BWA16 v Minister for Immigration

[2017] FCCA 3106

FEDERAL CIRCUIT COURT OF AUSTRALIA

BWA16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3106

Catchwords:
MIGRATION – Safe Haven Enterprise Visa (Subclass 790) – “new information” submitted by applicant to IAA – whether IAA erred in finding no exceptional circumstances to justify considering “new information” – failure to discharge obligation to conduct a review – error demonstrated – writs issued.

Legislation:

Migration Act 1958 (Cth), ss.5, 46A(2), 473DB(1), 473DD & 473DD (a) & (b)

Cases cited:

BVZ16 v Minister for Immigration & Border Protection [2017] FCCA 775

BVZ16 v Minister for Immigration & Border Protection & Anor [2017] FCA 958

Applicant: BWA16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 226 of 2016

Judgment of: Judge Heffernan

Hearing date: 10 May 2017

Date of Written Submissions: 16 June 2017

Delivered at: Adelaide

Delivered on: 20 December 2017

REPRESENTATION

Counsel for the Applicant: Ms J McGrath

Solicitors for the Applicant: MSM Legal

Counsel for the Respondents: Mr O'Leary

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. That there be an order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 16 June 2016.

2. There be an order in the nature of mandamus issue directing the second respondent to hear and the application according to law.

3. The first respondent do pay the applicant’s costs in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6, 646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 226 of 2016

BWA16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (‘IAA’), dated 16 June 2016.  That decision affirmed an earlier decision of a delegate of the Minister to refuse the applicant a Safe Haven Enterprise Visa (Subclass 790) (‘SHEV’).

2. By Amended Application filed on 13 April 2017, the applicant raises one ground as follows:

   1.The Second Respondent committed jurisdictional error in that:

   a.The Applicant put “new information” to the Second Respondent.

   b.The Second Respondent made a decision to consider whether to consider the new information for the purpose of the review and went on to determine, in accordance with s.473DD(a) of the Migration Act 1958 (Cth), whether it was satisfied that there were “exceptional circumstances” to justify considering the new information.

   c.In forming that state of satisfaction, the Second Respondent did not take into account:

   i.      all of the circumstances, which, in addition to those considered by the Second Respondent, were the cogency of the new information and its relevance to the decision under review; and

   ii.     whether the circumstances considered by it and those that it ought to have considered where, in combination, “exceptional circumstances”.

   d.On the proper construction of s.473DD(a), such matters were required to be taken into account in forming the state of satisfaction.

   e.The Second Respondent thereby made an error of law and that error of law affected its exercise of power under s.473CC.”

3. It was accepted by the parties that this ground raises an identical argument to that considered and rejected by the Federal Circuit Court in BVZ16 v Minister for Immigration & Border Protection [2017] FCCA 775 (‘BVZ16’). In fact, the applicant in this matter is the wife of the applicant in BVZ16 and arrived in Australia at the same time.

4. The point raised is a narrow one.  Given the same argument had been agitated in BVZ16, the parties agreed that the matter could appropriately proceed on the papers by way of written submissions only. 

5. Since this Court delivered judgment in BVZ16, that matter has been heard on appeal in the Federal Court, BVZ16 v Minister for Immigration & Border Protection & Anor [2017] FCA 958 (‘BVZ16 appeal’). In that matter, White J allowed the appeal. As the argument in BVZ16 is identical to the grounds identified in this application I am bound to follow his Honour’s decision in the BVZ16 appeal if the factual basis relating to the new information and the findings made by the IAA reveal the same error. I am of the view that the same error is demonstrated.

6. For that reason, I can deal with this application succinctly. The issue before the Court concerns the construction and application of s.473DD of the Migration Act 1975 (Cth) (‘the Act’) which provides:

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

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

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

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

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

7. It is necessary to set out some matters by way of background.  Relevant background matters were identified by the first respondent in its outline of submissions and I have adopted parts of that summary in this judgment.

8. The applicant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 27 August 2012. When the Minister exercised the power under s.46A(2) of the Act to permit the applicant to lodge an application for a SHEV, she did so on 20 August 2015.[1]  That application was assessed on 21 August 2015 and found to be a valid application.  As a consequence, the applicant became a “fast track applicant” within the meaning of s.5 of the Act.

   [1]     Court Book (‘CB’) p 53-99.

9. On 3 May 2016, a delegate of the Minister refused the applicant’s application for a SHEV.  The decision of the delegate was then referred to the IAA on 16 May 2016.

10. On 22 May 2016, the applicant provided a new statement to the IAA.  The applicant also later provided a letter from a doctor dated 1 June 2016. 

11. The statement provided by the applicant set out three reasons why she did not mention an incident of serious harm previously to either her legal representative or to the delegate who interviewed her in December 2015.[2]  The serious harm identified in her statement was an episode in which she claimed to have been raped.  Her reasons for not having mentioned this information before were, firstly, that her legal representative was a male and she was not comfortable discussing the matter with him.  She was embarrassed to mention the fact that she had been raped and feared that other members of the Tamil community would come to learn of it.  Secondly, when interviewed by the delegate in December 2015, her male legal representative was present and the Tamil interpreter was also male.  She was too embarrassed to mention the alleged rape in the presence of two males.  They were both Tamil and in particular the interpreter lived in Adelaide where she was living.  Once again, she held a fear that other members of the Tamil community would learn of the incident.  Thirdly, her entry interviews had been conducted by male officers and on both occasions the interpreter was a male.  Once again, she was too embarrassed to mention the matter to them. 

    [2]     CB p 204.

12. The new information disclosed in the applicant’s statement was that some time after 2007, on a date that she can no longer recall, she was detained for 15 days at a mixed school camp in Murungan Village.  One evening she was taken for questioning to a separate location inside the school camp.  Uniformed Sri Lankan Army officers were present. There were also officers in civilian clothing present.  She claims to have been physically and verbally assaulted by the officers whilst being questioned.  She was then raped.  At some point during the episode she lost consciousness.  When she awoke she was naked and alone in the interrogation room.  The applicant claimed in her statement to be too embarrassed to discuss the intricate details of the incident.  She claims to fear similar harm at the hands of the Sri Lankan authorities if she were required to return to Sri Lanka.

13. The letter from the doctor indicated that the applicant had informed the doctor that she had been raped and had later attempted to commit suicide which resulted in her being admitted to hospital for a period of one week.  The letter indicates that the applicant told the doctor that the incident occurred before her marriage.  The doctor also noted that the applicant had faint scars on her right forearm and right thigh she claimed to have been from cigarette burns inflicted on her during the rape. 

14. The IAA expressly found that the statement provided by the applicant was “‘new information’ for the purposes of the review”.[3]  By implication it also found the doctor’s report to have been new information. 

    [3] CB p 219 at [5].

15. The IAA considered the nature of the new information and whether there were “exceptional circumstances” to justify consideration as follows:

    “5.However the submission also contains an additional statement from the applicant containing information the applicant had not previously provided to the department that is ‘new information’ for the purposes of this review.  This included that she had been raped and tortured during the 15 days she was detained in an army camp in 2007/2008.  A doctor’s report dated 1 June 2016 has also been provided indicating that the applicant informed her doctor that she was raped and that she has scars consistent with cigarette burns caused during the assault.  The report also indicates the applicant was admitted to Mannar Hospital for one week after she attempted suicide following the incident.

    6.In the statement and the medical report it is submitted that the applicant had not previously mentioned this to her legal representative or to the delegate because she was embarrassed and although the delegate was female, her representative was male, as was the interpreter at the SHEV interview.  The applicant also submitted that she feared other Tamils in the community would find out.

    7.While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede her willingness to recall and discuss the details.  However, I do not consider this an explanation as to why she previously made no mention that she had been harmed during this detention, or any time.  The applicant has provided details of various other incidents in which she claims she was questioned and detained by authorities.  The new information relates to material which was squarely at issue at the SHEV interview on 4 December 2015.  She was specifically asked about incidents of harm and torture during the SHEV interview and the delegate explained the importance of providing information that was relevant to the decision.  Although the representative and interpreter were male, the applicant made no mention that she had been subject to any physical harm in the army camp, or any other time.  I consider she need not have provided intimate details about the incident/s to make the delegate aware that she had experienced harm.

    8.While the applicant’s representative and interpreter at the SHEV interview were male, the applicant could have provided this information with the assistance of another female in the five subsequent months before the decision was made.  I note the applicant claims she feared that other Tamils in the community would find out, however, I am not satisfied that she could not have obtained discrete assistance during this time, or at a minimum, mentioned that she had suffered physical harm.

    9.I do not accept there are exceptional circumstances to justify considering the information.”[4]

    [4]     CB pp 219-220.

16. In my view, the nature of the errors made by the IAA are, in part, the same as two of the errors identified in the BVZ16 appeal. Firstly, the IAA considered only subparagraphs (a) and (b)(i) of s.473DD. The IAA should also have considered the new information in light of subparagraph (b)(ii). The fact that the applicant may not have been able to satisfy subparagraph (b)(i) did not mean that she would not be able to satisfy subparagraph (b)(ii) and it provided an alternative pathway.[5] As a result, the IAA committed jurisdictional error by failing to discharge its obligation to conduct a review as imposed by s.473DB(1).

    [5]     BVZ16 Appeal, op cit - [2017] FCA 958 at [37].

17. Further, the IAA committed jurisdictional error by reason of a constructive failure to exercise jurisdiction by adopting a very narrow interpretation of the term “exceptional circumstances”. It restricted its consideration of that matter to its evaluation of the applicant’s explanation for not having provided the information at an earlier time. It conducted the review on the basis that a rejection of the applicant’s explanation for failing to disclose the information at an earlier time was decisive of the issue as to whether or not the circumstances were exceptional. His Honour White J had the following to say about exceptional circumstances under s.473DD:

    “Further, account must be taken of the reference to the exceptional circumstances being such as to “justify” consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.”[6]

    [6]     BVZ16 Appeal - [2017] FCA 958 at [43].

18. For the above reasons, I make the orders to be found at the beginning of these reasons.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 20 December 2017