BVZ16 v Minister for Immigration

[2019] FCCA 3641

FEDERAL CIRCUIT COURT OF AUSTRALIA

BVZ16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3641

Catchwords:

MIGRATION – Protection Visa – whether Immigration Assessment authority’s decision affected by jurisdictional error – where no error established in Immigration Assessment authority’s decision – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 473A, 473BB, 473DC, 473DD

Cases cited:

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Applicant: BVZ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 496 of 2017

Judgment of: Judge Vasta

Hearing date: 29 October 2019

Date of Last Submission: 29 October 2019

Delivered at: Adelaide

Delivered on: 29 October 2019

REPRESENTATION

Counsel for the Applicant: Ms Stanley

Solicitors for the Applicant: Camatta Lempens

Counsel for the First Respondent: Mr Ellison

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The Applications filed 1 December 2017, and amended 23 August 2019, be dismissed.

2. That the Applicant pay the First Respondent’s costs in the fixed sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 496 of 2017

BVZ16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

1. On 3 November 2017, the Immigration Assessment Authority (“the IAA”) affirmed a decision of the delegate not to grant the Applicant, BVZ16, a protection visa.  On 1 December 2017, the Applicant filed an application asking this Court to review that decision. 

2. The background to the matter is that the Applicant is a Tamil Hindu, who was born in the northern province of Sri Lanka.  His parents and other members of his family, that is one brother and two sisters, now live in India as refugees, and he has another brother in Australia. 

3. During the war, his village was the scene of fighting between the Sri Lankan army and the LTTE, and the SLA also conducted frequent roundups in that area.  He said that many Tamils in the area were killed, including one of his brothers, by an artillery shell in 1985.  He said that shortly after this, his family fled to India, and they were granted refugee status, and they remained in India until 1988, when the Indian Peace Keeping Force came to Sri Lanka. 

4. In 1989 or 1990, two of his brothers were tortured.  He said that his father was also struck with the butt of a gun.  The family fled back to India in 1990, and remained there until 2008.  He returned to Sri Lanka in order to get married, he claimed.  He said several of his relatives were killed as the fighting intensified in 2009.  Some of these relatives were combatants for the LTTE.  He said that the roundups continued after the war, because the authorities remained suspicious of Tamils, and that people suspected of LTTE involvement were also abducted and killed.

5. He claimed that in April 2010, two CID officers came to his home.  He wasn’t at home at the time, but when he returned, his wife told him that the officers had come and threatened her.  She told him, then, about an incident she had witnessed herself in 2007, where her cousin S was detained by the SLA, and subsequently disappeared.  She told the Applicant that she had reported that disappearance to the police, and has had problems with the CID ever since.  He claims that he and his wife were living in an area that was close to several army and navy camps, and because he was so worried about this, he and his wife went to India as refugees.

6. In 2012, they believed the situation in Sri Lanka had improved, and on 13 March 2012, they returned to Sri Lanka.  The Applicant claimed that he and his wife were separated at the airport.  He claimed that she was taken and interrogated by the authorities for three hours.  He was asked about his links to the LTTE and why he had gone to India.  The authorities did not believe his answers, and checked his body for scars. 

7. He said that after three hours, the authorities brought his wife into the room, and that he and his wife were questioned for another two hours.  He said that the authorities asked about cousin S, and whether any other family members were linked to the LTTE, and the Applicant said that he denied any connections to the LTTE.

8. He said that eventually the authorities released them.  However, they were told to provide contact details so they could be called in for further questioning.  The Applicant said that the next morning, he received a message to attend the CID office in Mannar.  He and his wife went to the office, and they were interrogated again. 

9. The Applicant said that the CID officer showed them a bank booklet that had been issued by the official LTTE bank, and here they asked them both questions about this book.  They said they had never seen the book before, and never provided money to the LTTE.  

10. He said that they were asked further questions about their relatives, and then told they could leave but they had to provide a mobile telephone number, in case they were required again.  They were also told they could not move to another area without permission. 

11. In April 2012, the Applicant was again called to the CID office in Mannar, he claimed.  This time, the officer wanted to know how the Applicant had been able to afford to buy a Tuk Tuk.  The officer accused them of being an LTTE member, and said that this is how he could afford the vehicle.  The Applicant said the interrogation lasted for an hour, but the Applicant was held for a further eight hours before he was released. 

12. He said that after he was released, the same officer called him on at least five occasions, to check on his whereabouts.  The Applicant said that he had decided it wasn’t safe for him or his wife in Sri Lanka, and it was only a matter of time before the CID came and arrested them, and that’s when they decided to flee Sri Lanka.

13. He said that since they had been in Australia, his mother-in-law has told him that the CID came looking for them, and that she told the CID that the Applicant and his wife were in Australia.  He said that he fears harm from the Sri Lankan authorities or pro-government paramilitary groups, because he will be imputed with having links, including familial associations, to the LTTE. 

14. He also fears harm because his wife has been targeted by the CID for reporting S’s disappearance.  He said that he also fears harm because they spent many years in India, and for being returned asylum seekers who left Sri Lanka illegally.

15. The IAA went through these claims in a very thorough manner.  In the main, the IAA were prepared to accept most of what it was that the Applicant had said had happened. 

16. The return from India to Sri Lanka in 2012, does seem to correlate or be consistent with country information that talked about persons who came back to Sri Lanka during that time being subjected to questioning sessions by immigration officers that asked them from one to two hours, followed by security interviews with the Security Intelligence Service that could take from 30 minutes to five hours.  The country information noted that after having cleared the airport, 75 per cent of the returnees were contacted at home by the military or police, and a number of those reported receiving one or more additional visits.

17. The IAA was satisfied that the Applicant’s description of his return to Sri Lanka indicates that he and his wife underwent questioning, in relation to security matters about the LTTE and the person S, and the IAA was satisfied that this security questioning was a standard arrival process for that time. 

18. The IAA said that while they accepted that the Applicant was questioned on two further occasions, both of those incidents involved the CID in his local area, and that the Applicant had not claimed that there was any ongoing interest by any of the other authorities.

19. The IAA was satisfied on the country information that these types of interviews were common for returnees in Sri Lanka.  The IAA said that while it could have been frightening and inconvenient for the Applicant, the IAA took into account that he was not threatened, assaulted, restrained or subjected to any harm, other than being detained and asked questions.  While the IAA accepted that the Applicant was, and remains, generally fearful of the authorities, there was no other information before the IAA that indicated he suffered any serious mental harm because of those incidents.

20. The IAA accepted that the mother-in-law most probably would have been contacted by the CID, wanting to know where the Applicant was because the Applicant would not have answered his phone.  The IAA said that, having regard to all the information and findings above, they were satisfied that at the time the Applicant departed Sri Lanka, he was not subjected to any more than a very low-level interest by the authorities. 

21. The IAA was not satisfied that the Applicant has been a member, or will now be imputed with any membership or association with the LTTE, including through any familial association, and that he hadn’t claimed to be involved in any activities since he left Sri Lanka that will bring him to the adverse attention of the authorities or pro-government paramilitary organisations.

22. The IAA then went through what life was like in Sri Lanka, according to the country information and what the country information said about the plight of Tamils.  In general, the IAA referred to country information that said that there were only four categories of persons of a risk of persecution or serious harm, and that the Applicant was not a person who fitted any of those categories. 

23. The IAA referred to UK country information that said that a person being of Tamil ethnicity would not, in itself, warrant international protection.  Neither would being a person who evidences past membership or connection to the LTTE, unless they have or are perceived to have a significant role in relation to post-conflict Tamil separatism or appear on a stop list at the airport. The IAA was satisfied the Applicant did not fit that category.  

24. The IAA looked at the Applicant’s illegal departure, and the fact that he would be a returned asylum seeker, and looked at the impact of the Sri Lankan Immigrants and Emmigrants Act. The IAA was satisfied that the Applicant may very well be charged with leaving Sri Lanka illegally, and that he would be fined and that he may be detained until the Court can deal with his particular matter. The IAA was of the view that this form of sanction did not constitute serious harm, and therefore concluded that the Applicant was not a refugee pursuant to section 5H of the Migration Act.

25. The IAA then went through the complementary protection criteria, and looked at those matters before coming to a conclusion that there were not substantial grounds for believing matters’ necessary and foreseeable consequence of being returned from Australia to Sri Lanka, that there was a real risk that the Applicant would suffer significant harm. 

26. The grounds of this application relate not so much to the decision of the IAA per se, but rather its decision before it embarked upon the review that it would not consider new material. 

27. One must look at the history of the matter.  The Applicant departed Sri Lanka on 10 August 2012, and arrived on Christmas Island on 27 August 2012.  He was interviewed soon after arrival. 

28. On 30 August 2013, he lodged an invalid application for a protection visa, and on 11 July 2015, he lodged a valid application for a Safe Haven Enterprise visa. 

29. The delegate refused to grant this visa on 3 May 2016 and, because this was a fast track decision, the matter was referred immediately to the Immigration Assessment Authority.  I pause to add that the IAA affirmed the decision on 16 June 2016.  The Applicant asked for a judicial review.  That review was dismissed by this Court.  The Applicant appealed that decision to the Federal Court, and, on 18 August 2017, the Federal Court allowed the appeal and set aside the IAA decision and remitted the matter back for reconsideration. 

30. However, before the IAA had affirmed the decision, consistent with the practice direction, the representative of the Applicant made a submission to the IAA but also submitted a statement of the Applicant that was dated 22 May 2016. 

31. I apologise for having to read this into the record, but I feel that I must for completeness, and I do not do so for any other reason than because of the need to explain why it is that this ground of review exists.  The statement is at court book page 211.  The Applicant said this:

    1. Previously I did not mention an important incident of serious harm that I experienced prior to fleeing Sri Lanka in August 2012.

    2.Approximately 15 –20 days prior to fleeing Sri Lanka, I was taken in for questioning one morning in July 2012 by the Sri Lankan Army to a camp close to where I resided.  The name of the Army Camp was Sunny Village Army Camp. 

    3. I thought the army were wanting to question me as they usually did after my arrival in Sri Lanka from India. 

    4. I was detained for two days at the Sunny Village Army Camp.

    5. I was interrogated and tortured whilst I was detained at the Sunny Village Army Camp. 

    6. My interrogator suspected I was a member of the LTTE or that I had assisted the LTTE as I had travelled several times to India.

    7. Both my legs were tied and I was hung upside down.  My hands were also tied, and I remained in my underwear when I was tortured.  My interrogators beat me severely with wooden sticks.  They also placed a glass bottle into my mouth and applied pressure in an effort to make me confess that I was a member of the LTTE. 

    8. While I was hanging upside down at one point, my interrogators used a blade to tear my underwear and I remained naked thereafter.

    9. There is visible scarring on my legs and hands caused due to the torture I underwent. 

    10. I was severely beaten and tortured.  The authorities then placed a plastic pipe into my anal cavity and pushed the pipe inside.  I believe there is visible scarring near the anal cavity and I would try and obtain a doctor’s opinion with regard to the scarring caused during torture to support my claims, which have not been mentioned previously. 

    11. When I was released after two days my interrogators told me that my wife too would suffer similar consequences as my wife had already come to the adverse attention of the authorities on account of her cousin’s disappearance. 

    12. The reason I did not mention this incident of serious harm previously either to my legal representative or to the delegate who interviewed me in December 2015 was due to the following reasons: 

    a. Upon arrival in Australia I was afraid to disclose the incident of torture that I underwent as I was afraid the Australian authorities would perceive me to be a member of the LTTE and I could have been returned to Sri Lanka. At the time I arrived by boat, the Australian authorities were returning Tamils who had arrived by boat in large numbers;   

    b. I was too embarrassed to disclose this incident that occurred to me in the past either to my representative or to the department officers as the experience was humiliating and degrading being a male it was difficult to open up and talk about it, as the incident affected my greatly mentally.

    13. This statement has been read back over to me over the phone over the phone in Tamil by my representative, who assisted in preparing the statement. As my representative assisted me to prepare this statement over the phone, I was able to disclose the truth to him and felt less embarrassed.   

    14. Though I have been able to share the facts about this particular incident, I am now deeply troubled, as certain things I had wanted not to remember are coming back to my mind.  I am afraid I could be mentally affected and depressed. 

    15. I would appreciate if the IAA would consider the nature of harm I experienced at the hands of the authorities and the reasons for not disclosing this incident previously, and remit my case to the department for reconsideration.

32. After the remittal back to the IAA, the IAA had to re-determine if it would accept this statement as new material.  Because the IAA was re-determining this matter in 2017, after the Federal Court of Australia had set it aside, the IAA also was given two medical reports by the Applicant’s legal representatives. 

33. The first report was dated 5 October 2017. It is a psychological report compiled by a Melissa Tweedy, who is a clinical psychologist who works for a refugee mental health clinic. The report is reproduced at pages 261, 262 and 263 of the court book. I will not read the whole report into the record, but I will record what I consider to be the relevant parts. They are this:

    [The Applicant] has been receiving specialised torture and trauma support at STTARS since 30/09/2016 following his referral for post-traumatic stress disorder (PTSD) by his GP, [name omitted] at the Montague Farm Medical Centre on 8/08/2017.

    …

    [The Applicant] was not aware that he carries a sexually transmitted infection (STI) until he presented to the Red Cross to donate blood and was told, following his screening assessment.  He was shocked as he had never had sexual relations with anyone other than his wife and does not smoke or drink. The news was devastating to the [The Applicant], and, whilst highly distressed and teary, he expressed feeling an immense shame and sadness. He has only disclosed his status to his GP and lawyer as he feels extremely embarrassed.  [The Applicant] also reported he had a lump under his testicle and does not know how it developed.  The pain from his injuries prevent him from completing demanding physical work and constantly remind him of the past.

34. The Applicant gave a history, which is, in the main, consistent with the statement that I have already read into the record.  The report also says:

    Furthermore, [the Applicant’s] hypervigilance, sensitivity to reminders of his traumatic history and high levels of anxiety restrict his ability to verbalise specific details of his past experience, such as recalling dates, locations and the time sequence of events; consistent with the scientific literature on the psychological impact of trauma. [The Applicant] voiced that for him, ‘the past is always the present’ and talking about it brings him directly back to his memories and intense emotional pain. He explained he did not disclose the extent of the circumstances which led him to flee Sri Lanka in his initial interview with the IAA as he felt too traumatised by the memories, and he was accustomed to hiding his past due to stigma in Tamil culture which would have led him to be shunned.  [The Applicant] expressed he now realises how important it is for him to disclose his full history, regardless of the distress and embarrassment it causes him. 

    Clinical assessment indicates that [the Applicant] experiences severe levels of post-traumatic stress disorder (PTSD), exacerbated by high levels of depression and anxiety, which is consistent with his history of extensive torture and trauma.  Primarily, the Applicant’s psychological symptoms include:

    ·Ongoing re-experience of traumatic memories through distressing flashbacks, nightmares and intrusive thoughts;

    ·Severely impaired sleep as a result of the above;

    ·Prolonged depressed mood, loss of interest and pleasure in usual activities; 

    ·Lack of motivation and reduced activity, fatigue;

    ·Feelings of grief, isolation, helplessness and hopelessness;

    ·Social withdrawal and irritability;

    ·Memory and concentration difficulties; 

    ·Excessive fear and anxiety, hypervigilance;

    ·Loss of appetite; 

    ·Chronic pain in back resulting from his experience of physical torture; 

    ·Chronic migraines.

    …

    The above physical and psychological difficulties are clearly impairing [the Applicant’s] ability to function socially, occupationally and recreationally on a daily basis, including his ability to fully participate in family, social, educational/occupational and religious activities, and detract from his quality of life.

1. The other report was from a Dr Cathy Sarles from the Adelaide City General Practice.  It was dated 11 October 2017.  Relevantly, it has that the Applicant gave a similar history, but it says this:

   Following this torture, [the Applicant] has experienced ongoing pain in his left flank and lower back.  He has an area in his lower kidney which is abnormal on ultrasound which possibly may be a result of blunt force trauma such as being beaten repeatedly with a pipe.  He has persistent microscopic haematuria. 

   Shortly after he arrived in Australia in August 2012 he noticed a painful swelling in his testicle.  He has been treated as a chronic infection but this had never had this problem before his torture. He continues to have this problem and is currently being referred to for a urological opinion. 

   He also experiences recurring rectal pain and intermittent rectal bleeding.  I suspect he has internal haemorrhoids…

   [The Applicant] has a linear scar, about 10 cm long on his inner left forearm which he states was caused by a sharp metal object being drawn down his arm in Mannar.  He has an ovoid scar on his lateral left lower shin, which he states was caused by being beaten with a pipe.  Both scars are consistent with this explanation.

   [The Applicant] experiences symptoms consistent with post traumatic stress disorder.  He has low mood and recurrent involuntary thoughts about the events of 2012.

2. About that statement and those reports, the IAA said this in paragraphs 13 to 18 of their reasons:

   13. While I accept that distress and embarrassment may be a reason a person does not disclose information of this type in some circumstances, given the significance of this interrogation, detention and assault, I do not consider it plausible that the Applicant was unable to mention this to his lawyer before the delegate had produced the decision.  His application for protection rests squarely on whether he may face harm now or in the foreseeable future and a central claim would be that he has experienced harm from the Sri Lankan authorities in the past.  An event such as the one he claims occurred in July 2012 is so inherently relevant to, and potentially indicative of a real chance of serious harm that I do not accept he would not disclose this, or at least some aspect of it (for example, the fact that he was detained and beaten, but without referring to the sexual violence) until after his application had been refused, particularly as the delegate had specifically warned him that failing to raise claims at the interview or before the decision was made might mean that he could not raise them if his application was refused.

   14. I also take into account that the Applicant has said that he was able to discuss the incident with his lawyer by telephone because he felt this embarrassed.  He has not explained why he was not able to do this before the decision was made, to ensure that his complete and personal claims were properly before the delegate. 

   15. Further, I take into account that by the time of the interview, the Applicant had been in Australia for three years and was being assisted by a migration lawyer.  I do not accept that by this time, the Applicant was too scared to provide details of his treatment by the Sri Lankan authorities because he thought he might be sent back to Sri Lanka.

   16. Having regard to all the factors set out above, I do not accept the Applicant’s reasons for not raising the claims before the delegate made her decision.  This leads me to doubt the timing and content of the claims.  The Applicant has not satisfied me as to either of the matters in s.473DD(b). Nor am I satisfied that there were exceptional circumstances to justify considering this new information. 

   Medical reports. 

   17. The Applicant has provided two medical reports.  Both are from registered medical practitioners and concern the Applicant.  The first is from the Applicant’s current medical practitioner and is dated 11 October 2017, while the second document is a psychological report in respect of the Applicant, dated 5 October 2017.  Both postdate the delegate’s decision, and in that sense could not have been provided to the delegate before that decision was made.  The doctor’s report notes that the Applicant has been attending for treatment since 18 July 2017, and sets out the Applicant’s as-reported history and records the results of physical examinations in Australia. The report notes an area on the Applicant’s kidney which is abnormal on ultrasound, and ‘which possibly may be a result of blunt force trauma such as being beaten repeatedly with a pipe’, as well as a scar on his left forearm and a scar on his left lower shin, which are ‘consistent with his explanation’ of being beaten with a pipe.  The report also notes that the Applicant has been ashamed and found it difficult to describe his injuries and symptoms to doctors.  The psychologist report notes that the Applicant has been receiving specialised torture and trauma support since 30 September 2016, and that the issues he has raised are consistent with the personal history provided.

   18. Both reports indicate that the Applicant did not attend and seek treatment until after the IAA had affirmed the delegate’s decision, and both reports are based on the Applicant’s as-reported claims.  As noted above, the reports refer to injuries and diagnoses that are consistent with the Applicant’s claimed history, but do not confirm the Applicant’s claimed history or state that there are no other explanations for these issues.  I am not satisfied the reports are probative of the Applicant’s claims, and for this reason, together with my earlier observations in relation to the Applicant’s failure to raise these claims before the delegate, I’m not satisfied that there are exceptional circumstances to justify considering these reports.

3. The grounds of the application are as follows:

   Ground One – Misapplication of s473DD

   1.The Immigration Assessment Authority (IAA) erred by misapplying the test contained in s473DD of the Migration Act 1958 (Cth) (Act) when determining whether it could consider ‘new information’ provided to the IAA by the Applicant.

   Ground Two – Illogical and Irrational Findings.

   2. The IAA fell into jurisdictional error by making findings that were reached without a probative basis, and/or were irrational, or illogical. 

4. The starting point is to look at s.473DD. Which is set out as follows,

   473DD  Considering new information in exceptional circumstances

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

5. As can be seen, the key phrase in s.473DD is “new information.” In s.473BB, headed “definitions.” New information is said to be this. New information has the meaning given by s.473DC. That section reads:

   473DC  Getting new information

   (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a)  were not before the Minister when the Minister made the decision under section 65; and

   (b) the Authority considers may be relevant.

   (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

   (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a) in writing; or

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

6. I was helpfully referred to the authority of the Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80, at paragraphs 48 to 53. Whilst that has been somewhat helpful, it doesn’t get to what is truly meant by new information. I say that for this reason; because the first aspect of the Applicant’s submissions is that the statement was in fact new information that satisfied s.473DD(b)(i), that is, that it was a document that was not and could not have been provided to the Minister before the Minister made the decision under s.65.

7. The submission is that the document was dated 22 May 2016.  Therefore, the document was not in existence at the time that the delegate made the decision, or at any other time earlier than 22 May 2016. Therefore, if the document is new information, because new information is document or information, then it satisfies s.473DD(b)(i). If it satisfies s.473DD(b)(i), then it only then needs to satisfy s.473DD(a).

8. The Applicant further submits that, despite everything that the IAA said, the IAA did not discretely say that the information was not credible personal information, and therefore, because the IAA must have been satisfied that s.473DD(b)(i) had been satisfied, that in looking at exceptional circumstances in s.473DD(a), it was only looking at the reason for the delay. In looking only at the reason for delay, it therefore did not cast a wide enough appreciation of what was needed to be looked at in looking for exceptional circumstances, and therefore it has not applied the proper tests.

9. I reject those arguments.  I do so for these reasons. 

10. A new document is not necessarily new information. If this were so, it would mean that an Applicant can say something totally different after a delegate has made the decision, put it in writing and thereby creating a document, which document did not exist at the time that the delegate made the decision, therefore, satisfying the criteria straight away in s.473DD(b)(i).

11. This would meant that the legislation in effect is subverted, so that the IAA has to only look at whether there are exceptional circumstances as to why the matter should be looked at by the IAA. Such an interpretation flies in the face of legislative intent in creating the fast track process, in that the clear legislative intent is that the review by the IAA be on the same material that was before the delegate, unless the very strict exceptions in s.473DD apply.

12. If the Applicant’s submission is correct, then such a ruse or gambit by the Applicant would be able to subvert the intention.  It seems to me that the document that is part of the new information must, of itself, have new information that could not have been before the delegate before the delegate made the decision. 

13. In this case, it seems that that is clearly the case. There is no reason why such a document could not have been created beforehand. In coming to that conclusion, it then puts a different gloss on what it is that the IAA is doing. When the IAA is talking about the delay, the IAA is looking at s.473DD(b)(i) as to why such material had not been before the delegate, before the delegate made the decision.

14. As to the second part of the submission that the IAA had not come to a conclusion that the information was not credible personal information, it seems to me that that is exactly what the IAA has done, even though it has not expressed it in so many words. What it has done is say, at the end, that in regard to all the factors set out, they do not accept the Applicant’s reason for not raising the claims before the delegate made her decision. This lead the IAA to doubt the timing and content of the claims.

15. That, to me, speaks of the IAA looking at the timing of the matter, which the IAA points out was after the delegate had made the decision.  Up to that time, the Applicant had not made a claim that he had been seriously harmed. The timing plus the other aspect, that if this had happened, the IAA would have expected that it would have been raised beforehand, is sufficient to say that the timing and the content of the claims are doubted. 

16. It seems to me that this meant that the IAA was not satisfied as to why this material was not before the delegate, before the delegate made the decision, and was not satisfied that it was credible personal information.

17. That is why the next sentence after the IAA has said what it has said in paragraph 16, is that “…the Applicant has not satisfied me as to either of the matters in 473DD(b)”.

18. And then, for good measure, the IAA says that nor are they satisfied that there were exceptional circumstances. It seems to me that there has not been a misconstruction by the IAA of what it had to do in s.473DD, with regard to the statement.

19. As regard to the medical reports, in some way the IAA put its reasons in reverse. That is, it talked about the medical reports in some ways separately to the statement that the Applicant had made. The reports, really, could only go to support the new claim of the Applicant. If the new claim is rejected, then really, there is very little relevance in the medical reports because there is nothing in there that would be relevant to the matter.

20. However, the IAA has separately considered whether it should accept the medical reports as new information. The Applicant complains and says that the IAA has conflated the task that it has to undertake in subsection s.473DD(b)(i) and s.473DD(b)(ii). That is, that it is conflating the reason for it not being before the delegate, with whether it was credible.

21. To my mind, the reading of paragraph 17 and 18 do not convey this at all. My reading is that the delegate has actually accepted, whether rightly or wrongly, that the reports satisfy s.473DD(b)(i). That is, that they could not have been before the delegate, because they were written afterwards. They could not have been before the delegate also because the doctors did not examine the Applicant, until after the delegate had made the decision.

22. It seems to me that the IAA has conceded that s.473DD(b)(i) has been met, and so then has simply focused upon whether, in all of the circumstances, there are exceptional circumstances to look at the matters. This becomes clear with the final sentence of paragraph 18, where the IAA says:

    18…I am not satisfied that the reports are probative of the applicant’s claims and for this reason, together with my earlier observations in relation to the applicant’s failure to raise these claims before the delegate, I am not satisfied that there are exceptional circumstances to justify considering these reports

23. It seems to me that the IAA was not concerned with anything other than looking at s.473DD(a) and assessing whether there were those exceptional circumstances. There is no mention of whether or not the s.473DD(b) had been satisfied.

24. That gives support for what it is that I read into paragraphs 17 and 18; that paragraphs 17 and 18 are an examination as to whether there were exceptional circumstances. And on the whole of the matter, the IAA decided that there weren’t, and that was all that the IAA had to look at in discharging its duties under s.473DD. It seems that there has been no misapplication of this section. Therefore, for all of those reasons, ground one fails.

25. Ground two is a submission that the final sentence, or part of the final sentence, of paragraph 18 was simply unreasonable, illogical or irrational.  The ground can be summarised as this.  The allegation is that it was not open for the IAA to not be satisfied that the reports are probative of the Applicant’s claim. 

26. One has to really look at the reports, and see what they objectively are saying.  Whilst it is that they are consistent with what the Applicant has said, they give no other explanations for these issues.  The psychological report is instructive because the Applicant did not report any disturbance and any treatment until September 2016. 

27. The Applicant found out that he carried an STI.  He only found that out because he went to donate blood to the Red Cross.  He was shocked, according to the report, because he had never had sexual relations with anyone other than his wife, and he doesn’t smoke or drink.  This news would be devastating, one would think. 

28. The symptomology of the Applicant is that he has ongoing re-experience of traumatic memories through distressing flashbacks, nightmares, intrusive thoughts, severely impaired sleep, prolonged depressive mood, a lack of motivation, feelings of grief, social withdrawal, loss of appetite,  excessive fear and anxiety, memory and concentration difficulties.  There is no forensic analysis that concludes that such symptomology can only be attributed to this claim as having occurred.

29. There are other matters that could reasonably have been the cause for those symptoms, and there is nothing in the reports that talk about why, especially, that news about his carrying an STI, could not account for this.

30. The other aspect of this is that the Applicant has been told that he and his wife will not be able to have children.  The report notes that their inability to have children naturally is an ongoing source of depression, anxiety, grief, despair, hopelessness and humiliation for the couple and prevents them from being able to let go and move forward from the past. 

31. There is nothing there that, as it were, says that the symptomology that the Applicant is experiencing from a psychological point is totally and intrinsically linked to what he says occurred in 2012, and his other experiences in Sri Lanka.  Considering that, in every other claim, the Applicant had not reported suffering any physical consequences from the SLA or the CID, the medical report from Dr Sarles talks of an area in the lower kidney which is abnormal on ultrasound, which possibly may be as a result of blunt force trauma, such as being repeatedly with a pipe.  Such a diagnosis is far from being confirmatory of the story.

32. The fact that the Applicant has recurring rectal pain, or intermittent rectal bleeding, the doctor suspects, is because of internal haemorrhoids.  There is nothing in the report that says that this is, in any way, either consistent or linked to what it is that he says occurred to him. 

33. With regard to having a linear scar 10 centimetres long in the left forearm, and an ovoid scar on his lateral left lower shin, these may be consistent with having a sharp metal object being drawn down the arm, or being beaten with a pipe.  But it is hardly absolute corroboration. 

34. For the submission to be made that it was simply not open for the IAA to say that they were not satisfied that the reports are probative of the Applicant’s claim is, in my view, going beyond what the evidence shows.  It may be that if I, or Counsel for the Applicant, or Counsel for the minister were in the same situation that we may or we may not have come to that same conclusion. 

35. The point is whether that conclusion of non-satisfaction was open. In the end, that’s what it is. It is a conclusion of non-satisfaction. It is for the Applicant to prove that the reports are probative of the Applicant’s claims.

36. For the reasons I have gone through, it would seem to me that it was open for the IAA to be not satisfied that the reports support the claim of the Applicant.  It’s a finding of non-satisfaction, rather than a positive finding.  For that reason, ground two fails. 

37. I do not find that there has been any jurisdictional error illustrated, and I dismiss the application, with costs on the scale figure of $7,467.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date:  16 December 2019