DXW20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The appellant's submissions 8 The appellant did not have legal representation. He was assisted by a friend who prepared written submissions for him and made oral submissions on his behalf in support of the appeal. 9 The focus of the submissions for the appellant was the failure of the decision-makers (including the Federal Circuit Court) to recognise that: (1) the appellant's mother forced him to flee Sri Lanka when he was 16 because of the serious risk to his safety in Sri Lanka; (2) the appellant could never return to Sri Lanka due to this serious risk; (3) contrary to DXW20 at [29] the appellant had no ongoing relationship with his mother as she forced the appellant to flee against his will when he was 16, his return to Sri Lanka would place his mother and other relatives at risk, and he could not return to Sri Lanka and live with his mother. The IAA and Federal Circuit Court also had not verified that this was possible with the appellant's mother; (4) the appellant was a minor when he arrived in Australia and never had the benefit of legal representation, so reliance by the IAA on the material the appellant provided in his arrival interview was unlawful; (5) the material on which the IAA relied to conclude that the appellant's safety was not at risk if he returned to Sri Lanka was information from the Sri Lankan government and not reliable; (6) in any event, that material confirmed that on return the appellant may be arrested and charged as a person who left Sri Lanka illegally; (7) if he had to return to Sri Lanka the appellant would be a failed asylum seeker and subjected to increased risk of harm as a result; (8) perceived activists, dissenters and human rights defenders are at a relatively heightened risk of reprisal while Nandasena Gotabaya Rajapaksa is president; and (9) a civil war is again likely in Sri Lanka. 10 It was submitted for the appellant that the IAA's factual findings should be "completely overturned" because the Federal Circuit Court and the IAA failed to verify the information relied on to establish those findings, and had little or no regard to sources of information that were not sources from "the Sinhalese government in power". 11 The submissions for the appellant also noted that: (1) the appellant's personal information had been published as part of a wider data breach by the Minister's Department and it could not be guaranteed that Sri Lankan authorities would not identify the appellant as a person who had left Sri Lanka illegally and is a failed asylum seeker; and (2) the Secretary of the Department had provided the IAA with information about the appellant's conduct while detained, which was irrelevant and intended to put the appellant in a poor light.

Consideration 12 The one issue which may involve an arguable case on the part of the appellant is the conduct of the Secretary in providing the IAA with irrelevant information about the appellant while he was in detention. 13 The Federal Circuit Court considered this issue of its own initiative. The Federal Circuit Court said: 52 Although not specifically raised by the applicant, the Court is conscious of the information provided to the Authority by the Secretary as regards to the alleged behaviour by the applicant whilst in immigration detention, and is satisfied it was dealt with properly by the Authority. Firstly, the material was drawn to the attention of the applicant and he was invited to comment on it. The applicant was thus provided procedural fairness in relation to that material. The applicant expressly rejected the allegations, and claimed that he was acting in self-defence. The Authority twice concluded that the material had no impact on the consideration of the applicant's claims for a protection visa. 53 Nowhere in the reasons of the Authority, other than the initial reference to it, is it relied upon in any way in order to reach an adverse conclusion against the applicant. In these circumstances, the Court is satisfied that a fair minded, lay observer would not reasonably apprehend that the Authority would likely be biased: see BYX17 [BYX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 41]. The Court is satisfied that the material in and of itself was not so shocking or appalling such that a fair minded observer might think it had irreversibly tainted the Authority's consideration of the matter. 54 It is of considerable concern that the Secretary thought it proper to bring such material to the attention of the Authority. It could serve no purpose other than to paint the applicant in a poor light. It had no bearing on the applicant's claims for protection. It should not have occurred. It should not occur in the future in any other matter. 14 I agree. 15 I considered a similar issue in CNY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1568, a proceeding that followed the High Court's consideration of the issue in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17 HCA). 16 In CNY17 I said that: (1) it is apparent from CNY17 HCA at [20] and [135] that the question of apprehended bias is to be resolved by reference to all relevant circumstances as they exist at the time the question is answered: [28]; (2) given the highly prejudicial nature of the information in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; (2020) 274 FCR 456 the Full Court concluded at [42] that "a fair-minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority's approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information": [33]; (3) the hypothesised observer in the test for reasonable apprehension of bias is to be attributed with knowledge of the key aspects of the statutory scheme (including, by operation of s 473DB(1), that the IAA must conduct its review "by considering the review material" provided under s 473CB) and the key aspects of the circumstances within which the IAA decision was to be made: [39]; and (4) I do not accept the appellant's argument that the giving of notice by the IAA of receipt of the High Court judgment and provision to the appellant of an opportunity to comment are immaterial to the question whether there is a reasonable apprehension of bias. While the hearing and bias rules are different (as discussed in FSG17 at [41], citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [19]) and serve different aspects of requirements of justice, the giving of notice and an opportunity to comment to a person about information held by the decision-maker are not logically irrelevant to the application of the "double might" test for the apprehension of bias. So much is clear from the reference by Nettle and Gordon JJ in CNY17 HCA at [100] to the potential effect of "hidden" information on the mind of the fair-minded lay observer. 17 In the present case the irrelevant prejudicial material which the Secretary provided to the IAA was not of the highly prejudicial kind that the posited hypothetical observer in the test for reasonable apprehension of bias might consider might have a subconscious effect on the IAA. The material is about alleged bullying and physical assaults said to have been perpetrated by the appellant in 8 incidents while in immigration detention. Further, the IAA decision records that: I have had regard to the material given by the Secretary under s 473CB of the Migration Act 1958 (the Act). Included in the materials is Departmental material referring to the applicant's conduct in detention. Although I do not consider such material has any bearing on the issues for consideration in this review, the applicant was nevertheless advised of the existence of the material and was invited by the IAA to provide any information in response if he wished to do so. The applicant advised that he strongly refuted the material about his conduct in detention, that the numbers of the incidents were less than the Department alleged and he was acting in self-defence. This may be the case, and I have noted the response. Ultimately however, I cannot see how the material about his conduct in detention is relevant to the assessment of the applicant's evidence and claims for protection. 18 In these circumstances I am unable to conclude that the IAA's decision was affected by a reasonable apprehension of bias in that the hypothetical lay observer might consider that the IAA might not bring an impartial mind to bear on the decision by reason of the Secretary providing the irrelevant prejudicial material about the appellant to the IAA. 19 The other matters on which the appellant relied do not give rise to any arguable claim of jurisdictional error by the IAA. 20 The IAA was entitled to conclude as it did at [66] in these terms: I accept that the applicant's personal information was unintentionally published on the website of the Department of Immigration and Border Protection in February 2014. As set out in the letter from Department on 14 March 2014, the information that is was possible to access was the applicant's name, date of birth, nationality, gender and details about his detention. It did not include his contact details or information about his protection claims. There is no evidence that the Sri Lankan authorities accessed the information and I am not satisfied that they did so. In any event, even if the authorities had accessed this information, I am not satisfied that it disclosed much more than that some rudimentary personal details and that he was in immigration. I accept that it may be possible for the authorities to conclude that he had sought or was seeking asylum but for the reasons explained above, but I am not satisfied that gives rise to a real chance of any serious harm. I am not satisfied that the publication of his personal details will otherwise lead to a real chance of harm. 21 The Federal Circuit Court did not err at [29] in recording that the IAA "was satisfied that the [appellant] would return home to live with his mother". This was a factual finding reasonably open on the evidence. The IAA was not bound to conclude that the appellant could not live with his mother. 22 Nor was the IAA bound to check with the appellant's mother before reaching its conclusions. This was not an obvious inquiry about a critical fact capable of constituting jurisdictional error as described in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 [25]. As the IAA recorded: I note in the applicant's case that the applicant owns a business in Trincomalee which his mother is running in his absence. He has not claimed that he would not be able to find employment or accommodation on return. I note that the business includes the family residence, and that his family owns another property in Trincomalee. I am satisfied that the applicant's mother is living and working in Trincomalee. He is in very regular contact with his mother, and I am satisfied that he would very likely return to live Trincomalee and to work in the family business. 23 Equally, the IAA was not bound to verify other information including country information on which it relied. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] the Full Court said: The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 24 On the same basis, the IAA was not bound to "check on the welfare of all the other people from Sri Lanka" to determine whether "[it is] safe to return home to Sri Lanka". 25 The IAA was also entitled to conclude at [61] that a person who has left Sri Lanka illegally in the position of the appellant (who, on the IAA's findings, did not have a criminal record or a terrorist background and would not be a person of interest to police in Sri Lanka for any reason) was not at risk of serious harm by reason of exposure to processes and penalties for illegal departure. 26 The IAA's conclusion at [62] and [65], that being identified as a failed asylum seeker would not expose the appellant to a risk of serious harm, is also not affected by jurisdictional error. 27 The IAA considered the issues which the appellant raised and which were apparent on the available material including: (a) the change of government in November 2019, (b) country information disclosing that President Rajapaksa is a polarising figure with a strong Sinhalese support base, and to potential concerns under his regime, such as risks of reprisals to human rights defenders, activists, and dissenters, and (c) the lack of evidence that being a Tamil male from the Eastern Province would in itself give rise to an adverse political opinion or profile now or in the foreseeable future. The conclusions the IAA reached were all reasonably open to it. 28 The concerns the appellant raised about the threat of terrorism and civil war in Sri Lanka do not involve any threat of persecution of the appellant of the relevant kind as an individual or as a member of a group. 29 The fact that the appellant was a minor, and unrepresented by a lawyer, at his arrival interview does not mean that the arrival interview was unlawful. Nor does it mean that the IAA was precluded from considering the relevance of material from that interview to the appellant's claims. Nor was the appellant entitled to legal representation: Nguyen v Minister for Immigration and Multicultural Affairs [2000] FCA 1265 at [24].

Conclusion 30 The appellant has not established that the Federal Circuit Court erred in dismissing his judicial review application. Like the Federal Circuit Court I am unable to identify any jurisdictional error affecting the decision of the IAA affirming the decision not to grant the appellant a protection visa. 31 Accordingly, the appeal must be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.