CGW18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 759
Federal Circuit and Family Court of Australia
(DIVISION 2)
CGW18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 759
File number(s): PEG 327 of 2020 Judgment of: JUDGE LUCEV Date of judgment: 14 September 2022 Catchwords: MIGRATION – Judicial review – decision of Immigration Assessment Authority – citizen of Sri Lanka – Tamil ethnicity – involvement with the LTTE – sexual assault by Sri Lankan law enforcement – whether unreasonable refusal to adjourn or allow sufficient time to obtain psychological reports – whether wrong statutory question asked – whether jurisdictional error Legislation: Immigrants and Emigrants Act 1948 (Sri Lanka)
Migration Act 1958 (Cth) Part 7AA, ss 5, 5H, 5J, 36, 65, 473CA, 473CB, 473DB, 473DC, 473DD, 473FA, 473FB, 474, 476
Cases cited: ABT17 v Minister for Immigration and Border Protectionand Another [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94; (2019) 163 ALD 483
CAK19 v Minister for Home Affairs and Another [2020] FCCA 1251; (2020) 352 FLR 17
Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412
CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1CGW18 v Minister for Home Affairs [2020] FCA 1104
CGW18 v Minister for Home Affairs [2019] FCCA 2964
DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91
DGZ16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 12; (2018) 258 FCR 551
DKA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 8
DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665
DVO16 v Minister for Immigration and Border Protection and Another [2019] FCAFC 157; (2019) 271 FCR 342
ENJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1079
Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212
Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640; (2014) 143 ALD 640Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491
Minister for Immigration and Border Protection v SZVFW and Others [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434
Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (2016) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105
Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24
SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387; (2003) 79 ALD 723
SZGTS v Minister for Immigration & Citizenship [2009] FCA 1353; (2009) 112 ALD 443
VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117Division: Division 2 General Federal Law Number of paragraphs: 57 Date of hearing: 11 November 2021 Place: Perth Counsel for the Applicant: Mr M Crowley Solicitor for the Applicant: AUM Legal Counsel for the First Respondent: Ms C Taggart Solicitor for the First Respondent: Australian Government Solicitor Second Respondent: Submitting appearance, save as to costs ORDERS
PEG 327 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CGW18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
14 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.A writ of certiorari issue quashing the decision of the second respondent made on 24 September 2020.
3.A writ of mandamus issue requiring the second respondent to re-determine its review of the decision of the delegate of the first respondent made on 10 January 2018, and determine it according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
Introduction
The originating application in these proceedings was filed on 28 October 2020, but now before the Court is an amended originating application for judicial review (“Amended Judicial Review Application”) by the applicant, CGW18, filed on 30 September 2021, under s 476 of the Migration Act1958 (Cth) (“Migration Act”) seeking review of a decision of the Immigration Assessment Authority (“Authority”) of 24 September 2020 to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the then Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, now the Minister for Immigration, Citizenship and Multicultural Affairs (“Minister”) to refuse to grant CGW18 a subclass 790 Safe Haven Enterprise (“SHE Visa”).
The following materials are before the Court:
(a)the Court Book (“CB”) of 317 pages (“Exhibit 1”);
(b)the Amended Judicial Review Application; and
(c)the transcript of the hearing on 11 November 2021 (“Transcript”).
No affidavits were relied upon by either party.
Background
The relevant background to the matter is as follows:
(a)CGW18 and her husband arrived in Australia in October 2012 as unauthorised maritime arrivals: CB 12-30. Their son was born in Australia in September 2013: CB 136;
(b)on 21 July 2017 CGW18 applied for a SHE Visa: CB 50-130. Included in the application were the husband and minor child of CGW18;
(c)on 10 January 2018 CGW18’s application for the SHE Visa was refused by the Delegate: CB 181-208;
(d)on 16 January 2018 the matter was referred to the Authority for review of the Delegate’s Decision: CB 209-217;
(e)on 29 March 2018 the Authority affirmed the Delegate’s Decision not to grant the SHE Visa to CGW18 (“First Authority Decision”): CB 226-240. The Authority separately affirmed the Delegate’s Decision not to grant the SHE Visa to CGW18’s husband and their child: CB 226-240;
(f)an application to the then Federal Circuit Court of Australia for judicial review of the First Authority Decision was unsuccessful: CGW18 v Minister for Home Affairs [2019] FCCA 2964 (“CGW18-FCCA”), but on 3 August 2020 the Federal Court of Australia allowed an appeal against CGW18-FCCA and the matter was remitted back to the Authority for reconsideration according to law: CGW18 v Minister for Home Affairs [2020] FCA 1104 (“CGW18-Federal Court”): CB 241; and
(g)on 24 September 2020 the Authority, differently constituted, again affirmed the Delegate’s Decision not to grant the SHE Visa (“Second Authority Decision”): CB 299-317.
Second Authority Decision
In the Second Authority Decision the Authority:
(a)noted that a number of CGW18’s submissions were provided “only through the provision of hyperlinks or brief footnotes and not copies of the articles or copies of extracts from the sources themselves have been provided” and that this was contrary to requirements as specified in the Authority’s Practice Direction for Applicants, Representatives and Authorised Recipients (“Practice Direction”): CB 301 at [8];
(b)noted that:
(i)CGW18 had earlier been provided with a copy of the Practice Direction and a fact sheet in Tamil specifying the requirements for giving information to the Authority: CB 301 at [9];
(ii)CGW18 was also on notice of the need to provide copies or extracts of material relied upon: CB 301 at [9];
(iii)CGW18’s representative, a solicitor and registered migration agent, was alerted to the terms of the Practice Direction and the Authority determined, pursuant to ss 473DC(2) and 473FB(5) of the Migration Act not to accept those sources on the basis that:
(A)the sources had not been properly identified, nor had copies or extracts been provided: CB 301 at [10];
(B)while the sources appeared to relate to relatively recent political events, and the Authority accepted that the information could not therefore have been provided to the Delegate, there were also a number of independent, reputable sources reporting on these issues, which were already before the Authority: CB 301 at [10]; and
(C)the Authority was therefore not satisfied that s 473DD of the Migration Act was met and as the Authority had obtained recent country information examining recent political developments in Sri Lanka, and pursuant to ss 473DC(2) and 473FB(5) of the Migration Act it had decided not to accept any of these five hyperlinks as sources: CB 301 at [9-10];
(c)also noted that in the week prior to receipt of the rejected submissions, CGW18 had requested an extension of time (until 13 September 2020) to provide further submissions on the basis that “we may need to get an assessment of her [CGW18’s] mental state from a psychologist”, and CGW18 was advised that further time would not be granted but that any information received before a decision was made may be considered: CB 301-302 at [11];
(d)ultimately decided to proceed on the information before it because:
(i)there was no further indication that any arrangements had been made for a psychologist’s report to be provided;
(ii)no information was included in the submission that CGW18 had attended a psychologist in recent times;
(iii)no information had been received to indicate whether in fact an assessment had been scheduled “or when, if at all it may take place”; and
(iv)several weeks had passed since the initial request: CB 301-302 at [11];
(e)accepted that on the evidence before it that:
(i)CGW18 had been sexually assaulted by members of the Sri Lankan Criminal Investigation Department (“CID”) in 2010;
(ii)although it had no medical evidence before it, it accepted CGW18’s evidence during the SHE Visa interview that this incident had left her with unspecified physical problems as well as psychological vulnerabilities, which had been outlined in supporting documentation, specifically a letter from the Association for Services to Torture and Trauma Survivors (“ASeTTS”); and
(iii)CGW18 genuinely fears she will be harmed again in this manner should she return to Sri Lanka: CB 307 at [33];
(f)had regard to the fact that the sexual assault had occurred in the immediate post-civil war era when the Sri Lankan authorities were engaging in frequent and systematic monitoring, harassment and, in some cases, serious mistreatment of certain members of the northern Sri Lankan Tamil population: CB 307 at [33];
(g)acknowledged that during the civil war the Sri Lankan authorities were not called to account for their serious mistreatment of some members of the Sri Lankan Tamil community, including through acts of sexual violence, but it did not accept that the Sri Lankan authorities continue to commit such acts with impunity as CGW18 claimed, citing recent country information that while not all sexual assaults and rapes are reported, redress mechanisms, although imperfect, do now exist for sexual assault victims in Sri Lanka: CB 308 at [36];
(h)given CGW18’s personal circumstances and the overall improvement indicated in the country information, was satisfied that the chance of CGW18 being subjected to sexual assault upon return to her home area was no more than remote: CB 308 at [36];
(i)accepted:
(i)that upon her mother’s advice, and because of the shame she feels, CGW18 had not told her husband about what happened to her in 2010: CB 308 at [37];
(ii)CGW18’s claim that she had not told anyone else in Sri Lanka, because she feared the social stigma that such a revelation may attract; and
(iii)that social stigma can be capable of amounting to persecution, but said that in this case, CGW18 had not provided any specific details of what type of social stigma it is that she fears and referred to CGW18’s submissions in which it was argued that CGW18 was unlikely to access medical assistance because of her fear of social stigma and that without such treatment she was at risk of suicide, other forms of self-harm or post-traumatic stress disorder (“PTSD”): CB 308 at [37];
(j)found that there was no recent evidence before it regarding CGW18’s current psychological state, and that the 2017 ASeTTS letter made no reference to CGW18 being at risk of self-harm or suicide, nor did it specifically diagnose her with PTSD, and was not satisfied on the material before it that CGW18’s fear of social stigma, manifesting in a reluctance to seek medical (including psychological) treatment, would result in suicide, another form of self-harm, or PTSD in particular: CB 308 at [37];
(k)accepted the following:
(i)that CGW18’s mother and brother, who had known of her sexual assault since it occurred, had not ostracised her but had in fact supported her, that she was not married at the time of the sexual assault but has since married, and that her husband was not aware of the details of the sexual assault but he had generally been very supportive of her: CB 309 at [38];
(ii)that upon arrival in Australia in 2012 CGW18’s husband reported to the Australian authorities that Sinhalese crew members onboard their boat had made unwanted sexual advances to CGW18 and other female Tamil passengers, and that he recorded his complaint even after the husbands of the other Tamil women onboard reportedly decided not to pursue their complaints: CB 309 at [39]; and
(iii)that while it could not rule out that CGW18 may be treated differently in Sri Lanka by some members of her community, or some members of her extended family if they were to learn of the sexual assault in 2010, on the evidence it was not satisfied that CGW18’s husband would now ostracise her should he learn of the 2010 sexual assault and considered that she would have the support of key members of her immediate family: CB 309 at [39];
(l)on the evidence overall was not satisfied that CGW18 would be prevented from participating in community life in Sri Lanka if she were to become known as a sexual assault victim, and while accepting that CGW18 genuinely feared social stigma in a general sense, and for this reason had kept her 2010 sexual assault a secret, on the evidence before it was not satisfied that the treatment she may encounter would amount to serious harm: CB 309 at [39];
(m)observed that in September 2012 CGW18 and her husband had departed Sri Lanka illegally by boat and travelled to Australia and sought asylum, and that illegal departees from Sri Lanka can be charged under the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I & E Act”) upon return to Sri Lanka and may remain in police custody at Colombo airport for a short period after arrival and that various Sri Lankan agencies including the Department of Immigration and Emigration, the State Intelligence Service, the CID and, at times, the Terrorist Investigation Division, check the travel documents and identity information of returnees against the immigration and intelligence databases, as well as determine whether a returnee has any outstanding criminal matters: CB 309 at [40];
(n)was satisfied that CGW18 was not subject to an arrest warrant or other judicial process in Sri Lanka, or that she was of any adverse interest to the Sri Lankan authorities, including because of her former employment and her familial LTTE links which the Authority had accepted: CB 309 at [40];
(o)noted CGW18’s claims that upon arrival in Sri Lanka she and her husband would be separated and the Sri Lankan authorities will subject her to serious harm, including sexual assault and rape, but found that Department of Foreign Affairs and Trade (“DFAT”) country information indicated that returnees are processed in groups at the airport, and although individuals cannot exit the airport until all returnees have been processed, they are free to go to the bathroom and to talk to one another during this time and have access to food, water and a prayer room and on the evidence it was not satisfied that families were being separated, or that women, including Tamil women, were being targeted for harm during arrival processing: CB 309 at [41];
(p)accepted CGW18 would very likely be questioned and held briefly as part of the re-entry process, and that if she pleaded guilty she would be fined, or if she pleaded not guilty she would be granted bail on the basis of personal surety, or on guarantee by a family member, but that CGW18 had not indicated how she would plead, and it was not satisfied on the material before it that she would not be granted bail on her own personal surety, or that she would be unable to pay the fine upon her return: CB 310 at [44];
(q)found that though there was a real chance that CGW18 would be fined or would be detained at the airport beyond a short period if she were to return to Sri Lanka it was not satisfied that being detained for a short period, the payment of a fine, or the requirement to report to the police (as part of bail conditions) or a court if required, cumulatively amounted to serious harm for CGW18: CB 310 at [45];
(r)found that though the country information from DFAT indicated that illegal departees from Sri Lanka could be charged under the I & E Act, the information before the Delegate indicated that the I & E Act was not discriminatory on its face, or in its application or enforcement, and as such found the treatment and penalties faced as a consequence of the application of the I & E Act were not persecution within the meaning of s 5J(4) of the Migration Act: CB 310 at [46];
(s)referred to DFAT country information to conclude that societal discrimination was not a major concern for returnees, including failed asylum seekers, to Sri Lanka: CB 310-311 at [47];
(t)accepted that CGW18 might face some personal challenges with respect to reintegration, but given her personal circumstances, which included her previous work as an accountant and voluntary geography teacher in Sri Lanka, her husband’s occupation as a goldsmith and his work for a commercial cleaning company in Australia, and the presence of immediate and extended family in Sri Lanka’s Northern Province, was not satisfied that any challenges faced by CGW18 would amount to serious harm: CB 311 at [48];
(u)at CB 311 at [49] concluded that:
The applicant is a Tamil woman from the North who was raped by members of the CID in 2010. The applicant is now married and will be returning to Sri Lanka with her husband and children after an extended period in Australia. I accept that the applicant and some members of her family (including her husband’s family) had LTTE connections during the civil war. I also accept that, the applicant’s husband, a wealthy Tamil jeweller and businessman, was detained and seriously mistreated by the CID on one occasion in early 2011. However, given all the country information cited above, including the results of the 2019 presidential election, I am satisfied there have been markedly positive gains for the Tamil community since the end of the civil war, including Tamils from the formerly LTTE controlled north and those with former LTTE connections. While issues remain for women in Sri Lanka, I am not satisfied that the applicant, with her profile and background, faces a real chance of persecution upon return.
and therefore found that CGW18 did not have a well-founded fear of persecution under s 5J of the Migration Act, and therefore did not meet the definition of refugee under s 5H(1) of the Migration Act, and therefore did not meet s 36(2)(a) of the Migration Act: CB 311 at [50]-[51]; and
(v)considered CGW18’s real risk of significant harm and for the purposes of complementary protection found that:
(i)CGW18 fears social stigma if her 2010 sexual assault at the hands of the CID was to become more widely known, and that as a returned asylum seeker she may face challenges reintegrating into life in Sri Lanka, but was not satisfied there was a real risk CGW18 would be arbitrarily deprived of her life or have the death penalty carried out on her;
(ii)it was not satisfied any social stigma or reintegration challenges would amount to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, as defined in ss 36(2A) and s 5(1) of the Migration Act;
(iii)on the evidence before it, it was not satisfied that the challenges CGW18 faced would, through any act or omission, reach the level of severe pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or cause extreme humiliation so as to be regarded as cruel or inhuman treatment or punishment, or degrading treatment or punishment;
(iv)it was not satisfied CGW18 was at a real risk of significant harm on this basis;
(v)there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that CGW18 will suffer significant harm; and as a result, that CGW18 did not meet s 36(2)(aa) of the Migration Act;
(vi)that CGW18 would be returning to Sri Lanka as an asylum seeker who left the country illegally and would be subject to processes and penalties under the I & E Act, but was not satisfied there was a real risk CGW18 would be arbitrarily deprived of her life or have the death penalty carried out on her on this basis, and was also not satisfied that any treatment that CGW18 may experience as a result of the application of the I & E Act would amount to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, as defined; and
(vii)on the evidence before it, it was not satisfied that such treatment, through any act or omission, would intentionally inflict severe pain or suffering, pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or cause extreme humiliation so as to be regarded as cruel or inhuman treatment or punishment, or degrading treatment or punishment;
and it was not satisfied CGW18 was at a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, and therefore did not meet the complementary protection criteria under s 36(2)aa) of the Migration Act: CB 312-313 at [55]-[59].
In CGW18’s Outline of Submissions, CGW18 notes that:
(a)in the Second Authority Decision the Authority said that the sexual assault on CGW18 was an “opportunistic attack resulting from [CGW18’s] profile as a Tamil female with LTTE links”: CB 304 at [21]; and
(b)this was not a proposition advanced by CGW18 but a characterisation by the Authority.
Amended Judicial Review Application
The Amended Judicial Review Application outlines two grounds of review, ground 2 and ground 3A set out at [11] and [42] below.
The requirement for jurisdictional error
The Second Authority Decision may be set aside on judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 72 ALD 1; (2003) 77 ALJR 454; (2003) 195 ALR 24. Jurisdictional error may be established where the Authority asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Authority’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Authority under the Migration Act:Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 62 ALD 225; (2001) 180 ALR 1; (2001) 75 ALJR 1105 at [82] per McHugh, Gummow and Hayne JJ. The error must be material in the requisite sense as explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2021) 390 ALR 590 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ:
Materiality was subsequently explained in Minister for Immigration & Border Protection v SZMTA [2019] HCA 3, (2019) 264 CLR 421; (2019) ALJR 252; (2019) 75 AAR 75; (2019) 363 ALR 599; (2019) 163 ALD 38 to involve a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different was explained to be a question of fact in respect of which the plaintiff in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof.
The onus is upon CGW18 to establish jurisdictional error in the Authority Decision: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [47] per Griffiths, White and Bromwich JJ; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ.
It is not within the jurisdiction of this Court to review the merits of the Second Authority Decision, or to determine CGW18’s claim for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (2016) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Ground 2
Ground 2 is as follows
2.The decision of the second respondent … [Authority] of 24 September 2020 affirming the delegate’s refusal was vitiated by an unreasonable refusal to allow the applicant the sufficient or meaningful time to obtain updated psychological material.
Particulars
2.1 At [11] the … [Authority’s] written reasons record the [Authority’s] refusal to allow additional time for the applicant to obtain updated psychological material ‘but that any information received before a decision was made may be considered’, with the … [Authority] deciding to proceed on the basis that ‘several weeks have now passed since that initial [refused] request’;
2.2 In correspondence with the applicant a different reason was advanced – that there was no apparent issue to which the applicant’s psychological state might be relevant – but at [37] the … [Authority] insubstantiates harm constituted by the stigma of being a rape victim in part on the basis that ‘there is no recent evidence before me regarding the applicant’s current psychological state, and the 2017 ASeTTS letter does not make any reference to applicant [sic] being at risk of self-harm or suicide, nor does it diagnose her with PTSD specifically.’
CGW18’s Submissions
In relation to ground 2 CGW18 submitted that:
(a)the very thing that the Authority says at CB 308 at [37] insubstantiates the claim is the very thing that the Authority declined to accept. That there was “no recent evidence ... regarding the applicant’s current psychological state” was entirely a product of the Authority’s refusal to allow CGW18 10 days in which to provide it. In the absence of an intelligible justification, that was prima facie unreasonable, at least in the sense of being “plainly unjust” or “arbitrary”: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 (“Stretton”) at [10] per Allsop CJ; Minister for Immigration and Citizenship v Li and Another [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] per Hayne, Kiefel and Bell JJ;
(b)the Authority’s statement at CB 301 at [11]-[12] that it did in fact take several weeks before finalising the Second Authority Decision is telling. If the Authority had refused a request to wait for 10 days and stated an intention to make a decision “at any time”, that can only be understood as a statement that a decision will be made in 10 days or less. If a psychologist’s report cannot be obtained in that time, why would it be obtained at all? That is not an intelligible justification; and
(c)what is omitted of course in the Second Authority Decision is the initial explanations given at the time for refusing to accept material:
(i)first, that CGW18 had not explained the “relevance”, but if it was not already obvious to the Authority how it may have been relevant, it later became clear to it how it became relevant; and
(ii)second, that the time for providing the psychological report had in fact expired 32 months earlier. This is simply wrong. Part 7AA of the Migration Act is not a prohibition on new information. A long period of time between the events the subject of a Delegate’s Decision and Authority review may throw up important new claims, or aspects of existing claims, which are relevant to a fast track review. That was this case, albeit in respect of CGW18’s psychological condition.
Minister’s Submissions
In relation to ground 2 the Minister submitted that:
(a)the Authority was required to conduct its review by considering the review material provided under s 473CB of the Migration Act, without accepting or requesting new information and without interviewing the referred applicant: Migration Act, s 473DB(1), subject to certain exceptions contained in Part 7AA of the Migration Act, including ss 473DD and 473DC of the Migration Act;
(b)section 473DC of the Migration Act confers a discretion on the Authority to obtain new information, which must be exercised reasonably: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29; (2019) 93 ALJR 1091; (2019) 373 ALR 196 at [15] per Kiefel CJ, Gageler, Keane, Nettle and Gordon JJ; BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94; (2019) 163 ALD 483 at [29] per Rares, Perry and Charlesworth JJ. To consider new information, the Authority must be satisfied of the conditions set out in s 473DD of the Migration Act. Section 473DC(2) of the Migration Act states that the Authority does not have a duty to get or consider new information in any circumstances;
(c)section 473DD of the Migration Act provided that the Authority may consider new information, only where the Authority is satisfied that:
(i)there are exceptional circumstances to justify considering the new information: 473DD(a) of the Migration Act; and
(ii)the new information:
(A)was not and could not have been provided to the Minister before the Minister made the decision (here the Delegate’s Decision) to refuse the visa under s 65 of the Migration Act; or
(B)is credible personal information which was not previously known and had it been known, may have affected the consideration of an applicant’s (here CGW18) claims: Migration Act s 473DD(b);
(d)section 473DB(2) of the Migration Act provides that the Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to it;
(e)it is accepted that the performance by the Authority of its duty under Part 7AA of the Migration Act is conditioned upon it observing the obligations imposed thereby, and by considering in appropriate cases whether or not to exercise the discretions conferred on it: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134; (2019) 366 ALR 665 at [43] per Griffiths and Steward J. The standard of legal reasonableness takes its content from the text, context, subject matter and purpose of the statutory provisions governing the relevant power: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (“DCP16”) at [106] per Beach, O’Callaghan and Anastassiou JJ; Minister for Home Affairs v DUA16 [2020] HCA 46; (2020) 95 ALJR 54; (2020) 385 ALR 212 (“DUA16”) at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ;
(f)the standard required to show that the Authority’s failure to exercise the discretion under s 473DC of the Migration Act was legally unreasonable is a high or demanding one: DCP16 at [110]-[113] per Beach, O’Callaghan and Anastassiou JJ; DGZ16 v Minister for Immigration and Border Protection and Another [2018] FCAFC 12; (2018) 258 FCR 551 at [40]-[41] per Reeves, Robertson and Rangiah JJ; DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; DVO16 v Minister for Immigration and Border Protection and Another [2019] FCAFC 157; (2019) 271 FCR 342 at [9]-[10] per Greenwood and Flick JJ;
(g)the relevant factual context is as follows:
(i)on 29 March 2018 the First Authority Decision affirmed the Delegate’s Decision: CB 223-240, but was ultimately set aside by CGW18-Federal Court, and remitted to the Authority for reconsideration: CB 241-242;
(ii)on 20 August 2020 the Authority wrote to CGW18 advising her that the Authority would reconsider her case (“August 2020 Letter”), and stating that the Authority would proceed to make a decision on the basis of the information sent to it by the Department, unless it decides to consider new information. The Authority provided CGW18 with a copy of the Practice Direction. In the August 2020 Letter the Authority stated: CB 248-249
If there is any new information you want us to consider, which has not already been provided, please note there are specific requirements in the Practice Direction which should be complied with and we may not accept new information that does not comply.
(iii)on 31 August 2020 CGW18’s representative emailed the Authority, requesting additional time (until 11 September 2020) to make written submissions: CB 255;
(iv)on 2 September 2020 the Authority responded to CGW18’s lawyer, declining their request for additional time to make written submissions, noting that the date to provide submissions expired 21 days after the case was referred to the Authority by the Department: CB 259. The Authority stated that as the case was referred on 16 January 2018, the 21 day period ended on 6 February 2018, and also noted that CGW18’s lawyer was not unfamiliar with the matter as it was CGW18’s lawyer before the Federal Court which remitted the matter to the Authority on 3 August 2020. The Authority stated further that any submission or new information which the applicant provided to the Authority before a decision was made would be considered, subject to the requirements of the Practice Direction and s 473DD of the Migration Act;
(v)on 3 September 2020 CGW18’s lawyer wrote to the Authority: CB 260-261 and said (emphasis added):
We may need to get an assessment of her mental state from a psychologist. We would appreciate if you could give us 10 days from today to send you the applicant’s submissions.
(vi)on 4 September 2020 the Authority refused this request: CB 262, and gave the following reasons:
The [Authority] is not satisfied that the circumstances warrant extending the time in this case. Under the [Practice Direction] any new information must be given to the [Authority] within 21 days of the date on which the case was referred to us by the Department. The Practice Direction also states that any submission on why the delegate’s decision may be wrong should be given within that period. As the case was referred on 16 January 2018 this 21 day period ended on 6 February 2018. The [Authority] also notes that on 3 August 2020 a court remitted this matter to the [Authority] for reconsideration. On 20 August 2020 the [Authority] sent the applicant a letter and this advised that the [Authority] could now reconsider this matter, and that the applicant should act quickly if there was anything further she wished to send to the [Authority] as a decision could be made at any time. It is now 4 September 2020.
With regard to the matter of a psychologist’s assessment of the applicant’s mental state, you have not explained what you consider the relevance of this would be to the … [Authority’s] review of this matter, or why the applicant has not already provided such an assessment to the [Authority] in the time available, or why organising such an assessment will require a further 10 days from yesterday.
…
Any submission or new information which you provide to the [Authority] before a decision is made may be considered subject to the requirements of the Practice Direction.
(vii)on 4 September 2020 CGW18’s lawyer emailed the Authority, asking whether the Authority would consider the request if CGW18 provided an explanation for the matters raised with respect to her current mental state: CB 263, and then sent the Authority a further email on 8 September 2020 attaching written submissions dated 7 September 2020, and on 9 September 2020 provided a copy of the judgment in DKA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 8: CB 265-274;
(h)CGW18’s lawyer was aware that on 3 August 2020 the Federal Court had ordered that the First Authority’s Decision be quashed, and that the Authority differently constituted conduct the review according to law: CB 259;
(i)CGW18’s lawyer requested an extension of time to 11 September 2020 to provide written submissions to the Authority: CB 255, a request which was denied: CB 259;
(j)CGW18’s lawyer told the Authority that they “may” need to get an assessment of CGW18’s mental state from a psychologist, and requested until 13 September 2020 to provide written submissions: CB 260-261. The request was for an extension to provide “submissions”, not to provide new information, and it is not clear on the face of the request whether CGW18 intended to send the results of any psychological assessment to the Authority at all;
(k)CGW18’s lawyer did not provide any meaningful information about why a psychological report was required, when the assessment would take place, when the report would be received, or why the report was relevant;
(l)the Authority was not alerted to any particular change in circumstances in respect of which the possible new information was directed;
(m)none of the information provided to the Authority justified the granting of an extension of time in the context of the Authority’s review post remitter from the Federal Court;
(n)ultimately, CGW18’s lawyer provided written submissions, despite not receiving an extension of time, on 8 September 2020: CB 265-273 but these submissions do not reference any psychological assessment or report and rely on “the material before the … [Authority]” to assert that CGW18 may be at risk of “suicide, PTSD and other related risks of harm”: CB 267;
(o)the Authority ultimately waited until after the time requested by CGW18 had passed before making the Second Authority Decision on 24 September 2020. At CB 301-302 at [11] of its reasons, the Authority gave the following reasons for proceeding on the information before it:
Finally, I note that in the week prior to the receipt of above submissions, the applicant’s representative requested an extension of time (until 13 September 2020) to provide further submissions on the basis that “we may need to get an assessment of [CGW18’s] mental state from a psychologist”. The representative was advised that further time would not be granted but that any information received before a decision was made may be considered. The above submission was received but there was no further indication that any arrangements have been made for a psychologist report to be provided. No information was included in the submission that the applicant has attended a psychologist in recent times. Nor has any information been received to indicate whether in fact an assessment has been scheduled or when, if at all it may take place. Several weeks have now passed since that initial request. I have decided to proceed on the information before me.
(p)the Authority was entitled, subject to Part 7AA of the Migration Act, to make a decision at any time after the decision had been referred to it: Migration Act, s 473DB(2). In this case that would effectively be at any time after the matter was remitted to the Authority by the Federal Court on 3 August 2020. Further, the IAA was generally required to conduct the review on the papers: Migration Act, s 473CB, subject to the provisions of Part 7AA of the Migration Act;
(q)CGW18 did not provide the Authority with any information at the time of its decision to proceed to make a final determination to indicate that a report of a psychological assessment would be forthcoming, when it might be forthcoming, or how it would be relevant to the proceeding. It is not sufficient for CGW18 to point to CB 308 at [37] of the Second Authority Decision and say that, in hindsight, an updated psychological report could ultimately have been relevant to the review; and
(r)on the basis of all of the facts and circumstances here, there was no unreasonableness by the Authority in not allowing CGW18 more time to obtain updated psychological material.
The Minister relied upon ENJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1079 (“ENJ17”) which refers to and distinguishes CAK19 v Minister for Home Affairs and Another [2020] FCCA 1251; (2020) 352 FLR 17 (“CAK19”) and submitted that:
(a)in ENJ17:
(i)there was a remittal to the Authority by the then Federal Circuit Court;
(ii)advice of the remittal was sent to EJN17 on 5 February 2019 by the Authority;
(iii)the Authority advised EJN17 that it aimed to complete the review within six weeks;
(iv)EJN17’s lawyer made a request by email on 13 February 2019 to be able to provide submissions and additional evidence within four weeks from the date of the email;
(v)the Authority responded advising that a decision might be made at any time; and
(vi)after receiving no response to its advice the Authority made the decision on the review on 22 February 2019: ENJ17 at [5]-[10] per White J;
(b)EJN17 sought judicial review of the Authority’s decision, alleging that the Authority Decision was legally unreasonable because it did not provide EJN17 with an opportunity to provide further submissions and information: EJN17 at [11] per White J. Having been unsuccessful before the then Federal Circuit Court EJN17 appealed to the Federal Court, alleging that the Federal Circuit Court should have found that the Authority decision was affected by jurisdictional error because the Authority had exercised the discretion in ss 473FB(5) and 473DC(1) of the Migration Act in a manner that was legally unreasonable: EJN17 at [12]-[13] per White J. The Federal Court dismissed the appeal; and
(c)the Federal Court in ENJ17:
(i)found that the discretion which the Authority exercised when determining not to extend time to provide material was exercised under s 473DB(2) of the Migration Act: at [52] per White J;
(ii)observed that, unlike the circumstances in CAK19, that ENJ17 had not told the Authority of the particular nature of the information or the steps that were being taken to obtain the information and the time it would take for that information to be provided: at [65] per White J; and
(iii)did not regard the Authority’s statement that ENJ17 had had “ample opportunity” to present his case as erroneous observing that ENJ17 had had a period of 29 days between 24 January and 22 February 2019 to do so, and that it was reasonable to suppose that ENJ17 had in fact had a little longer because it was likely that he knew before 24 January 2019 that the Minister was consenting to the quashing of the Authority decision, and that the Authority would be undertaking the review afresh, and that it was pertinent to note that ENJ17 had had legal representation in relation to the judicial review: at [67] per White J; and
(d)observed that there were features in the circumstances of CAK19 which distinguished that case from ENJ17: at [70] and [71] per White J.
In relation to this case the Minister further submitted that:
(a)the Authority advised CGW18 in the August 2020 Letter that on 3 August 2020 the matter had been remitted back to the Authority for reconsideration;
(b)the Authority did not make the Second Authority Decision until 24 September 2020;
(c)CGW18 had a very similar period of time to provide submissions and any further information as was the case in ENJ17;
(d)like ENJ17, CGW18 was legally represented;
(e)the same distinguishing features are present here, and:
(i)it is reasonable to suppose that CGW18 had a little longer period because it is likely that she knew before receiving the August 2020 Letter that the Federal Court had allowed her appeal and that the Authority would be undertaking the review afresh. Similarly here, while CGW18’s lawyer did refer to an assessment of CGW18’s mental state from a psychologist, the Authority was only advised that “we may need to get an assessment” (emphasis added), and the Authority was not told of any steps being taken to obtain the information or the time it would take for the information to be obtained;
(ii)importantly, CGW18 here did provide further submissions to the Authority on 8 September 2020; and
(iii)when CGW18’s lawyer stated on 3 September 2020 that there “may” be a need to obtain an assessment from a psychologist, only a further 10 days was sought to make submissions (that is until 13 September 2020), and that the Authority did not make its decision until 24 September 2020; and
(f)in all the circumstances in was not unreasonable for the Authority to make the Second Authority Decision on 24 September 2020, and it cannot be said that to proceed to make that decision was “arbitrary or capricious or … abandon[ed] common sense” or lacked an evident and intelligible justification: Li at [28] per French CJ and [74] per Hayne, Kiefel and Bell JJ.
Consideration – ground 2
This was a “fast track review” for the purposes of Pt 7AA of the Migration Act, referred to the Authority under s 473CA of the Migration Act, and in relation to which the Secretary of the Department had to give the Authority certain material for the purposes of the review: Migration Act, s 473CB. The Authority was required to provide a mechanism of limited review that was “efficient” and “quick”: Migration Act, s 473FA(1).
The circumstances in which the Authority may get new information, being information that was not before the Delegate, are set out in s 473DC of the Migration Act which provides as follows:
(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.
The circumstances in which the Authority may consider new information are set in 473DD of the Migration Act which provides as follows:
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 Authority thus has a discretion, conferred by s 473DC of the Migration Act to obtain new information, which must be exercised reasonably, and subject to the qualified prohibitions in s 473DD of the Migration Act: DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; ENJ17 at [26]-[27] per White J, and thus “a decision can be invalid if it is made in circumstances which exceed the high threshold of legal unreasonableness for the Authority’s failure to exercise the power in s 473DC to get new information”: DUA16 at [27] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ, citing ABT17 v Minister for Immigration and Border Protectionand Another [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407.
In order to determine whether or not the Second Authority Decision is affected by legal unreasonableness requires the relevant circumstances to be examined having regard to the whole of the evidence, thus making it fact dependent: Li at [76] per Hayne, Kiefel and Bell JJ; DUA16 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ; Minister for Immigration and Border Protection v SZVFW and Others [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1; (2018) 75 AAR 434 at [84] per Nettle and Gordon JJ.
It is also pertinent to observe that “legal unreasonableness is to be judged at the time the power is exercised or should have been exercised”: DUA16 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.
On 13 November 2017 CGW18 was the subject of a report by a trauma counsellor at ASeTTS: CB 172-174 (“ASeTTS Report”). The assessment was carried out in relation to a request by CGW18 to have her interview with the Delegate separate to that of her husband as she did not wish to disclose her personal trauma history in the presence of her husband for culturally sensitive reasons: CB 172. CGW18 was assessed as presenting with symptoms related to trauma, and was “highly symptomatic for both anxiety and depression”, as meeting the diagnostic criteria for PTSD, and remaining “vulnerable to current and future stresses, particularly as she has been unable to disclose her assault to her husband for cultural reasons”: CB 173, and it was therefore recommended that she be interviewed separately from husband: CB 174.
Two observations might immediately be made in relation to the ASeTTS Report. The first is that the ASeTTS Report assessment was not carried out for the purposes of assessing or corroborating CGW18’s (or the applicants’ (that is, the applicants before the Authority, being CGW18, her husband and their son) more generally) claims for protection, and therefore placing reliance upon it when reviewing the applicants’ claims for protection, whilst not necessarily irrelevant, is to put it to use for a purpose for which it was not intended. The second is that the ASeTTS Report assessment plainly foreshadows that CGW18 might be vulnerable to future stresses, and obviously any actual future vulnerability cannot have been reported upon in the ASeTTS Report assessment.
The applicants’ lawyer emailed the Authority on 3 September 2020: CB 260 as follows:
Dear Reviewer,
We may need to get an assessment of her mental state from a psychologist. We would appreciate if you could give us 10 days from today to send you the applicant’s submissions.
Thank You
Ganasan Arujunan (Mr)
[address, title and mobile number deleted]The terms of the above request are, on its face, ambiguous, and it is not clear whether what is sought is the ability to submit a further psychological assessment or report, or further submissions, or both.
The Authority responded on 4 September 2020: CB 262, a response which in full reads as follows:
Dear Ganasan Arujunan
The IAA has considered your correspondence of 3 September 2020 requesting additional time of 10 days from yesterday, because you may need to get an assessment of your client’s mental state from a psychologist and so that you can send the applicant’s submissions.
The IAA is not satisfied that the circumstances warrant extending the time in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department. The Practice Direction also states that any submission on why the delegate’s decision may be wrong should be given within that period. As the case was referred on 16 January 2018 this 21 day period ended on 6 February 2018. The IAA also notes that on 3 August 2020 a court remitted this matter to the IAA for reconsideration. On 20 August 2020 the IAA sent the applicant a letter and this advised that the IAA would now reconsider this matter, and that the applicant should act quickly if there was anything further she wished to send to the IAA as a decision could be made at any time. It is now 4 September 2020.
With regard to the matter of a psychologist’s assessment of the applicant’s mental state, you have not explained what you consider the relevance of this would be to the IAA’s review of this matter, or why the applicant has not already provided such an assessment to the IAA in the time available, or why organising such an assessment will require a further 10 days from yesterday.
With regard to the matter of submissions (about why the Department’s decision is disagreed with, or any matter that the Department overlooked) please see the IAA’s email to you of 2 September 2020 as to why your request for additional time in this regard has not been granted.
Any submission or any new information which you provide to the IAA before a decision is made may be considered subject to the requirements of the Practice Direction. The Practice Direction states that if you give us new information, you must clearly identify which parts of the material you give to us is new information, including any new information referred to in submissions. The Practice Direction also requires that if you give us new information you must provide an explanation in writing as to why the information is relevant to the review, and also either: why the information could not have been given to the Department before the decision was made; or: why the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known. This explanation, and any other explanations concerning matters of IAA procedure, is regarded as additional to the 5-page allowable limit provided for submissions.
Please be aware that the IAA can only consider new information if it meets the requirements of s.473DD of the Migration Act 1958.
Yours sincerely
Immigration Assessment Authority
The Authority’s response of 4 September 2020, however, makes clear that the Authority treated the request for a further psychological assessment or report for CGW18 as separate to the request by CGW18 to be able to send further submissions to the Authority. The first paragraph of that response distinguishes between a psychological assessment or report and submissions, as does the remainder of the response, and particularly so at paragraphs three and four where the requests are dealt with separately, and rejected for different reasons.
The Minister’s argument that there was therefore no legally unreasonable failure to consider a request to submit, or for the Authority to “get”, new information: Migration Act, s 473DC(1), as all that was requested by the applicants was for them to be able to file submissions, and that they did so on 8 September 2020, is not supported by the facts. The facts indicate that, notwithstanding the ambiguity in the applicants’ lawyer’s 3 September 2020 email, the Authority treated it as a request to submit a further psychological assessment or report for CGW18, and as separate from the request by CGW18 to be able to send further submissions to the Authority. This aspect of the Minister’s argument therefore cannot succeed.
At the point in time (being 4 September 2020) at which the Authority rejected the request that it get new information by allowing the applicants to submit a further psychological assessment or report for CGW18 the only psychological assessment or report for CGW18 that was available in the information before the Authority was the almost three year old ASeTTS Report of 13 November 2017. The new information would therefore have been information which was not, and could not have been, before the Delegate at the time of the Delegate’s Decision: Migration Act, ss 473DC(1)(a) and 473DD(b)(i).
Any new information provided by allowing the applicants to submit a further psychological assessment or report for CGW18 would also have been relevant: Migration Act, s 473DC(1)(b), in circumstances where:
(a)the Delegate’s Decision, being the decision under review, referred to CGW18’s mental health by reference, albeit brief, to the ASeTTS Report: CB 200;
(b)the ASeTTS Report had, almost three years earlier, foreshadowed that CGW18 might be vulnerable to future stresses: CB 173; and
(c)the Authority found that “ … there is no recent evidence before [the Authority] regarding [CGW18’s] current psychological state” and that the ASeTTS Report did not diagnose CGW18 “with PTSD specifically”: CB 308 at [37], and used this finding as a basis for a lack of satisfaction as to CGW18’s fear of social stigma, manifesting in a reluctance to seek psychological treatment, resulting in, amongst other things, PTSD: CB 308 at [37].
Having regard to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [131]-[135] per Crennan and Bell JJ no logical or rational administrative decision-maker could have found that new information regarding CGW18’s “current psychological state” was not relevant in circumstances where the Authority made the findings that it did based upon a lack of recent evidence of CGW18’s “current psychological state”.
The requirements necessary to be fulfilled as a pre-requisite to any exercise of discretion to get new information were therefore fulfilled in this case: Migration Act, s 473DC(1).
Bearing in mind that the Authority has no duty to get new information: Migration Act, s 473DC(2), the question still remains whether it was legally unreasonable in the circumstances of this case for it not to get new information, namely, a further psychological assessment or report for CGW18.
The relevant principles in relation to legal unreasonable are conveniently summarised by the Federal Court in Minister for Immigration and Border Protection v Pandey and Ors [2014] FCA 640; (2014) 143 ALD 640 (“Pandey”) at [41] per Wigney J as follows:
…
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].
(h)The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]-[102].
(i)It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
The rejection by the Authority of CGW18’s request to get new information, namely, a further psychological assessment or report for CGW18, in circumstances where it went on to not be satisfied as to CGW18’s claim of fear of social stigma on the basis that there was no recent evidence of CGW18’s psychological state was plainly unjust: Pandey at [41] per Wigney J; Stretton; Li. If the Authority was want to have regard to CGW18’s recent psychological condition, as it seemingly suggests it would have if the evidence was before it, then it is, on the face of it, at the very least, plainly unjust to reject an application for additional time to facilitate the provision of that very information. Likewise, it is plainly unjust in those circumstances to rely upon a lack of evidence:
(a)based in part upon the ASeTTS Report assessment which was prepared for the purposes of explaining why CGW18 ought to be allowed to give evidence to the Delegate separate from her husband, and not specifically in relation to CGW18’s fear of harm in relation to her protection claims;
(b)where the ASeTTS Report assessment was almost three years old, but foreshadowed that CGW18 might have vulnerability to future stresses; and
(c)where the agedness of the ASeTTS Report assessment was a consequence of the time it took for the judicial review process to be completed in relation to the First Authority Decision, in circumstances where, through no fault of the applicants, the First Authority Decision was affected by jurisdictional error: CGW18 – Federal Court.
To the extent that the Minister relies upon its submission that the applicants could have provided the Authority with a further psychological assessment or report for CGW18, that submission pays insufficient regard to the time, trouble and expense which might be necessary to obtain it, in circumstances where the Authority had already determined that it would not get new information in this form and had indicated it might make its decision “at any time”: CB 262.
The Minister relied upon ENJ17, essentially submitting that it was on all fours with this case in relation to the getting of new information, and for essentially the same reasons relied upon by the Federal Court in ENJ17, this Court ought to find no unreasonableness in the Authority not getting information by way of a further psychological assessment or report for CGW18. It is not to be doubted that judgements of the Federal Court which are on point, not distinguishable and not plainly wrong are binding on this Court, whether obiter or otherwise: Minister for Immigration and Multicultural and Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; CEPU (Western Australian Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [51]-[55] per Judge Lucev.
This case is distinguishable from ENJ17. In ENJ17 it was said that ENJ17 had not told the Authority of the particular nature of the information sought to be provided: ENJ17 at [65] per White J. Here the Authority knew precisely what type of information was being sought to be provided by CGW18: the Authority described it correctly in its 4 September 2020 response as “a psychologist’s assessment of the applicant’s [CGW18’s] mental state”: CB 262. In EJN17 it was said that ENJ17 had not told the Authority of the steps that were being taken to obtain the information and the time it would take for that information to be provided: ENJ17 at [65] per White J. Here CGW18 had asked the Authority for 10 days (from 3 September 2020) in which to provide the psychologist’s report and so there was a timeframe within which that report was to be provided to the Authority. And whilst the Authority had not been informed of the steps which might be taken by CGW18 to obtain the report, it would not take much imagination to infer that those steps might involve the making of an appointment with a psychologist, the preparation of the psychologist’s report and its provision to CGW18, and the provision of it by CGW18 to the Authority. CGW18 was thus indicating that the psychologist’s report would be provided to the Authority by 13 September 2020, that is, less than six weeks from the delivery of judgment in CGW18 – Federal Court. In the circumstances, six weeks hardly seems an unreasonable period to organise and provide a psychologist’s report to the Authority. This is a case akin to CAK19 where a refusal by the Authority to allow a further 11 days for the provision of a professional report after a period of very significant delay caused, as here, by reviews and appeals, was described, pejoratively, as “truly remarkable”: CAK19 at [23] per Judge Riethmuller.
Reliance was also placed by the Minister upon the Authority’s statement in its 4 September 2020 response to CGW18’s lawyers that CGW18 had “not explained what you consider the relevance of this would be”: CB 263. It is difficult to understand why the Authority would need to have the relevance of the psychologist’s report explained. That relevance ought, to adopt the words of CGW18’s Counsel, to have been “blindingly obvious” to the Authority: Transcript, p 8. That is particularly so in circumstances where:
(a)in the Delegate’s Decision under the heading “Applicant’s mental health”: CB 200 (emphasis in original):
(i)the ASeTTS Report is referred to, and the presenting symptoms “relating to trauma and depression” are noted: CB 200;
(ii)country information in relation to psychiatric, mental health and community mental health facilities are noted at some length: CB 200-202; and
(iii)consideration is given to whether or not CGW18’s mental health issues meet the criteria for complementary protection: CB 202,
(b)in the First Authority Decision under the heading “Mental Health & Trauma”: CB 228, the Authority noted that the ASeTTS Report had been prepared for the purposes of justifying CGW18 giving her account to the Delegate separately to her husband: CB 228 at [12], but nevertheless observed that:
(i)the Authority had considered, but given little weight to, the narrative account of events appearing in the ASeTTS Report: CB 228-229 at [13];
(ii)drawn no negative inferences concerning CGW18’s reliability or credibility having regard to “slight differences” between earlier accounts of events and the brief account in the ASeTTS Report: CB 228-229 at [13]; and
(iii)it had had regard to the sections of the ASeTTS Report indicating that CGW18 “may suffer from psychological vulnerabilities”: CB 228-229 at [13]; and
(c)the Federal Court in CGW18 – Federal Court at [69] per Stewart J made, albeit obiter, observations about how prolonging disclosure of sexual assault (here, the husband had not been told) “increase[s] [the] vulnerability of sexual assault survivors to a range of adverse health outcomes”,
and in those circumstances the Court is not satisfied that there is an intelligible justification for the Authority’s refusal to allow additional time to provide a further psychological report, and certainly not one based on a failure by CGW18 to explain the relevance of a further psychologist’s report.
In all the above circumstances the Court considers that the Second Authority Decision with respect to its refusal to allow further time for the submission of new information by way of a psychologist’s report was plainly unjust and lacked an intelligible justification, and therefore constituted jurisdictional error.
For the foregoing reasons, ground 2 is made out and establishes jurisdictional error in the Second Authority Decision.
Ground 3A
Ground 3A is as follows:
3A.The decision of the IAA of 24 September 2020 affirming the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction by asking itself the wrong statutory question.
Particulars
3A.1At [37] the IAA reasoned that it was ’not satisfied on the material that the applicant’s fear of social stigma, manifesting in a reluctance to seek medical (including psychological) treatment, would result in suicide, another form of self-harm or PTSD in particular’, whereas the correct test was whether there was a ‘well-founded fear’ which involved a ‘real risk’ test.
CGW18’s Submissions
In relation to ground 3A CGW18’s submissions were as follows:
(a)ground 3A can be put very succinctly: in reasoning that the psychological material did not manifest a reluctance in CGW18 to seek treatment such that it “would result in suicide, another form of self-harm or PTSD”, the Authority misconstrued or misapplied the statutory test, and constructively failed to exercise jurisdiction; and
(b)the statutory test involves asking whether there is a “real chance” or a “real risk”. To require the relative certainty of a question in terms of “would” involves far too high a threshold.
Minister’s Submissions
In relation to ground 3A the Minister’s Submissions were as follows:
(a)CGW18’s assertion takes a narrow view of the reasoning at CB 308 at [37] of the Second Authority Decision. It is well settled that the reasons of an administrative decision-maker such as the Authority should not be scrutinised “minutely and finely with an eye keenly attuned to the perception of error”: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352; (2017) 347 ALR 173 at [45] per Griffiths, White and Bromwich JJ, quoting Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow J;
(b)the Authority clearly identified the relevant test at CB 303 at [14], and methodically considered CGW18’s claims by reference to this test;
(c)the Authority considered CGW18’s submission that she was unlikely to access medical assistance because of her fear of social stigma, and that without such treatment she was at a risk of suicide, other forms of self-harm or PTSD: CB 308 at [37]. The Authority noted that there was no evidence as to CGW18’s current psychological state, and that the 2017 letter from ASeTTS: CB 172-174, did not make any reference to CGW18 being at risk of self-harm or suicide, and did not diagnose her with PTSD specifically: CB 308 at [37]. The Authority concluded that on the material before it, it was not satisfied that CGW18’s fear of social stigma would result in suicide, another form of self-harm or PTSD in particular: CB 308 at [37];
(d)further, after considering other matters, the Authority concluded at CB 311 at [50] that CGW18 did not have a well-founded fear of persecution within the meaning of s 5J of the Migration Act. This was the Authority’s conclusion applying the relevant test it had set out at CB 303 at [14]; and
(e)no jurisdictional error arises from the Authority’s reasoning at CB 308 at [37] having regard to the Second Authority Decision as whole.
Consideration - Ground 3A
At CB 303 at [14] of the Second Authority Decision the Authority does refer to the “real chance” test, and it can therefore be assumed that the Authority knew the correct test to be applied. That, however, does not answer the question as to whether the relevant test was, in fact, applied.
At CB 308 at [37] the Authority set out its acceptance of some of CGW18’s claims, and the submissions made on her behalf, before concluding as follows:
I am not satisfied on the material before me that the applicant’s fear of social stigma, manifesting in a reluctance to seek medical (including psychological) treatment, would result in suicide, another form of self-harm or PTSD in particular.
In the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; (1989) 63 ALJR 561; (1989) 87 ALR 412 (“Chan”); CLR at 429 per McHugh J it was said that:
The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur. As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted. Obviously, a farfetched possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol.
The importance of Chan was recognised in Minister for Immigration and Ethnic Affairs v Guo and Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 572 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ where the High Court said that:
… A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution.
In SZGTS v Minister for Immigration & Citizenship [2009] FCA 1353; (2009) 112 ALD 443 (“SZGTS”) the Federal Court dealt with an appeal from a decision of the then Federal Magistrates Court which alleged that the Federal Magistrates Court had misconstrued the criterion for the grant of a protection visa in s 36(2)(a) of the Migration Act and thereby constructively failed to exercise its discretion: SZGTS at [14] per Tracey J.
The findings in SZGTS included the fact that the Tribunal considered that there was “no reason to believe” that the applicant in that case would face harm if she were to return to China: SZGTS at [20] per Tracey J. This is language which is analogous to the language used in SRBB where the Tribunal decision had said that it was “extremely unlikely” that the government of the applicant’s home country might be aware of his application for a protection visa: SRBB at [31] per Mansfield J.
In SZGTS the Federal Court concluded as follows at [25]-[26] per Tracey J:
25When read in context, these findings amount to predictions which flow logically from the conclusion that she was not a dedicated and committed Falun Gong practitioner while in Australia: she had embraced the movement only for the purpose of assisting her application for a protection visa. The first two predictions relate only, indirectly, to the question of whether the appellant had an objectively well-founded fear of persecution should she return to China. In substance, the Tribunal reasoned that, because the appellant was not a committed Falun Gong practitioner, she would not practise in China and that her failure to do so would be the result of that lack of commitment, not any fear of the consequences. For these reasons, it was not satisfied that there was a “real chance” that the appellant “would suffer harm in China because of involvement with Falun Gong … in … Australia …”.
26The third finding deals directly with the question of whether the appellant had a “well-founded fear” of persecution by reason of her activities in Australia. In this context, the use of the word “would” is open to the criticism that it is suggestive of the application of a “balance of probabilities” test. It is, however, possible to reconcile the use of the word with the application of the “real chance” test. Having regard to the reasons as a whole and, in particular, to the ultimate findings which follow a few lines later, I am not persuaded that the Tribunal applied the wrong test.
In circumstances where the Second Authority Decision is not to be read searching for error, that is narrowly, and ought to be construed beneficially, and is otherwise comprehensive and thorough, the Court must be careful in its consideration as to whether the infelicitous use (if that be what it is) of a single word – “would” – in a single sentence in the Tribunal Decision at CB 308 at [37] indicates that the Tribunal did not properly apply the “real risk” test.
As indicated above, it is plain that the Tribunal understood the test. Mere recitation of the correct test is not however a substitute for its proper application no matter how lengthy and detailed the Tribunal Decision may be: SZGTS at [23] per Tracey J; SRBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1387; (2003) 79 ALD 723 at [28]-[30] per Mansfield J. Problematically, the test was applied with respect to the material before the Authority, namely the ASeTTS Letter, and to that extent, the finding of non-satisfaction is irredeemably infected by the nature of the jurisdictional error found in respect of ground 2 above. That fact, together with the obvious misstatement of the test by the Authority, is sufficient to establish jurisdictional error.
In the circumstances, the Court is of the view that ground 3A is made out, and therefore establishes jurisdictional error in the Second Authority Decision.
Conclusion and Orders
The Court has concluded that Second Authority Decision is affected by jurisdictional error as alleged in grounds 2 and 3A of the Amended Judicial Review Application, and it follows that prerogative relief ought to be granted by way of a writ of certiorari quashing the Second Authority Decision, and a writ of mandamus requiring the Authority to re-determine the matter according to law.
There will also be an order that the name of the Minister be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 14 September 2022
1
47
0