FVO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

B BACKGROUND TO THE APPELLANT'S CLAIMS 5 The appellant is a Sri Lankan who arrived in Australia as an unauthorised maritime arrival in 2012. He applied for a Safe Haven Enterprise (subclass 790) Visa (Protection Visa) in April 2016. 6 In support of his application for a Protection Visa the appellant raised the following: (1) he is of Tamil ethnicity and a Christian; (2) in 2009, he returned to Sri Lanka from Dubai and began activities for the Tamil National Alliance (TNA); (3) there was a general election on 8 April 2010, and the appellant displayed posters and door-knocked to explain policies; (4) on Election Day (in 2010), the appellant was with Piyasena, a TNA member. Piyasena was attacked by a rival group, Iniya Bharathi; the appellant rushed to help him but was also attacked and consequently he ran away; he was chased and caught by the Iniya Bharathi group, was put in a van and was taken to a house in an unknown location, where he was assaulted and detained for three days; (5) the appellant was released after his mother, brother and his priest lobbied the Iniya Bharathi group office. He was released on the condition of not discussing the incident with the Sri Lankan police and the Human Right Commission; (6) following his release, the appellant received three weeks of treatment in Kalmunai hospital. Three men of the Iniya Bharathi group came to his ward and watched him; (7) following his release from hospital, the appellant left for Colombo; however, Iniya Bharathi members continued to look for the appellant; (8) in May 2012, the appellant returned to Sri Lanka for the birth of his son; (9) in July 2012, Iniya Bharathi members came to the appellant's house, took the appellant to a camp for questioning and asked him to join them but he refused and was threatened; (10) also in July 2012, the appellant was taken to a paramilitary camp and beaten. The appellant fled Sri Lanka in August 2012; (11) in 2015 and 2016, Iniya Bharathi members went to the appellant's wife's house and harassed her, and were enquiring about the appellant; and (12) the appellant fears that he will be harmed by the Iniya Bharathi group if he returns to Sri Lanka; he also fears that he will be suspected of being an "LTTE combatant", because of the injuries sustained in the 2010 attack by the Iniya Bharathi group. 7 In June 2018, a delegate of the Minister refused the appellant's application for a Protection Visa. The delegate's decision was subsequently referred to the Immigration Assessment Authority (Authority) for review in June 2018. 8 The steps after the delegate's decision and leading up to the determination of the Authority are summarised at length in the primary judge's reasons (at J[5]-[41]). It suffices to note that in October 2018, the Authority affirmed the delegate's decision.

c Proceeding before the primary Judge 9 The proceeding before the Federal Circuit Court was commenced in November 2018 and, shortly thereafter, a Registrar of the Court made orders requiring the appellant to file an amended application, affidavit evidence and submissions. The appellant did not file any such documents. 10 Before the Federal Circuit Court, the appellant advanced eight grounds of review. The primary judge did not accept that it was legally unreasonable for the Authority to not invite the appellant to comment, pursuant to s 473DC(3) of the Migration Act 1958 (Cth) (Act), on two letters concerning the appellant's TNA activities: J[50]-[51]. His Honour also did not find it to be legally unreasonable for the Authority not to have invited, pursuant to s 473DC(3) of the Act, the appellant to comment on its findings about the events he claimed occurred post April 2010: J[52]-[54]. The primary judge did not accept that the Authority's findings that the appellant was only a low-level supporter of the TNA lacked an evident and intelligible justification: J[55]. His Honour also did not accept that the Authority had failed to consider societal discrimination that might be suffered by the appellant: J[56]-[58]. His Honour further found that the appellant's challenge to the Authority's findings as to whether he would face a real chance of harm on account of being a failed asylum seeker, or on account of his Tamil ethnicity, or on account of his mental health, amounted to no more than an expression of the appellant's disagreement with the Authority's decision: J[59]-[66]. Finally, his Honour did not accept that the Authority approached the review with a pre-determined mind, not open to persuasion: J[67]. 11 It is now appropriate to turn to the grounds of appeal.

D.1 Ground One 12 This ground alleges that the Authority acted unreasonably, and denied the appellant procedural fairness, in not exercising its power under s 473DC(3) of the Act, to invite the appellant to comment on the authenticity of two TNA letters. 13 Ground one, however, proceeds on a misunderstanding of the nature of a Part 7AA review. The starting point in a Part 7AA review is that it proceeds on the papers, without the Authority accepting or requesting new information or interviewing the referred applicant: see s 473DB(1) of the Act. The Authority is not required to notify the referred applicant of specific reservations it has about his case, and is able to disagree with the delegate's evaluation of the material without providing an opportunity to comment: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (at 569 [72] and 570 [75] per Reeves, Robertson and Rangiah JJ). Insofar as this ground appears to invoke principles of procedural fairness, the High Court has confirmed that this is the wrong "lens" through which to view the Authority's decisions: see BVD17 v Minister for Immigration and Home Affairs [2019] HCA 34; (2019) 373 ALR 196 (at 204-5 [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ). 14 Furthermore, there was nothing unreasonable in the Authority not inviting the appellant to comment on the concerns it held about the two letters (referred to at [14] of its reasons), given the scope of a Part 7AA review and the fact that the appellant had had the opportunity to advance, to the delegate, whatever submissions he wished to advance relating to these documents. The Authority's concerns about the letters arose from its own evaluation of their contents, and a comparison with other evidence before it. Finally, the appellant cannot, in any event, establish that the Authority did fail to consider the exercise of its discretion under s 473DC(3) of the Act. This is because the appellant has not identified any basis for that inference to be drawn, and it should not be, in circumstances where the Authority is not required to give reasons for the exercise (or non-exercise) of that power: see BVD17 (at 205-6 [37]-[40] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

D.2 Ground Two 15 This ground alleges that the Authority acted unreasonably in not exercising its power, under s 473DC(3), to put the appellant on notice that, in contrast to the delegate's decision, his credibility was in issue, and to invite his comment. For the same reasons identified in ground one, the Authority was not required to put to the appellant specific reservations it had about his case, including as to his credibility. Moreover, contrary to the suggestion apparent in this ground, the delegate, like the Authority, held concerns about the appellant's credibility and did not accept aspects of his claims on account of those concerns. As the primary judge correctly observed (at J[53]) the appellant was on notice from the delegate's decision itself that his credit was in issue. No error by the primary judge in rejecting this ground is established.

D.3 Ground Three 16 This ground alleges that the Authority "accepted some of the [appellant's] claims but not others", and in these circumstances, was required (in relation to the claims not accepted) to take into account the possibility that those events did occur. The appellant relies on Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. 17 This ground proceeds on a misunderstanding of the Full Court's decision in Rajalingam. A decision-maker is only required to take into account the possibility that an alleged event might have occurred, and ask "what if I am wrong?", if the decision-maker had a real doubt about the correctness of its factual findings. There is no such requirement where the decision-maker has "no real doubt" that a claimed event did not occur: Rajalingam (at 240-1 [64]-[67] per Sackville J, with whom North J agreed at 253 [129]); see also SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 (at 427 [55] and 438 [118]-[119] per Tracey and Foster JJ). Here, there is nothing in the Authority's reasons to suggest it had any doubt about its adverse findings as to the appellant's political profile, whether he was of any ongoing interest to anyone after 2010, or any other matter. No error is established by this ground.

D.4 Ground Four 18 This ground alleges that the Authority failed to consider societal discrimination enunciated in the Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report). No jurisdictional error is shown. The Authority determined (at [7]) that it would take into account the Emmerson Report. At [55]-[58] of its reasons, the Authority then expressly considered whether there was a real chance of serious harm on account of stigmatisation and discrimination, and found that there was not. In doing so, it expressly referred to the Emmerson Report: see [55]. It also discussed that report in relation to the progress of Tamils in Sri Lanka (at [37]), and alleged human rights abuses in Sri Lanka (at [40]). The choice of, and weight to attribute to, country information (such as the Emmerson Report) is a matter for the Authority: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (at [11] per Gray, Tamberlin and Lander JJ). This is a case where the Authority did consider the Emmerson Report, but also relied on other country information before it (such as DFAT Reports), in reaching its conclusions. The appellant's argument ultimately rises no higher than disagreement with the Authority's factual conclusions. No error is established.

D.5 Ground Five 19 Doing the best one can, this ground appears to impugn the Authority's finding at [49] and [54] on the basis that the Authority erroneously applied the "real chance" test. On a fair reading of the Authority's decision (at [49]-[54] and [64]), the Authority did assess whether the appellant faced a real chance of harm when he re-entered Sri Lanka at the airport given he would be identifiable as a failed asylum seeker. The Authority was not satisfied that he did face a real chance of serious harm, having regard to the various pieces of country information that were available. The appellant's argument, as it is particularised, amounts to a contention the Authority should have reached a different factual conclusion. This ground is not made out.

D.6 Ground Six 20 No jurisdictional error by the Authority is established by this ground. It contends the "change of government and the new information of the country information" [sic] has had the result that the Authority's decision "has become legally unreasonable". It amounts to a further expression of factual disagreement with the Authority's conclusions. Also, insofar as particular (a) refers to the "return of the Mahinda Rajapaksa" administration, that is said to have occurred on 26 October 2018, being after the Authority's decision, and thus not something the Authority could have taken into account. Insofar as particulars (b)-(f) refer to the Emmerson Report, this is something that was taken into account by the Authority: see [7].

D.7 Ground Seven 21 This ground alleges that the primary judge erred in failing to find that the Authority "erred in relations [sic] to the making of findings as to [the appellant's] credit/credibility". However, the manner in which the Authority is alleged to have erred in making its credibility findings is unexplained. This is not a case where the Authority has rejected the appellant's claims, or his credibility, in their entirety - the Authority accepted aspects of the appellant's claims and also indicated (at [12]) that it found aspects of his evidence "to be consistent and convincing" (a matter to which it will be necessary to return). However, the Authority did not find the appellant's claims regarding events after his release in April 2010 to be credible. It gave detailed reasons for reaching that conclusion, including that aspects of the appellant's evidence were "vague and unconvincing" and "implausible": see, eg, [19], [22] and [25]. The concerns held by the Authority, and the conclusions that it reached, were open on the material and an intelligible justification for not accepting the claims as to events that occurred after April 2010 was provided. No illogicality or unreasonableness is established.

D.8 Ground Eight 22 This ground alleges that the primary judge erred by failing to find that the Authority did not consider the appellant's claim to fear significant harm in Sri Lankan prisons by reason of being held on pre-trial remand. However, the Authority made findings as to what would happen to the appellant on return to Sri Lanka (at [49]), including that the appellant would be processed at the airport on return, which may take a few hours, and would be interviewed. The Authority was satisfied that the appellant would not be subjected to anything "beyond that routinely experienced by returnees" (at [50]-[51]) and was not satisfied that the appellant would face a real chance of harm during processing (at [54]). Further, the Authority found (at [64]-[66]) that there was no real risk that the appellant would suffer significant harm as a returnee to Sri Lanka. This is not a case where the Authority has failed to deal with the appellant's claims as to what would occur to him on return - rather, it has simply made findings as to what would occur (on the basis of country information), and was not satisfied that this amounted to serious or significant harm. No error is shown. 23 It is then necessary to turn to the more substantive ground, the consideration of which substantially delayed the resolution of this appeal.

E GROUND NINE: AN UNFAIR HEARING? 24 As noted above, the appellant's contention that the hearing below was unfair was the only ground that seemed to me to be of potential substance. At my direction, a transcript of the hearing below was obtained. 25 Upon its receipt, the Minister drew attention to the following aspects of the hearing below: (1) an interpreter was provided to assist the appellant (T2.27-31); (2) at the commencement of the hearing, the primary judge explained to the appellant that his matter was listed for a final hearing and that his Honour was examining whether the Authority's decision was made in excess of its statutory authority or was procedurally unfair - that is, whether it was "unlawful or unfair" (T3.17); (3) the primary judge identified the appellant's eight pleaded grounds and explained that if the Authority's decision was found to involve error, he would send it back to the Authority for further review (T2.34-T3.13); after this explanation, the primary judge asked the appellant "Have you understood what I've said?", to which the Appellant stated "Yes" (T3.20-22). (4) the primary judge ensured that the appellant had received the Court Book and the Minister's written submissions (T3.24-27 and T4.5-8) and admitted the appellant's affidavit evidence (T3.40-T4.3). (5) the primary judge the invited the appellant to make oral submissions (T4.13-15), which the appellant did (T4.21-T6.22); at the conclusion of the appellant's submissions, the primary judge asked if "there is anything else you want to say", to which the appellant said "No" (T6.24-26); (6) after the Minister's representative made submissions, the primary judge invited the appellant to make submissions in reply (T8.32-47); and (7) the appellant did not, during the hearing, indicate to the primary judge that he did not understand the nature of the proceeding or indicate that he was for any reason unable to present his case. 26 This is all correct so far as it goes, but a review of the transcript reveals the following additional matters which should be noted: (1) the record of the whole of the hearing, prior to the delivery of the ex tempore judgment, runs over seven pages of transcript (including the noting of appearances); (2) although the transcript is not definitive, it seems more likely than not that the ex tempore reasons were not translated to the appellant as they were given (this conclusion was not contested by the Minister, and indeed it was fairly accepted that this was likely) (T5.41-6); (3) the primary judge's written reasons were not published and disseminated to the parties until 24 May 2019 - that is, after the appellant had filed his notice of appeal and after the 28-day period for commencing an appeal had expired (see r 36.03 of the Federal Court Rules 2011 (Cth)); (4) during the short hearing, the following exchange occurred before the primary judge (T4.21-T6.3): THE INTERPRETER: I have mentioned in paragraph 14 that I have ongoing problem from Iniya Bharathi, so - but I haven't been given an opportunity to explain more. I'm a strong supporter and speaker for TNA and they actually came to a decision - I have a very low profile with TNA. That's not the case. So I'm being showing up this paper and this media report since I landed in Christmas Island, but Immigration has concluded that they couldn't find any article - any news article or anything online regarding the claim which I have put forward. HIS HONOUR: Mr Applicant, is this a newspaper article that was given to the authority? THE INTERPRETER: Yes. HIS HONOUR: And is it in evidence then? THE INTERPRETER: I have given it to my lawyer. HIS HONOUR: No. There's a big difference. Did you give it to the authority before the authority made its decision? THE INTERPRETER: Are you asking about the interview I had before the department or - - - HIS HONOUR: No. You've got a piece of paper in front of you which purports to be a newspaper. THE INTERPRETER: Yes. HIS HONOUR: Is that a newspaper, a copy of which was given to the authority or to the delegate before they made their decisions? THE INTERPRETER: Yes. I have actually sent them a copy. HIS HONOUR: And so you sent a copy to the authority before the authority decided its case. THE INTERPRETER: I submitted this at the interview with the department. HIS HONOUR: I see. Do you want to show a copy to Ms Wong, please. Is the copy you have, Ms Wong, identify the date or - - - THE INTERPRETER: Yes. There is a date on the top. MS WONG: I think it's 10 April 2010. HIS HONOUR: Yes. There's an 8 April article. No. That's not the same. What's the title of the article, Ms Wong? MS WONG: Your Honour, it is an untranslated article, so it wouldn't - - - HIS HONOUR: I see. MS WONG: - - - be in the court book and - - - HIS HONOUR: No. It wouldn't be in the book. I see. Mr Applicant, is the piece of paper that you're holding up untranslated, is it? THE INTERPRETER: Yes. I submitted an untranslated copy. HIS HONOUR: Yes. Well, Mr Applicant, if it was untranslated, it wouldn't have been much assistance to the delegate or to the court or to the authority. And if you wanted to provide information that was relevant, you had to translate it. It's not apparent to me whether that article was referred to in the authority's - or the delegate's or the authority's reasons. THE INTERPRETER: My lawyer told me that she will actually submit a translated document, so I'm not sure that it has been submitted or not. So it was not - it wasn't my mistake. It was a mistake of the lawyer. HIS HONOUR: Yes. Well, I will have the photocopy that you've shown to Ms Wong marked MFI. I will have it returned to you. The court is not in a position to receive fresh evidence as I'm not - I don't have power to make fresh findings of fact. My power is to confine to deciding whether the authority complied with its statutory obligations. An untranslated document does not assist the court in that exercise and whether it was before the authority or not, it's not relevant. And just before I stop, Mr Applicant, and it's not something that was referred to as I see in any of the grounds that you lodged. Accordingly, I reject … the on the grounds of irrelevance - of not being relevant to the issue… 27 As I explain below, this exchange was, prima facie, somewhat concerning. But before I come to this and why I do not think it ultimately matters, it is worth making a more general point about Ground 9. 28 I noted above that I deferred disposition of this appeal until after the delivery of the High Court's reasons in AAM17. In that case, the respondent had argued that sufficient access to reasons for judgment is integral to the determination of whether to appeal, whether to respond to an appeal and, in either case, to have a fair opportunity to advance one's case. It was submitted that the failure of the primary judge's reasons for judgment to be translated impaired the first respondent's ability to pursue his rights. 29 Ultimately this argument was rejected. As Steward J explained (at [22], with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed), "the final instance of any right or entitlement of either party arising from the primary judge's obligation to afford procedural fairness occurred at the time the parties made their concluding submissions" (emphasis in original). His Honour stated that thereafter, "procedural fairness had no role to play in respect of the matters the subject of the primary judge's decision". 30 Although recognising that, like here, the failure to interpret the ex tempore reasons was, in a general sense, unfair, this does not justify setting aside the Federal Circuit Court's decision: see [40]-[41] per Steward J, with whom Kiefel CJ, Keane, Gordon and Edelman JJ agreed. It is worth further noting that the appellant has now had the primary judge's written reasons for approximately 22 months, as well as a transcript of the hearing for approximately 16 months and has had the opportunity to seek to amend his notice of appeal consequent upon receiving those documents, if he so wished. Accordingly, to the extent Ground 9 is based on a AAM17 argument (which persuaded me to adjourn the disposition of the appeal), it must fail. 31 But this does not address completely the issues raised by Ground 9. I have set out above (at [24(4)]) the exchange concerning MFI1. 32 Before me, the proposed tender of the document that was ultimately marked MFI1 was said to have perhaps related to the Authority's reasons at [14]. That paragraph reads as follows: The submission argues that these letters are probative in establishing the applicant's significant political activity and profile, and the reasons why the Iniya Bharathi group were, and continue to be, particularly interested in him, placing him at risk. However the letters contain information inconsistent with the applicant's evidence. For example, both suggest he was actively involved in (the then most recent) Provincial Council election, in 2012, yet his own evidence at the SHEV interview was that he had declined to become involved in that Provincial Council election due to his fear of the 'militant group'. The letter from Dr Williams also describes the applicant as a party member, but the applicant confirmed at the SHEV interview he was not, and the letter also states the applicant had tried to leave the country several times and this claim was not otherwise raised by the applicant. Furthermore, the letters contain only vague and general statements as to the applicant's activities and I am not persuaded that they indicate a significant political profile as the representative suggests. Nor do they mention any specific detail of the harm or threats they claim the applicant has faced, and they described the feared agents as unknown and unidentifiable armed groups. For these reasons I have concerns about the letters' authenticity and I find them unpersuasive in their content. I do not accept the arguments raised by the representative; these letters have little or no probative value. I afford them little weight. 33 It appears that those letters were before the delegate (one in untranslated form) at the time the decision was made, although the provision of a translated version of the untranslated document had been foreshadowed by the appellant's migration agent. The documents (including a translated version of the previously untranslated document) were before the Authority. It occurred to me upon review of the transcript that MFI1 may well have related to the point being made by the appellant before the primary judge that the Authority should not have come to the conclusion that he had a low profile with TNA but rather was a "strong supporter of the TNA". 34 Consistently with the usual practice of documents marked for identification, MFI1 was returned at the conclusion of the hearing. The Minister's legal representatives did not have it, but when I made inquiries of the appellant, he was able to produce a marked copy. It was provided to me and I admitted it into evidence on the appeal as Exhibit A. It was an untranslated copy, however, the appellant explained at the hearing on 26 March 2021 that Exhibit A described an event that occurred on Election Day in April 2010 and made clear that an incident which the appellant recounted had, in fact, occurred. He also stated that it did not name him personally. 35 It initially occurred to me that without seeking or taking sufficient time to understand its potential relevance, the primary judge may have erred in rejecting the tender of what became Exhibit A before me. 36 The difficulty with this argument only became clear when the appellant provided assistance as to the content of Exhibit A. It became apparent that the only aspect of the appellant's evidence to which Exhibit A could relate (as its contents have been explained on appeal) was the subject of unequivocal acceptance. The Authority's reasons at [17] read as follows: I accept that on election day in April 2010, the applicant witnessed an attack against his TNA candidate by members of an armed group affiliated with Iniya Bharathi and that he was subsequently chased by them, detained, interrogated and tortured for three days. I accept he sustained serious injuries (and still bears scarring) from their mistreatment and from his prior unsuccessful attempt to evade their capture which resulted in his being caught in a van door and dragged on the road. I accept his claims regarding the circumstances of his release and that he was subsequently hospitalised. I found the applicant's evidence on these aspects of his claims to be consistent, forthcoming and compelling. I also take into account that country information sourced by the delegate and referred to in the post-interview submission indicates that Iniya Bharathi (or 'K Pushpakumar') was engaged in land appropriation, recruitment of child soldiers and white van abductions during the war, that he was a member of the Karuna group/TMVP (Tamil Makkal Viduthalai Poolikal) and later, the Sri Lanka Freedom Party (SLFP) and their umbrella United People's Freedom Alliance (UPFA). It is also alleged that his group worked with the Criminal Investigation Department (CID) and other authorities and engaged in, inter alia, abduction, torture and extortion. Having regard to this information I accept the group was engaged in the types of activities the applicant has described. 37 It follows Exhibit A corroborates the occurrence of the April 2010 events that the Authority had already accepted to have occurred. This was confirmed on 6 April 2021 when a translation of Exhibit A was provided to the Court. It did not substantively take the appellant's claims any further. Part of the difficulty for the appellant before the Authority was that the Authority was not satisfied that the appellant faced further problem after the April 2010 event. In light of the findings made by the Authority, any failure by it to admit the document could not "realistically" have made a difference to the decision it made: see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at 445 [45]-[46] per Bell Gageler and Keane JJ). The better view is that the primary judge was correct in concluding that MFI1 was not relevant (and hence it becomes unnecessary to deal with a notice of contention that I allowed the Minister to file). But even if the rejection of the document by the primary judge without any investigation was in error in circumstances where he had an unrepresented litigant in front of him, it did not lead his Honour to conclude wrongly the absence of jurisdictional error by the Authority.

F conclusion of orders 38 For the above reasons, the appeal must be dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.