AZR19 v Minister for Immigration
[2019] FCCA 3455
•29 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZR19 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3455 |
| Catchwords: MIGRATION – Application for a Safe Haven Enterprise Visa (SHEV) – inconsistencies in and implausibility of applicant’s claims leading to adverse findings as to credibility – application of s. 473DD of the Act – no jurisdictional error – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J, 36(2)(a), 36(2)(aa), 473CB, 473DD. |
| Cases cited: MZJIO v Minister for Immigration and Border Protection [2014] FCAFC 80. BMP17 v Minister for Home Affairs [2019] FCA 112. CED15 v Minister for Immigration and Border Protection [2018] FCA 451. DLB17 v Minister for Home Affairs [2018] FCAFC 230. DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33. DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963. Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429. Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. |
| Applicant: | AZR19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 232 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 1 November 2019 |
| Date of Last Submission: | 1 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 29 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Rebetzke |
| Solicitors for the Applicant: | RAILS |
| Solicitors for the Respondents: | Mr S. Cummings of Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Amended Application for Review filed on 25 June 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 232 of 2019
| AZR19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia by boat as an unauthorised maritime arrival in November 2012.
The applicant participated in an entry interview at Christmas Island on 16 January 2013.
On 22 March 2017 the applicant made application for a Safe Haven Enterprise Visa (SHEV). He attended an interview before the Minister’s delegate on 26 September 2018.
The applicant’s SHEV application was refused by a delegate of the Minister on 6 November 2018. After refusal, the delegate’s decision was referred to the Immigration Assessment Authority (the Authority) for review.
On 7 December 2018 the applicant provided further submissions and material to the Authority.
On 4 February 2019 the applicant’s lawyers provided a statutory declaration to the Authority which was said to be “new information”. [1]
[1] Court Book (CB) pages 124 - 128
On 1 March 2019, the Authority affirmed the delegate’s decision to refuse the application for the SHEV.
On 10 March 2019 the applicant filed an Application for Review of the decision of the Authority.
On 25 June 2019 the applicant filed an Amended Application for Review. The grounds of review of the Amended Application were as follows:
“Grounds of application
1. The Second Respondent misconstrued or misapplied s473DD of the Migration Act 1958 in deciding not to consider the applicant’s statutory declaration dated 4 February 2019.
2. [Not relied on]”
At [23] of its reasons, the Authority recorded the applicant’s claims for protection as follows:
·“He is a married Tamil Hindu from Point Pedro and has a wife and three children who live in Sri Lanka.
·He was most recently a mason worker.
·Around 2005 he undertook compulsory military training for 1- 2 weeks with the LTTE. Each session was about 30 minutes to an hour about basic self-defence. After two weeks he decided to leave. When he stopped he was told by LTTE leaders he had to pay 4500 a month if he left. He made these payments for 6 to 8 months and after that he began paid work for the LTTE.
·In 2006, there was no war at the time and he wanted to go to the Middle East so went to Kilinochchi to get blessings from his relatives before he left. In May 2006 the day he arrived in Kilinochchi war broke out that evening and all roads were shut so he was trapped and could not return home. So he got a job working in a shop.
·When a LTTE intelligence officer came into the store he conscripted the applicant to join their support group. They delivered food, dug bunkers, distributed flyers and supported the soldiers. The LTTE paid him and he worked for them from 2006 to 2009. Within a year his family joined him by ship.
·While he was living in the Vanni area a CID army officer, Mr Naren, visited the applicant's father in law and enquired about his whereabouts and they required the father in law to visit CID every day and sign a register.
·In April 2009 the applicant and his family moved into one of the refugee camps, Chettikulam to take shelter.
·One day in the camp an ex Tamil LTTE soldier pointed the applicant out to the army officer. The officer said the applicant had to report to CID that evening. The applicant went to the CID office. They asked his name and no other questions. They assaulted him, slapped, pushed, and hit his legs, back and feet. He continues to have pain in his ankles and back pain and wears a brace due to the incident. He was let go from his chicken factory job due to back pain from these injuries.
·CID sent him back to the camp and said they would come back to the refugee camp and expect him to be in his tent and require him to report at another date.
·When back in the camp his wife was pregnant and he would stand in the queue for water. But if he saw or suspected there was a CID officer coming to camp, he would leave his position and run back to the tent. While in the camp he was constantly in fear of being identified and asked to report to the CID office. If he went to the shops he disguised himself as an old man and would not help with the open communal cooking.
·When they announced their family name to be released from the camp and attended the desk the man who had pointed him out as L TIE was there. The applicant was asked to stand aside but the family were told to keep going and get on the bus, but they refused and stayed with the applicant. Finally they were asked to board the bus. Once on the bus one of the soldiers pointed him out and asked him to come down, but his wife insisted on staying together so she got off the bus too. The soldier asked for his ID card and wrote his details. They told him they had his details and they would be calling him to the CID office and he would have to report when called.
·They got back on the bus and returned home to where he was originally. The applicant's father in law was not happy he had returned because he was putting the whole extended family in danger as CID was investigating him.
·When the family returned home they were required to register at the local CID. Every family had to do this. The applicant was petrified to do this and refused to do as required. However his family persuaded him it would be ok and to register.
·After the family registered, CID officers came to the house and wrote down his phone number and took a photograph of the family, which they needed for the file. He was paranoid and scared all the time. He took on construction work and was required to work in different work sites. He stayed at different homes, his mother's or sister's place and his own home depending on his work and because he was scared in case CID came looking for him.
·He got a job as a security officer and was posted to different locations. CID would call him and ask for his location. He never would divulge where he was and gave a different location. On one occasion he got so scared he left his job without telling anyone and went home.
·He asked his boss to transfer him to a different area, but this was worse as there was a large CID office in the area. At the new post he shared the shifts with R, who was also wanted by CID. CID visited the applicant at work and asked if he worked with R, but he told them he did not know R. The applicant gave up his job as he did not want to be working with R. So he went back to construction close to his mother's house and started a chicken business.
·While working in construction and the chicken business, there were lots of plain clothes CID in the streets all the time and he was in constant fear. He made secret contact with an agent to get on a boat to leave. While making arrangements he stayed at his mother's house, where he felt safer, and his wife and children stayed at her parents' place, which is the applicant's official residence also.
·One day two men on motorcycles come to the home and asked his mother in law where the applicant was and when he would return. She told them she did not know and they left but said they would be back. After that the applicant decided definitely to leave and left two weeks later. There are still men enquiring about him. The most recent time was in early 2017. The family told them he was in Australia and had not returned. The applicant is not sure who they were or where they came from.
·The applicant fears arrest and torture due to his Tamil ethnicity and status as a former LTTE worker/supporter. He also has the same short name as a senior LTTE officer (K) and this makes him feel vulnerable. He will not be safe anywhere in Sri Lanka because he is on the national list of people wanted by CID and they have taken photographs and a copy of his identity card.
·He provided an expired Sri Lankan drivers licence to the department, but does not have the original. IN Sri Lanka he had a more recent one which he renewed in 201/2011, but he was too scared to go to authorities to renew it properly. So he asked friends who to contact. A boy, he did not know, was a short distance away. The applicant stood near the boy for a while, then the applicant told him he needed to renew his licence and asked what evidence he would need to give. The boy said 3 photos. He provided 3 photos and paid 10,000 rupees and arranged for the licence renewal.
·At the protection interview the applicant provided a hospital discharge report of 5 July 2017 related to his heavy drinking and a March 2016 report about his back pain. He stated he began to drink after release from the refugee camp because he was nervous and scared. He also lost some of his wealth in the Vanni area which caused him to start drinking. When he drinks he acts funny and is a disgrace to his family and has disputes with his brother in law about his drinking. The applicant stated he had back pain, high sugar and cholesterol and would not be able to survive in Sri Lanka with these illnesses.
·At the protection interview he confirmed he had previously agreed to return to Sri Lanka with IOM and changed his mind twice. He claimed that his wife discouraged him from returning until he had his protection interview. The last time he believed her siblings influenced her and she told him if he returned she would report him to authorities. His brother in law lived next door and had police and CID connections and his wife and family have refused to help him because he drinks a lot. He stopped sending money home and his wife did not need his support, because her siblings in the UK provided support. He had not spoken to his wife for nearly 2 months.
·At the airport, he believed he would be easily pushed over as he was small and not physically fit. He also feared harm because his name was similar to common LTTE combatant names. He feared his brother in law will arrange for someone to get him and he will be arrested for 1 to 3 years.”
At [4] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth)(the Act).
At [5] – [7] of its reasons, the Authority referred to further submissions and information having been provided to it on 7 December 2018. A question arose as to whether medical records provided as part of that information were before the delegate. At [7] of the reasons of the Authority, it was noted that on a hearing of the audio recording of the interview before the delegate, the applicant had handed a folder of medical documents to such delegate, whereupon the delegate had said that she would copy them and return them to the applicant at the end of the interview. It was therefore considered by the Authority that those documents were before the delegate because they were referred to in the audio recording of the protection interview. It was concluded by the Authority that such documents were not new information and that the Authority had considered them. In any event, the Authority, at [8] of its reasons, found that such information was credible personal information about the applicant’s medical history and that there were exceptional circumstances justifying the Authority’s consideration of it.
At [9] of its reasons, the Authority accepted that a psychologist’s report dated 6 December 2018 was credible personal information concerning the applicant’s mental health, and that it could have affected the consideration of the applicant’s claims. It was considered that the information satisfied the provisions of s. 473DD(b) of the Act and that there were exceptional circumstances for considering it.
At [11] – [14] inclusive of its reasons, the Authority considered the contents of an ITJP (International Truth and Justice Project) report published in September 2018 concerning the use of sexual violence against Tamil men by Sri Lankan authorities. Though the Authority accepted that the ITJP report was not in existence when the application was prepared and lodged, and that the applicant could not have been expected to have provided such information to the Department independently, the Authority did not accept that the applicant had an inadequate understanding of the process whereby the applicant was encouraged to provide any further information of relevance to his claims. The Authority considered that the applicant could have provided the ITJP information prior to the decision of the delegate. It further found that there was already country information before it concerning the alleged mistreatment of Tamils by the authorities, and that such country information had caused the Authority to accept that torture of Tamils had occurred. The Authority did not consider that the report constituted credible personal information that could have affected the consideration of the applicant’s claims, nor did it consider that there were exceptional circumstances justifying its consideration.
At [16] – [19] inclusive of its reasons, the Authority carefully assessed whether the contents of a statutory declaration made by the applicant on 4 February 2019 were required to be considered pursuant to the provisions of s. 473DD of the Act. The Authority found that the information contained in the statutory declaration could have been provided to the delegate before the making of the delegate’s decision. The Authority noted that the applicant was asked if there was anything that he wanted to add or change at the outset of the interview with the delegate, and that the applicant had been reminded a number of times to provide any information after the interview which he had forgotten to pass on during the course of the interview. It was noted by the Authority that the applicant had engaged with the delegate during the course of the interview with the delegate about the application process, his having challenged why it was a fast-track process, and why there was a requirement that he may not be able to provide new or further information at the “IAA stage”. In those circumstances, the Authority found that the applicant was well aware of his need to provide all relevant information at the time of such interview, or before the making of the delegate’s decision. The Authority did not accept that the applicant did not understand the application process. The Authority further found that it was incredible that the applicant would have forgotten any relevant information, particularly information about his friend named “ME” having allegedly been arrested and taken to the “Fourth Floor” for interrogation, his having allegedly been told of such information by his wife in November/December 2018. The Authority found that the lateness of the making of such claim lead it to doubt its genuineness. It also noted that it was odd that such information would be shared on Facebook in circumstances where the applicant could not himself identify where it had been shared. It was also noted that the statutory declaration provided little information about the circumstances of ME, and that it rather made unattributed general assertions about people disappearing or being detained in Sri Lanka. The Authority did not consider that there were exceptional circumstances justifying its consideration of such information.
At [21] – [23] inclusive of its reasons, the Authority found that new information relating to the status of the relationship between the applicant and his wife was relevant credible personal information would could not have been provided before the making of the delegate’s decision. In such circumstances, the Authority considered that there were exceptional circumstances justifying its consideration.
At [25] and [26] of its reasons, the Authority relevantly set out the refugee assessment and well-founded fear of persecution criteria as provided for in s. 5H(1) and s. 5J of the Act.
At [28] of its reasons, the Authority recorded that it had taken into account the applicant’s submissions regarding his vulnerability due to mental health, physical health and alcoholism reasons when assessing the applicant’s credibility. The Authority found, however, that it was not satisfied that any vulnerability on the part of the applicant explained what was said to be the many inconsistencies and poor history accounting displayed by the applicant. It noted that during the interview process the applicant had been given every opportunity and consideration to properly present his case, even on occasions during the interview when it appeared he had been upset.
At [29] – [36] inclusive of its reasons, the Authority carefully analysed the applicant’s claims that he had worked for the LTTE between 2006 and 2009. It noted that the applicant’s account “was inconsistent, changed significantly and lacked details”.
At [33] of its reasons, the Authority found that it was difficult to believe that the applicant had not mentioned having obtained “other jobs”, and particularly that he had worked for LTTE intelligence.
At [35] of its reasons, the Authority recorded that it had taken into account the obiter dicta comments made by the Court in MZJIO v Minister for Immigration and Border Protection [2014] FCAFC 80 about the caution needed when considering omissions in evidence given at the time of arrival interviews, but it was noted that such interview occurred three months after the applicant’s arrival by boat. The history concerning the applicant’s employment was largely contradicted by what he later said. The Authority found that though the applicant may have come into contact with the LTTE, it did not accept that he had worked in paid employment for the LTTE, had trained with the LTTE, or had made payments to the LTTE as claimed.
At [37] – [47] inclusive of its reasons, the Authority dealt with the applicant’s claims that he had been identified as a LTTE member and beaten in CID offices when he was in a refugee camp at the end of the war. A number of inconsistencies in the applicant’s story were noted in [39] and [40] of the reasons of the Authority. At [42] of its reasons, the Authority noted that it was not credible for the applicant to have claimed that though known by the authorities as being an LTTE member, the authorities would have released him and allowed him to remain in the refugee camp, when country information indicated that many thousands of suspected LTTE members had been rounded up and sent to rehabilitation camps. The inconsistencies generally noted by the Authority lead it to find the applicant was not wanted by the CID or anyone else, it finding that the claims had been fabricated by the applicant to enhance his visa application. His claims were not believed.
At [48] – [61] inclusive of its reasons, the Authority dealt with the applicant’s claims that he had returned home upon his release from the refugee camp in circumstances where he had been required to register and report with the local CID office. The applicant’s account of his further contact with authorities was found by the Authority to be inconsistent. At the time of his arrival interview, the applicant said that a photo of his family had been taken from his home, and that he had been stopped three times and questioned by army personnel. In his statement, however, the applicant sought to correct such account, his saying that he had only been stopped/taken once by the authorities, that being when he had entered the refugee camp. The applicant also stated, contrary to his arrival interview, that the CID had come to his house and taken his phone number and a family photograph. At the protection interview the applicant did not mention the CID visit to his home despite being asked about whether there had been any other interactions with the authorities. At [55] of its reasons, the Authority recorded that though the applicant had claimed that while he was making arrangements to board a boat, two men had come to his house looking for him such that he had definitely decided to leave Sri Lanka, the applicant had not mentioned such alleged events in his protection interview notwithstanding that he had had plenty of opportunity and prompting by the delegate to do so. The Authority did not accept that the applicant would not have remembered those events and not reported them if they were true, and it further found that the applicant’s poor account of events was because he was not recounting a lived experience. The Authority therefore did not accept that the CID wanted him, had phoned him, that they had continued to look for him, or that the applicant needed to hide or move around in different houses or work locations to avoid the CID for fear of harm. It did not accept that the applicant had worked for, or trained for, the LTTE, or that he had been beaten by the CID. At [61] of its reasons, it was noted by the Authority that the applicant had returned to Sri Lanka on a number of previous occasions and that he was not fearful of so returning, finding that he was of no adverse interest to, or wanted by, the CID.
At [62] – [120] inclusive of its reasons, the Authority dealt at length with other claims made by the applicant in relation to:
a)his feelings of vulnerability because he had a nickname similar to LTTE names or the name of an LTTE leader;
b)his having alleged that his brother-in-law did not like him and would cause him to suffer harm because he had police and CID connections;
c)his being of Tamil descent;
d)his having suffered health problems;
e)his having been a failed asylum seeker; and
f)his having departed Sri Lanka illegally.
As to the above, the Authority was painstaking in its consideration of the applicant’s claims. At [121] of its reasons, the Authority found that having had regard to all of the evidence before it, and having considered the applicant’s claims both individually and cumulatively, it was not satisfied that the applicant had a well-founded fear of persecution from the CID, the police, the Sri Lankan authorities, his wife or brother-in-law, or anyone else for any reason, either at that time or in the reasonably foreseeable future.
At [6] – [13] of the outline of Counsel for the applicant filed on 18 October 2019, submissions were made that the Authority had erred in its determination as to whether it ought to consider the new information as set out in the applicant’s statutory declaration of 4 February 2019. It was submitted that the Authority had misconstrued or misapplied the provisions of s. 473DD of the Act. It was further submitted at [20] of the applicant’s submissions that the reasons of the Authority did not demonstrate that the Authority had engaged with the relevant criteria as set out in s. 473DD(b)(ii) of the Act.
At [16] – [20] inclusive of the Authority’s reasons, the Authority specifically addressed issues relating to the credibility and probative value of the applicant’s claims as set out in the 4 February 2019 statutory declaration. The Authority considered the new claim did not satisfy the s. 473DD criteria for it to be considered new information, because it was not considered to be credible personal information. That finding was itself a reason for the Authority rejecting consideration of it. Such issue was identified by Banks-Smith J in BMP17 v Minister for Home Affairs [2019] FCA 112 at [63] where it was said:
“[63] … It must be remembered that there had been no prior mention of the appellant's brother's position in the materials. It seems clear to me that the Authority's identification of the lack of any detail about the brother's circumstances or connection to the appellant revealed an understanding of the need to consider the credibility and probative value of new evidence for the purpose of s 473DD, a matter relevant to s 473DD(b)(ii) but also relevant more generally to the question of exceptional circumstances.”
Further, it was open for the Authority to have made adverse credibility findings based upon the late making of claims in circumstances where, had the claims been true, it would have been reasonably expected that such claims would have been made at a much earlier time. On that issue, in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24] inclusive it was said by Thawley J:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
The Authority was entitled to come to its own conclusion as to the truth or otherwise of the new information contained in the applicant’s 4 February 2019 statutory declaration. The Full Court confirmed that the decision-maker was entitled to do so in DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22], per McKerracher, Barker and Banks-Smith JJ, where it was said:
“[22] In this case, the Authority said that it had considered the question of exceptional circumstances by reference to “all the circumstances”: see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [104]). The Authority was not obliged to articulate its reasoning in any greater detail: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 per Bromwich J (at [25]-[30] and the citations therein cited). The assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b)(ii): AQU17 (at [14]). The Authority is, however, permitted to consider these matters, including by assessing whether the information is credible: AQU17 (at [16]). Even if the credibility of information for the purposes of s 473DD(b)(ii) is to be assessed at the lower threshold suggested by the primary judge (that is that the new information is arguable), there is no prohibition on the Authority going further when considering the requirement for exceptional circumstances. That is, the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances.”
The argument advanced otherwise on behalf of the applicant was that the Authority had misconstrued or misapplied s. 473DD(b)(ii) of the Act. However, the approach adopted by the Authority was to consider whether the new information was such that it was not only credible, but also whether it could have affected the consideration of the applicant’s claims. It did so in a reasoned and considered manner having evaluated both why the information had not earlier been brought forward, as well as the significance placed on such information by the applicant. Those matters were considered by the Full Court of the Federal Court in DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [31] – [34] inclusive, per Tracey, Murphy and Kerr JJ, where it was said:
“[31] The interaction between paragraphs (a) and (b) of s 473DD was noted by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958. His Honour said (at [9]) that:
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.
[32] Later in his reasons His Honour dealt with the construction of the term “exceptional circumstances” in s 473DD(a). Having referred to a number of authorities, he continued (at [41]-[43]):
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).
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.
[33] His Honour’s construction of s 473DD was endorsed by the Full Court in BBS16: see at [102]-[106]. See also CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [17]-[18] (Gilmour, Robertson and Kerr JJ) where another Full Court cited BVZ16 and BBS16 with apparent approval. In CHF16 the IAA was found to have erred in determining that there were no exceptional circumstances to justify it considering new information because it had failed to take into account why that new information had not been brought forward previously and had not addressed the question of whether the material was credible personal information or information of such a character that, had it been known to the Minister’s delegate, it may have affected the outcome of the applicants’ claim: at [44].
[34] In BVZ16 the applicant was unable to point to any express misdirection in the IAA’s reasons which supported the claim that the term “exceptional circumstances” had been misconstrued. White J, nonetheless, accepted a submission that there had been a constructive failure, by the IAA, to exercise its jurisdiction. This was because, in deciding that exceptional circumstances did not exist, the IAA had not sought to evaluate the significance of the new information on which the applicant wished to rely, but had treated as decisive the applicant’s explanation for not having disclosed the new information earlier. This bespoke “an inappropriately narrow understanding of the reach of the term ‘exceptional circumstances’”: see at [47].”
The principles applicable to the duties of a decision-maker were set out by Thawley J in DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963 at [11] – [13] inclusive where His Honour said:
“[11] The operation of this provision has been considered in numerous cases, including: BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 (White J); Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 (Full Court); CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148 (Full Court); DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 (Full Court); AOV18 v Minister for Home Affairs [2018] FCA 1871 (Colvin J); DLB17 v Minster for Home Affairs [2018] FCAFC 230; Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686 (Logan J); CVV16 v Minister for Home Affairs [2019] FCA 1890 (Mortimer J).
[12] The principles relevant for the purposes of the present appeal may be summarised in the following way:
(1) The requirements of s 473DD(a) and (b) are cumulative; that is paragraph (b) contains a requirement additional to that in paragraph (a), applicable only where it is the referred applicant who gives or proposes to give new information to the Authority: Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ); [88] (Gordon J). Where it is the referred applicant who gives or proposes to give new information to the Authority, the Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii): CQW17 at [36]; AQU17 at [13].
(2) The phrase “exceptional circumstances” is not defined. What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which constitute “exceptional circumstances” when viewed together, or one factor of itself may be sufficient for “exceptional circumstances” to exist: AQU17 at [13].
(3) The word “exceptional” is not a term of art and is to be given its ordinary meaning; circumstances are “exceptional” if they may reasonably be seen as producing a situation which is out of the ordinary course, unusual, 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: Plaintiff 174 at [30]; AQU17 at [13].
(4) The matters which the Authority may consider in reaching a state of satisfaction about “exceptional circumstances” to justify considering the new information are unconfined except by statutory context. They would often, perhaps usually, include matters relevant to the Authority’s satisfaction that the new information:
(a) could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or
(b) is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49], citing BVZ16 at [9] and BBS16 at [102]-[103].
(5) Depending on the particular facts, a failure by the Authority to turn its mind to matters which are relevant to subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may reveal jurisdictional error. However, that is not because those considerations are mandatory relevant considerations: AUS17 at [23]. It is a misconception that matters relevant to (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under s 473DD(a): AQU17 at [14]; CVV16 at [24]. The circumstances which might indicate that matters relevant to ss 473DD(b)(i) and (b)(ii) should have been considered in reaching the state of satisfaction in (a) include the nature and cogency of the material and the place of the material in the assessment of the claims: CQW17 at [52], referring to VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [77]; Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [112]; see also: CVV16 at [26].
[13] The key underlying question is whether the Authority exercised its statutory function and did so lawfully. A failure to consider, when reaching the state of satisfaction under s 473DD(a), a matter which is also relevant to ss 473DD(b)(i) or (b)(ii) might demonstrate a misconception on the part of the Authority as to the meaning of “exceptional circumstances” or it might demonstrate a failure properly to exercise the jurisdiction under paragraph (a). That is because, in the particular circumstances of the case, the failure to consider that particular matter indicates a failure properly to exercise the jurisdiction under paragraph (a) or a misconception of the nature of the jurisdiction. It is not because of any failure to consider (b)(i) or (b)(ii) per se.”
The findings of the Authority were clearly open to it.
It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25] – [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further, it cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130] and [135]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
[135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
It was open for the Authority to find that the applicant did not meet the requirements of a refugee as provided for in s. 5H(1) of the Act, and that the applicant did not meet the relevant s. 36(2)(a) criteria.
It was further open to the Authority to find that the applicant had no substantial grounds for believing that as a necessary and foreseeable consequence of being returned to Sri Lanka that there was a real risk that the applicant would suffer significant harm. It was entitled to find that the applicant did not meet the relevant s. 36(2)(aa) complimentary protection criteria.
No jurisdictional error has been established on the part of the Authority.
The Amended Application for Review is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 29 November 2019
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