BRC17 v Minister for Immigration and Anor (No.2)

[2019] FCCA 1776

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRC17 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2019] FCCA 1776

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant’s fears found not to be well-founded – whether the Authority decision was illogical or unreasonable, whether the Authority overlooked a particular social group claim, whether the Authority erred in applying s.473DD or whether the Authority took irrelevant considerations into account considered – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.473DD, 473DE

Cases cited:

AQU17 v Minister for Immigration [2018] FCAFC 111

AUH17 v Minister for Immigration [2018] FCA 388

BRC17 v Minister for Immigration & Anor [2019] FCCA 218

BVZ16 v Minister for Immigration [2017] FCA 958

DKF17 v Minister for Immigration & Anor [2019] FCCA 723

DYS16 v Minister for Immigration [2018] FCAFC 33

DZU17 v Minister for Immigration & Anor [2019] FCCA 491

EAA16 v Minister for Immigration & Anor [2018] FCCA 2624

ESQ17 v Minister for Immigration [2019] FCA 826

FER17 v Minister for Immigration [2019] FCAFC 106

Love v State of Victoria [2009] VSC 215

Minister for Immigration v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176

Minister for Immigration v CQW17 [2018] FCAFC 110

Minister for Immigration v Li (2013) 249 CLR 332

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

MZXLB v Minister for Immigration [2007] FCA 1588

NABE v Minister for Immigration (2004) 144 FCR 1

Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481; [2018] HCA 16

Applicant: BRC17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1185 of 2017

Judgment of: Judge Driver

Hearing date: 26 June 2019

Delivered at: Sydney

Delivered on: 3 September 2019

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu of Hodges Legal

Counsel for the Respondents: Mr C Lenehan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application as amended on 27 March 2019 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1185 of 2017

BRC17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 22 March 2017.  The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.

2. Before the Authority there were two applicants, who were a father and son.  In the proceedings in this Court only the applicant father was an applicant.  At the trial of this matter on 26 June 2019 the solicitor for the applicant sought leave to join the applicant son as a second applicant, with the intention of raising an argument concerning the country of reference in respect of the son, having regard to the recent decision of the Full Federal Court in FER17 v Minister for Immigration.[1]  I refused that application.  First, these proceedings have been on foot for a significant period of time (more than two years) and the application has been through several iterations.  Secondly, the applicant son did not make any protection claims of his own and only applied as a member of his father’s family group.[2]  Thirdly, although the applicant son had claimed to be stateless, the Authority accepted (without deciding) that he may be returning to Sri Lanka with his father as a stateless person but found he would not be at risk of harm because of that.[3]

   [1] [2019] FCAFC 106

   [2] Court Book (CB) 69

   [3] Authority decision at [38] CB 337

3. In the circumstances, I concluded that this case was readily distinguishable from FER17 and the interests of the administration of justice did not call for the addition of the applicant son as a second applicant.

4. In relation to the applicant’s claims, and the decision of the Authority on them, the following statement of background facts is derived from the submissions of the parties.

5. The applicant is a male Sri Lankan citizen, born in Vaddukoddai South, Jaffna District, in the Northern province of Sri Lanka on 30 November 1978, and is of Tamil ethnicity.[4]

   [4] CB 1

6. The applicant arrived in Australia at Christmas Island without a valid visa by boat on 28 September 2012 and applied for a SHEV.[5]

   [5] Safe Haven Enterprise Visa; CB 93, 141

7. The delegate refused to grant the visa on 30 August 2016.[6]

   [6] CB 238

8. The delegate's decision was reviewed by the Authority.  The Authority affirmed the delegate’s decision and refused to grant the applicant a visa 22 March 2017.[7]

   [7] CB 326

The applicant’s claims

1. The applicant's claims include the following:

   a)if returned to Sri Lanka, the applicant would be a member of a particular social group, returned failed asylum seekers, as he successfully claimed asylum and was mandated as a refugee by the UNHCR[8] while residing in Malaysia;

   b)the applicant, between 2002 and 2006, was forced to transport LTTE[9] members in his vehicle.  Two drivers who were known to work for the LTTE were shot dead by the authorities;

   c)in July 2006, the applicant was almost shot by an unidentifiable man, while messengering a letter for an LTTE member.  One week later, he was threatened with a gun and shot at by another man.  After this, in late July 2006, members of the EPDP came to the applicant’s home with guns in search of him;

   d)the applicant’s father went missing on 5 August 2006.  The applicant suspects that his father was taken in retaliation for the applicant’s support of the LTTE and because the EPDP[10] had some issues with the applicant's father;

   e)after leaving Sri Lanka and in early 2013, the Sri Lankan authorities questioned the applicant's mother about him; and

   f)while living in Malaysia as an asylum seeker, he was repeatedly arrested and extorted for bribes.  This led to his decision to seek asylum in Australia.

   [8] United Nations High Commissioner for Refugees

   [9] Liberation Tigers of Tamil Eelam

   [10] Eelam People’s Democratic Party

2. The applicant claims to fear harm or persecution from the Sri Lankan authorities, for the following reasons:

   a)he is of Tamil ethnicity;

   b)he is suspected of being a supporter of the LTTE;

   c)he departed Sri Lanka illegally; and

   d)he applied for asylum in Australia.

The decision of the Authority

1. The Authority considered the applicant’s claims and made findings which included the following:

   a)at [25],[11] the Authority found that although failed asylum seekers, such as the applicant would be subjected to questioning upon return to Sri Lanka, this questioning does not amount to serious harm;

   b)at [20],[12] the Authority was not satisfied that the three incidents of July 2006 are related and are evidence of a real threat faced by the applicant due to his links with the LTTE;

   c)at [22],[13] the Authority was not satisfied that the applicant’s father was abducted by the EPDP or that his disappearance was connected with the applicant’s involvement with the LTTE.  The Authority also concluded that it was unlikely any issues the applicant's father had with the EPDP in 2006 would create a real risk of harm for the applicant;

   d)at [24],[14] the Authority was not satisfied that the applicant departed Sri Lanka illegally, as it found that there was insufficient evidence of the applicant being targeted by or otherwise of interest to the Sri Lankan authorities; and

   e)at [26]-[37],[15] the Authority was not satisfied that there is a real chance that the applicant would face harm due to his ethnicity, religion or his language, because the situation in Sri Lanka for Tamil males from the north has improved in recent years and because the applicant claims to speak Sinhala, the language of the Sinhalese majority.

   [11] CB 333

   [12] CB 331

   [13] CB 332

   [14] CB 333

   [15] CB 333-337

The present proceedings

1. These proceedings began with a show cause application lodged on 18 April 2017.  The application has been amended several times since then.  At the trial of this matter the applicant relied upon what is described as a third amended application filed on 27 March 2019.  There are five grounds in that application:

   Ground 1

   The IAA's decision to not consider a number of documents in relation to the applicant's mental health was inconsistent, illogical and so unreasonable.

   Particulars

   1.At [CB 327,4] the IAA accepted that the doctor's letter and mental health assessment dated 18 November 2016 [CB 287] & [CB 288] post-dates the delegate's decision.

   2.At [CB 327.4] the IAA noted that the mental health assessment dated 18 November 2016 referred to the applicant having undergone “counselling related to trauma and transition to Australia during 2013”.

   3.At [CB 327.4] there is reference to letters written by the doctor, GP referral forms and a Mental Health Treatment Plan, all these documents are dated 2013 [CB 290 - CB 296].

   4.At [CB 327,4] the IAA states "The above documents confirm that the applicant has been treated for mental health issues...".

   5.As the applicant did not raise concerns about his mental health in his previous application or during the protection visa interview with the delegate and because the applicant "has been seeing Dr Sanderson since 2013... ", the IAA was not satisfied there are exceptional circumstances to justify considering this information.

   6Having accepted that the applicant had been treated for mental health issues, the IAA’s decision to not consider a number of documents in relation to the applicant’s mental health for reasons outlined in the IAA·s decision, was inconsistent, illogical and so unreasonable.

   7.The IAA exercised its discretion in an unreasonable manner when it chose to not consider a number of document in relation to the applicant's mental health.

   Ground 2

   The IAA failed to consider a particular social group claim that was made out on the facts.

   Particulars

   1.The applicant claimed in his written statement he “used to drive rickshaws” and that “There were few of us in the area driving rickshaws. We would be forced by the LTTE to help them to transport people.  One of us would be made, on any given day, to be responsible to provide transport to them. We took it in turns". [CB 80].

   2.The applicant claimed in his written statement that about a month after a rickshaw driver's brother was stabbed two of his friends “and fellow rickshaw drivers, were shot dead by the authorities.” [CB 80].

   3.The applicant in his entry interview stated that he “used to drive a 3-wheeler during this period and who would hire it out to whomever including the LTTE…” [25].

   3.The DFAT report dated 24 January 2018 which has been considered by the IAA states at paragraph 3.32 (page 16 of this report),

   The most recent UNHCR Eligibility Guidelines for Sri Lanka (December 2012) note that a person's real or perceived links with the LTTE may give rise to a need for international refugee protection. Although !he nature of these links can vary, this may include:

   …

   former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;

   persons with family links or who are dependent on or otherwise closely related to persons with the above profile.

   4.The IAA failed to consider if the applicant faces harm, should he be returned due to his membership in  a particular social group of three wheel, drivers who were involved in transporting for the LTTE.

   Ground 3

   When “considering new information in exceptional circumstances” (Section 473DD of the Migration Act) the IAA committed jurisdictional error as it failed to consider s473DD(b)(ii).

   Particulars

   1.The IAA states at [5] "The rest of the statement provides information about incidents which he did not disclose earlier which I consider to be new information".

   2.The statement provided by the applicant to the IAA, the IAA states failed to provide reasons as to why the applicant was unable to provide this new information earlier, implying s.474DD(b)(i) has not been met.

   3.The information contained in the statement provided by the applicant to the IAA falls within the scope of “personal information which was not previously known and, had it been known may have affected the consideration of the referred applicant's claims”.

   4.Though the IAA made a finding under s474DD(b)(i), the IAA failed to consider if the information contained in the statement provided by the applicant to the IAA was in fact "credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims"

   Ground 4

   The IAA committed jurisdictional error by breaching statutory provisions and taking an irrelevant consideration into account.

   Particulars

   1.s473DE(1) of the Migration Act states,

   (1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

   (a)     give to the referred applicant particulars of any  new information, but only if the new information:

   (i)has been, or is to be, considered by the Authority under section 473DD; and

   (ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

   (b)     explain to the referred applicant why the new information is relevant to the review; and

   (c)     invite the referred applicant, orally or in writing, to give comments on the new information:

   (i)in writing; or

   (ii)at an interview, whether conducted in person, by telephone or in any other way.

   2.The IAA gave the applicant new information and invited the applicant to comment on the new information [CB 308] because the new information satisfied the two limb test in s473DE(a).

   3.The new information that was given to the applicant contained an irrelevant consideration namely that the applicant departed ''illegally" [CB 312].

   4.The IAA in its decision states at [CB 339. 46] “I accept that the applicant departed Sri Lanka legally on his own passport and with a valid visa to Malaysia in 2006. I am not satisfied the applicant will be charged with illegal departure on return to Sri Lanka"

   5.The IAA's decision is affected with legal error due to these reasons.

   Ground 5

   The IAA adopted and applied an unduly narrow interpretation of the term "exceptional circumstances" when it inferred that it was not satisfied there are exceptional circumstances to justify considering a number of documents in relation to the applicant’s mental health.

   Particulars

   I.At [CB 327.4] the IAA states "The above documents confirm that the applicant has been treated for mental health issues...".

   2.Though the applicant may not have indicated why the document in relation to the applicants mental health are relevant to the assessment of his claim [CB 327.41], the IAA was of the view that the documents confirmed that the applicant  has previously been treated for mental health issues.

   3.The fact that the applicant had previously been treated for mental health issues was "credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claim”

   4.The fact that the applicant had previously been treated for mental health issues was a factor, that affected the applicant and which set him apart from other persons in a similar situation, this amounted to an exceptional circumstance. See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (18 August 2017), paragraph 39.

   (applicant’s emphasis deleted)

2. In addition to the court book filed on 29 June 2017, I have before me as evidence an affidavit by the applicant’s solicitor annexing the DFAT[16] country report on Sri Lanka published on 23 January 2017.

   [16] Department of Foreign Affairs and Trade

3. A preliminary issue was raised in this case which I dealt with in my decision in BRC17 v Minister for Immigration & Anor.[17]  That preliminary question having been answered in favour of the Minister, this judgment relates to the substantive grounds of review advanced.

   [17] [2019] FCCA 218

Consideration

1. I prefer the Minister’s submissions in relation to the grounds of review.

Ground 1

1. The applicant asserts in this ground that, having understood, at [4] of the Authority’s reasons, that the medical evidence or documents before it[18] confirmed that the applicant had been treated for mental health issues, the reasoning given by the Authority at [4] for declining to consider that information was legally unreasonable.  The applicant’s submissions also allege additionally jurisdictional error based upon the decision in BVZ16 v Minister for Immigration. [19]

   [18] as to which, see CB 287-296

   [19] [2017] FCA 958

2. I accept that neither an error of legal unreasonableness nor an error of the type outlined in BVZ16 are present here.  Accordingly, this allegation cannot be sustained.

3. As to the allegation of legal unreasonableness, it is well established that a decision made under s.473DD of the Migration Act 1958 (Cth) (Migration Act) must be made in a legally reasonable manner,[20] although there is a question whether the decision is properly described as a discretionary one.[21]

   [20] DYS16 v Minister for Immigration [2018] FCAFC 33 at [20] (Tracey, Murphy and Kerr JJ)

   [21] DYS16 at [16]

4. At [4], the Authority essentially reasoned that:

   a)it was not clear why the documents that post-dated the delegate’s decision (the doctor’s letter and mental health assessment) could not have been obtained earlier in order to be provided to the delegate;

   b)it was not satisfied that the other documents, from 2013, could also not have been provided earlier; and

   c)the applicant had not indicated how these documents were relevant to his claims for protection. 

5. On that basis, the Authority declined to consider the new information under s.473DD of the Migration Act, finding that there were no “exceptional circumstances” within the meaning of the provision. That is not a “rare case”[22] of reasoning lacking an evident and intelligible justification. To the contrary, the applicant having failed to explain the relevance of the new information to his protection claim, the matters relied upon provide justification for the statutorily mandated conclusion that was reached, that no “exceptional circumstances” exist warranting their consideration for the purpose of s.473DD(a).

   [22] Minister for Immigration v Li (2013) 249 CLR 332 at [113]

6. As to the asserted BVZ16 error, the requirements of subparagraphs (a) and (b) in s.473DD of the Migration Act are cumulative.[23]  Further, and notwithstanding the decision in BVZ16, when considering “exceptional circumstances” for the purpose of s.473DD(a), the requirement is not that the Authority must consider the matters in s.473DD(b). Rather, considerations of those factors may assist the Authority in deciding whether exceptional circumstances exist, but whether those factors will have bearing upon a particular decision will depend upon the particular case.[24]

   [23] see, e.g., Plaintiff M174/2016 v Minister for Immigration (2018) 92 ALJR 481, 489; [2018] HCA 16 at [31] (Gageler, Keane and Nettle JJ); AQU17 v Minister for Immigration [2018] FCAFC 111 at [13] (McKerracher, Murphy and Davies JJ)

   [24] AQU17 at [14]

7. Accordingly, even if I was satisfied that the Authority had failed to consider the matter in s.473DD(b)(ii) in determining whether to consider the relevant documents, this would not necessarily mean that jurisdictional error existed.[25]

   [25] AQU17 at [14]

1. In any event, at [4], the Authority observed that:

   The applicant has not indicated why these documents are relevant to his claims for protection.  I note that he did not raise any concerns about his mental health in his primary application for protection or during his protection visa interview.

2. Read fairly without an eye keenly attuned to error,[26] and in context, this is confirmation that the applicant had not satisfied the Authority that the “new information” referred to in [4] was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims”.[27]  The fact the Authority did not use the language of the section does not affect that conclusion.[28]

   [26] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

   [27] and see s.473DD(b)(ii)

   [28] AQU17 at [16]

Ground 2

1. The Authority was required to consider claims which were unarticulated, but which were squarely raised on the material before it.[29]  Further, there “is no precise standard for determining when an issue is ‘raised squarely’, but it is clear the Authority is obliged to consider any claim that is apparent on the face of the material before it”.[30] 

   [29] Minister for Immigration v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176 at [79]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [58]-[60]

   [30] MZXLB v Minister for Immigration [2007] FCA 1588, [14] (Finkelstein J)

2. Here, however, I accept that it is unnecessary to address the question of whether the applicant “squarely raised” the proposition that he faced a threat of harm due to his membership of a particular social group of rickshaw drivers involved in transporting for the LTTE.  This is because, notwithstanding that a particular social group claim was not separately considered, the Authority did consider the applicant’s claim to fear harm on the basis of the fact that he drove the LTTE around in a rickshaw, in three different parts of the decision.

3. The Authority first dealt with the criterion in the context of considering the applicant’s fear of harm as a result of imputed links with the LTTE, finding in relation to various incidents recounted by the applicant that if the incidents occurred, they did not occur because the applicant had driven the LTTE around in a rickshaw.[31]  The Authority concluded it was satisfied that at the time the applicant left Sri Lanka, he was not of interest to the Sri Lankan authorities or the EPDP.[32]

   [31] see at [14]-[22], and in particular at [17]-[22]

   [32] at [24]

4. The Authority next considered the applicant’s fear of harm as a Tamil male from the North, finding:[33]

   I am also not satisfied that the applicant has a profile with the Sri Lankan authorities such that he would face a real chance of harassment or surveillance or harm on return to Sri Lanka.  Although he drove the LTTE around in his rickshaw …I have not accepted the applicant was of any adverse interest to the EPDP or Sri Lankan authorities for this reason at the time of his departure from Sri Lanka or that the Sri Lankan authorities have continued to seek his whereabouts for this reason.  I am also not satisfied there is a real chance the Sri Lankan authorities or the EPDP will find out the applicant was forced to drive the LTTE…in the reasonable foreseeable future.

   [33] at [33]

5. Finally, at [47], in the context of considering the applicant’s claims cumulatively, the Authority again addressed the issue, finding:

   I have also assessed the applicant’s claims cumulatively in respect of his profile as a young Tamil…who used to drive the LTTE around during the ceasefire…Assessing his claims cumulatively I find they do not give rise to a real chance of serious harm. 

6. The Authority plainly addressed the claimed fear of harm based upon the applicant’s past activity of driving a rickshaw.  The attachment of a particular social group label to the claim adds nothing to it.

Ground 3

1. Like Ground 1, this claim relies upon BVZ16, alleging that the Authority failed to consider s.473DD(b)(ii) in relation to “new information” provided by the applicant. Unlike Ground 1, however, this ground appears to be directed at the Tribunal’s findings at [5].

2. This ground fails for two reasons:

   a)first, when read in context, the Authority did take into account the factor in s.473DD(b)(ii) in relation to the “new information” set out in [5]; and

   b)in any event, the Authority’s reasoning was not “inappropriately narrow”.[34] 

   [34] cf. BVZ16 at [47]

3. As to the first matter, it is important to have regard to the structure of [5], which is divided into two parts. In the first part, the Authority sets out a variety of new information provided by the applicant. The Authority then makes a finding concerning the matter in s.473DD(b)(i), finding that, “the applicant has not provided any reasons as to why he was unable to provide this new information earlier and no reasons were given in the earlier submission to the IAA although the submission indicated that further information would be provided by the applicant about his involvement with the LTTE”. In the second part, the Authority sets out various opportunities which the applicant had had to provide the information he was now providing, and notes, among other things:

   a)the applicant’s original protection application was prepared with the assistance of a lawyer;

   b)the applicant was informed during the protection visa interview that he had an opportunity to correct “false or misleading” information, also that “it was important that he provides the Department with full and accurate protection claims as early as possible in the protection visa application process”, and

   c)“At the conclusion of the interview the applicant indicated he had put forward all his claims for protection”.

4. Given the Authority had already made a finding that the applicant had failed to satisfy s.473DD(b)(i) in relation to the information in question, and emphasising that it is not necessary that the language of the section be used,[35] I read the second part of the paragraph as a finding adverse to the applicant with respect to s.473DD(b)(ii). The factors enumerated above are all factors going to the credibility of the information being provided. Read in context, on the facts of this case, what the Authority is doing in part two of [5] is finding that the information in question is not “credible personal information”, having regard to the fact that the applicant has not put that information forward previously. Of course, in determining whether new information is “credible”, the Authority is not prevented from having regard to the factual context in which the information arose.[36]  The factual context in this matter was materially different from that in DZU17v Minister for Immigration & Anor[37] upon which the applicant relies.

   [35] AQU17 at [16]

   [36] EAA16 v Minister for Immigration & Anor [2018] FCCA 2624 at [42]; DKF17 v Minister for Immigration & Anor [2019] FCCA 723 at [72]

   [37] [2019] FCCA 491

5. As to the second matter, it is trite to say that quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.[38]

   [38] Plaintiff M174/2016 at [30]

6. Even if the Authority failed to consider the matter in s.473DD(b)(ii) in relation to the information, its reasoning was not inappropriately narrow in the sense impugned by BVZ16.

7. It is instructive, in this regard, to consider two decisions of the Full Federal Court applying BVZ16.[39]

   [39] BBS16 and Minister for Immigration v CQW17 [2018] FCAFC 110

8. In BBS16, the Court (Kenny, Tracey and Griffiths JJ) held (relevantly) that the Authority had fallen into jurisdictional error by failing to consider s.473DD(b)(ii) when considering whether there were exceptional circumstances for the purpose of s.473DD(a). There, the applicant had explained (by new information) that the reason he had not previously disclosed the new information was because he had been prohibited from doing so (he was now released from that prohibition). The Authority focused upon the fact that the applicant had not disclosed that information previously, [40] but failed to consider the applicant’s explanation that he had previously been prohibited from disclosing the information.[41]  This was jurisdictional error.

   [40] cf. s.473DD(b)(i)

   [41] cf. s.473DD(b)(ii)

9. In CQW17, the Court (McKerracher, Murphy and Davies JJ) upheld a notice of contention filed on behalf of the Minister contending that the Authority had fallen into jurisdictional error by considering only the matter in s.473DD(b)(i). There, the Court found (among other things) that:[42]

   In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the [new information], or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances.  On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression ‘exceptional circumstances’.

   [42] at [51]

10. For the reasons given above, these decisions are distinguishable.  Unlike BBS16, here the applicant did not provide an explanation of why this new information had not previously been provided which the Authority.  Further, unlike CQW17, here the Authority did not fail to evaluate the material provided. It listed that material in some detail at [5], and was satisfied that no exceptional circumstances existed warranting its consideration given that the applicant had had several opportunities to put the material forward previously.

11. Given that the test under s.473DD does not necessarily require the decision-maker to reach a conclusion or make a finding in respect of each subparagraph of s.473DD,[43] this reasoning is unexceptional.

    [43] see again AQU17 at [14]

Ground 4

1. This is an allegation that the Authority has taken into account an irrelevant consideration, being the statement contained in a letter sent by the Authority to the applicant pursuant to s.473DE of the Migration Act[44] that the applicant had left Sri Lanka “illegally.”

   [44] CB 312

2. This ground must fail. As the applicant notes,[45] to successfully impugn a decision based upon the “irrelevant considerations” ground, a challenger must satisfy the Court that the particular consideration was in fact taken into account.[46]

   [45] Applicant’s submissions at page 12, Ground 4(c)

   [46] Love v State of Victoria [2009] VSC 215 at [191]

3. Here, and notwithstanding the material in the letter, the Authority did not take account the consideration that the applicant left Sri Lanka illegally.  To the contrary, in the context of considering the applicant’s claim to fear harm as a failed asylum seeker, and as the ground itself notes, the Authority found that:[47]

   I accept that the applicant departed Sri Lanka legally on his own passport and with a valid visa to Malaysia in 2006.  I am not satisfied the applicant will be charged with illegal departure on return to Sri Lanka.

   [47] at [46]

Ground 5

1. Like Ground 1, this claim relies upon BVZ16, and alleges that the Authority applied an unduly narrow interpretation of the term “exceptional circumstances” in s.473DD(a) of the Migration Act when it rejected the documents in relation to the applicant’s mental health at CB 287–296 (which are the same documents as addressed in Ground 1).

2. For the reasons given above, the Authority appropriately considered whether exceptional circumstances justified considering the new information (determining at [4] that they did not).

3. In any event, noting that the conditions in paragraphs (a) and (b) of s.473DD are cumulative,[48] there is nothing erroneous about the Authority directing its attention to (b) rather than (a). That is, where the Authority has identified the matters in (b) as not being satisfied, this is sufficient to trigger the prohibition in s.473DD.[49]

   [48] see [20] above

   [49] ESQ17 v Minister for Immigration [2019] FCA 826 at [62] (Stewart J); AUH17 v Minister for Immigration [2018] FCA 388 at [33] (Mortimer J)

4. In that regard, the applicant has not alleged that the Authority failed to consider if the new information met the s.473DD(b)(i) criteria (which was addressed at [4] of its decision). And, for the reasons given above, the Authority considered, and determined that it was not satisfied of, the matters in s.473DD(b)(ii) of the Migration Act.

5. Accordingly, even if the Authority fell into error in its approach to the statutory concept of “exceptional circumstances” under s.473DD(a) (which it did not, for the reasons given above), the decision to reject the new information would nevertheless stand.[50]

   [50] ESQ17 at [65]

Conclusion

1. The applicant has not established that the decision of the Authority is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  3 September 2019