EJJ18 v Minister for Home Affairs

1. The appeal is dismissed.
2. The appellant do pay the costs of the first respondent to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 The appellant's application for a safe haven enterprise visa was refused by a delegate of the Minister in April 2018. A safe haven enterprise visa is a temporary protection visa that is sought by those seeking refugee protection. The appellant claims that he should be granted a visa rather than being returned to Sri Lanka. 2 The refusal of the appellant's visa application was affirmed by the Immigration Assessment Authority on 31 July 2018. The appellant brought an application in the Federal Circuit Court for review on the basis of alleged jurisdictional error. Counsel appeared on his behalf and confined the application to two grounds. The application for review was unsuccessful, and the appellant now brings an appeal in this Court against that decision. The appellant appeared on his own behalf in the appeal. 3 At the outset of the appeal, the appellant made a request for pro bono legal assistance. I indicated that I would consider a referral if a matter was raised in the course of the hearing that indicated a proper basis for a referral for pro bono assistance. 4 The appellant raises five grounds. The first two grounds are, in effect, claims that the primary judge was in error in rejecting each of the two grounds raised in the Federal Circuit Court. The other three grounds seek to raise new matters that were not argued below. Leave is required before those matters could be raised. 5 The appellant raised two matters in the course of oral submissions. First he said that the situation in his country, Sri Lanka, is not good and he has a fear of returning because of the matters raised in his claims that were before the Authority. The assessment of those factual claims was a matter for the Authority and they are not matters that raise a claim of jurisdictional error. Second, he said that he was a Christian and that his family are not at his home in Sri Lanka because they are scared and there are a lot of problems in Sri Lanka. To some extent the claim about problems again raises a factual matter that was a matter for the Authority. However, I note that no claim was raised before the Authority based upon an alleged fear arising from the appellant being a Christian. Rather, the claims made were based on alleged or suspected association with the Liberation Tigers of Tamil Eelam. So the second matter also does not raise a ground of review for jurisdictional error. 6 I dealt with the principles to be applied where leave is sought to raise a new ground of review in an appeal in the context of applications of the present kind in CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]-[39]. Where there is no adequate explanation for the failure to take the point before the primary judge and it seems to be of doubtful merit, then leave should generally be refused. Otherwise, there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences that supports the grant of leave. Where a ground has merit then leave is more likely to be granted as being in the interests of justice where it raises a legal argument on the basis of the materials that were before the primary judge. 7 Applying those principles, for the following reasons I refuse leave to raise the proposed new grounds. As to all three new grounds there is no real explanation as to why they were not raised by counsel before the primary judge. 8 Proposed ground 3 seeks to rely upon a report as to the circumstances that prevail in Sri Lanka that was prepared by the UN Rapporteur, Ben Emmerson QC. The report was dated 23 July 2018 so it appears that it was available shortly before the Authority made its decision. The report post-dated the decision of the Minister's delegate. No submission was made before the Authority to the effect that it should be taken into account as new information. It was not relied upon before the primary judge and there is no explanation as to why that was the case. In any event, as the report was not part of the material advanced to the Authority there can be no jurisdictional error arising only from the failure to consider the report. The Authority conducts a review based on the materials that are transmitted to the Authority together with new information received in accordance with the express statutory provisions that exhaustively state the natural justice requirements: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [69]. No breach of those provisions is alleged by proposed ground 3. I note that the Authority did consider updated country information in the form of a DFAT Country Information Report for Sri Lanka dated 23 May 2018. 9 I have considered whether the complaint made is, in substance, a complaint that it was unreasonable for the authority to proceed without considering whether to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) to get new information that might have encompassed the report of the UN Rapporteur. Review on the basis of unreasonableness for a failure to consider the exercise of the power under s 473DC was upheld recently in DPI17 v Minister for Home Affairs [2019] FCAFC 43. However, the Authority did have regard to updated information in the form of the DFAT Country Information and there is no basis to conclude that the Authority was unreasonable in failing to consider whether to make additional inquiries. 10 In all those circumstances, it is not in the interests of justice to grant leave to raise proposed ground 3. 11 Proposed ground 4 alleges that the Authority erred in applying an unduly narrow understanding of 'exceptional circumstances' when applying s 473DD of the Migration Act. The section provides that the Authority must not consider new information unless, amongst other things, the Authority is satisfied that there are exceptional circumstances to justify considering the new information. The High Court considered the requirement in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16. To be exceptional, the circumstance must be one that is not regularly, or routinely, or normally encountered: at [30]. The ground provides no details as to any aspect of the decision by the Authority not to receive various documents that reflected any incorrect application or understanding of this aspect of s 473DD. The proposed ground is without merit and for that reason should be refused. 12 Proposed ground 5 alleges that the Authority failed to respond to the appellant's claim of fear of significant harm by reason of being imprisoned in remand detention if returned to Sri Lanka. The ground also alleges that there was a failure to consider, as part of the appellant's claim to complementary protection, the claim that the appellant would be exposed to torture whilst in remand detention if returned to Sri Lanka. These are allegations that claims were not considered. The Authority considered what was likely to happen if the appellant was returned. It found that he would be subject to a process of investigation and, based on the DFAT Information concluded that the process would take several hours and is conducted en masse so individuals cannot exist until all returnees have been processed. These findings amount to a rejection on the basis of within jurisdiction factual findings of any claim that the appellant would be subject to remand detention upon his return. The ground is therefore without merit and leave should be refused. 13 I will now consider the two grounds of review that were rejected by the primary judge and which the appellant says should have been upheld by the primary judge. 14 Ground 1 has two aspects. The first was a claim that the Authority failed to consider the position of the appellant well into the future as was required when evaluating the claim according to the relevant criteria, which involved the application of a 'real chance' test. It may be accepted that the real chance test is forward looking: SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572. It requires a consideration of the reasonably foreseeable future: CDW18 v Minister for Home Affairs [2019] FCA 270 at [14]. 15 However, the primary judge was correct to reject this claim. The Authority made an express finding to the effect that it was not satisfied that now or in the foreseeable future the appellant would be imputed with a Tamil pro-separatist profile (para 41). This was the main basis on which the appellant sought protection. The Authority found that there had been a significant change in the situation for Tamils in Sri Lanka since the appellant's departure from Sri Lanka (para 43). It found that the Country Information indicated that there had been a significant shift in the landscape in the recent years since the appellant was last questioned and mistreated in Sri Lanka in 2011 (para 46). As I have noted, the Authority dealt with what was likely to occur if the appellant was returned to Sri Lanka. There was some focus before the primary judge on a particular sentence where the Authority said (para 46) that: For the reasons given above, I am not satisfied the applicant's ethnicity, his origins in the North, his personal and familial LTTE links, and his public activities in Australia will now give rise to a real chance of harm. 16 The primary judge was correct in finding that the use of the word 'now' in that context was contrasting the position that had pertained when the appellant was last in Sri Lanka and that which applies now (in the sense of presently and for the foreseeable future). 17 The second aspect of ground 1 was a claim that the Authority failed to consider a particular claim about the fluidity of the political and human rights situation in Sri Lanka. The submission made for the appellant to the Authority was, in substance, that the relevant situation in Sri Lanka was 'fluid' and therefore it is important to consider the situation for the applicant into the reasonably foreseeable future. Whilst the Authority did not use the term 'fluid' it did, for reasons I have given, adopt the requisite forward looking perspective. It considered the way matters had changed over time. It has not been demonstrated that there was error by the primary judge in rejecting this second aspect. 18 Ground 2 was a claim that the Authority failed to consider what may be the position if it was wrong as to the factual findings it had made concerning the appellant. The obligation arises because the criteria to be met for the visa sought by the appellant concerns whether there is a real risk that he will suffer significant harm if removed from Australia and returned to Sri Lanka. The nature of the criteria means that the Authority is bound to consider whether there was real doubt as to the matters the subject of its findings where they are the basis for its conclusions as to whether there is a real risk of significant harm. A low risk of harm may still be a real risk of harm. Therefore, a finding as to risk of harm that is not made with some certainty may not be a sufficient basis upon which to reach a conclusion that there was no real risk. If there are any real doubts, then they must be brought to account in evaluating whether there is a real risk: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [36]; BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; (2018) 263 FCR 292 at [39]. However, where the decision is reached with apparent confidence, then the Authority is not bound to consider whether its findings might be wrong: Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576. 19 The ground relies upon two respects in which the language used by the Authority was said to indicate that it entertained the possibility that it could be wrong and therefore there was still a risk of harm. At one point, the Authority stated that it had 'concerns' about some aspects of the appellant's claims (para 20). At another it stated that it was 'unconvinced' that the appellant's claims were genuine (para 23). As to the second finding, it is not expressed in language that was uncertain or conditional. As to the first finding, the concerns to which the Authority referred were concerns that the severity of mistreatment had been exaggerated and aspects had been wholly fabricated. However, the Authority then went on to make clear findings as to the aspects that were not accepted, including, for example, express and unqualified findings that claims had been exaggerated and significantly overstated (para 22) and that the Authority was unconvinced that certain claims were genuine (para 23). It is those and other findings that provide the foundation for the conclusions as to the risk of harm and the rejection of any profile that would expose the appellant to being imputed with a Tamil pro-separatist profile. Those findings are not expressed in terms that indicate that there were real doubts entertained by the Authority in determining the factual matters that were advanced to support the claims to protection. It is therefore the rejection of those claims and the consequent conclusion that there was no profile that would expose the appellant to being imputed with a Tamil pro-separatist sympathy that provided the foundation for the conclusions by the Authority. Therefore the primary judge was correct to reject this second ground. 20 It follows that there is no basis for a pro bono referral and the appeal must be dismissed. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin.