CGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCA 1196
•7 October 2021
FEDERAL COURT OF AUSTRALIA
CGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1196
Appeal from: CGS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCCA 889 File number: NSD 517 of 2020 Judgment of: NICHOLAS J Date of judgment: 7 October 2021 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Immigration Assessment Authority – whether the Authority evaluated three documents containing new information provided to it by the appellant against the criteria in s 473DD(b)(ii) of the Migration Act 1958 (Cth) in assessing whether exceptional circumstances existed to consider the information under s 473DD(a) – whether the Authority’s decision that exceptional circumstances did not exist in relation to the three documents was legally unreasonable
Held: Authority erred by not considering s 473DD(b)(ii) in relation to one of the documents – appeal allowed
Legislation: Migration Act 1958 (Cth) ss 473DB, 473DC, 473DD Cases cited: AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 68 Date of hearing: 27 November 2020 Counsel for the Appellant: Ms U Okereke-Fisher Counsel for the First Respondent: Mr J Barrington Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 517 of 2020 BETWEEN: CGS18
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
NICHOLAS J
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 1 and 2 made by the Federal Circuit Court of Australia on 22 April 2020 be set aside.
3.A writ of certiorari issue to quash the decision of the second respondent made on 13 April 2018 to affirm the decision of the delegate of the first respondent not to grant the appellant a safe haven enterprise visa.
4.A writ of mandamus issue to direct the second respondent to conduct its review of the fast track reviewable decision referred to it under s 473CA of the Migration Act 1958 (Cth) in respect of the appellant, according to law.
5.The first respondent pay the appellant’s costs of the appeal and the costs of the proceeding before the Federal Circuit Court of Australia as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
NICHOLAS J:
INTRODUCTION
Before me is an appeal from a decision of a judge of the Federal Circuit Court (“the FCC”) dismissing the appellant’s application for judicial review of a decision of the second respondent (“the IAA”) made on 13 April 2018 affirming a decision of a delegate of the first respondent (“the Minister”) made on 21 June 2017 refusing the appellant a Safe Haven Enterprise (Class XE) visa (“SHEV”).
The appellant’s application before the FCC challenged the correctness of the IAA’s application of s 473DD of the Migration Act 1958 (Cth) (“the Act”) in relation to four documents given to the IAA by the appellant’s migration agent. The appeal against the primary judge’s judgment relates to the same issue, though only in relation to three of the four documents. The relevant documents are:
(a)an article published on 14 July 2017 in the Sri Lankan Daily Mirror entitled “Abduction, Torture of Tamils remain systematic: ITJP” (“the Daily Mirror article”);
(b)a letter written by a doctor at GV Hospital in Batticaloa, Sri Lanka, dated 5 July 2017 concerning the appellant (“the Doctor’s letter”); and
(c)a letter dated 8 July 2017 written a member of the Parliament of Sri Lanka concerning the appellant and his family (“the MP’s letter”).
SECTION 473DD
Section 473DD must be considered against the background of the provisions in Pt 7AA of the Act including s 473DB. Sections 473DB and 473DD relevantly provide:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Note:Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).
…
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.
Section 473DD was considered by the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196 (“AUS17”). That decision was handed down after the primary judge delivered her judgment in this matter. In AUS17 the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) said at [9]-[11]:
[9]Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i). Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.
[10]Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
[11]Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
It follows from what was said by the plurality in AUS17 that, at least in relation to new information, given, or proposed to be given, to the IAA by an applicant, the IAA must give consideration to the matters specified in ss 473DD(b)(i) and 473DD(b)(ii) which, if it is satisfied that the information meets either, or both, of those requirements, will then inform the IAA’s consideration of whether there are exceptional circumstances to justify considering the new information.
There are three other points to make in relation to s 473DD of the Act.
First, when s 473DD(b)(ii) refers to “personal information which was not previously known” it is referring to personal information that was not previously known to the Minister: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 (“M174”) at [33] per Gageler, Keane and Nettle JJ citing Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [106] per Kenny, Tracey and Griffiths JJ.
Second, as their Honours also observed in M174 in relation to the term “exceptional circumstances” at [30]:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered” [R v Kelly [2000] 1 QB 198 at 208, quoted in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at 231 [40]].
Third, the IAA is not obliged to give reasons as to why it is not satisfied as to any matters referred to in s 473DD. Section 473DD is one of a number of related provisions that were referred to by the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 (“BVD17”). Referring in particular to ss 473DC(1) and 473GB(3), the majority (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) said at [16]:
Two further provisions of Pt 7AA are also appropriate to be mentioned. Section 473EA, which is located within Div 4, requires a decision of the Authority on a review under Pt 7AA to be accompanied by a written statement setting out both “the decision of the Authority on the review” and “the reasons for the decision” (31). The analysis in Minister for Immigration and Citizenship v SZGUR [(2011) 241 CLR 594 at 606 [32], 616-617 [69], 623 [91]-[92]] of the materially identical requirement in s 430 for the Refugee Review Tribunal to give a statement of the reasons for its decision in a review under Pt 7 supports two conclusions about which there is no dispute in the appeal. One is that the decision of the Authority on the review to which s 473EA refers is the ultimate decision of the Authority under s 473CC(2) either to affirm the fast track reviewable decision referred to it or to remit the decision referred to it for reconsideration in accordance with such directions or recommendations as are permitted by regulation. The other is that the Authority, in giving reasons for that ultimate decision to affirm or remit, is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3).
These observations are equally applicable to a procedural decision made under s 473DD. As the decision in BVD17 makes clear, there may be implications for the inferences that can be drawn where the IAA has not expressly referred to some fact or matter said to be relevant to that decision. For example, it may not be open to infer that the IAA has overlooked a relevant consideration merely because it does not mention that consideration in any reasons given for its decision under s 473DD: see BVD17 at [37]-[39].
THE IAA’S DECISION
The IAA said that it had regard to the material given to it by the Secretary under s 473CB of the Act. The IAA also referred to the written submissions it received from the appellant’s representative on 17 July 2017 together with the attached documents (including the three documents the subject of this appeal).
In respect of the two letters and newspaper article (which the IAA mistakenly referred to as the Daily Mail article) the IAA said that it was not satisfied that there were exceptional circumstances to justify considering the documents. The reasons given for reaching that conclusion differs for each document, and I will refer in more detail to the IAA’s reasons later.
Having found that exceptional circumstances did not exist to consider the documents, the IAA summarised the appellant’s claims. For the most part, these claims centred on the appellant’s eldest brother who the appellant said had been forcibly recruited into the Liberation Tigers of Tamil Eelam (“the LTTE”) during the civil war. The appellant also claimed that his cousin had joined the LTTE, that the authorities knew that his brother and his cousin had been members of the LTTE, that his family members had been targeted for this, and that on one occasion they asked his family to bring his brother and his cousin to a centre for rehabilitation. The appellant also claimed that unknown persons had visited his family looking for him as his name was on a list of persons who had travelled by boat to Australia.
The IAA did not accept that the appellant’s brother or cousin had been members of, or fought for, the LTTE. On that basis the IAA did not accept the appellant’s claim that his family members had been asked to bring his brother and cousin to a rehabilitation centre. Ultimately, the IAA did not accept that the appellant had any profile with the Sri Lankan authorities which would give rise to adverse treatment if he was to return to Sri Lanka. In relation to the appellant’s claim that his name was on a “boat list” the IAA said at [28]:
The applicant claimed that his mother has told him that unknown persons came to his house in 2014 searching for him. His mother told him that the visitors had what they claimed was a “boat list” containing the names of the people who travelled to Australia on the same boat as him. The unknown visitors demanded to know where the applicant was and his mother replied that he had gone abroad. The applicant discussed this claim in detail with the delegate. The claim was not made during the Arrival interview or in the written statement of claims in the SHEV application prepared on 6 December 2016 - some time after the date that the applicant claimed his mother told him of the visit. That the applicant did not include the claim of the “boat list” in his written statement of claims casts doubt on the credibility of this claim. I do not accept as plausible that unknown persons in Sri Lanka would have a list of names of persons who travelled by boat to Australia from Indonesia as the applicant did. I do not accept this claim.
The appellant claimed that he was detained by local police and army members following an explosion in 2009, that he was severely beaten while he was interrogated, and that he was later taken by his mother to a local hospital for medical treatment after his release.
The IAA referred to what it characterised as inconsistent information regarding the appellant’s medical treatment. The IAA did not accept that the appellant required treatment at a hospital for his injuries. The IAA said at [22]-[25]:
22.The applicant claimed that at some point in 2009, he was visiting his home near Batticaloa when there was a bomb-blast … He claimed that he was travelling on the road near the site of the blast and as a result was detained by the local police and army in a general round-up. He claimed in his SHEV interview that he was detained with three other people and interrogated about his role in the incident.
23In his written statement of claims he stated that he was released when his mother went to the police station and told the police that he was a student and was not involved in the bombing. He claimed that the police held him for one hour, questioned him and beat him on the joints of his shoulders, arms and legs with a plastic pipe filled with cement. In his SHEV interview with the delegate, the applicant claimed that his release was achieved when his mother called a local village official … who intervened with the police to have him released.
24.In his written statement of claims, the applicant claimed that he had been unable to walk after the beating he received during the hour he was in detention and that his mother took him to the local hospital for medical treatment because he could not walk following the claimed beating. In his Arrival interview he stated that he had been “harassed and beaten” by the police and in his SHEV interview he claimed that the police beating had left marks on his body. In neither interview did the applicant claim that he was treated at the local hospital after his release. Despite some minor inconsistencies in his statements, the applicant spoke persuasively about the events of the bomb blast on the road and his subsequent detention for one hour following the round up. I am willing to accept that as a young Tamil male in the vicinity, he was picked up with three other Tamil civilians in a general round up on suspicion of involvement in the explosion. I accept he was held for one hour and physically mistreated …
25The applicant provided inconsistent information regarding his claimed treatment at the local hospital following his release. He made the claims of hospital treatment in his SHEV application but did not advance the claim in either interview with the Department. Given these inconsistencies and the lack of any detailed information regarding the nature of his claimed injuries or the duration and nature of the treatment he claimed to have received, I do not accept this aspect of his claim.
The appellant also claimed that he flew to Malaysia in April 2012 where he registered as a refugee with the United Nations High Commissioner for Refugees. He remained there until February 2013 before he was forced to return to Sri Lanka with other Tamil refugees. He then found a small boat and travelled to Indonesia after which he boarded a vessel bound for Australia in late April 2013, arriving in May 2013.
THE PRIMARY JUDGE’S JUDGMENT
The primary judge said that the Daily Mirror article (which she referred to as the “ITJP Information”) was only a brief summary of the 2016 report of the International Truth and Justice Project (“the 2016 ITJP Report”).
The Minister accepts that the primary judge erred in finding that the Daily Mirror article was a brief summary of the 2016 ITJP Report. It is common ground that the Daily Mirror article referenced a different ITJP Report published in 2017 (“the 2017 ITJP Report”).
The primary judge also held that the IAA found that the information contained in the Daily Mirror article did not differ in material respects from the 2016 ITJP Report. The Minister also accepts that the IAA did not make that finding. Rather, as is apparent from the IAA’s reasons at [7], the IAA understood that the Daily Mirror article provided a brief summary of the 2017 ITJP Report. However, in the IAA’s view the Daily Mirror article did not materially add to the information contained in the 2016 ITJP Report, a copy of which was before the delegate and the IAA. It was on this basis that the IAA was not satisfied that there were exceptional circumstances to justify considering the information in the Daily Mirror article.
With regard to the Doctor’s letter, the primary judge noted that the IAA did not find the Doctor’s letter to be reliable and, on that basis, did not consider that there were exceptional circumstances justifying its consideration. Her Honour found that this conclusion was reasonably open to the IAA and that there was no error in the IAA’s consideration of the Doctor’s letter.
In relation to the MP’s letter, the primary judge noted that the IAA did not consider the information in it to be corroborative of the appellant’s claims and that the letter included a number of other claims not advanced by the appellant. The IAA therefore concluded that there were no exceptional circumstances justifying consideration of the information contained in the letter. The primary judge found that this conclusion was also open to the IAA on the evidence before it and that the IAA did not make any error in its consideration of the MP’s letter.
Since the primary judge found that the IAA did not make any error in its application of s 473DD in relation to any of the documents, it was not necessary for her Honour to consider whether any such error was material in the sense that it deprived the appellant of a realistic possibility of a successful outcome. There is nothing in the primary judge’s reasons for judgment to indicate that the Minister argued that any error made by the IAA was not material to the outcome of the review.
APPELLANT’S GROUNDS OF APPEAL
The appellant’s notice of appeal contains one ground of appeal which is as follows:
The Federal Circuit Court failed to find that the IAA fell into jurisdictional error by adopting an erroneous construction of s473DD in that it (a) 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 (ii) relied on unreasonable reasons, erroneous and inaccurate statements and for the purpose of determining that it was not satisfied that exceptional circumstances existed and thus s473DD was not satisfied (iii) 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.
The particulars to the ground of appeal take issue with the IAA’s lack of satisfaction that there were exceptional circumstances to justify consideration of the three documents. The ground of appeal and the particulars are opaque, but the particulars do assert that the IAA’s lack of satisfaction was in each case legally unreasonable, and based on a misapplication of s 473DD.
THE PARTIES’ SUBMISSIONS
The Doctor’s Letter and the MP’s Letter
In relation to the two letters, the appellant submitted that the IAA erred by not assessing the requirements in s 473DD(b)(ii) before considering s 473DD(a) as required by AUS17. The appellant further submitted that the IAA erred by finding that the information in the letters could have been provided to the delegate in circumstances where it had already found that the documents could not have been provided to the delegate when assessing the s 473DD(b)(i) criteria.
The appellant submitted that the IAA misinterpreted the test for exceptional circumstances. He also submitted that the IAA failed to consider the appellant’s submission that his life was in danger when deciding whether the exceptional circumstances requirement was satisfied. The appellant further submitted that the decision made by the IAA to the effect that it was not satisfied that exceptional circumstances existed was legally unreasonable.
The Minister submitted that on a fair reading of the IAA’s reasons the IAA considered whether the s 473DD(b) factors were met, and factored this analysis into its consideration of s 473DD(a). On this basis, the Minister submitted that no error of the kind identified in AUS17 was made.
In answer to the appellant’s submission based on the IAA’s application of s 473DD(b)(i), the Minister submitted that the IAA erred in its approach to s 473DD(b)(i) by assessing whether the documents rather than the information contained in the documents could have been provided to the delegate. The Minister submitted that this explained the IAA’s consideration of exceptional circumstances and that the IAA did not fall into error by considering whether the information contained in the letters could have been provided to the delegate at some earlier time. The Minister submitted that the error made by the IAA favoured the appellant, and that as a result of this error the IAA went “one step further than it needed to” in considering s 473DD(a), as, on the Minister’s submission, the IAA would otherwise have found that neither of the s 473DD(b) sub-paragraphs was satisfied.
More generally, in relation to the appellant’s submission based on AUS17, the Minister submitted that s 473DD was correctly applied by the IAA (except in the respect previously identified) and that the matter specified in s 473DD(b)(ii) was considered by the IAA and that this informed its assessment of whether exceptional circumstances existed. The Minister’s submissions emphasised that the High Court’s decision in AUS17 imposes requirements in relation to the IAA’s reasoning process and not the order in which its reasons must be set out. In support of this submission the Minister referred to the observation of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 77 ALJR 1165 at [14] that “[d]ecision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others”.
The Daily Mirror Article
The appellant submitted that, to the extent that there was information in the Daily Mirror article that was not contained in the 2016 ITJP Report, the IAA made a legal error in deciding not to consider the article. When pressed as to the nature of the error said to have been made by the IAA, the appellant submitted that the error lies in concluding that the article does not add to the information that was before the IAA. The appellant also submitted that the IAA proceeded on an incorrect view as to the meaning of “exceptional circumstances” and failed to consider the appellant’s submissions in regard to exceptional circumstances. In particular, the appellant contends that the IAA failed to consider his submission that exceptional circumstances existed because his life was in danger. Overall, the appellant submitted that the IAA’s conclusion that there were no exceptional circumstances to justify consideration of the information in the Daily Mirror article was legally unreasonable. This submission was advanced at a high level of generality, and without specific reference to any part of the 2016 ITJP Report.
The Minister submitted that the information in the Daily Mirror article did not materially differ from the information contained in the 2016 ITJP Report which was before the IAA and the IAA’s conclusion that there were no exceptional circumstances to consider the article was open to it and was not legally unreasonable. The Minister further submitted that the IAA was not required to consider the appellant’s claim that his “life is at risk” in assessing whether to consider the new information. The Minister submitted in writing:
… the appellant was, and is, unable to prove that the Authority failed to have regard to the explanation that he gave as to why there existed exceptional circumstances to justify considering the ITJP Country Information – that his “life is at risk” … As the Authority was under no duty to give reasons for the exercise or non-exercise of its power in s 473DD, it is not enough to point to its failure to make reference to the explanation to support the inference that it was not considered. In circumstances where the Authority referred to the appellant’s submissions at … [4] and … [7], and for the reasons given by the primary judge at … [69], the better inference to draw from the absence of reference to the explanation is that the Authority did not consider it to be material.
More generally, in relation to the appeal based on AUS17, the Minister again argued that it could not be inferred that the IAA had failed to consider the matters referred to in s 473DD(b)(ii). Instead, the Minister submitted that it could be inferred that the provision was considered but dismissed by the IAA on the basis that the Daily Mirror article did not contain any personal information.
CONSIDERATION
Before assessing the specific errors the appellant claims the IAA made in relation to the documents, it is convenient to address the appellant’s contention that the IAA failed to consider his submission in relation to why exceptional circumstances existed, namely that his life was at risk.
The appellant’s contention goes nowhere unless he establishes that in considering whether exceptional circumstances justified consideration of the information in question, the IAA overlooked the fact that the appellant claimed that his life would be at risk if he were returned to Sri Lanka.
It is apparent from the IAA’s reasons when read as a whole that the IAA understood that the appellant contended that his life would be at risk if he was returned to Sri Lanka but that it did not accept that contention.
In his submissions on the appeal the appellant made no attempt to demonstrate that the IAA failed to take into account the fact that the appellant claimed that his life was at risk if he were returned to Sri Lanka beyond pointing to the absence of any express reference to that claim in the part of the IAA’s reasons where it considered s 473DD. In my view, the absence of any express reference to that claim in that part of the IAA’s reasons is an insufficient basis for inferring that the IAA overlooked it when considering whether or not it should consider the new information.
I will now consider each of the three documents in turn to assess the specific errors that the appellant has submitted the IAA made when deciding that it could not consider the new information.
The MP’s Letter
The MP’s letter includes a number of statements, purportedly written by a person who is a Member of the Parliament of Sri Lanka, suggesting that the appellant and his siblings would be in danger if they were to return to Sri Lanka. According to the letter (which is written in poor English) the appellant and his siblings would be in danger in Sri Lanka due to the appellant’s and his brother’s involvement with the LTTE to whom they had provided a vehicle and SIM card. The letter also states that the Karuna Group was expecting the appellant and his brother to join the group and (as I interpret the letter) their lives would be in danger were they not to do so. The letter also contains a statement to the effect that enquiries were made in relation to the appellant’s family by “unknown/unauthorised people” as reported to the writer by the appellant’s mother.
The IAA discussed the MP’s letter at [6] of its reasons where it said:
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.
It is apparent that the IAA considered that the requirements of s 473DD(b)(i) were met because the letter, which post-dated the delegate’s decision, could not have been provided to the delegate before he made his decision. The parties made two related submissions in relation in relation to this reasoning.
The appellant submitted that the IAA erred when determining whether or not exceptional circumstances existed by considering whether or not the information contained in the letter could have been provided to the delegate in circumstances where it had already found that the document could not have been provided to the delegate. I do not accept this submission.
Assuming that s 473DD(b)(i) was satisfied because the document could not have been provided to the delegate, I do not see why that prevents the IAA from taking into account the fact that the information contained in the document was available to the appellant before the delegate’s decision was made when the IAA was considering whether exceptional circumstances existed. The fact that the information in the document could have been provided to the delegate is a matter that is directly relevant to the question whether the IAA is satisfied that exceptional circumstances exist.
The Minister submitted that the IAA erred in its approach to s 473DD(b)(i) because the IAA considered that the MP’s letter was “new information” merely because it post-dated the delegate’s decision. The Minister submitted that the test that the IAA should have applied under s 473DD(b)(i) was whether the new information (as recorded in the document) could have been provided to the delegate at the time the decision was made. In support of this submission the Minister cited Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 (“CLV16”) [51]-[53].
I do not think the decision in CLV16 supports the Minister’s submission. The Full Court in that case did not hold that the question whether a document could have been provided to the delegate at some prior point in time depended on whether the information contained in the document could have been provided at that time.
One potential difficulty with the Minister’s submission is that it appears to overlook the definition of “new information” found in s 473BB of the Act which draws on the definition of “new information” in s 473DC. Section 473DC defines “new information” as any documents or information that were not before the Minister when the decision was made and that the IAA considers may be relevant. The Minister’s submission in relation to the proper application of s 473DD(b)(i) may not sit comfortably with the definition of “new information” in s 473DC.
In any event, the Minister submitted that the error which he contended the IAA had made in relation to the application of s 473DD(b)(i) could not amount to a jurisdictional error because it was an error that favoured the appellant in that the IAA accepted that the document met the requirements of that provision.
I do not think it advances matters to ask whether the error which the Minister attributes to the IAA in relation to the application of s 473DD(b)(i) was capable of constituting a jurisdictional error in isolation from the broader question that arises in relation to the IAA’s consideration of s 473DD.
One immediate consequence of the IAA’s decision in relation to s 473DD(b)(i) was that the IAA does not appear to have considered whether s 473DD(b)(ii) applied. This is the second error relied upon by appellant. He says that the IAA erred in the manner identified in AUS17 by failing to consider the s 473DD(b)(ii) criteria and in failing to take the assessment of those criteria into account when deciding whether exceptional circumstances existed to consider the new information: see AUS17 at [12], [18].
In circumstances where the IAA has in its reasons addressed s 473DD(b)(i) in terms by asking itself whether the document could have been provided to the delegate before the decision was made, it may be inferred that the IAA did not consider whether the document met the requirements of s 473DD(b)(ii) because the IAA did not appreciate that it was necessary to consider the application of that sub-section in circumstances where it was satisfied that the requirements of s 473DD(b)(i) (and by extension s 473DD(b)) were met. On this view, it is open to infer the IAA did not turn its mind to the matters referred to in s 473DD(b)(ii) when considering whether it could be satisfied that exceptional circumstances existed.
The Minister submitted that the IAA did not make any such error because, when considering the MP’s letter, the IAA implicitly found that the information in the letter was not credible. This conclusion was said to flow from the statement in the IAA’s reasons for concluding that there were not exceptional circumstances because “the letter contains a number of claims that were not otherwise advanced by the applicant” and that the IAA did not consider them to be “corroborative of the applicant’s claims”. The Minister submitted that the IAA therefore impliedly considered the s 473DD(b)(ii) criteria and correctly applied the AUS17 test and that it made no jurisdictional error in finding that exceptional circumstances did not exist.
A finding that information is not corroborative is not the same as a finding that the information is not “capable of being believed”: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477 at [75]. I do not accept the Minister’s submission that a finding that the letter did not “corroborate” the appellant’s claims gives rise to an inference that the IAA turned its mind to the question whether the information was credible as required by s 473DD(b)(ii). The fact that the letter is not corroborative of the appellant’s claims does not mean that the contents of the letter are not capable of being believed. This to my mind confirms that the IAA did not direct its mind to the requirements of s 473DD(b)(ii) either before, or at the time of, considering whether it was satisfied that exceptional circumstances existed.
None of that is to say that it was not open to the IAA to conclude that exceptional circumstances did not exist to justify consideration of the MP’s letter either because it included information that could have been placed before the delegate or because it included information that was not corroborative of the appellant’s earlier claims. But in light of AUS17, that would be a conclusion based on a misapplication of s 473DD if it was arrived at without the IAA having also considered the matter referred to in s 473DD(b)(ii).
The Minister did not file any notice of contention or make any submission to the effect that the second error alleged by the appellant was not material. Materiality does not appear to have been in issue before the primary judge and was not put in issue on appeal: cf. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [4] per Bell, Gageler and Keane JJ.
In my view, the IAA fell into jurisdictional error by failing to consider whether the information in the MP’s letter met the s 473DD(b)(ii) criteria.
The Doctor’s Letter
The Doctor’s letter was purported to be written by a doctor working at a hospital in Batticaloa, Sri Lanka. In the letter the doctor reports that the appellant was arrested in 2009. Again, the English is less than perfect but the letter appears to assert that the appellant was mistreated (the word used in the letter is “castigated”) while in custody and that the appellant “developed wound on his right shoulder and bilateral legs”. The letter appears to assert that the appellant was mistreated and had been taken to hospital by his mother and sister and that he had been treated for his injuries between 2009 and 2012. The letter claims that during this period the police and army groups, on several occasions, threatened the appellant physically.
In relation to the Doctor’s letter, the IAA considered whether it was satisfied that the s 473DD criteria were met at [5] of its reasons where the IAA relevantly said:
… 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.
The appellant’s central submission was again directed to a purported failure by the IAA to consider s 473DD(b)(ii). The respondent submitted that by finding that the letter was “not reliable” the IAA turned its mind to s 473DD(b)(ii) and found (in effect) that the information was not credible personal information as required by s 473DD(b)(ii).
The Doctor’s letter was significant because the appellant had previously claimed that family members including his mother took him to the local hospital because he could not walk after the beating which he claimed to have suffered in 2009. In his statutory declaration lodged in support of his SHEV application he stated that he was beaten on his shoulder, his arms and legs and that, at the time, he was bleeding from his shoulder. This claim was significant in that the IAA said at [25] of its reasons that the appellant provided inconsistent information regarding his treatment at the local hospital, that he had made claims in relation to such treatment in his SHEV application but did not advance the claim in his interview with the Department. The IAA said that it did not accept this aspect of the appellant’s claims. The Doctor’s letter, if considered pursuant to s 473DD and accepted as accurate, could corroborate at least some of the appellant’s claims.
While I accept that the IAA has not expressly considered whether the Doctor’s letter contains credible personal information, it has, in its consideration of exceptional circumstances, focused on aspects of the Doctor’s letter which may have led the IAA to infer that it had not been written by a doctor at all. Although the IAA did not explicitly refer to s 473DD(b)(ii), and its conclusion is not expressed in language that corresponds with the language used in s 473DD(b)(ii), I am not persuaded that the IAA failed to ask itself whether the letter was capable of being believed or whether it could have affected the consideration of the appellant’s claims. In the result, I am not persuaded that the primary judge erred in rejecting the appellant’s application for judicial review in so far as it related to the Doctor’s letter.
There is no substance to the appellant’s contention that the IAA’s lack of satisfaction that exceptional circumstances existed justifying consideration of the Doctor’s letter was legally unreasonable. The appellant’s submissions on the topic of unreasonableness were expressed at a very high level of generality and without any real analysis of the IAA’s reasoning process. The IAA drew attention to aspects of the Doctor’s letter which led it to conclude that the letter was unreliable, including the language in which the letter was expressed, and some inconsistencies between the letter and the appellant’s previous claims. The IAA’s lack of satisfaction was not illogical or irrational, arbitrary or capricious, or lacking an evident or intelligible justification: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] per Allsop CJ.
Daily Mirror Article
It is convenient to set out the IAA’s discussion of the Daily Mirror article at [7] of its reasons where it said:
… 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 online article.
It is clear from the first part of this paragraph that the IAA was satisfied that the criteria in s 473DD(b)(i) were met, and that the IAA did not expressly consider s 473DD(b)(ii). In my view nothing turns on this omission. The information contained in the Daily Mirror article was “incapable of being assessed … to meet the criterion specified in s 473DD(b)(ii)”: AUS17 at [18] per Kiefel CJ, Gageler, Keane and Gordon JJ; see also [24] where Edelman J said “[p]lainly, country information is not personal information, which in broad terms is ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable’”.
Nor was the IAA’s approach to the question of exceptional circumstances legally erroneous. While the appellant was able to point to some specific instances of torture identified in the Daily Mirror article, the appellant was not able to demonstrate that the information in the article differed in any material way from the information already before the IAA.
Having regard to the 2016 ITJP Report and the Daily Mirror article it is apparent that the article only provided a short summary of some additional instances of torture that occurred after the 2016 report was published. In contrast, the 2016 Report contained a much more detailed and comprehensive account of instances of torture that occurred in Sri Lanka. In those circumstances, it was open to the IAA to find that the Daily Mirror article did not materially add to the 2016 ITJP report and its decision on that issue cannot be characterised as legally unreasonable.
In the result, I am not persuaded that the IAA made any jurisdictional error in its consideration of the Daily Mirror article.
DISPOSITION
The appeal will be allowed. There will be orders setting aside the orders made by the primary judge and for the issue of a writ of certiorari and a writ of mandamus in respect of the IAA’s decision of 13 April 2018. The Minister must pay the appellant’s costs of the appeal and of the proceeding before the primary judge.
Orders accordingly.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Nicholas. Associate:
Dated: 7 October 2021
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