DHW17 v Minister for Home Affairs

The arguments on the appeal 9 The issues raised on behalf of the appellant are well explained in the written submissions. They were not, however, as apparent from the original notice of appeal, which was filed when the appellant was not legally represented. At the hearing of the appeal, leave was granted to the appellant to file and serve a proposed notice of appeal, raising the two grounds adverted to in the submissions. As I note below, one ground was accepted by the Minister to have been raised before the Federal Circuit Court and one was not. The Minister was granted leave to file any short submissions he wished on the proposed amended notice of appeal, and consideration of any question of leave was reserved to be considered with the disposition of the appeal as a whole. After the hearing of the appeal, the appellant filed an amended notice of appeal as directed, and no submissions were received from the Minister. 10 Before the Federal Circuit Court, the ground of review which related to one (and on the appellant's argument both) of the grounds of appeal was described as the second ground of review. 11 The Federal Circuit Court rejected this ground in the following terms at [34]-[38]: 34. The second ground of review was: 1. That the decision of the First Respondent and Second Respondent falls into an error of law. The Reviewer made facts finding error, ignored relevant material and relied on irrelevant in reaching their decision and reasons on 12 July 2017. a) According to Ministerial direction no 56 which states DFAT country information is to be taken into account only where it is relevant information, and the decision maker is not precluded from considering other relevant information about the real situation in Sri Lanka. Further, the First and Second Respondent failed to take into account there are limitations in the DFAT country information of Sri Lanka. 35. Nothing more is said. The DFAT information was used, as was all other country information. There was nothing that has been said to me to show that what any limitations in the country information are. The country information is a matter for the IAA to make of whatever use it feels. That particular has no merit. b) Further, the Second Respondent failed to consider other relevant and reliable material or information such as which was available before the date of decision of IAA (12 July 2017) regarding the real situation in Sri Lanka other than the DFAT country information 2017report. 36. Insofar as that particular is a criticism of not receiving the new information, I've already dealt with that. Again, the IAA is free to look at whatever country information it so pleases. There is no merit in that particular. c) Further, the Second Respondent relied on the article "US Department of State, Sri Lanka Country Report on Human Rights Practice 2015" only to the information as stated in paragraph 37 of the IAA decision but failed to take into account other relevant information in the said report such as regarding torture and other cruel, inhuman, degrading treatment or punishment. 37. Again, there is no evidence that the whole report was not looked at. If the IAA chooses to speak of one particular aspect then that is a matter for the IAA. The last particular is: d) The reviewer made a fact-finding error and failed to seek or take into relevant information (reference made to paragraph 34 of IAA decision) when decided that the reviewer was not satisfied that the applicant's sister was contacted by the Sri Lankan authorities as a result of the data breach. 38. Again, that is a fact that the IAA is entitled to infer.

The two grounds of appeal in summary 12 First, the appellant contends the Authority failed to have regard to and consider all of the country information before it, and instead restricted itself, unlawfully, to three pieces of country information in considering and determining the review of the appellant's claims. 13 Second, the appellant contends the Authority failed to discharge its (asserted) obligation to consider whether the country information it proposed to rely on was "reliable". While accepting it is a matter for the merits decision-maker what information or material of this kind the decision-maker elects to accept or reject, the appellant submits the legal position is not quite as binary as stated by the Federal Circuit Court. The appellant contends the Authority was required to take account of "reliable information", basing this submission on what was said by the High Court in CRI026 v The Republic of Nauru [2018] HCA 19; 92 ALJR 529, an appeal about consideration of the reasonableness and practicality of an asylum seeker relocating within his country of nationality. The appellant's submissions also refer to the Full Court's decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437, and he submits: …a conclusion that the applicant will not face a significant risk of harm on returning to Sri Lanka can only be reasonably made if that decision is made with regard to reliable information which negates the finding that, inter alia, returning Tamil asylum seekers face a risk of significant harm on returning - consideration of unreliable information is unreasonable. 14 The appellant's written submissions mixed some of the provisions of the Migration Act which apply to the Administrative Appeals Tribunal (such as s 424) with the terms governing the discharge of the Authority's task in Pt 7AA of the Migration Act. At the hearing, counsel properly accepted that provisions such as s 424 were not applicable to the Authority.

First ground 15 The appellant contrasts the wide variety of information to which the delegate had regard, with the fact the Authority had regard to three sources of information, and in particular relied on the Department of Foreign Affairs and Trade country report in relation to Sri Lanka of January 2017. He contends the absence in the Authority's reasons of any references to country information other than three sources should lead to a finding that the Authority did not consider any other sources of country information, including the wide range of material to which the delegate referred. In particular, the appellant pointed to information before the delegate in reports from Human Rights Watch, Tamils Against Genocide and Freedom From Torture that there were calls made to halt the deportation of all failed Sri Lankan asylum seekers to Sri Lanka, and the continuing torture of returnees. 16 The appellant also referred to the terms of s 473DB(1), which the appellant submitted "compelled" the Authority to consider all the country information before it: 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. 17 The Minister contends that while s 473DB(1) of the Migration Act requires the Authority to "review" a decision referred to it by "considering the review material", that does not mean the Authority is required to "make specific reference to every item of the review material in its reasons for decision". He also contends that the fact the Authority did not refer to the identified country information suggests that the Authority did not consider the information relevant to its decision in particular given the more recent 2017 DFAT report on Sri Lanka. 18 In resolving the first ground I note the following matters: (a) The terms of s 473DB(1) require the Authority to consider the "review material" provided to it under s 473CB by the Secretary. By ss 473CB(1)(b) and (c) that will include country information either provided to the delegate by a visa applicant (s 473CB(1)(b)) or country information on which the delegate relied (s 473CB(1)(c)). In relation to s 473CB(1)(c), plainly any material to which the delegate referred in her or his decision is likely to be (at the time at which the s 473CB obligation is to be performed) material which is relevant to the Authority's review. How the material is "given" is a different matter, and it may be that in relation to country information there are a number of ways in which the applicable country information before the delegate can be "given" to the Authority. (b) There is no challenge to the Authority's exercise of discretion under s 473DD not to receive a range of new information placed before it, including what was described by the Authority as "document titled "Information Report: Sri Lanka October 2016", prepared by Nalliah Suriyakumaran, Fr Pan Jordan OP, A. Ratnakanthan, Chris Slee and Michael Cooke, dated December 2016". (c) There is no challenge to the Authority's exercise of discretion under s 473DD to receive a document entitled "DFAT Country Information Report - Sri Lanka", 24 January 2017, being an updated report by DFAT on the situation in Sri Lanka. I further note the Authority was not obliged to give the appellant notice that it would consider this kind of new information: see s 473DE(3)(a). (d) Apart from filing the documents to which the Authority referred in its reasons at [4], the appellant made no additional submissions to the Authority. In particular he made no additional submissions about the existing country information that had been before the delegate. The evidence shows he did contact the Authority a number of times, explaining his difficulties in getting documents translated, his difficulties in representing himself, and his general circumstances. (e) The January 2017 DFAT report described DFAT's opinion of the situation in Sri Lanka at a time which was around six months prior to the Authority's decision. (f) The focus of the appellant's submissions on the appeal appeared to be on the Authority's conclusion at [50] that: … the risk of torture or mistreatment for the majority of returnees is low and continues to reduce. (g) This is the finding the appellant submits might have been different had the Authority considered the earlier material from 2012 from Human Rights Watch, Tamils Against Genocide and Freedom From Torture, which the delegate had considered. 19 Like other merits review bodies, the function of the Authority is to make the correct or preferable decision: Bushell v Repatriation Commission [1992] HCA 47; 175 CLR 408 at 424-425 (Brennan J). In Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [10] French CJ described the review function of the then Refugee Review Tribunal and Migration Review Tribunal. This description applies equally to the function of the Administrative Appeals Tribunal and, subject to what I say at [20], also to the Authority: The word "review" "has no settled pre-determined meaning; it takes its meaning from the context in which it appears." As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate. (footnotes omitted) 20 The way in which the Authority must discharge that function is conditioned by the terms of Pt 7AA, and those provisions affect the unqualified applicability of the last sentence of the extract from Li. Nevertheless, the function remains a "review" function (see s 473CC(1)) and the powers of the Authority include a power to recommend that the delegate's decision be changed (see s 473CC(2)(b)). This is the approach to the Authority's function taken by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [17]. 21 In performing a review function of this kind, the usual principle is that the decision-maker should consider current information or material most likely to give the decision-maker an indication of what the situation is likely to be in the country to which a visa applicant may be forced to return: see Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38] and [45]. Consideration of up-to-date material is a core aspect of the review function where the task is to determine whether a person has a well-founded fear of persecution on return (in the foreseeable future) to a country, or faces a real risk of significant harm (in the foreseeable future) in that country. The task is predictive, and while each case will turn on its facts, in general terms it can be said that a decision-maker should, in order to perform her or his task, base that prediction on the most recent and reasonably available information about the situation in a particular country. 22 In the case of the Authority, the constraints imposed by s 473DB(1) must be noted. However, so must the power in s 473DC(1) to "get" new information. What occurred in this case is a good example. As I have noted above, the Authority clearly became aware of a newly updated DFAT country report, and considered the fact that it was the most up-to-date information about the situation in Sri Lanka to be "exceptional circumstances" for the purposes of s 473DD(a). That was, with respect, a plainly correct approach, given the Authority's function. 23 In undertaking that task, and noting what I have observed in [18(a)] above, an obligation to "consider" review material does not necessarily involve the Authority referring in its reasons "to every piece of evidence and every contention made by an applicant": see Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45] and the authorities there cited. Carrascalao concerned a visa cancellation decision but in my opinion, and taking into account the authorities to which the Full Court refers at [45], the same principles apply. See also Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at [47]. 24 At [3] of its reasons the Authority stated that it had regard to the material referred by the Secretary under s 473CB. While a general statement such as this is not determinative, it is also not to be set at nought. For a supervising court to find, against such a statement, that certain materials which should have been considered have not been requires a sufficient probative basis in the remainder of the reasons, and in other evidence before the supervising court. 25 At [13]-[35] of its reasons, and in some detail, the Authority set out the appellant's claims, his account of what had happened to him in Sri Lanka, and what he feared would happen to him, as well as an account of his circumstances since he had arrived in Australia. The Authority then expressed its conclusion at [36]-[51] about why, despite its acceptance of much of his narrative of his past treatment, the Authority was satisfied there had been a change in the situation in Sri Lanka, and that in any event, insofar as there remained a real chance of persecution or serious harm, the appellant was not a person who fell into any of the categories of people to whom those risks applied. From [53]-[61], the Authority considered the complementary protection criteria, relying on the 2017 DFAT report. 26 Aside from the matter to which I have referred in [18(f)] above, the appellant's submissions did not point to any particular issue relevant to the appellant's claims or circumstances which was raised by the country information and which he contended had not been considered. 27 This is a situation where, in my opinion, there is no probative basis on which to doubt the Authority's statement at [3] of its reasons. The extent to which it was necessary for the Authority to specifically address broader country information in its reasons is always dependent on its findings of fact. In this case, in a detailed and careful way, the Authority had made factual findings about why the appellant's past activities would not bring him to the attention of the Sri Lankan authorities, and why he would not face any challenges on retuning to Sri Lanka which were not challenges shared with other Tamil asylum seekers. It was on that basis the Authority came to consider the country information and there is no error, let alone a jurisdictional one, in its focus on the most recent DFAT report. Indeed, the fact it sought out and relied on the most recent report demonstrates a proper approach to its review function, for the reasons set out in MZYTS. 28 In the absence of anything more specific being highlighted by the appellant to the Authority, and in the absence of any evidence before the Federal Circuit Court and this Court on appeal about the contents of country information to which the Authority did not expressly refer, this ground must be rejected.

Second ground 29 The appellant's argument is summarised at [13] above. 30 The Minister contends that the argument about "reliable" information is a new ground of appeal, for which the appellant requires leave, and that such leave should not be granted, because the argument has insufficient merit. 31 I accept the Minister's submissions that the ground as it is now put cannot reasonably be seen to fall within particular (b) of ground 2 before the Federal Circuit Court and is properly seen as a new ground. As counsel's submissions disclosed, the point arising is the same one which has been taken in a number of Federal Circuit Court decisions, flowing from the passage in the High Court's decision in CRI026. 32 The appellant's proposed ground of appeal is expressed as follows: The learned Federal Circuit Court Judge erred in law by failing to conclude that the Immigration Assessment Authority erred in law by: 1. failing to direct itself that it had an obligation to consider, in making a choice, on a reasonable basis. as to what of conflicting information to accept and which of that information was reliable: and …. 33 As I have noted above, although given the opportunity, the Minister did not make any further submissions on the proposed new ground. 34 I have outlined the approach that I consider the correct approach to the question of whether leave should be granted to raise a new ground of appeal in migration appeals in BKQ16 v Minister for Immigration and Border Protection [2019] FCA 40 at [73]-[76], and also in the cases to which I referred at [73] of that decision. I adhere to that approach. The real issue is the merit of the proposed new ground. In the present case, I do not consider the ground has sufficient merit for leave to be granted. I turn to explain why. 35 The Minister contends that there are several decisions in the Federal Circuit Court where the same argument has been raised, and rejected. He referred to the decision of AXP18 v Minister for Home Affairs & Anor [2018] FCCA 3834, and several other cases to which his Honour referred to at [13]-[15]. Judgment is currently reserved before a Full Court in relation to those four cases, including the decision of Judge Kendall in EAT17 v Minister for Immigration & Anor [2018] FCCA 3036. 36 Judgment was reserved on the appeal from AXP18 and the three other matters in February 2019. The Court was informed at the hearing of this appeal that the Full Court has agreed to await the outcome of a matter now before the High Court, so that it may yet be some time before judgment is delivered. In the circumstances, and given it was common ground that the High Court case (BVD17 v Minister for Immigration and Border Protection & Anor S46/2019) deals with a different issue, the Full Court appeals may also be determined on different grounds. I have decided it is not necessary to await the outcome of the Full Court matter to determine this appeal. 37 As counsel for the appellant accepted at the hearing, this ground in substance involves the proposition that it would be legally unreasonable for a decision-maker such as the Authority to base its decision on information which is not objectively reliable. Counsel added that for the Authority to "cherry-pick" just a few sources of country information from a larger available pool of information would also fall into this category of error. 38 In CRI026 the High Court said at [39]: To the contrary, however, as appears from BL v Australia, before a decision maker may properly reject a claim for complementary protection on the basis of the availability of reasonable internal relocation, the decision maker needs reliable information as to the safety and suitability of the place of relocation … Accordingly, depending on the issues and circumstances identified by the applicant, the decision maker not only will need reliable information as to the safety and suitability of the place of relocation but also will need to pay careful regard to the applicant's personal and family circumstances. It is only when and if the decision maker concludes on that basis that internal relocation would be reasonable that the claim for complementary protection may be rejected on that basis 39 As I suggested to counsel for the appellant in oral argument, these statements by the High Court need to be read in their proper context. As the extracts above illustrate, where the question is whether a person who has a well-founded fear of persecution in one part of their country of nationality might be able to relocate to another part where there is not assessed to be an objective basis for a fear of persecution, the authorities are clear that issues of reasonableness and practicality are key aspects of that assessment. It is in this context that the High Court emphasised the need for "reliable" information, because a judgment is being made about the particular circumstances likely to face a particular individual and their reasonableness and practicability. 40 Nevertheless, it is not difficult to extrapolate from dicta such as this that for any assessment of the circumstances a person might face on return to her or his country of nationality, it is important that the information which founds such an assessment is objectively reliable. The task is predictive, and inherently concerns the situation facing a particular individual in a particular country at a particular point in time. How the general proposition that a decision-maker must rely on information and material that is objectively "reliable" might be applied to a specific decision will depend very much on the arguments raised, and the information impugned, in that specific set of circumstances. It may be this argument is not more than another way of expressing an irrationality or illogicality ground of review. 41 Therefore, in considering the merits of the proposed grounds of appeal, I am prepared to assume in favour of the appellant that a proposition of the kind I have discussed is supported by general principle. To say as much is really to say, in different language, that a decision-maker must act on probative material which is rationally and reasonably capable of supporting the findings that are made: see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [124] (Crennan and Bell JJ); Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 367-368 (Deane J). 42 One reason, in a particular case, that information may not be probative is because it is not objectively "reliable": for example, if it could be properly characterised as nothing more than government propaganda without a basis in fact. 43 Making that assumption in favour of the appellant, on this appeal the ground has insufficient merit because no argument was developed about why the material upon which the Authority based its decision was not "reliable". The principal source was the 2017 DFAT country report on Sri Lanka. That is a document produced by the Australian Government, which draws on a variety of sources, and expresses opinions which do not bind a decision-maker such as the Authority, but which can certainly be taken into account and adopted if the decision-maker is satisfied it is appropriate to do so in a particular case. Without development, at some considerable level of particularity and by reference to other evidence, about what in that report could be described as not reliable, the argument goes no further than an assertion of general principle without application to the specific circumstances of the Authority's decision. That is insufficient for the grant of leave where the appeal turns on the application of general principle to the particular reasoning of the Authority. 44 The appeal must be dismissed, with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.