CIH16 v Minister for Immigration

[2018] FCCA 246

FEDERAL CIRCUIT COURT OF AUSTRALIA

CIH16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 246

Catchwords:
MIGRATION – Immigration Assessment Authority – safe haven enterprise visa – whether the Authority erred in considering new information – whether the Authority failed to properly assess the corroborative documents – no jurisdictional error identified – application dismissed.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka)

Migration Act 1958 (Cth), ss.5J, 36, 473CB, 473DC, 473DD

Applicant: CIH16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1504 of 2017

Judgment of: Judge Street

Hearing date: 1 February 2018

Date of Last Submission: 1 February 2018

Delivered at: Sydney

Delivered on: 1 February 2018

REPRESENTATION

Solicitors for the Applicant: Mr S Hodges
Stephen Hodges Solicitor

Counsel for the Respondents: Mr H P T Bevan

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 24 January 2018.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1504 of 2017

CIH16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 18 April 2017. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The applicant was found to be a Tamil of Hindu faith from Batticaloa District, Eastern Province of Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival on 17 August 2012 and applied for a Safe Haven Enterprise visa on 13 September 2015.

3. On 27 May 2016, the delegate refused to grant the visa by reason of finding the applicant failed to meet the criteria for the grant of the same. A differently constituted Authority affirmed the decision of the delegate on 29 July 2016. By consent, orders were made in this Court setting aside the decision of the Authority and sending the matter back for further review by the Authority under Part 7AA.

The current Authority’s decision

1. Following the orders made by the Court on 9 February 2017, the Authority wrote to the applicant identifying the matter being remitted for a fresh review under Part 7AA. By letter dated 1 March 2017, the Authority invited the applicant to comment on certain country information provided by the Authority which fell within s 473DE.

2. Under cover of submissions made 10 March 2017 the applicant’s legal representative provided to the Authority a report by a Dr Hughes dated 28 February 2017 identifying having interviewed the applicant on that day and acquiring a history from the applicant in respect of being accused of being a Liberation Tigers of Tamil Eelam (“LTTE”) member and, in particular, referring to an incident that allegedly occurred in July of 2012.

3. The doctor identified that the applicant had a healed laceration on his left proximal forearm on the medial aspect which is two centimetres long and is consistent with the history of a deep knife injury. The doctor also opined that there was an anal scar consistent with trauma as described by the applicant.

4. There was also provided with the submissions to the Authority on 10 March 2017 translations together with the original of three documents that had been before the Department. Those documents were dated 8 July, 14 July and 25 July 2012.

5. The applicant claimed to fear harm by reason of an incident that occurred in June 2010 following which it was alleged his mother arranged for his escape to Singapore and Malaysia where he remained in hiding and then returned to Sri Lanka.

6. After a roommate in Malaysia was assaulted, the applicant alleges he resided in Trincomalee after returning to Sri Lanka and that the Criminal Investigation Department (“the CID”) and Karuna Group were looking for him and would visit his parents’ home and assaulted his brother and threatened the lives of the applicant and his parents.

7. Materially for the purposes of the grounds in the application the applicant alleges he was arrested and tortured by the CID and Karuna Group on 12 June 2012. The applicant alleges following that incident the applicant decided to flee from Sri Lanka and boarded a boat to Australia, which was intercepted by the Sri Lankan navy (“SLN”).

8. The applicant alleges that he received a letter on 8 July 2012 from the Tamil Makkal Viduthalai Pulikal (“the TMVP”), which stated that they wanted to speak to him on 10 July 2012 but the applicant did not attend. The applicant alleges that his parents received a letter asking the applicant and his father to attend a meeting on 14 July 2012. On 25 July 2012, a letter addressed to the applicant’s mother stated that if the applicant did not attend an interview he would be killed, prompting the applicant to leave Sri Lanka on 27 July 2012.

9. The applicant alleged after his departure for Australia on 27 July 2012 his family had been visited by people in army uniforms asking for his whereabouts and, that the applicant had a maternal uncle living in an LTTE-controlled area who fled to Australia in 2009, and that that applicant’s great aunt is a famous non-violent protestor.

The Authority’s decision

Information before the Authority

1. The Authority identified the background to the visa application. The Authority identified having regard to the material provided under s 473CB of the Act.

New country information

1. The Authority also identified obtaining new information, specifically a Department of Foreign Affairs and Trade (“DFAT”) country report under s 473DC. The Authority then referred to the sending to the applicant on 1 March 2012 of the DFAT report and inviting comment.

Submissions and further information from the applicant

1. The Authority referred to the submissions provided to the earlier Authority on 30 June 2016 and found to the extent that the submission discusses evidence including country information which was before the delegate in response to the delegate’s decision, the Authority did not consider that to be new information.

2. The Authority identified further information consisting of records in relation to previous submissions to the Department dated 26 May 2016, photos of Martyrs’ Day in Batticaloa 2005 and in Jaffna 2006, photographs of Martyrs’ Day in Australia 2015, and country information in the form of a report from February 2015 that was not before the Delegate.

3. The Authority noted the applicant did not provide any explanation as to why the new country information, which predates the delegate’s decision, was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known and had it been known may have affected the consideration of the applicant’s claims.

4. The Authority was clearly in that regard referring to both limbs of s 473DD. The Authority found that it was not satisfied there were exceptional circumstances for justifying considering the new country information.

5. The Authority made reference to the photographs of events before the applicant’s arrival in Australia and made reference to the submission that there were exceptional circumstances for considering the photos as they go to establishing the credibility of the applicant’s evidence, it would assist the IAA to make the correct and preferable decision, and that the material could not be previously provided because the applicant believed the photos were previously destroyed by his elderly parents, and when he requested the family try and locate the material to support his claims his family located the photos. The Authority further addressed the photos and was not satisfied there were exceptional circumstances to justify considering this new information.

6. The Authority then addressed an email dated 14 February 2017 asking the current Authority to invite the applicant to attend a hearing. The Authority provided reasons for why the Authority was not satisfied that an interview was necessary and required.

7. The Authority then turned to further material provided on 10 March 2017 including photographs of several close relatives said to be in the LTTE, and material for the purposes of the present case, a statutory declaration from the applicant, letters issued by the TMVP and English translations of the letters referred to above, and a letter from Dr Hughes dated 28 February 2017.

8. The Authority referred to a further submission dated 12 March 2017 and found to the extent that it discusses evidence including country information which was before the delegate the Authority found it did not constitute new information. The Authority noted the submission addressed in part why some of the information to the Authority on 10 March 2017 is credible personal information. The Authority referred to the response to the DFAT report and was satisfied that the submission relates to information and post-dates the delegate’s decision, and is responsive to the IAA’s invitation, and was satisfied that the information could not have been provided to the delegate previously, and that there were exceptional circumstances to justify considering that new information.

9. The Authority then made reference to the photos and accompanying information that were sent on 10 March 2017, which were not before the delegate and was found to be new information. The Authority made reference to the applicant claiming the photos are further evidence to support the applicant’s claims that certain family members were involved in the LTTE and is credible personal information.

10. The Authority found there is no explanation as to why the other photographs or the details of these relative names and LTTE connections were unable to be supplied prior to the delegate’s decision. The Authority did not find it credible that in his claims for doing it, that other than naming a great aunt and some specific uncles, he could not only make a general reference to ‘many other relatives’ but then purported to supply, for most of them, their names and ranks in the LTTE. The Authority was not satisfied the information is credible personal information or that it could not have been provided to the delegate prior to the decision. It was not satisfied there were exceptional circumstances to justify considering the new information.

11. The Authority then turned to the letter from Dr Hughes dated 28 February 2017 that was not before the delegate and found the same to be new information. The Authority observed that the letter post-dated the delegate’s decision and descended into the detail of the report referring to an examination of the applicant by a doctor on the day stated and recorded that the applicant has scars on his arm and his anus that are consistent with the applicant’s history. The Authority also noted the letter sets out the history the applicant gave to the doctor, and it all predates the delegate’s decision, and among other things says the applicant was accused of being a member of the LTTE and is helping with burying corpses, noting that his photograph is being circulated by the Sri Lankan authorities at the airports. The Authority observed that this was inconsistent with the applicant’s claims for protection.

12. The Authority also noted the applicant provided other medical records to the delegate in December 2015 following his Safe Haven Enterprise visa interview. The Authority noted that the applicant had not explained why the examination by Dr Hughes could only have taken place after the delegate’s decision. The Authority was not satisfied there were exceptional circumstances to justify considering the doctor’s letter.

13. The Authority then referred to the statutory declaration and the accompanying documents in relation to complaints of New South Wales Police and the police in Sri Lanka. The Authority was satisfied there were exceptional circumstances to justify considering the statutory declaration and that it is credible personal information. The Authority referred to the TMVP letters the applicant provided on 10 March 2017 to the Authority being before the delegate. The Authority found as the untranslated documents were before the delegate, the Authority did not consider the documents including the later English translations to be new information and had regard to the same.

Factual findings

Problems in Sri Lanka

1. The Authority then summarised the applicant’s claims and evidence. The Authority referred to the applicant’s claims concerning his Uncle T, and that there was inconsistency and changes to the applicant’s evidence in relation to T that, in combination, were sufficiently significant to call his credibility into question.

2. The Authority referred to the applicant’s statement that he was arrested, beaten and tortured and held in a dark room by the CID in both his biodata and arrival interviews. The Authority found the applicant’s difficulty in providing a more detailed and consistent description of his surroundings, even allowing that it is claimed to have occurred after a traumatic incident and some time ago, is not consistent with someone accounting an event that they have actually lived through. The Authority referred to the applicant’s explanation for fleeing to Singapore and Malaysia and did not consider it plausible that if he fled Sri Lanka because of his arrest and mistreatment and escape from the CID that he would risk returning to Sri Lanka.

3. The Authority did not find it credible that a person who had only recently escaped from custody would so easily avoid detection at the airport, irrespective of the payment of bribes, when leaving and returning twice in a relatively short period of time.

4. The Authority made reference to the applicant needing a registered address to get work or study and considered that the action of registering an address with the police is not consistent with the applicant’s claim that he was in hiding in Trincomalee.

5. The Authority made reference to multiple changes in the applicant’s evidence at the Safe Haven Enterprise visa interview in relation to how his address was registered was not credible. The Authority made reference to the significant changes, inconsistencies and implausibility in the applicant’s evidence and found the applicant not to be a credible witness. The Authority found the applicant was prepared to exaggerate, embellish and fabricate aspects of his evidence in order to boost his protection claims.

6. The Authority did not accept that the applicant was arrested, questioned and tortured on 9 June 2010 and subsequently escaped for a couple of days by climbing through the roof. It did not accept that he lived in hiding before he travelled to Singapore and Malaysia and did not accept, when he returned from Malaysia in October 2010, he went into hiding in Trincomalee, that the CID and Karuna Group were searching for him, or that the CID and Karuna Group visited his parents’ house to ask his whereabouts, threatened his life and his parents’ lives, assaulted his brother, or harassed his brother and sister.

7. The Authority found the applicant had no problems with the Sri Lankan authorities at the airport when he returned from Singapore and Malaysia because they did not have any adverse interest in the applicant. The Authority did not accept the applicant was ever questioned by the Sri Lankan authorities about T or that T or K were in the LTTE and or fought for the LTTE, that the applicant lived with T for a time, or that T came to his family home after bribing his way out of the IDP camp and the applicant and his family assisted T to escape to Australia.

8. The Authority found there are a number of difficulties with the applicant’s claims that he was arrested, questioned and tortured by the CID and Karuna Group on 12 June 2012. The Authority found that it did not accept that the June 2012 arrest occurred for the reasons that followed. The Authority referred to the applicant making a reference to his arrest, in June 2012, in his 2012 and 2013 biodata and arrival interviews. The Authority found it was not plausible, particularly as the applicant claims he had already escaped custody once before, that the applicant would have been left by the CID and Karuna Group in a room with an unlocked door and otherwise unguarded.

9. The Authority referred to the applicant’s claim, since his 2013 statutory declaration, that he was tortured, and relevantly, by ice being placed in his anus. The applicant claimed that, as a result of the ice torture, it still causes him pain today. The Authority made reference to the fact that the applicant had not mentioned his claim of ongoing anal pain or problems while using the toilet. While the applicant referred to shame and embarrassment, the Authority found it does not fully explain the applicant’s failure to mention any ongoing symptoms arising from the problem to his doctor, particularly as he says he complained about one of the symptoms on arrival.

10. The Authority was prepared to accept that about 15 days before the applicant left Sri Lanka, on 27 July 2012, he was questioned by the Sri Lankan authorities on attempting to unlawfully leave Sri Lanka and that he was held and questioned by the SLN for a day or two and then detained in jail for five days before he was released on bail by the court. The Authority rejected as implausible his claim that the CID were immediately looking for him after his release on bail.

11. The Authority noted that although the applicant said he was not involved with the Karuna Group in his 2012 and 2013 arrival interviews and did not mention any confrontations or problems with them, the applicant has claimed, in his 2013 statutory declaration following his escape from the CID and Karuna Group, the Karuna Group sent letters on TMVP letterhead to him and/or his parents on 8, 14 and 24 July 2012 requiring him to attend at their office. The reference to 24 July 2012 is clearly an immaterial typographical error in respect of the letter dated 25 July 2012.

12. The Authority noted that the third letter also stated that the applicant would be killed if he failed to attend the interview. The Authority noted that in the October 2015 addendum to the statutory declaration the applicant mentioned receiving a fourth letter the previous month from the Karuna Group but that he had not seen it, and his parents would not read it to him over the telephone, and he asked his parents to send it to him. The applicant provided copies of the first three TMVP letters but a copy of the fourth letter was not received by to the delegate.

13. The applicant also claimed for the first time in the October 2015 addendum that all of the TMVP letters were delivered by people who said they were from the CID. The applicant did not claim that the CID or Karuna Group made any other inquiries or searched for him following his claimed escape from their custody including when the letters were delivered in the period up to his departure from Sri Lanka on 27 July 2012. The Authority did not consider it credible that the CID and Karuna Group would, if the applicant had escaped from their custody, respond by sending a series of letters requesting he attend interviews at the appointed time and place.

14. The Authority found, given the inconsistencies, changes, implausibility and credibility with the applicant’s evidence, notwithstanding that some of his supporting documentation such as the history recorded in the medical records in 2013 may be seen as providing a level of corroboration, based on the totality of his evidence, the Authority rejected the applicant’s claim that he was arrested, questioned and tortured by the CID and Karuna Group in June 2012. The Authority did not accept that the applicant or his family received letters with TMVP letterhead from the Karuna Group or CID.

1. The Authority did not accept that the Karuna Group and/or CID had visited the applicant’s family home or asked him their whereabouts on a weekly basis, nor visited his relatives’ home in his former workplace in Trincomalee since he left Sri Lanka.

Links to the LTTE and other incidents

1. The Authority made reference to its finding that the applicant was not of adverse interest to the Sri Lankan authorities before or after he left Sri Lanka because of any links to the LTTE or for other imputed political opinions. The Authority was not satisfied the applicant or his immediate family were ever of adverse interest to or targeted by the Sri Lankan authorities on the basis of that the applicant being from a LTTE family.

Activities and incidents in Australia

1. The Authority referred to the applicant’s activities and the incidents in Australia. The Authority rejected as a fabrication the applicant’s claims that a Tamil man arrived at his home in February 2014 together with four other men, that during the 2014 incident a Tamil man said, as part of his threat to kill the applicant, that if he returned to Sri Lanka he would be killed and his family destroyed, that in the 2016 incident the Tamil man repeated his threat to kill the applicant, that in the 2016 incident the Tamil man had repeated his threat to kill the applicant and destroy his family if he returns to Sri Lank, and that the Tamil man took a photograph of him during the 2016 incident.

2. The Authority found many aspects of the applicant’s evidence in relation to his protection claims to be fabricated or embroidered. The Authority found that this has occurred throughout the process and most recently as the February 2017 statutory declaration. The Authority did not consider the applicant as being a credible witness and found that he had consistently demonstrated willingness to fabricate, exaggerate and to embellish his evidence in order to boost his protection claims. The Authority was not satisfied the applicant attended the Martyrs’ Day events in Australia otherwise than for the purpose of strengthening his claims to be a refugee.

Activities if returned to Sri Lanka

1. Based on the Authority’s findings, the Authority found the applicant was not a credible witness and that he did not involve himself in similar activities previously in Sri Lanka and that his attendance at Martyrs’ Day events in Australia is not otherwise than for the purpose of strengthening his claims to be a refugee. The Authority was not satisfied that he would participate in or involve himself in Martyrs’ Day or similar activities in Sri Lanka if he returns as claimed.

Refugee assessment

1. The Authority was not satisfied the applicant attended the Martyrs’ Day events otherwise than for the purpose of strengthening his claims to be a refugee and disregarded that conduct in attending the Martyrs’ Day events in accordance with s 5J(6) of the Act.

2. The Authority was not satisfied that being absent from Sri Lanka as an asylum seeker at the same time as other members of his family were living overseas, including his uncles T and K in Australia, would result in Sri Lankan authorities viewing the applicant as being involved in pro-LTTE or Tamil separatist diaspora groups. The Authority was not satisfied that the applicant had increased his risk profile.

3. The Authority was not satisfied the applicant will face a real chance of harm from Sri Lankan authorities due to his and members of his family’s being absent from Sri Lanka, including him being in Australia at the same time as T and K if returned to Sri Lanka now or in the reasonably foreseeable future.

4. The Authority was not satisfied the applicant will face a real chance of persecution from Sri Lankan authorities due to any links to the LTTE because of his activities in Australia, for any imputed political opinion and/or as a young Tamil male from the East if returned to Sri Lanka now or in the reasonably foreseeable future.

5. The Authority referred to the applicant being a failed asylum seeker. The Authority was not satisfied that there is a real chance the applicant would face harm on his return as a failed asylum seeker. The Authority accepted that the applicant was likely to be detained and questioned at the airport, possibly for up to 24 hours upon return to Sri Lanka. The Authority did not consider a brief period of up to a few days in detention would constitute the necessary level of threat to the applicant’s life and liberty, or to be significant physical harassment or ill treatment under s 5J(5) of the Act, or otherwise amount to serious harm to the applicant.

6. The Authority did not consider the likely questioning of the applicant by the authorities at the airport on arrival, any surety imposed, or the imposition a fine under the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IE Act”) would constitute a threat to the applicant’s life or liberty, or to be significant physical harassment or ill treatment under s 5J(5) of the Act, or otherwise amount to significant harm.

7. The Authority found the investigation, prosecution and punishment of the applicant under the IE Act would be the result of a law of general application, and would not amount to persecution for the purposes of ss 5H(1) and 5J(1) of the Act. The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally now or in the reasonably foreseeable future.

8. The Authority considered the applicant’s claims cumulatively, and was not satisfied the applicant faces a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, because of his illegal departures or for having made a claim for asylum in Australia, for any links to the LTTE, or imputed political opinion, because he and his other family members have been outside of Sri Lanka at the same time, because of the incidents in Australia with the Tamil man, or as a young Tamil male from the East, or a combination of these. The Authority found the applicant does not have a well-founded fear of persecution within the meaning of s 5J of the Act.

9. The Authority found the applicant failed to meet the requirements of the definition of “refugee” in s 5H(1), and did not meet the criteria under s 36(2)(a) of the Act.

Complementary protection assessment

1. The Authority found there were not substantive grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka that there is a real risk that the applicant will suffer significant harm. The Authority found the applicant failed to meet the criteria under s 36(2)(aa) of the Act, and affirmed the decision under review.

Proceedings before this Court

Grounds of the application

1. The grounds of the amended application are as follows:

   Ground 4

   The IAA committed jurisdictional error by failing to consider the letter from Dr Hughes dated 28 February 2017 on the basis that it was “new information”.

   PARTICULARS

   a.The IAA accepted that the applicant had visible scars on his “back and arms” on the basis of the applicant having put forward these claims to the delegate and offering “to show these to the delegate”.

   b. Dr Hughes' letter dated 28 February 2017 inter alia refers to “scars on his arm and in his anus ...”

   c. The IAA did not consider the contents of the letter dated 28 February 2017.

   d. The IAA erred in not considering the contents of the letter dated 28 February 2017.

   e. The IAA's finding that the applicant had visible scars is founded on the basis of the applicant's testimony and his willingness to “show these to the delegate”. It made not findings as to the scars on the applicant's anus or take that into account in assessing

   f. The contents of Dr Hughes's letter were “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

   Ground 6

   The IAA committed jurisdictional error when rejecting 'corroborative material' put forward by the applicant, as it failed in its obligation to assess the corroborative documents by reference to their 'nature, content and quality' before rejecting them.

   PARTICULARS

   a. The untranslated TMVP letters were before the delegate.

   b. The applicant supplied the IAA with “English translations” to the untranslated TMVP letters.

   c. The IAA did not consider the untranslated TMVP letters and “English translations” to be new information.

   d. Though the IAA did raise “implausibility and credibility issues with the applicant's evidence” at [39], the IAA was obliged to assess the corroborative documents by reference to their 'nature, content and quality' before rejecting the corroborative documents.

   Ground 8

   In the alternative to Ground 4, the IAA committed jurisdictional error by defining Dr Hughes' letter 28 February 2017 as new information.

   PARTICULARS

   a. At [CB 78, paragraph 21 ], the applicant claimed that in June 2012, he was arrested and tortured by the CID.

   b. During the incident referred to above, the CID kicked the applicant in the back of the head and inserted ice cubes into his anus [CB 167].

   c. The applicant has consistently maintained that he developed scars on his anus and neck:

   i. In the applicant's statutory declaration dated 17 July 2013, the applicant claimed, at [CB 78, paragraph 21], he noted that had scars and a growth on his body from the incident.

   ii. In a statement dated 4 December 2015, at [CB 167, paragraph 4-6], the applicant claimed that he had scars on his anus where the ice block had been inserted.

   d. The delegate of the first respondent accepted that “in such circumstances an applicant may fail to raise sensitive specifics”. However the delegate went on for find “it implausible that the applicant would “fail to mention such a significant event in its entirety”.

   e. At [CB 379, paragraph 13], the IAA considered that a letter from Dr Hughes dated 28 February 2017 which recorded that the applicant had scars on his arm and anus was new information. It was held that there were not exceptional circumstances to consider this information.

   f. The IAA incorrectly determined the information to be new. It should have been found to be evidence supporting or corroborative of claims already made.

   g. The effect of this finding was that although the IAA acknowledged, at [CB 385, paragraph 36], that the “applicant's failure to mention any ongoing symptoms arising from the problem [ongoing anal pain] to his doctor” could he explained by shame or embarrassment, it did not consider the applicant's anal scars in its determination of whether the applicant faced a real chance of serious harm.

   h. Given that the applicant had consistently claimed that he had scars on his anus, the medical report from Dr Hughes was not new information and the applicant's anal scars should have been considered.

   e. “to be new information.

Consideration

Ground 4

1. At the commencement of the hearing, the Court sought to explore with Mr Hodges, solicitor for the applicant, in relation to Ground 4, that the ground was intended to depart from the originally filed Ground 4, Mr Hodges confirmed that was the case. The Court explored with Mr Hodges whether the alleged error in the particulars, to the effect that the Authority had not had regard to the content of the report, was a matter that was pressed, and whether the argument was one, in relation to Ground 4, confined to a misconstruction of s 473DD?. Mr Hodges confirmed that it was the latter. That was an appropriate approach. It is patently clear that the Authority had regard to the content of the letter.

2. In relation to Ground 4, Mr Hodges argued that the Authority had failed to have regard to the second limb of s 473DD, and that, particularly, there was no reference to credible personal information in assessing whether the Authority had had regard to both limbs of s 473DD in considering the doctor’s report.

3. The Authority’s reasons are not to be read with a keen eye for error. It is patent from a reading of the Authority’s reasons as a whole that the Authority was well alive to both limbs of s 473DD in dealing with the new information that was before it.

4. Further, in the present case it is apparent that the Authority descended into the contents of the doctor’s report, and indeed recognised the same provided, at one level, information consistent with the applicant’s history. It is apparent from the Authority’s reasons that the Authority had regard to the whole of the report. Furthermore, on a fair reading of the Authority’s reasons, there is no basis for inferring that the Authority failed to have regard to both limbs of s 473DD in determining whether or not the letter from Dr Hughes dated 28 February 2017 was one to which the Authority should have regard.

5. The letter was plainly new information and, on a fair reading of the Authority’s readings as a whole, the Authority did not adopt any erroneously narrow construction of the meaning of “exceptional circumstances” or fail to have regard to both limbs of s 473DD in considering whether or not the letter dated 28 February 2017 was information to which the Authority could have regard. Those reasons were open to the Authority, and reasonable and logical. There was no misconstruction of s 473DD by the Authority in relation to that letter. No error as alleged in Ground 4 is made out.

Ground 6

1. In relation to Ground 6, Mr Hodges took the Court to the three letters and translations, and argued that there had been no engagement by the Authority with the content of the alleged corroborative material. That submission is inconsistent with the clear identification of and contents of the letters and translations provided by the Authority at the outset in the background to the applicant’s claims as summarised above. Further, it is apparent on a fair reading of the Authority’s reasons that the Authority had an active and real intellectual engagement with the submissions that were advanced and, in particular, with the contents of the letters which the Authority identified in its reasons.

2. It was open to the Authority in these circumstances to make the finding rejecting that the applicant received the letters with a TMVP letterhead, given the reasons of the Authority referred to above, which are both logical and reasonable. This is not a case where the Authority failed to take into account and assess alleged corroborative information. On a fair reading of the Authority’s reasons, the Authority took into account the nature, content and quality of the TMVP letters and made findings that were open to it, which cannot be said to be irrational and illogical. No jurisdictional error as alleged in Ground 6 is made out.

Ground 8

1. In relation to Ground 8, Mr Hodges submitted that the doctor’s report, because it referred to the anal scar that had been raised before, should not have been regarded as new information. The doctor’s report was clearly a fresh report, and constituted new information within the meaning of s 473DC. The Authority was correct in identifying it as new information under s 473DC. Mr Hodges raised with the Court that there appears to be a potential differing approach as to what may constitute new information in respect of submissions and other material. It is not necessary for this Court to delve into that issue in the present case.

2. I find that the letter from Dr Hughes dated 28 February 2017 was correctly identified by the Authority as being new information, and no jurisdictional error as alleged in Ground 8 is made out.

Conclusion

1. For these reasons, as the amended application fails to make out any jurisdictional error, the amended application is dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date:  23 February 2018