rely on that ground. 21 Ground 3 was also advanced before the primary judge. However, Mr Kay Hoyle drew attention to the fact that counsel then representing the Appellant had informed the primary judge it would not be pressed. On behalf of the Minister, Mr Kay Hoyle submitted that the Court should not permit the Appellant to rely on a ground that his counsel, in the court below, had made a deliberate forensic decision to abandon. 22 Counsel appearing for DAT17, Mr Foster, did not contest Mr Kay Hoyle's description of what had occurred when the matter had been before the primary judge. He advised that DAT17 would not press Ground 3. The Court proceeds on that basis. 23 Only proposed Ground 5 is therefore strictly a new ground. It is uncontentious that for that ground to be relied upon, leave of the Court is required. The Minister opposed leave being granted. The Court addresses the contentions of the parties in respect to Ground 5 later in these reasons. 24 It is convenient first to address the single ground of appeal for which leave is not required.

The parties' submissions 25 The Appellant submits that the IAA's finding at [31] that it could not be satisfied about the reason for the abduction of the Appellant's uncle gave rise to a further obligation. The Authority should have not concluded its reasoning at that point. Instead, it ought to have gone on to consider what the position would be if it were in error. That is, it ought to have made findings on each available premise as might have been the reason for the abduction of the Appellant's uncle. 26 Mr Foster submits: The IAA accordingly failed to consider what the position would be if it were wrong and that, in fact, the uncle had been abducted because of either explanations given by the applicant cited above, that is, because [V], a business rival, bribed corrupt police and security officials, or that [V] may have made false allegations about the uncle, or that the police decided to raise allegations that the family was involved with the L TIE to cover up their involvement. If it had, the IAA might have found that the applicant would face a real chance of harm due to the possibility that his uncle was abducted because [V] had joined the TMVP and/or had connections the police and STF officers who were involved in the abduction thereby, or that police had raised false allegations to cover up their involvement in the uncle's abduction. The possibility that the uncle was abducted because of the influence of [V] with the police, and that the applicant was the uncle's nephew who recognised two of the abductors, could mean he would still be in danger and have a well founded fear of persecution upon return. 27 To the same effect, the Appellant further submits the IAA erred in failing to make a positive finding as to the reasons for the "authorities" visiting the Appellant's home following the 19 March 2009 incident and/or failing to ask itself "what if I am wrong". Mr Foster submits: e. The applicant claimed [at] paragraph 21 [CB852] he had gone to local police after the abduction of his uncle where he told police he recognised two of the people who abducted his uncle as being police from the station: he was aggressively interrogated, and slapped on the face and shouted at. The applicant claimed his other uncle was severely beaten at the police station, and thereafter unidentified persons visited his home and he fears harm because of his connection with his missing uncle. The IAA accepted the authorities may have visited once or maybe twice and also opined the applicant feared harm because he will be imputed to be a supporter of the LTTE both because of the family connection and because he is a young Tamil male from an area formerly under the LTTE control. f. Thus the applicant clearly raised the possibility that the people who visited his home were connected to the disappearance of his uncle, a conclusion that seems credible for a number of reasons - the timing of their visit to the applicant's home shortly after the abduction demonstrates there was a connection to the uncle, after it was known the applicant recognised abductors as police. g. The IAA did not accept the visits reflect any ongoing interest in the applicant. However, the IAA considered 'it is possible that [the visits] were somehow related to the disappearance of the uncle', but did not consider what was the possible or likely outcome if the reason for the visits were related to the disappearance of his uncle and his claimed admission to the police that he recognised two of the abductors or ask itself 'what if I am wrong?'. (Appeal Book references omitted.) 28 In support of this ground, the Appellant cites and relies on the reasoning of Sackville J in Rajalingam as set out below: 62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution 63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in Wu Shan Liang and Guo as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found". 29 The Appellant submits that the primary judge was in error in dismissing the Appellant's contentions so premised advanced before it. The Authority had failed to properly consider a critical aspect of the "ultimate enquiry" of whether the Appellant had a well-founded fear of persecution. The primary judge had erred in finding that the Authority had not failed "to engage in reasonable speculation about what might occur in [the Appellant's] future" (at [30]).

The Minister's submissions 30 With respect to Rajalingam, the Minister submits: 21. It is important to note certain salient features of the decision in Rajalingham. The analysis undertaken by the Full Court was directed to whether certain events did or did not occur (rather than why those events occurred); a decision-maker may fall into error if he or she fails to consider whether an alleged event may have occurred: at [62] and [66]. There is nothing, as a matter of principle that requires a decision-maker to express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct: at [64]. A reviewing court should not "impute" to a decision-maker a lack of conviction or confidence in its findings of fact so as to warrant holding that the decision-maker should not or could not have elide on such findings to hold that a fear of persecution was not well-founded: at [65]). If there is "no real doubt" about a finding then there is no warrant for holding that a decision-maker "should have considered the possibility that its findings were wrong": at [67]. 31 The Minister submits that in contrast to the circumstance that had confronted Sackville J in Rajalingam, in the present case there was no question of the IAA being in any doubt as to whether the relevant event (N's abduction) had in fact occurred. 32 The IAA had expressly accepted at [31] that N had been abducted on 18 March 2009. It had accepted that N had not been seen since. The IAA had been satisfied that abductions were common in that location at the time. It had accepted that such abductions had frequently involved the Karuna Group or TMVP with the assistance of the police or security agencies. 33 It was simply, Mr Kay Hoyle submitted, that the IAA had been, understandably on the evidence before it, unable to form any state of satisfaction as to the reason why N had been abducted. The IAA's incapacity to form any concluded state of satisfaction in that regard was both justifiable and inevitable given that the Appellant himself had given conflicting accounts of his understanding of why N had been abducted. There was no other material before it (nor does the Appellant suggest that any might be available) which might have permitted a concluded view to be reached. 34 Similarly, the IAA had not expressed any doubt that the "authorities" (which I take to be an uncontentious reference to elements of Sri Lanka's security forces or police) had visited the Appellant's home once or twice (at [33]). However, it rejected that they had visited many times. The Authority accepted the fact that those visits had occurred. All the Authority had been unable to make a finding about was as to the reason for those visits. However, nothing turned on that because the Authority had been satisfied that they were not because of the authorities' ongoing interest in the Appellant. In reaching that conclusion, the Authority had reasoned that if the Sri Lankan security forces had been significantly interested in the Appellant they would not have simply left the house without searching it or waiting for his return. 35 The Minister submits that, in each instance, there was no event which the Authority had concluded had not taken place, but could have, as would engage the principles in Rajalingam. There was thus no requirement on the part of the Authority to consider whether it was wrong.

Consideration 36 Mr Kay Hoyle does not submit that the principles stated by Sackville J in Rajalingam would not be equally applicable to the duty of the Authority. The Court is satisfied that they are. It proceeds on that basis. 37 In that case Sackville J summarised the circumstances when a tribunal (in that instance the Refugee Review Tribunal) will have a duty to take account of the chance that a past event might have occurred, even though the decision-maker thinks that it probably did not (at [67]): In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons. If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. A "fair reading" of the reasons incorporates the principle that the RRT's reasons should receive a "beneficial construction" and should not be "construed minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang, at CLR 271-72; ALD 9; ALR 490, quoting Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; 115 ALR 1 at FCR 287. Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution. 38 Having regard to those principles, the Minister's submissions are to be accepted. 39 The Authority expressly accepted the first relevant event (the abduction and disappearance of N) had occurred. It accepted that such abductions had frequently involved the police or security agencies. On a fair reading, the Authority was thereby accepting the Appellant's claim that that had been the case with respect to N's abduction. 40 The doubt the Authority had was limited to the reasons that had led to that event. In that respect, the Appellant had given conflicting accounts. The Authority's statement that it could not be satisfied as to the reason for the abduction was effectively an open finding: it having no rational basis to choose as between the possible reasons that the Appellant had advanced to explain that event. 41 The Authority's wholly understandable uncertainty as to which of the reasons advanced by the Appellant might explain the abduction is, however, of no consequence. 42 The significance of the accepted event (the abduction of N) in relation to the Appellant's claims was the accepted participation of the Sri Lankan police and security services. The Appellant claimed that the Sri Lankan authorities' visits to his home were significant, because he had been a subject of interest after telling the police that he recognised two of the people involved in his uncle's abduction as police officers. 43 Again the fact of those visits was accepted by the Authority. Moreover, the critical findings of the Authority were that, having regard to the Appellant's earlier accounts and the manner in which those visits were conducted, whatever might have been the basis of those visits, they were neither as frequent as the Appellant had asserted nor were they connected with the authorities having any ongoing interest in him. Those findings were firmly expressed and, on a fair reading, are subject to no qualification as would have required the Authority to go further and consider any alternative scenario: At the SHEV interview he said that people had been to his house looking for him "many times", but he had only mentioned the 2010 occasion in his written statement. I do not accept this. If the police or unidentified men had been to his home many times, I believe the applicant would have said so in his written statements, rather than mentioning details of only one or two specific occasions. It is possible that, given the circumstances of his uncle's abduction, which I accept, security agencies may have visited the applicant's home and I am prepared to accept that they may have done so most recently in 2010. However, the applicant says that he was at home on both occasions. Had the authorities really been intent on finding him and harming him, I do not accept that they would have just left, rather than either searching the house or waiting for his return. Accepting that the visits occurred, it is not clear why they did, although it is possible that they were somehow related to the disappearance of his uncle. However, I do not consider that they reflect any ongoing interest in the applicant as a suspected LTTE cadre, or because of concerns that he might pursue an investigation or reveal the identities of the police involved, or that they indicate an intention to actually harm him I do not consider that these one or two visits to the applicant's home represent a serious level of adverse interest in the applicant, or indicate that he faces a real chance of serious harm on return. 44 The making of those findings of fact was for the Authority. It is not sufficient that a different decision-maker might have reached a different conclusion. No challenge is made to the Authority's findings on the basis of legal unreasonableness. The primary judge did not err in dismissing the similarly premised submissions articulated in the court below. 45 I would dismiss Ground 2.

Proposed Ground 5 46 Proposed Ground 5, which the Appellant requires leave to rely upon, contends that the Authority erred in failing to exercise its power under s 473DC of the Act to interview the Appellant in relation to the following claims: (1) that the Appellant's and his family's ability to subsist had been affected by the arrest of one of his uncles and the disappearance of another uncle; and (2) that the Appellant's uncle [P] was shot and killed by the Special Task Force who alleged he was a former Liberation Tigers of Tamil Eelam cadre. The Appellant submits that the Authority's failure in this regard amounted to an unreasonable exercise of the discretion under s 473DC. That was jurisdictional error.

The parties' submissions 47 The Appellant submits that the discretion in s 473DC of the Act should be reasonably exercised, citing in support of that proposition Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16) at [82] and DZU16 v Minister for Immigration & Anor [2017] FCCA 851; 321 FLR 306 (DZU16) at [84]. The Appellant submits that in the present case this Court should conclude that that discretion was not exercised reasonably, and that on the facts of this case where the Appellant had raised two new claims, the Authority's failure to exercise that discretion reasonably was a jurisdictional error. 48 In oral argument Mr Foster submitted that the relevant unreasonableness asserted (the Authority failing to consider exercising its discretionary power to seek new information about his new claims) was required to be identified as having occurred at a time preceding the exercise of the Authority's consideration of whether to receive any new information might be constrained by s 473DD of the Act: HIS HONOUR: I suppose, again, I'm putting to you what I'm sure the Minister will say in relation to the - to the means of support issue: there's nothing in the materials to suggest that the applicant is not capable of earning his own keep, is there? MR FOSTER: No. No, your Honour. But ….the point is, really, related to the fact that the uncle - one uncle disappeared, that's N; another uncle had been detained; and that affected the applicant and the applicant's family's ability to subsist. We're not saying there's any physical impairment. But that's a claim, and - of course, paragraph 7, on court book 849, makes the - makes the point that the tribunal found that the claim hadn't been made before the delegate. That's the middle of paragraph 7. The tribunal wasn't satisfied, toward the bottom of paragraph 7, there were exceptional circumstances to justify consideration of that new information; not satisfied, section 473DD were met. So the way in which this argument is expressed is that before making that finding, before making the 473DD finding, the tribunal should have exercised its discretion reasonably to have inquired with the applicant about further information concerning the subsistence point, and - which it didn't do. So that's how - how one would look at a finding which, on its face, 473DD might otherwise have precluded the tribunal from considering that information. And - and although - although the question about the other uncle being killed in year 2000 - similarly, because of - because of the history, we say, within the family - that is, one uncle killed, another uncle beaten up, and now we have a third - another uncle having been shot - then the tribunal ought to have inquired a bit more about that information, seeking information on this particular uncle, which it didn't do. So that's how we frame those two extra grounds, your Honour. … 49 The following discussion then took place as to the operation the Appellant was submitting should be given to s 473DC and s 473DD of the Act: MR FOSTER: Well, we say that the issue of considering new material [pursuant to 473DD] is directed by an entirely different regime as to what would apply under 473DC. HIS HONOUR: Let it be accepted that that is so, but in the absence of that new material being received, what was it that triggered the obligation to consider seeking any new material? MR FOSTER: Merely the making of new claims that were not before the tribunal. So the process would be new claims are made. Under 473DC, the tribunal would be required to at least consider getting new information. If it didn't seek new information under 473DC, then it would move on to 473DD and consider whether the new claims, as made without further information or documents, would be sufficient to allow it to "consider", within the context of the entire decision, those new claims. So our point is, your Honour, that there could be some confusion by applying the word "consider" to both 473DD and 473DC. It is a bit confusing, if one has to consider, under 473DD, the new information and then consider whether or not to get new information under 473DD, but the process, we say, commences with a reasonably exercised consideration of whether - sorry, a reasonable consideration - again, that's that word, but I'm using it in a different context - a reasonable consideration of whether the tribunal should exercise a discretion to get new information, presumably - well, it may well be, in most cases, the tribunal, having considered it, might form a view there would be no further documents to get, perhaps, but that's the point. The point is that there has to be at least some consideration reasonably exercised on the question of the discretion. And then one moves to 473DD to consider whether what is then before the tribunal should be considered in terms of the overall decision-making process. It's quite a separate thing. It's quite separate altogether. It's a two-step process. And merely for a tribunal to say, "Well, look, we've got this new claim, there's nothing before me to satisfy 473DD(a) or (b) or (b)(i) and (b)(ii), therefore I'm not considering it". In those sorts of circumstances, there might well be an argument that they have miscarried by not considering properly the discretion under 473DC. … 50 Submissions on those premises not having been previously articulated by Mr Foster in his written submissions, Mr Kay Hoyle sought leave to file short written submissions in response. I made orders permitting that to be done. 51 The Court intends no disrespect to the carefully articulated written submissions that Mr Kay Hoyle filed pursuant to that leave on 26 August 2019 by not referring to them. However, the Court does not see the need to do so. That is because I am satisfied, on first principles, that the Appellant's case has insufficient merit in the circumstances of this proceeding as to warrant leave being granted to the Appellant to rely on proposed Ground 5, that ground not having been advanced in the court below: see Coulton v Holcombe [1986] HCA 33; 162 CLR 1 (Coulton). 52 The want of plausible merit lies not in any weakness of legal reasoning in the underlying propositions advanced by Mr Foster, which for these purposes I will accept to be correct. It is because, even on that assumption, no want of reasonableness in the Authority failing to consider seeking further information has been established. 53 Let it be accepted, for the purposes of analysis, that there may be instances whereby the articulation of a new claim to the Authority might make it legally unreasonable for the Authority not to first consider the exercise of its discretion under s 473DC of the Act to seek some new information prior to turning its attention to s 473DD to determine what, if any, of that new information it would be entitled to consider, this is not such a case. 54 Legal unreasonableness is inherently fact and context dependent. 55 DZU16 and CRY16 are binding authority for the proposition that there will be circumstances in which, notwithstanding the abrogation of the principles of procedural fairness in Pt 7AA of the Act, it will be legally unreasonable for the Authority to fail to consider exercising the discretion contained in s 473DC(3). 56 However, the overall context established by the provisions of Pt 7AA of the Act is that, subject to such limited exceptions, the Authority must consider the material referred to it under s 473CB without accepting or requesting new information or interviewing the referred applicant: Plaintiff M174/2016 v Minister for Home Affairs [2019] HCA 17; 367 ALR 711 per Gageler, Keane and Nettle JJ at [22]. 57 It would be directly inconsistent with the overall context established by the provisions of Pt 7AA of the Act for this Court to accept a submission that the advancing of a new claim to the Authority by a review applicant, in and of itself, will engage the principle established in DZU16 and CRY16. There must be more: the facts must be such as to establish that, in contrast to the usual position, there is something which renders it, where no duty exists, unreasonable not to consider exercising the power. 58 In the context of Pt 7AA, there is nothing in the facts of this proceeding as might demonstrate that the Authority's failure to consider exercising its discretion to seek new information with respect to the Appellant's new claims was legally unreasonable. There was nothing before the Authority as would have alerted it, for example, to any incapacity on the Appellant's part to have put those claims before the Minister's delegate or to have himself advanced information in support of those claims. 59 This was not a case where the delegate failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable and which supplied a sufficient link to the outcome as to constitute a failure to review: see MZARY v Minister for Immigration and Border Protection [2018] FCA 374; 74 AAR 234 at [10]-[11] (Bromberg J). 60 There is nothing in the facts to suggest that it was legally unreasonable in the context of Pt 7AA for the Authority to have proceeded as it did in submitting the new claims and information the Appellant sought to adduce to the filter of s 473DD and proceeding to make its decision on the basis of such information as it was entitled to consider having done so. The Appellant does not assert any error in regard to the Authority's reasoning in respect of s 473DD of the Act. 61 It is uncontentious that the Appellant did advance new claims but, as previously discussed, that in itself was insufficient to have required the Authority to consider whether to exercise its discretion to seek new information pursuant to s 473DC(3) of the Act. There is nothing in the nature of those claims, the facts before the Authority, or the circumstances of the Appellant that Mr Foster has identified as would take this matter outside the ordinary context provided for by the Act whereby the Authority was required to consider the material referred to it without accepting or requesting new information or interviewing the Appellant. 62 I would apply the principles stated in Coulton and refuse leave to the Appellant to rely on Ground 5. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.