CGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2020] FCCA 889

FEDERAL CIRCUIT COURT OF AUSTRALIA

CGS18 v MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS & ANOR [2020] FCCA 889

Catchwords:
MIGRATION – Review of decision by immigration assessment authority – whether immigration assessment authority’s decision affected by jurisdictional error – whether immigration assessment authority erred in its construction of s.473DD of the Migration Act1958 (Cth) – whether the immigration assessment authority erred in its consideration of new information under s.473DD of the migration Migration Act1958 (Cth) – whether the immigration assessment authority erred in considering whether exception circumstances existed – whether the immigration assessment authority erred in failing to exercise its jurisdiction under s.473DD of the Migration Act1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 425, 473, 474, 476

Migration Regulations 1994 (Cth), reg.2.01.

Treaties:

Convention relating to the Status of Refugees, opened for signature 28 July

1951, 189 UNTS 137 (entered into force 22 April 1954), Art 1A.

Protocol Relating to the Status of Refugees, opened for signature 31 January

1967 (entered into force 4 October 1967).

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Hossain v Minister for Immigration and Border Protection& Anor [2018] HCA34

Minister for Immigration and Border Protection v SZMTA & Anor [2019] HCA 3

Applicant: CGS18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number:   SYG 1253 of 2018

Judgment of: Judge Emmett

Hearing date: 9 March 2020

Date of Last Submission: 9 March 2020

Delivered at: Sydney

Delivered on: 22 April 2020

REPRESENTATION

Counsel for the Applicant: Ms Uche Okereke-Fisher (Direct Access)

Counsel for the Respondents: Mr Bora Kaplan

Solicitors for the Respondents: Mills Oakley

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1253 of 2018

CGS18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Immigration Assessment Authority dated 13 April 2018 (“the Authority”), affirming a decision of a Delegate of the first respondent (“the Delegate”) made on 21 June 2017 refusing the applicant a Safe Haven Enterprise (Class XE) visa (“SHEV”).

2. The applicant is a citizen of Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from the authorities in Sri Lanka.

Background

1. On 29 December 2016, the applicant lodged an application for a SHEV with the Department of Immigration and Border Protection (“the Department”).

2. On 21 June 2017, the Delegate refused the applicant’s application for a SHEV.

3. On 27 June 2017, the Delegate’s decision refusing the applicant a SHEV was referred to the Authority.

4. On 13 April 2018, the Authority handed down its decision affirming the decision of the Delegate not to grant a SHEV.

5. On 3 May 2018, the applicant filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative Framework

1. Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 5J of the Act defines the meaning of well-founded fear of persecution.

6. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

7. Section 36(2A) and s.5 of the Act define “significant harm.”

8. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.”

9. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

10. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

11. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

12. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

13. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a) a statement that:

    (i) sets out the findings of fact made by the person who made the decision; and

    (ii) refers to the evidence on which those findings were based; and

    (iii) gives the reasons for the decision;

    (b) material provided by the referred applicant to the person making the decision before the decision was made;

    (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d) the following details:

    (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

14. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

15. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

16. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

17. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “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.”

    Section 473DD of the Act provides as follows:

    “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.”

The applicant’s Application for a Protection Visa

1. The applicant’s claims for protection were summarised by the Authority as follows:

   “• His eldest brother was forcibly recruited into the LTTE during the civil conflict but escaped from the LTTE and returned home.

   • Unknown persons and the Sri Lankan authorities would often harass his family so he moved away from his family home in 2000 to complete his high school education in Batticaloa. On one occasion unknown persons came to his house and shouted his brother’s name out in a threatening manner. His mother told the people that there was no-one by that name living there and the people went away.

   • The other male members of the family were also targeted by the authorities due to his brother’s recruitment to the LTTE. The police, the Criminal investigation Division (CID) and the military would harass all male children who were 15 or 16 years of age and this forced these children to leave home to find safety. His two eldest brothers left home for this reason.

   • His cousin had joined the LTTE in the past and he had stayed at the applicant’s family home from time to time. The Sri Lankan authorities learned that his cousin had been staying at his house and they came searching for him and harassing the family.

   • In Batticaloa he lived at a Tamil student hostel and with his brother while he was studying. After graduating from high school in 2004 he returned to live in his family home. His home village was damaged in the December 2004 tsunami so he returned to Batticaloa to live and work as a goldsmith.

   • He moved from Batticaloa to Colombo in 2007 to work as a goldsmith. He was not safe there so in February or March 2008, he moved to Qatar for work. He stayed in Qatar for approximately seven months and returned to Sri Lanka in September 2008.

   • After returning from Qatar, the applicant stayed at home for only two days before returning to Colombo out of fear of being suspected of having LTTE links. On return to Colombo he resumed work as a goldsmith.

   • The authorities knew that his brother and cousin had been members of the LTTE and on one occasion they asked the family to bring his brother and his cousin for rehabilitation. As the family could not contact his brother or his cousin at that time, the family did not go to the rehabilitation center.

   • On one occasion in 2009, while he was visiting his family, there was a bomb-blast south of Batticaloa. He was detained in a general round up of Tamils following the blast and interrogated about the explosion and severely beaten. The applicant’s mother contacted a local official who told the police to release him. He was released after being held for one hour. His mother took him to a local hospital for treatment.

   • He returned to his work in Colombo, but stayed at home a lot out of fear of being targeted by the police. He only returned home briefly for holidays and festivals. After discussing his concerns with his uncle, he decided to leave Sri Lanka. He obtained a passport and flew to Malaysia in April 2012. He registered as a refugee with the United Nations High Commissioner for Refugees (UNHCR). He remained in Malaysia until February 2013. He was then forced to leave Malaysia because the authorities were deporting Tamil refugees back to Sri Lanka. He then found a small boat that was able to take him to Indonesia. When he arrived there he learned that people were travelling by boat to Australia. He boarded a vessel bound for Australia in late April 2013 and arrived in May 2013.

   • Since his departure from Sri Lanka in 2012, unknown persons have come to his house searching for him. His mother has told him that the persons do not ask about his brother any more but have come with what they claim is a “boat list” containing the names of the people who travelled to Australia on the same boat as him. His mother told the visitors that he has gone abroad.

   • He was affected by the Department’s data breach while in detention in early 2014.”

The Delegate’s decision

1. The Delegate’s decision is summarised in the first respondent’s written submissions as follows:

   “5. After the Minister exercised his power, under s 46A(2) of the Act, to permit the applicant to make an application for a protection visa, he did so on 29 December 2016: CB 36-95. In a statutory declaration made on 6 December 2016, the applicant claimed to fear persecution in Sri Lanka at the hands of the authorities (including the police) on the basis of his Tamil ethnicity, imputed pro-Liberation Tigers of Tamil Eelam (LTTE) political opinion, illegal departure from Sri Lanka and due to the unintentional release of his personal information by the Minister's department in 2014: CB 76 [24].

   6. On 21 June 2017, the delegate made a decision to refuse to grant a protection visa to the applicant:  CB 155-166.

   7. The delegate's decision was a "fast track reviewable decision" as defined in s 473BB of the Act. Accordingly, on 27 June 2017, the delegate's decision was referred to the Authority pursuant to s 473CA of the Act: CB 168-169.”

The Authority’s review and decision

1. On 17 July 2017, the applicant’s representative provided submissions to the Authority which included the following information:

   i)A letter from Dr S. Branavan from “GV Hospital” in Batticaloa, dated 5 July 2017 (“Doctor’s Information”);

   ii)A letter from a person identified as a Sri Lankan Member of Parliament, dated 8 July 2017 (“MP Information”);

   iii)An Article from the online edition of the Sri Lankan Daily Mail newspaper, dated 14 July 2017, titled “Abduction, Torture of Tamils Remain Systematic: ITJP” (“ITJP Information”).

2. The Authority accepted that the applicant’s identity was not in issue.

3. The Authority considered whether the applicant’s brother, Y, was involved with the LTTE. The Authority noted inconsistencies in the applicant’s written and oral evidence concerning Y. The Authority considered country information relating to the LTTE. The Authority did not accept that Y was arrested or fought with the LTTE, or had other interactions with the LTTE that would warrant the attention of unknown persons. The Authority did not accept that unknown persons approached the applicant’s house and shouted his brother’s name.

4. Due to the lack of information provided by the applicant and on the evidence available, the Authority also did not accept that the applicant’s cousin was a member of the LTTE or that the CID came to his house searching for his cousin.

5. The Authority made further findings that it detailed in its decision record, including that the applicant moved to Batticaloa in 2000 to complete his education and not out of fear of the authorities.

6. The Authority considered whether the applicant may be at risk of harm as a result of being a Tamil from the Eastern Province. The Authority found that there was no credible information that the applicant has a profile with the authorities because of his brother, Y, or that his relationship with Y would give rise to a real chance of adverse treatment from the Sri Lankan authorities on return.

7. The Authority considered country information on the situation for Tamils in Sri Lanka. The Authority noted country information that indicated significant decreases in the monitoring of Tamils from the former LTTE-controlled parts of the country.

1. The Authority accepted that the applicant was detained for approximately one hour in 2009 on suspicion of being involved in a bomb blast nearby and that he was physically mistreated while in detention. The Authority did not accept that the applicant was suspected of any LTTE links at the time of his departure to, and return from, Qatar in 2008 and at the time of his departure to Malaysia in 2012. The Authority was not satisfied that the applicant faced a real chance of harm as a result of being a Tamil male from the Eastern Province.

2. The Authority considered whether the applicant would be at risk of harm as result of being a failed Tamil asylum seeker. The Authority noted country information that commented on the treatment of returning asylum seekers and had regard to the Immigrant and Emigrants Act. The Authority was not satisfied the applicant faced a real chance of any harm as a returning Tamil asylum seeker. In making that finding the Authority had regard to Department of Foreign Affairs and Trade reports.

3. The Authority also accepted that the applicant’s personal details were inadvertently released on the Department’s website in February 2014. However, after noting that there was no evidence of the Sri Lankan authorities accessing this data, the Authority was not satisfied that the data breach gave rise to a real chance of harm.

4. The Authority concluded the applicant did not meet the Refugee criteria in s.36(2)(a) of the Act. The Authority also considered whether the applicant met the complementary protection criterion in s.36(2)(aa) of the Act, and for similar reasons and findings made earlier, concluded that he did not.

5. Accordingly, the Authority affirmed the decision under review.

The Proceeding before this Court

1. The applicant was represented before this Court by Ms Uche Okereke-Fisher, of counsel.

2. On 23 May 2018, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing.

3. At the callover on 7 November 2019, Orders were made setting the matter down for hearing on 9 March 2020. Those Orders also required the applicant to file and serve written submissions 14 days before the hearing and the respondent to file and serve written submissions 7 days before the hearing.

4. At the hearing on 9 March 2020, leave was granted to the applicant to rely on Ground One of a Further Amended Application filed in Court. Ground two was not relied upon.

Ground One

1. Ground One is in the following terms:

   “New Ground One

   The IAA fell into jurisdictional error by adopting an erroneous construction of s473DD in that it (i) adopted an unduly narrow construction of s473DD, evident in its failure to consider facts and material in relation to the Applicant's case, which if they had been considered may have led to admission of new information; (ii) failed to consider new information under s473DD; and (iii) relied on unreasonable reasons, erroneous and inaccurate statements for the purpose of determining that it was not satisfied that exceptional circumstances existed and thus s473DD was not satisfied (iv) failed to consider the new information in accordance with the law, arrived at a conclusion that was not supported by material before the Authority. In doing so, it constructively failed to exercise its jurisdiction under s473DD.

   PARTICULARS

   (a) The Applicant's Representative provided a submission to the Authority, dated 8 July 2017. The submission included two letters (i) a letter from Dr Branavan from GV Hospital ("Doctor's Information"); and (ii) a letter from a Sri Lankan Member of Parliament ("MP Information"). The submission also included a copy of an article titled "Abduction, torture of Tamils remain systematic: ITJP" ("IT JP Information")

   (b) Doctor's Information: Based on when the letter was written, the Authority was satisfied that the letter could not have been provided to the delegate before he made his decision and s.473DD(b) was met. The foregoing notwithstanding, the Authority concluded that it was not satisfied that exceptional circumstances exist to justify consideration of the Doctor's Information for the following reasons -(i) the letter appears to have been prepared for the purpose of supporting the Applicant's application and refers to events which happened some time ago and were discussed at the SHEV interview; (ii) information in the letter regarding the duration of the treatment provided is inconsistent with the evidence of the applicant, that it is not expressed in terms that may be expected from a medical practitioner; (iii) the letter makes generalised statements about non-medical matters; (iv) Authority considered the letter unreliable.[Paragraph 5, CB197]

   (c) MP Information: Based on when the letter was written, the Authority was satisfied that the letter could not have been provided to the delegate before he made his decision and s.473DD(b) was met. The foregoing notwithstanding, the Authority concluded that it was not satisfied that exceptional circumstances exist to justify consideration of the Doctor's Information for the following reasons - (i) Letter appears to have been prepared for the purpose of supporting the visa's application; (ii) Given that the Applicant and his family have known the MP personally since 1993, it is not clear why the letter of support was not sought earlier; (iii) letter contains a number of claims that were not otherwise advanced by the Applicant; and (iv) letter is not corroborative of the Applicant's claims. [Paragraph 6, CB197]

   (d) ITJP Information: The Authority was of the view that this was new information that could not have been provided to the delegate before his decision was made. The foregoing notwithstanding, the Authority concluded that it was not satisfied that exceptional circumstances exist to justify consideration of the Doctor's Information for the following reasons - (i) The article was only a brief summary of the IT JP report and the delegate had the full 2016 IT JP report before him which was before the Authority; (ii) The Authority considered that the article does not add to the 2016 IT JP Report. [Paragraph 5, CB197]

   (e) Swiss Refugee Information - In his submission, the Representative attached a Letter from the Swiss Refugee Council to the effect that the Applicant's brother had obtained temporary refugee status in Switzerland. This was information that was advanced by the Applicant for the purpose of corroborating his protection claims. The Authority failed to consider this information under section 473DD.”

   (Errors in original)

2. Ground One asserts that the Authority misconstrued or misapplied s.473DD of the Act in considering “new information” provided to it by the applicant in support of the applicant’s review by the Authority. The four pieces of “new information” were identified as follows:

   i)Doctor's Information

   ii)MP Information

   iii)ITJP Information

   iv)Swiss Refugee Information

i) Doctor’s Information

1. The Authority dealt with the Doctor’s Information as follows:

   “The submission includes two letters. The first letter is from Dr S. Branavan from "GV Hospital" in Batticaloa and is dated 5 July 2017. The letter states that the applicant was arrested by police and the CID "by 2009" and that the applicant "developed wound (sic) on his right shoulder and bilateral legs". The letter states that the writer treated the applicant during the period 2009 - 2012 and that during this period the applicant was "caught by police and army group several occasions, and also been threatened physically which I have treated him during the period" (sic). Given when the letter was written, I am satisfied that the document could not have been provided to the delegate before he made his decision and s.473DD(b) is met. I note however, that the letter appears to have been prepared for the purpose of supporting the applicant's visa application and refers to events which happened some time ago and which were discussed at the SHEV interview. To that extent it is not clear why the letter was not sought earlier in support of the applicant's claims. I also note that the information in the letter regarding the duration of the treatment provided is inconsistent with the evidence of the applicant, that it is not expressed in terms that may be expected from a medical practitioner and that it makes generalised statements about non-medical matters, for example that the applicant was "caught by police and army group several occasions (sic)". I do not consider the letter reliable. I am not satisfied that exceptional circumstances exist to justify its consideration.”

2. Counsel for the applicant submitted that the Authority failed to consider the factual information in the Doctor’s Information about the applicant’s wound on his right shoulder and legs and other injuries for which he received treatment between 2009 and 2012; and failed to consider the reasons advanced by the applicant for the purpose of section 473DD.

3. In relation to the Doctor’s Information, the applicant’s submission to the Authority, dated 17 July 2017,  was as follows:

   “LETTER FROM GV HOSPITAL (NEW INFORMATION)

   The applicant has instructed us to forward a letter from GV Hospital to support that he received treatment as result of his arrest and detention of the Sri Lankan authorities in 2009. The applicant at para 18 and 20, of his of his statutory declaration dated 6/12/2016, mentions that “My family members including my mother took me to the local hospital because I could not walk after the beating.”

   This letter is dated 05/07/ 2017, and on that basis, could not have been provided to the delegate. Had this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. We state that this is an exceptional circumstance especially when a person’s life is at risk. We respectfully request the presiding reviewer to consider this new information as set out in section 473DD of the Migration Act. On the new evidence put before the presiding reviewer we submit that the applicant faces a real chance of persecution if returned to Sri Lanka and as such has a well-founded fear.”

4. Counsel for the applicant submitted that the Authority failed to consider the applicant’s reasons for advancing the Doctor’s Information and the applicant's submissions in support of establishing exceptional circumstances. Counsel for the applicant submitted that had the applicant's reasons (mainly, that the applicant’s life was at risk) for advancing that information been taken into account, it would have borne materially upon the Authority’s consideration of s.473DD of the Act. However, that reason by itself is not sufficient to establish exceptional circumstances (see paragraph 69-70 below in these Reasons).

5. Counsel for the applicant also submitted that there was no material before the Authority to support its finding that the applicant had given inconsistent evidence with respect to the duration of the treatment.

6. A fair reading of the Authority's decision record makes clear that the Authority accurately summarised the applicant’s representative’s written submission in relation to the Doctor’s Information. Based on the date of the Doctor's Information, being 5 July 2017, the Authority accepted that it was not a document that could have been provided to the Delegate before the Delegate’s decision was made and therefore section 473 DD(b) of the Act was met.

7. However, the Authority noted that the Doctor’s Information had been prepared for the purpose of supporting the applicant’s visa application and referred to events which happened some time ago and which were discussed at the SHEV interview. The Authority expressed concern that it was not clear why the Doctor’s Information was not sought from the doctor earlier to support the applicant's claims. The Authority also noted that the Doctor’s Information referred to the duration of treatment as being from 2009 to 2012, whereas the applicant‘s statutory declaration made in support of his visa application stated that after he was beaten by police in 2009, he left for Colombo until 2012.

8. Further, the Authority found that the terms of the Doctor’s Information itself were not those expected for a medical practitioner in that it made generalised statements about non-medical matters, and gave the example that the applicant was “caught by police and Army groups on several occasions.”

9. Having found the letter not to be reliable, the Authority determined that exceptional circumstances did not exist to justify its consideration.

10. Those findings were open to the Authority on the evidence and material before it and for the reasons it gave. They are probative of the issues necessarily raised for consideration under s.473DD of the Act and those raised by the applicant. The findings were rational and not without intelligible justification. The reasons that the Authority gave for its findings were detail and addressed the relevant material and statutory requirements and were made in a procedurally fair manner (ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffith, Perry and Bromwich JJ).

11. Accordingly, there was no error in the Authority’s consideration of the Doctor’s Information in accordance with s.473DD of the Act.

ii) MP Information

1. The MP Information was dealt with by the Authority as follows:

   “The second letter is from a person identified as a Sri Lankan Member of Parliament (MP) and is dated 8 July 2017. Given when the letter was written, I am satisfied that the document itself could not have been provided to the delegate before he made his decision and that s.473DD(b) is met. This letter also appears to have been prepared for the purpose of supporting the applicant's visa application. The letter states that the MP has known the family since 1993 and makes a number of statements regarding the family's interactions with the Sri Lankan Army (SLA), the Liberation Tigers of Tamil Eelam (LTTE) and the Karuna Group after 1993 which were not otherwise put forward by the applicant. The letter states that the family was approached by the SLA and "co-custody groups"; that the applicant's father was taken into custody by the SLA in 2010 resulting in his untimely death a few days later; that the family supported the LTTE by donating a vehicle and SIM cards; that the Karuna Group is expecting the applicant and one of his brothers to join the Group; and that the family has received enquiries from "unknown/unauthorised people". Given that the applicant and his family have known the MP personally since 1993, it is not clear why the letter of support was not sought earlier. The letter contains a number of claims that were not otherwise advanced by the applicant and I do not consider it is corroborative of the applicant's claims. Overall I am not satisfied that exceptional circumstances exist to justify its consideration.”

2. In support, counsel for the applicant submitted that the fact that the MP Information predated the Delegate's decision in itself should satisfy the exceptional circumstance precondition in section 473DD(a) of the Act.

3. Given the date of the MP Information of 8 July 2017, the Authority was satisfied that the MP Information itself could not have been provided to the Delegate before its decision was made. However, the information contained in the MP Information was information that the Authority found could have been provided earlier, given that the applicant and his family had known the MP personally since 1993. Further, the Authority found that the MP Information referred to claims not otherwise made by the applicant. Accordingly, the Authority found that the MP Information was not corroborative of the applicant's claims. The Authority concluded that it was not satisfied that exceptional circumstances existed to justify its consideration.

4. It is well established that whether the information in question could have been given to the Delegate before its decision was made, may be relevant to the Authority's enquiry under section 473DD(a) of the Act (CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [36] per Mortimer J).

5. To the extent that the MP Information included new claims that were not previously before the Delegate, no explanation was given by the applicant as to why the MP Information did not corroborate the claims made by the applicant during the visa application process. This could not be relevant to the question of whether exceptional circumstances existed to justify consideration of MP Information.

6. Having found that the MP Information was not corroborative of the applicant's claims and contained a number of claims otherwise not advanced by the applicant, the Authority concluded that overall it was not satisfied that exceptional circumstances existed to justify its consideration.

7. Again, for the reasons referred to in paragraph 53 above, those findings were open to the Authority on the evidence material before it and for the reasons it gave.

8. Accordingly, there was no error in the Authority’s consideration of the MP Information in accordance with s.473DD of the Act.

iii) ITJP Information

1. In his submission to the Authority, the applicant included a copy of an article from an online newspaper dated 14 July 2017 and titled, “Abduction, Torture of Tamils remains Systematic: ITJP” (being the ITJP Information). The Authority dealt with the ITJP Information as follows: 

   “The submission included a copy of an article from the online edition of the Sri Lankan Daily Mail newspaper of 14 July 2017 titled "Abduction, torture of Tamils remain systematic: ITJP". As the article was published after the delegate's decision, I am satisfied that this is new information that could not have been provided to the delegate before he made his decision. The article reports on the publication of the 2017 report of the International Truth and Justice Project (ITJP) regarding the situation faced by Tamils in July 2017. I note that the article is only a brief summary of the ITJP report and that the delegate had the full 2016 ITJP report before him which is now before me. I consider that the article does not add to this information and I am not satisfied that there are exceptional circumstances to justify me considering the on line article.”

2. Having regard to the date of the ITJP Information, being 14 July 2017, the Authority was satisfied that it was “new information” that could not have been provided to the Delegate before making the Delegate’s decision. However, the Authority noted that the ITJP Information was reporting on the publication of a report in 2016 of the International Truth and Justice Project (“The ITJP Report”) in relation to the situation faced by Tamils. The Authority noted that the 2017 ITJP Information was only a brief summary of the 2016 ITJP Report and that both the Delegate and the Authority had the full 2016 ITJP Report report before them.

3. Counsel for the applicant submitted that the Authority erred in failing to have regard to the ITJP Information because the Delegate did not, in fact, have before it the ITJP Information and that the ITJP Information was published in July 2017 and was therefore different country information to the information in the 2016 ITJP Report.

4. The Authority found that the ITJP Information did not add to the ITJP Report and the country information already before the Delegate. In the circumstances, the Authority was not satisfied that exceptional circumstances existed to justify the consideration of the ITJP Information.

5. A fair reading the Authority's reasons makes clear that the Authority did not fail to consider if the ITJP Information was identical to 2016 ITJP Report. Rather, the Authority found that ITJP Information did not differ in material respects from the ITJP Report.

6. The Authority’s decision record makes clear that the Authority had regard to the applicant's submission on the ITJP Information, including the applicant's submission that there were exceptional circumstances to justify considering the ITJP Information because “a person's life is at risk.” In relation to that matter, I accept the submission of counsel for the first respondent as to the purpose of the protection visa scheme in Australia as follows:

   “The purpose of the protection visa scheme is to offer Australia’s protection to those persons whose lives are at risk because they have a well-founded fear of persecution or face a real risk of significant harm in their home country. In that sense, therefore, that a referred applicant’s life may be at risk if he or she were returned to their receiving country is a neutral factor so far as the application of the criterion in s 473DD(a) is concerned, as it is a circumstance that every protection visa applicant must claim to face in order to satisfy the criteria for the grant of such a visa in s 36(2) of the Act.”

1. True it is that the Authority made no express reference to the applicant’s submission on exceptional circumstances. However, I accept as correct the submission of the first respondent that the proper inference to be drawn from the absence of an express reference to that submission is that the Authority did not consider the point to be material. (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [69] per McHugh, Gummow and Hayne JJ).

2. It was open to the Authority to find, as it did, that exceptional circumstances did not exist that would justify considering the ITJP Information.

3. Again, for the reasons referred to in paragraphs 52 and 53 above, those findings were open to the Authority on the evidence material before it and for the reasons it gave.

4. Accordingly, there was no error in the Authority’s consideration of the ITJP Information in accordance with s.473DD of the Act.

iv) Swiss Refugee Information

1. The applicant contends that the Authority failed to consider information in a letter from the Swiss Refugee Council to the effect that the applicant's brother had obtained temporary refugee status in Switzerland.

2. The applicant's counsel submitted that this information was advanced by the applicant for the purpose of corroborating his protection claims and that the Authority failed to consider the information under the s.473DD of the Act. Counsel for the applicant submitted that there was no paragraph in the Authority’s decision record dealing with the Swiss Refugee Information.

3. Counsel for the applicant submitted that the Authority erred in adopting an inappropriately narrow construction of exceptional circumstances and failed to consider reasons proffered by the applicant as to why the new information should be considered.

4. The first respondent submitted that the information that the applicant's brother had been recognised as a refugee in Switzerland was not new information because it was information that was before the Delegate, being information which the applicant gave in his statement, dated 6 December 2016. Indeed, in his statutory declaration, dated 6 December 2016, the applicant stated as follows:

   "… one brother lives in a refugee camp in Switzerland. He is a citizen of Sri Lanka but he has recently obtained temporary refugee status in Switzerland."

5. That declaration was provided by the applicant to the Delegate for the Delegate’s hearing.

6. In his letter, dated 17 July 2017 from the applicant's representative to the Authority, that information was in the following terms:

   "…thirdly, one brother had fled to Switzerland and recently obtained temporary refugee status." The letter from the Swiss Refugee Council dated 12 May 2015 confirms that the applicant's brother was officially recognised as a refugee in Switzerland."

7. In the circumstances, the substance of that information was before the Delegate and is therefore not new information to the Authority. It was therefore not “new information” that enlivened any obligation under s.273DD of the Act.

8. The Authority stated that it had regard to material given by the Secretary under s.473CB of the Act. That included the information contained in the applicant's representative’s letter, dated 17 July 2017. Further, the Authority referred to the applicant's claim of the targeting of male members of his family. However, the Authority rejected that claim given the general tenor of the assertion and the vague and inconsistent evidence given in support by the applicant.

9. I accept the submission of counsel for the first respondent that information that merely records the fact that one of the applicant's brothers had been granted refugee status in Switzerland cannot, without more, have any bearing on the Authority’s of the applicant's claims for protection in the light of the Authority’s adverse findings in relation to the applicant’s substantive claims.

10. Moreover, I accept the first respondent’s submission that even if the information in question was overlooked by the Authority, that error was not material as had it been considered, it would not have caused the Authority to make a different decision on review. (see Hossain v Minister for Immigration and Border Protection& Anor [2018] HCA 34 per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA  & Anor [2019] HCA 3 at [45]-[47] per Bell, Gageler and Keane JJ). In particular, there was nothing in the letter from the Swiss Refugee Council that described the reasons for the granted refugee status to the applicant's brother in Switzerland.

11. In the circumstances, none of the applicant’s complaints in Ground One is made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the applicant and had regard to all material provided in support. The Authority identified with particularity independent country information to which it had regard.

2. The Authority then made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date: 22 April 2020