EPE19 v Minister for Immigration, Citizenship and Multicultural Affairs

Background up to the time of the delegate's decision 6 The applicant arrived in Australia in late 2012 as an unauthorised maritime arrival. He is a Sri Lankan citizen. Later in the month that he arrived, he participated in an arrival interview. He claimed to have had problems with the Sri Lankan Police's Criminal Investigation Department (CID) after there was a "minor explosion" close to his house. He said he was taken away from his home for one day by the CID, interrogated and assaulted and then let go. He said that he feared the CID would abduct him if he returned to Sri Lanka. 7 In March 2017, the applicant applied for a SHEV. In his application and accompanying statement he claimed that: (a) he was a Sri Lankan Tamil and a Hindu; (b) he worked as a farmer and his village was controlled by the Sri Lankan Army (SLA) during the civil war; (c) in January 2009 there was a land mine attack 100 metres from his house, which was aimed at the SLA and killed some soldiers; (d) on the day of the attack, the CID came to his house and took him to the SLA camp for interrogation; (e) he was accused of being involved in the attack and was beaten by CID officers before being released; (f) in March 2009, he was asked by the CID to attend their offices, and did so, where he was beaten and accused him of being involved in the attack and being in the Liberation Tigers of Tamil Eelam (LTTE); (g) he claimed this "happened about 20 times over the next two years", and he was required to attend the CID offices attached to the SLA camp and was interrogated about the bomb blast, kicked and punched, the last occurrence being in March 2012; (h) on three occasions, the CID came to his house or workplace and took his photograph; (i) the CID followed and monitored him and he feared he would be arrested or killed; (j) he moved to a nearby village for six months and lived and worked in a mining compound hiding from the CID but feared they would find him so he decided to leave Sri Lanka in September 2012; (k) after he came to Australia, and up until 2013, the CID and Army visited his house and the houses of his mother and wife on three occasions, where they took a photo of his "national ID card"; (l) he feared being harmed or killed by the CID and was afraid that the CID provided the airport authorities with his photograph and that he would be subject to increased suspicion because he had been outside of Sri Lanka for many years; (m) he feared harm as a failed asylum seeker and would be arrested on his return because the authorities had his photograph and details on record from his 2009 to 2012 interrogations; (n) he also feared he would not be protected and did not feel that the treatment of Tamils had improved under President Sirisena. His wife in Sri Lanka also went to live with a friend because she feared harassment from the CID. 8 On 5 July 2019, the applicant attended an interview before the delegate where he expanded on his written claims. 9 On 9 September 2019, the delegate refused to grant the applicant a SHEV. The delegate was not satisfied that the applicant was of interest to the Sri Lankan authorities or that his family continued to be contacted by the authorities after he came to Australia. In reaching that conclusion, the delegate relied upon on independent country information about the LTTE in Sri Lanka, the treatment faced by returning asylum seekers and inconsistencies identified in the applicant's written claims, oral evidence and supporting documents. 10 On 12 September 2019, the matter was referred to the Authority.

The Authority's Decision 11 On 17 October 2019, the Authority affirmed the delegate's decision, having: (a) accepted that the applicant was a national of Sri Lanka; identified as a Hindu Tamil; only spoke Tamil; would return to Sri Lanka as a failed asylum seeker; and had departed Sri Lanka illegally by boat: IAA [8]-[11]; (b) accepted there was a landmine attack in January 2009 close to the applicant's house and that in response to the attack, the CID came to the applicant's house and took him to the CID office where he was interrogated on suspicion of being involved: IAA [13]; (c) accepted that the applicant was asked to attend the CID office and answer questions on a number of occasions for a period of time and could have been beaten during some or all of these enquiries: IAA [15]; (d) not accepted that the CID would continue to ask the applicant the same questions about an event over a period of three years on more than 20 occasions or that in 2012 the applicant was being questioned by the CID because they had an adverse interest in him as an individual: IAA [15]; (e) found it implausible that the applicant would have continued to be questioned between 2009 and 2012 and that the CID needed to go to both his house and workplace to take photographs of him when he had previously reported to their office on numerous occasions: IAA [17]; (f) accepted that the Sri Lankan authorities would infer that the applicant had spent some time in Australia, but did not accept that he would be mistreated whilst undergoing standard processing procedures on his return, and found that being subject to such procedures did not meet the definition of serious harm in s 5J(4) of the Migration Act 1958 (Cth) and was not satisfied the applicant would face a real chance of harm on the basis: IAA [37]-[39]; (g) accepted that the applicant left Sri Lanka illegally by boat and that he may be charged, fingerprinted, photographed, questioned, detained for up to two days, subject to a fine and released on bail or a personal surety that may require a family member to act as guarantor: IAA [42]-[44]; (h) found that, based on the applicant's evidence that he was working full-time since 2016, it was not satisfied the applicant would be unable to pay a fine and found there was no evidence to suggest a member of his family could not act as a guarantor, if required: IAA [45]; (i) concluded that the applicant was not a person of any interest to the Sri Lankan authorities and, for the same reasons, found he would not be subjected to any adverse administrative processes, periods of surveillance or social stigma from the community that amounted to significant harm under s 36(2B) of the Migration Act: IAA [52]; (j) found the applicant did not meet the visa criteria in either s 36(2)(a) or s 36(2)(aa) of the Migration Act: IAA [49], [55].

Before the primary judge 12 On 20 November 2019, the applicant filed an application seeking judicial review of the Authority's decision, which pleaded the following two grounds (verbatim): IAA made jurisdictional error by failing to consider the whole evidence before it. IAA made jurisdictional error by misapplying the well-founded fear test. 13 On 7 May 2020, the parties appeared before the primary judge at a show cause hearing. At the conclusion of that hearing, the primary judge delivered an ex tempore judgment (primary judgment or J), dismissing the application for judicial review with costs pursuant to r 44.12(1)(a) of the Circuit Court Rules: J[37]. In reaching that conclusion, his Honour found that no arguable case of jurisdictional error had been established because: (a) the applicant did not identify any claim or evidence which was not considered by the Authority: J[32], J[35]; and (b) the applicant's disagreement with the Authority's adverse findings amounted to no more than an attempt at impermissible merits review, and failed to identify any misapplication of law or any failure to consider an integer of his claims: J[31], J[36].

The proposed grounds of appeal for which leave to appeal is sought 14 The applicant's original application for leave to appeal filed on 29 May 2020, was replaced by an amended application for leave to appeal dated 18 April 2021 and filed on 22 April 2021. The same grounds are advanced in the amended application and in the annexed draft notice of appeal. It is beneficial to reproduce those grounds in full as they are addressed by cross-reference in the Minister's submissions, considered below: DRAFT NEW GROUND 1: [1] The IAA erred when it found implausible and did not accept the CID would continue to ask the applicant the same questions about an event over a period of three years on more than 20 occasions, and did not accept in 2012 the Applicant was being questioned by the CID because the CID had a particular adverse interest in him as an individual. Particulars i. Paragraph [15]; ii. The Applicant claimed he was questioned interrogated tortured and beaten by the CID after a January 2009 landmine attack from 2009 to 2012, and asked about his connection with the landmine, if the LTTE were still operating, if the LTTE were planning any activities and if he had any connections to the LTTE [13]-[14]; iii. The IAA accepted the Applicant was taken to the CID office in January 2009 after an explosion occurred close to his home, that he was questioned and beaten [13], and that he could have been beaten during occasions he attended the CID office [15]; iv. The IAA also accepted the Applicant could have been subject to routine questioning from the CID towards the end of the conflict and /or for a period after the conflict ended [15]; v. The IAA noted 'The most recent DFAT report (fn dated 23 May 2018) states that towards the end of the conflict the Sri Lankan security forces questioned and monitored civilians for possible LTTE activity.' [15]; vi. The IAA stated: 'I find it implausible and do not accept the CID would continue to ask the applicant the same questions about an event over a period of three years on more than 20 occasions.' and 'I do not accept that in 2012 the applicant was being questioned by the CID because the CID had a particular adverse interest in him as an individual. [15]; vii. The IAA had no basis upon which to find implausible or not accept the above claims, since the DFAT report made it clear the Sri Lankan security forces questioned and monitored civilians for possible LTTE activity for a period after the conflict ended, which is what the Applicant claimed occurred; viii. Further, the IAA statement of implausibility only referred to an event over a period of three years, being the landmine explosion, whereas the Applicant also claimed he was asked questions concerning his involvement with the LTTE that was clearly not limited to merely such singular event; ix. In so doing, the IAA made unreasonable, illogical or irrational findings in matters which were material to the Applicant's claims. [2] The IAA decision accordingly committed jurisdictional error. DRAFT NEW GROUND 2: [1] The IAA erred when it did not consider whether the Applicant faced a real chance of persecution should he plead not guilty and be required to have a family member act as guarantor but not be able to find such guarantor, or should he plead guilty and be fined and not be able to pay the fine. Particulars i. Paragraph [43]-[44]; ii. The IAA stated at [43]: 'When brought before a court, a returnee who pleads guilty will attract a fine and then the person is free to go. ... Fines are imposed on returnees to deter people from departing illegally in the future and are generally between LKR 3000 (about $A25) for a first offence to LKR 200,000 (about $A1670). These fines can be paid by instalment. ... I find there is no real chance he will be given a custodial sentence.' iii. The IAA stated at [44]: 'Based on DFAT's advice, I find that if the applicant pleaded not guilty, he would either be immediately granted bail on a personal surety, or wait to be collected by a family member if required to have a family member act as a guarantor. DFAT advises that most passengers of people smuggling ventures spend many years on bail and that most are free to go after paying a fine. However, bail conditions are discretionary and can involve monthly reporting to police. DFAT states that although the fines are issued for passengers of people smuggling ventures are often low, the cumulative costs associated with regular court appearances over a protracted length of time can be high.' iv. In considering the issues of fines, the IAA stated: ' ... [the Applicant] confirmed he is still working. The most recent DFAT report indicates fines for first offence start at $A25. The applicant did not provide any evidence that he would be unable to meet the fines or costs associated with the processes of his illegal departure. Based on all the evidence before me, I am not satisfied the applicant would be unable to pay a fine if he returned to Sri Lanka.' [45] iv. The IAA had no sufficient information before it to be able to form an intelligent view on whether the Applicant would or would not be able to pay a fine if imposed. Accordingly, since the IAA specifically addressed and made a finding concerning the issue of the DFAT report and the Applicant's ability to pay a fine, the IAA ought to have invited the Applicant to give information about his likely ability to pay a fine upon return under S 473DC which the IAA did not do; v. In considering the issues of guarantor, the IAA stated: 'Likewise, the applicant did not claim and there is no evidence before me to suggest his relatives living in Sri Lanka would be unable or unwilling to act a guarantor if one was required. Indeed his evidence was that he had no problem with his immediate family.' [45] vii. The IAA had no sufficient information before it to be able to form an intelligent view on whether the Applicant would or would not be able to have a family member act as guarantor, if required upon his return to Sri Lanka. Accordingly, since the IAA specifically addressed and made a finding concerning the issue of the DFAT report and the Applicant's ability to have a family member act as guarantor, if required, the IAA ought to have invited the Applicant to give information about his likely ability to have a family member act as guarantor, if required, upon his return to Sri Lanka under S 473DC which the IAA did not do. [2] Accordingly the IAA committed jurisdictional error in failing to properly review all claims as required pursuant to S 473DB of the Migration Act. 15 It is notable that none of the above grounds mention the primary judge, let alone suggest any error on the part of his Honour. However, given that the applicant appears for himself and is not legally trained, it is appropriate to treat these grounds and the submissions reproduced below, which suffer from the same vice, as amounting to asserted errors on the part of the Authority that should have been detected by the primary judge. Even with that beneficial approach, the applicant faced a considerable hurdle in demonstrating error, given that none of those arguments were presented to his Honour. However, the approach I have taken is to go one step further and consider whether those grounds themselves are arguable, as though they were before the primary judge.

The appellant's submissions 16 In written submissions dated 18 April 2021 and filed on 22 April 2021, which are very similar to, but not identical in every respect to, those in the amended application for leave to appeal and annexed draft notice of appeal, he asserted (verbatim): NEW GROUND 1: [1] The Applicant repeats and relies upon the Ground and Particulars stated in the Application; [2] The IAA accepted the DFAT report that towards the end of the conflict the Sri Lankan security forces questioned and monitored civilians for possible LTTE activity. [3] The IAA also accepted the Applicant could have been subject to routine questioning from the CID towards the end of the conflict and /or for a period after the conflict ended [15]; [4] There was no basis for the IAA to have then declined to accept the CID would continue to ask the applicant questions concerning information about the LTTE or his involvement with or knowledge of the LTTE, which would have been evolving over the time 2009-2012 and not simply a reiteration of 'the same question about an event over a period of three years on' as was stated by the IAA. Implicit in the IAA's construct is that the CID were asking the Applicant questions about the LTTE or his involvement with or knowledge of the LTTE as at the landmine blast in 2009, but not afterwards, which would be itself implausible but a construct not in accordance with the Applicant's case. Such reasoning is without logic. [5] In any event, the IAA did not place a limitation as to when the CID would have ceased asking people of interest about information about the LTTE or their involvement with or knowledge of the LTTE, but nevertheless deciding it couldn't have been as late as 2012. Such reasoning is without logic. [6] Accordingly the IAA's finding of implausibility and its failure to not accept the CID would continue to ask the applicant the same questions about an event over a period of three years on more than 20 occasions, or to accept in 2012 the Applicant was being questioned by the CID because the CID had a particular adverse interest in him as an individual, were unreasonable, illogical or irrational decision. NEW GROUND 2: [1] The Applicant repeats and relies upon the Ground and Particulars stated in the Application; [2] The IAA identified alternative courses of action should the Applicant be returned to Sri Lanka. They were either a plea of guilty or a plea of not guilty to a charge of leaving the country illegally in contravention of the Immigrants and Emigrants Act [43]; [3] In the event the Applicant pleads guilty, the IAA reviewed the possible outcome and noted that 'a man who pleads guilty will attract a fine and then the person is free to go.' [43] The IAA considered that, because the Applicant 'has been working full time since February 2016' and he 'did not provide any evidence that he would be unable to meet the fines or costs associated with the processes of his illegal departure', the IAA was not satisfied the Applicant would be unable to pay a fine. The IAA did not refer to any evidence given by the Applicant and so it is safe to assume the IAA was aware the Applicant did not give any evidence relevant to this point. [4] The IAA ought therefore to have sought further information on this issue which was identified by the IAA as relevant to the Applicant's claims. [5] Failure to have done so means that the IAA did not properly review all claims as required pursuant to S 473DB of the Migration Act. [6] The same can be said in respect of the IAA 's failure to have sought further information on the issue of the Applicant's ability to pay a fine, in which case the IAA ought to have invited the Applicant to give information about his likely ability to pay a fine upon return under S 473DC; [7] The IAA did not do either and so, and which again means that the IAA did not properly review all claims as required pursuant to S 473DB of the Migration Act. 17 The applicant made oral submissions to the following effect, through an interpreter, as recorded on the transcript, with him using the abbreviation "IAA" to refer to the Authority: (a) The IAA did not consider the claims or grounds of his case properly. (b) The IAA accepted his evidence that he faced problems in Sri Lanka in 2009, but found that there was no chance that he would have faced further problems until 2012 when he left Sri Lanka, despite him telling the IAA that since 2009 he had been moving around to different places to avoid being searched by authorities. (c) He believes that he will be arrested at the airport for his illegal exit from Sri Lanka if he returns, and even if he is released, he might get abducted or killed. His wife and daughter would not be able to bail him out as there are issues that exist for females there and it would be a threat to their life. (d) He speaks to his daughter over a video call while in Australia, but if he goes back to Sri Lanka, he may not be able to see her again permanently.

The Minister's submissions 18 The Minister referred to the generally applicable test for the grant of leave to appeal set out in Décor Corporation Pty Ltd v Dart Industries Inc, summarised above at [3], also noting that the considerations of sufficient doubt as to correctness of the judgment below, and, assuming that judgement to be wrong, whether substantial injustice would be suffered if leave was refused, are cumulative such that leave to appeal will not be granted unless both limbs are made out, the authority in that regard being identified by Flick J in Sekigawa v Minister for Immigration and Border Protection [2016] FCA 127; 237 FCR 276 at [12]. 19 The Minister submits that a relevant application of the general test for the grant of leave to appeal ordinarily requires the applicant to demonstrate that, in failing to be satisfied that the application for judicial review had raised an arguable case for the relief claimed, the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account some material consideration or reached a result that was unreasonable or plainly unjust. In support, the Minister cites the well-established principles for the assessment of whether there exists a proper basis for a review by appeal of a truly discretionary evaluative decision as described in House v The King [1936] HCA 40; 55 CLR 499 at 504-505. 20 The decision of the primary judge was not really of the kind that gives rise to the application of the degree of latitude given to decisions which could legitimately fall within a range of outcomes, such that no particular point in the range of possible decisions can readily be seen to be erroneous. House v The King was itself such a case, being the imposition of a sentence for a criminal offence. The latitude given to a primary judge by this Court is narrower when, as here, his Honour was required to make the decision on the basis of the formation of a positive state of satisfaction that the application for review did not raise an arguable case: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [19] (Gleeson CJ, Gaudron and Hayne JJ). In migration cases involving unrepresented persons, especially in relation to protection visas and the element of personal risk or danger potentially involved, it may sometimes be necessary for a judge at a show cause hearing to look beyond the bare pleaded case for judicial review, and consider the real substance of the complaint made about the executive decision under challenge. 21 It follows that the conclusion reached by the primary judge was not as immune from appellate review as the almost rote application of House v The King might suggest. It is therefore necessary to conduct a closer examination of the material that was before his Honour in order to ascertain not just whether there was an error of commission, being something overtly or implicitly wrong in the decision reached, but also any error of oversight or omission, such as failing to consider properly some aspect of the underlying case sought to be advanced that was squarely before him, even if not obvious. The alternative might be, perhaps inadvertently, to immunise an erroneous exercise of the power to dismiss an application for judicial review on the basis of a bare assertion of a lack of satisfaction as to the existence of an arguable case. 22 Fortunately, the Minister did not simply rely upon the application of House v The King to preclude a wider inquiry, but went beyond that to assess the underlying substance of the case that the applicant effectively contends he really sought to advance in his judicial review application. The Minister submits not just that the applicant has failed to identify any such error in the approach and judgment of the primary judge, which in this case might have been too cautious a consideration of the exercise of appellate review, but also a failure to identify any realistic possibility of a potential jurisdictional error by the Authority that his Honour ought to have taken into account in making his decision. The Minister has gone beyond what was hinted at in the show cause hearing before the primary judge, and addressed the case that the applicant now seeks to advance, in order to demonstrate that even this perhaps overgenerous approach does not reveal any arguable case to warrant any different conclusion being reached by his Honour had this been part of what was presented to him. 23 As to the first ground advanced, the Minister characterises it accurately as alleging the Authority erred by not accepting that the CID would continue to ask the applicant the same questions about an "event" on more than 20 occasions over a period of three years and that the CID had an adverse interest in him as an individual. The Minister points out that the applicant's particulars identify the "event" as a January 2009 landmine attack near the applicant's home: IAA [13]. 24 The Minister accurately summaries and fairly addresses the particulars accompanying the first ground advanced as follows: (a) particulars (i)-(vi) which are effectively a summary of a portion of the Authority's findings; (b) particulars (vii)-(ix) contain further complaints directed towards the Authority's consideration of the applicant's evidence; (c) the applicant does not allege in substance that the Authority failed to consider his claims and instead advances no more than emphatic disagreement with the Authority's findings of fact about his claims; (d) particulars (vii)-(viii) allege the Authority did not refer to the applicant's claim that he was "asked questions concerning his involvement with the LTTE that was clearly not limited to merely such singular event"; (e) contrary to this complaint, the Authority expressly considered and accepted the claim that the applicant "could have been subjected to routine questioning" unrelated to the landmine attack at IAA [15]; (f) particular (ix) alleges that the Authority made "unreasonable, illogical or irrational findings"; (g) in the absence of any meaningful explanation, that allegation is no more than an invitation to the Court to engage in impermissible merits review under the guise of an evaluation of the reasonableness of the Authority's decision; (h) the Authority's decision could not be said to be illogical, irrational, or unreasonable simply because the applicant would prefer a different conclusion to the one that the Authority gave; (i) nor was the Authority required to accept uncritically any and all claims made by the applicant. 25 I accept those submissions, supported as they are by authority that is cited in support of them, that does not need to be repeated. There is nothing that is now raised that was capable of impugning the decision of the Authority, so as to give rise to any arguable case of jurisdictional error. 26 As to the second ground, the Minister accurately characterises it as contending that the Authority erred by failing to consider whether he faced a real chance of persecution if: (a) he pleaded guilty to being an asylum seeker and was forced to pay a fine which he could not afford; and (b) he pleaded not guilty and was required to have a family member act as a guarantor but could not find one. 27 The Minister again accurately summaries and fairly addresses the particulars accompanying the second ground advanced as follows: (a) particulars (i) to (iii) summarise IAA [43] to [44]; (b) particulars (iv) to (vii) in essence complain that the Authority did not have "sufficient information" before it to form an "intelligent view" of the applicant's risk upon return. 28 The Minister points out that this complaint was not raised before the primary judge and the applicant requires leave to raise it on appeal, with that failure alone being sufficient to refuse the grant of leave. However, for completeness the Minister also addressed that complaint, submitting that it lacked sufficient merit to warrant a grant of leave. I consider it appropriate to consider this point in the manner most beneficial to the applicant, because if merit is not apparent, then leave should be refused in any event. 29 The Minister submitted that the applicant's complaint about the Authority's alleged failure to consider his risk of persecution on return is baseless. That is said to be so because the Authority at IAA [43]-[45] expressly considered the risk to the applicant upon his return, but was not satisfied that he would be unable to pay a fine, and noted he had been working full-time since February 2016 and that the most recent DFAT Report indicated that fines for first time offenders started at AUD25: IAA [45]. 30 The Minister also correctly points out that the Authority expressly considered the applicant's ability to find a guarantor upon his return and found there was no evidence to suggest that his relatives in Sri Lanka would be unable or unwilling to act as a guarantor, noting the applicant's evidence suggested he had no problems with his family: IAA [45]. The applicant raised in the hearing before me that his daughter or wife in Sri Lanka would not be able to act as guarantors for his bail. However, this was not raised by the applicant before the Authority, nor before the primary judge, so this cannot be the basis for jurisdictional error. 31 Finally, in relation to the Authority's reasons, the Minister points out that the applicant's related complaint in particulars (v) and (vii) that the Authority did not have "sufficient information" before it to make these findings and should have invited the applicant to comment on them pursuant to s 473DC of the Migration Act was also baseless, because the Authority was not required to inform the applicant of any specific reservations it had about his case or to provide him with an opportunity to respond, citing DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 as authority for that proposition. As the Minister points out, the power reposed in the Authority to get, request or accept new information under s 473DC(2) of the Migration Act is discretionary, and there was no duty on the Authority to exercise it: DIN16 v Minister for Home Affairs [2020] FCA 406 at [34]. 32 I accept the Minister's submission that there was also nothing unreasonable about the Authority's non-exercise of the discretion in s 473DC of the Migration Act, because this is not a case where the Authority's findings differed substantially to those of the delegate. Rather, the Minister submits, and I accept, both the delegate and the Authority found that the imposition of any fine would not attract protection obligations: IAA [45]. 33 It follows from the foregoing that, as no reasonable possibility of jurisdictional error by the Authority has been established, the second ground is incapable of identifying appellable error by omission on the part of the primary judge, putting to one side the fact that nothing of this kind was raised with his Honour.

Conclusion 34 For the foregoing reasons, there was no overt error by the primary judge and no possibility of latent error because no error on the part of the Authority has been identified, let alone jurisdictional error. It follows that the amended application for leave to appeal had to be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bromwich.