DUV17 v Minister for Immigration and Border Protection

Ground 1 11 Ground 1 contended that the Authority's failure to exercise, or to consider the exercise of, its statutory discretion under ss 473DC(1) and/or (3) of the Migration Act 1958 (Cth) (Act) was legally unreasonable or, alternatively, constituted denial of procedural fairness. This ground of review focused on the fact that the Authority (in contradistinction to the delegate) was not convinced of the authenticity of the HRC letter. 12 As Mr Knowles submitted, in written submissions filed on 3 September 2018: In relation to procedural fairness, s 473DA(1) of the Act provides that Division 3 of Part 7AA "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the … Authority". This provision operates to exclude the requirements of the common law "hearing rule". Before passing from this point, it is worth noting that even if this was not the case, this is not an example of a new issue arising, considered dispositive by the Authority, which had not been the subject of previous consideration by the delegate. As noted above, the delegate made adverse credibility findings and rejected the factual premises upon which the appellant's claim were based. 13 In the course of the interview of the delegate (set out at some length at [9]-[17] of the primary judge's reasons), an exchange took place concerning the HRC letter which, as the primary judge correctly observed, indicated that the issue of the HRC letter was something that had arisen. Although this did not occasion a finding by the delegate as to a lack of authenticity of the HRC letter, the underlying claim which the HRC letter purported to confirm was the subject of consideration and rejection. 14 The way in which the Authority dealt with the letter is of some importance. I have already set out above at [4] what the Authority found at paragraph [14] of its reasons but it is important to see that finding in the context of the three preceding paragraphs of the Authority's reasons. They are as follows: I have had regard to the variation in the accounts of discovery of the weapons. I note there is some inconsistency in the applicant's account about opening the barrel and who dug up the weapons and whether he saw just rifles or also grenades and bombs. However I note that his basic claim of finding weapons has been consistent across his Arrival interview conducted in January 2013 and his SHEV application and interview and, despite these inconsistencies in the details, I am willing to give the applicant the benefit of the doubt and accept that the applicant located weapons near his home and that he alerted the army to this discovery. I do not accept as plausible that in 2012 his involvement in the discovery of the weapons came to the attention of the CID and led to the adverse attention from the army as claimed. I note his comment that jealous villagers may have informed on him to the authorities, and country information advises that the authorities regularly used informers to identify people involved in activities of interest. However, for the following reasons I do not consider the applicant's account of the interest in him in 2012 from the authorities is plausible: • In his oral submission at the SHEV interview the representative asserted that the close proximity of the applicant's property to the location of the weapons would give rise to the authorities' suspicions of the applicant. Yet the weapons were found on land adjacent to his property and were not found on his land, and there is no indication that the authorities have shown any interest in the owner of the property where the weapons were actually found. • I do not accept as plausible that the authorities would later suspect the applicant of hiding weapons for the LTTE when the applicant volunteered the information regarding the location of the found weapons in 2009. I note his comments that the authorities in Sri Lanka are not like those in Australia, and the country information supports that they acted with impunity in abusing civilians during and after the war, but I consider it to be implausible that they would suspect the applicant of being an LTTE supporter when the applicant came forward with the information about hidden weapons voluntarily and immediately. • I accept that the authorities obtain information from informers, but I am not persuaded the authorities would believe a person who was hiding weapons for the LTTE would have revealed hidden weapons to the authorities in 2009, even if an informer had told the authorities he was hiding weapons. • I also take into account that no suspicion fell on the applicant in 2009 after he revealed the discovery and he was able to continue living and working openly in Jaffna. I do not accept that the applicant came to the adverse attention of the authorities in 2012 because he was imputed with an LTTE profile and suspected of hiding LTTE weapons or that he was required to report to the army in June 2012. (Footnotes omitted) 15 As can be seen from the above extract, the Authority, unlike the delegate, was prepared to give the appellant the benefit of the doubt and to accept that the appellant located weapons near his home and that he alerted the SLA to the discovery. But notwithstanding this conclusion, the Authority found that the appellant had not come to the adverse attention of the authorities in 2012 because he was imputed with an LTTE profile and suspected of hiding weapons, or that he was required to report to the army. In this sense the finding concerning the HRC letter was, as the Minister submitted, confirmatory of the Authority's view that the appellant's claims to have been targeted were implausible. 16 As noted above at [11], the submission is also made by the appellant that the Authority's failure to exercise its statutory discretion evinced legal unreasonableness in that it did not seek information or invite any person (including the appellant) to give new information in relation to the finding that the HRC letter was not genuine. At this point it is worth setting out the terms of the HRC letter as they appear at page 58 of the appeal book: 07.05.2013 [The appellant] underwent life threats during his living here. He had informed CID when he found a hatch of weapons being hidden in his garden. CID came there and took the weapons immediately. The CID came there again, and questioned him; some more weapons have been hidden here. Where they? So asked him and launched life threat to him. He was thoroughly frightened and was in a state of frustration because of the life threat. Following this incident, [the appellant] in trepidation, left out of this country, on 24.08.2012, to save his soul. Subsequently, in the evil hours, CID visiting his house more frequently, questioning for him from his wife in of inquiry and the veil under threat. It recurring at intervals. So, she is in fear. His wife … had made a complaint to us on 03.05.2013 to this effect. I certify that the facts above are true and a complaint had been made to us. [signature] Regional Coordinator, HRCSL, Jaffna. (Header omitted) 17 As I indicated to Mr Knowles, it is not entirely clear to me, from my review of the letter, whether the certification of the above facts as being true and that a complaint had been made to the HRC, is a certification as to the underlying truth of the complaint or that the fact that a complaint had been made in the terms identified. Needless to say, if it was the former the somewhat singular use of expression in the complaint may have been regarded as a strong pointer to its lack of authenticity. It is clear that this is the way the Authority proceeded, as can be seen from paragraph [14] of the Authority's reasons extracted above at [4]. Having said this, for reasons I have explained, the implausibility of the appellant's claims, as perceived by the Authority, was not conditional upon the finding that the HRC letter was bogus. 18 The unreasonable exercise or non-exercise of power in s 473DC(3) has been the subject of a number of recent decisions of the Full Court see: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526. 19 As the Minister submits: In DGZ16, the Full Court considered a factual scenario broadly analogous to the instant case. In that case, the delegate of the Minister made findings of fact that wholly undermined the referred applicant's claims. The Authority made different factual findings, including accepting a key factual matter rejected by the delegate. The Full Court held that it was open to the Authority to evaluate for itself the material considered by the delegate and arrive at different factual findings without giving notice to the referred applicant: at [71]-[72]. Their Honours rejected the proposition that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the referred applicant once it formed specific reservation about the referred applicant's claims: [74]-[76], [78]. 20 It is said that in this case, unlike in CRY16 and DZU16, there were no new factual issues that arose for the first time during the course of the Authority's review. This is not a case where the Authority did not have before it all the information relevant to its review. Here it is submitted that the Authority had before it sufficient material, in the form of the appellant's own claims and evidence, to assess the appellant's claims. It is further submitted that there was documentary evidence in support of these claims and no new information was required in order for the Authority to conduct its review. 21 This must be seen in the context in which the Authority is not under a statutory duty to get, request or accept any new information (see s 473DC(2) of the Act). Even if one was able to identify how the Authority could have made further inquiries as to the genuineness of the HRC letter, given the way the Authority dealt with the appellant's claims, it does not seem to me that the Authority engaged in an unreasonable failure to exercise power. It follows that Ground 1 is not established.

Ground 2 22 In Ground 2 the appellant asserted that the Authority fell into error in its consideration of his claims for complementary protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (Torture Convention) and the International Covenant on Civil and Political Rights (ICCPR) by failing to assess the appellant's claim outside his claim to protection form a risk of harm due to imputed links with the LTTE. The primary judge held that: the Authority was entitled to take into account country information; the adverse findings made by it did not lack any evidential and intelligible justification; and, the reasons given by the Authority justified the Authority's adverse findings. 23 Importantly, however, the primary judge also held the appellant had not made any claims other than those arising from his claimed imputed association with the LTTE and the Authority had no obligation to consider claims which were not made (see [42]). Mr Knowles in the course of his comprehensive and helpful oral submissions accepted, with commendable frankness, that as indicated above the appellant's claims went beyond the claim relating to imputed links with the LTTE. His Honour's finding that no claim other than the imputed links claim was advanced is, with respect to his Honour, erroneous. Despite this Ground 2 does not have substance. At paragraphs 35 to 38 the Authority found: I have found that there is not a real chance that the applicant faces harm on the basis of being a Tamil from Jaffna, as a member of the particular social group failed asylum seekers, and for reason of his LTTE training in 1998 or 2000, or because he found weapons in 2009, or because he cannot speak Sinhala. Noting that the Full Federal Court has held that the "real risk" test for complementary protection is the same standard as the "real chance" test, and based on the same information, and for the reasons set out above, I am also satisfied that there is not a real risk that he would face significant harm for these reasons. I accept that the applicant will be identified on return as a person who departed illegally and an asylum seeker and that there is a real risk that the applicant will be investigated and detained for several hours at the airport, and possibly detained on remand for some days pending bail, and then fined. I am not satisfied that this treatment, either during the investigation process or while being held at the airport, amounts to significant harm. As noted above returnees may, in some circumstances, be held for a short time in prison while waiting to appear before a magistrate. However, even if the applicant is required to spend a period of time in prison while waiting to appear before a magistrate, I am not satisfied that he will face significant harm as defined. I accept that the applicant may be subjected to poor prison conditions during any possible brief period of detention but country information confirms that this is due to overcrowding, poor sanitation and lack of resources. I have also accepted that the applicant will be questioned, charged, briefly detained and fined under the I&E Act with the offence of leaving Sri Lanka illegally and fined as a result but that he is unlikely to face a custodial sentence. This does not amount to the death penalty, arbitrary deprivation of life or torture and the evidence does not indicate there is an intention to inflict pain or suffering or severe pain or suffering or cause extreme humiliation. I am not satisfied that questioning, or the imposition of a fine, or the poor prison conditions to which the applicant may be subject constitute significant harm as defined under ss.36(2A) and 5 of the Act. Accordingly, I am not satisfied the applicant will face a real risk of significant harm during any possible brief period in detention. I accept there are reports of mistreatment of asylum seekers who have been returned to Sri Lanka, however DFAT reports that the risk of torture or mistreatment for the majority of returnees is low including for those suspected of an offence under the I&E Act. I have found above the applicant is not a person of interest to the Sri Lankan authorities. I am therefore not satisfied that there is a real risk that the applicant would be subjected to mistreatment during any possible brief period in detention on return to Sri Lanka. (Footnotes omitted) 24 It cannot be sustained, in light of these findings, that the Authority only considered the risk of harm due to imputed links with the LTTE. The question then becomes, in light of this error, what is the approach that this court, exercising its appellate jurisdiction, should take. On the one hand this appeal, like all other litigation in this court, is subject to the provisions of Part VB of the Federal Court of Australia Act 1976 (Cth). As is well known, this Part provides that the overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 25 Balanced against this are the observations to which the Full Court recently made reference in CIT17 v Minister for Immigration and Border Protection [2018] FCAFC 150 at [61], when the Court quoted the observations of Perram J in AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 at [26]: The Federal Court of Australia Act 1976 (Cth) confers appellate, not original, jurisdiction on the Court in cases such as the present: s 24(1)(d). The exercise of appellate jurisdiction is concerned with the correction of error: Branir Pty Ltd v Owston Nominees (No.2) Pty Ltd [2001] FCA 1833; 177 FCR 424 at [20]­[25]. It would erode the appellate nature of this Court's jurisdiction if it were routinely to carry out the Federal Circuit Court's work for it: SZKLO v Minister for Immigration and Border Protection [2008] FCA 735 … at [41] per Flick J. 26 Unlike CIT17, this is not a case where there were detailed written and oral submissions made on behalf of both the appellant and the Minister in relation to this ground. It seems to me that, having regard to the decision of the Authority, the suggestion that the Authority failed to consider claims apart from the claim arising from the appellant's imputed connection to the LTTE is without substance and fails on the facts. There is no merit in deferring the determination of this ground and remitting the matter to the Federal Circuit Court. To adopt that course would, in my view, be inimical to acting in a way which best promotes the overarching purpose of this court. In addition, to act in this way would amount to straying from the appellate nature of this court's jurisdiction. 27 Before passing from Ground 2, the particulars also suggest that the Authority's findings were not supported by the available country information. This contention is also without merit. Leaving aside the fact that such a contention seeks a form of merits review, the findings made by the Authority were supported by the country information cited by the Authority, and the choice of country information and the weight to be attributed to it were all matters for the Authority: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]-[13]; BPC16 v Minister for Immigration and Border Protection [2018] FCA 920 at [60]-[63]. 28 It follows from the above that, although the primary judge did not deal with Ground 2 in a way that was free from error, I do not propose to grant the relief sought in the notice of appeal.

Ground 3 29 Ground 3 was connected to Ground 2. Ground 3 contended that the Authority constructively failed to exercise its jurisdiction to consider the appellant's claim for complementary protection under the Torture Convention or the ICCPR or, alternatively, by misconstruing or misapplying the test for such a claim. As particularised, this ground seemed to have, at its heart, the notion that although the Authority considered the appellant's claims to fear significant harm, it did not consider whether there was any other basis to conclude that the appellant satisfied the requirements of s 36(2)(aa) of the Act. This is best seen by particular 3, which asserted: The Authority dismissed the applicant's claim for complementary protection on exactly the same grounds (Authority's Decision, [35]). 30 In particular 2, the appellant characterised the Authority as dismissing the appellant's refugee claim on the basis that: a. the applicant was not likely to suffer harm on the basis that he was an imputed LTTE supporter (Authority's Decision, [11]-[19]); b. the applicant was not likely to suffer harm on the basis that he only spoke Tamil (Authority's Decision, [20]); c. the applicant was not likely to suffer harm on the basis that he departed Sri Lanka illegally and sought asylum (Authority's Decision, [21]-[30]; and d. the applicant was not likely to suffer harm on any of these bases whether individually or cumulatively (Authority's Decision, [31]). 31 It was then contended that the appellant's claim for complementary protection was dismissed on exactly the same grounds, but that the Authority failed to assess whether the appellant faced a risk of harm for any other reason. The difficulty is that, as the Minister submits, the Authority was only required to consider claims expressly made or claims which squarely arose on the known material: see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]. Additionally, there was no error in the Authority relying on its earlier findings in relation to the appellant's refugee claims when making its findings in relation to the claim for complementary protection: see SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [32]-[35]. 32 It is fair to say that the primary judge's reasons for dismissing Ground 3 are compact. The primary judge concludes at [43] that: … No such claim was advanced before the Authority 33 There is nothing in the material that I have seen which suggests that this conclusion was erroneous, nor that there was substance to the proposition that the Authority misconstrued or misapplied the test in relation to complementary protection (as found by the primary judge at [44] of his Honour's reasons). It follows that I do not consider that the primary judge fell into error in finding that no jurisdictional error, as alleged in Ground 3, was established. 34 Having rejected Grounds 1 and 3, and having formed the view that there is no substance in the contention that jurisdictional error is identified in the Authority's decision for the reasons articulated in Ground 2 (notwithstanding the error in the way in which Ground 2 was dealt with by the primary judge), the appeal should be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee .