CHV16 v Minister for Immigration
[2020] FCCA 202
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHV16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 202 |
| Catchwords: MIGRATION – Application to review decision of Immigration Assessment Authority – whether the Authority failed to apply s.473DD of the Act lawfully or failed to consider material in a manner constituting jurisdictional error. |
| Legislation: Acts Interpretation Act 1901 (Cth) s.25D |
| Cases cited: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 |
| Applicant: | CHV16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2265 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 2 October 2018 |
| Date of Last Submission: | 16 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 25 July 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2265 of 2016
| CHV16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 25 July 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a safe haven enterprise visa (SHEV).
The Applicant, a citizen of Sri Lanka, arrived in Australia in September 2012. On 17 January 2013 he participated in an entry interview. The only evidence before the court of what occurred in that interview is the signed written record of interview in the Courtbook.
On 3 February 2016 the Applicant applied for a SHEV. He provided an earlier statutory declaration, dated 30 August 2013 (sic), in support of his visa application together with a supplementary statement dated 27 January 2016. He was interviewed by a delegate of the First Respondent in April 2016.
As discussed further below, the Applicant claimed to fear harm if he returned to Sri Lanka on the basis of his political opinion based on his involvement with the Sri Lankan Muslim Congress (SLMC) political party, his Muslim religion, Tamil ethnicity and because he departed Sri Lanka illegally and claimed asylum in Australia. On 7 June 2016 a delegate of the First Respondent refused to grant the Applicant a visa.
On 9 June 2016 the Applicant’s matter was referred to the Authority.
On 30 June 2016 the Applicant’s migration agent provided the Authority with a statutory declaration sworn by the Applicant on 26 June 2016 and country information described as “relevant to his claims”. According to the agent, the statutory declaration indicated the Applicant’s reasons for not agreeing with the Department’s decision. The agent did not otherwise make submissions. He sought an extension of seven days to provide a written submission on behalf of the Applicant. On 8 July 2016, the Authority notified the agent that, in the absence of any reasons why an extension of time was needed, it did not agree to such an extension, but that it did not anticipate making a decision before 13 July 2016.
There is no evidence or suggestion that the agent made any subsequent written submission to the Authority.
The Authority’s Decision
In its reasons of 25 July 2016 the Authority stated that it had regard to the material referred by the Secretary of the Department under s.473CB of the Migration Act 1958 (Cth) (the Act). It recorded that what it described as “[f]urther submissions and new information” were provided to it in respect of the Applicant’s claims on 30 June 2016 and observed that a statutory declaration had been provided by the Applicant “that contains no new claims, but responds to concerns expressed by the delegate”. The Authority was satisfied that the statutory declaration was not new information and stated that it had considered the document in its assessment of the application.
In relation to the country information provided, the Authority found that “no submissions were made on why [it] should have regard to the information under s.473DD” of the Act. It stated that it was not satisfied that there were exceptional circumstances to justify considering the country information (which it listed in a footnote) and that it had not been considered.
The Authority summarised the Applicant’s claims. It recorded that he claimed that he was a Tamil Muslim who became involved with the SLMC political party in 2009. His uncle (who was named) had contested several local and provincial council elections as an SLMC candidate, although the Applicant did not remember the date, month, year or type of elections contested. According to the Authority, the Applicant claimed that his uncle had been asked to join other government parties, but had refused.
The Authority recorded that the Applicant claimed that he acted as “the main secretary for his uncle’s campaign during these election campaigns” between 2009 and 2011 and that he was involved in arranging political meetings (or public talks), posting posters, handing out pamphlets and canvassing for votes along with other SLMC supporters, as well as liaising with campaigns for other districts. His uncle was not elected to any position.
The Applicant claimed that one month prior to a 2011 local election in which his uncle was an SLMC candidate, he was “again involved in election related activities” and accompanied his uncle and other SLMC supporters in the district canvassing for votes. He claimed that a day before the election, while he was walking home from his uncle’s house, he was forcibly taken away in a white van by six or seven Sinhala-speaking men who were armed and wearing civilian clothing.
The Applicant claimed that he was severely beaten, tortured, injured, threatened and told not to support the SLMC, but instead to support the ruling political party (the People’s Alliance). He was dropped off close to his home the next day. He claimed that thereafter he went into hiding at a different uncle’s house until August 2012 (when he came to Australia). He claimed that he later learnt that Sinhalese men had gone to his family home several times looking for him.
The Applicant claimed to believe that he was at risk of being seriously harmed by the Sinhalese men who had abducted him because he did not wish to support or get involved with the ruling party. He believed they may have been police officers, that they were members of the ruling party and connected to the government. He claimed he would likely continue to support the SLMC if he returned to Sri Lanka and hence that he would be at risk of being harmed by these men, especially during election periods.
The Applicant claimed that his brother told him that at the time of the Sri Lankan election in late 2014 or early 2015, members of the governing political party had asked the SLMC about his whereabouts and had been informed that he was not in the country.
The Applicant also claimed to believe that he was at risk of being jailed for a lengthy period as he had travelled illegally by boat from Sri Lanka and had claimed asylum in Australia.
In addition, the Authority recorded that at the interview with the delegate, the Applicant claimed to fear harm on the basis that the pro-Buddhist group Bodu Bala Sena (the BBS) had harmed Muslims and damaged mosques and houses in Sri Lanka.
The Authority stated that in his interview with the delegate the Applicant had been given an opportunity to expand on his political claims. It found that he had given a plausible account of how he came to be involved in politics and of “his activities for the SLMC and his uncle’s campaign both during and outside election cycles”. It accepted that this indicated that he was involved “on some level” with his uncle’s campaigns for the SLMC.
However the Authority found that the Applicant’s knowledge of the SLMC was general in nature and that he had been unable to name with specificity the current leader of the party or candidate in his home area, although his evidence in relation to the SLMC’s current presence in Sri Lanka and his local area was broadly consistent with country information.
Based on the fact that the Applicant spoke clearly and in general terms about the SLMC, the Authority was satisfied that he had an “interest” in the party and that he “likely has had some involvement with the party as a supporter in the past”. However it found aspects of his answers were “surprisingly general”, given he claimed to have been the “main secretary” for a party candidate for two years and to have been regularly involved in promotions, meetings and campaigning.
The Authority found that the Applicant had given a generally consistent account of his kidnapping and serious mistreatment and harm the day before the October 2011 election. He had also provided supporting medical evidence and what was described by the Authority as a “statutory declaration, which claims to be from his uncle” corroborating his claims about earlier threats and the 2011 abduction. It accepted that while the Applicant had not reported the 2011 incident to the police, he may have seen “no utility or safety” in seeking their protection. It drew no adverse inference from this.
On the evidence before it the Authority was “prepared to accept” that the claimed October 2011 incident occurred.
However the Authority found that the Applicant had given inconsistent written and oral evidence (which it detailed) about whether the perpetrators of the 2011 incident continued to seek him out thereafter by visiting his parents’ home. It took into account, but ultimately did not accept, the reasons proffered by the Applicant “[i]n submissions” explaining the acknowledged discrepancy in his evidence (including claims in the Applicant’s statutory declaration about the effect of his psychological state on his oral evidence, a claimed misunderstanding of a question at the interview and difficulties caused by the accent of and words used by the interpreter at the interview). The Authority observed that the Applicant had not raised any issues with the delegate about the interpreter and that his evidence “sounded free and clear”. It was of the view that interpreting issues had been clarified and resolved satisfactorily.
The Authority did not accept that the claimed perpetrators visited the Applicant’s parents after the 2011 election while he claimed he was living elsewhere. It stated that it had also “weighed this inconsistency when assessing the overall credibility of his claims”.
The Authority also expressed concern about the Applicant’s claim he was the only member of the campaign targeted. It recorded his explanation that the people in question did not target candidates as they were too high profile, that they would only target “specific people” and that the other people were volunteers, whereas he was “a prime target as a main secretary”.
In this context, the Authority had regard to the fact that in the Applicant’s original statement supporting his application (which, it is not disputed, is a reference to his statutory declaration of 30 August 2013) he had not indicated that he held “any specific role” in supporting his uncle, but instead had listed activities he undertook to support his uncle. “In addition” the Authority was of the view that, rather than suggesting that the Applicant had an ongoing role with his uncle’s campaign, his written statement indicated that a month before the 2011 election his uncle decided to contest and the Applicant once again “got involved” in election-related activities. This suggested to the Authority that the Applicant’s “role was not ongoing”, but an opportunity that presented whenever his uncle was involved in an election. It stated that it was “only” at the interview with the delegate that the Applicant had expanded on his role, “indicating that he was the campaign secretary and he fulfilled that role both during and outside election periods”.
The Authority found, on the basis of the Applicant’s “only general level knowledge of the SLMC and the inconsistent evidence about his level and length of involvement with the SLMC” and its other concerns about the credibility of the Applicant’s account given his inconsistent evidence about his parents being approached in 2011-2012, that the Applicant had “embellished or exaggerated his role in his uncle’s campaign”. The Authority accepted that the Applicant was “a volunteer or supporter”, but not that he had a “high level role” in his uncle’s campaign. It rejected his claim that he was a high profile target and his explanation for why only he was targeted. The Authority stated that “[i]nstead, the attack would appear to have been an instance of opportunistic election violence … [on] a low profile SLMC supporter”. It observed that this would also explain why no further approaches or threats were made to the Applicant after the 2011 election.
The Authority stated that it had not accepted that the ruling party continued to have any interest in the Applicant after the 2011 election. It similarly found that his claim that in 2014 the ruling party continued to have an interest in him (despite the fact that neither he nor his uncle was involved in those elections) was implausible. It was of the view that the Applicant was “again” seeking to exaggerate his role with the SLMC to bolster his claims. The Authority rejected this claim.
The Authority found that while on their own each of the identified inconsistencies and discrepancies in the Applicant’s evidence “may have been explainable or could have been overlooked”, viewed “in concert” they suggested to it that aspects of his account were not credible and had been embellished or exaggerated to further his protection claims.
On the “totality” of information before it, the Authority accepted some aspects of the Applicant’s account as genuine, including that he had been an active supporter for the SLMC in the context of his uncle’s electoral ambitions, that he held “a genuine political support for the party” and that he “may have been” the victim of electoral violence (including being detained, beaten and threatened) during the 2011 election. It did not accept that this was because the Applicant played any “prominent role” in the party or held any political opinion of significance. Rather, it found that it was the result of “cowardly and opportunistic election violence” against an “ordinary supporter” of the SLMC.
However, in light of its earlier findings as to the absence of ongoing interest in the Applicant after 2011 (or during the 2014 election) on the part of the perpetrators of the 2011 attack, the Authority did not accept that “any person or group” had an ongoing interest in the Applicant because of his political history with the SLMC, that he was on any watch list or that any group had any interest in monitoring or harming him for reasons of his SLMC support or because of his role in past elections for the SLMC and in support of his uncle.
In looking to the reasonably foreseeable, future the Authority had regard to the fact that the SLMC occupied a “genuine position” in the then current Sri Lanka government and that the country information did not suggest that it was anti-government or a target for government animosity. It also found that there was no information suggesting that ordinary SLMC supporters were at risk of harm on the basis of their political opinion or because of the party’s religious connection.
The Authority was prepared to accept that the Applicant may be an active political supporter of the SLMC and that he may be involved in elections in the future. However, having regard to cited country information and its view that the Applicant had “no profile that would lead him to be targeted” and that any political profile he may have had would have been reduced further now that his uncle was no longer an active candidate in politics, the Authority found that there was a remote chance, but not a real chance, that the Applicant may be harmed in electoral violence in the future if he chose to again become involved in election politics.
The Authority concluded that “[v]iewed altogether” the country information did not support the view that there was a real chance of the Applicant being harmed on the basis of his political opinion, past or future support for the SLMC, his potential future involvement in politics and/or elections for the SLMC, any profile he had as a result of his uncle’s involvement in the SLMC or on any other basis arising out of these claims. The Authority found that there was not a real chance of the Applicant being harmed on this basis if he returned to Sri Lanka in the reasonably foreseeable future.
Having regard to cited country information and the fact the Applicant said he not been personally impacted by past violence by the BBS, the Authority did not accept that he had any relevant risk of harm arising in respect of his religion from the BBS or any other groups that may show enmity towards Muslims in Sri Lanka.
The Authority observed that the Applicant had not claimed to have any connection, association or involvement with the Liberation Tigers of Tamil Eelam (the LTTE), but had claimed that he had friends who helped the LTTE and that police and intelligence officers had asked him whether his friends had been involved with the LTTE “and vice versa”. It was satisfied on the Applicant’s evidence that he had no actual or imputed profile of connection to the LTTE and that the authorities did not have any interest in him on this basis. It found that there was not a real chance of the Applicant being seriously harmed on the basis of any imputed LTTE connection.
In addition, in light of cited country information, the Authority was not satisfied that the Applicant faced a real chance of harm now, or in the reasonably foreseeable future, on the basis of his Tamil ethnicity or race.
Nor did the Authority accept that the Applicant had a relevant risk of harm as a failed asylum seeker or for having illegally departed Sri Lanka. In reaching this conclusion, the Authority accepted that there had been reports of returnees being detained, interrogated and monitored, but found that the weight of the country information before it indicated that failed asylum seekers, including Tamil failed asylum seekers, were not generally at risk of harm on return to Sri Lanka. The Authority reiterated that it accepted that the Applicant had been a supporter of the SLMC, but did not accept that he had any adverse profile from that support or that he was on a watch list or that there was any reason he would be monitored or targeted on return. Given his “low political profile” and the absence of any criminal or LTTE connection, the Authority was satisfied that the Applicant would not face a real chance of harm as an asylum seeker or from any actual or imputed political opinion that could arise from having sought asylum, including as a Tamil, a Muslim, “his support for the SLMC” or for any other aspect of his profile.
The Authority accepted that the Applicant may face consequences for having left Sri Lanka in breach of the Immigrants and Emigrants Act 1949 (the I & E Act) but, for reasons which it gave, was satisfied that any process (including being detained on remand in prison) or penalty he may face because of his illegal departure would not constitute serious harm amounting to persecution for the purposes of the Act. It found that there was not a real chance that he would face any term of imprisonment if convicted, given that he had “no profile that would elevate the penalty he may face”. It was also satisfied the I & E Act was a law of general application and was not discriminatory in terms or application.
The Authority considered the complementary protection criterion in light of its earlier findings in relation to ethnicity, religion, political opinion, support for the SLMC and the failed asylum seeker claims. For the same reasons, it was satisfied that there was not a real risk the Applicant would face significant harm upon return to Sri Lanka for these reasons.
In relation to the Applicant’s illegal departure from Sri Lanka, the Authority considered the prospect that he may be remanded in custody in poor prison conditions. It did not accept that the fact the Applicant had “supported” the SLMC gave him any adverse profile that would result in a longer detention, custodial sentence or additional interrogation. It found the likelihood of detention in prison to be remote, but, in any event, concluded that there was no real risk to the Applicant of arbitrary deprivation of life or torture and no intention to inflict pain or suffering or extreme humiliation. It found that the poor prison conditions to which the Applicant may be subjected would not amount to significant harm as defined under the Act. It was not satisfied that, individually or cumulatively, any processes or penalties the Applicant may encounter under the I & E Act would constitute significant harm.
The Authority affirmed the decision not to grant the Applicant a protection visa.
The Applicant sought review by application filed in this court on 22 August 2016. He now relies on an amended application filed on 2 October 2018. There are two grounds in the amended application.
Section 473DD issue
Ground 1 in the amended application is as follows:
(1) The IAA reviewer erred in failing to lawfully apply s.473DD of the Migration Act.
Particulars:
(a)Failure to recognise that submissions had been made as to why articles, including one by Ben Doherty, entitled “Tamils stranded in Indonesia face ‘probable torture’ if returned to Sri Lanka”, Guardian, 23 June 2016, should be considered by the IAA.
(b)Failure, in applying s.473DD of the Migration Act in considering the relevance to the Applicant’s claims of an article by Ben Doherty, entitled “Tamils stranded in Indonesia face ‘probable torture’ if returned to Sri Lanka”, Guardian, 23 June 2016, in circumstances where that article was published after the referral to the IAA.
Section 473DD of the Act is 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 entirety of the Authority’s stated reasons in relation to the new information provided to it was as follows:
4. Further submissions and new information were provided to the IAA in respect of the applicants' claims on 30 June 2016. A statutory declaration has been provided by the applicant that contains no new claims, but responds to concerns expressed by the delegate. I am satisfied that it is not new information and I have considered the document in my assessment of the application.
5. In terms of the country information provided, no submissions were made on why the IAA should have regard to the information under s.473DD. I am not satisfied that there are exceptional circumstances to justify considering the information and it has not been considered.
(footnote omitted)
In support of ground 1, the Applicant pointed out that the Doherty article referred to in the particulars was published on 23 June 2016. It post-dated the decision of the delegate of 7 June 2016 and the referral to the Authority. The article (a copy of which was provided to the Authority by the Applicant) referred to the claims of a Tamil from Sri Lanka (who had come to Australia in 2010 and had been recognised as a refugee) that he and others had previously been jailed in 2005 in Sri Lanka and tortured because of links to the LTTE. He claimed that two people who were on a boat which had recently arrived on a beach in Indonesia had been in jail with him and would face further torture if they were to return to Sri Lanka.
Relevantly, the Doherty article also stated generally that “[t]orture by Sri Lanka’s extensive state security apparatus is well-documented”. It referred to reports from Amnesty International, Human Rights Watch and Freedom from Torture (that is, non-government sources) in relation to the abuse of people, mainly Tamils believed to have links to the LTTE, both during and after Sri Lanka’s civil war. It also referred to the fact that the United Nations (UN) Special Rapporteur on Torture had stated in May 2016 that torture “remained common practice” by Sri Lanka’s security officials and that it was inflicted in the course of both regular criminal and national security related investigations. The article also claimed that several reports had identified asylum seekers returned to Sri Lanka by Australia who had been imprisoned and tortured.
The Authority listed full citations for the articles provided to it by the Applicant in a footnote at the end of paragraph 5 of its reasons. The citation for the Doherty article in the Guardian included its publication date of 23 June 2016.
The Applicant pointed out that, in contrast to the earlier (2014-2015) country information he provided to the Authority, as the Doherty article was published after the date of the delegate’s decision, it could not have been provided to the delegate before the decision was made under s.65 of the Act. It was contended that in these circumstances there could be no suggestion that the Authority based its conclusion that it was not satisfied that s.473DD was met in relation to this article on a view that the Applicant had not satisfied it under s.473DD(b)(i) that the Doherty article was not and could not have been provided to the Minister before the delegate’s decision (cf. AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [16]).
The Applicant contended that in considering whether it was satisfied that there were exceptional circumstances to justify considering the new country information (under s.473DD(a)), the Authority had failed to recognise that submissions had been made to it in the Applicant’s statutory declaration as to why the Authority should have regard to the new information, including the Doherty article, under s.473DD of the Act. It was also submitted that the Authority considered only the asserted (incorrect) absence of any such submissions in finding that it was not satisfied that there were exceptional circumstances to justify considering the new information and that it had not considered whether there was anything about the new information (in particular the Doherty article), or the Applicant’s circumstances, relevant to whether there were exceptional circumstances such as to justify “considering” the new information.
It was submitted that it was clear that contrary to the Authority’s statement at paragraph 5 of its reasons for decision (and the First Respondent’s submission in these proceedings) that “no submissions were made on why [it] should have regard to the information under s.473DD” of the Act, the Applicant had, in his statutory declaration of 26 June 2016, made submissions on this issue, to the effect that regard should be had to the information which contradicted the delegate’s conclusions.
In particular, in the second paragraph number 9 in his statutory declaration the Applicant had stated:
Although all government-based and government supported reports say that all returnees are treated according to the standard procedures irrespective of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport, it is not the real truth. Please refer to the attached information from various sources which cannot be ignored or neglected.
(emphasis added)
In addition, in the first paragraph numbered 9 in his statutory declaration the Applicant had cited the attached country information as “self-explanatory” in claiming:
In addition to the Tamil ethnicity, my religion will also be another factor that I would be subject to torture if returned to Sri Lanka now. It is our understanding that the Sri Lankan Government prosecutes those who have left the country illegally and claimed refugee status in Australia, criticising the government and its actions. Please refer to the attached information which is self-explanatory.
The Applicant submitted that it was apparent from these explanations that the documents attached to the statutory declaration (including, relevantly, the Doherty article) were provided in support of his claim that advice from official sources relied on by the delegate was incorrect and that Tamil Muslim illegal departees and failed asylum seekers were currently at risk of torture and persecution upon return to Sri Lanka.
In particular, the Applicant contended that it was clear that the Doherty article was intended to address the delegate’s conclusions, including the conclusion that there were standardised procedures in place for identity and security checks at the airport for all returnees; the fact that the delegate had referred to country information suggesting that detainees were not subject to mistreatment during processing at the airport; and the fact that on the cited country information, the delegate was not satisfied that there was a real chance or risk the Applicant would face serious or significant harm (including torture) as a failed asylum seeker or returnee to Sri Lanka.
The information in the Doherty article was said to be of potential material relevance to the Authority’s decision, in particular to the issue of the real chance of serious harm to returnees, in relation to which the Authority had suggested at paragraph 49 that “there have been reports of returnees being detained, interrogated and monitored on return”, but had found that “the weight of country information before me indicates that failed asylum seekers, including Tamil failed asylum seekers, are not generally at a risk of harm on return to Sri Lanka”. Given its view that the Applicant had a low political profile and no criminal or LTTE connection, the Authority was satisfied that he would not face a real chance of harm on the basis that he is an asylum seeker, or from any actual or imputed political opinion that could arise from having sought asylum, including as a Tamil, a Muslim, his support for the SLMC or any other aspect of his profile. The Authority was not satisfied that there was a real chance that the Applicant would face serious harm on return on this basis.
The Applicant submitted that there had been a failure by the Authority to apply s.473DD in a lawful manner in circumstances where the Doherty article had at least the potential to undermine the Authority’s findings at paragraph 49 of its reasons and also its findings that returnees were treated under a standard procedure and that while prison conditions were poor due to a lack of resources, the Applicant would not face serious or significant harm (including torture) for being a returned asylum seeker, illegal departee, or returned Tamil failed asylum seeker.
The Applicant observed that paragraphs (a) and (b) in s.473DD were cumulative (see AQU17 at [13]), although they could overlap (see BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 at [9]) and that paragraph (a) did not have to be considered before paragraph (b).
The Applicant also referred to the fact that in AQU17 at [14] the Full Court of the Federal Court had pointed out that what will amount to exceptional circumstances “is inherently incapable of exhaustive statement”, that each case must be treated on its merit and that “the matters for the Authority to take into consideration must necessarily vary from case to case”. The Full Court also indicated that the factors referred to in paragraph s.473DD(b) may assist the Authority in deciding whether it was satisfied that exceptional circumstances exist, but whether those factors have bearing on such decisions “will depend on the particular case”. It was observed that in this case the Authority had made no reference to s.473DD(b) factors notwithstanding the date of the Doherty article was such that it could not have been provided to the Minister before the delegate’s decision.
In any event, the Applicant pointed out that, in contrast to s.473DD(b), under s.473DD(a) the Applicant did not have to satisfy the Authority that exceptional circumstances existed. Paragraph (a) simply requires that the Authority “is satisfied” in that respect. The Applicant contended that the Authority could be so satisfied on the basis of its own internal thought-processes and that an applicant was not under an obligation to make submissions in this respect (although he had in fact done so in this case).
The Applicant also submitted that unless the Authority considered the reasons advanced as to why the Doherty article was being cited (and in that context the relevance of the new information to his claims) it could not lawfully decide whether the requirements of s.473DD(a) applied; that is, whether there were exceptional circumstances to justify considering the information (see AQU17 at [15] - [16]).
In support of the contention that the Authority was obliged to give reasons in relation to s.473DD of the Act, the Applicant also pointed to s.473EA of the Act (which provides that if the Authority makes a decision it must make a written statement that sets out its decision, the reasons for the decision and the day and time the statement was made) and to s.25D of Acts Interpretation Act 1901 (Cth), which was said to oblige the Authority to set out, in its reasons for decision, the findings on material questions of fact and to refer to the evidence or material on which those findings were based.
The Applicant submitted that in this case, as in the circumstances considered in AQU17 at [15]:
… the question for the Authority was what, if anything, took the circumstances of the [Applicant’s] case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the [Applicant’s] circumstances which meant that there were exceptional circumstances justifying consideration of the new information …
(emphasis added)
The First Respondent pointed out that the requirements of s.473DD were cumulative, that an applicant had to satisfy the Authority of one of the matters in paragraph (b), and that even if that requirement was met, the Authority still needed to be satisfied that there were exceptional circumstances to justify considering the information within paragraph (a) of s.473DD of the Act.
It was suggested that what was in issue in this case was whether there was any content in the Applicant’s statutory declaration that it was necessary for the Authority to refer to in performing its function in considering whether the requirements of s.473DD were met in relation to the country information provided to it.
It was said to be plainly correct for the Authority to have observed that in the agent’s “submissions” provided on 30 June 2016 (that is, in the agent’s email) the Applicant made no submissions on why the Authority should have regard to the new country information under s.473DD of the Act.
It was conceded that in his statutory declaration of 26 June 2016 the Applicant did appear to have made some references to the “attached information” which, it was acknowledged, was presumably the country information accompanying the declaration. However it was submitted that nowhere in his statutory declaration had the Applicant explained why the country information was not and could not have been provided to the delegate or whether it was credible personal information that, if known, may have affected consideration of his claims (see s.473DD(b)); and nor had he referred to any exceptional circumstances that would justify the Authority considering the information (within s.473DD(a) of the Act).
The First Respondent acknowledged that it may be accepted that the Authority considered the Doherty article and the other articles to have been potentially relevant, having regard to the fact that, by definition, new information is information that the Authority “considers may be relevant” (see s.473DC(1)(b) of the Act). However it was contended that the Applicant’s submission that unless the Authority understood the reason advanced as to why the article was being cited it could not lawfully decide whether the requirements of the s.473DD(a) applied, should not be accepted. Such a contention was said to distract from the structure and language of s.473DD and the requirement that the Authority consider whether exceptional circumstances existed to justify consideration of the information.
The First Respondent acknowledged that if the Authority was not satisfied that there were exceptional circumstances within s.473DD(a), one way that an error could be discerned in such a finding would be for an applicant on judicial review to point to some circumstance in the case and to submit that it was exceptional, that the Authority had not referred to it and that therefore the Authority was in error. It was suggested that this was, essentially, how the Applicant put his argument. However it was submitted that in this case the court would not be satisfied that the Authority had failed to apply s.473DD properly in relation to the Doherty article.
It was pointed out that whether exceptional circumstances existed involved consideration of whether the circumstances were “such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon” (see R v Kelly [2000] QB 198 at [51], cited by White J in BVZ16 at [40]).
The First Respondent submitted that, even if part of the Applicant’s statutory declaration was taken to constitute an explanation in relation to why the new information may have affected the consideration of his claims within s.473DD(b)(ii) of the Act, there was still no explanation provided in relation to the existence of exceptional circumstances.
The First Respondent cited AQU17 at [13] in support of the proposition that the Applicant “needed to satisfy s.473DD(a)” in order to permit the Authority to consider the information, although counsel for the First Respondent clarified in oral submissions that it was not being contended that the Applicant bore an onus under s.473DD(a) of the Act. However it was submitted that it was not irrelevant for the Authority to take into account the fact that no explanation had been provided by the Applicant in relation to what were exceptional circumstances. It was said to be relevant for the Authority to note that it had not received any assistance from the Applicant in identifying what it was about the new information that made it so exceptional.
It was pointed out that the Applicant had not expressly referred in his statutory declaration to the requirements of the Act or to the need to establish exceptional circumstances. It was submitted that he had done no more than to suggest that the information attached might be different from the information to which the delegate had referred, but that he had not provided any explanation as to the existence of exceptional circumstances. The First Respondent contended that, contrary to the Department’s Practice Direction (which had been sent to the Applicant), the Applicant had given no explanation as to why any new information presented should be considered having regard to s.473DD of the Act.
The First Respondent submitted that the Applicant’s suggestion that the country information he was presenting was different from the information relied on by the delegate or that it would, potentially, present the real truth, was not such as to be capable of amounting to a submission regarding whether there were exceptional circumstances justifying consideration of the new information.
According to the First Respondent, in this case the only circumstances said to have been identified as exceptional were the fact that the Doherty article was dated after the delegate’s decision and that it was presented as new information that may reveal the real truth. It was suggested that the same might be said of any information relating to the merits of a case presented by an applicant before the Authority. It was submitted that, in itself, such potential bearing upon the assessment of the merits of an applicant’s case in his or her favour would be almost “commonplace” and not such as to amount to exceptional circumstances.
Counsel for the First Respondent acknowledged that there could be some overlap between subsections (a) and (b) in s.473DD, but submitted that the Full Court had made it clear in AQU17 that there was no necessity for the Authority to address the matters in paragraph (b) when considering the existence of exceptional circumstances in paragraph (a), because that was not a requirement of the statute. In any event, it was contended that the mere fact that the Doherty article was published after the delegate’s decision was not of itself, and absent any explanation from the Applicant, an exceptional circumstance that justified its consideration under s.473DD(a) (see AQU17 at [14]).
The First Respondent reiterated that the Applicant had not identified any aspect of the information before the Authority that would have been capable of amounting to exceptional circumstances or which, had the Authority taken it into account, might have materially borne upon the Authority’s consideration of whether it was satisfied of the requirement of exceptional circumstances in s.473DD(a) as discussed in AQU17 at [17].
It was submitted that there was simply nothing exceptional about the matters identified by the Applicant in his statutory declaration or in the fact that one of the articles post-dated the delegate’s decision.
In addition, the First Respondent contended that, contrary to any suggestion by the Applicant that the Authority erred in failing to provide reasons for its determination under s.473DD of the Act, the Authority was not required to give such reasons. It was acknowledged that s.473EA(1) required the Authority, if it made a decision on a review, to make a statement that set out its decision and the reasons for the decision and that s.25D of the Acts Interpretation Act applied to decisions of the Authority.
It was also acknowledged that in CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148; [2017] FCAFC 192 the Full Court of the Federal Court had considered it unnecessary to resolve the Minister’s contention that the Authority had no duty to state reasons for being satisfied or not satisfied under s.473DD of the Act (at [49]). However the attention of the court was drawn to BDF17 v Minister for Immigration and Border Protection [2018] FCCA 2095 in which Judge Mercuri had accepted (at [62]) that the Authority had no duty to state reasons for being satisfied or not satisfied under s.473DD of the Act (referring to Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 and to Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1). Judge Mercuri found that s.25D of the Acts Interpretation Act was in substance the same as s.430 of the Act and that to the extent that it had any work to do, it did not impose an obligation on the Authority to give reasons on procedural questions (see BDF17 at [51] and [62]).
It was also pointed out that in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45] Thawley J had considered SZGUR and observed that a “similar position applies with respect to s.473EA of the Act”, in finding (at [50]) that the Authority had no obligation to give reasons in relation to the exercise of its discretion under s.473GB(3)(b) to disclose to a referred applicant any matter contained in a document the subject of a certificate under s.473GB of the Act. His Honour observed that s.473EA did not require that a statement of decision refer to reasons for a procedural decision taken in the course of a review.
In CVS16 v Minister for Immigration and Border Protection [2018] FCA 951, Bromwich J considered whether documents provided to the Authority by an applicant had been overlooked and whether s.473EA(1) of the Act and s.25D of the Acts Interpretation Act required the Authority to give reasons in respect of the discretion conferred by s.473DD. His Honour expressed the view that BCQ16 was correctly decided and relevantly indistinguishable in its application to the point before the court (see CVS16 at [29]). His Honour also stated in CVS16 at [29] to [30]:
29. … Section 473EA(1) is directed to the decision, and reasons for decision, on the review itself, as well as the day and time that statement of reasons is made. Such a precise requirement, at a particular date and time, is inconsistent with procedural decisions along the way needing to be the subject of any record at all, let alone a formal record of the type that the appellant contends is required. That is especially so when the decision in question is as to a discretion to depart from a statutory mandate that otherwise prohibits consideration of such material.
30. There was no obligation on the Authority to give reasons for failing to state its reasons in respect of the discretion in s 473DD, and therefore no jurisdictional error in not doing so …
(emphasis added)
The First Respondent contended that this court was bound by the decision in CVS16 to come to the same conclusion. The approach taken in CVS16 was said to mean that the Authority was not required to give reasons in respect of s.473DD of the Act. This was said to be a further reason why the court should be cautious in discerning jurisdictional error in the Authority’s ultimate decision by reference to the brevity of the Authority’s reasons.
Consideration
As indicated, the Authority listed the citations to the new country information provided by the Applicant in a footnote. It is clear on the face of that footnote that, in contrast to the other new information (from specific dates in 2014 and 2015), the Doherty article was dated 23 June 2016, which was after the 7 June 2016 date of the delegate’s decision.
The Doherty article expressly addressed the extent to which torture was currently used by Sri Lankan authorities, including quoting the statement of the UN Special Rapporteur on Torture in May 2016 that torture remained “common practice” inflicted by Sri Lanka’s security officials in the course of both regular criminal and national security related investigations and was a “routine method of work” by police investigators to obtain confessions, that “both old and new cases of torture continue to be surrounded by total impunity” and that “severe” forms of torture continued to be used (although probably less frequently since the end of the civil war). The Doherty article also claimed that several reports had identified failed asylum seekers returned to Sri Lanka by Australia who had been imprisoned and tortured.
As the Applicant submitted, it is plain having regard to the Applicant’s claims, the submissions in his statutory declaration and the basis for the delegate’s decision, that the provision of the Doherty article to the Authority was intended to respond to the delegate’s conclusions, in particular the conclusions that there were standardised procedures in place for all returnees for identity and security checks at the airport, that country information suggested that detainees were not subject to mistreatment, and that there was no real chance the Applicant would suffer torture on return to Sri Lanka.
While in the form of a statutory declaration, it is apparent that the Applicant himself made a submission to the Authority identifying the potential relevance of the new information to the Authority’s consideration of the situation in Sri Lanka and the likelihood of him suffering harm on return in particular torture. This submission was clearly intended to support of the contention that the Authority should consider the new information (notwithstanding that there was no express reference to s.473DD of the Act or use of the expression “exceptional circumstances” in the Applicant’s statutory declaration).
The Applicant’s statutory declaration of 26 June 2016 commenced:
1. I wish to make this submission to the Immigration Assessment Authority in order to give my reasons as to why I don’t agree with the department decision and my claims that were not duly considered by the department.
In the statutory declaration the Applicant reiterated his fear of harm, relevantly including torture and mistreatment in detention. In that context, he referred to the new information. It was clearly presented as contrary to “government based and government supported reports” that had been relied on by the delegate. Relevantly, the Applicant claimed in his statutory declaration:
5. My main fear is facing mistreatment if I am forced to return to Sri Lanka. It is a well-known fact that returned refugees are handed over to the criminal investigation branch and then to the intelligence and they are the very people who subject Tamils to severe torture while being held in detention. The truth does not come out in media reports or reports issued by the Government. Therefore it is unfair to rely total upon the news and the reports issued by the Government which is bias.
6. Returned failed asylum seekers are arrested and held in detention and subsequently prosecuted. In the absence of real justice, Tamils who are arrested face real danger and they have every reason to fear torture and mistreatment.
7. Although my uncle is no longer involved in politics at the present time, the fact that I had been involved in politics in the past is more than enough for the authorities to punish me and torture me while holding me in detention. Based on various reports available internationally, criticising the inhuman treatment returned refugees are subject to upon arrival in Sri Lanka, there is no guarantee that my life would not be in danger.
…
9. In addition to the Tamil ethnicity, my religion will also be another factor that I would be subject to torture if returned to Sri Lanka now. It is our understanding that the Sri Lankan Government prosecutes those who have left the country illegally and claimed refugee status in Australia, criticising the government and its actions. Please refer to the attached information which is self-explanatory.
…
9. (sic) Although all government based and government supported reports say that all returnees are treated according to the standard procedures irrespective of their ethnicity and religion, and are not subject to mistreatment during their processing at the airport, it is not the real truth. Please refer to the attached information from various sources which cannot be ignored or neglected.
10. There is every possibility that my past political involvement, my religion and my Tamil ethnicity would somehow lead to a real chance of me being harmed while being processed by the CID unit at the airport or facing further detention after that time …
Read in context, it is clear that this amounted to a submission as to why the Authority should have regard to the new information in preference to the reports cited by the delegate and in contradiction to the delegate’s conclusions in relation to the current situation in Sri Lanka and the real chance or real risk of harm to the Applicant. The Authority could only consider new information if it met the requirements of s.473DD(a) and (b). The Applicant was plainly asking the Authority to consider the new information and explaining its suggested relevance in these circumstances.
However, having decided (on the basis of an assertion that there was no submission as to why it should have regard to the new information under s.473DD) that it was not satisfied there were exceptional circumstances to justify considering the new information, the Authority then found at paragraph 49:
I accept there have been reports of returnees being detained, interrogated and monitored on return, however the weight of country information before me indicates that failed asylum seekers, including Tamil failed asylum seekers, are not generally at a risk of harm on return to Sri Lanka. While I accept he has been a supporter of the SLMC, I have not accepted he has any adverse profile from that support, or that he is on any list or there is any reason he would be monitored or targeted on return. Given his low political profile and the absence of any criminal or LTTE connection, I am satisfied he would not face a real chance of harm on the basis that he is an asylum seeker, or from any actual or imputed political opinion that could arise from having sought asylum, including as a Tamil, a Muslim, his support for the SLMC or any other aspect of his profile. I am not satisfied there is a real chance that the Applicant would face serious harm on return on this basis.
(footnote omitted)
The Authority cited some items of country information in a footnote to this paragraph (but did not refer to the Doherty article). Further, in support of the finding (at paragraph 64) that there was no real risk that the Applicant would be tortured if he was remanded in custody or detained in prison charged under the I & E Act, the Authority cited only a DFAT 2015 Country Information Report advising that the risk of torture or mistreatment for people suspected of an offence under the I & E Act was low.
As the Applicant contended, the information in the Doherty article had at least the potential to undermine the Authority’s findings that returnees were treated under a standard procedure, that there was not a real chance of serious harm and that while prison conditions were poor due to a lack of resources, the Applicant would not face persecution or torture or other significant harm for being a returned asylum seeker or returned Tamil failed asylum seeker or for having departed illegally.
However there was no consideration by the Authority of why the Doherty article (or the other articles) were submitted to it, as well as no recognition that the Doherty article post-dated the delegate’s decision.
The Authority was wrong in substance to state that “no submission” had been made in relation to why it should have regard to the new information (in particular the Doherty article) under s.473DD (even though the statutory declaration did not refer expressly to s.473DD). Yet the absence of such a submission was the only reason it gave for concluding that it was not satisfied that there were exceptional circumstances to justify considering the new information.
While in his statutory declaration the Applicant did not expressly address why the information in the Doherty article could not have been provided to the delegate before the decision of 7 June 2016, it was apparent that the attached copy of this Guardian article bore the date of 23 June 2016, which was not only after the delegate’s decision, but also after the referral to the Authority. This was not information that the Applicant could have provided to the delegate (cf. AQU17 at [17]). There is no indication in its reasons that this was recognised by the Authority, which confined its consideration of s.473DD to s.473DD(a) of the Act.
Importantly, is not for an applicant to satisfy the Authority of the requirements of paragraph (a) of s.473DD. It requires that the Authority is satisfied.
The Full Court of the Federal Court stated in AQU17 at [14]:
As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather,
s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
However, as also pointed out in AQU17 at [15]:
… the question for the Authority was what, if anything, took the circumstances of the [Applicant’s] case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the [Applicant’s] circumstances which meant that there were exceptional circumstances justifying consideration of the new information …
(emphasis added)
It is the case that, as the plurality indicated in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [30]:
… The word “exceptional” [in s.473DD(a)] … is not a term of art but “an ordinary, familiar English objective”: “[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”.
(footnote omitted)
However it is for the Authority (not the court) to determine whether there are exceptional circumstances in a particular case such as to justify consideration of new information. In this case the information in question was more recent country information than that considered by the delegate. In addition, the article cited the UN Special Rapporteur on Torture about the current “common practice” of torture (including as part of “regular criminal … investigations” and as a “routine method of work” by police investigators to obtain confessions) in relation to persons with the claimed characteristics of the Applicant. The Applicant identified the potential relevance of such information to the Authority’s consideration of his claims (in this way highlighting a matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement in s.473DD(a) (see AQU17 at [17])).
I also note that, as White J found in BVZ16 at [9], while the requirements of paragraphs (a) and (b) in s.473DD are cumulative, they may overlap to some extent and hence consideration of the requirements of s.473DD(b)(i) and/or (b)(ii) may inform the Authority’s assessment of whether or not the requirements of s.472DD(a) are met. As White J stated at [9]:
... The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional …
Moreover, White J also pointed out in BVZ16 at [9] that:
… the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
This approach was approved by the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 at [102] – [104]. Relevantly, the Full Court confirmed at [104] that the broad meaning to be given to “exceptional circumstances… necessarily requires that consideration be given to all the relevant circumstances in determining whether or [not] there are “exceptional circumstances”” (emphasis added and also see CHF17 at [43] – [45]).
It is not necessary in this case for the court to be satisfied that there were in fact exceptional circumstances. In essence, what is in issue is whether the Authority erred in the manner in which it applied s.473DD of the Act in failing to consider whether there was anything about the new information or the Applicant’s circumstances which satisfied it that there were exceptional circumstances justifying consideration of the new information (see AQU17 at [15]).
The entirety of the Authority’s reasoning in its decision is contained in paragraphs 4 and 5 of its reasons. The Authority gave no reason as to why it was not satisfied that there were exceptional circumstances, other than the fact there were no submissions made to it. This occurred in circumstances where there was no obligation on the Applicant to make submissions or to satisfy the Authority of the matters in s.473DD(a), but where, in fact, he did make relevant submissions. In proceeding in this way, the Authority failed to consider the relevance of the information in the Doherty (which was published after the referral to the Authority) to the Applicant’s claims. It did so in circumstances where it was plain that the Applicant contended that the information in this article supported his claim that he had a real chance or real risk of harm, in particular torture, on return to Sri Lanka.
If the Authority had considered the Doherty article, it would have been open to it to see this information as providing support for the Applicant’s claims. However it did not engage in any consideration at all in relation to the relevance and significance of this information.
It is the case that it was held in CVS16 that the Authority is not required to provide reasons in respect of the exercise of its discretion under s.473DD of the Act. This court is bound to follow that decision. However while on this approach the Authority would not fall into error simply because of a failure to state its reasons in relation to the discretion in s.473DD (CVS16 at [25] and [29]), that does not mean that any deficiency in the Authority’s express reasoning in relation to the exercise of its discretion under s.473DD is to be seen in light of the fact that it is not required to provide such reasons. In this case the Authority did provide reasons for its decision that it was not satisfied that exceptional circumstances existed to justify considering the information. It is open to the court to draw inferences from such reasons about what the Authority considered material to its reasons and what it did not consider.
Even if such inferences should not too readily be drawn (see Plaintiff M64 at [25]), in the particular circumstances of this case I am satisfied that an inference can be drawn that the Authority considered only its view that no submissions were made on why it should have regard to the new country information under s.473DD of the Act. In proceeding in this manner the Authority erred in failing to consider all the relevant circumstances, in particular the material referred to in particular (b) to ground 1 relevant to whether the potentially corroborative, very recent country information relating to the risk of harm to the Applicant on return to Sri Lanka was such that, seen in light of the Applicant’s claims, there were exceptional circumstances to justify considering it.
I am satisfied that the Authority erred in proceeding in this manner.
Ground 1 is made out.
Ground 2
Ground 2 in the amended application is as follows:
The IAA failed to complete the exercise of its jurisdiction by failing to consider as it was required to do in the exercise of its review function, information recorded as having been given the applicant’s entry interview to the effect that he was secretary to his uncle who was “in the Muslim Congress”, that being;
(a) A failure to take into account material critical to the IAA’s formation of the requisite state of satisfaction.
(b) A failure to conduct the IAA’s review as required by s.473CC of the Migration Act, read with s.473DB(1) of that Act.
Counsel for the Applicant explained that paragraphs (a) and (b) were alternatives.
Sections 473CC and 473DB(1) of the Act are as follows:
473CC Review of decision
(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b) remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
…
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.
This ground takes issue with the Authority’s reasoning at paragraphs 23 to 25 in which it addressed some aspects of its concerns in relation to the Applicant’s claims about his role in SLMC and the claimed attack on him in 2011. The Authority stated:
23. A further concern I have with the applicant’s account is that he claims that he was the only member of the campaign targeted. His explanation was that these people do not target the candidate, as they are too high profile. When he was asked why then they would not target people other than him, he explained that they would only target specific people. The other people were volunteers, he was a prime target as a main secretary.
24. In his original statement supporting his application, the applicant did not indicate that he held any specific role in supporting his uncle, instead he listed a number of activities he undertook to support his uncle. In addition, rather than suggesting he had an ongoing role with his campaign, his statement indicates that a month before the 2011 election his uncle decided to contest and he once again got involved in election related activities. This suggests to me that his role was not ongoing but an opportunity that presented whenever his uncle was involved in an election. It was only at the interview that he expanded on his role, indicating that he was the campaign secretary, and he fulfilled that role both during and outside election periods.
25. On the basis of his only general knowledge of the SLMC and the inconsistent evidence about his level and length of involvement with the SLMC, together with my other concerns with the credibility of his account given his inconsistent evidence about his parents being approached in 2011–2012, I find that the applicant has embellished or exaggerated his role in his uncle’s campaign. While I accept he was a volunteer or supporter, I do not accept he had a high level role in his uncle’s campaign. It follows that I reject his claim that he was a high profile target or his explanation for why only he was targeted. Instead, the attack would appear to have been an instance of opportunistic election violence, something which is not uncommon in Sri Lankan elections. An opportunistic attack of a low profile SLMC supporter would also explain why no further approaches or threats were made to the Applicant after the 2011 election.
(footnote omitted)
The asserted discrepancy between the claim in the Applicant’s written statement supporting his visa application (the statutory declaration of 30 August 2013) and his oral evidence at the interview with the delegate was a factor the Authority took into account in finding that the Applicant had embellished or exaggerated his role in his uncle’s campaign, that he had no higher level role in the SLMC than as a volunteer or supporter and that the attack on him had been merely an opportunistic attack on a low profile SLMC supporter. The Authority then concluded about the situation after 2011:
26. I have not accepted that the ruling party continued to have any interest in him after the 2011 election. I similarly find the applicant's claims that in 2014 the ruling party continued to have an interest in him, despite the fact that neither he nor his uncle were involved in those elections, to be implausible. I consider that he is again seeking to exaggerate his role with the party to bolster his claims. It follows that I also reject this claim.
The Applicant submitted that the difficulty with this chain of reasoning was that the Authority had overlooked the fact that he had mentioned that he had been his uncle’s secretary in his entry interview of 17 January 2013. It was submitted that the Authority’s failure to consider this information amounted to a jurisdictional error.
The written record of the entry interview in the Courtbook indicates that in response to the question “Why did you leave your country of nationality?” the Applicant stated:
People associated with government come and arrest those who think have contact with LTTE. This happened to me. My uncle was in Muslim congress and I was his secretary. Police interupts (sic) our meeting [and] has detained and insulted me in the past.
(errors in original)
The Applicant submitted that the Authority’s observations at paragraphs 23 and 24 of its reasons were inconsistent with there having been any consideration of the information given in the entry interview.
The Applicant acknowledged that what appeared in the record of entry interview was not meant to be an articulated claim but simply a summary of what he told the interviewing officer, but contended that it was material and that it was central and critical to the decision. This was put on the basis that had the Authority realised that the Applicant had claimed that he was his uncle’s secretary before he made that claim at the interview with the delegate, it may not have found an evidentiary inconsistency or discrepancy and hence may have found that the Applicant had a continuing profile, that there had been continuing interest in him after the 2011 attack and that he may be in danger on return to Sri Lanka (especially if he were to re-engage in politics, as he said he would).
The Applicant also pointed out that in his statutory declaration of 30 August 2013 he had indicated that the declaration was only a summary of his claims and not an exhaustive statement of the reasons he could not return to his country of origin and had also anticipated providing further information in his interview (see AVQ15 at [29]).
It was submitted that, notwithstanding that the record of the entry interview was before the Authority as information given to it by the Secretary of the Department under s.473CB of the Act, the Authority had failed to understand that, in circumstances where the Applicant had explained that his statutory declaration was only a summary of his claims for protection (see AVQ15 at [33]), it was relevant that he had in fact made an important statement at the beginning of the process, in stating his entry interview that he was his uncle’s secretary.
It was submitted that any finding of inconsistency or discrepancy of the kind made by the Authority had to take into account what the Applicant had said in his entry interview and that its failure to do so constituted an error of law which went to jurisdiction. The Applicant also contended that such error could be seen as a failure by the Authority to comply with s.473CC, read with s.473DB(1) of the Act which required the Authority to review the decision of the delegate “by considering the review material provided” to it (being the material provided under s.473CB of the Act). It was submitted that in circumstances where the record of entry interview was clearly before the Authority and was not considered, the Authority had failed to lawfully complete its review pursuant to s.473CC of the Act.
The Applicant referred to the decision of the Full Court of the Federal Court in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133. In that case a tribunal made findings of inconsistency in a visa applicant’s evidence which underpinned its adverse assessment of the applicant’s credibility. The Full Court found (at [29]) that in making that finding the tribunal had “overlooked significant information which was before it and which potentially put a different light on those findings” and that the failure to take into account relevant material in making adverse credibility findings gave rise to jurisdictional error. The information in question was information in the applicant’s original statutory declaration and in an interview with a departmental officer (see AVQ15 at [29]).
In summarising relevant principles, the Court observed at [41(b)]:
While findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction.
(emphasis added in the Applicant’s submissions)
The Full Court also observed in AVQ15 at [48] that the tribunal’s apparent overlooking of such information could also be characterised as a constructive failure to exercise jurisdiction, because in assessing whether or not there were inconsistencies between a visa applicant’s written and oral claims it was incumbent on the tribunal to consider the evidence in that respect (and see WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 437 at [54] per Lee and RD Nicholson JJ).
The Applicant submitted that the Authority could be seen as either having failed to take into account material critical to the formation of the requisite state of satisfaction or as having failed to conduct the review as required by s.473CC read with s.473DB(1) of the Act.
The First Respondent submitted that the Applicant’s argument in relation to ground 2 mischaracterised the Authority’s findings in paragraphs 25 and 26 and that there was no incongruity between those findings and the fact that in his entry interview the Applicant had revealed that he was his uncle’s secretary.
It was pointed out that in paragraph 23 of its reasons the Authority had expressed concern about the Applicant’s claim he was the only member of the campaign targeted and had referred to his explanation that the candidate was too high profile to be targeted, that others were only volunteers and that he was the prime target, as what he described as a “main secretary”. The First Respondent suggested that this oral evidence had apparently been given in response to the delegate’s concern about why the Applicant was so unique that he was targeted whereas others involved in the election campaign were not targeted.
The First Respondent submitted that the issue that the Authority focussed on in paragraphs 24 and 25 of its reasons was not whether the Applicant had worked as his uncle’s secretary, but whether he had performed more than an ad hoc role in his uncle’s election campaigns and that it was on this basis that the Authority was concerned about the Applicant’s claim that he was particularly at risk of harm because he was a “prime target as a main secretary” of his uncle.
The First Respondent contended that the Authority had not questioned the claim that the Applicant had worked as his uncle’s secretary (as he claimed in his entry interview) and had made no finding that the Applicant had inconsistently presented that aspect of his claim. Rather, the Authority was said to have focussed upon the disparity between the Applicant’s claim in the statement accompanying his protection visa application (which post-dated his entry interview and which did not claim he held any specific role, but suggested that his role was ad hoc rather than ongoing) and his comments in the interview, at which he was said to have claimed, for the first time, that he had an on-going role of “campaign secretary” that he filled both during and outside election periods.
It was submitted that, seen in context, the Applicant’s answer at the entry interview, that he was his uncle’s secretary, did not clarify whether the Applicant performed his role for his uncle on an ongoing basis or only during election campaigns and that this was the issue that the Authority had focussed on in paragraphs 23 to 25 of its reasons.
The First Respondent also pointed out that in his entry interview, in response to a question as to whether he or any members of his family had been associated or involved with any political group or organisation, the Applicant had answered “yes” and indicated that “Uncle and I worked for Muslim Congress for election”. It was suggested that this explanation could be seen as consistent with the Authority’s view that initially the Applicant’s evidence had indicated that he was only an ad hoc worker for his uncle during election campaigns, rather than an ongoing campaign secretary, as was later revealed at the departmental interview.
In so far as the Applicant relied on AVQ15, the First Respondent suggested that while that case may stand for the general proposition that in drawing adverse credibility findings a decision-maker needs to have regard to all the information before it which potentially put a different light on its findings, such an inquiry would necessarily be fact-specific. It was submitted that, having regard to the content of the entry interview record, the Authority’s failure to refer to the fact the Applicant had mentioned that he had been his uncle’s “secretary” did not amount to overlooking significant information which potentially put a different light in its findings such that it was critical to the formation of the requisite state of satisfaction. Rather, the reported comments in the entry interview were said not to be inconsistent with the observations of the Authority in paragraph 24 of its reasons.
Consideration
The issue addressed by the Authority in paragraphs 23 to 25 of its reasons was explained in paragraph 23 as a concern with the Applicant’s claims that he was the only member of the campaign targeted and with his explanation that they would only target specific people and that he was “a prime target as a main secretary”, whereas the other people were volunteers.
However the Authority’s concern was not limited to the question of whether the Applicant had given inconsistent evidence about whether he had an ongoing role in supporting his uncle (as he claimed at the interview). The Authority was also concerned (as it stated at paragraph 24) about whether the Applicant had a “specific role”. It had regard to the fact that in his written statement the Applicant did not indicate that he had “any specific role in supporting his uncle” and, relevantly, was of the view that it was “only at the interview” that he indicated that he was the campaign secretary (as well as that he filled that role both during and outside election periods).
This overlooked the fact that the Applicant’s answer at the entry interview had addressed the issue of whether he held any specific role in supporting his uncle (albeit it did not also address the issue of whether his role was ongoing).
The fact that the Authority had two concerns relevant to the credibility of the Applicant’s claim that he was targeted, was reinforced in paragraph 26 of the Authority’s reasons. It referred to inconsistent evidence about both the “level” and the “length” of the Applicant’s involvement with the SLMC. Both of these concerns underpinned the Authority’s findings that the Applicant had embellished or exaggerated his role in his uncle’s campaign and that aspects of his account were not credible and the adverse findings that followed.
As stated in AVQ15 at [26], “appropriate attention has to be given by a decision-maker … to all relevant material in making a finding of inconsistency which then underpins an adverse credibility assessment”. That did not occur here, because the Authority overlooked what the Applicant had earlier told a departmental officer in his entry interview in circumstances where this evidence (that he was the secretary to his uncle who was in the SLMC) was “highly relevant to the question of whether the [Applicant] had given inconsistent evidence in support of his case” (as stated in AVQ15 at [26]). Indeed, even if there was a perceived disparity between the evidence in the statutory declaration of 30 August 2013 and the Applicant’s oral evidence to the delegate, it was necessary for the Authority to assess the significance of and weight to be given to any such disparity or inconsistency “having regard to the person’s case as a whole” and whether the inconsistency was on a matter that was “central” to the Applicant’s case or at its periphery and involving an objectively minor matter of fact (AVQ15 at [28]). However in this case the Authority did not take into account the earlier (consistent) evidence as to the Applicant’s specific role in assisting his uncle. The Applicant had made clear that his statutory declaration was not intended to be more than a summary and also that he would elaborate on his claims at interview. At the interview he in fact repeated the claim in his entry interview that he was his uncle’s secretary.
As the Full Court also stated in AVQ15 at [28] a decision-maker is required to:
… remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
The Authority’s findings of “inconsistent evidence” on the part of the Applicant about the level of his involvement with the SLMC played a central role in its adverse assessment of the credibility of his claims. The Authority did not totally reject the Applicant’s credibility, it found that the Applicant had embellished or exaggerated his role, rather than rejecting the claimed association with the SLMC in its entirety. However that finding was one of the factors which led the Authority to conclude that the assault in 2011 was not because the Applicant played any prominent role in the SLMC or because he held any political opinion of significance (but rather was an opportunistic attack on a low profile supporter) and also that the ruling party had no interest in him after the 2011 election. On this basis the Authority rejected the Applicant’s claims that the ruling party continued to have an interest in him in 2014 or that he had a profile that would lead to him being targeted in the future.
Further, contrary to any suggestion that the Authority’s analysis of inconsistencies was not indicative of error, being directed only to the Applicant’s statutory declaration and his oral evidence to the delegate, I bear in mind that under s.473DB of the Act the Authority must review a fast track reviewable decision “by considering the review material provided to [it] under section 473CB”. It is not in dispute that the record of the entry interview was included in the material the Secretary provided to the Authority under s.473CB of the Act. Subject to the constraints in Part 7AA of the Act, the Authority was obliged to consider all the relevant material that was provided to it by the Secretary. It failed to do so.
The overlooked material was potentially significant. This is not a case in which an inference can be drawn that the Authority turned its mind to this material, but concluded that it was not relevant to the issue of whether there were inconsistencies in the Applicant’s evidence about the level of his involvement in the SLMC or as to when he first claimed to have a specific role in the SLMC. If this information had been taken into account, it is possible that the Authority may not have rejected the Applicant’s claim about his profile, which was critical to its rejection of his claimed fear of future harm based on his profile.
Importantly, the Authority made it clear at paragraph 27 that it reached its conclusion that aspects of the Applicant’s account were not credible on the basis of the inconsistencies and discrepancies “viewed in concert”. This is not a case in which the impugned finding was only one of a number of findings that independently may have led to the ultimate decision. It cannot be said that there was an alternative basis for the decision that was unaffected by error.
Having regard to the particular circumstances of this case (see AVQ15 at [41]), I am satisfied that the ignored material was cogent and central to the Applicant’s claims to fear harm. The failure to consider this material was of particular significance in the Authority’s assessment of the Applicant’s claims. The fact that it overlooked this material was critical and central to the Authority’s reasoning that it did not accept that the Applicant had a high level role in his uncle’s campaign (and hence its rejection of his claims to fear future harm based on his profile).
Ground 2 is made out.
As jurisdictional error has been established, the application must be remitted to the Authority for reconsideration according to law.
I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 6 February 2020
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