AUS17 v Minister for Immigration & Anor
[2017] FCCA 1986
•8 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUS17 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1986 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed – whether the Authority overlooked relevant material or misapplied s.473DD of the Migration Act 1958 (Cth) considered – jurisdictional error established. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Migration Act 1958 (Cth), ss.5, 65, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 477 |
| Cases cited: BVZ16 v Minister for Immigration [2017] FCA 958 Minister for Immigration v BBS16 [2017] FCAFC 176 WAEE v Minister for Immigration (2003) 236 FCR 593 |
| Applicant: | AUS17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 111 of 2017 |
| Judgment of: | Judge Driver |
| Hearing dates: | 18 August 2017 and 23 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Clark |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 9 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 |
PEG 111 of 2017
| AUS17 |
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 9 January 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the applicant, filed on 4 August 2017.
The applicant is a male citizen of Sri Lanka and is a Tamil from the Jaffna District.[1]
[1] Court Book (CB) 391
On 10 September 2015, the applicant made an application for a protection visa.[2] However, this was later withdrawn.[3]
[2] CB 66-167
[3] CB 254
On 12 February 2016, the applicant made an application for a protection visa known as a Safe Haven Enterprise Visa (SHEV).[4]
[4] CB 184-231
On 9 September 2016, the delegate decided to refuse to grant the applicant a SHEV.[5]
[5] CB 299
On 14 September 2016, the decision of the delegate was referred to the Authority for a review.[6] It is common ground that the applicant is a “fast track applicant” within the meaning of s.5(1)(a) of the Migration Act 1958 (Cth) (Migration Act).
[6] CB 329
On 9 January 2017, the Authority handed down a decision in relation to the application for review, affirming the decision of the delegate.[7]
[7] CB 386
The applicant’s case before the delegate included claims and evidence that he had a well-founded fear of persecution in Sri Lanka owing to:
a)a fear of mistreatment or violence from the Eelam People’s Democratic Party (EPDP) owing to his previous interactions with the group, such as his testifying against members of that group in 2003, his being accused of trying to kill the leader of that group in 2005 and his being attacked by members of the group in 2008;[8]
b)a fear of mistreatment or violence at the hands of the Sri Lankan army either arising from the applicant’s perceived LTTE connections or because of an accident in respect of which the applicant was charged and fined. The circumstances of the accident were as follows. The applicant had, at the request of two army soldiers, transported them in the back tray of his vehicle. However, the applicant accidentally rolled his vehicle injuring one soldier and killing the other. The applicant was charged and fined for reckless driving but otherwise released, but soldiers in the local army base at which the killed soldier was based did not accept the verdict and tortured and harassed the applicant and harassed his family;[9]
c)a fear of mistreatment or violence arising from his ethnicity or race;[10] and
d)a fear of mistreatment owing to his details having been made publically available by the Minister’s Department leading to a potential awareness in Sri Lanka of the applicant having sought asylum in Australia.[11]
[8] CB 305-308
[9] CB 305-308
[10] CB 312
[11] CB 312
There were also said to be substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned to Sri Lanka he would suffer significant harm on the basis of the same evidence as that relied upon in relation to his Convention claims.[12]
[12] CB 321
The delegate interviewed the applicant on 7 April 2016.[13] The delegate found:[14]
…the applicant to be generally a credible witness. His description of what happened to him in Sri Lanka was sufficiently detailed, consistent and conformed to independent information regarding the situation in that country. At the interview the applicant appeared relaxed and his responses were spontaneous. He did not show any hesitation when answering questions, giving the impression that his responses were not mere fabrications. He was able to clarify matters when asked to do so. He also appeared to recall events from experience.
[13] CB 304 [5]
[14] CB 310 [30]
The delegate accepted as fact the particular factual claims made by the applicant regarding his interaction with the Eelam People’s Democratic Party (EPDP) in 2003, 2005 and 2008 and the accident with the soldiers.[15] However, the delegate found that the particular incidents did not give rise to a well-founded fear of persecution on the part of the applicant because:
a)in the case of the EPDP, the facts suggested that the applicant was not a person of ongoing interest to that group;[16] and
b)in the case of the army, while the soldiers from the particular army base from which the dead soldier was based might continue to seek to harass or attack the applicant, this would not be the approach of the Sri Lankan Army as a whole, and thus the applicant could relocate to a part of Sri Lanka away from that army base.[17]
[15] CB 311 [32]
[16] CB 315 [58], CB 321 [100]
[17] CB 315 [61]-[64], 321 [101]-[106]
The applicant provided written submissions to the Authority on 19 October 2016.[18] Those submissions did not address any matters related to the validity of the factual assertions made by the applicant, nor matters related to his credibility, presumably because such matters were not at issue in the delegate’s decision.
[18] CB 346-350
In contrast to the delegate, the Authority rejected much of the applicant’s evidence. It rejected outright the applicant’s evidence regarding events which happened between 2003 and 2009, finding them to be fabrications to support his visa applications. The Authority relied upon the fact that the applicant had not referred to such events in his entry interview on 4 January 2013 and because of what was included in a medical report dated 20 May 2014 (20 May Report). The Authority also found that, while it accepted that the applicant may have been involved in an accident which killed a soldier and attended Court and was fined, it rejected as embellishment the applicant’s evidence that such accident brought him to the attention of the army and was detained, harassed and tortured by them and/or they had harassed his friends and family.[19]
[19] CB 393-395 [25]-[32]
The 20 May Report[20] was prepared by S Momartin, a clinical psychologist, on 20 May 2014 while the applicant was in immigration detention at Villawood. The 20 May Report notes that “[the Applicant] reported he would like to receive counselling and psychological support from STARTTS”.[21] The report is marked “Strictly Confidential”. The 20 May Report refers to the applicant having described a traumatic event which occurred to him, being the accident involving the soldiers referred to above.[22] The report was not prepared for the purposes of, or as part of, the applicant’s protection visa or SHEV applications (see further discussion below). As well as this report, there are a number of other reports regarding the applicant in the court book, outlined below:
a)report prepared by John Payne, counsellor, on 4 August 2014;[23]
b)report prepared by John Payne on 24 September 2014;[24]
c)report prepared by Sivaharani Mayuran, STARTTS counsellor, on 29 November 2014;[25]
d)report prepared by Ms Mayuran on 9 March 2015;[26]
e)report prepared by Catherine Valenzuela, social worker, on 30 April 2015;[27] and
f)report prepared by Adnan Zagic, STARTTS counsellor, on 31 August 2015.[28]
[20] CB 23-39
[21] Service for the Treatment and Rehabilitation of Torture and Trauma Survivors
[22] CB 26-28
[23] CB 40, 41, 45
[24] CB 57-59, 44
[25] CB 42-43
[26] CB 46-49
[27] CB 50-52
[28] CB 53-56
The Authority referred to the fact that the only traumatic experience referred to in the 20 May Report was the incident involving the death of the soldier in 2011, and not any previous incidents from 2003-2009 in favour of its finding that those previous incidents had been fabricated by the applicant. That is, the Authority reasoned that as the applicant did not discuss with his psychologist the other traumatic events he experienced in Sri Lanka they did not occur. The Authority also pointed to some discrepancies between the 2011 accident as recited in the 20 May Report and the facts as recited in the applicant’s written claims to reject the applicant’s claim that the 2011 accident had brought the applicant to the attention of the army and they had detained and tortured him and harassed his family.[29]
[29] CB 393-395 [25]-[32]
The current proceedings
These proceedings began with a show cause application filed on 23 February 2017. That application had been lodged in the registry on 16 February 2017. That lodgement occurred three days outside the period prescribed in s.477(1) of the Migration Act and the applicant accordingly required an extension of time under s.477(2). I granted that extension of time at the outset of the trial of this matter on 18 August 2017.
The applicant now relies upon an amended application filed on 26 May 2017. There are six grounds in the application:
1. The Authority engaged in jurisdictional error by considering new information without deciding whether there were exceptional circumstances justifying the consideration of such information.
Particulars
a. A confidential psychologist’s report of Ms Momartin regarding the applicant dated 20 May 2014 (20 May Report) was before the Authority when making its decision (Authority’s Decision at [25]).
b. The Authority used the 20 May Report to make findings of credit adverse to the applicant in relation to a number of claims he made, given claimed inconsistencies between his narrative of events in the 20 May Report when compared to his protection visa application (Authority’s Decision at [25] and [29]).
c. The 20 May Report was not before the delegate of the Minister (Delegate) when the Delegate’s Decision was made.
d. Therefore the 20 May Report was “new information” for the purposes of s 473DC(1) of the Act.
e. The Authority did not consider or determine whether there were exceptional circumstances to justify considering this new information as required by s 473DD and therefore could not consider the new information in making its Decision.
2. The Authority engaged in jurisdictional error by considering new information without giving that information to the applicant for comment.
Particulars
a. The applicant repeats particulars a to d of ground 1.
b. The Authority did not provide the document to the applicant for comment as required by s 473DE of the Act.
3. If, contrary to the grounds 1 and 2 above, the 20 May Report was not “new information”, the Authority engaged in a jurisdictional error by failing to consider material in later psychologists reports which supported the applicant’s claims.
Particulars
a. The Authority found that particular events the applicant claimed had occurred in his protection visa application had not been discussed with Ms Momartin in the 20 May Report and this fed into the Authority’s finding that these events did not occur and were concocted by the applicant (Authority’s Decision at [25]-[26]).
b. The Authority did not consider later psychologist’s reports which referred to the applicant having referred to events which the applicant claimed had occurred in his protection visa application (CB42, 43, 45, 52, 55, 59)
4. The Authority engaged in a jurisdictional error by failing to comply with s 473DD of the Act.
Particulars
a. The applicant provided a letter from Appathuray Vinayagamoorthy to the Authority in support of his claims (the Letter).
c. The Authority found that the information was new information and thus s 473DD applied (Authority’s Decision at [10]).
d. The Authority refused to consider the evidence on the basis that s 473DD(b)(i) was not made out in the circumstances.
e. The Authority failed to consider whether s 473DD(b)(ii) applied to the evidence.
5. The Authority erred in its exercise of discretion under s 473DC(3) of the Act, because it failed to afford the applicant procedural fairness by informing the applicant that it intended to make a decision adverse to the applicant on grounds that differed from those of the Delegate.
Particulars
a. Although s 473DA of the Act provides that Division 3 of Part 7AA provides and exhaustive statement of the natural justice hearing rule, the exercise of the discretion afforded under s 473DC(3) must be made in accordance with the established principles of procedural fairness.
b. In accordance with the Authority’s Practice Direction 1 (October 2016) entitled Practice Direction for Applicants, Representatives and Authorised Recipients (Practice Direction), for purposes of the Authority’s review the applicant may have provided a written submission on why the applicant disagreed with the Delegate’s Decision.
c. The Delegate found “the applicant to be generally a credible witness…He also appeared to recall events from experience” and went to onto accept the events which the applicant said had occurred did occur at (Delegate’s Decision [30]-[32]). However the Delegate found against the applicant on the basis that he was not satisfied that those various events led to a well-founded fear of persecution/the complimentary protection provisions were not satisfied.
d. The applicant provided a written submission on 19 October 2016 directed towards the provision of new information in relation to the claims already made, as well as referring to certain matters made in the applicant’s claim which the Delegate had not considered.
e. The Authority, however, made adverse findings regarding the credit of the applicant and rejected wholesale his claims that certain events had occurred between 2003 and 2009 (Authority’s Decision at [17]-[26]).
f. It was a procedurally unfair exercise of the discretion in s 473DC(3) not to inform the applicant that the grounds for refusal of the applicant’s protection visa were going to be different from those considered dispositive by the Minister’s delegate.
6. The Authority’s Decision was ultra vires and infected by jurisdictional error as it was beyond the scope provided by s 473CC(2) of the Act.
Particulars
a. Section 473CC(2) provides the Authority with the power to affirm a fast track reviewable decision or remit the decision for reconsideration, not to vary the decision or make a decision for different reasons to that made below: c.f. powers granted to Administrative Appeals Tribunal pursuant to s 415 of the Act.
b. The applicant repeats particulars c and e to ground 5.
d. The Authority Decision did not amount to an affirmation of the Delegate’s Decision.
At the trial on 18 August 2017, counsel for the applicant informed the Court that Ground 6 would not be pressed. Grounds 1, 2 and 5 were abandoned at the resumed hearing on 23 October 2017 upon the Minister providing evidence that the 20 May Report was provided by the applicant to the Minister’s Department prior to the decision of the delegate.
Thus, only Grounds 3 and 4 remain in issue between the parties.
In addition to the court book filed on 11 May 2017, I have before me as evidence the affidavit of Alexander Lachland made on 20 June 2017 concerning the electronic file maintained by the Minister’s Department and the affidavit of David Clifford Aitchison made on 20 September 2017 which provided evidence bearing upon the now abandoned Grounds 1, 2 and 5. I marked for identification the principal medical report in issue in relation to those now abandoned grounds[30] and a copy of the documents identified at CB 219.[31] Following the trial of the matter the Minister, at my request, filed the affidavit of Courtney Grantham made on 24 October 2017, which completed the record of the material provided to the delegate by the applicant.
[30] MFI A1
[31] MFI A2
Both the applicant and the Minister filed written submissions prior to the trial commencing on 18 August and also made oral submissions on that day and at the resumed hearing on 23 October 2017.
Consideration
Ground 3 – did the Authority fall into error by only considering the medical report of 20 May 2014?
Applicant’s contentions
As referred to above, Ground 3 is predicated on the 20 May Report not being “new information”. As also referred to above, the Authority relied upon the 20 May Report in the manner referred to above, namely that it considered that the failure of the applicant to refer to traumatic incidents prior to 2011 in his interview with the psychologist supported a finding that the applicant had fabricated traumatic incidents prior to 2011 relied on in his visa application. It also relied on discrepancies between the 20 May Report and the applicant’s visa application to find that the 2011 incident did not bring the applicant to the attention of members of the army. However, in its findings[32] there is no consideration referred to by the Authority of other factual incidents referred to in the other reports referred to above, which would be consistent with his claims, for example:
a)“[the applicant] described a history of persecution in Sri Lanka. This included a period of imprisonment during which he was tortured”;[33]
b)“It appears that the multiple traumas he has experienced and witnessed in his country of origin have been compounded by his protracted detention”;[34]
c)“[The applicant] describes…nightmares of past trauma and imprisonment…[The applicant] reported that he was triggered when handcuffed and was reminded of his previous imprisonment and torture he endured. During this time, [the applicant] was observed to be agitated, restless, with rapid speech, flights of ideas and was at times circumstantial”;[35]
d)“It appears that the multiple traumas he has reported experiencing and witnessing in his country of origin have been compounded by his protected detention and ongoing fears for his future”[36] (as referred to above, the applicant included this document as part of his protection visa application).
e)“[The applicant] reported that he had been sleeping poorly, some nights not at all. He frequently has nightmares which commonly relate to his experiences of torture while imprisoned by the military. He also reported having very traumatic memories, eg of killings…Client is worried about his mother, who has cancer, but also troubled by a degree of alienation from his mother, whom the client states has been bringing up the subject of the ‘trouble’ he has caused by leaving the country, as the military has apparently been harassing the family.”[37] (as referred to above, the applicant included this document as part of his protection visa application).
[32] CB 393 [25] and [26] and 395 [29] and [30]
[33] CB 45
[34] CB 48
[35] CB 52
[36] CB 55
[37] CB 59
While the failure by a review body such as the Authority to consider evidence could be considered to be a failure to accord procedural fairness, it can also be considered to be a constructive failure to exercise the jurisdiction, that is, to undertake the review of the fast track reviewable decision pursuant to s.473CC(1) of the Migration Act.[38]
[38] see generally discussion SZSSC v Minister for Immigration [2014] FCA 863 at [81]
As identified by Robertson J in Minister for Immigration v SZRKT,[39] the relevant factors to consider whether a review body is required to consider a document or documents in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, secondly, the place of that material in the assessment of the applicant’s claims. This is an unusual case, given the new procedure brought about by the fast track process. Apart from the 31 August 2015 report, none of the reports referred to above were put forward by the applicant as evidence in favour of his case. Rather, the relevance of those reports arises from the line of reasoning that the Authority chose to pursue, in contrast to the approach of the delegate, which relied on the absence of reference to certain factual matters in the 20 May Report.
[39] (2013) 212 FCR 99 at [112]
The applicant contends that, given the reasoning of the Authority, the evidentiary material referred to above (and not considered by the Authority) was highly cogent, and central to the Authority’s assessment of the applicant’s claims and thus its failure to consider such material gives rise to a constructive failure to exercise jurisdiction. In referring to the 20 May Report as it did, the Authority in effect preferred the accuracy of the facts recited by the applicant to his psychologist giving rise to the 20 May Report over the claims as made by the applicant in his visa applications and in his interview before the delegate. Where the 20 May Report did not refer to certain events referred to in the applicant’s visa application, the Authority determined that those events did not occur. Where there was an inconsistency between the events referred to in the 20 May Report and the events referred to by the applicant in his visa application, the Authority rejected certain aspects of the applicant’s claims in his visa application. Therefore, the Authority must have determined that discussions between the applicant and his medical practitioners/counsellors were more reliable than his evidence given in support of his visa application, which would apply equally to the 20 May Report as the other medical reports. Certainly, at the least, a consideration of all reports would have meant that the Authority could not have so clearly determined that the applicant did not discuss all the factual events referred to in his visa application to his counsellors.
Minister’s contentions
The Minister has three responses to this ground.
First, the Authority said, at [3] of its reasons, that it had regard to the material referred by the Secretary under s.473CB of the Migration Act. That material included treatment summary reports prepared by various STARTTS[40] counsellors on 4 August 2014,[41] 24 September 2014,[42] 9 March 2015,[43] 30 April 2015[44] and 31 August 2015.[45] There is no good reason to assume, as the applicant does, that this material was overlooked merely because the Authority did not refer to it in its statement of reasons. Section 473EA(1) of the Migration Act (read with s.25D of the Acts Interpretation Act 1901 (Cth)) did not require the Authority to refer to every item of evidence before it,[46] but only to set out its findings on material questions of fact and to refer to the evidence or other material on which those findings were based. In the light of what is submitted immediately below, the proper inference to draw from the Authority’s not having referred to these reports is that it did not consider them to be material to its decision.[47]
[40] The New South Wales Service for the Treatment and Rehabilitation of Torture and Trauma Survivors
[41] CB 40-45
[42] CB 57-59
[43] CB 46-49
[44] CB 50-52
[45] CB 53-56
[46] Cf Minister for Immigration v SZGUR (2011) 241 CLR 594 at 605-606 [31] per French CJ and Kiefel J (as her Honour then was). See also WAEE v Minister for Immigration (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ and Minister for Immigration v SZSRS (2014) 309 ALR 67 at [43] per Katzmann, Griffiths and Wigney JJ
[47] Cf Minister for Immigration v Yusuf (2001) 206 CLR 323 at 346 [69] per McHugh, Gummow and Hayne JJ; Minister for Immigration v SZSRS (2014) 309 ALR 67 at [34] per Katzmann, Griffiths and Wigney JJ
Secondly, nothing in the abovementioned reports added anything of substance to what was contained in the 20 May Report. Each of those reports referred, in a broad sense, to the applicant having allegedly been tortured; the fact that he was experiencing feelings of helplessness and anxiety, which, according to the applicant, were caused by his continued detention; his concern for his mother, who has cancer; and his having traumatic memories of the time that he spent in Sri Lanka. These matters were addressed in the 20 May Report under the headings “Brief Family History and Trauma Background”, “Entering Australia and Detention Experience”, “Mental State Examination and Clinical Presentation”, “Current Psychological Condition and Clinical Features” and “Brief Analysis of Current Symptoms”. That report was far more detailed than, and went well beyond the information contained in, the treatment summary reports. Accordingly, contrary to [32] of the applicant’s submissions, those reports did not play an important part in the assessment of the applicant’s claims.[48] To borrow some words of Buchanan, Perram and Rangiah JJ in Pokharel v Minister for Immigration,[49] the treatment summary reports “did no more than rehearse the account given by the [applicant] to [the psychologist who prepared the May 2014 Report]”.
[48] Cf Minister for Immigration v SZRKT (2013) 212 FCR 99 at 130-131 [112] per Robertson J
[49] [2016] FCAFC 34 at [47]
Thirdly, and in any event, even if the Authority failed to have regard to the treatment summary reports (which the Minister does not concede), that cannot, for the reasons given immediately above, sound in invalidity. It cannot be that any breach of s.473DB(1) of the Migration Act results in jurisdictional error even if what was not considered by the Authority was not an important piece of evidence. There is no good reason why the principles articulated by Robertson J in Minister for Immigration v SZRKT[50] ought not to apply to the Authority’s duty in s.473DB(1). As his Honour said at 132 [122], not every instance of ignoring relevant material will amount to a jurisdictional error.
[50] (2013) 212 FCR 99
Resolution
I prefer the Minister’s submissions on this ground, having regard to the particular issue addressed in the ground.
As the Minister submits, there are several difficulties with this ground as expressed. First, it cannot be assumed that the Authority overlooked what appeared to be secondary STARTTS reports which were among the review material which the Authority said it did have regard to.
In my view, the 20 May Report, having been put in issue by the applicant, the Authority was entitled to have regard to it in support of its adverse credibility finding and there was nothing in the far less detailed reports which followed which detracted from that evidence.
The applicant has not alleged that the Authority acted unreasonably or irrationally by preferring a hearsay report of the applicant’s claims to the claims actually put by the applicant to the Minister’s Department. There may have been a number of reasons why the 20 May Report was silent in relation to some of the applicant’s claims. The approach taken by the Authority is somewhat troubling and a different Authority member may well have taken a different approach. The merits of the review are, however, beyond the scope of this proceeding. It was open to the Authority to proceed as it did and the available material does not establish that anything was overlooked by the Authority.
I reject this ground.
Ground 4 – did the Authority fall into jurisdictional error by failing to comply with s.473DD of the Migration Act?
Applicant’s contentions
Included with the applicant’s submissions to the Authority was a letter dated 12 October 2016 from Appathuray Vinayagamoorthy regarding the applicant.[51] The letter stated that Mr Vinayagamoorthy knew the applicant personally and corroborated a number of the applicant’s claims.
[51] CB 351-352
As referred to above, it was accepted that this letter was “new information” and thus could only be considered by the Authority if s.473DD was satisfied. The Authority at [10] stated:[52]
I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate’s decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied any exceptional circumstances exist that justify considering the new information.
[52] CB 388 [10]
Given the above reasoning, it is clear that the Authority considered whether s.473DD(a) and (b)(i) were made out. However, as referred to above, s.473DD(b)(i) and (ii) are alternatives (using the disjunctive “or”). That is, the satisfaction of either will be sufficient. The corollary of that is that both need to be considered, it is not sufficient for the Authority to refuse to consider the document on the basis of one because it is possible for s.473DD(b)(ii) to be made out where s.473DD(b)(i) is not.
The Authority did not refer to its consideration of, nor, given the explicit reference to matters relevant to s.473DD(b)(i) is there any reason to believe the Authority did consider, whether s.473DD(b)(ii) could have been made out in the circumstances. Prima facie, the letter which purported to be from a person known to the applicant personally and which corroborated some of his claims could have been considered to be credible personal information which if previously known could have affected the consideration of the applicant’s claims.
Once the Authority had embarked upon an assessment of whether or not it could consider the new information in the form of the letter, the Authority was required to make that consideration consistent with the terms of s.473DD of the Migration Act. Its failure to do so ought to be considered a jurisdictional error, given that s.473DD forms part of the natural justice requirements of the Authority’s review.[53]
[53] Section 473DA
In oral submissions on 23 October 2017, counsel for the applicant referred me to the recent decision of the Federal Court in BVZ16 v Minister for Immigration.[54] The applicant contends that BVZ16 is not distinguishable and, on the basis of that decision, the Court should find that this ground has been established.
[54] [2017] FCA 958
Minister’s contentions
The Minister submits that the difficulty with the applicant’s complaint is that it overlooks the Authority’s findings with respect to the criterion in s.473DD(a). The Authority was not satisfied that there existed exceptional circumstances to justify considering the letter as the information contained in the letter “recount[ed] the claims already provided by the applicant” and the Authority had “no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister.”[55] The Minister submits that, in circumstances where the new information did not meet the requirements of s.473DD(a), the Authority was not under an obligation to make findings with respect to the criterion in s.473DD(b).
[55] CB 388 [10]
Counsel for the Minister formally submitted, on instructions, that BVZ16 was wrongly decided. Counsel also submitted, on instructions, that I should defer judgment in this matter until other litigation before the Full Federal Court dealing with the same issue as was dealt with in BVZ16 is decided. On 10 November 2017 the Full Federal Court handed down its judgment in Minister for Immigration v BBS16,[56] which endorsed at [102]-[106] the reasoning of White J in BVZ16.
[56] [2017] FCAFC 176
Resolution
I am unable to distinguish this case from BVZ16. Relevantly, in BVZ16 at [9], White J stated:
The requirements of subparas (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.
His Honour continued at [35]-[37]:
The IAA member’s findings in [7] and [8] would have enabled her to conclude that the new information could have been provided to the Minister before the time of the delegate’s decision with the effect that the subpara (a) requirement was not satisfied. However, it seems significant that the IAA member did not express her conclusion in those terms. Instead, the member used only the terms of s 473DD(a). Moreover, and in any event, there is no indication that the IAA member considered the new material having regard to the criterion stated in subpara (b)(ii).
For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1).
I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).
Further, at [46]-[47] his Honour stated:
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”.
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.
I see the same error in this case. The Authority failed to have regard to all material considerations in determining whether to accept the new information pursuant to s.473DD. In particular, the Authority’s consideration in relation to s.473DD(a) was not informed by the consideration of both sub paragraphs of s.473DD(b). Further, a material consideration to which the Authority should have had regard was that the letter in issue was provided to corroborate several of the applicant’s claims, in response to the adverse decision of the delegate. A relevant consideration for the Authority was the probative value of that purportedly corroborative evidence.
It is also pertinent to take into account White J’s rejection of the Minister’s Notice of Contention in BVZ16 concerning the interpretation of s.473DD(b)(ii) of the Migration Act. His Honour stated at [50]-[53]:
The Minister’s contention had its basis in the fact that s 473DD(b)(ii) does not specify expressly the person or persons by whom the information was previously unknown. Counsel submitted that the requirement in subpara (b)(ii) will be satisfied if it is apparent that the information was previously known to the appellant. He submitted further, that in the present case, the new information was of a kind previously known to the appellant.
In my opinion, a number of matters point against the correctness of this submission. Instead, subpara (b)(ii) refers, at least principally, to information not known by the original decisionmaker.
First, as counsel for the appellant pointed out, if there was “credible personal information” not previously known to an applicant, then that information would invariably satisfy the subpara (b)(i) requirement because it would be information which an applicant could not have provided to the Minister before the Minister made the s 65 decision. That being so, the alternative means of satisfying the subpara (b) requirement would be illusory and one would not reasonably suppose that to have been the legislative intention.
Secondly, the reference in subpara (b)(ii) to the effect of the information on the consideration of the applicant’s claims, had it been known, is strongly suggestive that that subparagraph is referring to the knowledge of the original decisionmaker. The IAA is asked to consider the potential impact of the new information on the original decision, thereby implying that it is the effect which the information may have had, had it been known by the original decisionmaker.
At [57], White J concluded that sub paragraphs (b)(i) and (ii) should be understood as referring to different kinds of new information. The former requires a factual inquiry as to whether or not the new information could have been presented to the Minister whereas the latter requires an evaluation of the significance of the new information in the context of the applicant’s claims more generally.
I conclude that there was a constructive failure of jurisdiction by the Authority in this case because of its misapplication of s.473DD of the Migration Act to the new information provided by the applicant.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error in relation to Ground 4. He should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 8 December 2017
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