ARQ17 v Minister for Immigration
[2018] FCCA 3288
•14 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARQ17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3288 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass XE-790) visas – combined application by two brothers – whether the Authority erred in its consideration of whether there were exceptional circumstances justifying it considering new information – whether the Authority constructively failed to exercise jurisdiction by misapprehending the material or s.473DD(b) of the Migration Act 1958 – whether the Authority unreasonably failed to consider exercising its powers under s.473DC of the Migration Act 1958. |
| Legislation: Migration Act 1958, ss.473DC, 473DD, 473GB |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 |
| First Applicant: | ARQ17 |
| Second Applicant | ARS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 322 of 2017 |
| Judgment of: | Judge Riley |
| Hearing date: | 26 July 2018 |
| Date of last submission: | 26 July 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 14 November 2018 |
REPRESENTATION
| Counsel for the applicants: | John Maloney |
| Solicitors for the applicants: | Victoria Legal Aid |
| Counsel for the first respondent: | Nick Wood |
| Counsel for the second respondent: | None |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The decisions of the Immigration Assessment Authority made on 3 February 2017 in matters numbered IAA16/01102 and IAA16/01103 be set aside.
The matters be remitted to the Immigration Assessment Authority for determination according to law.
The first respondent pay the applicants’ costs of the proceeding fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 322 of 2017
| ARQ17 |
First Applicant
| ARS17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection not to grant the applicants safe haven enterprise (subclass XE-790) visas.
The applicants are brothers. They made a combined application for the visas. The delegate made a single decision in respect of both of them, describing the first applicant as the primary applicant and the second applicant as a dependant. The delegate’s decision was referred to the Authority, which made a single decision in respect of both applicants. The applicants then made separate applications to this court. However, by consent, the two matters were consolidated.
Prior to the consolidation, the applicants filed separate but virtually identical applications, amended applications and written submissions in each matter. The first respondent also filed separate but virtually identical court books and written submissions in each matter.
The first applicant was born on 28 February 1995 and was given the pseudonym ARQ17. The second applicant is older. He was born on 17 July 1993. He was given the pseudonym ARS17.
The applicants’ claims
The applicants’ written submissions filed on 26 June 2018 summarised their claims as follows:
4. The Applicants are brothers. They are Hindus of Tamil ethnicity, and were born in Jaffna, Sri Lanka – the First Applicant on 28 February 1995 and the Second Applicant on 17 July 1993. Their claims are principally expressed in their statutory declarations dated 28 January 2016. In brief compass: the Second Applicant claimed to fear harm from the Sri Lankan authorities and Sinhalese intelligence owing to his family’s suspected affiliation with the LTTE. In support of these claims, he related that:
4.1. He was born and brought up in Jaffna, but at the urging of his maternal uncle, his mother moved him and his siblings to Chillaw to escape the Sri Lankan civil war;
4.2. Because of his origins in Jaffna, he was suspected of being affiliated with the LTTE. He was required to carry an identity card disclosing his Tamil ethnicity. The authorities would regularly check the card and question him, and he was often interrogated by them when commuting to and from school. The First Applicant was similarly treated;
4.3. Most of the problems he and his family experienced were due to his uncle, who was connected and involved with the LTTE. His uncle fled Chillaw, and after that the authorities (in particular the CID) began treating him and his family more harshly, asking after the uncle and threatening him and his family;
4.4. On one occasion the CID took him and his brother to their camp, kept them overnight and threatened and interrogated them. On another occasion, army personnel searched the shop he staffed with his mother for weapons;
4.5. In 2011 or 2012, he attended a demonstration. Two or three people were shot by government forces and his eldest brother was assaulted and taken away by authorities;
4.6. His eldest brother remained behind with their mother when the Applicants left Sri Lanka. He was arrested, and allegations have been made against him by the authorities. The Second Applicant’s passport was taken in connection with those allegations. The eldest brother is now ‘on the run’;
4.7. The Applicants’ uncle’s whereabouts are now unknown.
5. The Second Applicant concludes by stating that he fears being detained, tortured and killed by the authorities if returned, including if the authorities ‘find out that [he] fled to Australia’. Briefly, the First Applicant also feared being detained, tortured or killed by the authorities, and further relevantly claimed that:
5.1. His eldest brother was taken away and brutally assaulted for days by the Sri Lankan army as a boy, and is now ‘on the run’;
5.2. He was also harassed and abused by the authorities – mostly commuting to and from school – who would interrogate him about his uncle and eldest brother. At one point he was taken out of school to be interrogated, which caused him to stop attending school;
5.3. The authorities would visit his house and take documents with them;
5.4. He was unable to go outside and play with friends because of his fears of harm; and since he left his family members do not go outside of the home for fear of their safety;
5.5. The Second Applicant and his eldest brother ‘have also been taken away and brutally assaulted by the Singhalese [sic] intelligence’; and his eldest brother has been assaulted and interrogated since the Applicants left;
5.6. He has been unable to find safety in other parts of Sri Lanka.
6. For reasons that will become clear, it is relevant to note that the Applicants’ claims were supported by evidentiary materials including a letter from a member of the North– Western Provincial Council. That letter’s author attested to knowing the Applicants; to their having moved to Chillaw to escape the civil war; and to their being ‘continuously persecuted’ by police and security forces because of their having come from Jaffna.
7. The Applicants were interviewed on 31 March 2016. On 20 April 2016, their RACS representatives filed a submission. It responded to issues raised by the Delegate at interview and set out information about the chance or risk of harm to the Applicants’ connected to their Tamil ethnicity, family links to the LTTE, involuntary return to Sri Lanka and the lack of state protection they would have, as well as to the impossibility of relocation.
(footnotes omitted)
The delegate’s reasons
In their written submissions filed on 26 June 2018, the applicants said the following about the delegate’s reasons for decision:
9. Briefly: the Delegate was not satisfied that the Applicants had an uncle with alleged LTTE links, or that they had been mistreated by the authorities for that reason, as claimed; and found it unlikely that they had been identified by authorities as having LTTE links. It reached that view on the basis of perceived deficiencies in the Applicants’ evidence about their uncle. Of particular relevance, it noted that:
9.1. The first applicant ‘advised that he has never met or spoken to this particular uncle’;
9.2. The uncle had a different family name from the Applicants; it therefore questioned how the authorities would know the Applicants and their uncle were related; and
9.3. The applicants ‘provided a different name for their maternal uncle’.
10. Ultimately, the Delegate did not accept that the Applicants faced a real chance or risk of harm from the authorities as a result of any perceived association with the LTTE.
(footnotes omitted)
The Authority’s reasons
In their written submissions filed on 26 June 2018, the applicants said the following about the Authority’s reasons for decision:
11. On review of the Delegate’s decision, the Authority was provided (by email on 6 November 2016) with statements from the Applicants, together with supporting materials comprised of their uncle’s and mother’s birth certificates (illustrating their uncle’s relationship with their mother), their uncle’s biodata passport page, court papers pertaining to their uncle, and family photographs of their uncle and them with their uncle….
…
14. The Authority dealt with this material at [4]-[7] of its reasons. Its reasons make clear that it recognised that the statements and supporting documents were to be considered against s 473DD of the Migration Act 1958 (Cth) (Act). …
15. As to the statements provided by the Applicants, it found that –save only for the Second Applicant’s recitation of his claim to have attended a demonstration–the statements constituted ‘new information’ for the purposes of s 473DD; but:
No explanation has been provided as to why the new information was not and could not have been provided to the delegate or why it may be regarded as credible personal information that was not known and had it been known may have affected the consideration of the applicants’ claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.
16. It then turned to the supporting documents provided with the statements. … it found that the Applicants’ explanation for not providing these documents to the Delegate (they ‘did not realise’ that they could do so) was unsatisfactory. On that basis, it concluded that it was not satisfied there were ‘exceptional circumstances’ pursuant to s 473DD(a) to consider this new information.
17. The Authority accepted that although the First Applicant’s submissions did not refer to the uncle, it ‘became apparent’ in the interview before the Delegate ‘that Applicant 1 relies on Applicant 2’s claims in relation to a maternal uncle’. Nonetheless, it went on to note, as had the Delegate, other apparent inconsistencies in the Applicants’ evidence about their uncle, including that they provided different names for him and the First Applicant said he had never spoken to him.
18. It also noted other perceived inconsistencies in the Applicants’ evidence about mistreatment by Sri Lankan authorities. In particular, at [20] of its reasons, it noted that the First Applicant’s claim that the Second Applicant and his eldest brother were brutally assaulted, and that the eldest brother was taken from the shop and assaulted, were not corroborated by the Second Applicant. Instead, the Second Applicant ‘gave evidence that he and [the eldest brother] were detained on one occasion only but not harmed’; and ‘did not claim or refer in his interview to [the eldest brother] having been taken from a shop and brutally assaulted’.
19. In relation to the First Applicant’s claim that he stopped attending school because he was interrogated, the Authority noted that this matter had not been raised at the interview before the Delegate. It nonetheless concluded that the First Applicant had completed his O Levels, and that there was ‘no evidence before [it] that [the First Applicant] would have otherwise continued studying after the completion of his O levels’.
20. Finally, with respect to the letter from North-Western Provincial Council (described at [6] above) which attested to the authorities’ mistreatment of the Applicants, the Authority reasoned at [26]:
I note the letter supports their claims to have been harassed by security forces but does not refer to any LTTE connection. The applicants were not asked to comment on this aspect of the letter; accordingly I placed little weight on it other than to note that there is no mention of the applicants undergoing anything other than generalised harassment and persecution by security forces.
21. Ultimately, the Authority concluded that it was not satisfied that the Applicants had an uncle wanted by the authorities for LTTE activities, or ‘that for that reason, the [A]pplicants and their brother ... have been targeted by the authorities’. It referred specifically to the inconsistency as to the uncle's name, and found that it was not satisfied that the authorities continued to search for the Applicants. It went on to separately dismiss the Applicants’ claims arising from their ethnicity, religion, status as failed asylum seekers/illegal emigrants and any future harm arising from the search of the shop by the Sri Lankan army; and concluded that they faced no real chance or risk of serious or significant harm.
(footnotes omitted)
Ground 1
The first ground of review in the applications filed on 20 February 2017 and amended on 26 June 2018 (“the application”) is:
The Immigration Assessment Authority (Authority) fell into jurisdictional error by constructively failing to exercise jurisdiction in relation to s 473DD of the Migration Act 1958 (Cth) (Act). Specifically, the Authority confined its consideration of whether there were ‘exceptional circumstances’ for the consideration of ‘new information’ under s 473DD to the evaluation of the Applicants’ explanation for providing the relevant material after the decision of the Delegate of the First Respondent (Delegate).
Particulars
a.On 6 November 2016, the Applicants provided supporting documents to the Authority concerning a maternal uncle – in particular, the uncle and the Applicants’ mother’s birth certificates, their uncle’s biodata passport page, court papers pertaining to their uncle, and family photographs of their uncle and of them with him. The Applicants’ relationship with their uncle formed part of their claim to fear harm as a result of a perceived LTTE affiliation.
b.At [7] of its reasons, the Authority assessed these documents against s 473DD(a), which requires it to be satisfied there are ‘exceptional circumstances’ to justify considering new information. The Authority found that the Applicants’ explanation for providing these materials when they did was not satisfactory, and concluded on that basis that no ‘exceptional circumstances’ existed. However, the satisfactoriness of the Applicants’ reasons for providing these materials when they did was not determinative of whether there were ‘exceptional circumstances’ under s 473DD. Accordingly, the Authority failed to discharge its statutory task.
The Authority said in its reasons for decision that:
4.On 6 November 2016, the applicants’ representative sent a series of emails to the IAA attaching copies of a number of documents and further statements by each applicant signed and dated 11 November 2016 (sic) (the statements).
5. In regard to the statements, they purport to clarify aspects of the evidence given by the applicants in their SHEV interviews. However, with one exception, I am satisfied that the statements go beyond clarification of aspects of the applicants’ evidence and are an attempt to either change evidence previously given or introduce new evidence regarding the applicants’ claims for protection in response to credibility concerns put to the applicants in their SHEV interviews by the delegate. The exception is the information provided by the second applicant regarding his participation in a demonstration against kerosene price rises; this information was included in his written claims and is therefore not new information.
6. I have formed the view that the statements are otherwise new information. No explanation has been provided as to why the new information was not and could not have been provided to the delegate or why it may be regarded as credible personal information that was not known and had it been known may have affected the consideration of the applicants’ claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.
7.In regard to the other documents provided, the applicants state that they did not realise that their uncle's documents (birth certificate in Tamil and English translation, biodata passport page, court transcript), mother’s birth certificate and family photographs could be provided to support their case and that is why the documents, emailed from Sri Lanka, were not submitted earlier. The applicants have previously provided a wide range of other documentary material from a number of sources both in English and Tamil in support of their application; they were therefore aware of the capacity to, and the importance of, providing a variety of documentary information in support of their claims. I also note that the applicants have been represented throughout the protection process by a registered migration agent. The applicants’ SHEV interviews took place on 14 April 2016 at which their former representative was present. At the beginning of that interview, the delegate explained the IAA was only able to consider information provided to the Department unless exceptional circumstances apply. The applicants (and their representatives) were therefore on notice regarding the limits on the IAA’s ability to consider new information. In the circumstances, I am not satisfied there are exceptional reasons to consider this new information.
Section 473DD of the Migration Act 1958 (“the Act”) provides that:
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.
Ground 1 particularly concerns the birth certificates of the applicants’ uncle and mother, the uncle’s biodata passport page, court papers pertaining to the uncle, and family photographs of the uncle and of the applicants with him (“the supporting material”). Ground 2, discussed below, particularly concerns the statement made by the first applicant. The Authority decided that the supporting material was new information and that there were not exceptional circumstances to justify considering it.
The applicants argued that the Authority in the present case made the same type of error as was identified in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958. In that case, White J said:
9. The requirements of subparas [473DD] (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
…
33. It is understandable that the IAA member would have wished to scrutinise closely the applicant’s late disclosure of the new information. The circumstances in which the claims were made gave rise naturally to questions about their veracity. That understanding and the content of [6], [7] and [8] indicate that the IAA member was engaged in an examination of the veracity of the appellant’s explanation, rather than in some more general evaluation of the material against either of the subpara (b)(i) or (b)(ii) criteria.
34. Having rejected both explanations for the late disclosure of the new information, the IAA member then immediately expressed her conclusion in [9] that there were not exceptional circumstances justifying the consideration of the new information. In these circumstances, I do not consider that it can be concluded that the IAA member considered the significance of the new information in the light of the appellant’s personal circumstances more generally or the way in which the claims in the new information related to the earlier claims made by the appellant.
…
39. Generally, and subject to the particular statutory context, circumstances will be exceptional if they are unusual or out of the ordinary: An v Minister for Immigration and Citizenship [2007] FCAFC 97; (2007) 160 FCR 480 at [7] (Lindgren J). In Hatcher v Cohn [2004] FCA 1548; (2004) 139 FCR 425, Keifel J said of the term “exceptional circumstances”:
[49] ‘Exceptional’ circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that ‘special circumstances’ need to be ‘extraordinary and not factors applicable to all defendants facing extradition’. It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: … And in Baker v R (2004) 78 ALJR 1483; [2004] HCA 45 at [13] Gleeson CJ considered the use of ‘special circumstances’ to condition the exercise of judicial discretion. His Honour said:
‘This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.’
[50] Although his Honour was speaking of judicial decision-making the observations are apposite here. The words ‘exceptional circumstances’ may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. …
40. In Maan v Minister for Immigration and Citizenship [2009] FCAFC 150; (2009) 179 FCR 581, the Full Court cited with approval a passage from the judgment of Lord Bingham of Cornhill CJ in R v Kelly [2000] QB 198 at [51] as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To 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.
41. Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J). (emphasis added)
42. The proper construction of the term “exceptional circumstances” in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of “fast track” review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all “fast track reviewable decision[s]” are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to “get” new information, it may consider it only in the limited circumstances specified on s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65.
43. Further, account must be taken of the reference to the exceptional circumstances being such as to “justify” consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.
…
46. However, counsel presented an alternative and more confined submission, contending that there had been a constructive failure to exercise jurisdiction by the IAA. This had occurred because the IAA had confined its consideration of whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having provided the information earlier. This indicated, it was submitted, that the IAA had applied an unduly narrow interpretation of the term “exceptional circumstances”.
47. In my opinion, there is force in that submission. The IAA member does seem to have reasoned that her rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term “exceptional circumstances”, as discussed earlier in these reasons.
48. Accordingly, I consider that it should be concluded that there was a constructive failure by the IAA to exercise jurisdiction of the kind discussed in Craig v The State of south Australia (1995) 184 CLR 163 at 177-8 and in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [74]. Accordingly, I consider that this ground of appeal also succeeds.
White J’s reasoning in BVZ16 was accepted and applied by the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176. The Full Court said in BBS16:
[77] In BVZ16, White J found that the IAA had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD. In particular, his Honour found that the IAA was wrong to reason that there were no exceptional circumstances because the rejection of the referral applicant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. The Minister submitted that the IAA can only consider new information if both ss 473DD(a) and (b) are satisfied. The Minister drew attention to White J’s description of these requirements as “conjunctive”. The Minister submitted, however, that White J erred in his reasoning at [9] and [35]-[36] of BVZ16 in concluding that the IAA was obliged under s 473DD to consider, and make findings on both alternative limbs of s 473DD(b) in order to be satisfied under s 473DD(a). Accordingly, so the Minister submitted, if the IAA is not satisfied as to the matter in (a), it is unnecessary for it to proceed to make findings in relation to either of the limbs in (b).
…
[102] We are unpersuaded by the Minister’s contentions that in BVZ16 White J misconstrued or misapplied the term “exceptional circumstances” under s 473DD. We respectfully agree with his Honour’s reasons for concluding that the IAA in that case adopted an inappropriately narrow understanding of that phrase. In particular, we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.
[103] That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
[104]As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” (see the authorities cited by his Honour at [39]-[41] of BVZ16).
…
[112] For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD.
White J’s reasoning in BVZ16 was also accepted and applied by the Full Court of the Federal Court in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192. In CHF16, the Full Court said at [44]:
In our opinion, the proper and fair reading of [5] the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context. (emphasis added)
The Minister argued that the court should not infer that the Authority did not consider a particular matter in relation to its consideration of whether there were exceptional circumstances to justify considering the supporting material simply because the Authority did not refer to it expressly in paragraph 7 of its reasons for decision.
In support of that proposition, the Minister relied on the single judge decision in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365. In that case, Thawley J noted that the High Court decided in Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; (2011) 119 ALD 1; (2011) 273 ALR 223; (2011) 85 ALJR 327; [2011] HCA 1 that s.430 of the Act, which is in substantially the same terms as s.473EA of the Act, does not require the Tribunal to give reasons in its statement of reasons under s.430 of the Act for procedural decisions taken in the course of dealing with an application.
In BCQ16, Thawley J applied SZGUR to hold that:
49. The appellant submitted that to infer that the Authority considered exercising its discretion without including a statement to that effect in its reasons, or not to infer that it did not consider the discretion where there is no reference to it in its reasons, would effectively immunise the Authority from judicial review of the reasonableness of any such failure. The appellant submitted that a statement of decision had to refer to the existence of a discretionary power in Part 7AA or it should be inferred that it was not considered.
50. I do not agree. That is not to say that there might not be particular circumstances in which it is appropriate to draw an inference that a discretionary power was not considered by reason, wholly or partly, of the absence of a reference to the discretion in the reasons. CRY16 may be an example of such a case, albeit dealing with a different discretionary power to that presently being considered. However, first, as I have said at [45] above, s 473EA does not require a statement of decision to refer to a procedural decision taken in the course of a review and, secondly, the statutory scheme is such that a challenge to the failure to exercise, or the exercise of, the discretionary powers in s 473GB are practically limited. … (emphasis added)
BCQ16 concerned s.473GB of the Act, while the present case concerns s.473DD of the Act. Nevertheless, the Minister submitted that the principle applied with equal force to the present case.
The Minister also relied on CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, which does concern s.473DD of the Act. In CVS16, Bromwich J said:
25. … the appellant contends in the alternative that the Authority fell into jurisdictional error in failing to state its reasons in respect of the discretion in s 473DD.
26. Reliance is placed by the appellant on the terms of the reasons requirement in s 473EA, coupled with s 25D of the Acts Interpretation Act 1901 (Cth), together with CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [40]-[42]. The appellant submits that the absence of any statement in the Authority’s reasons as to whether the new information was or was not excluded under s 473DD left the parties in the dark. He submits that it was nothing more than supposition for the primary judge to have drawn the inference at [38] that the documents were not referred to because they were not considered to be material.
27. The submissions for the appellant refer to, but seek to distinguish, the decision of Thawley J in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, wherein his Honour found, at [50], after quoting SZGUR at [31]-[32], that “s 473EA does not require a statement of decision to refer to a procedural decision taken in the course of a review and, secondly, the statutory scheme is such that a challenge to the failure to exercise, or the exercise of, the discretionary powers in s 473GB are practically limited”; see also Thawley J’s earlier observations in BCQ16 at [45]. The basis for distinction was said to be that both BCQ16 and SZGUR were concerned with the exercise of a discretion to gather information, rather than, as in this case, information relevant to the making of a finding on a material question of fact, citing SZGUR at [32].
28. The Minister submits in response that:
(1) the obligation to give reasons that is imposed by s 473EA(1)(b) of the Migration Act (when read with s 25D of the Acts Interpretation Act) is confined to the ultimate decision, and does not extend to procedural or antecedent decisions made during the review process;
(2) CHF16 did not support the appellant because the Full Court in that case, at [49], did not consider it necessary to resolve the question of whether there was a statutory obligation to give reasons for the exercise of the discretion;
(3) the decision in BCQ16 at [45] and [50] should be followed to the effect that “s 473EA does not require a statement of decision to refer to a procedural decision taken in the course of a review”; and
(4) this case is not distinguishable from BCQ16 and SZGUR because the reasons that the appellant contends were required went to a procedural issue of whether otherwise prohibited material should be considered, not the ultimate findings on material questions of fact.
29. The Minister’s submissions must again be accepted. Far from finding that BCQ16 was distinguishable or should not be followed, I am satisfied both that it was correctly decided and that it is relevantly indistinguishable in its application to the present point. The same conclusion is inevitable without the benefit of BCQ16. Section 473EA(1) is directed to the decision, and reasons for decision, on the review itself, as well as the day and time that statement of reasons is made. Such a precise requirement, at a particular date and time, is inconsistent with procedural decisions along the way needing to be the subject of any record at all, let alone a formal record of the type that the appellant contends is required. That is especially so when the decision in question is as to a discretion to depart from a statutory mandate that otherwise prohibits consideration of such material.
30. There was no obligation on the Authority to give reasons for failing to state its reasons in respect of the discretion in s 473DD, and therefore no jurisdictional error in not doing so. It follows that no error on the part of the primary judge has been established and this ground of appeal must therefore fail.
The Minister also relied on the High Court’s decision in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; (2015) 148 ALD 206; (2015) 327 ALR 8; (2015) 90 ALJR 197; [2015] HCA 50, where French CJ, Bell, Keane and Gordon JJ said at [25]:
… It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. … the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. … (footnotes omitted) (emphasis in original)
The Minister also relied on AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111. That is a decision of the Full Court of the Federal Court which is more recent than BBS16 and CHF16. In AQU17, the Full Court of the Federal Court said:
14. 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.
…
16. Contrary to the appellant’s submission, the Authority did not conclude that the s 473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister’s delegate. Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible.
17. Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute “exceptional circumstances” to justify consideration of the new information. Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”. In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed.
(emphasis added)
Relying on AQU17, the Minister submitted that the applicants in the present case have not pointed to any circumstances that the Authority was obliged to consider but did not consider. Furthermore, the Minister submitted that the Authority clearly considered the applicants’ submissions, prepared with the assistance of their migration agent, about why there were exceptional circumstances warranting the consideration of the supporting material in the present case. The applicants’ migration agent, according to the court book, did not make a submission as such, but merely attached various documents to an email.
The applicants replied that the other circumstances that the Authority could have taken into account were:
a)the s.473DD(b)(i) and (ii) matters;
b)the fact that the new information consisted principally of official documents;
c)the importance of the supporting material to the applicants’ claims; and
d)that the applicants might not have anticipated that the delegate would have had determinative doubts about their uncle being affiliated with the LTTE.
The applicants sought to distinguish AQU17 on the basis that the rejection of the new information in that case was based on its lack of credibility, whereas, in the present case, there is nothing to indicate that the Authority considered that the supporting material lacked credibility.
The applicants also emphasised that BVZ16, BBS16 and CHF16 have not been overruled. The applicants submitted that those cases remain good law and are not distinguishable from the present case.
The applicants also submitted that, while it may be accepted that the Authority was not obliged to give reasons for not considering the supporting material, in the present case, it did give reasons, and from those reasons, it could be inferred that the Authority did not consider all of the circumstances of the case, as it was required to do by BVZ16, BBS16 and CHF16.
In relation to the point made by the Minister in relation to Plaintiff M64/2015, the plurality specifically noted at [25] that, even where a decision-maker is not obliged to give comprehensive reasons for decision:
It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision …
In the present case, it seems to me that the Authority’s reasons for decision are such that it can be inferred that the Authority set out in full its reasons for deciding that there were not exceptional circumstances justifying consideration of the supporting material. It can be inferred that the Authority did not take into account any matters that it did not mention in relation to that point. That is because paragraph 7 of the Authority’s reasons for decision reads as if it is exhaustive on the question of whether there were exceptional circumstances justifying consideration of the supporting material, notwithstanding that the Authority was not obliged to give reasons for its procedural decision on that point.
In my view, AQU17 is distinguishable. The Full Court in that case emphasised that the Authority rejected the credibility of the information. The credibility of the information was critical to the reasoning in AQU17. There is nothing comparable in the present case.
Moreover, in the present case, unlike in AQU17, the applicants have pointed to circumstances that the Authority could have taken into account and that might have changed the outcome.
It is significant that the new information the applicants sought to rely upon did not relate to an entirely new claim, but merely sought to bolster a claim that had been made to the delegate but rejected by her. As migration matters do not proceed before the delegate with the benefit of pleadings, applicants cannot know in advance of their interview which of their points might not be accepted at face value and which of their points need to be bolstered with documents. Some may regard as Kafkaesque a reading of Part 7AA of the Act that does not permit an applicant to provide to the Authority, for the purposes of its review, documents that support an aspect of the applicant’s case that had been unexpectedly rejected by the delegate.
In the present case, the Authority did not consider the circumstances as a whole in deciding that there were not exceptional circumstances justifying the consideration of the supporting material. The Authority only took into account circumstances relating to the applicants’ not providing the supporting material to the delegate.
One of the circumstances of the case as a whole was that it may have been unexpected that the delegate would reject the claim that the applicants’ uncle was a member of the LTTE. That may have been unexpected because it is not unusual for delegates to accept that applicants’ relatives are members of the LTTE.
In addition, the Authority did not take into account, when assessing whether there were exceptional circumstances to justify reception of the supporting material, all of the matters raised by the first applicant in his statement signed on 11 November 2016. One of the matters raised by the first applicant was an explanation for the perceived discrepancy in the evidence that the applicants gave the delegate about their uncle’s name. That perceived discrepancy was a significant factor in the delegate finding that the applicants did not have an uncle who was a member of the LTTE, and that finding was a significant factor in rejecting their claims overall.
In his statement to the Authority, the first applicant said that his uncle’s name was a certain name, which consisted of four separate names. For the purposes of these reasons, I will give the uncle the pseudonym, Henry William Charles Windsor. The first applicant said that his uncle was known as Henry, Henry Kumar, and Henry Maama. The first applicant explained that Maama means uncle. I understand from Wikipedia that Kumar means son, boy, or prince. So, according to the first applicant, his uncle was known as Henry, Uncle Henry, Henry Son, Henry Boy or Henry Prince. These are not different names as such, but affectionate names of the type that are frequently used within families.
There are many names in English culture that have an affectionate version, such as Jimmy for James, Sandy for Alexander and Betty for Elizabeth, or, in the case of the Queen, Lilibet for Elizabeth Alexandra Mary Windsor. These affectionate names do not sound very much like the official names to which they correspond, but they are nevertheless well recognised by native English speakers.
The delegate did not say in her reasons for decision precisely what the discrepancy was in the evidence given by the applicants about the name of their uncle. Nor is there anything in the court book that I have been able to find that indicates what the discrepancy was. As the court book should contain all of the documents that were before the Authority, I infer that there was nothing before the Authority indicating what the discrepancy was in the applicants’ evidence about their uncle’s name.
In the absence of anything before the Authority indicating that the discrepancy in the evidence given by the applicants about their uncle’s name was something more than the difference between an official name and an affectionate version of it, in deciding whether there were exceptional circumstances to justify considering the supporting material, the Authority should have considered the possibility that the discrepancy that the delegate placed such determinative weight on may have been illusory.
In any event, because it is apparent that the Authority did not consider the applicants’ circumstances as a whole, I am satisfied that the Authority made the same type of jurisdictional error in the present case as was identified in BVZ16, BBS16 and CHF16. Ground 1 is made out.
Ground 2
The second ground of review in the application is:
The Authority fell into jurisdictional error by failing to exercise jurisdiction in relation to s 473DD of the Act, or failing to consider evidence, in that it concluded that statements provided by the Applicants i) amounted, with one exception, to ‘new information’; and ii) provided ‘no explanation’ as to why the requirements of s 473DD(b) were met.
Particulars
a.The Applicants’ statements were avowedly directed to explaining why the information they provided was not and could not have been provided to the delegate, and to providing credible personal information not previously known which, had it been known, may have affected the consideration of the Applicants’ claims (per the requirements of s 473DD(b) of the Act).
b.The Authority’s conclusion that ‘no explanation’ was offered to how the statements satisfied s 473DD(b) was plainly wrong, and evinced a constructive failure by the Authority to consider the statements, and/or a misconstruction of s 473DD(b).
c.Further or in the alternative, if the Authority intended to express the view that the information in the statements was not credible and so did not satisfy s 473DD(b), this indicated that it had conducted an assessment of credibility not licensed by s 473DD(b). The term ‘credible’ in that section is intended only to exclude information incapable of being accepted as truthful; it is not intended to exclude information the Authority does not accept to be truthful.
d.Further, the statements plainly included ‘submissions’ as well as ‘new information’. The submissions did not fall to be assessed against s 473DD. The Authority’s conclusion to the contrary indicated that it had constructively failed to consider the statements and/or misconstrued s 473DD.
This ground concerns paragraph 6 of the Authority’s reasons for decision, which is as follows:
I have formed the view that the statements are otherwise new information. No explanation has been provided as to why the new information was not and could not have been provided to the delegate or why it may be regarded as credible personal information that was not known and had it been known may have affected the consideration of the applicants’ claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.
It will be recalled that s.473DD of the Act provides that:
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.
To satisfy s.473DD(b) of the Act, the new information need only satisfy s.473DD(b)(i) or s.473DD(b)(ii). Consequently, it is clear that the Authority was not satisfied that the new information met either s.473DD(b)(i) or s.473DD(b)(ii), and that the Authority considered that the applicants did not provide an explanation as to how the new information met either s.473DD(b)(i) or s.473DD(b)(ii).
It was common ground that the requirement in s.473DD(b)(ii) of the Act that the information be information that was not previously known means that the information was not previously known to either the Minister or the applicant: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; (2018) 92 ALJR 481; [2018] HCA 16 at [33] and [34].
The applicants argued that it was patently false that no explanation had been given about the two matters identified by the Authority. The first applicant’s statement itself was as follows:
Summary of my claims
The following is a summary of claims for protection. It includes the reasons why I could not provide this information at the time of protection visa interview with Australian Immigration and Border Protection (DIBP) and why I think it is important to disclose and clarify the following information to Immigration Assessment Authority (IAA).
New documents:
I hereby attach a copy of the following documents:
1. Family photographs
2. Court paper (English translation)
3. Mother’s birth certificate copy (English Translation)
4. Uncle’s birth certificate copy (Tamil)
5. Uncle’s birth certificate copy (English Translation)
Clarification:
1. During the PV interview, out of fear and anxiety, I said that I have never met our maternal uncle. This is incorrect. Our uncle was the person who asked our mother to move our family from Jaffna to Chilaw. Although he never lived with us, he used to visit us. I have met him and spoke to him. I was very young at that time. I did not pay any attention to family matters. (Please see attached family photo)
2. Although our uncle and we did not share the same surname, the Sri Lankan authorities knew that we are related. It is a small country, under the control of the same authorities. The Criminal Investigation Department (CID) normally has all the information about everyone in the country. Our uncle was already on a suspicious list. I think when we moved to Chilaw and registered our residency with the Police, they must have found out about our relationship with our uncle. Our mother has confirmed that she was questioned before we were allowed to live with the Chilaw area. I have attached our mother’s and uncle’s birth certificates to show the relationship.
3. My uncle’s name is [Henry William Charles Windsor]. He is also known as [Henry] and [Henrykumar]. I did not know his real name. We call him / refer to him as ‘[Henry Maama]’. This is the reason why I didn’t know his real name during the interview.
4. We have asked our mother to send some family photographs to show our relationship of ours with our uncle. Our mother has sent two photographs only. She said my grandfather has destroyed all the photos out of fear. He did not want the Sri Lankan authorities to know that had contact with our uncle.
5. During the PV interview, I did not realise that uncle’s documents and family photographs could be provided to support my case. That is why I did not submit these documents earlier. I have now asked my family for any supporting documents and they have emailed these copies. If it is required, I can ask my mother to send us the originals/certified copies.
6. I am submitting our mother’s and uncle’s birth certificates to show their relationship. Please note that in my uncle’s birth certificate (English translation), their father’s name “[X]” is spelled as “[Y]”. The translator has translated incorrectly. I have attached the Tamil copy to show that his name is [X]. Due to the time frame to submit this to the IAA, I am unable to ask the translator to correct the spelling mistake.
I strongly believe, if I had provided this information to the department delegate at the interview, it would have had a positive effect on the department’s decision on my application. I am willing to provide any further information requested by the IAA regarding this statement.
As the statement explained, the information about the name of the applicants’ uncle was not and could not have been provided to the delegate because the first applicant was afraid and anxious, because he did not know his uncle’s real name and because he did not have the relevant documents. There may be a question as to whether they are good explanations. However, contrary to the Authority’s findings, they cannot be characterised as no explanation.
In relation to the second limb of s.473DD(b) of the Act, it is self-evident that the information was personal information (it was about the applicants’ family), it is self-evident that it was not known to the applicants or the delegate, and it is self-evident that it could have affected the outcome, because it could have allayed the delegate’s concerns about the credibility of the claim that the applicant’s uncle was a member of the LTTE.
There is now authority that the requirement that the information be credible does not require that the Authority actually accepts the credibility of the information. All that is required is that the information be capable of being accepted as truthful, accurate or genuine: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] and [42]. The Authority did not suggest that the information was not credible in that sense, and there is nothing to suggest that it was not.
In these circumstances, the applicants submitted that the Authority, by saying that there was no explanation going to the matters specified in s.473DD(b) of the Act, must have misapprehended the statement so as to have constructively failed to engage with it, or must have misapprehended s.473DD(b) of the Act.
The Minister argued that the question of whether information was credible was an evaluative judgment for the Authority to make, not this court. That is correct. However, that does not answer the problem identified by the applicants. The Authority did not find that the information was not credible. The Authority said that there was no explanation offered for matters that, in the absence of a finding by the Authority, appear to be self-evident. In these circumstances, it does appear that the Authority may have misapprehended the facts or the law.
The Minister conceded in oral submissions that the Authority may have misunderstood that the requirement in s.473DD(b)(ii) of the Act that the information be information that was not previously known means that the information was not previously known to either the Minister or the applicant. The Minister conceded that, at first glance, the Authority’s reasons for decision suggested that the Authority may have considered that the information only needed to have been unknown to the applicants. The Minister noted that the Authority’s reasons preceded the clarification of that issue in BVZ16 and Plaintiff M174.
However, the Minister submitted that this possible error was of no significance. The Minister said that was because there was no duty for the Authority to give reasons about procedural matters.
I accept that the Authority may have misunderstood s.473DD(b) of the Act, and may have thought it required that the new information was not known to the applicant only. However, I do not consider that paragraph 6 of the Authority’s reasons for decision is so clear that such a conclusion could be drawn by the court.
Although the Authority had no duty to give reasons for deciding that the statements were new information, it did give reasons, and those reasons indicate that the Authority fell into jurisdictional error. By saying that no explanation was offered for matters that were either explained or that were self-evident, the Authority either misapprehended the first applicant’s statement or s.473DD(b) of the Act. Ground 2 is made out.
Ground 3
The third ground of review in the application is:
The Authority unreasonably failed to consider exercising its powers under s 473DC of the Act to get new information from the Applicants about:
a. the apparent discrepancy in the Applicants’ accounts as to assaults on the Second Applicant and the Applicants’ eldest brother;
b. the Applicants’ letter from North-Western Provincial Council; and
c. the First Applicant’s claim that he left school because he was being interrogated by Sri Lankan authorities.
Particulars
d.The Authority made adverse findings on the basis that although the First Applicant claimed the Second Applicant and the Applicants’ eldest brother had been assaulted, the Second Applicant’s evidence did not corroborate those claims. However, that inconsistency had not been put to the Applicants by the Delegate. Further, the Authority accepted that the Applicants’ evidence was in other respects to be understood as complementary, despite the appearance of inconsistency.
e.Second, the Authority decided to give little weight to a letter provided by the Applicants from North-Western Provincial Council, evidently because the Delegate had not sufficiently questioned the Applicants about the letter.
f.Third, the First Applicant claimed in writing that he had left school because of interrogation by the Sri Lankan authorities. The Delegate did not question the First Applicant about this at interview or make adverse findings on this issue. Nonetheless, the Authority concluded, in effect, that there was no evidence the First Applicant would have continued his schooling if he had not been interrogated.
g.The Authority had a discretion to get new information from the Applicants under s 473DC. Its reasons do not indicate that it gave any consideration to exercising this discretion. In each of the three sets of circumstances set out above, its failure to consider exercising its discretion was legally unreasonable.
This ground concerns the Authority’s power under s.473DC of the Act, which is as follows:
(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.
(2) The Immigration Assessment 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.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The first issue raised by the applicants, concerning the assaults, arose from paragraph 20 of the Authority’s reasons for decision, which is as follows:
I accept that as the younger brother, Applicant 1 may not have as much information about the family background and past experiences as Applicant 2. I am willing to accept, for example, that if the uncle left Sri Lanka when Applicant 1 was young, he may not be in a position to provide a great deal of direct evidence about his uncle. However, there are other aspects of the applicants’ evidence which lead me to doubt the veracity of their claims. For example. Applicant 1’s written claims that [the applicants’ older brother] and Applicant 2 were brutally assaulted by the authorities and that [the applicants’ older brother] was taken from a shop and brutally assaulted are not corroborated by Applicant 2 who gave evidence that he and [the applicants’ older brother] were detained on one occasion only but not harmed. He did not claim or refer in his interview to [the applicants’ older brother] having been taken from a shop and brutally assaulted. I would expect that as the older of the two he would be in a better position to remember if there was any occasion when [the applicants’ older brother] was taken and brutally assaulted by the authorities. The fact that he did not refer to such an incident undermines Applicant 1’s credibility in relation to those claims and I do not accept his claim that his brothers have been taken and brutally assaulted by Sinhalese intelligence.
The second point raised by the applicants, concerning a letter, arose from paragraph 26 of the Authority’s reasons for decision, which is as follows:
The applicants have provided an undated letter on North-Western Provincial Council letterhead, signed by a Chillaw area MP in support of their application. In their SHEV interview, Applicant 2 stated that they received the letter two and a half years ago. I note the letter supports their claims to have been harassed by security forces but does not refer to any LTTE connection. The applicants were not asked to comment on this aspect of the letter; accordingly I place little weight on it other than to note that there is no mention of the applicants undergoing anything other than generalized harassment and persecution by security forces.
The third point raised by the applicants, concerning the first applicant leaving school, arose from paragraph 30 of the Authority’s reasons for decision, the relevant part of which is as follows:
… Applicant 1 further claimed he stopped attending school because of the harassment and that his parents were afraid that something would happen to him if he continued to attend the school. While he was not asked about this claim in the SHEV interview, he indicated in his SHEV application that he completed his O levels in 2011 at the same school in Chillaw that he had attended since 2006. There is no evidence before me that Applicant 1 would have otherwise continued studying after the completion of his O levels. I am not satisfied that Applicant 1 stopped attending school because of harassment by the authorities.
The applicants argued that the Authority’s failure to consider exercising its powers under s.473DC to obtain new information on each of the three issues mentioned above lacked any evident and intelligible justification. The applicants further argued that the Authority’s decision was unquestionably affected by the approach it took on these matters. Therefore, the applicants argued, the Authority fell into error of the type identified in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210.
In CRY16, the Full Court of the Federal Court said:
81.We do not accept the Minister’s submission that where there is a new situation in the referred applicant’s country of nationality, or if new information were obtained that meant there was a complete change of circumstances in the referred applicant’s country of nationality after the delegate’s decision, there was no obligation on the Authority to consider whether to bring it to the referred applicant’s attention. We understood this submission to mean that those circumstances could not give rise to legal unreasonableness.
82.Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
The Minister argued that ground 3 was a complaint about a denial of procedural fairness, rather than a complaint about unreasonableness. As such, the Minister said that the applicants’ submission collided with CSR16 at [29], where the Federal Court said:
The logic of, or the values implicit in, the natural justice hearing rule are critical to the appellant’s contention that the Authority’s failure to disclose the existence of the certificate lacks evident and intelligible justification or is arbitrary. However, it is evident that the values placed on the opportunity for the visa applicant to be heard and involved in the review contemplated by Part 7AA is markedly lower than that which informs the common law natural justice hearing rule. The capacity for the natural justice hearing rule to be informative of whether the statutory discretion given by s 473GB(3)(b) has been exercised in a legally unreasonable way, is therefore much diminished. When assessed against the statutory scheme, the failure of the Authority to provide the appellant with an opportunity be heard as to whether to exercise its discretion under s 473GB(3)(b) does not equate to a legally unreasonable exercise of that power. That failure did not, in the context of the scheme of Part 7AA, lack intelligible justification. Nor was it arbitrary in the requisite sense.
The Minister also relied on CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 at [42], where the Federal Court said:
Both the content of the rules of procedural fairness and the principle of “unreasonableness” must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how “unreasonableness” could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being “unreasonable” rather than a denial of “natural justice”. On such an approach, a draftsman could avoid the constraints imposed by s 473DA by re-characterising a ground of review as “unreasonableness” rather than a requirement of “natural justice”.
The Minister also relied on the decision of the Full Court of the Federal Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [78], where the Full Court said:
… As we have held, the primary judge did not err in finding that the Authority conducted a review as required by s 473CC, it not being necessary in the conduct of the Authority’s review in this case to give the appellant notice of new issues and afford him a reasonable opportunity to respond. Ground 2 therefore fails. Ground 3, concerning legal unreasonableness, fails as under the statutory scheme in the circumstances of this case the Authority was not obliged to inform the appellant of the issues that it considered to arise on the review, insofar as those issues were not found to be dispositive by the delegate. Ground 4 fails as, in our opinion, s 473DA had the effect of excluding the requirement that the Authority comply with the requirements of procedural fairness in deciding whether to disclose the issues that arose on the Authority’s review and to invite a response. …
The Minister also sought to distinguish CRY16 on the basis that, in that case, the Authority considered that the applicant could relocate within Lebanon. The circumstances were that the delegate had not considered that issue, and therefore there was no information before the delegate or the Authority about the practicability of relocation to the particular place that the Authority proposed. The Minister argued that, in the present case, in contrast, there was no issue on which the applicants had not had an opportunity to give evidence.
Finally, the Minister argued that the Authority had not given reasons for deciding not to exercise its power under s.473DC of the Act, and was not obliged to. In those circumstances, the Minister argued, the applicants had not discharged their onus of proving that the Authority did not consider the relevant matters.
I consider that this ground is not made out. DGZ16 is binding on this court. It is a more recent decision than CRY16, so I am obliged to follow it. In any event, I accept that CRY16 is distinguishable, for the reason given by the Minister. Finally, I accept that, in the absence of reasons for not exercising the discretion under s.473DC of the Act, and in the absence of an obligation to give reasons for that procedural decision, there is no basis on which to conclude that the Authority’s discretion miscarried on that issue.
Conclusion
As two of the applicants’ grounds have been made out, the Authority’s decisions will be set aside and the Minister will be ordered to pay the applicants’ costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 14 November 2018
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