DJF16 v Minister for Home Affairs

1. The appellant have leave to amend the notice of appeal so as to raise, as grounds of appeal, in substitution for those pleaded in those filed, Grounds 1, 2 and 3 as set out in the appellant's written submissions on 8 August 2018, by leave.
2. The filing and serving of an amended notice of appeal setting out those amended grounds be dispensed with.
3. The appeal be dismissed.
4. The appellant pay the costs of the first respondent, of and incidental to the cost of the appeal, to be taxed 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 arrived in Australia by boat in November 2012. He did not have at that time a visa authorising his entry into Australia. That means that he was at that time what the Migration Act 1958 (Cth) (the Act) terms an "unauthorised maritime arrival". Initially after his arrival, he was placed in immigration detection. In May 2013, he was released from that detention by a bridging visa. The then Minister for Immigration and Border Protection, the successor to whom is the Minister for Home Affairs (Minister), came to permit the appellant, in the exercise of power confirmed by s 46A(2) of the Act, to apply for either a Temporary Protection visa (Subclass 785), or a Safe Haven Enterprise Visa (Subclass 790). 2 In the result, the appellant applied for a Safe Haven Enterprise (Subclass 785) visa. Materially the criterion for the grant of that visa was satisfaction on the part of the Minister or a delegate that, at the time of the decision, the appellant met either the refugee or complementary protection criteria, as found in ss 36(2)(a) and 36(2)(aa) respectively, of the Act. A delegate of the Minister refused the visa application on 7 September 2016. 3 That decision was what is known as a "fast track decision". Accordingly, the Minister referred the delegate's decision to the Immigration Assessment Authority (the Authority) in accordance with s 473CA of the Act. The Authority decided to affirm the Minister's delegate's decision by a decision given on 24 October 2016. 4 Thereafter, the appellant applied to the Federal Circuit Court for the judicial review of the Authority's decision and for the consequential issuing of a writ of mandamus directed to the Authority requiring the redetermination of the review. That application was made on 5 November 2016. On 6 April 2018, the Federal Circuit Court dismissed that judicial review application. 5 The appellant has appealed to this Court against that order of dismissal. The notice of appeal as filed was authored by counsel, apparently directly briefed. 6 The appellant came but recently (on 6 August 2018) to engage solicitors. The appellant's solicitors, with commendable diligence, given the longstanding listing of the appeal for today, prepared and filed by leave and served written submissions. It is apparent from the written submissions, and confirmed in the course of oral submissions made on the appellant's behalf by his solicitor, that the grounds that are sought to be pressed are those set out in that written submissions. Those grounds are these: 1. The Tribunal erred in law by making a decision based upon irrelevant information. 2. The Tribunal erred in law by making a decision not taking into relevant information. 3. The Tribunal failed to apply the Complementary provisions correctly. 7 In the ordinary course, one might have expected, as a matter of practice, those grounds to have been inserted into a draft amended notice of appeal, but the compressed timeframe between engagement and today's hearing does offer an explanation as to why that did not occur. Of these grounds, Ground 1 does take up some, but not all, of the errors alleged in a diffuse way in the first ground as set out in the filed notice of appeal. That ground as there set out is in these terms: GROUND 1 His Honour fell into error in failing to find that the Immigration Assessment Authority erred in consideration of document and thereby committed jurisdictional error. Particulars (a) The Appellant submitted document (Certificate of Non-Safety) dated 21 September 2016 from the Human Rights Organisation of Sri Lanka ("HROSL"). (b) The Authority considered that there were exceptional circumstances about Certificate of Non-Safety issued by HROSL (IAA at [7]). (c) The Authority having accepted the document has failed to meaningfully engage with the document conflating the consideration with another organisation, Human Rights Commission of Sri Lanka ("HRCSL"). (d) The Tribunal "noted" (rather than make findings) HR CSL was the .. "the body charged with protecting and promoting human rights, ...." (IAA at [7]) rather than meaningfully engage with the material provided by the Appellant (and thereby rejected role of HROSL). (e) The Authority concluded that "... there is no indication of any investigation conducted by this agency ...". The IAA failed make any inquiries about HROSL. (f) The Authority was illogical / irrational and or unreasonable in its conclusion that HRCSL was the only body involved in such matters; (g) The Authority erred in concluding that HRCSL was the only recognised agency (even if not expressly by the way of the consideration of the information). (h) The Authority committed jurisdictional error 8 Of the proposed grounds of appeal, Grounds 2 and 3 do look to take up points that were issues that were raised in the judicial review application as pleaded grounds of review. There is no express reference to an error in relation to the construction or application of s 473DD of the Act by the Authority in the grounds of review, but that section does feature in his Honour's reasons for judgment. Hardly unfairly, the Minister approached the appeal on the basis that the Court should determine as proposed Ground 1 substantively rather than addressing whether leave to raise that ground was required. 9 Another observation which should be made in relation to the grounds set out in the appellant's outline is that Ground 2, which takes up an alleged failure to apply the complementary protection provisions, correctly looks expressly to have been abandoned in the court below by the appellant's then legal representative (see para 2 of the reasons for judgment of the relevant primary judge). The subject of whether complementary protection had been lawfully addressed, is nonetheless dealt with in his Honour's reasons for judgment. For that reason the Minister approached the appeal, again hardly unfairly, on the basis that Ground 2, as set out in the appellant's outline, should be dealt with on its merits. 10 It is necessary to make some brief reference to the foundation for the appellant's claim for a Protection visa. The appellant is a Tamil of the Hindu faith. His claim was to fear harm from paramilitary groups in Sri Lanka by virtue of his support of the Tamil National Alliance and related to that imputed links to the LTTE in the event that he was returned to Sri Lanka. Before the Authority, the appellant sought to introduce for the Authority's consideration on review particular documents which had not been furnished by him to the Minister's delegate. They were two extracts from the information book of the particular police station dated 20 November 2010 and 23 November 2010 and a death certificate for a couple dated 16 October 2008 and a "Certificate of Non-Safety" from the Human Rights Organization of Sri Lanka dated 21 September 2016, together with a related letter from his parents of that same date. As to these documents, the Authority, for reasons set out in paras 5 and 6, formed the view that the two extracts from the information book and the death certificate were not attended with exceptional circumstances which warranted the Authority from considering what it regarded as new information. Accordingly, the Authority recited in its reasons that regard had not been had to the information. 11 As to the Certificate of Non-Safety and the related parental letter, the Authority accepted that they post-dated the delegate's decision and also was satisfied that there were exceptional circumstances justifying their consideration and the information contained therein. In so doing, and though the Authority did not in terms refer to the section, the Authority was engaging with the requirements of s 473DD of the Act. The learned primary judge found as much (see para 12 of his Honour's reasons for judgment). 12 Upon the Authority concluding that it was not satisfied that exceptional circumstances existed in respect of the extracts and the death certificate, it necessarily followed that it could not consider that information on the true construction of s 473DD: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [29]; see also [88] per Gordon J. What follows from this is that there was no error on the part of the Authority in relation to the construction and application of s 473DD and consequentially, and however approached, that there is no merit in Ground 1(b) of the amended grounds. 13 As to Ground 1(a), it may be accepted that the giving of consideration to the letter and associated Certificate of Non-Safety required a meaningful engagement on the part of the Authority with those documents. But the Authority's reasons exhibit such a meaningful engagement which is not to be equated with an acceptance of a document. As it transpired, and in relation to the Certificate of Non-Safety, the Authority was not disposed to give that document any weight for reasons set out in para 15: The second ground of review is that the Member failed to consider the application under the complementary protection provisions when arriving at its decision that the Applicant did not have real fear in being arrested, detailed and tortured on return to his homeland. It would appear that the ground of review is directed to the actions and decisions of the delegate and not the IAA. In any event, the delegate clearly did consider the complementary protection criteria as referred to in paragraphs 107 to 122 inclusive of the delegate's reasons. That constitutes, in my view, consideration of the document and the information contained therein. The Authority was not obliged to consider the death certificate because the threshold required in s 473DD(a) was not met in respect of it. What follows is that there is no merit in Ground 1(a). 14 As to Ground 2 of the proposed amended grounds, it is true that, at para 18 of his reasons for judgment, his Honour makes reference not to the Authority's reasons but rather to those of the delegate. Of course it is the case that the judicially reviewable decision was that of the Authority, not the delegate. It may well be, as was raised in submissions on behalf of the Minister, that there is an answer for this particular reference by his Honour to be found in the way in which submissions came to be made before him. I do not though, have the benefit of a transcript or, for that matter, of the written submissions which were made in the court below. In any event, the subject of complementary protection is expressly addressed by the Authority at paras 33 to 38. On the findings of fact made by the Authority in relation to the prospective fate of the appellant if returned to Sri Lanka, there could not be anything which would amount to cruel or inhuman treatment or punishment in terms of s 5(1) of the Act. Neither could there be anything which would amount to "degrading treatment or punishment" as defined. 15 Thus, though there is an erroneous reference to the reasons of the delegate rather than to those of the Authority, the point ultimately leads nowhere because complementary protection as a subject was expressly addressed and addressed in a way which constituted proper consideration by the Authority member. Ground 2, therefore, has no merit. 16 As to Ground 3, it came to be accepted in the course of the appellant's solicitor's oral submissions, and rightly so, that neither s 424A nor for that matter s 424AA of the Act applied in relation to the proceedings before the Authority. Part 7AA of the Act contains a quite separate code in relation to the procedure of the Authority compared with that which governs a review by the Administrative Appeals Tribunal. In DKK16 v Minister for Immigration & Anor (2017) FCCA 3320, his Honour Judge Smith at para 20 opined that: There may be a real question as to the applicability of the principle explained in obiter in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at paragraph 25 to the conduct of a review under part 7AA. His Honour continued: For instance, there exists in pt.7AA, s.473DC which limits (unlike was the case in respect of what the decision-maker considered in SZIAI) the circumstances in which new information may be given or may be obtained and expressly states that the Authority "does not have a duty to get, request or accept, any new information" in any circumstances: see s.473DC(2). There remains a power in s.473DC(3) in spite of all that to obtain further information and it may be that the Authority in certain circumstances is required at least to consider whether to exercise that power. 17 I respectfully agree with his Honour that there is an interrogative note, having regard to the provisions of Pt 7AA, whether there can be in particular circumstances a duty on the part of the Authority to inquire of the kind described in relation to the Tribunal by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. It is not, though, necessary in the circumstances of the present case, to resolve that question in order to deal with Ground 3. That is because it is not at all apparent on the evidence before the Authority, which was not sought to be supplemented in the proceedings before the Federal Circuit Court, that there was an inquiry readily made which might address the standing and repute of the body in Sri Lanka which had apparently authored the Certificate of Non-Safety. 18 The reservations voiced by the Authority were grounded in an absence of material to show the standing and repute of the body which had authored the certificate and also in an absence of any reference to the inquiries which had underpinned the conclusive statements concerning the appellant made in the certificate. In the ordinary course of events, it is for an applicant for review to place such material including material going to the persuasive weight to be given to other material as able before a Tribunal or Authority conducting a review. It was, in my view, open to the Authority to give no weight to the certificate because of being left in a state of ignorance about the standing of the body which had given the certificate for the inquiries which underpinned the conclusions stated in it. There was no duty in the circumstances revealed before the Authority to make any inquiry, even assuming that there could, having regard to s 473DC, be such a duty. Quite some investigation, in my view, would have been needed to address these subjects. What follows then is that, insofar as Ground 3 seeks to take up and press a particular in Ground 1 of the notice of appeal as filed, it has no merit. 19 It necessarily follows from the foregoing that the appeal must be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.