FPU17 v Minister for Home Affairs

The Authority 14 In submissions received by the Authority on 7 June 2017, the first appellant personally made submissions in support of the review of the delegate's decision by the Authority. The submissions included the following: On the 6 April 2017, three Sinhalese people came to our house and threatened my wife asking where I am. My wife believes that they from the Intelligence unit. My wife said that she does not know where I am. They came in a jeep. My wife telephoned and said this to me. … Because of my association with K I will be seen as a supporter of K and the TNA. K was a member of the Provincial Council. Now he is not a Member. Although I did not do politics, because I was associated with K I will be seen as a supporter of K. 15 On 6 December 2017, the Authority affirmed the decision of the delegate not to grant the appellants protection visas. The decision includes, relevantly, the following. 16 The decision recorded the allegation of the incident of intimidation of the first appellant's wife on 6 April 2017 and then stated: If true, these events represent a potential development in the applicant's claims beyond his control. I am satisfied that this information was not, and could not, have been provided to the Minister before the Minister made the decision and that there are exceptional circumstances to justify considering the new information. 17 Based on the first appellant's responses in the interview that he gave for the purposes of his visa application (referred to as the SHEV interview), the Authority did not accept that the first appellant was heavily involved in the campaign of the TNA, or knew much about the elections. The Authority considered that the first appellant had exaggerated those claims for the purpose of his SHEV application. 18 The Authority accepted on the basis of country information that the Pillayan Group was politically active in the relevant area and carrying out threats of violence in 2012. 19 The Authority found that the first appellant was only involved in election campaigning at a low level. However, because the first appellant was a local businessman who had accompanied K door-knocking during the campaign the Authority accepted that he may have been a visible target for intimidation. The Authority accepted that the first appellant was threatened on the two claimed occasions in October 2012, and this was likely a pattern of intimidation by the Pillayan opposition party after the election. 20 The Authority did not accept that the first appellant was in hiding prior to his departure from Sri Lanka because "his account of this time is vague and inconsistent". In that regard, the Authority considered that the appellant would have had to come out of hiding to arrange for the sale of his business, which he had said that he arranged at the time when he said he was in hiding. 21 Specifically with regard to the 6 April 2017 incident of intimidation of the first appellant's wife, the Authority said the following: I do not accept that three men from the police intelligence unit visited the applicant's wife on 16 April 2017 [sic] as no plausible or credible explanation has been offered for this visit. It is not clear how the applicant's wife determined that they were intelligence officers and no explanation has been offered as to why they wanted to know where her husband was, particularly since he left the country five years earlier. I consider that the applicant has made this claim to strengthen his application and his claim that it is not safe for him to return to Sri Lanka. 22 In assessing the appellants' claims for protection, and in particular whether they faced a "well-founded fear of persecution" as defined in s 5J of the Act, the Authority stated as follows: I have accepted that the threats made in September 2016 are consistent with Pillayan activity in the post war period and around elections in Batticoloa. I also note that the applicant, his son, his wife and other children were never harmed by these men despite the threats do so. … In addition to this I note that neither the applicant nor any other member of his immediate family were ever harmed by the Pillayan Group so the prospect of them being harmed in the future is no more than remote. 23 Ultimately, the Authority concluded as follows: Having regard to the information before me, I do not accept that the applicant faces a real chance of any harm on the basis of his past support of the TNA should he return to Sri Lanka. I do not consider that the second applicant would face a real chance of harm based on his father's TNA support. I do not consider that either of the applicants fit the profile of a Tamil returnee who would be imputed to have an association with the LTTE or be of interest to the Sri Lankan authorities for criminal or national security reasons. Having regard to the information before me, I am not satisfied that the applicants face a real chance of serious harm on the basis of their Tamil ethnicity or any imputed association with the LTTE should they return to Sri Lanka.

The grounds of appeal 24 The grounds of appeal advanced by the appellant mirror the grounds of review advanced by him before the FCC - on appeal, the appellant submits that the primary judge was in error in dismissing each of his review grounds. Ground 1 stands conveniently on its own, whereas grounds 2-4 have significant overlap. It is therefore convenient to deal with review and appeal ground 1, and to then consider review and appeal grounds 2-4 together.

In the FCC 25 Review ground 1 asserted that the Authority was in breach of procedural fairness by failing to invite the appellants to a hearing on the question of the 6 April 2017 incident of intimidation of the first appellant's wife as there were special circumstances to investigate this new claim. 26 The primary judge found that the reference in the Authority's decision to accepting that threats had been made in September 2016 "is clearly a typographical error" and that the most recent accepted threats were in October 2012. The primary judge found that the Authority's reasons for not accepting the April 2017 incident did not reflect speculation, but rather a reasoned adverse finding in respect of the new information that was open to the Authority to make. The primary judge referred to the Authority's reasoning that raised the absence of a plausible and credible explanation for the alleged visit in 2017 and were in the context of the Authority having rejected that the first appellant's wife had been the subject of ongoing visits and threats since 2012. 27 The primary judge referred to a letter dated 17 May 2017 that had been sent by the Authority to the first appellant. That letter, as characterised by the primary judge, explained that there were limited circumstances in which the Authority could consider new information. The primary judge said that the letter provided an attached fact sheet and Practice Direction, giving the appellants an opportunity to put on new information and submissions. 28 The primary judge stated that in response to the letter no submission was made inviting the Authority to exercise its power under s 473DC of the Act, and in the circumstances it cannot be said that it was legally unreasonable for the Authority not to invite or not expressly consider inviting the appellants to give further information or to an interview before making adverse findings in respect of the alleged intimidation incident on 6 April 2017. The primary judge reasoned that the appellants had an opportunity to put on new information and submissions and, accordingly, the absence of express consideration cannot be said to lack an evident and intelligible justification.

On appeal 29 On appeal, without objection from the Minister, this ground was put on the basis that the primary judge erred in not concluding that the Authority had acted legally unreasonably in rejecting the 6 April 2017 incident as having occurred on the grounds on which it did so without having exercised, or apparently considering whether to exercise, its discretion under s 473DC(3) to seek further explanation or information. 30 The parts of the letter of 17 May 2017 from the Department to the first appellant that might be thought relevant to the present enquiry are the following: The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to review refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached fact sheet and Practice Direction. … Please see the attached information sheet and Practice Direction for further information. … Attachments What you need to know about the IAA (English) What you need to know about the IAA (Tamil) Practice Direction for Applicants, Representatives and Authorised Recipients 31 The Practice Direction (Practice Direction 1, October 2016) relevantly states the following in relation to any written submissions submitted to the Authority: 21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. 32 The Practice Direction also provides for "new information" to be furnished, and sets out requirements with regard to explaining why the new information qualifies to be considered by the Authority. 33 In relation to interviews, the Practice Direction relevantly states the following: 32. Interviews may be held in very limited circumstances in accordance with the provisions set out in the Migration Act. An interview may be held for us to obtain specific information from you or another person. 34 It was apparently in response to the letter that the first appellant made his submissions that were received by the Authority on 7 June 2017, partly quoted above at [14], which raised the 6 April 2017 incident. As indicated, those submissions are signed by the first appellant personally. It would seem that at that stage he was unrepresented, and there is nothing by way of reference to legal provisions or the use of legal language which would suggest that he might have been assisted by a lawyer in preparing those submissions. 35 Ground 1 necessarily directs attention to the relevant statutory provisions which might have a bearing on the nature and extent of the natural justice and reasonableness requirements applicable to a review of a decision by a delegate of the Minister by the Authority. 36 Part 7AA of the Act deals with the fast track review process in relation to certain protection visa decisions. The decisions in relation to the appellants' protection visa applications fall within this category. Such a decision is described as a "fast track reviewable decision": s 473BB. Section 473CA provides that the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. That is apparently what occurred in this instance. 37 Section 473CB sets out requirements with regard to the information that must be given to the Authority in order for it to conduct its review. Section 473CC provides that the Authority "must review a fast track reviewable decision" referred to it and in so doing it can affirm the decision or remit it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. 38 Section 473DA deals explicitly with the natural justice hearing rule. It provides that Division 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. It goes on to state that nothing in Part 7AA requires the Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under s 65. 39 Section 473DB deals with what the Authority must consider in the following terms: 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. 40 Subdivision C of Division 3 of Part 7AA deals with additional information. Relevantly, it includes the following provisions: 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. 41 Section 473DF set out some requirements with regard to the timing and manner of seeking new information whether in writing or by interview. 42 Section 473FA(1) provides that the Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is "efficient, quick, free of bias and consistent with Division 3 (conduct of review)". Section 473FA(2) provides that the Authority, in reviewing a decision, "is not bound by technicalities, legal forms or rules of evidence". Unlike ss 353 and 420 of the Act which deal with the review of different decisions (i.e. not "fast track reviewable decisions"), s 473FA does not provide that in reviewing a decision the Authority is required "to act according to substantial justice and the merits of the case". 43 Finally for present purposes, s 473FB provides for the President to issue practice directions as to, amongst other things, the conduct of reviews by the Authority. Subsection (5) provides as follows: (5) The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person. 44 These provisions were considered at some length in Plaintiff M174 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600. In the judgment of the plurality of Gageler, Keane and Nettle JJ (at [21]), with which Gordon J (at [78] and [86]) and Edelman J (at [100]) agreed, it was accepted that the various powers conferred on the Authority by Division 3 of Part 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332. 45 In Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 40, Kiefel CJ with reference to Li summed up the position, specifically in relation to a review decision of the Refugee Review Tribunal under Division 4 of Part 7 of the Act, as follows at [10]: In the joint judgment in Li it was explained that a decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification. That may be so where a decision is one which no reasonable person could have arrived at, although an inference of unreasonableness is not to be drawn only where a decision appears to be irrational. (References omitted.) 46 The Chief Justice explained (at [11]) that the test for unreasonableness is necessarily stringent, which is because the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion. 47 Part 7AA was again recently considered by the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34. With reference to Plaintiff M174 at [21], [49], [71], [86] and [97], Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ (at [15]) expressly acknowledged that the discretion under s 473DC(3) is to be exercised within the bounds of reasonableness. 48 The plurality (at [34]) also expressly approved the conclusion in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (at [67]) and Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 (at [99]) that there is no scope for the principles of procedural fairness to apply to a review by the Authority where Pt 7AA is followed, except to the extent that those principles overlap with legal unreasonableness and that a procedural fairness analysis is not the correct perspective. 49 There are some decisions of the Full Court which deal specifically with the exercise of the discretion under s 473DC(3). 50 In CRY16, the Court per Robertson, Murphy and Kerr JJ asked itself (at [67]) whether it was legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power under s 473DC(3) to get documents or information on the question of whether it was practicable for the respondent to relocate to a different area of Lebanon, being the country from which he came and where he experienced persecution, in order to avoid persecution. The question of relocation was something decided by the Authority against the respondent without having asked him about it. 51 It was held (at [82]) that the failure to consider the exercise of the discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation. The Authority did not have that information because the question of relocation was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable in terms of relocation. As a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. 52 In DZU16 the Court, constituted in the same way, came to the same conclusion (at [81], [85]) in similar circumstances. In an alternative analysis, the Court (at [91]-[94]) found it relevant to a finding of unreasonableness that correspondence by the Authority to the respondent may have misled the respondent with regard to his opportunity to furnish comments to the Authority. 53 In DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, the Authority made its decision on the same material as the delegate but came to an adverse decision on a different basis to the adverse decision of the delegate. The Court, per Reeves, Robertson and Rangiah JJ, held (at [72]) that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond and (at [76]) that it was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. 54 The Court also concluded (at [98]-[103]) that although the Practice Direction limits the length of the submissions to be provided to the Authority, it draws a distinction between submissions and "new information" with there being no limit on the latter. 55 In DPI17 v Minister for Home Affairs [2019] FCAFC 43; 366 ALR 665, Griffiths and Steward JJ (at [37]) emphasised three points in this context, each of which is equally significant in the present case. First, legal unreasonableness is "invariably fact dependent and requires evaluation of the evidence" (referring to SZVFW at [84]). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases; there are no fixed categories of circumstances in which it would be legally unreasonable to have failed to consider the discretion in s 473DC (referring to CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [42] per Thawley J). Thirdly, having regard to the clear terms of s 473DA, the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a "natural justice lens" (referring to DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ; cf. Mortimer J in DPI17 at [78]-[95]). That procedural fairness analysis is not the "lens" through which the content of procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined has since been expressly endorsed by the High Court in BVD17 (at [34]). 56 In DPI17, the delegate had accepted the appellant's claims that he had been sexually assaulted by Sri Lankan officials, and said as much to him during his interview by the delegate. It was also apparent that the delegate had reached its conclusion of acceptance based at least in part on the appellant's demeanour, and despite inconsistencies in his accounts of the assaults. The delegate had told the appellant in the interview that the inconsistencies would not be a basis to reject his claims. Apparently as a consequence of the approach of the delegate, the appellant's submissions to the Authority did not deal with the inconsistencies in his account. The Authority nevertheless rejected the appellant's claims of having been sexually assaulted without having considered whether to exercise the discretion under s 473DC(3) to seek further information or submissions. That was held to be legally unreasonable. 57 Most recently, in BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171 Middleton, Bromberg and Snaden JJ considered the reasonableness requirement in relation to s 473DC at [41]-[44]. Their Honours referred to some of the authorities above and emphasised that legal unreasonableness can only be found outside of the legitimate decisional freedom of the Authority. 58 Returning to the present case, the Authority considered the first appellant's report of the 6 April 2017 incident as constituting new information within s 473DC(1) and as warranting consideration by it under s 473DD. It then dismissed the information on the basis of the following three reasons: (1) no plausible or credible explanation had been offered for the visit by three men to the first appellant's wife; (2) it was not clear how the first appellant's wife determined that the men were intelligence officers; and (3) no explanation had been offered as to why they wanted to know where her husband was, particularly since he had left the country five years earlier. The decision-maker at the Authority then stated: "I consider that the applicant has made this claim to strengthen his application and his claim that it is not safe for him to return to Sri Lanka." 59 This case is not like CRY16 and DZU16 where the Authority decided the matter on an issue that had not been canvassed with the applicant by the delegate and which the applicant could not have been expected to anticipate; here, the first appellant raised the 6 April 2017 incident himself so he knew that it would be subject to consideration by the Authority. 60 Also, the present case is not like DPI17 where the unreasonableness arose in part from the manner in which the critical issue (the sexual assaults) had been dealt with by the delegate which had led the appellant to deal with that issue in a particular way in submissions to the Authority. Also, since the critical issue in the present case (the 6 April 2017 incident) was not raised before the delegate at all, no question of the delegate having been in a better position to make an assessment of the appellant in relation to that issue based on his demeanour arose. 61 It is not apparent from its reasons whether the Authority considered whether to request any further details or explanation from the appellants, i.e. whether it considered to exercise its discretion under s 473DC(3). The lack of explanation of or for various matters was central to the Authority's rejection of the 6 April 2017 incident. In those circumstances, the failure of the Authority to mention any consideration by it of the possibility of asking the appellants for further information or explanation could give rise to an inference that the Authority gave no consideration to that possibility; had it done so, it surely would have said so and explained why it did not seek further explanation? 62 However, even assuming that it gave no consideration to the exercise of the discretion, and this might be thought to be a borderline case, in my view it cannot be said that the Authority was unreasonable in not considering to exercise the discretion or, if it did consider whether to exercise the discretion, and not seeking further information from the appellants. The reasons for that are principally the following. 63 First, the 6 April 2017 incident was raised by the first appellant. To the extent that he might have been able to answer the Authority's doubts and queries in relation to the incident, he had it within his power to provide full information and explanation about the incident at the time that he made his submissions to the Authority. It was his failure to do so that led to his version being rejected, and the onus was squarely on him to establish his claims. 64 Second, although he was restricted in the length of the submissions that he could make, he was not restricted in the amount of new information he could provide, yet he gave only the scantiest details. In having approached the matter in that way, he cannot be said to have been misled by the letter that was furnished to him by the Authority that invited submissions and new information. 65 Third, the Authority was not required to inform the appellants about specific reservations about their case and provide an opportunity for them to respond (see [53] above). 66 Fourth, the appellants' real complaint is one of procedural fairness, which is how it was characterised on their behalf before the primary judge and in the notice of appeal. To re-characterise it as an unreasonableness complaint is artificial, and would ultimately serve only to avoid the reality that a procedural fairness complaint against the Authority is not available under Pt 7AA. Absent s 473DA, the appellants would have a good procedural unfairness complaint. That unfairness does not, in my view, amount to legal unreasonableness. 67 In the circumstances, there was no error by the primary judge and ground 1 of the appeal must fail.

Grounds 2-4: threats and torture 68 Review ground 2 asserted jurisdictional error by the Authority in misapplying the well-founded fear test by failing to recognise that the threats made to the appellants constitute serious harm. 69 The primary judge rejected this ground in part on the reasoning that the apparent acceptance by the Authority that threats had been made in September 2016 was a typographical error (see [26] above), which the primary judge said that the appellants' legal representative had accepted. The primary judge held that the Authority's reasons do not support the submission of any misapplication or misconstruction, and there had been no jurisdictional error. 70 Ground 3 asserted that the Authority was in jurisdictional error in that it failed to take into account torture prevalent in Sri Lanka. 71 The primary judge rejected this ground, reasoning that no relevant legal error by the Authority had been identified and that it was a matter for the Authority to determine what country information to accept. 72 Ground 4 asserted that the Authority failed to consider a relevant issue, namely that the Pillayan and Karuna Group members were operating secretly. This ground was rejected for similar reasons. As with ground 2 and 3, I can find no error in the reasoning of the primary judge. 73 Each of these grounds is fact heavy: in each case, a factual conclusion reached by the Authority is challenged, and in each case there was extensive material before the Authority which was considered and analysed by it and on which it based its decision. Whilst the Authority's reasoning is possibly susceptible to valid criticism in places, and a different decision-maker might well have come to a different decision, there is no discernible jurisdictional error in the manner in which the conclusions were reached. These are factual matters within the jurisdiction of the Authority, and it appears to have exercised that jurisdiction within the statutory requirements. I am not able to find any jurisdictional error, and I am equally unable to find any appealable error by the primary judge in the manner in which his Honour dealt with these grounds. 74 Grounds 2-4 must accordingly fail.

Conclusion 75 In the circumstances, the appeal must be dismissed. 76 As the successful party, the Minister should have his costs. The appellants did not submit to the contrary. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.