AKK17 v Minister for Immigration & Anor
[2017] FCCA 2486
•15 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKK17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2486 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka for political and ethnic reasons – applicant attempting to make a new claim concerning the LTTE which the Authority declined to consider – applicant believed in part but his fears found not to be well-founded – whether the applicant’s new claim was “new information” considered – whether the Authority failed to consider evidence of mental impairment that was before the delegate considered – whether the Secretary of the Department breached s.473CB(1) of the Migration Act 1958 (Cth) considered – consequence of such breach for the review considered – whether the Authority misconstrued the meaning of “exceptional circumstances” in s.473DD of the Migration Act considered – jurisdictional error established – the review function of the Authority was disabled by the failure of the Secretary to provide probative evidence that was before the delegate. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.2, 25D Migration Act 1958 (Cth), ss.5, 5AAA, 36, 45A, 46A, 65, 418, 422B, 424A, 425, 473BA, 473BB, 473CA, 473CB, 473CC, 473DB, 473DC, 473DD, 473DE, 473EA, 473FA, 473GA, 473GB, 473JA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: ABJ17 v Minister for Immigration & Anor [2017] FCCA 1240 |
| Applicant: | AKK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 294 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 13 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 6 January 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 294 of 2017
| AKK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
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 6 January 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the referred applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a Sri Lankan national, born on 7 May 1983 in the town of Munaithivu, in the Batticaloa District of the Eastern Province. He is a Tamil of Hindu faith and, prior to leaving Sri Lanka, he had trained and worked as a goldsmith.
The applicant arrived in Australia in October 2012 as an “unauthorised maritime arrival”[1] and he was interviewed by the Minister’s Department on 26 November 2012 (“screening interview”) and 28 January 2013 (“arrival interview”). The applicant was asked at the arrival interview, amongst other things, why he had left Sri Lanka and he responded that he was a supporter of the Tamil National Alliance (TNA) and his life had been threatened by an “unidentified armed group”.[2]
[1] The applicant stated in his visa application (at Court Book (CB) 47 and 70) that he arrived in Australia on 21 October 2012, however the delegate records the applicant as arriving on 12 October 2012 (CB 119).
[2] CB 13.
On 23 November 2015, the Minister made a determination under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act), permitting the applicant to apply for a protection visa, and on 2 April 2016 the applicant applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa (SHEV).[3] Included with that application was a statement by the applicant dated 23 March 2016, in which he claimed that he had volunteered as a supporter of the TNA in the 2010 parliamentary elections and had been threatened by the Criminal Investigation Department (CID), who told him that if he continued to do what he was doing, the CID officer “will not know what consequences will befall [him]”.[4] However the applicant continued to support the TNA in the 2012 provincial elections. He received numerous threatening telephone calls, telling him not to support the opposition parties. After the elections, the CID came to his home and asked him to come for questioning, however he promised instead to come to their office the next day. The applicant did not report to the CID office and he fled Sri Lanka. The applicant also said that, in 2011, his village was attacked, and he was threatened, by a government-supported group called the “grease devils”. The applicant claimed to fear persecution by the local authorities in Sri Lanka, including the CID, the Sri Lankan Army and the Special Task Force.[5] His application was accompanied by a copy of the applicant’s Sri Lankan national identity card.[6]
[3] CB 23 and following. Note that the term “protection visa” is defined in s.45A of the Migration Act as including a Safe Haven Enterprise Visa.
[4] CB 68 [10].
[5] CB 68-70.
[6] The statement notes at CB 68 that it attaches copies of the applicant’s birth certificate and a certified copy of a certificate of residence and character by the Grama Niladhari, however these documents were later provided by the applicant’s representative – see [7] below.
On 14 September 2016, the applicant attended an interview with the delegate at the Sydney office of the Minister’s Department (“protection visa interview”). The applicant was accompanied by his registered migration agent and was assisted by an interpreter in the Tamil and English languages.
On 15 September 2016, the applicant’s agent provided written submissions to the delegate. The submissions also enclosed further supporting documents, which included a handwritten note in Sinhalese script, written on a pre-printed form with fields labelled in English and Sinhalese headed “Sri Lanka Police Message Form”; a copy of the biographical data page from the applicant’s lost Sri Lankan passport; the applicant’s Sri Lankan national identity card, birth certificate and “Certificate on residence and character issued by the Grama Niladhari” and various letters of reference from Members of Parliament, the Eastern Provincial Council and Manpower Sports Club.[7]
[7] CB 101-115.
By letter dated 30 September 2016, the applicant was notified that his application for a protection visa had been refused. In her decision record, the delegate accepted that the applicant was a Sri Lankan citizen of Tamil ethnicity and Hindu faith from Kaluwanchikudy, Batticaloa; that the applicant would have been subjected to discrimination and harassment during and after the Sri Lankan civil war;[8] that his village was attacked by “grease devils” and he was taken for questioning by the CID in 2011; that he had supported the TNA in the 2010 and 2012 parliamentary elections; and that had received threats by telephone and was told by the CID in 2010 to stop campaigning for the TNA and requested to attend the CID office in 2012.[9] However, the delegate found that the applicant would not be a person of interest arising from his support for the TNA, because the current Sirisensa government “has made significant progress in the reconciliation between the Tamil and Singhalese [sic] population” and appointed the TNA leader to lead the opposition in parliament.[10] The delegate also found that the applicant would not face serious or significant harm as a failed asylum seeker who had departed Sri Lanka illegally and concluded that he was not a person to whom Australia owes protection obligations.
[8] CB 123.
[9] CB 124.
[10] CB 125.
Referral to the Authority
In her letter dated 30 September 2016, the delegate noted that her decision to refuse the applicant’s application for a protection visa was a “fast track reviewable decision” and had already been referred to the Authority for review under Part 7AA of the Migration Act.[11] The delegate noted that she had provided to the Authority a copy of her decision record, “any material you gave to the department …”, any other material the Minister’s Department considers relevant to the review and the applicant’s contact details.[12]
[11] Section 473CA of the Migration Act.
[12] CB 117.
By letter dated 7 October 2016, the Authority wrote to the now self-represented applicant confirming, amongst other things, that the delegate’s decision had been referred to it for review, that the Minister’s Department had provided it with “any material that [he] provided to the departmental officer before they decided to refuse [him] a protection visa” and that it would proceed to make a decision “on the basis of the information sent to us by the department”.[13] The enclosed information sheet also stated that the Minister’s Department would provide the Authority with “any documents [the applicant] provided to the department in connection with the protection visa application” and that it would generally conduct a review “solely on the basis of the information provided by the department”.[14]
[13] CB 135.
[14] CB 138.
In a letter dated 28 October 2016, the applicant claimed for the first time that he had been involved with the Liberation Tigers of Tamil Eelam (LTTE), namely that they had extorted money from him and that he feared forced recruitment (collectively, “new claims”):
Our family members are all Goldsmiths and as we are known to be rich in Sri Lanka, the Liberation Tigers frequently visited and ordered us to give them money to feed the Tigers around the north and east of Sri Lanka. As I was working along with my brother who are famous Goldsmith in Batticaloa, the Tamil Tigers let me work and pay them money if I did not wish to take up military training from them. The Tamil Tigers took all my earnings and my brother and sister wanted to save me from becoming a Tiger militant, permitted [me] to live with them. After I lost both my parents the Tamil Tigers ordered me to move to Mullaitivu to take up military training. I told the Tigers that I would assist them in any other way but not to take up arms training. The Tigers permitted me to work for my brother and to earn more money for them. All my salary was taken away by the Tigers. Karuna after defecting from LTTE ordered that all the Batticaloa Tamils should stop giving money to them. They had very good contacts with the CID and army and knowing that my brother and I had been giving money to LTTE ordered that we should pay him. After LTTE was completely destroyed, the Karuna group members forced me to take up arms training from the army. The CID, STF and army were in search of me to recruit me to the military. This is the reason I started to hide around Sri Lanka.
By letter dated 6 January 2017, the Authority provided its decision in which it affirmed the delegate’s decision to refuse the applicant’s application for a protection visa.
In its reasons, the Authority noted the applicant’s new claims and did not accept that the reasons provided by the applicant in his 28 October 2016 submissions for not raising his new claims earlier amounted to exceptional circumstances. The Authority noted that the applicant had been represented before the delegate, that he had the assistance of an interpreter at his protection visa interview, and that he was told it was important that he give the Minister’s Department complete, personal and accurate protection claims as early as possible. The Authority stated that the applicant had the opportunity at the protection visa interview to clarify, expand on and add to his statement and that he had said he had nothing to add. The Authority held that it was not satisfied that there were exceptional circumstances to justify considering the new claims under s.473DD(a) of the Migration Act.[15]
[15] CB 163.
The Authority accepted that the applicant is a Sri Lankan national of Tamil ethnicity and Hindu faith from Munaithivu in Batticaloa District, as claimed. The Authority also accepted that the applicant had worked for the TNA in the 2010 and 2012 election campaigns and that in 2012 he had received threats over the telephone from unknown persons. However, the Authority did not accept that the applicant was targeted and threatened by the CID in 2010 or that the CID requested he attend their office in 2012. It noted that the applicant had not referred to the CID in his arrival or screening interviews. Nor did the Authority find that the applicant would otherwise be at risk of harm due to his involvement with the TNA, referring to country information regarding the changed political environment in Sri Lanka, what it found to be his relatively minor role in the TNA and the amount of time that had passed since he last worked for the TNA.
In relation to the incident with the “grease devils” in 2011, the Authority accepted that the applicant was involved in protecting his village from attack in 2011 and had come up against the Sri Lankan authorities. It accepted that the CID came to his home, took him for questioning, and threatened him as a result of his activities in protecting his village. However, the Authority did not accept that the applicant was at risk of harm from the CID due to this incident, noting that on the evidence nothing further happened to the applicant and that the “grease man incidents” were confined to July and August 2011.[16]
[16] CB 169 at [28].
The Authority accepted that the applicant had experienced, and continues to experience discrimination on the basis of his Tamil ethnicity, but noted country information that conditions had improved and concluded that he does not have a well-founded fear of persecution for that reason.
The Authority concluded that the applicant did not face a real chance of serious harm or a real risk of significant harm upon return to Sri Lanka and that he therefore was not a person to whom Australia owed protection obligations.
The present proceedings
These proceedings began with a show cause application filed on 1 February 2017. The applicant now relies upon a second further amended application tendered in court by leave on 13 October 2017. The grounds in that application are:
1. The second respondent (“Authority”) failed to consider the applicant’s claims, made in his submissions dated 28 October 2016, that he had been subjected to extortion by the LTTE and threatened with forced recruitment by the Kaurna Group and Sri Lankan authorities.
Particulars
The Authority misconstrued section 473DD of the Act as preventing it from considering a new claim or claims for protection made by the applicant.
“New information” refers only to evidentiary material or documentation that was not before the first respondent when making his decision under section 65 of the Act.
2. Further or in the alternative, the Authority failed to consider corroborative evidence that was given to the delegate before she made the decision under section 65 of the Act.
Particulars
The Authority failed to consider a letter from “N. Indrakumar, Member of Provincial Council Eastern Province” dated 28 November 2012.
3. In the alternative to 2, if the Secretary failed to give the second respondent evidence that had been given to the delegate before she made the decision under section 65 of the Act, the applicant was denied the natural justice contemplated by the Act and a pre-condition to the valid exercise of the Authority’s function of review had not been met.
4. Further or in the alternative to 1, 2 and 3, the Authority failed to consider the applicant’s claim to the delegate that his capacity to give evidence was affected by mental impairment.
7. In the alternative to 1, 2, 3 and 4, the Authority misconstrued the term “exceptional circumstances” in section 473DD of the Act and failed to consider all of the matters capable of constituting the circumstances of the applicant’s case as exceptional.
Ground 2 was not pressed.
I have before me as evidence:
a)a Notice to Admit Facts dated 28 June 2017;
b)an affidavit by the applicant made on 28 June 2017, annexing documents produced by the Minister’s Department and the Authority in response to a Freedom of Information request;
c)the affidavit of Lecia Stark made on 12 April 2017, to which is annexed a transcript of the applicant’s protection visa interview with the delegate on 14 September 2016; and
d)the book of relevant documents filed on 21 March 2017.
Both the applicant and the Minister filed written submissions and also made oral submissions through their counsel at the trial of this matter on 13 October 2017. I have been assisted by those submissions.
Consideration
This case raises important issues concerning the operation of the Authority. In particular, it draws attention to the limited review role played by the Authority, the limited nature of the material available to it for the performance of its statutory function and the importance of the Authority having before it all of the material which was before the delegate.
The case falls to be considered by reference to the statutory framework under which the Authority operates. That framework has been addressed a number of times in previous decisions but it is appropriate to revisit it here.
The Fast Track Review Process (FTRP) was introduced by item 21 of Schedule 4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), which enacted Part 7AA of the Migration Act. It commenced on 18 April 2015.
The purpose of the FTRP, as explained in s.473BA of the Migration Act, is to provide “a limited form of review of certain decisions … to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.” Such applicants are known as “fast track review applicants” (defined in s.5(1) of the Migration Act as a “fast track applicant who is not an excluded fast track review applicant”). Decisions to refuse to grant protection visas to such persons are known as “fast track reviewable decisions” (defined in s.473BB as, relevantly, “a fast track decision in relation to a fast track review applicant”). Subject to certain exceptions that are not relevant for present purposes, a “fast track decision” is defined in s.5(1) as a decision to refuse to grant a protection visa to a fast track applicant.
Division 8 of Part 7AA establishes the Authority, the body which conducts reviews of such decisions. The Authority is established within the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT) and consists of the “President” (of the AAT), “Division head” (that is, the head of the Migration and Refugee Division of the AAT), “Senior Reviewer” and “other Reviewers”.[17] Those persons are to exercise the powers, and perform the functions, of the Authority under Part 7AA.[18]
[17] Sections 473JA(1), (2)
[18] Section 473JA(3)
Division 2 of Part 7AA (ss.473CA-473CC) sets out the procedure for referring a fast track reviewable decision to the Authority.
Section 473CA imposes a duty on the Minister to refer such a decision to the Authority “as soon as reasonably practicable after the decision is made”.
At the same time as, or as soon as reasonably practicable after, the referral,[19] the Secretary of the Minister’s Department (Secretary) must give to the Authority certain material (known as “review material”) in respect of each decision.[20] Such material comprises the following:
a)the delegate’s statement of reasons;
b)material provided by the “referred applicant” (defined in s.473BB as an applicant for a protection visa in respect of whom a fast track reviewable decision is referred to the Authority) to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”; and
d)the referred applicant’s contact details.
[19] Section 473CB(2)
[20] Section 473CB(1)
It is important to note that s.473CB(1) imposes an obligation on the Secretary, not the Authority. As will be developed below, this is a factor in support of the Minister’s construction of that provision which does not impose, expressly or impliedly, an “inviolable limitatio[n] or restraint”[21] on the exercise of the Authority’s decision-making power in s.473CC(2). The Minister’s position is that any breach by the Secretary of the obligation in s.473CB(1) does not, itself, amount to a jurisdictional error by the Authority in the same way that any breach by the Secretary of the corresponding duty in s.418(3) does not, itself, amount to a jurisdictional error by the AAT.[22]
[21] Wei v Minister for Immigration (2015) 257 CLR 22 at 32 [24] per Gageler and Keane JJ, referring to R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248 per Dixon J (as his Honour then was).
[22] Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 609 [21] per Gleeson CJ, 614 [45]-[46], 615 [48] per Gaudron J, 641-642 [179]-[180], [183] per Gummow J, 659 [251] per Hayne J; WAGP v Minister for Immigration (2006) 151 FCR 413 at 422-423 [51], 424 [63], 425 [64] per Moore, North and Mansfield JJ; SZOIN v Minister for Immigration (2011) 191 FCR 123 at 137 [65]-[66], 138-139 [73] per Bennett and McKerracher JJ. Of course, it is “conceivable that a failure by the Secretary to comply with the requirements of [s 473CB(1)] might, in some cases, result in or contribute to jurisdictional error on the part of the [Authority]”: Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 614 [45] per Gaudron J. See also BBS15 v Minister for Immigration (2017) 248 FCR 159.
Section 473CC(1) requires the Authority to “review” “a fast track reviewable decision” referred to it under s.473CA. In the present statutory context, the nature of the powers conferred on the Authority indicates that it must, subject to Part 7AA, conduct a review of the delegate’s decision (as opposed to his or her reasons for decision), without conducting an interview[23] and without accepting or requesting new information.[24] Thus, if the Authority considers that the fast track reviewable decision is the correct one, because, for example, the referred applicant cannot satisfy the criteria for the grant of a visa in s.36(2), it must affirm the decision pursuant to s.473CC(2)(a) even if it does so for reasons other than those given by the delegate. The Authority is empowered to do so without drawing those reasons to the attention of an applicant in advance of its decision.[25]
[23] Section 473DB(1)(b).
[24] Section 473DB(1)(a).
[25] See, for example, DBE16 v Minister for Immigration [2017] FCA 942 at [61], [65] per Barker J; BMB16 v Minister for Immigration & Anor [2017] FCCA 203 at [41], [98]-[99] per Judge Brown (affirmed on appeal on a more limited basis: BMB16 v Minister for Immigration [2017] FCAFC 169).
Division 3 of Part 7AA contains provisions dealing with the conduct of reviews by the Authority. It commences with s.473DA(1), which provides that Division 3, together with ss.473GA and 473GB (which are not relevant for present purposes), “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority].” The language used in this provision is different from that which is used in s.422B(1). Unlike that provision, s.473DA(1) contains a “global reference to the conduct of reviews by the [Authority]”[26] and does not contain the words of limitation “in relation to the matters it deals with”. It supplies the “plain words of necessary intendment”[27] required to exclude the hearing rule at common law.
[26] WAJR v Minister for Immigration (2004) 204 ALR 624 at [57] per French J (as his Honour then was). See also Minister for Immigration v SZMOK (2009) 257 ALR 427 at [9] per Emmett, Kenny and Jacobson JJ.
[27] Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ.
Section 473DC(1) empowers the Authority to get “new information”, that is, “any documents or information” that “were not before the Minister when [he] made the decision under section 65” and that “the Authority considers may be relevant”. Section 473DC(3) provides that, without limiting subsection (1), the Authority “may invite a person, orally or in writing, to give new information” either “in writing” or “at an interview”. However, s.473DC(2) states that the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.”
If the Authority gets new information, s.473DD prevents it from considering that information unless:
a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
i)was not, and could not have been, provided to the Minister before the Minister made the decision under s.65; or
ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Section 473DE imposes an obligation on the Authority similar to that which is imposed on the AAT by s.424A, save that it requires particulars of new information to be given only in the circumstances described in subparagraph (1)(a), subject to the exceptions in subsection (3).
Division 4 of Part 7AA contains provisions in relation to the preparation of the Authority’s statement of reasons. Section 473EA(1) provides that, if the Authority makes a decision on a review under Part 7AA, it must make a written statement that:
a)sets out the decision of the Authority on the review;
b)sets out the reasons for the decision; and
c)records the day and the time the statement is made.
It should be noted that, while s.473EA does not expressly provide that the Authority is required to set out the findings on any material questions of fact and to refer to the evidence or any other material on which the findings of fact were based, s.25D of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) fills that gap by requiring the Authority to do the same.[28]
[28] Section 473EA(4)(b) may suggest that the Migration Act does not evidence the contrary intention for the purposes of s.2(2) of the Acts Interpretation Act.
Division 5 of Part 7AA deals with the exercise of the Authority’s powers and functions. Section 473FA provides that the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”[29] and that the Authority, in reviewing a decision, “is not bound by technicalities, legal forms or rules of evidence”.[30]
Ground 1 – did the Authority fall into jurisdictional error in failing to consider the applicant’s claims, made in his submissions dated 28 October 2016, that he had been subjected to extortion by the LTTE and threatened with forced recruitment by the Karuna group and the Sri Lankan authorities?
[29] Subsection (1).
[30] Subsection (2).
In the particulars to this ground, the applicant asserts that the Authority misconstrued s.473DD of the Migration Act as preventing it from considering a new claim or claims for protection made by the applicant. The applicant contends that “new information” refers only to evidentiary material or documentation that was not before the delegate when making his decision under s.65 of the Migration Act.
As explained at [34] above, s.473DD of the Migration Act provides as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Section 473BB of the Migration Act provides that the term “new information” has the meaning given by s.473DC(1) of the Migration Act, which provides:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
The Federal Court has interpreted s.473DC(1) of the Migration Act as providing that “new information” means documents or information that were not before the delegate and that the Authority considers may be relevant to the “claimed fear of persecution”.[31]
[31] CDZ16 v Minister for Immigration [2017] FCA 967 at [8] per Logan J; BVZ16 v Minister for Immigration [2017] FCA 958 (BVZ16) at [6] per White J.
However, the applicant submits that the Authority misconstrued “new information” in s.473DD as applying to a claim or claims made by the applicant, as opposed to documents or evidentiary material. Though there may not always be a bright line distinction between claims and the evidence in support thereof, the applicant submits that the distinction remains and is central to distinguishing between the merits and legality of a decision. The applicant says that there are several reasons why “new information” in s.473DD should not be taken to include a claim or claims made for the first time to the Authority.
I prefer the Minister’s submissions on this ground which are consistent with my own views previously expressed.[32] I have not changed those views.
[32] CVK16 v Minister for Immigration & Anor [2017] FCCA 235 at [41]-[45].
The expression “new information” is defined in s.473DC(1) as documents or information that were not before the Minister when he made his decision under s.65 and that the Authority considers may be relevant. The word “documents” and “information” are non-technical words that are used in s.473DC(1) in their ordinary English sense. A “document” cannot merely be a reference to a piece of paper devoid of content. Rather, it refers to “[s]omething written … which provides evidence or information or serves as a record.”[33] If that were not so, then a duplicate of a document before the delegate that is then given to the Authority would comprise “new information”.[34] The word “information” refers to “knowledge communicated or received concerning some fact or circumstance”[35] or, as the applicant suggests in the final sentence in [32] of his submissions, the existence of evidentiary material.[36] However, as the Authority is not bound by the rules of evidence,[37] the word “evidence”, in the context of reviews conducted by that body, is apt to mislead—unless, as expressed by Logan J in Sun v Minister for Immigration,[38] it is “intended to be understood at a general level of abstraction, rather than in a more narrow, technical sense.” At a general level of abstraction, a document setting out new reasons why a referred applicant contends that he or she is a person to whom Australia owes protection obligations (that is, his or her claims for protection) should be treated as part of his or her “evidence”. In the context of reviews by the Authority, a distinction between new claims and new evidence would be artificial. In all cases, they will comprise “new information” as defined in s.473DC(1).
[33] Shorter Oxford English Dictionary (6th ed, 2007), “document” (noun), sense 3.
[34] That would be at odds with ABJ17 v Minister for Immigration & Anor [2017] FCCA 1240.
[35] See, for example, Tin v Minister for Immigration [2000] FCA 1109 at [53] per Sackville J.
[36] Cf SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at 1196 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
[37] Section 473FA(2).
[38] (2016) 243 FCR 220 at 224 [8].
Also, as I pointed out in CVK16 at [45] a claim can only be advanced, and established, by giving information to the decision-maker about the factual circumstances pertaining to the non-citizen and his or her receiving country:
… [A] “claim” does not exist in a vacuum. It only carries with it meaning capable of consideration if it is accompanied by asserted facts and circumstances. Those facts and circumstances are undoubtedly “information” for the purposes of ss.473DC and 473DD of the Migration Act.
This view of a “claim” is also reflected in s.5AAA(2) of the Migration Act, which makes it the responsibility of a non-citizen “to specify all particulars of his or her claim to be such a person to whom Australia owes protection obligations and to provide sufficient evidence to establish the claim.”
The same may be said about the applicant’s rather narrow reading of the word “material” at [30] of his submissions. A new claim articulated in a document that is given to the Authority is, plainly, material. And if it otherwise meets the description in s.473DC(1), it is new information.
Further, and as I pointed out in CVK16 at [44], the applicant’s argument, if accepted, would completely undermine one of the objects of Part 7AA of the Migration Act. The FTRP was enacted so as to encourage fast track applicants to advance their claims for protection at the earliest possible time in the visa application process.[39] It would be inimical to that purpose of the legislation if a new claim were required to be considered by the Authority without addressing the questions posed by s.473DD.
[39] See, for example, Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [893], [920].
I reject Ground 1.
Ground 3 – the failure by the Minister’s Department to provide a document to the Authority
This ground relates to a letter from “N Indrakumar” who is the “Member of Provincial Council, Eastern Province”, dated 28 November 2012 (the letter). This was provided to the delegate at the applicant’s protection visa interview.[40] For some reason, the letter was not placed on the applicant’s protection file.[41] The letter has been produced by the Minister’s Department in response to the applicant’s Freedom of Information request.[42]
[40] Transcript, page 28 and applicant’s affidavit of 28 June 2017 at [5].
[41] Applicant’s affidavit of 28 June 2017 at [6].
[42] Annexure AKK17-2 (page 10) to the applicant’s affidavit of 28 June 2017.
The Minister concedes that the letter was not given by the Secretary to the Authority as required by s.473CB(1)(b) of the Migration Act.
The applicant contends that the failure by the Secretary to comply with his statutory obligation disabled the review process before the Authority. The Minister contends, conversely, that the Secretary not having given the letter to the Authority did not, at least in the circumstances of this case, amount to a jurisdictional error in the decision under review.
In my view, and consistently with the applicant’s submissions on this ground, jurisdictional error has been established. My reasons follow.
In SAAP v Minister for Immigration, [43] in the context of the statutory procedures applicable to the then Refugee Review Tribunal, McHugh J stated:
… because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no “partial compliance” with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not.
[43] [2005] HCA 24; (2005) 228 CLR 294 at [77]. See also Hayne J at [208] and Kirby J at [173].
The applicant contends that, in the context of Part 7AA of the Migration Act, strict compliance with s.473CB is an essential pre‑condition to the limited procedural fairness afforded to the referred applicant under s.473DB(1) of the Migration Act. In the absence of exceptional circumstances, the Authority is only to consider the review material referred by the Secretary, and the Secretary “must” have provided the Authority with all of the “material provided by the referred applicant to the person making the decision before the decision was made”. If this step has not been taken, then as a general principle, a condition to the valid conduct by the Authority of a review under s.473CC(1) has not been met.
The applicant further asserts that it is not to the point that responsibility may be allocated to the Secretary for the failure to give the Authority all of the material which the applicant had provided to the delegate, just as, in considering whether there is a breach of s.425 of the Migration Act,[44] it is not to the point that the AAT in conducting a Part 7-reviewable decision may not be aware that there are errors in interpretation,[45] that an applicant’s ill health may effect his or her capacity to give evidence,[46] or that documents provided to the Minister’s Department had not been forwarded to it under s.418 of the Migration Act.[47] Compliance with the statutory requirements is to be assessed objectively and establishing “fault” is not a prerequisite for constitutional writ relief.[48] Significantly, a referred applicant under Part 7AA (unlike an applicant for review under Part 7 of the Migration Act) is prima facie only entitled to rely upon the review material referred by the Secretary under s.473CB and is denied that opportunity if there is no compliance with that provision.
[44] Note that s.418, unlike s.473CB of the Migration Act, only requires the Secretary to provide the Tribunal with documents it considers relevant.
[45] SZRMQ v Minister for Immigration [2013] FCAFC 142; Perera v Minister for Immigration [1999] FCA 507; (1999) 92 FCR 6.
[46] Minister for Immigration v SCAR [2003] FCAFC 126; (2003) 128 FCR 553.
[47] BBS15 v Minister for Immigration [2017] FCAFC 61 at [75], [106] per Griffiths, Kerr and Farrell JJ. Although s.425 is different in context and terms to s.473CB, it is relevant to note that the Authority in the present case represented to the applicant that the Minister’s Department would “provide the IAA with … any documents [he] provided the department in connection with the protection visa application” and that the Minister’s Department had provided it with “any material that [he] provided to the departmental officer before they decided to refuse you a protection visa”. The Authority created the expectation that all of the documents had been given to it and the applicant was denied the opportunity to either give that document to the Authority or request the Authority get the information from the Minister’s Department.
[48] See SCAR op cit at [37] per the Court (Gray, Cooper and Selway JJ).
It is important to note that s.473CB(1), like s.418(3), imposes a duty on the Secretary, not the Authority. The Minister asserts that this is a significant factor in support of a construction of s.473CB(1) that does not impose, expressly or impliedly, an inviolable limitation or restraint on the exercise of the Authority’s decision-making power in s.473CC(2)(a). It was also a material consideration to which the High Court in Muin v Refugee Review Tribunal and the Federal Court in WAGP v Minister for Immigration and SZOIN v Minister for Immigration had regard. In each case, it was held, relevantly, that a breach of s.418(3) does not, itself, amount to jurisdictional error.[49] This proposition was recently affirmed by Griffiths, Kerr and Farrell JJ in BBS15 v Minister for Immigration.[50] The question is whether s.473CB(1) should be read in a different way.
[49] Muin v Refugee Review Tribunal (2002) 190 ALR 601 at 609 [21] per Gleeson CJ, 614 [45]-[46], 615 [48] per Gaudron J, 641-642 [179]-[180], [183] per Gummow J, 659 [251] per Hayne J; WAGP v Minister for Immigration (2006) 151 FCR 413 at 422-423 [51], 424 [63], 425 [64] per Moore, North and Mansfield JJ; SZOIN v Minister for Immigration (2011) 191 FCR 123 at 137 [65]-[66], 138-139 [73] per Bennett and McKerracher JJ.
[50] (2017) 248 FCR 159 at 174 [93], 175 [105].
In my opinion, those authorities can be distinguished readily (and in any event, are not strictly binding upon me) because the Court is here dealing with a different statutory regime. Reviews conducted by the AAT follow an application by a visa applicant for review of a decision by a delegate. The review applicant has the opportunity to submit more material and, if a favourable decision cannot be made on the papers, is entitled to a hearing where issues can be addressed, including the material that was before the delegate and is before the AAT. The review by the Authority, in contrast, is completely different. The process is not initiated by a visa applicant but by an automatic referral from the Minister’s Department. Generally, the Authority is restricted to the material that was before the delegate which is referred by the Secretary. Generally, the visa applicant cannot provide new information to the Authority and is not entitled to a hearing. Generally, reviews are undertaken on the papers which are made available by the Secretary. In my opinion, just as a Tribunal review may be disabled by fraud by a migration agent,[51] so also a review by the Authority may be disabled by the failure of the Secretary to refer to the Authority material that was before the delegate. This is because such a failure can prevent the Authority from performing its obligation under s.473CC of the Migration Act consistently with s.473DB.
[51] SZFDE v Minister for Immigration (2007) 232 CLR 189
I accept that the Authority is not required to consider every document provided to it as a pre-condition to exercising its decision making powers.[52] Section 473DB(1) requires the Authority to review a decision referred to it under s.473CA “by considering the review material provided to it under s.473CB”. If a document is omitted by the Secretary which is inconsequential, the Authority will not be disabled from performing its statutory duty. If, however, the document is significant and material to the outcome of the review, its omission may well disable the review function.
[52] Cf Applicants S487/2002 v Minister for Immigration [2003] FCA 1309 at [32] per Sackville J.
In the present case, the Minister contends that the document in issue is of no consequence because it is similar to another letter reproduced at CB 113. Further similar information is reproduced at CB 112.
I do not accept that submission. The letter in issue must be considered by reference to the Authority’s reasons at [20] where it stated:[53]
I have difficulty, however, in accepting that the applicant was targeted and threatened by the CID for that involvement in 2010 or that the CID requested that he attend at their office following the 2012 campaign. His description of the incident in 2010 was generally undetailed and so similar to his written claims as to suggest an element of rehearsal. As noted above, it was not until his SHEV application and interview that the applicant referred to incidents and threats from the CID. In both his earlier interviews he referred only to receiving threatening phone calls from unidentified people after the 2012 election campaign. Similarly, the three letters the applicant has provided in support of his claims all state that he was threatened by an “unknown” opponent group or armed groups. But even if I were to accept that the applicant was threatened by the CID following his involvement with the 2010 election campaign, this had no repercussions for the applicant. With the exception of the unrelated grease man incident in 2011, the applicant had no further dealings with the CID - until the 2012 election he did not claim to have been further questioned or detained by the CID or other authorities or in any way to have come to the attention of the authorities. Notwithstanding his claim to have stayed with two friends following the visit by the CID in 2012 to request he attend at their offices, I consider that if the CID had wanted to question the applicant they would have managed to locate him in the period after the election on 8 September and before he left from Kaluwanchikudy on 3 October 2012. I also note that in his arrival interview the applicant stated he started arranging for his travel to Australia during the election period in September 2012 which undermines his claim that the catalyst for his decision to leave Sri Lanka was the request by the CID that he attend for questioning. I am not satisfied that at the time he left Sri Lanka the applicant was a person of interest to the CID or Sri Lankan authorities as a result of his work for the TNA in the 2010 and 2012 election campaigns. (emphasis added)
[53] CB 166-167.
Of significance are the words in bold set out above. The letter in issue, unlike the other material to which the Minister referred in his submissions, provides a possible answer to why there were no repercussions for the applicant, namely that he went into hiding. That is set out expressly in the letter. If the letter had been before the Authority, it would have had to take into account that explanation. That could have impacted upon the outcome.
I conclude that the review function by the Authority was disabled by the failure of the Secretary to refer the letter to the Authority with the review material and that jurisdictional error has been established by this ground.
It follows that the applicant should receive the relief he seeks.
It is not strictly necessary to consider the remaining grounds but for completeness I will do so.
Ground 4 - did the Authority fail to consider the applicant’s claim to the delegate that his capacity to give evidence was affected by mental impairment?
At the protection visa interview, the applicant’s agent advised the delegate that the applicant had been seeing a counsellor at the Service for Treatment and Rehabilitation of Torture and Trauma Survivors and had been feeling suicidal. The agent said that the applicant “may not necessarily be able to remember all the events of what’s happened in the past and be able to discuss them with [the delegate] right now”.[54] However, even though the applicant’s agent had specifically adverted to the possibility that the applicant’s capacity to give evidence may have been effected by his mental condition, this was not a matter considered by the Authority in relying upon what the applicant had said at the protection visa interview.
[54] Transcript at page 27, lines 25-27.
I accept the Minister’s submissions in relation to this ground.
First, the applicant’s statement at the interview before the delegate was not a substantial, clearly articulated argument relying upon established facts[55] or a claim that arose with tolerable clarity.[56] It was, rather, an issue that was raised in fairly hypothetical terms (“[s]o he may not necessarily be able to remember all the events of what’s happened in the past and be able to discuss them with you right now”).[57] The applicant was given an opportunity to provide a report in support of his asserted claim (the provision of which was foreshadowed by the applicant’s then representative), but he failed to do so, even in his submissions to the delegate dated 15 September 2016.[58]
[55] Cf Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at 1092 [24] per Gummow and Callinan JJ (Hayne J agreeing at 1102 [95]); NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at 18-20 [58]-[61] per Black CJ, French and Selway JJ.
[56] Minister for Immigration v SZRMA (2013) 219 FCR 287 at 300-301 [70]-[71] per Mansfield, Gilmour and Foster JJ; NAVK v Minister for Immigration [2004] FCA 1695 at [15] per Allsop J (as his Honour then was).
[57] Transcript at page 27, lines 25-27.
[58] CB 95-100.
Secondly, and in any event, it cannot be shown by the applicant that his asserted claim was overlooked by the Authority. At various points in its reasons, the Authority stated that it had listened to the recording of the interview. At [3],[59] the Authority stated that it had regard to the material provided by the Secretary pursuant to s.473CB of the Migration Act. The proper inference to draw from the Authority’s not having referred, in so many words, to the representative’s statement was that it did not consider the statement to be material.[60]
Ground 7 – did the Authority misconstrue the term “exceptional circumstances” in s.473DD and fail to consider all of the matters capable of constituting circumstances of the applicant’s case as exceptional?
[59] CB 162.
[60] Cf Minister for Immigration v Yusuf (2001) 206 CLR 323.
In BVZ16,[61] the appellant had been referred to the Authority as a “fast track review applicant” and provided it with a letter, comparable to the present applicant’s submissions dated 28 October 2016, making further claims and attempting to explain why the same was not mentioned previously to his legal representative or to the delegate. As in the present case, the Authority stated in effect that it did not accept his explanation for not mentioning those matters earlier and therefore that it was not satisfied there were exceptional circumstances to justify considering the new material under s.473DD of the Migration Act. White J held that whether there are “exceptional circumstances” requires consideration of all the relevant circumstances. The question must be considered in the context of Part 7AA, and exceptional circumstances would be those which are out of the ordinary course and which would justify the new information being considered.[62] His Honour held that, by limiting its consideration of whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having provided the information earlier, the Authority applied an unduly narrow interpretation of the term “exceptional circumstances” and therefore constructively failed to exercise its jurisdiction.[63]
[61] Op cit at footnote 31. Note that the decision of White J was approved by the Full Federal Court in Minister for Immigration v BBS16 [2017] FCAFC 176 at [102]-[106].
[62] BVZ16 at [41]-[43].
[63] BVZ16 at [46]-[48].
The applicant contends that the reasoning of the Federal Court in BVZ16 applies equally to the Authority’s reasoning at [5]-[7] of its reasons:[64]
The applicant has provided a number of explanations for not raising these claims earlier in the protection process. Firstly, he states he was in fear for his life as a result of having travelled by boat to Australia. Secondly, he states that he was traumatised after realising that being in immigration detention was similar to being in prison. Thirdly, he states he feared to mention the claims earlier, including in his SHEV interview, as he was advised that he would be sent back to Sri Lanka. Fourthly, he states he was told that the department would inform the Sri Lankan authorities as to his personal details and his claims which could affect his brother and sister in Sri Lanka. Fifthly, he was also told that if he is sent back, the Sri Lankan authorities would take him away from the airport to the LTTE prison. Sixthly, he states he was given a foreign non Tamil-speaking advisor and a Tamil speaking translator and interpreter to assist him. He feared that the advisor and interpreter may misunderstand him as an LTTE militant and that the Tamil translator may pass information to the wrong hands in Sri Lanka. He did not have a Tamil speaking migration agent to explain his situation and to advise whether he should mention his involvement in the LTTE; he knows that the Tamil translator is not a lawyer and could advise him wrongly.
I am mindful that the protection process can be a stressful experience for applicants many of whom experience traumatic events both before leaving their country of origin and in the journey to Australia, and the majority of whom do not have English language skills. However, these experiences are ones commonly faced by protection visa applicants and I do not accept that the reasons provided by the applicant for not raising the new claims earlier in the protection process amount to exceptional circumstances. The applicant's claim that he was prevented by a lack of adequate advice and assistance about the sort of information to provide is an issue faced by many protection visa applicants. In this case, I note the applicant was assisted throughout the protection process by a registered migration agent and that the same migration agent was present throughout the SHEV interview. A fear of deportation is not an uncommon one among protection visa applicants and the applicant had access to independent advice and assistance which I consider would have assisted in allaying his fears in this regard. I also consider the applicant had an adequate opportunity to raise with his representative any concerns he had about the adequacy of their representation. The applicant was advised in both his arrival interview on 28 January 2013 and in his SHEV interview that information provided to the Department would not be made available to the authorities in Sri Lanka, other than if his application was refused in which case some personal information only would be disclosed. Almost all asylum seekers are non-English speaking and must rely on interpreters when putting their claims to their representatives and the department. The applicant, besides having assistance with his claims, had a reasonable opportunity to raise any concerns about interpreters with the department and was specifically asked in his SHEV interview whether he had any issues with the use of that particular interpreter in the interview. He stated he did not. At that interview the delegate also explained the confidentiality obligations of the interpreter and told the applicant to raise his hand if he did not understand the interpreter at any stage during the interview or if he thought the interpreter did not understand him. The applicant indicated he understood the interpreter, that he had no objection to the interpreter, stated that if during the interview he didn't understand the interpreter he would voice his objection, and did not raise any issues throughout the interview regarding the interpreter.
All of the new claims raised by the applicant relate to matters that pre-date the delegate's decision. At the SHEV interview, the delegate told the applicant that it is extremely important that he give the Department complete, personal and accurate protection claims as early as possible in the protection visa process. The applicant was told that if he did not give the Department all of his claims and the application is refused, he might not have another chance to provide further information to support his claims. He was also asked at the start of his interview if there was anything about his application he wanted to add or change; he said there wasn’t. I note that the applicant stated in his SHEV interview that the statement included with his SHEV application had not been read back to him in the Tamil language. I do not consider that, by itself, this constitutes exceptional circumstances such as to justify considering the new information provided. Throughout the SHEV interview the delegate gave the applicant opportunities to clarify, expand on and add to the claims in his statement. The delegate also paused the interview for ten minutes in order for the applicant to discuss privately with his representative any matters relevant to his application and twice asked the applicant at the end of his interview whether he had put forward all of his protection claims. He stated he had nothing further to add. In light of all of the factors referred to above, I am not satisfied that there are exceptional circumstances to justify considering the new information: s.473DD(a).
[64] CB 162-163.
I prefer the Minister’s submissions on this ground.
As discussed at [71] above, in BVZ16, White J held at [46]-[47] that the Authority had misconstrued s.473DD(a) by confining its consideration of whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having provided earlier the new information upon which he wished to rely on review.
By contrast, that is not what the Authority did in the present case. At [5],[65] the Authority summarised the reasons advanced by the applicant as to why he did not raise his new claim previously. At [6],[66] the Authority evaluated those reasons. At [7],[67] it went beyond merely having regard to the applicant’s explanation for not having provided the information earlier. The Authority there considered the fact that all of the claims raised by the applicant related to matters that pre-dated the delegate’s decision (and, in that sense, appreciated the nature and effect of the new information as regards the applicant’s claims), statements of the applicant (before the delegate) that he had nothing more to add to his application, and the fact that the applicant had been given information by the delegate as to the need to raise all of his claims as early as possible and that, if he did not do so, he may not have another change to provide further information to support his claims.[68] The Authority did not, therefore, adopt an unduly narrow construction of s.473DD(a). For that reason, the present case is distinguishable from BVZ16.
[65] CB 162.
[66] CB 162-163.
[67] CB 163.
[68] Transcript, page 2, line 32; page 3, line 3.
Conclusion
The applicant has established jurisdictional error in relation to Ground 3. I will order that the applicant receive relief in the form of the constitutional writs of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 15 November 2017
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