FEDERAL COURT OF AUSTRALIA AQF19 v Minister For Home Affairs [2020] FCA 967 Appeal from: AQF19 v Minister For Home Affairs & Anor [2019] FCCA 3461 File number: WAD546 of 2019 Judge: YATES J Date of judgment: 10 July 2020 Catchwords: MIGRATION - appeal from decision of Federal Circuit Court to dismiss an application for judicial review of a decision of the Immigration Assessment Authority (IAA) – where IAA affirmed a decision by a delegate of the Minister to refuse to grant a protection visa to the appellant – whether IAA relied on DFAT country information reports such as to give rise to jurisdictional error PRACTICE AND PROCEDURE – application for leave to amend notice of appeal to raise ground of judicial review not raised before Federal Circuit Court Legislation: Migration Act 1958 (Cth) ss 5H(1), 36(2)(a), 36(2)(aa), 473CA, 473DD Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Date of hearing: 29 June 2020 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 31 Counsel for the Appellant: Mr P Bodisco Solicitor for the Appellant: ABU Legal Counsel for the Respondents: Mr G Johnson Solicitor for the Respondents: Sparke Helmore Counsel for the Respondents: The second respondent filed a submitting notice ORDERS WAD546 of 2019 BETWEEN: AQF19 Appellant AND: MINISTER FOR HOME AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: YATES J DATE OF ORDER: 10 JULY 2020 THE COURT ORDERS THAT: 1. Leave to amend the notice of appeal dated 28 October 2019 be refused. 2. The appeal be dismissed. 3. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT YATES J: INTRODUCTION 1 The appellant claims to be a stateless Rohingya born in Myanmar. On 27 April 2017, he applied for a Safe Haven Enterprise (subclass 790) visa (the visa) on the basis that Australia owes him protection obligations arising under the Migration Act 1958 (Cth) (the Act). A delegate of the first respondent, the Minister for Home Affairs (the Minister), refused the application on 5 December 2018. The decision was referred to the second respondent, the Immigration Assessment Authority (the IAA), for review under s 473CA of the Act. On 5 February 2019, the IAA affirmed the delegate's decision. The appellant then applied to the Federal Circuit Court of Australia (the Federal Circuit Court) for judicial review of the IAA's decision. On 9 October 2019, the Federal Circuit Court dismissed the application. 2 The appellant now appeals from the Federal Circuit Court's judgment and orders. His notice of appeal, which is dated 28 October 2019, contains two grounds of appeal. As events have transpired, the appellant no longer wishes to pursue these grounds of appeal. Rather, he wishes to raise a ground of review which he did not advance in the Federal Circuit Court. He requires leave to do so. For the reasons which follow, the leave that is sought is refused. The consequence is that the appeal will be dismissed. Background 3 The appellant made a number of claims to support his application for the visa. One of his claims was that he fears harm if he were to be returned to Myanmar on the basis that he left Myanmar illegally and sought asylum in Australia. 4 When dealing with the appellant's claims concerning his illegal departure, the delegate referred to certain country information obtained from reports published by the Department of Foreign Affairs and Trade (DFAT). One of those reports was entitled "DFAT Country Information Report – Myanmar – January 2017" (also designated as CISEDB50AD28). Relevantly to the present appeal, this report disclosed the following information: 5.35 No reliable data are available regarding the numbers of voluntary and involuntary returnees to Myanmar. Voluntary returnees that receive assistance from the International Organisation for Migration (IOM) receive short – and medium-term reintegration assistance, including (where possible) vocational training assistance and medical care. 5.36 Returnees to Myanmar who departed the country illegally are technically subject to up to five years imprisonment for having illegally crossed a border. DFAT understands that this provision has not been enforced in recent years. For example, in March 2015 a large number of migrant workers were returned to Myanmar from Malaysia, some of whom had departed Myanmar illegally. The Myanmar Government reached an agreement with Malaysian Government to allow their return, and the workers gave their consent. The workers were processed in Yangon, and the government provided them with 10,000 Myanmar Kyat (approximately USD8) to cover transportation costs back to their homes. 5 The delegate made the following findings: The applicant claims to have left the country illegally and without a passport. Country information indicates that while it is possible the applicant could face punishment for his illegal departure, it is unlikely. Myanmar's Ministry of Labour, Immigration and Population is responsible for conducting interviews of returnees; DFAT is not aware of how often these interviews are conducted and what, if any, information is passed to government security agencies. Returnees to Myanmar who departed the country illegally are technically subject to up to five years imprisonment for having illegally crossed a border; DFAT understands that this provision has not been enforced in recent years. For example, in March 2015, a large number of migrant workers were returned to Myanmar from Malaysia, some of whom had departed Myanmar illegally. The Myanmar Government reached an agreement with the Malaysian Government to allow their return, and the workers gave their consent. The workers were processed in Yangon, and the government provided them with 10,000 Myanmar Kyat (approximately USD 8) to cover transportation costs back to their homes. According to the UK Home Office, Myanmar nationals do not require a passport to enter/return to Myanmar, and instead may do so using a Certificate of Identity obtainable from Myanmar Embassies. Voluntary returnees may receive assistance from the International Organisation for Migration, obtaining short and medium-term reintegration assistance, including (where possible) vocational training assistance and medical care. I have found the applicant is a national of Myanmar. I accept he departed the country illegally. However, the applicant's language and appearance make it unlikely that he would be viewed as a member of an ethnic minority and as such I do not consider he would have a profile of additional risk. In view of the country information before me, I am not satisfied there is any real chance of the applicant serious harm on return to Myanmar, on the basis that he may have left the country illegally, now or in the reasonably foreseeable future. 6 It is clear that the delegate's findings in respect of Myanmar's treatment of illegal departees were based, in part, on paras 5.35 and 5.36 of CISEDB50AD28. 7 When the delegate's decision was referred to the IAA for review, the appellant was informed that he could provide a written submission to the IAA on why he disagreed with the delegate's decision and that he could raise any claim or matter that he had raised for the purpose of the delegate's decision, which he considered to have been overlooked. The appellant was also informed that he could provide new information (information that was not before the delegate) in the limited circumstances set out in s 473DD of the Act. There is nothing before me that indicates that the appellant provided any written submission to the IAA in response to its invitation to him, or that he sought to provide any new information relevant to the findings that the delegate had made based on CISEDB50AD28. 8 When dealing with the appellant's claims to fear harm as a failed asylum seeker who had sought protection in a Western country, the IAA found (footnotes omitted): 37. I accept the applicant crossed the border into Thailand by land without a valid passport in 2010 and therefore left Myanmar illegally. I accept that if he returns to Myanmar it will be as the holder of temporary travel documents issued by the Myanmar government and it is highly likely he will be assumed to be a failed asylum seeker who sought protection in Australia. I am satisfied that the applicant will return to Yangon as his mother and siblings continue to reside there. 38. The applicant did not expressly state a fear of persecution for having sought asylum in a Western country. However, he did express a fear of harm as a consequence of having departed Myanmar illegally. 39. There is no reliable data available regarding the numbers of voluntary and involuntary returnees to Myanmar. Voluntary returnees who receive assistance from the international Organisation for Migration (IOM) receive short and medium-term reintegration assistance, including (where possible) vocational training assistance and medical care. 40. Returnees to Myanmar who departed the country illegally are technically subject to up to five years imprisonment for having illegally crossed a border. DFAT understands this provision has not been enforced in recent years. For example, in March 2015 a large number of migrant workers were returned to Myanmar from Malaysia, some of whom departed Myanmar illegally. The Myanmar Government reached an agreement with the Malaysian government to allow their return and the workers gave their consent. The workers were processed in Yangon and the government provided them with funds to cover transport costs back to their homes. DFAT is not aware of any credible reports of mistreatment of failed asylum seekers stemming specifically from their having sought asylum overseas. 9 The IAA then concluded: 41. Based on the above country information I am satisfied that even if the applicant is identified as an asylum seeker who departed Myanmar illegally there is no real chance he will be arrested by authorities on his return or that he will suffer serious harm from Myanmar authorities, the police or the army on his return. 10 Once again, it is clear that the IAA's findings in respect of Myanmar's treatment of returnees who had illegally departed were based, in part, on paras 5.35 and 5.36 of CISEDB50AD28. 11 The IAA also made the following finding: 50. I accept the applicant departed Myanmar illegally and that he will return with temporary travel documents as a failed asylum seeker who has sought protection in a Western country. I accept that he may be questioned at the airport on his return but that any questioning he undergoes does not amount to significant harm as defined in s.36(2A) and s.5(1) of the Act. I am not satisfied that he will be referred to police or the army or arrested on his return as a consequence of having departed illegally or for any other reason. 12 The IAA dealt with other claims for protection made by the appellant, and rejected them. The IAA concluded that the appellant did not meet the requirements of the definition of "refugee" in s 5H(1) of the Act and did not, therefore, meet the requirements of s 36(2)(a). The IAA also considered the complementary protection criteria and concluded that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Myanmar, there was a real risk that the appellant would suffer significant harm. The appellant did not meet, therefore, the requirements of s 36(2)(aa) of the Act. Proposed Ground of appeal 13 The appellant was not legally represented in his application for judicial review before the Federal Circuit Court. He is, however, legally represented in this appeal. As I have said, he no longer wishes to pursue the grounds stated in his notice of appeal as filed, but does seek to rely on a new issue that was not raised in his application for judicial review. To this end, the appellant seeks leave to amend his notice of appeal so that it contains the following ground: His Honour in the Court below erred in failing to find that the IAA has failed to give genuine and realistic consideration to the claims to face harm for having departed Myanmar illegally. Particulars The IAA relied upon Country Information which was extracted from its context and which did not provide a proper basis to ground the proposition that "even if the applicant is identified as an asylum seeker who departed Myanmar illegally there is no real chance he will be arrested by authorities on his return or that he will suffer serious harm from Myanmar authorities, the police or the army upon his return in the context of the "real chance" test. 14 The terms in which this ground is couched are not entirely apt because there could have been no error in the primary judge failing to make a finding he was never asked to make. Nevertheless, the issue that is sought to be raised— a separate and new ground of judicial review— is clear. 15 Noting that the appellant was not legally represented in the Federal Circuit Court, the Minister properly submits that the principal factor relevant to whether he ought to be granted leave to amend his notice of appeal to raise the new ground is its merit. 16 The focus of attention of this new ground is [40] of the IAA's Decision Record and the information contained in CISEDB50AD28. 17 The appellant submits that the information provided to the IAA by CISEDB50AD28 has significant limitations. He draws attention to the fact that para 5.35 of CISEDB50AD28 states that no reliable data are available regarding the number of voluntary and involuntary returnees to Myanmar. He argues that the example provided in para 5.36 of CISEDB50AD28 is of no application to him because, amongst other things, it concerned the Myanmar Government reaching agreement with the Malaysian Government for the return of the workers in question. He submits that CISEDB50AD28: … amounts to what DFAT is aware of as opposed to whether there is a real chance that these prison terms would be applied. The DFAT Report makes mention of significant limitations – including a lack of data – which is missing from the findings transposed into the IAA's decision. 18 The appellant submits that the IAA's failure to acknowledge the "significant limitations" placed on DFAT's findings "amounts to extreme illogicality" in applying the "real chance" test, and that this gives rise to jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]-[132]. 19 The appellant advances an alternative submission based on [40] of the IAA's Decision Record. He submits that the IAA: … failed to consider whether, or to what extent, the terms of imprisonment of five years would be applied to the [appellant], given the limitations noted in the DFAT Report. Given the primacy of the DFAT Report in the [IAA's] reasons for rejecting the [appellant's] claims, that failure amounts to a failure to undertake the statutory review mandated by Pt 7AA [of the Act]; it amounts to a failure to give the matter "proper, genuine and realistic consideration" or to "engage in active intellectual process" in relation to [the appellant's claims]: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; 252 FCR 352 at [45]; Singh v Minister for Home Affairs [2019] FCAFC 3 at [30]. 20 In making his submissions, the appellant seeks to rely on a report issued by DFAT on 18 April 2019 which relevantly states: 5.41 … Returnees to Myanmar who departed the country illegally are technically subject to up to 5 years imprisonment for having illegally crossed a border, and DFAT is aware of, but unable to verify, reports of this provision being enforced in recent years. 21 This information, if it be correct, was published some three months after the IAA's decision and, plainly, could not have been before it for consideration. Analysis 22 I am unable to accept that the IAA failed to give genuine and realistic consideration to the appellant's claims to face harm having departed Myanmar illegally. As the Minister submits, the IAA accepted that the appellant had crossed the Myanmar border with Thailand in 2010 without a valid passport, and that he had, therefore, departed Myanmar illegally. The IAA understood that the appellant advanced a protection claim in connection with that departure. It concluded, however, that there was no real chance that the appellant would be arrested by authorities on his return or that he would suffer serious harm from Myanmar authorities, the police or the army on his return. 23 It is true that, in reaching its findings, the IAA relied on CISEDB50AD28. This reliance, however, does not bespeak error. The IAA was entitled to rely on this information, which was directly relevant to the claim the appellant had made. The accuracy of this information was a matter for the IAA to assess. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (NAHI) the Full Court said at [11]: 11. The appellants' submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as 'country information'. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants' case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on 'country information'. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to 'guidance', as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that. 24 Those observations are pertinent to the present case in so far as they deal with a decision-maker's use of, and reliance on, country information. 25 I do not accept that the information provided by CISEDB50AD28 is as limited as the appellant contends it to be. Paragraph 5.36 of CISEDB50AD28 contains a clear statement of DFAT's understanding that the particular provision of Myanmar law to which returnees (who were illegal departees) are "technically subject" has not been enforced in recent years. The example given appears to be just that. DFAT was not saying that its understanding was based only on the particular example or limited to the particular circumstances referred to in the example. The statement that DFAT made was much broader than the example given. Further, its statement appears to give colour to why DFAT said that such returnees were "technically subject" to the provision in question. In any event, as the Full Court made clear in NAHI, the accuracy of "country information" and the weight to be given to it are matters for the decision-maker—here, the IAA. 26 Because I do not accept that the IAA failed to give genuine and realistic consideration to the appellant's claims to face harm having departed Myanmar illegally, I do not accept that the IAA failed to undertake its statutory review function. 27 Further, I do not accept that the IAA's reliance on CISEDB50AD28 involved illogicality or irrationality in its decision-making, such as to give rise to jurisdictional error. 28 I accept the Minister's submission that the appellant's arguments are really an invitation to the Court to engage in merits review, in that he seeks to have the Court undertake its own analysis about the nature and quality of the country information that was before the IAA. 29 Moreover, the IAA's decision cannot be attacked because subsequent country information, which was not before the IAA, provides somewhat different information. It is not the task of a court, undertaking judicial review, to substitute for the decision-maker's findings of fact, other findings of fact which, in the court's view, should preferably be made. I accept the Minister's submissions that the IAA's reasons for its conclusions at [41] and [50] were open to it, based on the information it had before it. 30 For these reasons, the sole ground on which the appellant now seeks to rely is without sufficient merit to warrant a grant of leave. If leave were to be granted, the ground would fail. Therefore, leave to rely on the ground is refused. Conclusion and disposition 31 As no other ground of appeal is advanced, the appeal will be dismissed. The appellant is to pay the Minister's costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 10 July 2020