BJK17 v Minister for Immigration and ANOR and BJJ17 v Minister for Immigration and ANOR
[2019] FCCA 561
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJK17 v MINISTER FOR IMMIGRATION & ANOR and BJJ17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 561 |
| Catchwords: MIGRATION – Protection visa – father and son entering Australia illegally from Sri Lanka – single visa application – IAA providing separate reasons at request of son – whether one or two “decisions” – grounds not made out by either applicant. |
| Legislation: Migration Act 1958, pt 7AA, ss 5, 5J(4), 36(2A), 473BB, 473CA, 473CC, 473DC, 473DD, 473DE |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 |
| Applicant: | BJK17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 652 of 2017 |
| Applicant: | BJJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 650 of 2017 |
| Judgment of: | His Honour Judge J D Wilson QC |
| Hearing date: | 30 November 2018 |
| Date of Last Submission: | 30 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 8 March 2019 |
REPRESENTATION
MLG 652 of 2017
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the First Respondent: | Mr G Hill |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
MLG 650 of 2017
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | Wimal & Associates |
| Counsel for the First Respondent: | Mr G Hill |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
MLG 652 of 2017
The application filed on 31 March 2017 as amended on 31 October 2018 is dismissed.
The applicant is to pay the first respondent’s costs of the proceeding fixed in the amount of $7 467.
MLG 650 of 2017
The application filed on 31 March 2017 as amended on 31 October 2018 is dismissed.
The applicant is to pay the first respondent’s costs of the proceeding fixed in the amount of $7 467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 652 of 2017
| BJK17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
MLG 650 of 2017
| BJJ17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
BJK17 v Minister
Introduction – procedural issues
This proceeding was heard concurrently with proceeding BJJ17 v Minister for Immigration and Border Protection as the applicant in this proceeding and the applicant in BJJ17 were father and son respectively, each of whom arrived in Australia at the same time, having departed Sri Lanka at the same time. Counsel for the parties agreed that up to a point, the two proceedings were largely paralleled. A debate arose about the extent to which the material in the court book in each proceeding was identical.
As will become apparent from these reasons and the reasons in BJJ17 v Minister for Immigration and Border Protection, certain factual matters diverged meaning that the cases were in some respects quite different. That was the case even though by order made on 30 November 2018 I permitted the affidavit sworn by Maria Ngo on 27 November 2018 to be treated as evidence in both proceedings. In addition, in BJJ17 v Minister for Immigration and Border Protection the applicant (the son of BJK17) raised two further grounds of application that were additional to but separate from the several grounds pressed by applicant BJK17 in his own proceeding.
Introduction – factual issues
On 16 October 2015 BJK17 and BJJ17 applied for a safe haven enterprise visa. In it, BJK17 was the visa applicant and BJJ17 was included as a dependant. The minister’s delegate decided to refuse the visa application by decision made on 21 October 2016. That decision had the effect of refusing the visa for both BJK17 as well as BJJ17.
The delegate’s decision was automatically referred to the Immigration Assessment Authority (“IAA”) for review pursuant to s 473CA of the Migration Act (“Act”). The representative of BJJ17 wrote to the IAA on 29 November 2016 informing the IAA that BJJ17 wanted to raise new information that was to be kept confidential from his father, BJK17. In that letter BJJ17 requested the IAA to produce separate reasons for decision in respect of each of BJJ17 and BJK17.
BJK17 at all relevant times has been a Tamil man from Sri Lanka. He claimed to have a well‑founded fear of persecution on the basis of his Tamil ethnicity, his imputed political opinion as a presumed supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) and on the basis of his membership of a particular social group being failed asylum seekers. BJK17 also claimed that he was vulnerable by reason of serious medical issues as well as mental health issues if he were to be detained upon his return to Sri Lanka.
Before turning to the IAA’s decision and its consequences, it is helpful to recite the steps that unfolded upon and after BJK17 applying for the protection visa.
With his visa application BJK17 included a statutory declaration made by him on 7 October 2015. In it he gave reasons why he sought the protection of the Australian Government. Some of the more important matters that arose from BJK17’s statutory declaration were the following –
a)he is ethnic Tamil of the Hindu religion;
b)he is illiterate having completed grade four education in the 1970s;
c)when 19 years of age he was struck by a car bomb blast resulting in a piece of metal entering his right leg;
d)he married in 1990, had a son in 1991 (BJJ17) and separated in 1993;
e)his two nephews also fled from Sri Lanka with BJK17;
f)BJK17 met a man called [redacted] who requested BJK17 to show [redacted] the minister’s house, army camps and police stations, later disclosing that [redacted] was part of the LTTE;
g)[redacted] went missing in 1990 after which his friends stopped contacting BJK17;
h)in order to make money BJK17 worked as a driver transporting goods around Sri Lanka that he later discovered were tasks performed for the LTTE;
i)BJK17 was taken by police two or three times and fingerprinted, photographed and later released;
j)in 2004 he was severely beaten by police, held for about two months and interrogated about having links with the LTTE after which he was taken to court but he was acquitted and released from detention;
k)members of the Criminal Investigation Department (“CID”) visited his mother’s home in an effort to find BJK17;
l)on two occasions he unsuccessfully attempted to escape to Italy;
m)in 2005 he obtained a passport to go to India but returned as he was unable to support himself;
n)in 2006, on his return from India, BJK17 continued to move around for fear of the CID then in 2007 he left for two and a half years to work in Saudi Arabia;
o)in 2010 he returned from Saudi Arabia but he did not feel safe so in 2011 BJK17 went to Qatar;
p)he returned to Sri Lanka from Qatar after six months at which time his mother told him that CID officers had been looking for him;
q)in 2012, after he went to Jaffna, CID officers again visited his mother’s home;
r)in 2013 BJK17’s brother was interrogated by the LTTE;
s)the Sri Lankan authorities are aware BJK17 left Sri Lanka illegally and they will suspect he fought with authorities when they see the scars from the bomb blast on his leg;
t)in 2014 BJK17 had problems with his kidneys that led to his hospitalisation and his falling into a coma after surgery leaving him with a large scar;
u)he was placed in detention in 2014 after an altercation with his nephews; and
v)there is no place in Sri Lanka where BJK17 can live safely.
The department interviewed BJK17 on 27 January 2016 and BJJ17 on 28 January 2016.
BJK17 provided a further statutory declaration on 22 February 2016 in which he explained why he had not earlier disclosed his connection with a particular person said to have been connected with the LTTE.
On 18 March 2016 BJK17’s representative provided submissions and country information plus further submissions on 18 May 2016 and further country information on 26 April 2016.
The delegate’s decision was dated 21 October 2016.
After the matter was referred to the IAA on 10 November 2016, on 4 December 2016 BJK17’s representatives sent to the IAA a submission that attached –
a)a further statutory declaration from BJK17 dated 1 December 2016;
b)medical reports from Joslin Clinic dated 16 November 2016 and 1 December 2016 and medical records;
c)photos of BJK17’s abdominal scarring taken 1 December 2016;
d)documents concerning the refugee status of BJK17’s cousin in the United Kingdom; and
e)further country information from August 2016.
By decision dated 6 March 2017 the IAA decided to affirm the delegate’s decision and the IAA made a similar decision on the same day in relation to BJJ17.
Being dissatisfied with the IAAs decision, on 31 March 2017 BJK17 applied to this court for judicial review of the IAA’s decision. He amended his application on 31 October 2018 by leave granted by a registrar of this court on 10 October 2017.
The amended application
While lengthy, it is useful to record the precise grounds of the amended application on which BJK17 relied. It was as follows –
1. The IAA erred in treating the images of the applicant’s abdominal scarring as new information. By erroneously excluding the image of the applicant’s abdominal scarring from its review, the IAA failed to conduct the task required of it by statute.
Particulars
(a) The delegate conducted an interview with the applicant at which the applicant showed the delegate his substantial abdominal scarring.
(b) In the submissions to the IAA, the applicant’s representative noted, “A visual image of the applicant’s scarring is provided because the audio interview tape will not facilitate the reviewer seeing what the Delegate could.”
(c) The visual appearance of the applicant’s abdominal scarring was information that was before the Minister’s delegate. That information was therefore not ‘new information’ as defined in s 473DD.
(d) The IAA erred in treating the visual representation of the applicant’s abdominal scarring as new information and consequently excluding it from review.
2. The IAA erred in refusing to consider new information in that it applied an unduly narrow assessment of exceptional circumstances within the meaning of s 473DD(a).
Particulars
(a) The IAA at [7], [9] and [10] of its decision record found that there were no exceptional circumstances to justify considering various pieces of new information.
(b) The IAA’s consideration of exceptional circumstances was limited to whether there was a satisfactory explanation for not providing the information earlier.
(c) The IAA failed to have regard to the factors in s 473DD(b)(ii).
(d) The IAA failed to have regard to other factors beyond the explanation for not providing the information earlier.
3. The IAA failed to give proper consideration to whether there were exceptional circumstances within the meaning of s 473DD(a) to consider the letter from the applicant’s treating doctor from the Joslin clinic, or alternatively, the IAA’s finding that there were no exceptional circumstances was irrational and/or unreasonable.
Particulars
(a) The IAA at [8] of its decision record noted that the letters from the applicant’s doctor at the Joslin clinic post-dated the delegate’s decision.
(b) The IAA found that there were no exceptional circumstances to consider that new information on the basis that “evidence about the applicant’s medical condition was before the delegate.”
(c) That finding was irrational and/or unreasonable.
(d) Alternatively, the IAA failed to give proper consideration to whether the criteria in s 473DD were made out in relation to the letters from the Joslin clinic.
4. The IAA failed to give genuine, proper and realistic consideration to the applicant’s claim that his health condition would mean that the risk of harm he faced would amount to serious or significant harm even if that same treatment would not satisfy that threshold of harm for another person.
Particulars
(a) The submissions from the applicant’s representative to the delegate (CB 223) expressly noted that “Mr Ramachandran is more vulnerable to serious and significant [harm] because of his medical issues. Even a slight blow to his abdomen could kill him.”
(b) The IAA determined that a short period of imprisonment in poor prison conditions would not constitute serious or significant harm, but failed to consider the applicant’s specific vulnerability arising from his medical condition as part of that assessment.
5. The IAA failed to give genuine, proper and realistic consideration to the applicant’s claim that his mental health condition would mean that he faced a real risk of significant harm in the form of suicide or self-harm if he was detained upon return to Sri Lanka.
Particulars
(a) There was evidence before the IAA as to the applicant’s mental health, including a history of self-harm and suicidal ideation.
(b) The IAA determined that a short period of imprisonment in poor prison conditions would not constitute serious or significant harm, but failed to consider the applicant’s specific vulnerability arising from his risk of suicide or self-harm if detained by the Sri Lankan authorities.
6. The IAA unreasonably failed to exercise or consider exercising its power under s473DC to get new information, namely the most current DFAT country information report.
Particulars
(a) The IAA relied extensively on the DFAT Country Information Report – Sri Lanka dated 18 December 2015 (the ‘2015 DFAT report’).
(b) The 2015 DFAT report was superseded by the DFAT Country Information Report – Sri Lanka dated 24 January 2017.
(c) The IAA had the power to get new information under s 473DC.
(d) The failure of the IAA to exercise or consider exercising its power to get the most recent DFAT country information report was unreasonable in the circumstances.
7. The IAA failed to give genuine, proper and realistic consideration to a claim arising from the material before it, namely that the data breach that revealed the applicant’s identity, the fact that he had been detained in Australia and the fact that he had been returned to immigration detention after being charged with assault in Australia affect the treatment that the applicant would receive from authorities upon return
Grouping of the grounds
On behalf of the minister, Mr Hill of counsel grouped the applicant’s grounds into four categories. Grounds one, two and three made up the first group. Mr Hill said by way of overview that the IAA made no error in its consideration of whether to receive new information. He said the photographs of BJK17’s abdomen were “new information” and the IAA accepted BJK17’s claims about the botched surgery. Mr Hill said the IAA considered the reasons advanced by BJK17’s representative about why the IAA should receive the information and that the IAA did not impermissibly close its mind to any relevant matter. Mr Hill said it was not unreasonable for the IAA to not receive the reports from the Joslin Clinic as evidence about the applicant’s medical condition already existed and the IAA already accepted that BJK17 had serious health problems.
In the second group, Mr Hill collated grounds four and five of the amended application. In respect of those grounds Mr Hill said the IAA expressly considered the claims about the effect of the surgery on BJK17’s possible detention in Sri Lanka. Mr Hill said the IAA’s findings about what would happen if BJK17 were to return to Sri Lanka meant that it was not necessary for the IAA to make express findings about BJK17’s mental health. Mr Hill said that in any event, the IAA independently found that the detention of BJK17 for unlawful departure did not give rise to a real chance of persecution or a real risk of significant harm.
The third category of the amended grounds related to ground six. Mr Hill submitted that the IAA was under no obligation to obtain the 2017 DFAT report and that, apart from anything else, BJK17 had not pointed to any material difference between that DFAT report and the 2015 report that the IAA did consider.
In the fourth category was ground seven in which BJK17 asserted the existence of a data breach. As to that Mr Hill said BJK17 was informed of the data breach and he was given an opportunity to say whatever he wished to say about the effect of the data breach. Mr Hill said the IAA’s reasons responded directly to the claims made by BJK17.
Synopsis
With that lamentably long introduction, in my view none of the grounds for seeking judicial review were made out with the consequence that this application must be dismissed and BJK17 must pay the minister’s costs.
The IAA decision in detail
The passages below represent something of a distillation of the findings and observations of the IAA.
The IAA addressed the alleged exceptional circumstances of the case between paragraphs 6 and 11 of its reasons.
The IAA stated that, apart from the representative’s submission, the remainder of the information provided on 4 December 2016 was not before the delegate and constituted new information. The applicant’s representative had submitted that there were exceptional circumstances for considering this new information. That submission also stated that independent community reports were not available prior to the delegate’s decision as the applicant was detained. Further, it was submitted that BJK17’s health care provider did not provide medical reports to support protection claims and hospitals require payment for reports, and the applicant is both physically and mentally unwell. The submission also stated that the recent country information contradicted key aspects of the delegate’s assessment of BJK17’s claims. The submission also stated that BJK17 was not able to obtain his cousin’s refugee documents while in detention.[1]
[1] Court book (filed on 25 October 2017) (“BJK17 court book”)417 [6]; 379
In relation to the medical records the IAA noted that they dated from two years prior to the delegate’s decision and BJK17 was represented by the same solicitor and migration agent before the department. The representative’s submission had not adequately explained why those documents could not have been provided earlier. The IAA also did not accept that the photos of abdominal scarring could not have been provided earlier.[2]
[2] Ibid 418 [7]
The IAA said the two letters from the Joslin Clinic post‑dated the delegate’s decision. However, the IAA said the evidence about BJK17’s medical condition was before the delegate. The IAA said it was not satisfied that there were exceptional circumstances to consider this new information.[3]
[3] Ibid 418 [8]
The IAA said the documents concerning the cousin’s refugee status dated from June 2009. The IAA said BJK17 was represented before the department and obtained a letter from his brother in 2016. The IAA said BJK17’s representative’s submission that BJK17 was not able to obtain documents about his cousin while in detention did not explain why the information pertaining to the brother could not have been provided but not the information pertaining to the cousin. The IAA said it was not satisfied that there were exceptional circumstances to consider this new information.[4]
[4] Ibid 418 [9]
The IAA said country information from the UK Home Office predated the delegate’s decision. The IAA said BJK17’s representative had not explained why that material could not have been provided earlier nor explained in what respects that information contradicted aspects of the delegate’s decision. The IAA said BJK17 was given an opportunity to provide further information after the interview with the delegate and BJK17’s representative had provided lengthy further submissions with references to country information. The IAA said the delegate also considered a range of authoritative credible country information sources. In the circumstances, the IAA said it was not satisfied there were exceptional circumstances to justify considering this new information.[5]
[5] Ibid 418 [10]
The IAA said BJK17’s further statutory declaration and his representative’s submission contained a new claim that his son was attracted to men and that BJK17 feared harm as a result of fathering a gay son. The representative submitted that the son only disclosed his sexuality to BJK17 after the delegate’s decision. The IAA was satisfied that the information could not have been provided to the delegate before the delegate made the decision and that exceptional circumstances existed for considering that information.[6]
[6] Ibid 418 [11]
The IAA addressed the alleged data breach between paragraphs 51 and 52 of its reasons.
The IAA accepted that BJK17 was affected by the department’s data breach and that some of his personal information may have been disclosed. The IAA recorded BJK17’s representative’s submission that the data breach left no doubt that the Sri Lankan authorities would prosecute BJK17 and BJJ17 for illegal departure and question them about their illegal departure and history.[7]
[7] Ibid 428‑429 [51]; 384
The IAA said the department advised that the information the subject of the data breach was accessible for only a short period and that the information was not visible as part of the report nor was it easily accessible. Given those matters and the fact that BJK17 and BJJ17 would be identified by Sri Lankan authorities as returning asylum seekers the IAA was not satisfied that the data breach placed the applicants at any increased risk of harm on re‑entry to Sri Lanka.[8]
[8] Ibid 429 [52]
The IAA addressed BJK17’s alleged health problems between paragraphs 53 and 54 of its reasons.
The IAA accepted that since undergoing surgery for a serious medical condition in 2014 BJK17 had experienced significant health issues and that his condition meant that he would probably require ongoing medical attention and support. The IAA recorded a submission that BJK17’s condition rendered him particularly vulnerable to serious and significant harm under interrogation or in detention.[9]
[9] Ibid 429 [53]
The IAA found that the public sector health system in Sri Lanka provided free health care although facilities varied and some medicines or treatments may need to be purchased privately. The IAA said that health outcomes tended to be worse in the north and east but BJK17 was from Colombo and the IAA was satisfied that BJK17 would have access to ongoing medical care.[10]
[10] Ibid 429 [54]
The IAA addressed the BJK17’s contentions about the consequences to him of departing Sri Lanka illegally and returning as a failed asylum seeker between paragraphs 55 and 64 of its reasons.
Based on country information the IAA found that following interception at the airport BJK17 would be charged with the offence of illegal departure, held in custody at the airport while investigations were completed and potentially detained over a weekend pending an appearance before a magistrate. The IAA found that BJK17 would be fined and released if he pleaded guilty and that if he pleaded not guilty he would be held on remand and fined if later found guilty. The IAA found that a fine did not amount to serious harm.[11]
[11] Ibid 430 [58]
The IAA accepted that as part of that process BJK17 may be held in custody at an airport office after which he may spend a number of days on remand. The IAA acknowledged BJK17’s representative’s submission that, given his medical condition, even a short period as an illegal departee would cause the applicant serious and significant harm given the poor conditions. DFAT had assessed as low the risk of torture or mistreatment for the majority of returnees even those suspected of departing unlawfully. The IAA had found that the applicant had no adverse background. It was not satisfied there was a real chance of BJK17 being subject to torture or other mistreatment including by inmates while on remand. The IAA accepted that Sri Lankan prisons did not meet international standards due to a lack of resources, overcrowding and poor sanitary conditions. However, the IAA did not accept that the applicant was at risk of being detained for anything more than a few days. The IAA found that detention for a matter of days, even in overcrowded and unsanitary conditions, and having to pay a fine did not amount to serious harm.[12]
[12] Ibid 430‑431 [59]
The IAA accepted that there may be some risk of arrest, prolonged detention or other harm if a returnee was identified as having an adverse profile such as a serious criminal record or suspected connection to the LTTE. However, the IAA was not satisfied that there was a real chance that BJK17 would face such treatment because the IAA found that BJK17 was not a person of interest to the authorities.[13] The IAA did not consider BJK17’s conviction on assault charges in February 2015 relevant to his claims for protection and did not take that information into consideration.[14]
[13] Ibid 431 [62]
[14] Ibid 432 [64]
It is now necessary to address the detail of the arguments in relation to each ground.
Grounds one, two and three
Dr McBeth said the IAA did not take the images of BJK17’s abdominal scarring into consideration. Conversely, Dr McBeth said the delegate was physically shown the applicant’s scarring and therefore, so Dr McBeth said, the delegate had access to a visual representation of the scarring. Dr McBeth said the IAA enjoyed no such advantage.
The applicant focused on paragraph 7 of the IAA’s reasons for decision. The relevant sentence on which the applicant relied was in the following terms –
I similarly do not accept that the photograph of the applicant’s abdominal scarring could have been provided at an earlier stage in the protection process.
BJK17 said the photographic representation of BJK17’s scarring was not “new information” within the contemplation of s 473DC as the photographic representation was no more than a visual representation of the applicant’s actual physical abdominal scarring and the delegate had physically inspected the applicant’s abdominal scarring at the interview. BJK17 explained why the photographic representation was provided in the first place to the IAA. BJK17’s representative said that the delegate retained an audio interview tape and that the audio tape did not capture the delegate’s visual inspection of the scarring so the applicant provided a photograph of the scarring.
BJK17 squarely put in issue that the photograph was no more than a pictorial representation of a state of affairs that the delegate had personally observed at the relevant interview. While Dr McBeth did not say so in terms, he took comfort from the observations of the plurality of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection[15] where the court held that “information” to which ss 473DC, 473DD and 473DE are directed is information, whether or not recorded in a document, that in the ordinary sense involves a communication of knowledge about some particular fact, subject or event.[16] For the information to be “new information”, two additional matters must be met, those being set out in s 473DC(1)(a) and (b). The first is that the information was not before the minister’s delegate when the decision to refuse the visa application was made. The second is that the IAA considers the information may be relevant.
[15] (2018) 92 ALJR 481
[16] Ibid (at [24])
Here, the information in the photographic representation of the scarring was the communication of knowledge about some particular fact, subject or event. The photograph captured what the delegate saw. True, the audio recording did not and could not capture what the delegate saw as the audio recorded the aural component of the delegate’s interaction and it could not record the visual component of the delegate’s interaction. But that did not mean that the information in respect of the scarring was not before the delegate. It was. The delegate physically saw the scarring. In other words, the scarring on BJK17 was “information” in the sense addressed by the High Court in Plaintiff M174/2016[17]being “a communication of knowledge about some particular fact, subject or event.”
[17] Ibid (at [24])
In this case the question was whether the photographic representation of the scarring was new information. The IAA focused on whether or not the photographs could have been provided earlier in the protection process. That was a perfectly proper enquiry, as is revealed by sub‑ss 473DC(1)(a) and (b), a point made by the High Court in Plaintiff M174/2016.[18] In other words, the IAA was not so much concerned about whether the photograph emerged after the hearing before the delegate but rather, why the photograph could not have been provided earlier than when it was in fact provided. I detected no error in that approach.
[18] Ibid (at [24])
Counsel for the minister additionally contended that in paragraph 53 of the IAA’s reasons the IAA accepted that BJK17 had experienced significant health issues since undergoing surgery for a serious medical condition in 2014 and his condition meant he would probably require ongoing medical attention and support. I detected no error in that.
In my view, ground one was without merit.
Under ground two BJK17 asserted that the IAA applied an unduly narrow assessment of exceptional circumstances for the purposes of s 473DD(a).
In support, BJK17 argued that the IAA’s reasoning in paragraphs 7, 9 and 10 of its reasons was defective. He said that in those paragraphs the IAA gave detailed consideration of BJK17’s explanation for not providing the information earlier and concluded that it was not satisfied by that explanation.
BJK17 said that the IAA failed to consider whether the information was credible personal information. The applicant called in aid decisions of the Full Court in Minister for Immigration and Border Protection v BBS16[19] and CHF16 vMinister for Immigration and Border Protection.[20]
[19] (2017) 257 FCR 111
[20] (2017) 257 FCR 148
The minister resisted the contentions about any alleged deficiency in the IAA’s reasons. The minister’s counsel said that apart from highlighting the so‑called narrowness of the notion of exceptional circumstances, BJK17 did not point to any fact or matter that was not taken into account or, had it been taken into account, would materially have borne upon the IAA’s consideration, citing AQU17 vMinister for Immigration and Border Protection.[21]
[21] [2018] FCAFC 111
It seemed to me that the answer to whether an unduly narrow construction of s 473DD was applied lay in paragraph 34 of the reasons of the plurality in Plaintiff M174/2016. There, the court said the following –
Accordingly, 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.
The IAA referred in paragraphs 7, 9 and 10 of its reasons to it not being satisfied of the existence of exceptional circumstances. In each paragraph the IAA addressed factual matters that went to why the relevant information could not have been supplied earlier. That was squarely relevant to s 473DD. Far from the IAA adopting an unduly narrow construction of s 473DD, in my view the IAA did as it was required to do under that section.
Ground two was without merit.
Ground three focused on a letter from Joslin Clinic. The relevant paragraph of the IAA’s reasons was paragraph 8. That paragraph was as follows –
The dates on the two letters from the Joslin Clinic (16 November and 1 December 2016), one provided by his treating doctor, post‑dated the delegate’s decision. However, I note that evidence about the applicant’s medical condition was before the delegate. I am not satisfied there are exceptional circumstances to consider this new information.
BJK17 asserted that the IAA failed to give proper consideration to whether exceptional circumstances existed warranting a consideration of the Joslin Clinic medical reports.
The minister said that there was no error in the IAA reasoning that the medical information from the Joslin Clinic did not add sufficiently to the store of information on that topic that was before the delegate. Citing the decision of Barker J in BHE17 v Minister for Immigration and Border Protection,[22] the minister said there was no error in that approach. The minister also said that no unreasonableness was exhibited in that approach. Mr Hill’s written submissions pointed up that any consideration of unreasonableness must take account of the particular statutory context that is under consideration, citing the Full Court’s decision in Minister for Immigration and Border Protectionv Stretton[23] as well as Thawley J’s more recent observations in BCQ16 v Minister for Immigration and Border Protection.[24] I agree. The IAA took the view that BJK17’s medical evidence was already before the delegate. As Mr Hill pointed out, the evidence before the delegate included the April 2015 report and BJK17’s evidence of the botched surgery. The IAA accepted that BJK17 had serious health issues in paragraph 53 and 54 of its reasons.
[22] (2018) FCA 757
[23] (2016) 237 FCR 1
[24] (2018) FCA 365
In my view, ground three was not made out.
Grounds four and five
Under ground four BJK17 asserted that the IAA failed to give genuine, proper and realistic consideration to the BJK17’s claim that his health condition would mean that the risk he faced would amount to serious or significant harm.
At an overview level, the minister pointed up that ground four related to BJK17’s health, especially in respect of his abdomen whereas ground five related to the applicant’s mental health and the risk of self‑harm if he were to be detained.
BJK17 said that the IAA did little more than recite BJK17’s contentions and that the IAA did not engage with the contention such as to show that the IAA had actively engaged intellectually with the contention. BJK17 called in aid the Full Court’s decision in MZYPW v Minister for Immigration and Citizenship.[25]
[25] [2012] FCAFC 99
The proper, genuine and realistic consideration of a matter was identified recently in Carrascalao v Minister for Immigration and Border Protection[26] as well as in Singh v Minister for Home Affairs.[27] The metes and bounds of the claims that fell for determination were set out in NABE v Minister for Immigration and Multicultural and Indigenous Affairs[28] as well as in Applicant WAEE vMinister for Immigration and Multicultural and Indigenous Affairs.[29] A finding that there has not been active intellectual engagement will not be lightly made as was held in BZD17 v Minister for Immigration and Border Protection.[30]
[26] (2017) 252 FCR 352
[27] [2019] FCAFC 3
[28] (2004) 144 FCR 1
[29] (2003) 236 FCR 593
[30] [2018] FCAFC 94
Here, the IAA considered BJK17’s physical health. It did so in paragraph 53 and 59 of its reasons. In my view, the IAA went beyond merely paraphrasing the applicant’s claims. It gave the requisite consideration to the claim.
In my view, ground four was not made out.
Under ground five BJK17 said the IAA failed to consider whether the risk of the applicant’s deteriorating psychological condition or his risk of suicide could have amounted to significant harm for the purposes of s 36(2A) in circumstances where the IAA accepted that the applicant may be detained in prison for a relatively short time and the IAA had before it a submission that detention could cause psychological harm or suicide.
The minister correctly scrutinised BJK17’s claim under this ground pointing up that based on the applicant’s mental ill health, he was at risk of psychological harm if returned “as a result of interrogation, detentioning, monitoring and harassment”. Mr Hill said that was a more qualified claim than saying that any period of detention, howsoever short, would cause the applicant serious harm. He said that in paragraph 59 of its reasons the IAA stated the applicant would be questioned at the airport for several hours, a concept very different to facing interrogation, detention, monitoring and harassment. Mr Hill said it was therefore unnecessary for the IAA to expressly refer to BJK17’s mental health.
In addition, Mr Hill said that an alternative basis existed to support the IAA’s decision. He submitted that the IAA made independent findings that sustained the IAA’s conclusions that the detention of the applicant for unlawful departure did not give rise to a real chance of persecution or a real risk of significant harm. So far as persecution was concerned, Mr Hill said that in paragraph 60 of its reasons the IAA found that the detention of illegal departees was a generally applicable law that was not selectively enforced or applied in a discriminatory way with the consequence that it did not attract the operation of s 5J(4) of the Act. So far as significant harm was concerned, the minister referred to paragraph 72 of the IAA’s decision where the IAA found that the acts or omissions of Sri Lankan officials were not intended to cause pain or suffering or extreme humiliation with the consequence that any such treatment did not amount to “significant harm” as defined in s 36(2A) of the Act.
In my view the minister’s alternative arguments mentioned in the immediately preceding paragraph were correct. Ground five was not made out.
Ground six
This ground was not pressed.
Ground seven
Under this ground, BJK17 raised the contention that by a data breach in February 2014, his details were inadvertently released. The applicant said that the data breach increased his risk of harm. The IAA accepted he was affected by the data breach and otherwise addressed it in paragraphs 51 and 52 of its reasons. The applicant said the breach was different to that considered by the High Court in Minister for Immigration and Border Protection v SZSSJ.[31] However, the applicant said the IAA failed to adequately consider his claim, relying on NABE.
[31] (2016) 259 CLR 180
The minister said there was no error in the IAA’s reasoning. In support, the minister submitted –
a)the materials in the court book do not suggest that BJK17 ever claimed that his conviction in 2015 for assault might affect the approach that the Sri Lankan authorities would take on his return and in fact the applicant’s 7 October 2015 statutory declaration mentioned both the data breach and the 2015 conviction without suggesting that they were at all connected;
b)the IAA made findings that there was some risk of arrest, prolonged detention or other harm if a returnee has an adverse profile such as a serious criminal record or suspected connection to the LTTE;
c)the IAA found that BJK17 was not a person of interest, that the 2015 conviction was not relevant to BJK17’s protection claims and therefore must be read in that light, that is, the IAA implicitly rejected any submission that the applicant faced an increased risk of harm because of the 2015 conviction;
d)no claim was ever put that the data breach might cause the Sri Lankan authorities to make different enquiries, but nevertheless that matter was subsumed within the IAA’s findings that the increased risk of arrest, prolonged detention or the like only occurs if a person has an adverse profile, and the applicant does not have such a profile;
e)there was no inconsistency between the IAA’s approach and the assumption referred to in SZSSJ;
f)the assumption in SZSSJ was that all of a person’s personal information had been accessed by all of the persons or entities from whom they feared persecution or other harm, meaning that it was not necessary to provide a visa applicant with the entire report obtained by the department into the data breach because proof that a visa applicant’s data had in fact been accessed could not advance them any further than the assumption already made in the applicant’s favour (thus in SZSSJ there was no breach of procedural fairness in not giving an applicant the entire report); and
g)in this case, unlike SZSSJ, the data breach occurred before the applicant made his application for a protection visa;
h)the department sent BJK17 a letter explaining what had happened on 13 March 2014, so the applicant had the opportunity to make whatever submissions he chose about the effect of this breach;
i)the IAA was prepared to accept that Sri Lankan authorities obtained personal information about BJK17 (although it referred to information provided by the department suggesting that the chance of that occurring was small); and
j)the IAA considered that, as the Sri Lankan authorities would be able to discover that the applicants left illegally by other means, the data breach did not place BJK17 and his son in any increased risk of harm, reasoning open to the IAA and was consistent with the assumption referred to in SZSSJ.
In my view, the minister was correct. This ground failed.
Additional ground
During argument on 28 November 2018, Dr McBeth, with leave, relied on a further ground of review. It was in the following terms –
The decision of the IAA was affected by jurisdictional error in that the IAA unreasonably failed to consider exercising its power under section 473DC(3) to invite the applicant to an interview.
Dr McBeth relied on the transcript of the proceeding before the delegate conducted on 27 January 2016. Dr McBeth said that by reason of a collection of answers given by BJK17 it was apparent that BJK17 was encountering significant difficulties understanding the questions put to him. As it happened, the transcript of the proceeding before the delegate emerged well after the IAA conducted its review. Consequently, the IAA had available to it a sound recording of the hearing before the delegate.
Dr McBeth said the IAA should have listened to it, although the material did not reveal whether or not the IAA did in fact listen to the audio recording. Dr McBeth said that had the IAA listened to the sound recording it would have been alive to the fact that irregularities existed in the hearing before the delegate. Dr McBeth relied on the Full Court’s decision in Minister for Immigration and Border Protection v CRY16[32] and the High Court’s decision in Plaintiff M174/2016 to contend that the unreasonableness lay in the IAA’s failure to consider inviting the applicant to give viva voce evidence.
[32] (2017) 253 FCR 475
In response, Mr Hill for the minister said that an inference arose to the effect that the IAA did in fact have regard to the audio recording. Mr Hill identified instances in the IAA’s reasons that showed, so he said, that the IAA took into account the exchange between BJK17 and the delegate. For example, Mr Hill referred to paragraphs 24 and 25 of the IAA’s reasons where the IAA stated that the delegate asked BJK17 certain things or that the delegate put other things.
In addition, Mr Hill raised an exchange from the transcript where BJK17’s representative told the delegate that it was in order to continue but that in the applicant’s representative’s view it was important for BJK17 to understand and that if he was not comprehending what was put he needed to ask for the question to be put again. Mr Hill said neither the applicant nor his representative asked for a further interview.
To my mind, there is real merit in the minister’s contentions. Despite some problems early in the hearing before the delegate the questioning assumed an acceptable quality and, despite some early anxiety by BJK17’s representative, BJK17 did not thereafter encounter comprehension issues nor did BJK17’s representative rise to voice her complaints about the matter. In those circumstances, I do not agree that it was unreasonable for the IAA to not have called BJK17 in for a personal appearance before the IAA. Nor was it unreasonable to have not considered the point. That ground is dismissed.
All grounds of BJK17s application were unsuccessful.
REASONS FOR JUDGMENT
BJJ17 v Minister
Introduction
In this application for judicial review, BJJ17 contended that the IAA acted legally unreasonably in refusing to consider BJJ17’s claim to fear harm in Sri Lanka on the basis of his homosexuality. The applicant also said the IAA unreasonably failed to get new information namely the most current DFAT country information report.
BJJ17 in this proceeding was listed as a dependent on the safe haven enterprise visa dated 16 October 2015 in which the applicant’s father was the primary applicant. On 21 October 2016 the minister’s delegate made a single decision refusing to grant the applicant’s father the safe haven enterprise visa that the father sought. Under s 473CA of the Act the delegate’s decision was automatically referred to the IAA for review. On 29 November 2016 the representative for BJJ17 wrote to the IAA to inform it that BJJ17 would be raising new information that he wanted to be kept confidential from his father (BJK17) and BJJ17’s representative requested the IAA to provide separate decisions in relation to BJK17 and BJJ17. The IAA agreed to do so, later publishing reasons that stood alone from the IAA’s reasons in BJK17.
In this application for judicial review commenced by BJJ17, he expressly adopted the grounds and submissions advanced by his father BJK17 in the application for judicial review urged by BJK17. Pursuant to that submission, BJJ17 said that any jurisdictional error demonstrated in BJK17’s application for judicial review carried with it not only consequences for BJK17 but also for BJJ17.
BJJ17 advanced two grounds that were separate from but additional to those advanced by BJK17. It is useful to set out the two additional grounds advanced by BJJ17. There were as follows –
1. The refusal of the IAA to consider new information, namely the applicant’s claim to fear harm in Sri Lanka on the basis of his homosexuality, was unreasonable in the circumstances, or alternatively, contrary to statute.
Particulars
(a) The applicant and his father were included in the same safe haven enterprise visa application and were the subject of the same decision by the delegate refusing the visa.
(b) The applicant’s representative requested that the IAA produce separate decision records for the applicant and his father due to the sensitivity of disclosing the applicant’s homosexuality to his father.
(c) The IAA had before it evidence relating to the applicant’s homosexuality which had not been before the delegate (the ‘new sexuality information’).
(d) The IAA took the new sexuality information into account in its decision record relating to the applicant’s father.
(e) The IAA refused to take the new sexuality information into account in its decision record relating to the applicant.
(f) It was unreasonable for the IAA to take the new sexuality information into account in relation to one person but not another in the review of a single decision covering two applicants.
(g) Further and alternatively, it was not open to the IAA not to consider the new sexuality information in circumstances where it had determined in the decision record relating to the applicant’s father that the new sexuality information satisfied the criteria in s 473DD and would therefore be considered.
2. The IAA unreasonably failed to exercise or consider exercising its power under s473DC to get new information, namely the most current DFAT country information report.
Particulars
(a) The IAA relied extensively on the DFAT Country Information Report – Sri Lanka dated 18 December (the ‘2015 DFAT report’).
(b) The 2015 DFAT report was superseded by the DFAT Country Information Report –Sri Lanka dated 24 January 2017.
(c) The IAA had the power to get new information under s 473DC.
(d) The failure of the IAA to exercise or consider exercising its power to get the most recent DFAT country information report was unreasonable in the circumstances.
As has already been shown from the passages above, the grounds on which BJK17 relied for his judicial review application were not successful. Accordingly, in order for BJJ17 to obtain the relief he sought in this proceeding, he needed to succeed on the two separate grounds he advanced.
For the reasons that follow, in my judgment neither of the two grounds on which BJJ17 separately proceeded were meritorious.
Ground one
Under this ground BJJ17 argued that the delegate made a single decision in respect of both BJK17 and BJJ17. BJJ17 said the IAA was requested to produce separate decision records following the making of confidential submissions by BJJ17 about his sexual orientation, he not having previously revealed his homosexuality to his father. The IAA accepted that BJJ17’s information about his homosexuality was credible personal information which was not previously known and had it been known, may have affected a consideration of the applicant’s claims.
The IAA addressed the issue at paragraph 5 of its reasons. While lengthy, it is useful to record that paragraph in terms as follows –
In support of his claims the applicant has provided screenshots from his mobile phone setting out contacts he has had with gay men, the earliest of which appears to date from 13 July 2014. He claims he still regularly uses the apps to meet men and although he is currently in a relationship with a man he met. On the basis of the evidence provided, the new information appears to be credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims. Turning to whether there are exceptional circumstances for considering the information, I accept that the applicant was concerned about his father’s medical condition and did not want to further upset him given his father had been detained and was suffering the effects of a surgical procedure. I also accept that he was comparatively young when he came to Australia and left all the details of making his visa application to his father, and that he was not aware that it was possible to make his own application for protection without his father finding out about his homosexuality.
The IAA addressed BJJ17’s failure to raise issues concerning his sexuality any earlier than the date on which he did. Paragraph 6 of the IAA’s reasons was as follows –
However, even if I accept the applicant’s reasons for not disclosing his homosexuality at the time of his application, in my view, no credible explanation has been provided for why the applicant waited until being informed of the delegate’s decision to raise this important new claim. The applicant and his father were interviewed separately on consecutive days. At the beginning of his protection interview, the delegate explained to the applicant that his personal information was protected by law and would not be disclosed other than some biometrics to facilitate his return in the case his application was refused. The applicant asked for clarification of that and after having it explained again by the delegate indicated that he understood his personal information would not be disclosed. The applicant was also advised of the limits on the IAA’s ability to consider new information and of the importance therefore of ensuring that he provided full, personal and accurate information to the delegate as he may not have another opportunity to do so.
The IAA then addressed the differing version of events that BJJ17 gave on matters pertinent to his sexuality. Paragraph 7 of the IAA’s reasons was recorded as follows –
Throughout his interview, the applicant was given several opportunities to raise further claims and was also told that any new information which was provided before the decision was made could be taken into consideration. I note that the applicant has been legally represented throughout the SHEV application process by an experienced registered migration agent who was present throughout his SHEV interview, and that he was given a break at the end of his interview to discuss his claims with his representative in private. One of the questions asked of the applicant was what he feared on return. He stated he had no fear on his own account in Sri Lanka only in relation to his father’s claims. His new statutory declaration, however, indicated that the applicant feared being harmed by the police in Sri Lanka if he was openly gay. I do not consider it plausible that the applicant was unaware of the relevance to his claims of his homosexuality. The applicant’s SHEV interview was on 28 January 2016, however, the delegate did not make his decision until 21 October 2016. I consider that the applicant was on notice that his fears of harm on return for any reason were relevant to his claims for protection and that he had an adequate opportunity in that intervening period to raise with his representative the claim he now seeks to rely on. For the same reason I do not accept that he did not appreciate that he could raise matters that were not about politics or ethnicity, or that he thought the application would be successful without him raising his sexuality. His representative states that he is a young man not familiar with legal processes. Unfamiliarity with the legal processes for protection is an issue faced by many, if not all, applicants for protection and I do not accept that these reasons for not raising the new claims earlier in the protection process amount to exceptional circumstances. As noted above, the applicant has been represented by the same experienced migration agent throughout the process. He was interviewed separately from his father and even if I accept that he did not feel he could raise this claim before, he was on notice at his SHEV interview of the importance of raising all his claims. Given the 10 month period between his interview and the decision, I do not accept that he could not have raised his claim with his representative earlier. Further, elements of the new information differ from, and in some respects, are not consistent with the sworn evidence he gave in his protection interview. He states he went into internet cafes, the gym, camping, and other men’s homes to meet and have sex with male friends and other men whereas he told the delegate that he never went outside or had friends but only went to school and straight home because his grandmother would not permit him to go out. I do not consider the submission regarding why he has only now raised his claim adequately explains why he has provided different sworn evidence at different stages of the protection process.
Ultimately, the IAA decided that it was not satisfied that exceptional circumstances existed for considering the information about BJJ17’s sexuality. BJJ17 said the IAA’s refusal to accept information about his homosexuality was wrong. Relying on Minister for Immigration and Citizenship v Li,[33] especially the judgment of French CJ,[34] BJJ17 said the IAA’s decision was capricious, arbitrary and abandoned common sense.
[33] (2013) 249 CLR 332
[34] Ibid (at [28])
The issue for me was whether the IAA’s conclusion in paragraph 8 of its reasons was unreasonable.
In my view, it was not.
In deciding whether or not any decision of an administrative nature is unreasonable, the starting point involves construing the relevant statutory provision. A recent statement to that effect is to be found in the Full Court’s decision in Plaintiff S111/2017 v Minister for Immigration and Border Protection.[35] The standard for impugning reasoning as being unreasonable is a high one, a point made by the Full Court in Parker v Minister for Immigration and Border Protection.[36] Further, a decision is not legally unreasonable merely because different minds may differ as to which process is correct or preferable and even emphatic disagreement does not demonstrate legal unreasonableness, as was held by the Full Court in AYX17 v Minister for Immigration and Border Protection[37] as well as in Stretton.
[35] [2018] FCAFC 92
[36] (2016) 247 FCR 500
[37] (2018) FCAFC 103
In this case the minister argued that the IAA weighed all considerations that were germane to the existence or otherwise of exceptional circumstances. In the process the IAA assessed the strength of the claim. On my reading of paragraph 5 of the IAA’s reasons, the IAA did not take an especially narrow approach to the existence of exceptional circumstances.
The minister said the IAA took the view that the father’s position in relation to this new claim was wholly different to the son’s position in respect of the new claim. To that end –
a)the IAA found that the father had been unaware of the son’s sexual orientation until after the delegate’s decision and that fact was highly relevant to whether there were exceptional circumstances to justify considering the new information; and
b)by contrast, the son knew of his sexual orientation before the delegate’s decision and the IAA accepted the son’s explanations for not raising his sexuality at the time of the visa application in September 2015 but considered that no credible explanation had been provided as to why the son did not raise the claim at a later point before the delegate’s decision particularly after the interview in January 2016.
The different result as between the father and the son flowed from the terms of s 473DD. I agree that a decision that followed the language of a statute is unlikely to be arbitrary or capricious.
One issue between the parties was whether the delegate made a single decision in relation to BJK17 and BJJ17. Both applicants said a single decision was involved.
It is necessary to put the debate on this point in context.
On behalf of both applicants it was put that there was no power for the IAA to receive information about the son’s claim that he feared harm on the basis of his sexuality for the purposes of the father’s application but not on the son’s application. On behalf of BJJ17, Dr McBeth argued that the delegate’s decision dealing with both the father and son’s applications was a single fast track application under s 5 and a fast track reviewable decision within the meaning of s 473BB. So BJJ17 said, the IAA could only make a single decision in law because its functions under s 473CC was to review the single fast track decision.
The minister said several things in response. They were –
a)the delegate made a single decision;
b)each applicant relied on a separate application that was combined into a single application;
c)distinct criteria must be met by the primary applicant and by a member of the same family unit;
d)whether two decisions follow is determined as a matter of substance not form, as was held by Moshinsky J in Basra v Ministerfor Immigration and Border Protection;[38]
e)on the facts of this case the IAA was dealing with two decisions and could only lawfully make separate decisions under s 473DD in respect of each;
f)in any event, under pt 7AA the IAA is not constrained into only making a single decision when reviewing a fast track decision;
g)under s 473DD a “decision” is capable of accommodating a single review proceeding comprising separate parts where different information may be relevant to different applicants, citing Director‑General of Social Services v Chaney.[39]
[38] [2018] FCA 422
[39] (1980) 47 FLR 80 per Deane J
In Basra, Moshinsky J held that in circumstances where the statutory scheme established two different visas, each with their own criteria, the decision to reject an applicant’s visa application should be treated as two decisions. To my mind, the same result should follow in this case. Once so treated, there was nothing unreasonable in the IAA’s decision that it could have regard to a new claim concerning the son’s sexuality in the father’s application yet it was entitled to not have regard to that claim in the son’s application.
I take the view that the first of the two independent grounds of review in BJJ17’s application failed.
Ground two
Dr McBeth did not press ground two.
Conclusion
All grounds of review in both applications fail.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Date: 8 March 2019
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