DEL17 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The appeal be dismissed.
2. The appellant pay the first respondent's costs as fixed in a lump sum by a Registrar if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

LOGAN J: 1 The appellant is a citizen of Sri Lanka. He came to Australia without the prior grant to him of a visa under the Migration Act 1958 (Cth) (the Act) authorising his lawful entry. On 16 October 2015, the appellant applied to the predecessor of the present Minister for Immigration, Citizenship and Multicultural Affairs (Minister), under the Act, for what is known as a safe haven enterprise visa. On 17 November 2016, a delegate of the Minister refused to grant the appellant this visa. That decision was then referred, under Pt 7AA of the Act, to the Immigration Assessment Authority (Authority) for review. 2 On 30 June 2017, for reasons given in writing that day, the Authority decided to affirm the Minister's delegate's decision not to grant the appellant the visa for which he had applied. The appellant then sought the judicial review of the Authority's decision by what is now termed the Federal Circuit and Family Court of Australia, (Division 2) (Circuit Court). On 3 August 2022, the Circuit Court dismissed with costs the appellant's judicial review application: see DEL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 666. 3 The appellant has now appealed to this Court against those orders of the Circuit Court. There are two grounds of appeal stated in the notice of appeal. They are: 1 The Federal Circuit Court erred in not finding the Immigration Assessment Authority denied the Applicant procedural fairness and/or made an error of law because the application was refused to represent his claims/comments orally. 2 The Federal Circuit Court erred in not finding the Immigration Assessment Authority (IAA) denied the Applicant procedural fairness and/or made an error of law because the IAA constructively failed to review the delegate's decision, denied the Applicant procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information. 4 As is apparent on the face of those grounds of appeal, they are expressed at a level of generality in terms of exactly what constituted the basis for the alleged denial of procedural fairness, and thus the related error by the primary judge in failing to find that there had been a denial. As he might have done - and this, with respect, is no criticism of him - the appellant (who acted on his own behalf) did not file in advance of today's hearing a written outline of submissions. 5 In combination, this meant that the Minister, who was, as is appropriate, the only active party respondent, had to engage in a degree of speculation as to the precise grievance with the primary judge's reasoning which the appellant had. However, it became clear in the course of the most courteous and focused exchanges between the appellant and me, in the course of the appellant's oral submissions, that the essence of his grievance in terms of a denial of procedural fairness was a denial by the Authority of an opportunity for him to make oral submissions in response to new country information which the Authority had obtained. 6 It may perhaps be that this particular subject of grievance, as identified today, was not precisely identified in so many words in the submissions made by the appellant to the Circuit Court judge. But there is no great harm, and the interests of justice are better served, by addressing today whether there is any merit in the alleged denial of procedural fairness as it came to be identified by the appellant. Very fairly, the Minister did not raise any procedural objection as to whether, as developed by the appellant in oral submissions, a new issue requiring a grant of leave had been raised. Instead, the Minister met the alleged denial of procedural fairness head on in oral submissions. 7 The end result is that, although there are two grounds of appeal, there is but one alleged error in terms of a failure to find procedural fairness denial. 8 To give context, it is necessary to identify how it was that the Authority came to seek new information concerning the position in Sri Lanka. The answer to that is supplied in [4] of the Authority's reasons and in essence arise as a result of the passage of time between when the appellant made his visa application and when in turn the Minister's delegate decided that application and when the Authority came later to make its review decision. The Authority stated at [4]: 4. In accordance with s.473DC(1) of the Act I have obtained new information, that being the most recent Department of Foreign Affairs and Trade (DFAT) Country Information Report for Sri Lanka, which is dated 24 January 2017 and was therefore published after the date of the delegate's decision. The information is relevant because it relates to the situation of Sri Lankans, and specifically Tamils, who have departed Sri Lanka illegally and sought asylum; and also about the treatment of the Tamil population of Eastern and Northern Sri Lanka by security forces and the circumstances of that population under current political and security conditions. The information is therefore about classes of persons of which the applicant is a member. The delegate considered information in the 2015 DFAT Report for Sri Lanka, which provides a similar assessment to that in the later report, but the 2017 report is DFAT's most recent assessment and contains the most up to date information. I am satisfied that there are exceptional circumstances to justify considering this new information: s.473DD(a). [footnote references omitted] 9 The Authority detailed in [5] of its reasons the basis from the claims for persecution which the appellant had made. The appellant is an ethnic Tamil and an adherent to the Roman Catholic branch of the Christian faith. His claims for persecution had three aspects. One was in ways detailed by the Authority in [5], various types of persecution by Muslims in Sri Lanka. Separate to this but related to his Tamil ethnicity was claimed persecution by authorities in Sri Lanka, based on presumed allegience to the LTTE, once otherwise called the Tamil Tigers. They were not unrelated because of his claim that particular Muslims had planted explosives in fishing huts so as to give the authorities an understanding that he was involved with the LTTE. The third aspect of his claim for persecution related to his membership of a particular social group, constituted by persons who if returned to Sri Lanka following a failed asylum claim, would be subject to particular mistreatment by the authorities in Sri Lanka, in light of that failed claim and an illegal departure from Sri Lanka. 10 It was no part of the appellant's case, either in the Circuit Court or on appeal, that the Authority had misunderstood and misstated the basis of his claim for persecution and hence his claim for a visa. Suffice it to say, after a detailed consideration of the various aspects of the appellant's claim and the material before the Minister's delegate, and the new country information, the Authority was not satisfied that there was a basis for the granting to the appellant the visa he claimed. 11 It is not necessary to set out in detail, the Authority's reasons in order to deal with the grounds of appeal as they were developed by the appellant in oral submissions, only to appreciate that on each aspect of the appellant's claims, the Authority drew on the new information contained in the later report from the Department of Foreign Affairs and Trade (DFAT). 12 In ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439, at [2], it was stated in the joint judgment of Kiefel CJ and Bell, Gageler and Keane JJ, the following, with respect to Pt 7AA of the Act: The scheme of the part is to impose a duty on the Authority to review the fast track reviewable decision referred to it by the Minister by "considering" the "review material" provided to it by the secretary … at the time of referral, without accepting or requesting "new information" and without interviewing the referred applicant, subject to the Authority having specific powers to "get" and, in specified circumstances and on specified conditions, to "consider" new information. One way the Authority is empowered to get new information is by inviting a person, who can be the referred applicant, to give new information at an interview which the Authority can conduct in person or by telephone or in any other way. 13 Of present relevance are ss 473DC, 473DD and 473DE of the Act. These sections provide: 473DC Getting new information (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. 473DD Considering new information in exceptional circumstances 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; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. 473DE Certain new information must be given to referred applicant (1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision: (a) give to the referred applicant particulars of any new information, but only if the new information: (i) has been, or is to be, considered by the Authority under section 473DD; and (ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and (b) explain to the referred applicant why the new information is relevant to the review; and (c) invite the referred applicant, orally or in writing, to give comments on the new information: (i) in writing; or (ii) at an interview, whether conducted in person, by telephone or in any other way. (2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances. (3) Subsection (1) does not apply to new information that: (a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or (b) is non disclosable information; or (c) is prescribed by regulation for the purposes of this paragraph. Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. 14 As mentioned, this is a case where the Authority obtained and considered new information, namely, the new DFAT country study, acting under s 473DC and s 473DD of the Act. It is not the obtaining and considering which is said to give rise to the denial of procedural fairness, but rather the absence of giving that new information in that country report to the appellant for his making a submission concerning it prior to the Authorities' decision, which is the basis for the appeal. 15 Read in isolation, s 473DE(1) would give rise to an obligation on the part of the Authority to have put to the appellant for comment particular new information in the new country study on which the Authority might act in deciding not to accept his visa application. But the obligation in section 473DE(1) is subject to an exception stated in section 473DE(3). So the question becomes whether, in the circumstances of this case, there was anything about the new information in that new country study on which the Authority acted which was specifically about the appellant, as opposed to just about a class of persons of which the appellant was a member: s 473DE(3)(a). 16 The point made by the appellant was that information could be about him personally, even though it might also be about other persons in similar circumstances or members of a similar group. That submission, with respect, was entirely rational. For example, information about the qualities of a sporting team might be information about, personally, each and every member of that team. 17 As it happens, however, the answer to the question posed is the subject of earlier Authority, to which I was helpfully drawn by Mr Cunynghame in the course of his oral submissions for the Minister. That earlier Authority is a judgment of Bromwich J in EKW17 v Minister for Immigration and Border Protection [2018] FCA 1366 (EKW17). The High Court of Australia later dismissed an application for special leave to appeal from his Honour's judgment in that case, on the basis that there was no reason to doubt its correctness: see EKW17. 18 One of the issues in the appeal before Bromwich J was identical to the issue which emerged in the course of the appellant's oral submissions, namely was it lawfully open to the Authority to act on the new country information without giving the visa applicant an opportunity to comment upon that new information? His Honour's conclusion was that the phrase in the exception in s 473DE(3)(a), 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, was applicable to the new information of a generic nature in a country study. 19 The essence of his Honour's reasons for that conclusion is to be found at [18] to [20] of his Honour's reasons for judgment: 18 The Minister also relied upon the consideration by the High Court of the similar phrase, "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member", in s 424A(3)(a) of the Migration Act in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [91] (emphasis added): Thirdly, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims. The Migration Act makes special provision about how the Refugee Review Tribunal is to conduct its reviews. It provides (s 424A(1)) that the Tribunal must give an applicant "clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review". But that obligation is subject to qualifications. In particular, it does not extend (s 424A(3)(a)) to information "that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member". Hence country information is treated as a class of information which need not be drawn to the attention of applicants for review by the Refugee Review Tribunal. But those provisions were not engaged in respect of Independent Merits Reviews of the kind now under consideration or, we would add, in respect of the initial Refugee Status Assessments. The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not. 19 It is apparent that the omission identified by the High Court in Plaintiff M61 has been rectified in relation to the Authority by the similarly worded s 473DE(3)(a). 20 The Minister's submissions in relation to this ground must accordingly be accepted. The primary judge was correct. The plain words in s 473DE(3)(a) mean that the Authority was under no obligation to furnish to the applicant country information of a kind that passes the threshold of exceptional circumstances in s 473DD(a). This ground of appeal must therefore fail. [emphasis in original] 20 Looking to the Authority's reasons, insofar as the Authority acted on new information in the DFAT country study, there was nothing in that new information which was specifically about the appellant in the way in which the exception in 473DE(3)(a), was construed by Bromwich J in EKW17. It was truly generic. 21 The Authority did not act on anything in the new DFAT report, which specifically concerned any incident which the appellant claimed to have an involvement. That being so, the obligation in s 473DE(1) was not engaged because the case fell within the exception found in s 473DE(3)(a). That does not mean that there is not a rational basis for the appellant's sense of grievance, only that in terms of legal application arising from the terms of the Act, that grievance does not sound in a denial of procedural fairness. 22 For these reasons, the grounds of appeal as developed and particularised in the course of the appellant's oral submissions cannot be upheld. 23 To the extent that the way in which the grounds of appeal as developed on the hearing of the appeal differ from the way in which they were developed or, at least, understood by the learned primary judge, I merely record for completeness that I do not otherwise see a denial of procedural fairness constituted, for example, by an unreasonable failure to afford an oral hearing by the circumstances of the case as understood by the primary judge. 24 For these reasons, the appeal must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan.