ENP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The visa Application and the Review Decision 6 In its written Review Decision, the Authority summarised as follows the claims that the appellant advanced in support of his Visa Application: 8. The [appellant]'s claims can be summarised as follows: • He is a Tamil born in Murrekettancheani, Batticaloa, Batticaloa District in the Eastern Province of Sri Lanka. • His brother, S was a member of the LTTE for about 6 years. • After the Karuna group split from the LTTE, the Karuna group started to look for people who had been members of the LTTE. S was threatened and his whereabouts sought. The [appellant] feared S would be killed so he paid for him to go overseas in 2009. • After S had departed a group of men came to his family home in balaclavas and threatened his family. They were told if they did not bring S to them the [appellant] would be shot. He was separated from the rest of his family and blindfolded. He was physically assaulted and threatened with a gun. They broke things inside his home, and stole money, his mobile phone and National Identity Card (NIC). His wife and children started shouting and the men left. He believes they were from the Karuna group. • The incident was reported to the police. Karuna group and CID would then go to his family home and roam around and monitor his movements. The Karuna and Pilliyan groups and CID started to threaten him by phone. He and his family moved between places. He decided to leave and come to Australia to ensure his safety. • Since he left Sri Lanka his family has been threatened. CID has contacted his wife by phone on many occasions and told her if he returns he will be arrested. His wife has also been visited confirm that he has left the country. On one occasion when his son was on the way to school the Karuna group tried to grab his son. • He has also attended cultural Tamil events [and/or] Martyr Day ceremonies in Australia. He identifies as a Tamil patriot and supports the LTTE and TNA ideology. 9. It has been contended that the [appellant] will be harmed including being detained, interrogated, tortured or killed on return because of his ethnicity, actual and/or imputed political opinion arising from his profile as a young Tamil male who only speaks Tamil and resided in a majority Tamil area in Eastern Province, his and his father's material assistance and/or support to LTTE, connection and/or familial relationship and assistance to his brother, S who was a former member of the LTTE, activities in Australia, illegal departure and return as a failed asylum seeker. 7 As is recorded above, the Minister's delegate decided on 17 September 2019 that the appellant did not satisfy the criteria upon which the success of his Visa Application rested. That application was then automatically referred to the Authority for review under s 473CA of the Act. 8 On 3 October 2019, the appellant provided additional information to the Authority in support of his Visa Application. That information partly consisted of additional country information, which the Authority described as, "…an extract from Aljazeera [sic] in support of the contention that 'elections are soon to be held in Sri Lanka, and the former Defence Chief Mr Gothabaya Rajapaksa who is feared by the minority Tamils and victims of human rights abuses is likely to come to power'". The Authority declined to take account of that information (hereafter, the "Al Jazeera Report") for the purposes of the IAA Review and recorded its reasons for doing so in its decision: [The information] post-dates the delegate's decision. It is general country information. It merely documents the potential forerunners in the upcoming elections, some of whom are contended as being "feared by minorities and victims of human rights abuses" and I consider it to be mere speculation that these individuals are likely to come to power. Having regard to all the circumstances, I am not satisfied there are exceptional circumstances to justify the consideration of this new information. 9 The Al Jazeera Report mirrored, in any event, written submissions dated 1 August 2019, which the appellant advanced (with the assistance of his migration agent) before the Minister's delegate. Amongst other things, the appellant contended in that document that (references omitted): 7.23 Recent political events suggest the re-emergence of anti-Tamil elements at the highest echelons of power in Sri Lanka: (a) the Sirisena government's attempts to appoint former President Mahinda Rajapaksa (renowned for anti-Tamil sentiments). These attempts included the making by Sirisena of a presidential decree temporarily dissolving the legislature and called for quick elections. Ultimately this was voted down by the Sri Lankan parliament. Rajapaksa eventually resigned, and Wickremesinghe was once again sworn in as Prime Minister. For seven weeks, the legitimacy and legality of a number of authorities were in question. People were killed and injured. Regardless, it is indicative of a greater tolerance for anti-Tamil elements by the Sirisena government, and a departure from the position Sirisena originally held when elected; (b) the potential return of Rajapaksa's brother, Gotabaya, on the political scene. Gotabaya served as Defence Secretary in Rajapaksa's administration during the final stages of the war between the Sri Lankan state and the LTTE, overseeing "the massacre of tens of thousands of Tamils in 2009". Gotabaya has confirmed he plans to run for the presidency in the wake of the Easter Sunday. There had earlier been moves to return Gotabaya to his position as Defence Secretary. (c) Mario Arulthas (Director of Advocacy at PEARL) has observed the reemergence of war criminal Karuna, who has a history of committing atrocities. 7.24 Credible news sources have warned of an impending violent political crisis in Sri Lanka, and the BBC reports that there are credible fears that a bloodbath will ensue. A July 2017 ITJP report states that a high level of paranoia remains that there will be a re-emergence of the LTTE in Sri Lanka. 7.25 These events have elevated the fears of the Tamil population. We submit that there is a real chance that, in this uncertain environment, the Sri Lankan government will return to "past abusive practices in the country". 10 In affirming the Delegate's Decision, the IAA was moved to make some observations about the narrative that the appellant had sought to prosecute in support of his Visa Application, which it is convenient to set out in full: 19. The [appellant's] claims regarding his and his family's support and/or involvement with the LTTE have evolved over time. 20. Approximately three weeks after his arrival in Australia, the [appellant] participated in an enhanced screening interview. There is a written record of this interview before me. The [appellant] was asked his reasons for coming to Australia. He gave a detailed description of an event which had occurred in January 2012 in which four armed men went to his home, blindfolded, threatened and physically assaulted him and took money and his phone. He also made reference to a further event in March 2012. He was asked whether he had any other reasons for coming to Australia. He reiterated that it was for the reasons had had already outlined. He was also specifically asked whether the events in 2012 were related to his business and because he had money. He stated it was. He had a job and money and this was the reason he was robbed. He did not know who the people were. He was also specifically asked if he or any members of his family had been politically active. He stated his younger brother had assisted with political activities for a Tamil party (A Rasu Koottani) during the elections. 21. Approximately eleven days after the enhanced screening interview, the [appellant] participated in an entry interview. There is a recording of this interview before me. The [appellant] was asked why he had left Sri Lanka. Consistent with his enhanced screening interview, he broadly referenced events in which his door was smashed and he had been physically assaulted and his life threatened. He was asked who had threatened him. He stated that unknown people had threatened him. He was also specifically asked if he or any members of his family had been associated or involved with any political groups or organisation or any activities or protests against the government. He made mention of one of his brother's helping a Tamil party at the time of the elections. 22. In the IAA statement, the [appellant] has contended that he had raised his core claim that his brother had joined the LTTE at an early age "earlier on in the application process and believe even at the entry interview". I have read the enhanced screening transcript and listened to entry interview recording. It was not. I have no reason to believe that the interviewers have not faithfully recorded what the [appellant] stated at the enhanced screening interview and I am satisfied that the [appellant] had a number of opportunities to provide at least basic details of the claims regarding his and his family's support to the LTTE and his brother's membership of the LTTE and these claims had any credible basis he would have provided them when he had an opportunity to do so. He did not. 23. There were material differences in the [appellant]'s description of his past experiences between his protection visa statement and interview, such as: • His description of how his brother had come to join the LTTE. In the statement he stated that the LTTE had come to his family and demanded a male member to join. At the interview he indicates that there had been a public announcement in the area that a person from each family must join. His brother went willingly. • His description of when his brother had joined the LTTE. In the statement, he stated that his brother, S had joined the LTTE when he was in "high school". In an email from his former representative sent to the Department a day before the protection visa interview, it stated that the [appellant] instructs that his brother joined the LTTE "when he was a medical student at university" not in high school. At the interview the [appellant] was asked whether his brother had joined the LTTE when he was in university. He responded yes. In the IAA statement, he has contended that he had told the delegate that his brother joined while studying at school. I have listened to the protection visa interview. I disagree; rather he confirmed that his brother had been at university. • The year his brother, S departed Sri Lanka. In the statement, he stated that his brother, S departed Sri Lanka in 2009. At the interview, the [appellant] stated S had left at the end of 2010. In the IAA statement, the [appellant] contends that it is his belief that S left in 2010. He contends that this inconsistency is minor. I disagree. Given the significant of this event to the [appellant]'s claims, I find it difficult to accept that he would not be clearer about when his brother had departed. • The year and description of the event in which men wearing balaclavas came to his home, blindfolded and physically assaulted him and stole money and property. In the statement, he stated this event occurred approximately one month after his brother, S departed Sri Lanka in 2009. The day after, his wife reported this event to the police. Approximately one week later he and his family then left the family home. He then received threats by phone throughout 2010, 2011 and 2012. At the interview, he stated after his brother, S departed there were "many many small incidents" but they did not take them too seriously. The main incident happened in 2012 because somehow the people who had created trouble had got confirmation he was the one who had sent S overseas. It was put to him that in his statement he had indicated that this event had occurred one month after his brother had departed. He responded that one month after his brother had departed they had assaulted him but they had tried to kill him in 2012. He was asked what happened one month after his brother had left. He stated that they came, blindfolded and slapped him. His wife shouted and they let him go. In the post-interview submission, it was clarified that the events referred to in his statement as occurring one month after his brother had departed had in fact occurred in 2012. It was contended this is consistent with the police report and his description of these events in his enhanced screening interview. I have considered this clarification however it does not remove the serious concerns that apart from the timing of this event, his description and what happened after it has varied. For example, at the interview he stated that did not move from the family home until 2012, this is inherently contradictory with his statement in which he states he left the family home in 2009. At the interview he also added that his dog was shot during this event. It was put to him that this had not been included in his statement. He responded that didn't think it was important, it wasn't a family member. I am of the view that the discharge of a firearm which resulted in the death of even an animal is a significant event and the delay in the provision of this information until the interview raises further doubts about the credibility of these aspects of the [appellant]'s claims. • The whereabouts of his original NIC. In the statement, he stated that his NIC was taken in the event in 2009, which he corrected as having occurred in 2012 at the interview and in the post-interview submission; at the interview he further added that he had made a complaint to the police that he had lost his NIC. He made no mention at his enhanced screening or entry interview of his NIC been stolen. Rather, at the entry interview he indicated he had "everything", all identity documents and they were in Sri Lanka. At the interview, he also stated he never applied for a new NIC because at that time there were not many restrictions and he did not need it as proof of identity, however I find this difficult to accept when considered against the country information before me that NICs are used as an the primary identification card. 24. The [appellant]'s evidence that he and his family left his family home is problematic. The [appellant] indicated at the interview that after the event in 2012, he and his family left the family home and went into hiding. The "Revision of Electoral Registers" document indicates that at least six months after the [appellant] claimed to have gone into hiding, he and his wife registered their address details with the government, and I find it difficult to accept that if he was in hiding as claimed, including from groups who are associated with the government, they would undertake such actions. I also note that in the "Character Reference", which is dated a month after his arrival in Australia (22 December 2012), his address is the same as that listed in the police report (21 January 2012), that being the family home in Murrekettanchenai/Murrakkoddaanchenai, and indicates that he was residing in the family home up until the time of departure and not in hiding as claimed. 11 Ultimately, the Authority formed the view that the appellant was "[not] a truthful witness regarding his past experiences in Sri Lanka." It recorded the following observations on that theme: …I do not accept the [appellant]'s version of events which he claimed led to him leaving Sri Lanka. I am not satisfied that the [appellant]'s brother, S was a member of the LTTE. I am not satisfied that the [appellant] or any of his family members were associated with and/or supporters and/or provided material assistance to the LTTE. Nor am I satisfied that the subsequent claims arising from his brother's membership of the LTTE are true; that being that S had received threats and his whereabouts sought by any individuals or groups, they feared S would be killed and he paid for his departure and that he and his family were monitored, threatened, physically assaulted or robbed and had to leave the family home and go into hiding. I am not satisfied that he or any of his family members including his extended family were targeted and/or threatened and harmed for the reasons claimed. 12 Later, it observed that there was, before the Authority, "…no credible evidence…to suggest that the Sri Lankan authorities or any groups or individuals would be more recently interested in seeking the [appellant]'s whereabouts…" and that it was "…not satisfied that [the appellant's] version of events since he departed Sri Lanka involving his wife, children and extended family are true". Although it doesn't much matter, the Authority appears to have been assisted in drawing those conclusions by evidence concerning the appellant's financial situation in Sri Lanka. It concluded that the claims that the appellant advanced about his or his family's support for or involvement in Sri Lankan political movements were "…contrived to enhance his claims for protection." 13 In relation to the potential rise in Sri Lanka of anti-Tamil forces, the Authority observed: 45. I have had regard to the post interview submissions indicating that recent political events suggest the re-emergence of anti-Tamil elements in the highest echelons of power in Sri Lanka, such as attempts to reappoint former President Mahinda Rajapaksa, the potential return of Rajapaksa's brother on the political scene, and re-emergence of war criminal Karuna. I accept that Sri Lanka is still yet to fully come to terms with its legacy of large-scale past abuses committed in the war and its aftermath, and is yet to truly achieve reconciliation; and while I have considered the sources and the associated contentions raised by the former representative and the analysis by commentators and organisations in the sources in the review materials, I consider it too speculative to conclude that reasons referred to by [the appellant] or the former representative will lead to a risk of harm to the [appellant] on his return. Rather, I am satisfied that the advice and commentary from DFAT and UK Home Office remains relevant and that the Sirisena government maintains effective control. 14 On the strength of those (and other) observations, the Authority concluded that the appellant did not satisfy either of the protection criteria stipulated by s 36(2)(a) or (aa) of the Act and, for that reason, affirmed the Delegate's Decision.

The FCCA Judgment and the appeal 15 As is recorded above, the Minister did not oppose the court's granting the appellant an extension of time within which to commence his appeal. At the hearing of the application, I indicated that, in light of that concession and the submissions that the appellant advanced on that front, I was satisfied that it was appropriate to grant an extension to permit the appeal to proceed. 16 The resultant appeal proceeds upon two grounds, which it is convenient to replicate in full (errors original): Grounds of appeal 1. The Primary Judge erred in failing to find that the Authority's exercise of discretion under 473DD was legally unreasonable as: a) it was manifestly unjust for the Authority to exclude from its consideration of the [appellant]'s case the reporting of the fact that there had been a date set for the Presidential election in Sri Lanka in November 2019 as this date was set after the delegate made the decision and the Authority had no other source from which to deduce this information; and b) Given the changing political landscape and the implications of that for the [appellant] it was unreasonable for the Authority to find that exceptional circumstances did not exist to allow consideration of reporting from independent media commentators as to who might win this election. 2. The Primary Judge erred in failing to find that the Authority did not complete the exercise of its [s]tatutory task in assessing the harm to the [appellant] as it did not undertake reasonable speculation as to who might win the presidential election in Sri Lanka. 17 The questions inherent in both of those appeal grounds - specifically, as to whether or not the Review Decision was tainted by jurisdictional error as they allege - were the subject of the FCCA's consideration in the Judicial Review Application. The FCCA rejected both contentions. It is not necessary to recite its reasons for doing so. If, in truth, the Review Decision was tainted by either of the errors that the appellant's two grounds allege, then it will follow that the FCCA was wrong to conclude otherwise and the appeal should succeed. If it wasn't, then the FCCA's conclusions were correct and the appeal should fail. Either way, it is upon the Review Decision that this court's attention should focus. 18 At the hearing of the appeal, the appellant appeared without the assistance of representation. With due respect to him (and despite the invitations of the court), the oral submissions that he advanced did not marry with the appeal grounds recorded in his notice of appeal. Instead, they focused upon what he stressed was his need to remain in Australia in order that he might enjoy a "guarantee on [his] life". He was at pains to impress upon the court that, if returned to Sri Lanka, his life would be at risk. 19 No application was made to amend the grounds of appeal; although, to be clear, it is very unlikely that such an application could sensibly have succeeded in light of the nature of the oral submissions that were advanced. The appellant's submissions did not descend into analysis of how (or if) the FCCA Judgment was tainted by error, nor how (or if) the Review Decision was a product of jurisdictional error. Instead and more simply, the appellant sought to invite the court to determine his Visa Application on its merits, a course against which no shortage of authority unambiguously warns.

The statutory framework 20 It is not presently in contest that the Delegate's Decision qualified as a "fast track decision" for the purposes of the Act. Part 7AA of the Act provides for a framework pursuant to which fast track decisions are to be reviewed. Relevantly, it provides for: (1) the automatic referral to the IAA of fast track decisions (the Act, s 473CA); (2) a corresponding obligation, conferred upon the IAA, to review what is referred (the Act, s 473CC); (3) the provision to the IAA of certain material relevant to fast track decisions that are referred to it for review (the Act, s 473CB); (4) the abolition, in relation to decisions referred to the IAA for review, of what would otherwise be the requirements of the natural justice hearing rule (the Act, s 473DA); (5) an obligation, conferred upon the IAA, to conduct any such review on the basis of the material that the Secretary provides to it under s 473CB (the Act, 473DB); and (6) the limited circumstances in which the Authority can procure and/or have regard to "new information" (the Act, ss 473DC and 473DD). 21 The latter provisions are of relevance to the present appeal. Sections 473DC and 473DD provide as follows: 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

Ground one: Legal unreasonableness 22 The appellant's first ground of appeal is, in summary form, that the Authority was obliged to consider the Al Jazeera Report ahead of making its decision. He contends that its decision not to bespeaks legal unreasonableness; and that the Review Decision was, for that reason, beyond what the Authority had jurisdiction to conclude. 23 The points of relevant principle are uncontroversial. The Act reposed in the Authority a limited discretion to receive and consider "new information" that was not before the Minister's delegate: ss 473DC and 473DD. The exercise of that discretionary power was subject to an implied condition that it be reasonable: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). In Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (Allsop CJ, Griffiths and Wigney JJ), this court observed (172 [65]): …the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary... That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification", and "obviously disproportionate". It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a "checklist" exercise... Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes. 24 The Authority's discretion to consider new information is limited by the requirements enumerated in s 473DD. Amongst them (and relevant for present purposes) is the requirement that the Authority be satisfied that there exist exceptional circumstances that justify its doing so. In the present case, the Authority was not satisfied that the circumstances surrounding its receipt of the Al Jazeera Report rose to that standard. In part, it was moved to that conclusion because the information in question "merely document[ed] the potential forerunners in the upcoming elections" and because, in the Authority's estimation, it amounted to "mere speculation that these individuals are likely to come to power". 25 The Act does not define "exceptional circumstances". The relevant discretion, then, is broad and substantially unfettered; although it is not without boundaries, as the authorities demonstrate. A statutory discretion conditioned upon the existence of such circumstances is "…a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule": Jess v Scott (1986) 12 FCR 187, 195 (Lockhart, Sheppard and Burchett JJ); Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581, 591 [51] (Dowsett, Greenwood and Collier JJ). 26 The appellant, by his notice of appeal, contends that it was "manifestly unjust" for the Authority to exclude from its consideration reporting as to the setting of an election date in Sri Lanka and the "changing political landscape and implications of that for the [appellant]". Respectfully, I am unable to agree. Whatever might be said of the appropriateness of considering or not considering the Al Jazeera Report, I am not persuaded that the Authority's decision not to was manifestly unjust. The evidence in question was necessarily speculative. The use to which it might have been put if considered is not immediately clear. 27 Further and in any event, the Authority did consider the appellant's own submissions as to the prospect of an anti-Tamil resurgence within Sri Lanka. The view that it formed - namely, that there were no exceptional circumstances warranting its consideration of the Al Jazeera Report - was formed under the light of what the appellant had submitted on that front. The Authority's discretion as to whether or not it should be satisfied that there were exceptional circumstances warranting its consideration of the Al Jazeera Report did not, in those circumstances, permit only of a single outcome. 28 It was open to the Authority to form the view that it did; and, having formed that view, to refuse to consider the Al Jazeera Report. Doing so did not move the conclusion to which it was ultimately drawn beyond the limits of the jurisdiction that the Act conferred upon it. Respectfully, the FCCA was correct to reject this aspect of the appellant's Judicial Review Application. 29 The appellant's first ground of appeal must fail.

Ground two: failure to complete review task 30 By his second ground of appeal, the appellant charges the Authority with having failed to "…complete the exercise of its [s]tatutory task…as it did not undertake reasonable speculation as to who might win the presidential election in Sri Lanka". 31 At the core of the appellant's Visa Application was his contention that he had a "well-founded fear of being persecuted" in Sri Lanka, or was otherwise at risk of subjection to "significant harm" if returned there. Consideration of those claims required consideration of such circumstances as might emerge in the "reasonably foreseeable future": SZQXE v Minister for Immigration and Citizenship [2012] FCA 1292, [7] (Flick J). 32 It is plain enough that the Authority did turn its mind to the form that Sri Lanka's short- and medium-term political future might assume. It was obliged to do so - at least to an extent - in light of the contentions that the appellant advanced in support of his Visa Application (see above, [9]) and in order to permit it to make the required assessment as to whether or not he could satisfy the criteria upon which that application turned. 33 The Authority was not obliged - nor, for that matter, able - to reach any particular view about what Sri Lanka's political future might hold in store for the appellant. It was entitled to form the view that it did: namely, that the information before it was "…too speculative to conclude that reasons referred to by [the appellant] or [his] former representative will lead to a risk of harm to the [appellant] on his return". There was no error involved in its doing so. 34 Again with respect, the FCCA was correct to reject this aspect of the appellant's Judicial Review Application. The second ground of appeal is not made good.

Conclusion 35 Neither of the appellant's grounds of appeal can succeed. The appeal must, for that reason, be dismissed. There is no reason to make anything other than the usual order as to costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Snaden.