Azt22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 127
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 127
File number: PEG 34 of 2022 Judgment of: JUDGE LADHAMS Date of judgment: 2 March 2022 Catchwords: MIGRATION – application for judicial review of Immigration Assessment Authority decision – whether Authority misapplied s 473DD(b)(ii) by taking into account substantive findings in determining that new information was not credible – materiality – no jurisdictional error – application dismissed Legislation: Migration Act 1958 (Cth), ss 36, 473BD, 473CA, 473CB, 473DC, 473DD, 476, 477(1), Part 7AA Cases cited: AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
CSR16 v Minster for Immigration and Border Protection [2018] FCA 474
DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260; [2018] FCAFC 33
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477; [2020] FCAFC 159
Division: Division 2 General Federal Law Number of paragraphs: 61 Date of hearing: 18 October 2021 Place: Perth Counsel for the Applicant: Mr H Glenister Solicitor for the Applicant: William Gerard Legal Counsel for the First Respondent: Mr B Kaplan Second Respondent Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
PEG 34 of 2022 BETWEEN: AZT22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
INTRODUCTION
This is an application for judicial review brought under s 476 of the Migration Act 1958 (Cth) (Migration Act). The applicant seeks review of a decision made by the Immigration Assessment Authority (Authority) on 1 October 2020, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa.
The application raises a single ground of review relating to the Authority’s application of s 473DD of the Migration Act. I find that this ground does not establish jurisdictional error and I therefore dismiss the application.
BACKGROUND
Due to the limited issue raised in this application, it is not necessary to set out the background of the matter or to summarise the Authority decision in any great detail.
The applicant is a citizen of Sri Lanka. In June 2015 she and other members of her family applied for a protection visa. This application was refused by a delegate of the Minister and the matter was referred to the Authority in accordance with s 473CA of the Migration Act.
The Authority affirmed the delegate’s decision on 1 October 2020, finding that the applicant did not meet the refugee criteria in s 36(2)(a) of the Migration Act, the complementary protection criteria in s 36(2)(aa) or the family membership criteria in ss 36(2)(b) and (c).
In August 2020, shortly before the Authority made this decision, the applicant provided a statutory declaration containing new information to the Authority. The Authority found that some of the new information in this statutory declaration did not meet the requirements of s 473DD of the Migration Act, and it is the Authority’s findings in this regard that comprise the subject matter of this application for judicial review.
PROCEEDINGS IN THIS COURT
The application to this Court was filed within 35 days of the Authority decision, as required by s 477(1) of the Migration Act.
The sole ground of review reads as follows:
The Second Respondent (Authority) made a jurisdictional error by unreasonably concluding that the claims made by the Applicant summarised at [22] A-C of the Authority’s reasons did not meet the requirements of s 473DD of the Migration Act 1958 (Cth).
The relevant claims of the applicant are summarised by the Authority at [22][A]-[C] of its reasons:
A. In or around 2012, while her husband was in hiding, she was raped by one or more Sinhalese men;
B. The assault resulted in lasting physical damage and she suffers from recurrent pain for which she takes strong painkillers. She also had an operation in Australia because of the pain. She feels as though her memory has been impacted by the assault;
C. Aside from the applicants’ representative, she has not told anyone of the assault, including her male Tamil doctor (in Australia) who she has not been able to tell why she suffers symptoms …
Throughout these reasons, I will refer to the new information summarised at [22][A]-[C] of the Authority’s reasons as the New Claim.
The applicant’s ground was articulated and argued slightly differently in her written submissions. In particular, at [9] and [10] of her submissions, the applicant describes the alleged jurisdictional error in the following terms:
9. The ground of review alleges that the Authority’s conclusion that the Claim did not meet the requirements of s 473DD of the Act was unreasonable. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process.
10. The underlying jurisdictional error in this matter is that the Authority made conclusions in the review on associated and interrelated matters prior to determining whether to consider the Claim. In so doing, the Authority conducted the review in a manner which was contrary to the scheme of
Part 7AA of the Act. Part 7AA and the position of s 473DD within it was considered recently by the High Court in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [2]-[12].
In the Minister’s written submissions, the Minister made the following observations in relation to the applicant’s ground:
6. Framed [as it is in the application], the applicant’s ground of review is misconceived. Reasonableness is implied as a condition on the valid exercise of a discretionary power, a state of satisfaction or an opinion. Section 473DD, however, confers no discretion on the Authority; it, together with s 473DB(1), prohibits the Authority from considering new information in conducting a review of a fast track reviewable decision unless the conditions specified in ss 473DD(a) and (b) are met. While s 473DD(b)(ii) requires a referred applicant to satisfy the Authority of the matters there described, no complaint is made in these proceedings that the absence of satisfaction of those matters was legally unreasonable.
7. When consideration is given to AS [10]-[13], it appears that the applicant’s contention is that the Authority exceeded its jurisdiction because, in concluding that she did not satisfy it about the matters described in s 473DD(b)(ii) of the Act in connection with the New Claim, it reached a final conclusion on its truth. For the reasons that follow, however, the Authority did not err in the manner alleged by the applicant.
When the matter came before me for hearing on 18 October 2021, I invited Mr Glenister, who appeared for the applicant, to clarify the ground of application and comment on the Minister’s characterisation of the ground. Mr Glenister clarified the ground in oral submissions as follows:
I accept, your Honour, that the ground is not framed in the way that I would normally frame it. I have tried to fit a new argument to an existing ground however, the authority I cited was that unreasonableness can attach to an outcome where there is an underlying jurisdictional error. But what the ground really is, is that the Authority has misconceived its review function by essentially proceeding to conduct part of the review before it decided whether or not to admit the new information in question which was, of course, the claim of sexual violence made by the applicant wife ... There does not appear to be any authority directly on this point. BTW17 probably approaches about as close as I can find. But I don’t dispute, as the respondent has pointed out, I think, at paragraph 13, that the Authority was entitled to consider the existing review material in the context of deciding whether the new information comprising the claim of sexual violence was credible.
What the applicant’s position is, is that the Authority went further than that, and the Authority came to a concluded view on one of the applicant family’s claims as a whole and used that finding to essentially find that the credibility of the new claim was significantly undermined. Now, of course, there were quite a few reasons given by the Authority as to why it found the new claim wasn’t credible, but this one, in our submission, is a significant one and it couldn’t be said it didn’t affect the ultimate conclusion. So the precise nature of the jurisdictional error, your Honour, would be that the Authority failed to essentially comply with section 473DB of the Act, which required it to review the applicant’s application on the basis of all the material that was properly before it which would, in an applicable case, include new information.
But as I said, unfortunately the respondent has not joined issue on that specific point as to whether or not it’s permissible for the Authority to make findings on claims and essentially commence the review of the application prior to deciding whether new information is credible or not or deciding whether it will consider new information in the conduct of its review. However, the applicant certainly takes no issue with the respondent’s point that the Authority can have regard to all the material in deciding whether or not a claim is credible. It’s just a question of how far it’s entitled to go. And the authorities that I rely on to that extent, the first one is AEX19 [AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069] at paragraph 61... And the other one is BTW17 [Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159].
…
And it was paragraph 64 through to 79 but, in particular, 68 and paragraph 78(c) which, essentially, just stands for the proposition that whether to consider – deciding whether new information meets 473DD, that is an anterior process to the review itself.
In circumstances where the Minister has not objected to the reframing of the applicant’s ground, I interpret the ground as per the clarification in the submissions.
RELEVANT PARTS OF AUTHORITY DECISION
The following parts of the Authority decision are relevant to the ground advanced by the applicant.
At the start of its decision, from [6]-[39], the Authority considered the various information provided to it by the applicant, identified which parts of that information comprised new information within the meaning of s 473DC(1) of the Migration Act, and made findings for the purposes of s 473DD in relation to the new information. The Authority’s reasons for its findings made for the purposes of s 473DD were set out within [6]-[39] for all new information other than the New Claim.
The Authority summarised the New Claim at [22] (as set out above in these reasons), identified at [23] a submission provided by the applicant, which referred to the New Claim and then said at [24]:
In respect of the new information ‘A - C’, for reasons outlined later in this decision, I am not satisfied that s.473DD is met. …
It then addressed its findings in relation to some of the applicant’s claims, before giving reasons as to why it was not satisfied that the requirements of s 473DD were met in relation to the New Claim.
Immediately before addressing the s 473DD requirements in relation to the New Claim, the Authority rejected claims made by the applicant and her husband that they came to the adverse attention of the Sri Lankan authorities in 2012 and further rejected a claim that the husband was in hiding during parts of 2012. In these reasons, I will refer to these claims generally as claims relating to events in 2012. The Authority’s conclusion in relation to the claims relating to events in 2012 is set out at [75] of its reasons, where it said:
Having considered the evidence in its entirety, I am not satisfied that the applicant or his family came to the adverse attention of the Sri Lankan security services, or any other person or group, in 2012 as claimed. In particular, I consider the wife applicant’s and her husband’s apparent differing evidence as to when the events of 2012 occurred significant which leads me to conclude that they were not recalling a genuine personal experience. I find it difficult to reconcile the applicant’s oral evidence about the order of events and the period he was in hiding with his written claims. Also, the applicant made no mention in the TPV interview of his wife being approached and that she and the child were threatened with death, as per his written claims, despite being asked by the delegate to provide details as to what occurred. Further, the wife applicant’s oral evidence that she was threatened while the applicant was in hiding bore little resemblance to her written claims or the applicant’s written evidence that this occurred after he returned from hiding. I also find the wife applicant’s and her husband’s conflicting evidence about whether they sold the business and the timeframe in which they made the arrangements to leave Sri Lanka not insignificant. Moreover, in contrast to other aspects of their evidence, I considered both the wife applicant’s and her husband’s oral evidence in respect of these purported events to be at times incoherent and lacking in detail which further leads me to doubt they were recalling a personal experience. I am not satisfied the applicant was hiding in 2012.
At [77], the Authority referred to various factors it had considered in reaching these findings. The opening sentence in that paragraph reads:
In coming to these conclusions, I have given consideration to the wife applicant’s evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative.
At [78], the Authority set out the New Claim in greater detail than it did in its summary at [22] of its reasons. It is not necessary in this judgment to reproduce the full details of the New Claim. The Authority then set out its reasons for finding that the requirements of s 473DD were not met in relation to the New Claim at [79]-[87]. Despite the length of these paragraphs, it is convenient to set them out in full (emphasis added to show the aspects of the reasoning which are most relevant to the applicant’s ground):
79. Several reasons have been advanced as to why the new information was not provided earlier. The wife applicant’s evidence in her August 2020 statement is that her lawyer (the applicants’ representative) instigated a meeting with her, without her husband present. She states that her lawyer asked about her experiences of being a woman in Sri Lanka and she revealed the above. The wife applicant states that while she was reluctant to tell her lawyer, she decided to do so when she told her it was important to tell the Australian authorities her whole story. However, as noted earlier, the delegate also highlighted the importance of providing her story in the TPV interview. I also note the wife applicant was specifically asked in the TPV interview about her personal experiences in regard to any harm faced. In response, she said she hadn’t experienced anything personally and that her problems related to her husband and first husband. She was also specifically asked about her experiences as a “single woman” which would have indicated to the wife applicant that the delegate was interested in any gender related incidents. At the end of the interview she was asked if she had any other concerns about returning to Sri Lanka. I note the delegate was female, that she was interviewed without her husband present, and that her former representative, also female, was in attendance.
80. The wife applicant also indicates in her August 2020 statement that she only provides this information now because she had thought her husband’s experiences would be enough for the Australian authorities to realise the applicants could not return to Sri Lanka. I note their TPV application was initially refused back in 2016 and that the new information is only being advanced now, at the third review with the IAA.
81. In the s.473DD submission, the applicants’ representative, with reference to the Department’s policy on gender, states that women may experience social and cultural shame in putting forward their own claims. She states that other obstacles to putting forward claims can include not understanding that experiences are relevant to the family’s claims, language barriers, lack of access to information, trauma associated with the experiences making it very difficult to explain, shame of disclosing experiences, and fears of further harm if the fact of a rape/sexual assault becomes known to family members or others. In respect of the wife applicant, the representative indicates, on the wife applicant’s behalf, that the new information could not have been provided earlier because:
a. the wife applicant was disadvantaged in relation to the TPV process owing to:
i. her very limited English language skills;
ii. her lack of understanding of the TPV process; and
iii. cultural norms which dictate that matters outside the home are to be dealt with by men on behalf of women;
b. the extremely sensitive and traumatic nature of the information, and the consequent psychological and emotional obstacles to the wife applicant disclosing that information to anyone;
c. her former representative did not seek to speak with the wife applicant alone and enquire as to whether she had personal fears of harm arising due to her gender, nor approach assisting with her application in a culturally appropriate manner which took into account her gender. The wife applicant was wholly dependent on her former representative to put forward her case, and that representative did not raise her gender as a basis of the harm feared;
d. the wife applicant was allocated a male interpreter for her TPV interview and it is apparent from the TPV interview recording that the same male interpreter also assisted with the preparation of her TPV application; and/or
e. the wife applicant had been informed prior to beginning the process of applying for protection that some of her personal data had been shared online due to the data breach, creating an understandable lack of faith in the confidentiality of the Department’s data protection systems.
82. The applicant’s representative contends that the outcome of the above is that the wife applicant has not previously been given a genuine opportunity to engage with the protection visa process and to put forward her claims for protection. She submits that for this reason there are exceptional circumstances for considering the new claims and associated country information. The representative further submits that exceptional circumstances exist to consider the new information because the TPV application was lodged by a Registered Migration Agent appointed through the Primary Application Information Service (PAIS), which means the family were assessed by the Department as ‘extremely vulnerable’. She also argues that because the delegate did not explore the question of whether the wife applicant faced harm on the basis of her gender, the IAA should find that this is an exceptional circumstance.
83. I am keenly aware of the difficulties faced by persons with claims relating to sexual assault. I also acknowledge the country information that indicates such events as claimed by the wife applicant were widespread in Sri Lanka at the relevant time. I give some weight to the fact that the wife applicant expressed a fear of sexual assault in Sri Lanka before the delegate and that this, without more, may provide some support for the new information to the IAA. I accept it is not implausible that victims of sexual assault will often decline to disclose their experiences due to factors including general discomfort, shame, stigma, psychological or cultural reasons. I also accept it is possible that a lack of understanding about the protection process and/or the use of a male interpreter could act as a barrier to disclosing claims relating to past sexual assault. I further accept that someone who was affected by the data breach may lack confidence to divulge sensitive information for fear that information may not remain confidential. It is also possible that a legal representative assisting an applicant may not have asked the right questions or sought information in a culturally appropriate manner.
84. I have concerns about some of the reasons advanced by the applicants’ representative as to why the information was not advanced earlier. For example, I am not satisfied the wife applicant was disadvantaged throughout the TPV process due to her limited English language skills or her lack of understanding of the TPV process. Notwithstanding the various reasons to the IAA about why the information was not provided earlier, I note she was assisted throughout the TPV process by a legal representative and confirmed in the TPV interview that she understood Australia’s protection obligations. The delegate emphasised the importance of providing the Department full and accurate protection claims during the TPV process and prior to a decision being made. I am also satisfied her written and oral claims were provided with the assistance of an accredited interpreter. As noted above, the delegate, a female, asked the wife applicant about her personal experiences in Sri Lanka. The interview was conducted without her husband present and with her former representative, also female, present.
85. I also find it difficult to reconcile some of the reasons put forward. On one hand, it is suggested the wife applicant was prevented from putting forward the claims earlier because of the actions (or inactions) of the former representative, because a male interpreter was used, because the delegate did not explore the issues, or due to stigma / shame / psychological / cultural factors. However, on the other hand, it is submitted that she consciously didn’t advance the claims earlier because of a lack of confidence due to the data breach or because she thought her husband’s claims would be accepted. It is difficult to see how the applicants’ ‘PAIS’ status contributed to the non-disclosure of the new information earlier. I have also noted the wife applicant’s claim that she has not explained to her treating doctor the cause of her symptoms though has had surgery in Australia and takes medication, both in connection with the claimed events/assault. However, there is no evidence of the wife applicant having undergone any medical treatment, beyond her assertions.
86. In respect of the new claims themselves, as noted above, I considered the problems with the wife applicant’s and her husband’s evidence about the events of 2012 so significant that I was not satisfied her husband was ever in hiding, which significantly undermines the credibility of the new information. Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information. In particular, the wife applicant’s claim that she opened the door assuming it was her husband returning home and that it didn’t occur to her that anyone else would be knocking on the back door of the house. I simply don’t find this credible in circumstances where both she and her husband claimed that, at the relevant time, the situation was so dangerous that the applicant was forced to leave their restaurant/home and go into hiding. This leads me to further doubt the credibility of the new information.
87. The new claims are not inconsistent with the country information before me. However, when I consider the difficulties with the evidence about the events of 2012 (when the assault is said to have occurred), that the claims are being advanced for the first time over four years since the delegate’s decision and following two previous IAA reviews, the differing reasons advanced as to why it was not provided earlier, the fact the wife applicant was represented by a female representative throughout the TPV process, that she advanced claims before the Minister in respect of her fear of sexual violence, that the female delegate did touch on gender in the TPV interview, that the wife applicant specifically advised in the TPV interview that she had never faced harm personally, and that I am satisfied she was well aware of the importance of raising all claims and evidence prior to the delegate’s decision, I am not satisfied the new information about the sexual assault is credible. I am not satisfied the new information was not put forward earlier due to the wife applicant believing that she didn’t need to because she thought her husband’s experiences/claims would be sufficient, due to her English language skills, due to her lack of understanding of the TPV process, due to shame, stigma, psychological or cultural factors, due to the actions (or inactions) of the delegate or her former representative, due to being assisted by a male interpreter, due to the data breach, due to her ‘PAIS’ status, or for any other reason. I am not satisfied that exceptional circumstances exist to justify considering the new information.
Although the Authority did not find that the New Claim met the requirements of s 473DD, it addressed a separate claim by the applicant to fear harm from sexual violence in Sri Lanka at [107]-[111] of its reasons. The Authority referred to credible reports of sexual violence against Tamil women perpetrated in particular by the Sri Lankan security forces in post-conflict Sri Lanka, and to reports of women in general facing sexual harassment, including on public transport and in other public places. The Authority also referred to an assessment by the Department of Foreign Affairs and Trade (DFAT) that women throughout Sri Lanka face a moderate risk of societal discrimination, including violence. The Authority then concluded at [111]:
I place weight on DFAT’s assessment that overall, women in Sri Lanka face a moderate risk of societal discrimination and violence; this risk, however, particularly relates to domestic or intimate partner violence, which the wife applicant has not claimed. I also note that there is indication from DFAT of legitimate concerns about the risks facing single women or all-female households in Sri Lanka. However, in the wife applicant’s case, I am satisfied that if returned to Sri Lanka she would not be a single woman and not reside in an all-female household. I have accepted that during the conflict, when she was living alone or with her mother, men in an army uniform came trying to get into the house. However, I am not satisfied on the information that there is a real chance of this occurring now or in the reasonable foreseeable future. I am satisfied that if returned to Sri Lanka she would do so accompanied by her husband and live with him as part of his family unit. On the evidence and considering her personal circumstances, I am not satisfied the wife applicant faces a real chance of sexual violence or will be otherwise harmed in Sri Lanka a as women, or Tamil woman, now or in the reasonably foreseeable future.
APPLICANT’S SUBMISSIONS
Application of s 473DD of the Migration Act
In her written submissions, the applicant submitted that ss 473DC and 473DD(b)(ii) of the Migration Act contemplate that new information could be relevant to a referred applicant’s claims and could affect consideration of those claims. The applicant submitted that is ‘distinctly to put the cart before the horse to make findings on claims (in the absence of the new information) and then use those findings as a basis for determining that the new information is not credible.’
The applicant relied on the following comments of Yates J in AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069 (AEX19) at [61]:
Considering the application of s 473DD to new information is part of the IAA’s task in determining the scope of the material properly available to it in order to undertake its review task. Reaching a final conclusion on the truth of the appellant’s claims is a separate and discrete task, which can only be reached on the basis of all the information properly before the IAA for review.
The applicant submitted that the Authority found that the credibility of the New Claim was significantly undermined by the fact that it had found the applicant’s husband had never gone into hiding. It had begun conducting the review prior to determining whether it could consider the New Claim.
In oral submissions, Mr Glenister submitted that the Authority had already made findings at [75] of its reasons about the claims relating to events in 2012 prior to considering whether the requirements of s 473DD were met in relation to the New Claim. The Authority has conducted at least part of the review function prior to deciding whether to receive the New Claim, and this is not what is required of the Authority. The issue was whether the Authority was entitled to use its findings on the claims relating to events in 2012 to impugn the credibility of the New Claim. Mr Glenister submitted that, in this case, the Authority had gone too far, referring to [73] of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477; [2020] FCAFC 159 (BTW17) (discussed further below).
I asked Mr Glenister at the hearing about how I should interpret the opening words of [77] of the Authority’s reasons, where the Authority said:
In coming to these conclusions, I have given consideration to the wife applicant’s evidence to the IAA about the events of 2012 discussed further below.
Mr Glenister submitted that by these words the Authority is suggesting that, at an impressionistic level, the New Claim does not necessarily corroborate the claims about other events in 2012.
Materiality
In her written submissions, the applicant submitted that the alleged error was plainly material because its absence could have resulted in the applicant’s statutory declaration being properly before the Authority and the statutory declaration contained significant claims which could have satisfied the relevant criteria for the grant of a protection visa.
In oral submissions at the hearing, Mr Glenister accepted, in response to the Minister’s written submissions on materiality, that if the claim was that the applicant feared sexual violence in Sri Lanka at the hands of the authorities or anyone else, then the findings of the Authority at [107]-[111] of its reasons would more or less dispose of the claim. However, Mr Glenister submitted that the claim went further than this, and included assertions that the applicant feared sexual harassment, stigma and that her past sexual assault would place her in a vulnerable position if she was subjected to certain types of behaviour while being held in detention in Sri Lanka. The type of behaviour that the applicant expressed concern about was sexual harassment and innuendo from the Sri Lankan authorities. It was submitted that, had the Authority accepted the New Claim, it would alter the profile of the applicant and, consequently, the Authority might have found that the applicant was at a greater risk from sexual harassment because of her vulnerabilities as a person who has previously been sexually assaulted by the Sri Lankan authorities.
Mr Glenister also submitted in his oral submissions that had the Authority found that s 473DD was satisfied in relation to the New Claim, it is not inevitable that the Authority would have reasoned the same way as it did on the claims relating to events of 2012. It was submitted that the claimed sexual assault may provide a basis to explain the inconsistencies in the applicant’s evidence and may explain why her evidence was inconsistent with her husband’s evidence. The Authority made a finding that the claimed events of 2012 did not happen and the husband was not in hiding, and in reaching this finding, it could not have taken into account the New Claim. It then relied on this finding to support its conclusion that the New Claim was not credible. Mr Glenister submitted that, had the Authority not rejected the claims relating to events of 2012 before considering whether the New Claim met the criteria in s 473DD, the Authority might then have found that the New Claim was credible and that it met the requirements of s 473DD. Had the Authority then considered all of the review material together, it might have made different findings about the claimed events of 2012.
MINISTER’S SUBMISSIONS
Application of s 473DD of the Migration Act
The Minister submitted that the Authority engaged meaningfully with the reasons given by the applicant as to why the New Claim was not advanced prior to the delegate’s decision and why the conditions in s 473DD of the Migration Act were met. The Minister submitted that the applicant did not appear to be contending that in assessing the New Claim against the condition in s 473DD(b)(ii), the Authority misunderstood that the section did not require a final determination of the truth of the New Claim but rather an assessment of its believability, and submitted that in any event such an argument would have failed. The Minister identified a number of aspects of the Authority’s reasons at [86] and [87] that support a conclusion that the Authority did not stray beyond an impressionistic evaluation of the credibility of the New Claim.
The Minister identified the applicant’s complaint as being that, in assessing the credibility of the New Claim, the Authority was prevented from relying on the review material given to it pursuant to s 473CB of the Migration Act which bore upon the question of whether the New Claim was capable of being believed. The Minister submitted that in performing the procedural duty under s 473DD, the Authority was entitled to have regard to so much of the review material as was relevant to the assessment of the credibility of the New Claim. The Authority would be stultified in performing its duty under s 473DD(b)(ii) if it were not free to assess new information having regard to the context in which the information is presented. The Minister submitted that in forming a view as to whether the New Claim was credible within the meaning of s 473DD(b)(ii) of the Migration Act, the Authority was entitled to have regard to the problems or difficulties that it had identified earlier in its reasons for decision in respect of the evidence about the claimed events of 2012, which is when the New Claim was said to have occurred.
In oral submissions, Mr Kaplan for the Minister submitted that, in assessing whether the New Claim was credible for the purposes of s 473DD(b)(ii) of the Migration Act, the Authority did not stray beyond an assessment of the believability of the information. The Authority therefore did not make the type of error identified in CSR16 v Minster for Immigration and Border Protection [2018] FCA 474 (CSR16). The Authority was careful not to reach definitive findings as to whether the New Claim was untrue, or false, or not genuine and it did not reject the new claim. Rather, the Authority adopted the language in s 473DD(b)(ii) and found that the New Claim was not credible.
Mr Kaplan submitted that nothing in Part 7AA of the Migration Act prohibits the Authority from assessing the credibility of new information by reference to review material which is before it and to which it must have regard in reviewing the delegate’s decision. The Authority is not only entitled to have regard to the review material before it, but also to form a view about the review material in assessing the credibility of new information under s 473DD(b)(ii). He referred to [72] of BTW17 in support of this proposition (discussed further below).
Mr Kaplan referred to [78(c) and (d)] of BTW17 which he summarised as suggesting that the Authority cannot use new information to impugn a referred applicant’s credibility in the substantive review but then find that the new information must be excluded from consideration because it does not meet the requirements in of s 473DD. The Authority in the present case did not find that it was not satisfied that the claimed events of 2012 occurred because of the view it formed on the New Claim. In the opening sentence of [77] (extracted above), the Authority did nothing more than to make a neutral statement that the New Claim was not corroborative of the events that transpired in 2012.
Materiality
In his written submissions, the Minister submitted that even if there was an error in the Authority’s application of s 473DD to the New Claim, any such error would not be material to the outcome of the review. Had the New Claim been found to have met the criteria in s 473DD and been considered by the Authority, it could not realistically have made a difference to the Authority’s affirmation of the delegate’s decision. This is because the Authority had already considered the applicant’s risk of been sexually assaulted as a woman or a Tamil woman if she was returned to Sri Lanka in the reasonably foreseeable future, and found that she did not face a real chance of such harm because the country information established that those who are particularly at risk of sexual violence were women in domestic situations or single women, and the applicant had not advanced any claims on the basis of being in a domestic situation and was not a single woman.
In oral submissions, Mr Kaplan submitted that the consideration by the Authority of the risk of harm to Tamil women from sexual violence in Sri Lanka extended beyond sexual violence and also included consideration of reports that women in Sri Lanka face sexual harassment and societal discrimination and violence, and these concepts are broad enough to encompass the type of stigma that Mr Glenister referred to in his oral submissions.
Mr Kaplan further submitted that, had the Authority determined that the New Claim met the requirements of s 473DD of the Migration Act, the outcome of the review could not realistically have been different in the face of the Authority’s assessment of the claims that had been made by the applicant and her husband vis-à-vis the events that had allegedly occurred in 2012. The Authority’s findings at [85] and [86] show that the outcome on the review could not realistically have been different had the New Claim met the requirements of s 473DD. It is difficult to see how the New Claim could have overcome the findings on the applicant’s claims about events in 2012, and in this regard, the Authority at [77] found that the New Claim was not corroborative of the claimed events of 2012.
Mr Kaplan also submitted that [86] of the Authority’s reasons shows that it was not persuaded by the believability or credibility of the New Claim, irrespective of its concerns about the claimed events of 2012.
CONSIDERATION
Application of s 473DD of the Migration Act
The first question for the Court’s determination is whether the Authority has erred in its approach to s 473DD by relying on its conclusion about the claims relating to events in 2012, including its conclusion that the applicant’s husband was never in hiding, as part of the reason for finding that the New Claim was not credible for the purposes of s 473DD(b)(ii) of the Migration Act.
I observe at the outset that the applicant has relied on cases such as AEX19 and BTW17, which form part of a line of authorities following Bromberg J’s judgment in CSR16. In CSR16, Bromberg J found that, in assessing whether information is ‘credible’ personal information for the purposes of s 473DD(b)(ii), the Authority is only to look at whether the new information is ‘capable of being believed’ and not whether the new information is true. However, the applicant has not asserted that the Authority made an error of the type identified in CSR16. There is no submission by the applicant in the present case that the Authority assessed whether the New Claim was true rather than whether it was ‘credible’ in the sense that it was capable of being believed.
Considering whether new information meets the criteria in s 473DD of the Migration Act is a step in the conduct of the review that the Authority must undertake to determine whether new information falls within the scope of the material that the Authority must consider in conducting the review: AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 at [6]; AEX19 at [61]; BTW17 at [68].
However, that does not require the Authority to consider the application of s 473DD in isolation from the other review materials. Both parties accepted that the Full Court found in BTW17 that the Authority is entitled to refer to and form an assessment of the existing review materials in determining whether new information meets the threshold requirements of s 473DD, but placed emphasis on different paragraphs of the Court’s reasons. The Minister particularly relied on [72] of BTW17 and the applicant particularly relied on [73]. These paragraphs read (emphasis added):
72Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant — in all these circumstances the Authority is entitled to reflect on and assess the review material already before it — but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions — in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own — fresh — consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
The applicant’s submission is that the present case is an example of where the Authority has gone too far in its assessment of the existing review material in deciding whether the New Claim was credible. It is said to have done this by making a finding on one of the applicant’s claims in the substantive review, and then relying on that finding in assessing whether new information meets the criteria in s 473DD. For the following reasons, I do not accept that the Authority has erred in this manner in the present case.
The applicant’s ground, particularly as it was advanced in oral submissions, appears to be based on a premise that the Authority must determine the scope of materials that it is required to consider before commencing its review of the substantial claims. I accept that, as a general rule, the Authority should avoid rejecting a claim made by a referred applicant without first considering whether new information relevant to that particular claim, and which might affect consideration of that claim, meets the criteria in s 473DD of the Migration Act. However, I do not accept that the Authority cannot ever make findings on some of a referred applicant’s claims for protection, or other issues in the substantive review, before making a finding about whether new information meets the requirements of s 473DD, where that new information could not impact the Authority’s assessment of the particular claims or issues the subject of the substantive finding. There is nothing in the text of s 473DD that would require the Authority to conclusively determine all new information to which it can have regard pursuant to ss 473DC and 473DD before it can make any findings on any of the substantive issues. Nor is there is anything in the cases that the parties have referred to in their submissions, such as BTW17, CSR16, AEX19 and DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260; [2018] FCAFC 33, which requires the scope of the review materials to be finally determined before there is any consideration of any of a referred applicant’s substantive claims.
Sometimes, the Authority’s findings in relation to substantive issues will have an impact on its assessment of the relevance or significance of new information to the review. One example is where a referred applicant provides new information to the Authority which is relevant only to the question of whether the referred applicant can reasonably relocate to another area within the receiving country where that referred applicant would not face a real risk of significant harm. If the Authority finds that the referred applicant would not face a real chance of serious harm or a real risk of significant harm in their home area, then it would not be necessary for the Authority to consider relocation and the new information would not be of any significance to the review. In my view, nothing in s 473DD, or Division 3 of Part 7AA of the Migration Act more generally, would prevent the Authority from making a finding about the referred applicant’s risk of harm in their home area before considering whether new information about the reasonableness of relocation met the requirements of s 473DD. To find otherwise may result in the Authority finding that the criteria in s 473DD are met in relation to new information, and then in the substantive review deciding that it does not need to consider the new information because it is not relevant to the issues before it. This would not be consistent with the High Court’s comments in AUS17 at [6] that:
…Having performed that duty to assess the new information against the specified criteria [in s 473DD of the Migration Act], the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
Another example might arise if the Authority was prepared to accept a claim or fact based on the existing review material and new information was provided by a referred applicant to support or corroborate the particular claim or fact. In such a case, the Authority’s acceptance of the underlying claim or fact might be relevant to its consideration of whether exceptional circumstances exist to justify considering the new information.
I acknowledge that there may be some cases where jurisdictional error may result from the Authority making a finding on one of a referred applicant’s claims for protection, or other issue on the substantive review, and then relying on that finding in assessing that new information is not credible for the purposes of s 473DD(b)(ii) of the Migration Act. This might occur, for example, where the new information is relied on to corroborate a particular claim advanced by a referred applicant, the Authority rejects the claim before deciding whether the new information meets the criteria in s 473DD, and then relies on its rejection of the claim to find that the new information is not credible. However, the present matter is not such a case.
In this case, the New Claim was not new information that had the potential to impact on the Authority’s assessment of the claims about events in 2012. This can be seen from the opening sentence in [77] of the Authority’s reasons, where the Authority expressly acknowledged that nothing in the New Claim was particularly corroborative of the claims about events in 2012. Neither party submitted that the Authority erred in making this finding, and it was not suggested that the Authority had in any way relied on material that did not meet the requirements of s 473DD in assessing the claims about events in 2012. Mr Glenister submitted that the Authority’s statement at [77] is an impressionistic assessment and needs to be interpreted taking into account the limitation in s 473DD and Mr Kaplan described it a neutral statement. I am satisfied that the opening words of [77] are not a reflection that the Authority took into account the New Claim in assessing the claims about events in 2012. Rather it is simply an observation that the New Claim does not corroborate the evidence in relation to the claims about the events in 2012. The implication is that if the Authority viewed the New Claim as being corroborative of the claims about events in 2012, this might have been taken into account in assessing whether the New Claim met the requirements of s 473DD.
In circumstances where the Authority had effectively determined that the New Claim was not relevant to its consideration of the claims about events in 2012, it follows that, at the time that the Authority considered and made findings on the claims about events in 2012, it had before it all material relevant to its assessment of those claims. It did not need to have determined whether it could take into account the New Claim before making findings on the claimed events of 2012 as the New Claim could not have impacted that consideration in any way.
The findings on the claims relating to events in 2012 then formed part of the Authority’s assessment of the review materials before it, which it was entitled to take into account for the purposes of assessing whether the New Claim met the criteria in s 473DD: see BTW17 at [72]. The New Claim was said to have taken place at a time when the applicant’s husband was in hiding. In treating its finding that the applicant’s husband was never in hiding as relevant to the assessment of whether the New Claim was credible, the Authority has not strayed beyond any assessment of whether the New Claim was capable of being believed. It is clear from the language used by the Authority at [79]-[87] of its reasons that its assessment in those paragraphs related to whether the requirements of s 473DD were satisfied, rather than any substantive consideration of the New Claim.
Finally, I note that nothing that the Authority has done in the present case is inconsistent with the case authorities that the parties have referred me to. In particular, the Authority has not conducted the review in a manner which would be inconsistent with the following comments of Mortimer and Jackson JJ at [78] of BTW17:
(c)There is no inconsistency between the approach in CSR16 and the proposition that the Authority may examine other review material as part of its exercise of power under any of ss 473DC; 473DD or 473DE. However, the Authority must not in substance embark on the conduct of its review — making a fresh decision — by using material to determine a visa applicant’s credibility that it then decides to exclude from the review. The scheme does not intend that this can occur. That would be a substantively unfair process, and there would need to be clear words to give this part of the scheme such an operation.
(d)The purpose of s 473DD is not undermined at all by construing s 473DD(b)(ii) in the way we have explained. This argument ignores any holistic consideration of s 473DD, which erects a considerable threshold to the receipt of new information. Further, the purpose of the scheme of Pt 7AA would be undermined by an approach that enabled the Authority to make adverse credibility findings against a visa applicant which were material to the outcome of the review on the basis of “new information” which then did not form part of the review material before it. That would be inconsistent with s 473DB.
The Authority has not here relied on the New Claim to make adverse credibility findings about the applicant and then excluded the New Claim from consideration. The Authority found that the New Claim was not credible. It found that the New Claim did not corroborate the claims about events in 2012. But the Authority did not rely on the New Claim to make any adverse credibility findings against the applicant, whether in relation to the claimed events of 2012 or otherwise.
I find that there was no error in the Authority making findings on the claimed events of 2012 without first deciding whether the New Claim met the requirements of s 473DD, and then relying on its finding that the applicant’s husband was never in hiding in assessing the credibility of the New Claim.
Materiality
If I am wrong in the conclusions expressed above and the Authority has erred in its approach to s 473DD, I would find that the error did not amount to jurisdictional error because it is not material. An error will be material if it could realistically have deprived the applicant of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [45].
The applicant submitted that the error is plainly material because, absent the alleged error, the New Claim might properly be before the Authority and the New Claim might have caused the Authority to find that the applicant met the criteria for the grant of a protection visa.
I do not accept that any error is material on this basis. Had the Authority found that the requirements of s 473DD were met, and considered the New Claim in the substantive review, there is no realistic possibility of a different outcome for the applicant. This is because the Authority has given a clear indication of its views on the New Claim, taking into account all of the material before the Authority.
Put simply, even if it was an error for the Authority to have regard to its finding that the applicant’s husband was not in hiding in 2012 in assessing the credibility of the New Claim for the purposes of s 473DD(b)(ii), it was not an error for the Authority to have regard to that finding in considering the New Claim for the purposes of the substantive review, assuming that it otherwise found that the requirements of s 473DD were met. There is no jurisdictional error asserted in the Authority’s finding that the applicant’s husband was not in hiding in 2012, or the more general finding that the applicant and her husband had not come to the adverse attention of the authorities in or around 2012. It follows that, even if the Authority found that the requirements of s 473DD were met and considered the New Claim to be part of the review materials, it would not have accepted that the applicant was sexually assaulted as alleged. In circumstances where the Authority found that the New Claim was not credible, there is no realistic possibility that the Authority would have accepted the claim.
I do not accept the applicant’s submission that, had the Authority found the New Claim met the criteria in s 473DD of the Migration Act before it considered the claims relating to events in 2012, it might have assessed those claims differently. The Authority, in the opening words of [77] found that the New Claim was not corroborative of the claims relating to events in 2012. In circumstances where the New Claim did not corroborate the claims relating to events in 2012, the Authority could not realistically have reached a different conclusion on the claimed events of 2012 even if it had found that the New Claim met the requirements of
s 473DD.
In circumstances where there is no realistic possibility of the Authority having accepted that the New Claim occurred, it follows that there was no realistic possibility of the Authority finding that the applicant had a profile of a person who had previously been sexually assaulted, and therefore no realistic possibility that this profile might have altered the Authority’s assessment of the claim that the applicant would face as a Tamil woman at [107]-[111] of its reasons.
CONCLUSION
For the above reasons, the application is dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 2 March 2022
0
7
0