Federal Court of Australia CVP16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1651 Appeal from: CVP16 v Minister for Immigration and Border Protection [2020] FCCA 73 File number: NSD 112 of 2020 Judgment of: PERRAM J Date of judgment: 16 November 2020 Catchwords: MIGRATION – appeal from Federal Circuit Court – where court dismissed application for judicial review of Immigration Assessment Authority ('the Authority') decision to uphold delegate's refusal of protection visa –where Appellant seeks to advance argument not pursued in court below – where Appellant submits Authority erred in not considering new information 'credible personal information' under s 473DD(b)(ii) Migration Act 1958 (Cth) – where Appellant submits Authority's reasoning illogical and irrational – whether leave to advance new ground granted Legislation: Migration Act 1958 (Cth) s 473DD(b)(ii) Cases cited: Minister of Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 7 Date of hearing: 6 November 2020 Counsel for the Appellant: Mr G Foster Solicitor for the Appellant: Sentil Solicitor Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Mills Oakley Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 112 of 2020 BETWEEN: CVP16 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: PERRAM J DATE OF ORDER: 16 NOVEMBER 2020 THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT PERRAM J: 1 This is an appeal from the Federal Circuit Court of Australia. At the hearing of the appeal, the Appellant's counsel, Mr Foster, abandoned any contention that the primary judge had erred. Instead, he sought to advance an argument that was not advanced in the court below. The proceeding in the court below was a judicial review proceeding seeking to set aside a decision made by the Immigration Assessment Authority ('the Authority') in relation to the Appellant's application for a protection visa. In the court below, the Appellant was represented by a lawyer. 2 The proposed fresh ground of appeal challenges the Authority's determination that information which the Appellant had provided to the Authority was not 'credible personal information' within the meaning of s 473DD(b)(ii) of the Migration Act 1958 (Cth) ('the Act'). The consequence of that conclusion was that s 473DD thereafter barred the Authority from considering the information. The information concerned claims made to the Authority, but not previously to the delegate who initially determined the application or any other earlier official, that the Appellant had done covert work for the Liberation Tigers of Tamil Eelam ('the LTTE') including the infiltration of a group known as the People's Liberation Organisation of Tamil Eelam ('the PLOTE') who were aligned with the Sri Lankan government. The Appellant said that as a result of his penetration of this group he was able to supply the LTTE with information about the movements of three members of the PLOTE. The LTTE used this intelligence to launch a suicide bomb attack against them and the three men were killed. He also says that as a result of this work and his involvement with the LTTE he had subsequent difficulties with another pro-government Tamil group, the Karuna group. He explained that he had not revealed the information sooner because he was concerned that if he revealed his involvement with the LTTE to the Australian authorities it would result both in his repatriation to Sri Lanka and the sharing of that information with Sri Lankan authorities. 3 The Authority was not disposed to accept that this information was 'credible' within the meaning of s 473DD(b)(ii) of the Act. The Appellant wishes to submit that this conclusion is illogical and irrational within the meaning of authorities such as Minister of Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. The Authority invited the Appellant to a hearing and interviewed him about his claims. It asked him to provide specific details about how the information he had gathered allowed the suicide bombing to occur. The Appellant responded that one of the men had told him that the three of them were going to get together for an important meeting the following day because they had some important information. The Authority could see no reason why these men would share this information with the Appellant who was a shopkeeper. I interpolate that in the statutory declaration disclosing the new information there is no detailed evidence about the Appellant's covert role, how he came to work for the LTTE or how he penetrated the PLOTE. 4 The Authority concluded that it was not plausible that the man from the PLOTE would have volunteered information about the meeting to the Appellant. The Appellant complains that the Authority overlooked the fact that he had been working covertly. I do not accept that this was overlooked. Read fairly [3] and [4] of the Authority's reasons is all about the fact of his covert work. What is missing from the Appellant's account, and why I do not think the Authority's conclusion can be described as irrational, is any explanation from him about the circumstances of his becoming sufficiently acquainted with the PLOTE man such that the man would divulge sensitive information. 5 The Authority also thought that if the Appellant had experienced difficulties with the (pro-government) Karuna Group as a result of his work for the LTTE, it was not plausible that he would have evaded the adverse attention of other pro-government para-military groups operating in Batticaloa. His answer to this was that he was living under the protection of a Tamil National Alliance Parliamentarian and any attack on him would have had political consequences. It was with this Parliamentarian's support that the Appellant had been able to obtain a national identity card in 2009 and a passport in 2010. The Authority thought this unlikely. If he had been known to the Karuna group then it would have informed the government about his activities. The Appellant said that the Karuna group had not passed this information on but the Authority did not believe this as it relied on country information which indicated that the Karuna group did pass information on to the government about people involved in the LTTE. On this basis, the Authority concluded that this aspect of the Appellant's evidence was not credible. 6 The Appellant now submits that there was no actual evidence that the information about him working for the LTTE had been passed on by the Karuna group. While this may be true, it is not helpful in demonstrating irrationality on the part of the Authority. The Authority thought that if the Appellant was a covert agent known by the Karuna group (as the Appellant contended) then it was implausible that this information would not have been provided to the government. A lack of evidence that such information was passed on does not impact this analysis. Indeed, the fact no information was provided would be consistent with the Authority's point that there was no information to share because the Appellant was not acting for the LTTE. The same goes for the Appellant's submission that the fact that he had not been apprehended showed the information about his activities had not been passed on to the government. It can also show, however, as the Authority thought, that there was no such information to pass on. 7 I am not persuaded that this is a strong case for a claim for irrationality or illogicality. Indeed, I think it is a weak case. Where there has been no explanation for why the ground was not raised in the court below and the Appellant was represented by a lawyer, I do not think it is appropriate to grant leave for it to be pursued in this Court. Since leave is not granted and there is no other ground of appeal pressed, it follows that the appeal must be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram. Associate: Dated: 16 November 2020