AAQ18 v Minister for Immigration
[2019] FCCA 2161
•16 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAQ18 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2161 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority erred in considering new information considered – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AQU17 v Minister for Immigration [2018] FCAFC 111 DZU17 v Minister for Immigration & Anor [2019] FCCA 491 |
| Applicant: | AAQ18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 14 of 2018 |
| Judgment of: | Judge Driver |
| Hearing date: | 6 August 2019 |
| Date of last submissions: | 29 August 2019 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Foster |
| Solicitors for the Applicant: | Sentil Solicitor & Barrister |
| Counsel for the Respondents: | Ms A Douglas-Baker |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The title of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application the subject of Order 1 made on 27 November 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 14 of 2018
| AAQ18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 December 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the initial submissions of the Minister filed on 14 November 2018.
The applicant is a male citizen of Sri Lanka. He arrived in Australia at Cocos (Keeling) Islands on or about 19 October 2012.[1] The applicant applied for a Save Haven Enterprise Visa[2] on 4 November 2016.[3] He claimed, in summary, to fear harm by the Sri Lankan Army[4] for reason of his imputed pro-Liberation Tigers of Tamil Eelam[5] opinion, and by the Tamil Makkal Viduthalai Pulikal[6] because they had killed his nephew and threatened to kill the applicant.[7]
[1] Court Book (CB) 53
[2] SHEV
[3] CB 33
[4] SLA
[5] LTTE
[6] TMVP
[7] CB 76-77
The delegate refused the applicant's SHEV application on 11 May 2017.[8] The delegate was not satisfied that any of the applicant's claims regarding targeting of him by the TMVP were genuine. The delegate was not satisfied the applicant's claims in respect of the Tamil National Alliance[9] were credible.[10] The delegate found that the chance of the applicant being suspected as a current or former member or supporter of the LTTE, including because of his disability (prosthetic leg), was remote.[11]
[8] CB 161
[9] TNA
[10] CB 171
[11] CB 172
The delegate's decision was referred for review by the Authority.
The Authority made its decision on 12 December 2017.[12] The Authority accepted that the applicant's brother was shot and killed by the SLA in 1989, during the period of the civil conflict. It accepted that it was plausible that, being a young Tamil male, the brother was considered a threat as a potential LTTE member or supporter. The applicant had not claimed that he or his family suffered any adverse consequences as a result of his brother being shot. Further, noting also that this incident occurred some time ago and in the context of a civil war, the Authority was not satisfied that the applicant or his family faced any ongoing adverse attention as a result of this incident or their connection to the brother.[13]
[12] CB 208
[13] at [20]
The Authority accepted that in 1990 the applicant was shot in the right leg, resulting in its amputation below the knee and that some years later he received a prosthetic leg. The Authority accepted that the applicant sustained this injury whilst he was fleeing his hometown with his family as a result of the conflict between the LTTE and the SLA in his home town at that time. The Authority noted that during the protection visa interview, the applicant conceded that he and his family were caught in the cross fire between the SLA and the LTTE and he was not deliberately shot. The Authority rejected the applicant's claim that he was shot by the SLA on suspicion of being an LTTE member, noting that at the time he was fleeing with his family and other civilians to escape the fighting and seek refuge.[14]
[14] at [21]
The Authority accepted that the applicant received some harassment during the civil conflict when he was singled out by the SLA because he had lost his right leg and was therefore suspected of having lost it fighting for the LTTE.[15] The Authority found that, apart from harassment he had received on account of suspicion of having lost his leg while fighting for the LTTE, the only other occasion that the applicant claimed to have faced any further adverse attention by the SLA was in October 2005, when he was taken by the police and Criminal Investigation Division[16] from his home to the CID Office in Batticaloa and interrogated and tortured for six hours because they suspected that he had sustained his injury whilst fighting with the LTTE against the SLA. This alleged incident occurred 15 years after he claimed to have sustained this injury. The Authority was not convinced, having listened to the applicant's oral evidence to the delegate, that the applicant recounted a genuine experience in relation to his claimed interrogation and torture by the SLA in October 2005.[17]
[15] at [24]
[16] CID
[17] at [25]
Whilst the Authority considered it plausible that the applicant may have been questioned by Sri Lankan authorities on some occasions during the period of the civil war on suspicion of having fought with the LTTE, the Authority was not satisfied that these experiences in Sri Lanka following his injury, and those relating to the shooting death of his brother in 1989 by the SLA on LTTE suspicion, gave rise to any ongoing pro-LTTE profile for the applicant. It found that the chance of the applicant being suspected as a current or former supporter of the LTTE, including because of his disability and the murder of this brother in 1989, was remote. Any harassment that he may have received on account of being suspected of having lost his leg while fighting for the LTTE was remote in time, and occurred in the context of a long running civil war.[18]
[18] at [31]
The Authority had regard to country information, including relating to changed conditions in Sri Lanka. It was not satisfied that there was a real chance the applicant would suffer harm from the Sri Lankan authorities because he was a Tamil male from the former LTTE controlled Eastern Province with a prosthetic leg, or because of the death of his brother in 1989, or because of his own experiences with the SLA during the civil conflict.[19]
[19] at [32]
The Authority accepted that the applicant's brother contested elections in 2008 as a candidate for the Eelam People's Revolutionary Liberation Front.[20] It did not accept that the brother went into hiding due to fears of the TMVP. As a consequence of this finding, the Authority did not accept the applicant's claim that he was threatened by the TMVP in relation to his brother's whereabouts.[21] It found that the documents provided by the applicant at the protection visa interview did not support the applicant's claim that his brother had been in hiding since 2008.[22] The Authority considered a police record of a complaint filed by the applicant's brother. It found that it recounted events relating to the claim that the brother had been forced by the EPRLF to contest elections in 2008 and 2010, on dates that post-dated the date of the complaint. No explanation had been provided as to this date discrepancy. In any event, the document purported to be a record of allegations made by the brother and, having regard to the nature of the document (a record of complaint) and the issues it had identified above regarding the matters complained of, and the anomalies in the document, the Authority gave the document no weight.[23] The Authority found that the documents submitted by the applicant raised issues adverse to the applicant's credibility.[24]
[20] EPRLF
[21] at [33]
[22] at [35]-[37]
[23] at [40]
[24] at [41]
The Authority found there were inconsistencies in the applicant's evidence concerning how he came to find out that his nephew had died, the circumstances of his death, and the subsequent court proceedings. The Authority consequently rejected the applicant's claim that his nephew was murdered[25] and was not satisfied that there were any court proceedings relating to any alleged murder.[26] It rejected the applicant's claims that he was threatened by the TMVP at any time during the period after the death of the applicant's nephew and that he was abducted by the TMVP four years after the death.[27] The Authority was not satisfied there was a real chance the applicant would suffer harm from the TMVP or any associated persons because his brother had contested the 2008 local elections as an EPRLF candidate or because his nephew, the son of the brother, had died in 2008.[28]
[25] at [42]
[26] at [43]
[27] at [44]
[28] at [45]
With respect to the applicant's claimed TNA involvement, the Authority did not accept that the applicant, having been represented by migration agents who assisted him with his visa application and who were present at the protection visa interview, would not have raised any credible claim regarding any involvement he had with the TNA or any support that he had provided. The Authority did not accept the applicant had any association with the TNA or that he had supported the local TNA candidate.[29]
[29] at [46]
The Authority considered the applicant's illegal departure claim and was not satisfied that it gave rise to a real chance of persecution[30] or real risk of significant harm.[31]
[30] at [61]
[31] at [66]
The present proceedings
These proceedings began with a show cause application filed on 3 January 2018. The application was amended on 16 April 2018. There are 14 grounds in that application:
1.The IAA erred in deciding that there were not exceptional circumstances to justify considering new information as constituted by the email dated 8 June 2017; the Statutory Declaration dated 8 June 2017; and letter received by the IAA on 27 June, 2017 from Reverend Jegasothy, such error amounting to an error of law;
2.The IAA erred in deciding that it was not satisfied there was a real chance the applicant will suffer harm from the Sri Lankan authorities because he is a Tamil male from the former LTTE controlled Eastern Province with a prosthetic leg, or because of the death of his brother in 1989 or because of his own experiences with the Sri Lankan authorities, such error amounting to an error of law;
3.The IAA erred in deciding that it was not satisfied the applicant's experiences in Sri Lanka following his injury, and those relating to the shooting death of his brother in 1989 by the SLA on LTTE suspicion, gave rise to any on-going pro-LTTE profile for the applicant, such error amounting to an error of law;
4.The IAA erred in failing to give reasons as to why it decided that it was not satisfied the applicant's experiences in Sri Lanka following his injury, and those relating to the shooting death of his brother in 1989 by the SLA on LTTE suspicion, gave rise to any on-going proLTTE profile for the applicant, such error amounting to an error of law;
5.The IAA erred in deciding that the chance of the applicant being suspected as a current or former supporter of the LTTE, including because of his disability and the murder of his brother in 1989, was remote, such error amounting to an error of law;
6.The IAA erred in failing to give reasons as to why it decided that the chance of the applicant being suspected as a current or former supporter of the LTTE, including because of his disability and the murder of his brother in 1989, was remote, such error amounting to an error of law;
7.The IAA erred in concluding the applicant does not have any ongoing [pro]-LTTE profile, such error amounting to an error of law;
8.The IAA erred in deciding that it was not satisfied the applicant has any LTTE association;
9. The IAA erred in not attaching any weight to the police record of a complaint filed by the applicant’s brother, on the basis that the IAA misunderstood the nature of the complaints and the dates of the events subject of the complaints;
10.The IAA erred in law in finding it was implausible that if my nephew was in the condition claimed by me, namely hanging from a noose around the head, my nephew's school would have informed me urgently of this fact, when IAA had no basis to so find: Paragraph 42 of the IAA's decision dated 12 December 2017;
11.The IAA erred in not accepting or being satisfied there was any legal murder case instituted and/or ongoing in relation to my nephew's death;
12.The IAA committed to an error of law in concluding the Applicant did not meet the refugee Criteria under s5H(1) or s.36(2)(a) of the Migration Act 1958 and in finding the Applicant did not meet the Complementary protection grounds set out in s.36(2) (aa) of the Migration Act 1958;
13.The IAA committed an error of law when it affirmed the decision not to grant the Applicant a protection visa; and
14.The IAA committed an error of law when it failed to grant the Applicant a protection visa.
The matter came before me for a show cause hearing on 27 November 2018. At that time I found no merit in Grounds 2-14 but made a show cause order under rule 44.12(1)(b) of the Federal Circuit Court Rules 2001 (Cth) that the Minister show cause why relief should not be granted in relation to Ground 1.
The Minister filed supplementary submissions responsive to the show cause order on 29 July 2019. The applicant and the Minister filed post hearing submissions on 20 and 29 August respectively.
I have before me as evidence the court book filed on 6 March 2018 and the affidavit of Anna Davyskib made on 5 November 2018 providing a document inadvertently omitted from the court book.
Consideration
Applicant’s contentions
The Authority noted at [7] that the applicant provided two documents which amounted to “new information”. The Authority noted at [8] that the applicant was represented at the protection visa interview and was informed that personal information given would not be made available to the Sri Lankan authorities or the public while his protection visa application was being decided; and the applicant was clearly told it was very important to provide the Minister’s Department with complete and accurate claims and if he failed to do so he may not have another chance to provide further information to support his claims.
The two documents in issue are:
a)the applicant’s statement which is four pages long and attaches a medical certificate. The Authority considered the applicant’s statement dated 8 June 2017 at [9], and stated it did:
not accept the Applicant’s statement that he feared disclosing a claim that would have been fundamental to his application for protection, noting that the information is a completely new claim…. that is inconsistent with the claims he has in fact made as part of his PV application. The applicant has not satisfied me that he could not have provided the new claim earlier.
This comment is referable to s.473DD(b)(i) of the Migration Act 1958 (Cth) (Migration Act);
b)The Authority at [7] considered Reverend Dr John Jegasothy’s letter was new information. At [10], the Authority examined the letter and accepted it could not have been provided to the delegate before the decision was made (thereby satisfying s.473DD(b)(i) of the Migration Act). At [11], the Authority was not satisfied that “in the absence of any further explanation by the applicant for not bringing forward this new claim earlier, and noting [the new claim] substantially changes the nature of his protection claims”, the new claim was credible personal information that may have affected the consideration of the applicant’s claims. This is referable to s.473DD(b)(ii);
c)as to s.473DD(a), the Authority mentioned “exceptional circumstances” at [12], [13] and [14]. At [12], the Authority stated, “having regard to the above, I am not satisfied that there are exceptional circumstance to justify considering this new information”. This is referable to s.473DD(a). It is said to be totally unclear whether the Authority was referring to the letter or the statement at [12], since the discussion of “exceptional circumstances” follows references to both the statement at [9] and the letter at [10]. The Authority does not identify which document it refers to in [9], [10], [11] when it refers to “new claims”, but on a reasonable reading the reference to “new claims” appears to be a reference to either the claims the applicant made in the statement where he articulated in full the claims or a reference in general to the nature of the new claims. In either case, the applicant submits that the Authority did not consider s.473DD(a) in the context of the letter (ie, whether there were exceptional circumstances), which it was required to do having been satisfied of s.473DD(b)(i) of the Migration Act; and
d)further, one would expect the Authority to consider subparagraph (b) matters when considering in a given case whether the circumstances are exceptional.[32] In this case the applicant submits that the Authority did not consider subparagraph (a).
[32] BVZ16 v Minister for Immigration [2017] FCA 958 at [9]
References to exceptional circumstances at [13] and [14] are said to be clearly referable to the applicant’s statement and the medical letter, not the letter from the minister of religion.
Minister’s contentions
Ground 1 alleges that the Authority erred in deciding that there were not exceptional circumstances to justify considering new information, being an email dated 8 June 2017, a statutory declaration dated 8 June 2017, and a letter from Reverend Jegasothy received on 27 June 2017.
By email dated 8 June 2017,[33] the applicant provided the Authority with a letter dated 8 June 2017[34] and a statutory declaration.[35] In his letter the applicant claimed that he had not provided his true and complete claims to the Minister’s Department because he was afraid to reveal that he was a long term LTTE member and had received weapons training and did not go to a rehabilitation camp.
[33] CB 196
[34] CB 197
[35] CB 198
The Authority received by email dated 27 June 2017[36] a supporting letter dated 27 June 2017 from Reverend Jegasothy.[37]
[36] CB 202
[37] CB 203
The Authority identified at [4] the applicant's emailed letter and enclosed statutory declaration setting out new protection claims. The Authority considered the applicant's statement that he:
did not provide true, total and complete protection claims to Immigration because he was afraid to disclose that he was a long term member of the LTTE, having received weapons training and also because he did not go to a rehabilitation camp. He maintains that he genuinely fears return to Sri Lanka and serious harm at the hands of “the pro-government Tamil militant group who work with the Sri Lankan security forces” and concludes that he trusts that he will be called for an interview if required.
The Authority discussed the content of the applicant's 8 June 2017 statutory declaration at [5]. It identified that this statutory declaration made a new claim, being that the applicant was in fact a member of the LTTE. Further, the applicant claimed that he was not shot in his right leg in 1990 and his leg was not amputated that year. Rather, this occurred in 1993 when the applicant was shot by the SLA while on duty for the LTTE, and the applicant's leg was amputated at the end of June 1993.
The Authority also noted at [6] that on 27 June 2017, it had received the letter of support from Reverend Jegasothy.
The Authority found the applicant's new claim and Reverend Jegasothy's letter were new information. It considered the applicant's explanation for not having provided the new information to the delegate at [7]. The Authority took into account the applicant having had representation at the protection visa interview, and being clearly informed by the delegate that any personal information he provided during the interview would not be made available to the Sri Lankan authorities or the public, while his visa application was being decided. Further, the applicant was clearly told that it was very important to provide the Minister’s Department with complete and accurate protection claims as early as possible and, if he failed to do so, he may not have another chance to provide further information. At [8] the Authority stated that the applicant waited until June 2017 to raise his new claims. The applicant had not explained why he no longer held the claimed fears.
The Authority did not accept the applicant's statement that he feared disclosing a claim that would have been fundamental to this application for protection, noting that the information was a completely new claim that was inconsistent with the claims the applicant made as part of his visa application. The Authority at [9] was not satisfied that the applicant could not have provided the new claim earlier.
With respect to the letter of support, the Authority noted the date of the letter and that it concerned the applicant's new statutory declaration. The Authority was satisfied that the letter itself could not have been provided to the delegate before the decision was made, although it related to matters pre-dating the delegate's decision and therefore could have been sought earlier. The Authority considered the content of the letter at [10], observing that it did not independently corroborate the applicant's new claim or the applicant's explanation for not disclosing it earlier.
The Authority found at [11] that in the absence of any further explanation by the applicant for not bringing forward this new claim earlier, and noting that it substantially changed the nature of the applicant's protection claims, the Authority was not satisfied that the new claim was credible personal information that may have affected the consideration of the applicant's claims. Having regard to its findings, the Authority was not satisfied at [12] that there were exceptional circumstances to justify considering the new information.
The Minister contends that the above conclusions, read fairly and in context, concern the “new claim information” in both the applicant's statutory declaration and Reverend Jegasothy's letter. The Authority considered this new information by reference to the substance of the requirements in s.473DD(b)(i) and (ii). Expressly, the Authority found it was not satisfied of the requirement in s.473DD(b)(ii). Again, read fairly, the finding at [11] to this effect should be construed as a finding that the new information was not “credible”, for the reasons the Authority had given.
The Authority expressly considered the matters the applicant had advanced as relevant to its application of s.473DD. The Authority further found that it was not satisfied there were exceptional circumstances to justify considering the new information, reflecting the cumulative requirement in s.473DD(a).[38] The Minister submits that no case of jurisdictional error is revealed by this reasoning.
[38] see Plaintiff M174 v Minister for Immigration [2018] HCA 16 at [29]-[31] (Gageler, Keane and Nettle JJ) and at [88] (Gordon J); BRA16 v Minister for Immigration [2018] FCA 127 at [26]; AQU17 v Minister for Immigration [2018] FCAFC 111 at [13]; Minister for Immigration v CQW17 [2018] FCAFC 110 at [36]
The Authority identified that the applicant's statutory declaration also included new information, being an explanation as to an apparent inconsistency raised by the delegate regarding documentation submitted by the applicant. The Authority found that the applicant was aware of the issue in question before the delegate's decision was made, and was given an opportunity to put forward any relevant information. The applicant had not satisfied the Authority that the new information could not have been provided to the delegate before the delegate made the decision, or that it was credible personal information. The Authority was also not satisfied at [13] that there were exceptional circumstances to justify considering the new information. The Minister submits that no case of jurisdictional error is revealed by this reasoning.
The Authority observed that the statutory declaration also attached a letter from a medical practitioner, stating that the applicant had been attending the surgery since May 2013 and confirming his medical history.[39] The Authority was satisfied that the letter could not have been provided to the delegate before the decision was made, although it was unclear why the letter was not sought earlier. While the letter stated that the medical condition relating to the applicant's amputation had been present since 1993, the Authority noted that the applicant had only been attending the clinic since 2013. As there were no other medical records provided to support that the injury and amputation occurred in 1993, and it was plausible that the doctor had recounted the applicant's account of when the injury occurred, the Authority did not consider it provided any independent substantiation of the injury and amputation having occurred in 1993. Having regard to the totality of the circumstances, the Authority was not satisfied at [14] that there were exceptional circumstances to justify considering the new information. The Minister submits that no case of jurisdictional error is revealed by this reasoning.
[39] affidavit of Ms Davyskib at page 10
Resolution
At the show cause hearing on 27 November 2018, I identified as an issue whether the Authority had erred in its application of s.473DD of the Migration Act; specifically, whether the Authority erred by failing to consider as relevant to s.473DD(a) (and/or perhaps also s.473DD(b)) of the Migration Act that the applicant was making a claim against interest, being that he was a long-term active member of a terrorist organisation and, on the basis of this claim, may be denied protection on character grounds and/or indefinitely detained. The parties addressed this issue in their post hearing submissions.
The case bears some factual similarities with DZU17 v Minister for Immigration & Anor.[40] In that case, the applicant had also revealed to the Authority for the first time a deep involvement with the LTTE. In that case I found at [54]:
It was not sufficient to dwell entirely on the explanation for the failure to reveal the claims previously, regardless of how careful and detailed that consideration was (and it was). The Authority clearly gave detailed consideration to s.473DD(b)(i) but the same consideration in relation to s.473DD(b)(ii) is not evident. While that of itself may not be an error going to jurisdiction, the seriousness of the new claims impacted upon the consideration of exceptional circumstances. The Authority needed to consider the credibility of the claims for the purposes of considering exceptional circumstances and it failed to do so. That failure, consistently with BVZ16 v Minister for Immigration[41] and related authorities, constitutes a jurisdictional error and the applicant should receive the relief he seeks.
[40] [2019] FCCA 491
[41] [2017] FCA 958
In this case the Authority was entitled to reach the conclusions it did on the new information provided to it, for the reasons it gave. The distinguishing feature in this case, relative to DZU17, is that the Authority’s field of view in this case was broader, even though the reasons given in DZU17 were extensive. Nevertheless, it is well for the Authority to be cautious in dealing with a new claim of substantial LTTE involvement in circumstances where earlier claims are admitted to be false and the applicant asserts a fear of the consequences of revealing the truth. As I noted in DZU17, a claim of deep or extensive LTTE involvement, if true, can substantially alter a review. While the changeability of claims may count against the credibility of them, a single replacement of claims similar to those made by DZU17 and the present applicant require close attention before a refusal to consider them, not least because of the consequences if the claim is true and the applicant is returned to Sri Lanka. I am satisfied that, in the present case, the consideration of the new information was adequate for the purposes of s.473DD.
The determination of what constitutes exceptional circumstances is an evaluative exercise for the Authority and each case is to be considered on its own facts. The Full Federal Court summarised the law in AQU17 v Minister for Immigration[42] at [13]–[14] per McKerracher, Murphy and Davies JJ as follows:
As a matter of construction, it is undoubtedly correct that s.473DD(a) and s.473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s.473DD(b)(i)) or is new information that 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 (s.473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s.473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s.473DD(a):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s.73DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.
As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s.473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s.473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s.473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s.473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss.473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
[42] [2018] FCAFC 111
In assessing whether the Authority has erred as alleged, it is imperative to pay close attention to the manner in which the applicant advanced his case to the Authority in support of a favourable application of s.473DD. In the letter at CB 197, the applicant relevantly stated:
I did not provide my true, total and complete protection claims to immigration. I was afraid to provide that I was a long term member of the LTTE, that I received weapons training and I did not go to a rehabilitation camp.
I realized that the IAA's review is a final merit review and is a last opportunity to state all of my protection claims. I genuinely fear to return to Sri Lanka and serious harm at the hands of the pro-government Tamil militant group who work with the Sri Lankan security forces.
In the statement appearing from CB 198, the applicant claimed:
The reason for this [provision of a new statement] is that in my original statement given along with my application for SHEV I did not confess that I was a member of the LTTE and I lost my right leg carrying out duties for LTTE because of fear of Australia informing Sri Lankan authorities and eventually being rejected and incarcerated. This was because I was advised by other asylum seekers not to divulge the truth which could lead to indefinite detention or deported.
Further, CB 201, the applicant stated “I know I lied to the department to avoid being marked as a former LTTE cadre ‘a terrorist’ according to many countries which includes Australia. …”
The Authority gave express consideration to the above quoted matters relied on by the applicant. In particular:
a)at [4], it identified the applicant's claim that “he did not provide true, total and complete protection claims to Immigration because he was afraid to disclose that he was a long term member of the LTTE, having received weapons training and also because he did not go to a rehabilitation camp”; and
b)at [7], the Authority quoted the applicant's explanation set out at [4] above, including that aspect of his explanation that referred to indefinite detention or deportation.
At [9], the Authority expressly considered and rejected as not satisfactory the matters in fact relied on by the applicant. In the particular circumstances of this case and having regard to the Authority’s findings, the Authority has not erred by applying an impermissibly narrow construction of the concept of exceptional circumstances and/or by excluding from its consideration any matter or matters relied upon by the applicant of potential relevance to s.473DD. Having regard to the Authority’s identifying each of the aspects of the applicant’s explanation for not having earlier provided the new information, it cannot be said, in context, that the Authority failed to consider that the new claims sought to be advanced by the applicant were against the applicant's interest (in the sense that he was a long-term active member of a terrorist organisation), or failed to consider that the applicant may be denied protection on character grounds and/or indefinitely detained. Plainly, the Authority had regard to these matters but, for the reasons given, was not satisfied that there existed exceptional circumstances within the meaning of s.473DD(a).
Conclusion
The applicant has failed to establish that the decision of the Authority in this case was affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 16 September 2019
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