BDF17 v Minister for Immigration and Border Protection
[2018] FCCA 2095
•5 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BDF17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2095 |
| Catchwords: MIGRATION – Immigration Assessment Authority – temporary protection visa – whether the Immigration Assessment Authority failed to consider the applicant’s ‘new information’ – consideration of ‘exceptional circumstances’ – application dismissed. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Migration Act 1958 (Cth), ss.65, 473CC(2)(a), 473DB, 473CA, 473CB, 473DD, 473EA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Privacy Act 1998 (Cth) |
| Cases cited: Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1; 64 ALJR 327; 93 ALR 1; 18 ALD 77; 33 IPR 263; 33 IR 263 BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 158 ALD 198 Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; 248 FCR 1 Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 Minister for Immigration and Ethnic Affairs vWu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173; 90 ALJR 197; 327 ALR 8; 148 ALD 206 Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16; 92 ALJR 481; 353 ALR 600 SZTSU v Federal Circuit Court of Australia [2015] FCA 224 |
| Applicant: | BDF17 |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 546 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 23 April 2018 |
| Date of Last Submission: | 23 April 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 5 September 2018 |
REPRESENTATION
| Counsel for the applicant: | Ms G Costello |
| Solicitors for the applicant: | Barefoot Immigration & Legal Services |
| Counsel for the respondents: | Mr N Wood |
| Solicitors for the respondents: | DLA Piper |
ORDERS
The applicant’s application for judicial review filed on 20 March 2017, amended on 27 March 2018 and further amended on 30 April 2018 be dismissed.
The applicant pay the first respondent’s costs of the proceeding in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 546 of 2017
| BDF17 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made by the second respondent, the Immigration Assessment Authority (“the IAA”) on 10 March 2017 pursuant to section 473CC(2)(a) of the Migration Act 1958 (Cth) (“the Act”). In that decision, the IAA affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) on 19 January 2017 under
section 65(1)(b) of the Act to refuse to grant the applicant a temporary protection visa (“the visa”).
The IAAs decision can be found in the court book at pages 166 to 180.
The applicant’s application as initially amended on 27 March 2018 advanced two grounds. Ground one was accompanied by two particulars.
At the conclusion of the hearing and having regard to the oral submissions of both parties at the hearing, leave was granted for the applicant to file a further amended application to reflect the further particularisation of ground one. The Minister was also provided leave to file any further response and liberty was granted to both parties to mention the matter before me should that be necessary. The applicant added a further particular in relation to ground one in the following terms:
iii.The material at CB156-160 included “credible personal information” within the meaning of s473DD(b)(ii); and the IAA misconstrued the applicable provision by only considering that material in light of s473DD(i) and not in light of the second and alternative limb – s473DD(b)(ii).[1]
[1] Applicant’s further amended application filed 30 April 2018.
The applicant’s claims
The applicant is a Tamil male of Hindu religion from the north of
Sri Lanka. He claimed that:a)his father was killed in a shell blast in 2009;
b)
his village was under the control of the Liberation Tigers of Tamil Elam (“the LTTE”) until 1995 when the Sri Lankan Army
(“the SLA”) defeated the LTTE;
c)his village was very dangerous due to the ongoing fighting and the applicant was forcibly displaced on many occasions due to the shelling and the SLA approaching;
d)after completing school in 2003, the applicant worked for Tamils Rehabilitation Organisation (“the TRO”) between 2005 and 2006, which was owned by the LTTE;
e)TRO workers were issued with an employee identity card (“ID”) which allowed them to move through both LTTE and SLA checkpoints;
f)in about 2007, two of the applicant’s co-workers were abducted by unknown people and never returned;
g)the applicant travelled to Malaysia in 2007 on a tourist visa and whilst there, he registered with the United Nations High Commission for Refugees (“the UNHCR”);
h)the applicant returned to Sri Lanka in 2011;
i)in June 2011, the SLA detained the applicant, took him to Kachchai SLA camp (“the camp”), tortured him and accused him of supporting the LTTE because of his work for the TRO;
j)after two days of interrogation, the applicant was released on the condition that he report to the camp twice per day;
k)after being released, the applicant went into hiding at his sister’s home and did not report to the camp;
l)the SLA traced him to his sister’s home and when they did not find him there, they threatened his sister and threatened to shoot the applicant if they saw him;
m)
he travelled to Colombo and then left Sri Lanka by boat on
24 October 2012; and
n)since leaving Sri Lanka, the SLA has come to his home looking for him on a number of occasions.[2]
[2] Court book pages 120 to 121 and 168 at paragraph [8].
The IAA’s reasons
The IAA accepted some aspects of the applicant’s claims; in particular, the details he provided about his employment and travel history. It did not find credible however, the applicant’s evidence about his alleged detention in 2011, his subsequent evasion of the authorities and the circumstances leading to his decision to leave Sri Lanka in 2012.[3]
[3] Court book at page 169 at paragraph [10].
The IAA accepted that the TRO was in an LTTE controlled area and that the applicant moved through LTTE and SLA checkpoints, but did not accept that the applicant was of any interest to the SLA at the checkpoints.[4]
[4] Court book at page 169 at paragraph [12].
The IAA also expressed concerns about the applicant’s evidence regarding his experiences on his return from Malaysia. In particular, the IAA found the applicant’s evidence about his detention and what happened after his release to be farfetched and lacking in credibility.[5]
[5] Court book at page 170 at paragraphs [16] to [18].
The IAA concluded that the applicant was not of interest to the SLA nor was the SLA searching for the applicant at any time, including since his arrival in Australia.[6]
[6] Court book at page 171 at paragraphs [20] and [21].
Legislative pathway
This application was dealt with under part 7AA of the Act. Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to provide a limited form of review of a ‘fast track decision’. Part 7AA applies to, among others, ‘fast track review applicants’ who were unauthorised maritime arrivals who entered Australia on or after
13 August 2012 but before 1 January 2014 and who had not been taken to a regional processing country.[7] A decision to refuse a fast track applicant a protection visa is a ‘fast track reviewable decision’.[8]
[7] Migration Act 1958 (Cth), s 5.
[8] Migration Act 1958 (Cth), s 5.
In essence, the scheme established in part 7AA of the Act provides for:
a)the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable;[9]
b)the Minister to provide the IAA with the delegate’s reasons and the material provided by the applicant in support of his or her application as well as any other relevant material in their possession or control;[10]
c)the IAA to review the decision and either affirm the decision of the delegate or remit it to the delegate for reconsideration with such directions or recommendations as permitted by the regulations;[11]
d)Division 3 of Part 7AA is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the IAA;[12] and
e)importantly for present purposes, section 473DB of the Act relevantly provides:
i.Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
[9] Migration Act 1958 (Cth), s 473CA.
[10] Migration Act 1958 (Cth), s 473CB.
[11] Migration Act 1958 (Cth), s 473CC.
[12] Migration Act 1958 (Cth), s 473DA.
(i)without accepting or requesting new information; and
(ii)without interviewing the referred applicant.
It is in this context that section 473DD of the Act relevantly provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65;or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.[13]
[13] Migration Act 1958 (Cth), s 473DD.
Section 473DD is not a discretionary provision. It is mandatory in the sense that the IAA must form a state of satisfaction about the new information and absent that state of satisfaction, the IAA cannot consider the new information.
Section 473DD also makes a distinction between new information provided by an applicant and new information otherwise obtained by the IAA. In the case of new information provided by an applicant, the IAA must be satisfied both that (a) and either (b)(i) or (b)(ii) have been satisfied. Whereas in the case of information otherwise obtained by the IAA, it only needs to be satisfied of the requirements in (a).
In addition, section 473DD(a) imposes a requirement that the IAA itself is satisfied that there are exceptional circumstances, whereas section 473DD(b) imposes an obligation on the applicant to satisfy the IAA of either (i) or (ii).
Ground one
As stated above, the first ground of review as amended is:
The IAA misconstrued and misapplied s473DD of the Act in relation to four pieces of new information provided by the Applicant.
Particulars
i.Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the Applicant’s explanation as to why he had not previously provided the country information, the IAA reasoned that, because the Applicant had been given five months to provide country information between the TPV interview and delegate’s decision, the IAA was not satisfied that there were exceptional circumstances.
ii.In deciding exceptional circumstances did not exist, the IAA did not evaluate the significance of the new information but treated it as decisive that the Applicant had been given five months to provide country information between the TPV interview and delegate’s decision, which bespoke “an inappropriately narrow understanding of the reach of the term ‘exceptional circumstances’”: see BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [47].
iii.The material at CB156-160 included “credible personal information” within the meaning of s473DD(b)(ii); and the IAA misconstrued the applicable provision by only considering that material in light of s473DD(b)(i) and not in light of the second and alternative limb – s473DD(b)(ii).[14]
[14] Applicant’s further amended application filed 30 April 2018.
Particulars (i) and (ii) relate to the manner in which the IAA considered the question of whether there were exceptional circumstances.
Particular (iii) relates to whether the new information contained ‘credible personal information’ and therefore ought to have been considered under section 473DD(b)(ii).
Background
The IAA wrote to the applicant on 24 January 2017 acknowledging receipt of the referral of the delegate’s decision. In that letter, the IAA relevantly advised the applicant:
…the IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.[15]
[15] Court book at page 136.
The Practice Direction[16] relevantly refers to section 473DD of the Act and says:
22.…We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.
23.If you want to give us new information, you must also provide an explanation as to why:
·The information could not have been given to the Department before the decision was made; or
·The information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.[17]
[16] Court book at pages 138 to 141.
[17] Court book at page 140 at paragraphs [22] and [23].
The applicant provided a response by email dated 13 February 2017.[18] In this response, as well as addressing the decision to refuse his temporary protection visa, the applicant also submitted two documents and made reference to a further two website links.[19]
[18] Court book at page 151.
[19] Court book at pages 154, 156 to 160.
In its decision record, the IAA referred to this information in the following terms:
(3)On 14 February 2017 the IAA received a submission from the applicant in the form of a statutory declaration. The submission reiterates claims made to the delegate and contains arguments in response to issues in the delegate’s decision. To that extent I consider these elements do not constitute new information as defined in s473DC(1) of the Act.
(4)The submission also takes issue with the delegate’s finding that the applicant’s claim to have escaped from the Sri Lankan Army (SLA) on two occasions when they came to his sister’s house to detain him, to be implausible. In response the applicant has put forward that his sister’s house is located in a remote area and it is possible to hear trucks approaching from a distance…This information was not before the Minister when the delegate made the decision, may be relevant to the applicant’s claims for protection, and as such is new information. As the delegate did not put his concerns on the credibility of the applicant’s claim to have escaped in this manner, I am satisfied that the applicant’s explanation was not, and could not have been provided to the Minister’s (sic) before the delegate’s decision. I am also satisfied exceptional circumstances exist to justify considering this new information, which I have done in full, below.
(5)The IAA submission lists four pieces of country information, none of which were before the delegate and are ‘new information’. The applicant states the first piece is a media release (undated) concerning the abductions of Tamil Rehabilitation Organisation (TRO) employees in 2006. The applicant states the second piece, dated 10 March 2016, is an Amnesty International Report regarding the same abductions. The third piece is a hyperlink to what appears to be a Youtube video and the fourth is a hyperlink to what appears to be a Freedom from Torture report; neither hyperlink was functional at the time of this decision.
(6)I note the applicant was represented at his TPV interview, during which the delegate advised he would take into consideration any further information the applicant wished to provide, if received prior to making his decision. The same representative assisted the applicant with his IAA submission, which contains the new information. The applicant has claimed he could not provide this earlier because his TPV interview was held on 22 August 2016 and he only found the new information after the delegate’s decision. I note the delegate made his decision on 19 January 2017, and I consider the five months which elapsed between the TPV interview and the delegate’s decision to be an adequate period for the applicant to source supporting country information. I am not satisfied there are exceptional circumstances to justify considering the new information.[20]
[20] Court book at page 167 at paragraphs [3] to [6].
It was submitted on behalf of the applicant that:
a)the two documents which the applicant physically attached to his application were proffered in response to the delegate’s statement that he did not accept that the applicant had been detained by the SLA in June 2011; and
b)the other two documents which were attached by way of hyperlinks were put forward in response to the delegate’s finding that the applicant would not be harmed if returned to Sri Lanka.[21]
[21] Applicant’s outline of submissions filed 27 March 2018 at paragraphs [6] and [7].
Exceptional circumstances
Counsel for the applicant submitted that in dealing with all of this
‘new information’, the IAA committed the same error as that identified by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 (“BVZ16”).[22]
[22] Endorsed by the Full Court of the Federal Court in: Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176; 158 ALD 198 and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [17]-[18].
Essentially, counsel submitted that in coming to its conclusion as to whether there were exceptional circumstances for the purposes of section 473DD(a) of the Act, the IAA only considered the reasons proffered by the applicant for not having provided the country information to the delegate. In doing so, it was argued that the IAA failed to properly consider any other matters that may have been relevant to the question of whether ‘exceptional circumstances’ existed and therefore failed to exercise its statutory task.
In concluding that ‘exceptional circumstances’ did not exist, it was submitted by the applicant that the IAA did not evaluate the significance of the new information and therefore the IAA misconstrued and misapplied section 473DD of the Act.
In response to the exceptional circumstances aspect of the applicant’s case, counsel for the Minister submitted:
a)the applicant did not clearly articulate what, if any, ‘exceptional circumstances’ justified considering the new information, namely any circumstances which were ‘unusual or out of the ordinary’ justifying a departure from the usual approach that applies to applicants under the ‘fast track’ scheme in Part 7AA of the Act;
b)in any event, paragraphs 5 and 6 of the decision record should not be taken as a complete statement of the IAAs reasons on the basis that the decision as to whether or not to consider ‘new information’ under section 473DD is ‘procedural’ and there is no duty on the IAA to provide reasons in respect of such decision; and[23]
c)in those circumstances, namely where a decision maker is not obliged to give reasons for a decision, “it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the [decision-maker]” (emphasis in original).[24]
[23] Migration Act 1975 (Cth), s 473EA(1); Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 at [31] and [66]-[73].
[24] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173; 90 ALJR 197; 327 ALR 8; 148 ALD 206 at [25].
As stated, the applicant relied upon the line of authority in the
Federal Court commencing with the decision of BVZ16 of White J, whose comments were stated with approval in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; 158 ALD 198 (“BBS16”) and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 (“CHF16”) . This court is clearly bound by the reasoning in those decisions.
In BVZ16, White J noted that:
…the Court should keep in mind the caution emphasised by the plurality in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that it “should not be concerned with “looseness in the language’” nor with “unhappy phrasing” in the reasons of decision-makers such as the IAA and should not construe those reasons minutely “with an eye keenly attuned to the perception of error”.[25]
[25] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [30].
Accepting this as a general statement of principle, White J went on to say:
…despite these cautions, I do not consider that the reasons of the IAA can be construed in the way for which counsel for the Minister contends. The structure of the reasons counts strongly against that understanding of them (emphasis added).[26]
[26] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [31].
White J also noted in BVZ16:
Generally… circumstances will be exceptional if they are unusual or out of the ordinary…[27]
[27] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [39].
…
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…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.[28]
[28] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [42].
Against this background, White J concluded that on the facts:
The IAA member does seem to have reasoned that her rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term “exceptional circumstances” (emphasis added).[29]
[29] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [47].
His Honour therefore found that this amounted to a jurisdictional error; that is, in considering whether exceptional circumstances existed, the IAA only considered the explanation for the applicant not having provided the information before. In BBS16, the Full Court of the
Federal Court agreed with the reasoning of White J discussed above and concurred that the IAA had adopted an ‘inappropriately narrow’ understanding of the phrase ‘exceptional circumstances’.[30]
[30] Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176; 158 ALD 198 at [102].
In BBS16, the Full Court also said in relation to BVZ16:
White J found that the IAA had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in applying s 473DD. In particular, his Honour found that the IAA was wrong to reason that there were no exceptional circumstances because the rejection of the referral applicant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional (emphasis added).[31]
[31] Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176; 158 ALD 198 at [77].
The applicant also sought to rely on CHF16 in which the Full Court of the Federal Court again considered a submission that the IAA adopted an incorrect interpretation of the term ‘exceptional circumstances’ pursuant to section 473DD of the Act.
In CHF16, the IAA, after reciting the relevant ‘new information’ and noting that the applicant had been represented throughout the proceeding and was invited to put forward any additional information to the delegate before making its decision, stated:
This new information relates to events which occurred prior to the primary decision being made. I am not satisfied there are exceptional circumstances to justify considering the new information.[32]
[32] CHF16 v Minister for Immigration & Anor [2017] FCAFC 192 at [15].
In CHF16, the Full Court concluded:
In our opinion, the proper and fair reading of... the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claim. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. We have read the paragraph as a whole and in context.[33]
[33] CHF16 v Minister for Immigration & Anor [2017] FCAFC 192 at [44].
As stated, it was argued by the applicant in the present case, that the IAA had made a similar error to that identified in the line of authorities discussed above and that as this court is bound by the reasoning in BVZ16, BBS16 and CHF16, a similar finding ought to be made.
As noted by the Full Court of the Federal Court in BBS16:
[104] … the phrase “exceptional circumstances’ is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or (not) there are “exceptional circumstances”.
[105] For the reasons given by his Honour, including his references to relevant extrinsic material, we respectfully agree that subparagraph (b)(i) and (ii) should be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally.
For the following reasons, I find that the facts in this case are distinguishable from BVZ16, BBS16 and CHF16.
Firstly, it is significant that the IAA in this case did not reject all of the ‘new information’ submitted by the applicant. As noted above, the applicant provided a statement to the IAA which attached two documents and made reference to two websites.
The IAA accepted that:
a)some of the content of the statement was in the form of submissions and therefore did not constitute ‘new information’; and
b)of the remainder of the statement and attachments which the IAA concluded was ‘new information’:
i)some was determined to be responsive to concerns raised by the delegate’s reasons and the IAA was satisfied that this information met the requirements of section 473DD(a) and (b)(i) and therefore considered that information in full; and
ii)the remaining information which the IAA characterised as ‘four pieces of country information’ was found to also be ‘new information’ but the IAA concluded that it was not satisfied that this information met the requirements of section 473DD(a) and (b) and therefore the IAA did not consider this information.
In BVZ16, BBS16 and CHF16, the ‘new information’ which was submitted but not considered by the IAA, was information about or directly related to the applicants themselves. It was not in the form of general information which might properly be characterised as
‘country information’. It was clearly information which could potentially have fallen within section 473DD(b)(ii). In each case, the IAA failed to consider whether it did so.
For example, in the case of BVZ16, the further information included additional claims which the applicant had not previously raised about being detained for two days by the SLA, tortured and assaulted. In BBS16, the applicant sought to put before the IAA further information about his political activity, participation in political rallies and his involvement with a football team. In CHF16, the new information largely related to the harassment to which the applicant’s family had been subjected.
In CHF16, the Full Court concluded:
[44] In our opinion, the proper and fair reading of [5] the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellant’s claim.
By comparison, in the present case, some of the information contained in the applicant’s statement fell into a similar category and the IAA had regard to that information; in particular, the clarification about the sister’s home and how it was that the applicant was able to escape from his pursuers.
The exclusion of the two documents and two websites must be viewed in context.
It is clear from the authorities that in coming to a conclusion in relation to section 473DD(a) of the Act, the IAA must consider whether exceptional circumstances exist. Whilst the factors in sections 473DD(b)(i) and (ii) may be part of the factual matrix to which the IAA has regard in considering whether exceptional circumstances exist, the nature of the matters which might be relevant to a consideration of exceptional circumstances is not limited to those two matters.
However, there is an onus on the applicant to at least identify those factors which they say constitute ‘exceptional circumstances’. No such factors were identified in the applicant’s material before the IAA. Even at the hearing, counsel for the applicant did not identify any factor which could be said to have constituted ‘exceptional circumstances’ and to which the IAA did not have regard. For this reason, I find that it was open to the IAA on the material before it to conclude that there were no ‘exceptional circumstances’ for the purposes of section 473DD(a).
Moreover, I find that a fair reading of the IAAs reasons for decision in this case, as contemplated by Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259; 70 ALJR 568; 136 ALR 481; 41 ALD 1 (“Wu Shan Liang”), does not lead to the conclusion that the IAA determined that there were no
‘exceptional circumstances’ in this instance because there was insufficient reason to explain why the applicant had not provided this information to the delegate.
The Minister also submitted that in considering the IAAs reasons, regard must be had to the fact that the IAA is not required to give reasons for procedural matters or decisions taken on the path to completing its statutory task under section 473CC.
In support of this submission, the Minister referred to and relied upon the High Court’s decisions in Minister for Immigration and Citizenship v SZGUR and Anor [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 (“SZGUR”) and Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173; 90 ALJR 197; 327 ALR 8; 148 ALD 206 (“Plaintiff M64/2015”).
In response, the applicant argued that the IAA was required to provide reasons as to the process by which it reached its state of satisfaction under section 473DD by virtue of either section 473EA or section 25D of the Acts Interpretation Act 1901 (Cth).
A similar issue was raised but not ultimately argued or determined in CHF16.[34] The Minister pressed that argument in this instance.
[34] CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [49].
SZGUR dealt with a case in which an applicant had asked the tribunal to exercise its powers to obtain an independent assessment of the applicant’s mental health. The tribunal ultimately did not arrange any such assessment. In its reasons for decision, it made reference to the correspondence from the applicant’s agent; however, made no reference to the request for an assessment.[35]
[35] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 at [15].
The tribunal made a decision adverse to the applicant and on judicial review, the issue was whether the tribunal had failed to consider the request for a medical assessment.[36] The question before the High Court was whether an inference could be drawn that the tribunal had either overlooked the request, not considered it, or alternatively had no good reason for denying it based on the fact that it was not referred to in its reasons. This turned on the nature of the tribunal’s obligation under section 430 to give reasons for its decision.
[36] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 at [18].
It is settled law that section 430 of the Act “entitles a court to infer that any matter not mentioned in the section 430 statement was not considered by the Tribunal to be material.”[37] However, French CJ and Kiefel J found:
Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation.[38]
[37] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [346] as quoted in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 at [31].
[38] Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594; 85 ALJR 327; 273 ALR 22; 119 ALD 1 at [32].
Similarly, Gummow J noted:
[69]… para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. … The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its ‘decision on a review’. There may be situations where a procedural decision forms part for the Tribunals’ “reasons for decision” under para (b) but that is not so here.
[70] An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430 (1) requires the Tribunal to set out, should not be drawn lightly.[39]
[39] See also [91]-[92] of Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at which Heydon J and Crennan J agreed with the reasons of French CJ and Kiefel J and Gummow J.
Similarly, in Plaintiff M64/2015, the High Court stated:
It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decisions and so it is difficult to draw and inference that the decision has been attended by an error of law from what has not been said by the Delegate (emphasis in original).[40]
[40] Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; 258 CLR 173; 90 ALJR 197; 327 ALR 8; 148 ALD 206 at [25].
Section 473EA(1) of the Act relevantly states:
If the Immigration Assessment Authority makes a decision on a review under this Part, the Authority must make a written statement that:
(a) sets out the decision of the authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
Section 25D of the Acts Interpretation Act 1901 (Cth) in turn provides:
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
In light of the approach taken in SZGUR and Plaintiff M64/2015, it is not apparent that section 25D adds much to the proposition advanced on behalf of the applicant. SZGUR was decided in the context of
section 430 of the Act which is, in substance, in the same terms as
section 25D of the Acts Interpretation Act 1901 (Cth). To the extent that section 473EA imposes a more limited obligation on the IAA than section 25D of the Acts Interpretation Act 1901 (Cth) would,
section 25D gives way to the more specific obligations in section 473EA. To the extent that it has any work to do in this context, section 25D does not, in my view, impose an obligation on the IAA to give reasons of procedural questions.
The applicant submitted that even if the Minister is correct and the IAA is only required to give reasons in relation to its final decision and not for the procedural decisions made along the way, it is nonetheless appropriate for the court to have regard to any reasons given to determine whether or not there has been a jurisdictional error.
I agree with this submission. So much is clear from the extract from Plaintiff M64/2015 set out above. However in construing those reasons, the court should have regard to Wu Shan Liang and the court should be slow to conclude that the tribunal did not consider something from the absence of detailed reasons.
For the reasons set out in paragraph 50 above, the tribunal’s reasons do not disclose any jurisdictional error as alleged. It is also clear from the IAAs reasons that it was aware of the limitations on its ability to consider ‘new information’. So much is clear from the fact that it specifically considered various different categories of ‘new information’ proffered by the applicant. For example:
a)it considered part of the applicant’s statement was in the nature of submissions and not therefore ‘new information’; and
b)it accepted that to the extent that the applicant provided more information about the physical layout of his sister’s home, this was not information that could have been provided to the delegate and that there were exceptional circumstances in relation to that information.[41]
[41] Court book page 168 at paragraph [7].
For each of these reasons, the particulars at (i) and (ii) of ground one do not disclose a jurisdictional error.
Personal information
By its amended application, the applicant argued that the documents attached to the applicant’s statement[42] contained personal information, the IAA failed to consider whether section 473DD(b)(ii) of the Act was engaged and this amounts to a jurisdictional error.
[42] Court book pages 156 to 160.
The Minister raised two arguments in response to this proposition:
a)first, the information in the two articles and the websites were found by the IAA, at least implicitly to be ‘country information’ and therefore it should be inferred that the IAA did consider whether it contained personal information and concluded that it did not; and
b)secondly, in any event, relying on SZGUR, the IAA is not required to give reasons for procedural or interlocutory steps along the way to making its final decision and in those circumstances, the court ought not draw an adverse inference from what has ‘not been said’ in the IAAs decision about its reasoning in reaching the requisite state of satisfaction under section 473DD of the Act.
I will address each of these in turn.
The Act defines ‘personal information’ by reference to the definition of that term in the Privacy Act 1998 (Cth) as follows:
personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
(d) whether the information or opinion is true or not; and
(e)whether the information or opinion is recorded in a material form or not.
It was argued for the applicant that as the documents attached to the applicant’s statement identified a number of individuals, they contained personal information as defined. It is common ground that these documents do not contain information about the applicant himself.
The Minister conceded that the broad definition of ‘personal information’ has to be addressed. However, it was submitted that to engage section 473DD (b)(ii) of the Act, the IAA needed to be satisfied that the documents contained “credible personal information which may have affected the consideration of the referred applicant’s claim.”[43] Counsel for the Minister then questioned whether it could be said that the personal information in those documents; that is, the names of the individuals, could have affected the IAAs consideration of the applicant’s claims.
[43] Transcript page 18.
If not, it was submitted that section 473DD(b)(ii) of the Act has not been engaged.
It was also submitted on behalf of the Minister that if a different view were taken, most ‘country information’ which contains the name of a politician, other individual or, indeed in the case of an article, the name of the journalist, would arguably contain personal information and engage section 473DD(b)(ii) of the Act. There is some force to this argument.
By loose analogy, the Minister referred the court to SZTSU v
Federal Circuit Court of Australia [2015] FCA 224 (“SZTSU”) in which Mortimer J considered a claim that there had been a breach of the tribunal’s obligations under section 424A of the Act. The case involved the tribunal’s reliance upon an article concerning an Indo-Fijian man and his views and experiences of the situation in Fiji for Indo-Fijians following the coup in 2006. The question was whether the article could properly be characterised as information “specifically about … another person” within the meaning of that phrase in section 424A(3)(a) of the Act.In accepting the Minister’s submissions in that case, Mortimer J said:
Just because it is an opinion about a country situation expressed by an identifiable individual does not take it outside the exclusion, in my opinion.[44]
[44] SZTSU v Federal Circuit Court of Australia [2015] FCA 224 at [10].
Although the decision in SZTSU relates to a different provision, it is nonetheless relevant. The mere fact that general information about a particular situation identifies individuals does not, in my view, bring that general information within the meaning of the term ‘credible personal information’ for the purposes of section 473DD(b)(ii) of the Act. The broad definition of the term ‘personal information’ must be read in the context of section 473DD(b)(ii) of the Act, such that there must be a link between the personal information and the applicant. In this case, the articles were relevant to the applicant’s claim, not because of the identity of the people who were kidnapped, but rather because of the fact that some TRO employees and police were kidnapped. That is not ‘personal information’ for the purposes of section 473DD(b)(ii) of the Act.
In any event, if I am wrong on that interpretation, I find that a fair reading of the IAA’s reasons leads to the conclusion that the IAA formed the view that it was not ‘credible personal information’ but rather fell within the concept of ‘country information’. Its reference to the ‘four pieces of country information’ in paragraph 5 of the decision record is consistent with this view.
As such, section 473DD(b)(ii) of the Act was not engaged in relation to those two documents.
Having come to this conclusion in relation to whether the documents contained personal information, it is not necessary for me to express a view on the alternative argument put forward in relation to SZGUR.
For these reasons, particular (iii) does not disclose a jurisdictional error.
For each of these reasons, I find ground one is not made out.
Ground two
The second ground of review is:
The IAA’s decision that there were exceptional circumstances under s473DD(a) of the Act to consider the DFAT 2017 country information report on Sri Lanka but that there were not exceptional circumstances to consider the new Sri Lankan country information provided by the applicant was legally unreasonable in the circumstances of this case.
Particulars
i.The IAA did not provide reasons why there were exceptional circumstances to consider the DFAT 2017 country information report except that it updated the 2015 report relied upon by the delegate.
ii.The IAA did not attend to the nature of the potential relevance or importance of the new information provided by the Applicant.
iii.The IAA did not consider whether the content of the information the Applicant wanted to give to the IAA would have made a difference to the delegate’s decision.
iv.It would have been easy for the IAA to ask the applicant to provide updated hyperlinks to the new information (emphasis in original).[45]
[45] Applicant’s further amended application filed 30 April 2018.
It was argued on behalf of the applicant that it was ‘legally unreasonable’ to conclude that there were exceptional circumstances in relation to the updated DFAT report on Sri Lanka permitting it to have regard to this information, but not in relation to the country information put forward by the applicant.
The applicant’s written submissions refer to a series of cases in support of this ground.[46]
[46] Applicant’s outline of submissions filed 27 March 2018 at paragraph [20].
In Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; 248 FCR 1, the court provided a summary of the applicable principles in the cases to which the applicant referred.
In response, whilst not taking issue with the principles, the Minister submitted that the IAAs powers under section 473DD of the Act are not discretionary. Rather, the IAA is required to be satisfied of certain facts before it can proceed to consider ‘new information’. I agree with this characterisation.
In Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16; 92 ALJR 481; 353 ALR 600, Gageler, Keane and Nettle JJ noted:
There is no dispute between the parties that the various powers conferred on the authority by Div 3 of Pt 7AA are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, in the sense explained in Minister for Immigration and Citizenship v Li, with the consequence that an unreasonable failure to exercise such a power can render invalid a purported performance by the Authority of the duty imposed on it by s473CC to conduct a review and either to affirm or to remit the decision under review.[47]
[47] Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 at [21] per Gageler, Keane and Nettle JJ.
Gageler, Keane and Nettle JJ further noted that:
…all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.[48]
[48] Plaintiff M174/2016 v Minister for Immigration and Border Protection & Anor [2018] HCA 16 at [34] per Gageler, Keane and Nettle JJ.
Whilst accepting that in determining whether it has the requisite state of satisfaction required by section 473DD of the Act, the IAA must act reasonably, a court exercising judicial review must exercise caution to ensure that it does not stray into merits review as noted by Brennan J in Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1; 64 ALJR 327; 93 ALR 1; 18 ALD 77; 33 IPR 263; 33 IR 263:
The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended.[49]
[49] Attorney-General (NSW) v Quin [1990] HCA 21; 170 CLR 1 64 ALJR 327; 93 ALR 1; 18 ALD 77; 33 IPR 263; 33 IR 263 at [19] per Brennan J.
Having regard to the different requirements which section 473DD of the Act imposes with respect to information provided by the applicant as compared to information otherwise obtained by the IAA, it was reasonably open to the IAA to find that there were exceptional circumstances justifying it having regard to the updated DFAT country information in circumstances where the delegate had previously relied on an earlier DFAT report.
For the reasons set out above, the decision by the IAA in relation to the four additional documents provided by the applicant (including two by way of hyperlink) does not disclose any irrationality or illogicality or other unreasonableness.
This is particularly so when regard is had to the fact that the IAA did not simply dismiss all the ‘new information’ provided by the applicant but accepted the updated DFAT report. As noted above, the IAA, quite properly in my view, accepted that the further information provided by the applicant in relation to the physical layout of his sister’s home was information which could not have been provided to the delegate and, relevantly, that there were exceptional circumstances which meant that the IAA could consider that information.
In all of those circumstances, I do not find that this ground is made out.
Conclusion
As neither of the applicant’s grounds have been made out, the application should be dismissed with costs.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Date: 5 September 2018
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