COS16 v Minister for Immigration
[2019] FCCA 1857
•5 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| COS16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1857 |
| Catchwords: MIGRATION – Safe Haven Enterprise visa – review of decision of Immigration Assessment Authority – whether IAA misconstrued s.473DD(a) – whether IAA overlooked a claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, div.3, ss.5, 5H, 65, 473CA,473CB, 473DA, 473DC, 473DD, 473DE, 473DF, 473GA, 473GB, 476 Immigrants and Emigrants Act 1949 (SL) |
| Cases cited: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221 Other Materials Cited: Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) |
| Applicant: | COS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 409 of 2016 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 30 August 2018 and 29 May 2019 |
| Date of Last Submission: | 29 May 2019 |
| Delivered at: | Perth |
| Delivered on: | 5 July 2019 |
REPRESENTATION
| Applicant Counsel for the Applicant: | In person with the assistance of an interpreter (30 August 2018) Mr N Draper (29 May 2019) |
| Solicitors for the Applicant: | D’Angelo Legal |
| Counsel for the First Respondent: | Mr P J Hannan |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application for judicial review be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 409 of 2016
| COS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is a young Tamil male from Sri Lanka. He arrived in Australia as an unauthorised maritime arrival on 3 October 2012.
The applicant has filed an application in this Court seeking judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 16 August 2016. The IAA’s decision affirmed a decision of a delegate of the then Minister of Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Safe Haven Enterprise visa (the “visa”) under s.65 of the Migration Act 1958 (Cth) (the “Act”).
This proceeding is brought pursuant to s.476(1) of the Act. To obtain relief from this Court, the applicant must show jurisdictional error on the part of the IAA.
Factual Background
The Minister’s outline of submissions filed 7 June 2018 detail the factual background to this matter. These submissions were not disputed. The Court has reviewed the Court Book (“CB”) tendered in these proceedings and accepts that the outline provided is accurate. It is not argumentative in nature. Other than as amended below, the Minister’s submissions summarise the background to this matter as follows.
On 5 February 2016, the applicant applied for the visa (CB 28-69). The substance of the applicant’s claims was outlined in a statutory declaration (the “declaration”). Relevantly, [28]-[38] of the declaration provided as follows (CB 70-76):
28. Since I moved to M, the majority of the population of my village were members of the Tamil Tigers. The village I lived in was in a jungle area. The Tamil Tigers used it as a base for their operations and as a safe haven to retreat to after carrying out their operations. They were fighting against the Sri Lankan army.
29. The battle lines between the Sri Lankan army and the Tamil Tigers shifted in 1996. The Army and CID started conducting raids on my village after that time. In 1997 my younger brother and I were kidnapped by the CID for three days. We were questioned and beaten for three days. We were released on the condition that we check in with the Army every Saturday. They would ask us questions to gather intelligence on the Tamil Tigers, even though my brother and I had no affiliation with them.
30. After 1997 the CID and the Army were running round-ups once or twice a month for the purpose of determining who in the village had an association with the Tamil Tigers. I was never present for these round-ups because I was fulfilling my obligation to sign-off with another Army unit every Saturday. The fact that I was not present at the round-ups heightened the mistaken suspicion within some sections of the Army and CID that I was associated with the Tamil Tigers.
31. Until 2004, the fighting between the Tamil Tigers and the Sri Lankan Army continued. There was a brief ceasefire between 2004 and 2005. I did not face any problems during this period. In 2006, the fighting between the Tamil Tigers and Sri Lankan Army resumed. The raids on my village by the Sri Lankan Army and CID also resumed, as did my obligation to sign off with the Army every Saturday.
32. One Saturday in 2006, I went to go sign off and answer questions as usual, but I saw the body of one of my Tamil friends. I saw that he had been shot. I formed the view that the Army were shooting Tamil youths instead of questioning them as they usually did. I feared continuing to go to the Army camp to sign off and answer questions, because there was a possibility that I could face the same fate. As a result of my fear, I stopped reporting to the Army on Saturdays.
33. In 2007, there was an incident near my house, where I heard a struggle and gunfire. In the morning, I went out and saw that the labourers who were working on a temple near my house were missing and others had been shot. We have not heard from the missing labourers since.
34. I was too scared to live in that village after that point, so I moved from M to Jaffna. Jaffna was a long way away from M.
35. I commenced my employment in a textile trading business in Jaffna in 2007. Somehow, the Sri Lankan Army and CID found out that I had relocated to Jaffna and they demanded that my employer give up my location. My employer did not give the Army that information, stating that he did not know where I was. I made sure to hide every time I was concerned that the Sri Lankan Army were present.
36. The Sri Lankan Army also visited my family in M on several occasions demanding my location. Only my Mother, Sisters and Father were present at the time. My family did not give up my location. My Father was investigated and verbally abused and threatened. He was not physically abused due to his age at the time.
37.The situation continued to escalate. The round-ups, kidnappings and physical abuse of people who were of Tamil ethnicity continued. I saw this situation happen directly. For instance, I once saw the Sri Lankan Army shoot a Tamil telephone shop owner across the street from the textile business where I worked. Tamils in Jaffna, and other areas were kidnapped and abused. I heard about this from other people in the textile business and also read about it in the newspaper.
38. This situation continued until I left Sri Lanka. It became impossible to live a normal life because I had to constantly change locations and remain vigilant to avoid capture by the Sri Lankan Army.
On 8 June 2016, the applicant attended an interview with a delegate of the Minister in relation to his visa application (CB 104-105). The applicant raised no new claims in this interview (CB 130 at [15]).
On 30 June 2016, the delegate refused to grant the applicant the visa he was seeking (CB 125-143).
The matter was then referred to the IAA in accordance with s.473CA of the Act (CB 123-124).
On 19 July 2016, the applicant sent the IAA an e-mail attaching letter and a web link. He stated that this information was “new information that supports my case”. That letter was in the following terms (CB 165):
I am writing this letter to provide some additional info regards my case.
During final conflict (2006-2007) we faced a lot of issues as most of LTTE members were hiding and attacking from our village, M-Jaffna. Due to this reason we had at least two round ups and few arrests by Army every week. And also, a lot of youth were gone missing and tortured day by day. We have not found anyone yet. There were few people who were CIDs who behaved like a normal people to find out what is going on in the village and lets Army know every seconds. Their names are N, P and R, these three of them were the main reason to all and I went to see them few times as they called me and they treated me like an animal, they were touching and hurting my hidden body parts. I cannot even describe in words how the pain was that I had. Now, they have all details of mine including my ID. They were searching for me since the war began and they are still active. I still hear from my relatives that they are still after me and roaming around M at least twice a week. Moreover they are waiting for a moment to catch the people who were in their list and escaped.
I have attached a web link which says all about missing people in our village, few of them are my best friends. Only a few of us managed to escape from those CID and Army, I am lucky to be one of them. I saw real humanity in here and I was really happy also thought I am safe when I came to Australia but I am stressing out a lot and worrying about my life from the moment I have received a letter that says I am not eligible to live in here and I have to go back to my country. If I go back I am sure that I will go missing and get tortured, or can be killed by them as their anger is so high now.
On 16 August 2016, the IAA affirmed the decision not to grant the applicant the visa (CB 179-197).
IAA Framework
The applicant satisfies the criteria in s.5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error as the Act is unusually rigid and strictly limits what the Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
b)material provided by the “referred applicant” to the delegate before a decision was made;
c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” – defined as information that was not before the delegate and that the IAA considers “may be relevant”: s.473DC(1) of the Act. An applicant may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are contained in s.473DD of the Act, which the Court will address in detail below.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
IAA Decision
The IAA’s decision is 19 pages long and spans 61 paragraphs. Approximately 4 pages are dedicated to extracts of the applicable legislative provisions (CB 194-197).
Paragraphs [9]-[14] of the Minister’s submissions filed 7 June 2018 provide an accurate summary of key parts of the IAA’s decision. The Court adopts that summary, with some additions, as follows.
The IAA first outlined the information it had before it (CB 180 at [3]-[6]). It noted that it had had regard to the material referred by the Secretary under s.473CB of the Act and acknowledged the letter and website link received from the applicant (the “new information”) (CB 180 at [3]-[4]).
In relation to this new information, [5]-[6] of the IAA’s decision provide:
5. The letter raises new claims in regard to ill-treatment by three people the applicant identifies as people from the CID who “behaved like a normal people to find out what is going on in the village and lets the Army know every seconds.” He states they have been searching for him since the war and are still looking for him at least twice a week. The applicant did not provide any information about why he did not mention this claim earlier.
6. During his SHEV interview, the delegate explained to the applicant that the IAA can only consider material provided in the application to the Department, unless exceptional circumstances apply, and told the applicant that it is extremely important that he give the Department full, personal and accurate protection claims as early as possible in the protection visa process. The applicant was told that if he did not give the Department all of his claims and any additional relevant information he may have, and the application is refused, he might not have another chance to provide the claims. The applicant was also specifically asked whether he had put forward all of the reasons why he needed protection and was told that if further information was provided, it may be taken into consideration before a decision was made. I note that the applicant was not represented at the interview. However, the applicant referred to assistance provided by ‘The Humanitarian Group’, a community legal centre, in putting together his application. He has also had access to Tamil interpreters throughout the process and was given ample opportunity to raise matters relevant to his application. In light of all of these factors, I am not satisfied there are exceptional circumstances to justify considering the new information.
The IAA then summarised the applicant’s claims (CB 180-182 at [7]). The summary provided accurately reflects the summary of claims outlined above in this judgment at [5].
In summary, the IAA:
a)noted that, in support of the applicant’s claim that he and his brother were kidnapped, beaten and questioned by security forces for 3 days in 1997, the applicant had provided a translated copy of a letter from the Grama Niladhari’s office in his home village in M dated 7 November 2015 attesting to the applicant having been taken by the security forces “during the year 2006 and 2009” (CB 182 at [10]);
b)noted that when the discrepancy in dates was put to the applicant in his interview, the applicant stated that, when he was released in 1997, the Grama got him out and that the letter may have mentioned the year differently (CB 182 at [10]);
c)on the basis that the letter was not contemporaneous and contained dates that do not support the applicant’s account, placed no weight on the letter as evidence of the 1997 incident (CB 182 at [10]);
d)accepted that it was plausible (based on the country information and consistency of the claim) that the applicant and his brother had been detained, beaten and questioned for 3 days by the Sri Lankan Army (“SLA”) in 1997 (CB 182 at [10]-[12]);
e)did not accept that the applicant was of continuing interest to the SLA following the 1997 incident and, in particular, did not accept that the applicant was required to report to the SLA every week between 1997 and 2006. The IAA noted that, while the applicant may have had to check in once or twice a month after 1997 until the ceasefire in 2004, he did not have to sign in with the SLA weekly between 1997 and 2006 (CB 182-183 at [13]-[16]);
f)accepted that it was plausible that the SLA conducted round-ups in the applicant’s village once or twice following the ceasefire in 2006 and accepted that in one such round-up the applicant was among those singled out for questioning and beaten by the SLA (CB 183 at [15]-[17]);
g)did not find it credible that if the applicant had stopped checking in on Saturdays (as he stated he was required to do) that the SLA would not have taken action if they were concerned about his links to the Liberation Tigers of Tamil Elam (“LTTE”) and therefore there was no obligation after the 2006 incident to check-in and the incident was a “routine round up” unrelated to the 1997 incident (CB 183-184 at [16]-[18]);
h)did not accept that the applicant was of any interest to the Sri Lankan authorities or that they looked for him in Jaffna after he had moved there in 2007 (CB 184 at [20]);
i)did not accept that the applicant was of any adverse interest to the SLA or Criminal Investigation Department (“CID”) (together the “authorities”) given he had not encountered any difficulties after May 2007 and rejected his evidence that inquiries had been made about him by the SLA and CID to his family after he left Sri Lanka (CB 184-185 at [21]-[24]); and
j)accepted that the applicant had departed Sri Lanka illegally and will return as a failed asylum seeker (CB 185 at [25]-[26]).
At [29]-[34], the IAA discussed country information concerning the security situation in Sri Lanka and the conditions for Tamils in Sri Lanka. It accepted that, if the applicant returned to Jaffna, there was a risk that he might be stopped, detained and questioned by security forces at checkpoints while travelling. However, the IAA found that there was no evidence that suggested that the applicant was at a higher risk because he was a Tamil and that, as he was not a person with a profile that would attract the authorities, there was no risk he would be persecuted (CB 187 at [35]).
Taking into account the passage of time since the applicant left Sri Lanka, the significant changes to the conditions in Sri Lanka since his departure, that the applicant does not have a profile with the authorities and that the SLA and CID are not looking for him, the IAA was not satisfied the applicant faces a real chance of harm on the basis of his ethnicity and any presumed links to the LTTE (CB 188 at [37]).
The IAA accepted that the applicant departed Sri Lanka illegally by boat and that, by virtue of this, he will be considered to have committed an offence under the Immigrants and Emigrants Act 1949 (SL) (“I & E Act”). After canvassing a wide variety of country information, the IAA found that the applicant may spend up to 24 hours in police custody at the airport and may be charged and fined (CB 188-189 at [38]-[42]).
The IAA considered that the likelihood of a brief period of detention and a fine would not constitute “serious harm”, even having regard to the poor prison conditions which the applicant may face (CB 190 at [45]). It further noted the I & E Act was a law of general application (CB 190 at [47]). In concluding, the IAA found the investigation, prosecution and punishment of the applicant under the I & E Act for his illegal departure did not amount to persecution as that term is defined in the Act.
Accordingly, the IAA was not satisfied that the applicant had a well-founded fear of persecution and did not meet the refugee criterion in the Act (CB 190 at [50]).
Finally, the IAA considered the applicant’s claims against the complementary protection regime. It referred to further country information and concluded, for reasons similar to its assessment of the refugee criterion, that the applicant did not face a real risk of suffering significant harm upon his return to Sri Lanka (CB 191-193 at [56]-[59]).
Proceedings in this Court
These proceedings have been protracted.
The applicant was unrepresented when he filed his judicial review application in this Court in September 2016.
The judicial review application did not contain any grounds of review. However, in an affidavit affirmed 11 September 2016 (the “First Affidavit”), the applicant did provide what can loosely be described as grounds. Those “grounds” provided:
1) I am applicant in this case for Judicial Review made by Immigration Assessment Authority made on the 16th of August 2016.
2) I submit that the Immigration Assessment Authority erred in law and / or in facts, and thereby fell into jurisdictional error when it determined that I was not a refugee under the Migration Act of 1958 and the International Convention on Refugees.
3) The Immigration Migration Authority did not take into account the facts presented by me and the provisions contained in the Prevention of Terrorism Act no 48 of Sri Lanka, which has now been made the permanent law of that country.
4) The Immigration Assessment Authority only examined the Immigration an Emigration Act of Sri Lanka in assessing my case and evidence.
5) Reference in this regard to the facts, laws and regulations which have not been examined with due diligence are seen in paragraphs of the 7, 10, 16, 17, 24, 33, 35, 36, 40, 54, 55, 57 and 59 of the Immigration Migration Authority decision referred to.
6) In examining the country situation in Sri Lanka the Immigration Assessment Authority did not balance the evidence and were guided only by the reports of the Department of Foreign Affairs and Trade.
7) Reports made by international organisations on Sri Lanka on the treatment of Tamils and ongoing human right abuses were ignored by the Immigration Assessment Authority; like those submitted by the Amnesty International, Asia Watch, the UNHCR, which are reports in regard to human right abuses made by the Sri Lankan armed forces directed at the Tamils: and the latest report submitted by a think tank in the USA: the Oakland Institute, entitled: The Long Shad ow of War: The Struggle for Justice in Post War Sri Lanka.
8) In view of the above, I submit that I have a well-founded fear to return to Sri Lanka for fear of persecution as a failed Tamil asylum seeker from the North and East of Sri Lanka.
The applicant (still unrepresented) then filed a further affidavit dated 25 June 2018. That affidavit referred to “submissions” (the “Second Affidavit”). Those submissions are more akin to grounds of review. They provide as follows:
2)My appeal is on the basis of jurisdictional error caused by the second respondent falling to exercise proper jurisdiction and not following the proper procedures in examining the evidence.
3)In this process stated above not following natural justice which requires a minimum stranded of fairness in the process of hearing my submissions.
4)The second respondent did not pay the needed attention to the current laws and regulations in Sri Lanka to young Sri Lankan Tamils like me who are suspected of having had links with the LTTE.
5)In this regard the second respondent did not examine the provisions of the Prevention of Terrorism Act and the Public Security Ordinance whose provisions were used to suppress the fight for an independent Tamil state in Sri Lanka which arose due to discrimination made by the Sri Lankan government against the Tamils.
The Minister filed written submissions dated 7 June 2018 addressing these “grounds of review.”
On 25 June 2018, the Minister then filed further written submissions. These submissions addressed an issue not arising from the applicant’s grounds of review in the First Affidavit or Second Affidavit. That issue pertained to the IAA’s discussion of the “new information” and the effect of s.473DD(a) of the Act. Those submissions also highlighted the significance of the High Court’s decision in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 (“Plaintiff M174”).
The matter was listed for hearing on 28 June 2018. The applicant appeared in person. It was clear that he had not had time to read, and did not understand, the Minister’s further submissions of 25 June 2018.
The Court, accordingly, adjourned and made orders allowing the applicant an opportunity to file an amended application, further affidavit evidence and further written submissions.
The matter was then listed for hearing on 30 August 2018.
No amended application was filed by the applicant.
The applicant did, however, file two further affidavits.
The first was affirmed 10 July 2018 (the “Third Affidavit”). That affidavit provided 4 further paragraphs which can, again, loosely be considered “grounds”. It provides:
2)I submit that the second Respondent did not give me a fair hearing by failing to exercise proper jurisdiction and thereby by falling into jurisdictional error.
3)No attempt was made to examine the Prevention of Terrorism Act in Sri Lanka and to understand and appreciate the true position of the Sri Lankan Tamils like me who are targeted on the grounds of a suspected link with the LTTE.
4)In this regard reference is made to paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 32, 33, 35, 36, 39, 42, 44, 45, 54 and 57 of the Immigration Assessment Authority’s decision given on the 16th of August 2016.
5)I have a well-founded fear of returning to Sri Lanka.
Another affidavit was then filed on 8 August 2018 (the “Fourth Affidavit”). That affidavit provided a letter from the applicant explaining his claims and an untranslated document.
The matter returned for hearing on 30 August 2018.
At that hearing, the Minister raised two further issues that had not been previously raised by the Minister and, again, were not raised in any of the applicant’s “grounds”. Those two issues were:
a)the impact of the decision of the Full Court of the Federal Court in AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 (“AQU17”) – in particular, how that decision relates to the IAA’s treatment of the e-mail dated 19 July 2016 sent by the applicant to the IAA (the “New Information Issue”); and
b)whether the IAA addressed an issue of alleged mistreatment of the applicant in 2006 by the Sri Lankan authorities mentioned in the reasons of the delegate (the “2006 Claim”).
At this point in time, the applicant was still unrepresented. Counsel for the Minister agreed that, in the circumstances, the matter would need to be adjourned so that further written submissions could be received by both parties in relation to these new issues.
The Minister’s submissions on these new issues were filed on 6 September 2018.
On 21 September 2018, the applicant obtained legal representation. By leave of the Court, his representative was given time to file an outline of submissions.
Mr Draper, the applicant’s legal representative, filed written submissions on 17 October 2018.
The matter returned for further hearing on 29 May 2019. Mr Draper appeared for the applicant. Mr Hannan appeared for the Minister.
The Court has had regard to all of the materials filed. It notes that the affidavit materials, while not formally read, were before the Court. The Court also marked the Court Book as Exhibit 1.
In the course of the hearing, Mr Draper sought to tender what was described as “The Humanitarian Group Documents”. The Minister objected on the basis of relevance. The Court marked the documents as Exhibit 2, and caveated this by indicating that their tendering was subject to the Court determining their relevance. Notably, as Mr Hannan indicated, at least three pages of Exhibit 2 were included in the Court Book.
As indicated, the course of these proceeding has been protracted and somewhat unusual. In effect, the Court has before it a number of grounds as advanced by the applicant in his various affidavits and the two further issues identified by the Minister at the 30 August 2018 hearing.
Mr Draper submissions did not address any of the applicant’s affidavits or “grounds of review” as outlined above. Rather, they only addressed the two issues referenced at [43] above. Nor did Mr Draper address any of the applicant’s affidavits in his oral submissions to the Court – again, focusing only on the two issues discussed at [43] above. Despite this, given that the applicant was not legally represented for most of these proceedings, the Court will nonetheless address all of his “grounds of review” and the new issues raised by the Minister to ensure that the applicant’s concerns are properly addressed. In that regard, the Court notes that at no time did Mr Draper indicate at the 29 May 2019 hearing that the applicant had abandoned all previous grounds or submissions advanced.
Consideration
First Affidavit
For ease of reference, as noted above, the First Affidavit relevantly provided:
2) I submit that the Immigration Assessment Authority erred in law and / or in facts, and thereby fell into jurisdictional error when it determined that I was not a refugee under the Migration Act of 1958 and the International Convention on Refugees.
3) The Immigration Migration Authority did not take into account the facts presented by me and the provisions contained in the Prevention of Terrorism Act No 48 of Sri Lanka, which has now been made the permanent law of that country,
4) The Immigration Assessment Authority only examined the Immigration and Emigration Act of Sri Lanka in assessing my case and evidence.
5)Reference in this regard to the facts, laws and regulations which have not been examined with due diligence are seen in paragraphs of the 7, 10, 16, 17, 24, 33, 35, 36, 40, 54, 55, 57 and 59 of the Immigration Migration Authority decision referred to.
6)In examining the country situation in Sri Lanka the Immigration Assessment Authority did not balance the evidence and were guided only by the reports of the Department of Foreign Affairs and Trade.
7) Reports made by the international organisations on Sri Lanka on the treatment of Tamils and ongoing human rights abuses were ignored by the Immigration Assessment Authority; like those submitted by the Amnesty International, Asia Watch, the UNHCR, which are reports in regard to human right abuses made by the Sri Lankan armed forces directed at the Tamils: and the latest report submitted by a think tank in the USA: the Oakland Institute, entitled: The Long Shadow of War: The Struggle for Justice in Post War Sri Lanka.
Insofar as paragraph 2 claims that the IAA erred in fact, this does not amount to jurisdictional error.
Further, having reviewed the IAA’s decision in detail, it cannot be said that the IAA erred in law in finding the applicant was not a refugee. The IAA clearly had regard to the definition of “refugee” as provided in s.5H(1) of the Act. At [27], the IAA accurately paraphrased that section and also set out the definition of “well-founded fear of persecution” (CB 185 at [28]).
Overall, the IAA used the language contained in the Act in making its findings. The Court is satisfied the IAA has not misapplied or misinterpreted the relevant provisions to determine whether the applicant is or is not a refugee.
Paragraph 2 of the applicant’s First Affidavit gives no rise to error as advanced.
Paragraphs 3 and 4 appear to argue that the IAA failed to take account the operation of the Prevention of Terrorism Act 1978 (SL) (the “PTA”).
The Minister submits that there was no claim made by the applicant in this regard and none clearly arising from the materials before the IAA to suggest that this statute ought to have been considered by the IAA.
The Court accepts the Minister’s submission and notes that at no time did the applicant advance a claim that he was at risk because of the provisions of the PTA.
In any event, the applicant’s claims in paragraphs 3 and 4 fail on a factual level as the IAA did consider the PTA and did take into account the “facts presented” by the applicant in that regard.
Relevantly, at [54], the IAA states:
54. The applicant has referred to persecution of Tamil people by the Government, the SLA and the CID. DFAT’s assessment is that the security situation in Sri Lanka has greatly improved since the end of the conflict in May 2009. On 31 August 2011, the Government lifted the Emergency Regulations which had given security forces broad powers of arrest and detention, including the ability to hold suspects for up to two years without charge. While I acknowledge that several elements of the emergency regulations remain in force under the Prevention of Terrorism Act, including the ability to detain individuals without charge, I note that the applicant was not detained, arrested or questioned for five years between when he went to Jaffna to work in 2007 until he left for Australian in 2012, and that he was able to move freely between Jaffna and his mother’s home in K. I have considered whether, in the process of travelling between his home and that of his mother in future, the applicant may be stopped, detained and questioned at a checkpoint and have accepted that there is a risk of this occurring. The applicant has not articulated a fear of harm in relation to this. As noted above, I have found the applicant does not have a profile with the authorities and would therefore not be of interest to the authorities in the event he is stopped at a checkpoint. I do not accept that the possibility of being stopped, detained and questioned at a checkpoint rises to the level of significant harm. I am therefore not satisfied, on the information before me, that the applicant will face significant harm on return to Sri Lanka in the event he is stopped, detained and questioned at a checkpoint.
Having noted that the PTA was still in force and that the powers of that legislation included the ability to detain individuals without charge, the IAA was not satisfied that the applicant had a profile that would attract attention if he were stopped and, as such, there was no need to address this issue further.
While the Court notes that the PTA was not specifically referred to in the context of the IAA’s refugee assessment, it was not necessary to do so in circumstances where the IAA found that the applicant did not have the profile to attract the attention of the authorities and would not be imputed with a pro-LTTE opinion.
Overall, the IAA did consider the PTA (and, the Court also notes, the Sri Lankan Constitution more generally). It did not confine itself to the I & E Act, as the applicant alleges.
Paragraphs 3 and 4 raise no error.
In respect of any error arising from paragraph 5 of the First Affidavit, the Court notes:
a)at [7], the IAA summarises the applicant’s claims. Having regard to the materials in the Court Book, the Court is satisfied that that summary is accurate;
b)at [10], the IAA placed no weight on a letter the applicant proffered in support of the claim he had been kidnapped, beaten and questioned by security forces in 1997. The reasons for doing so (ie, that the dates of the letter were not contemporaneous with the applicant’s account) were logical and open to the IAA. In any event, the IAA accepted the claim the letter was provided in support of. Hence, the fact that no weight was placed on the letter is immaterial;
c)at [16]-[17], the IAA explains in detail the applicant’s evidence concerning interactions with the LTTE and makes factual findings regarding what it accepts occurred to the applicant in the period 1997 to 2006. While it accepted certain parts of the applicant’s evidence, it did not accept others and provided a reasoned and intelligible explanation as to why that was so;
d)at [24] the IAA rejected the claim that the SLA and CID came looking for the applicant after his departure on the basis that the claim was raised at a late stage, the applicant did not provide details and the IAA had already found that the applicant was not of any interest to the authorities. Again, it was entirely open for the IAA to make this finding and the reasons the IAA gave were intelligible and rational;
e)at [33] and [40] the IAA summarises country information. It is not for this Court to dispute the content and use of that country information. The selection of country information is a matter for the IAA: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11];
f)at [35]-[36] the IAA, with reference to the country information, noted that the implementation of laws and policies is “generally without discrimination”. When one considers this conclusion in light of the applicant’s particular circumstances (including that he had worked in the textile trade since 2000, that he did not have a profile adverse to the authorities and that Tamils were now more confident to question the authorities actions and motives) it was reasonable for the IAA to make findings that there was no real chance he would suffer serious harm if he were stopped at a checkpoint on his return to his home town or that he would not face a sufficient level of discrimination; and
g)at [54]-[55], [57] and [59] the IAA analysed the applicant’s claims in respect of the complementary protection criterion. While the IAA accepted that the applicant might suffer some form of discrimination and might be detained on arrival in Sri Lanka, the IAA was not satisfied (on the basis of country information) that these matters amounted to “significant harm” as defined by the Act. There was again nothing illogical in this finding. The reasoning shown is sound and reasonable.
It is apparent that the IAA considered the “facts, laws and regulations” with due diligence. The IAA actively and intellectually engaged with all of the materials before it – evidenced in the forensic analysis provided by it of both the applicant’s evidence and the country information it had regard to.
Paragraph 5 fails to identify jurisdictional error
Paragraphs 6 and 7 tend to suggest that the IAA ignored relevant material and only relied upon the information contained in the Department of Foreign Affairs and Trade (“DFAT”) Reports.
The Court disagrees.
The Court notes that the IAA did extensively rely upon the DFAT country information report. However, it also referenced other sources. Further, the IAA had before it the delegate’s decision, which contained extensive reference to numerous sources, including a Human Rights Watch Report, Amnesty International Report and other information from various organisations.
It cannot be said here that the IAA ignored relevant material. If the applicant wished the IAA to take into account a particular report, like the “Long Shadow of War: The Struggle for Justice in Post War Sri Lanka”, it was his responsibility to put the information to the delegate or the IAA for consideration. He did not.
Paragraphs 6 and 7 fail to identify any error.
The First Affidavit fails to identify any jurisdictional error.
Second Affidavit
For ease of reference, as noted above, the Second Affidavit, while filed as “submissions” at a time when the applicant was unrepresented, can be read as providing further “grounds of review”. It provides, relevantly, as follows:
2) My appeal is on the basis of jurisdictional error caused by the second respondent falling to exercise proper jurisdiction and not following the proper procedures in examining the evidence.
3) In this process stated above not following natural justice which requires a minimum stranded of fairness in the process of hearing my submissions.
4) The second respondent did not pay the needed attention to the current laws and regulations in Sri Lanka to young Sri Lankan Tamils like me who are suspected of having had links with the LTTE.
5) In this regard the second respondent did not examine the provisions of the Prevention of Terrorism Act and the Public Security Ordinance whose provisions were used to suppress the fight for an independent Tamil state in Sri Lanka which arose due to discrimination made by the Sri Lankan government against the Tamils.
From paragraphs 2 and 3 the Court infers that the applicant is alleging that the IAA failed to afford him procedural fairness. He also makes reference to the “proper procedures in examining the evidence”.
To the extent that the applicant is referring to his e-mail (as new information), the Court will address this in considering the New Information Issue.
Otherwise, the extent of the IAA’s obligations of procedural fairness are exhaustively contained in pt.7AA, div.3.
The IAA had before it the materials and evidence that the Department was required to provide to the IAA (s.473CB of the Act). The weight the IAA gives to those materials and the “evidence” generally is entirely a matter for the IAA (and not the Court): Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 281-282 (“Wu Shan Liang”)
There is nothing illogical or unreasonable in the way the IAA assessed that evidence and came to the findings it did. It cannot be said that no reasonable decision-maker would have come to the conclusions the IAA did in this regard: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131].
There is also nothing to suggest the IAA failed to abide by the procedural fairness obligations in ss.473DE and 473DF of the Act. There was no information obtained that the IAA was required to be put to the applicant and the bases upon which the IAA determined the application did not differ in substance to the delegate’s decision.
Paragraphs 2 and 3 do not identify any jurisdictional error.
Paragraph 4, although not entirely clear, appears to fail on a factual level. The IAA found that the applicant would not return as a person suspected of having LTTE links and that he was thus of no interest to the authorities generally (CB 184 and 188-189 at [21], [37] and [41]). This subsumed the need for the IAA to consider any “laws and regulations”, as seems to be put by the applicant: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 236 FCR 593 at [47] per French, Sackville and Hely JJ.
Paragraph 5, for the reasons given at [58]-[65] above, does not disclose any error.
Overall, the Second Affidavit fails to identify any jurisdictional error.
Third Affidavit
For ease of reference, as noted above, the Third Affidavit provides:
2) I submit that the second Respondent did not give me a fair hearing by failing to exercise proper jurisdiction and thereby by falling into jurisdictional error.
3) No attempt was made to examine the Prevention of Terrorism Act in Sri Lanka and to understand and appreciate the true position of the Sri Lankan Tamils like me who are targeted on the grounds of a suspected link with the LTTE.
4) In this regard reference is made to paragraphs 12, 13, 14, 15, 16, 17, 18, 19, 32, 33, 35, 36, 39, 42, 44, 45, 54 and 57 of the Immigration Assessment Authority’s decision given on the 16th of August 2016.
5) I have a well-founded fear of returning to Sri Lanka.
6) I believe and submit that a new inquiry be made into my claims for a Protection Visa under the provisions of the Migration Act 1978.
Paragraphs 2 and 3 repeat, albeit in different terms, matters which were raised in the First Affidavit at paragraph 3 and the Second Affidavit at paragraphs 2, 4 and 5. For the reasons already given, these paragraphs do not disclose error.
In relation to paragraph 4 of the Third Affidavit, the Court notes that a number of those paragraphs have already been addressed in relation to the First Affidavit (see paragraphs 16, 17, 33, 35, 36, 54 and 57). The Court will not address these paragraphs again. Insofar as the applicant takes issue with other paragraphs as referenced, the Court notes:
a)paragraphs 12-15 and 18-19 refer to factual findings made by the IAA in respect of the applicant’s claims – in particular, the credibility of those claims. An examination of the PTA in the context of these findings was unnecessary and the Court is satisfied that there is nothing in the credibility findings, or the findings of fact made, that can be seen to be unreasonable or illogical: DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175;
b)paragraph 32 provides a summary of country information that indicated that, historically, policies in Sri Lanka discriminated against Tamils but that that is not the case now. The IAA did not refer to the PTA (which the Court infers the applicant is saying is discriminatory to Tamils); however, this does not point to jurisdictional error. When read in context (that is [29]-[37] as a whole), it is clear that the IAA was turning its mind to the likelihood of discrimination on the basis of being a Tamil. The IAA specifically noted that “overall, there are no official laws or policies that discriminate on the basis of ethnicity” and that the applicant himself had not claimed to have suffered any form of discrimination;
c)paragraphs 39 and 42 summarise the country information and make findings with respect to any consequences arising from the applicant’s illegal departure from Sri Lanka. Again, it is unclear how the PTA is relevant to this assessment. The need to consider it was unnecessary once the IAA was not satisfied that the applicant had a profile that would attract the attention of the authorities and that the applicant would likely be issued with no more than a fine; and
d)paragraphs 44 and 45 make findings that are relatively common in the context of visa applicants from Sri Lanka and makes reference to High Court authorities in explaining its reasoning. The IAA, noting it exercised a qualitative judgment taking into account the nature and gravity that any fine or detention would impose, reasoned that these would not amount to serious harm. There was no error in the reasoning provided here.
Nothing in the paragraphs the applicant references above identifies any error. The IAA’s reasons were clear, intelligible and logical. The IAA did not overlook any relevant parts of the applicant’s claims or evidence and did not rely on irrelevant information.
Paragraph 4 of the Third Affidavit fails to identify any error on the part of the IAA.
Paragraphs 5 and 6 of the Third Affidavit rise no higher than pleas and assertions. What the applicant seeks here is impermissible merits review.
Paragraph 5 and 6 of the Third Affidavit fail to identify any error.
It follows that no jurisdictional error is identified in the Third Affidavit.
Fourth Affidavit
As for the Fourth Affidavit, this provided:
a)“Document 1”, which was a statement from the applicant dated 16 July 2018 explaining what had happened to him in Sri Lanka; and
b)“Document 2”, which was described as a certificate issued by a local government pertaining to “my stay”.
The Court cannot attach any weight to the material in the Fourth Affidavit, as:
a)these materials were not before the IAA and it is not open to this Court to consider material which the applicant did not put before the IAA (unless it is relevant to identifying jurisdictional error): WZATI v Minister for Immigration & Border Protection [2015] FCA 923 at [70] per Barker J;
b)these documents, or Document 1 at least, pertain to the merits of the application and the applicant’s claims for protection and invite the Court to engage in merits review contrary to Wu Shan Liang; and
c)insofar as Document 2 is relevant, the applicant had the opportunity to provide this to the IAA. He did not do so and now invites the Court to disagree with the IAA – something which is impermissible: Gupta v Minister for Immigration & Border Protection [2016] FCA 1004 at [27].
For these reasons, no weight is attached to the material in the Fourth Affidavit.
The New Information Issue
As noted above, an issue raised by the Minister and ultimately addressed in written submissions by both Counsel for the Minister and Counsel for the applicant pertained to the IAA’s discussion of the “new information” provided by the applicant and whether the IAA had correctly applied s.473DD of the Act.
In this matter, the applicant sought to provide new information to the IAA. That information was an e-mail attaching a letter and a link to a news website. The letter raised new claims in respect of the applicant’s ill-treatment by three individuals the applicant claims were CID members.
The IAA’s reasons for concluding that the requirements of s.473DD were not satisfied are set out at [6] of its reasons. Essentially, the IAA stated that it was not satisfied that there were exceptional circumstances to justify considering the new information.
Relevantly, s.473DD of the Act provides:
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 submissions received by Counsel for the applicant and the Minister, discussed below, highlight the significance of the decisions in Plaintiff M174 and AQU17 in relation to this section of the Act.
By way of background, the Court notes the following in relation to both cases.
Plaintiff M174
The Court notes the Ministers summary of this decision in written submissions dated 25 June 2018 at [6]-[17]. The summary provided is accurate and the Court adopts it as its own. It provides as follows.
Justices Gageler, Keane and Nettle gave the leading judgment, with which Gordon and Edelman JJ agreed, only adding additional observations in separate judgments.
The plurality observed at [29]:
The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
Their Honours then explained at [30] that:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
Where new information is given by an applicant, “the Authority must be satisfied of one or other of the circumstances set out in s.473DD(b)(i) and (ii)” before the IAA can consider the new information. That is a requirement cumulative upon the criteria in s.473DD(a): Plaintiff M174 at [31] (Gageler, Keane and Nettle JJ) and [88] (Gordon J). As to s.473DD(b)(ii), the plurality at [31] said:
…all that the Authority needs to be satisfied of to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant: and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
The plurality noted that, “[c]onsistently with s 473DD... the Practice Direction [of the IAA] goes on to state” that “[i]f you want to give us new information, you must also provide an explanation as to why: the information could not have been given to the Department before the decision was made, or the information is credible personal information which was not previously known”: Plaintiff M174 at [38].
The facts of Plaintiff M174 were as follows.
The plaintiff applied for a protection visa. In support of his application, he claimed that he had converted to Christianity and that he had regularly attended the Syndal Baptist Church. His application included a letter of support from Reverend Bill Brown dated 14 June 2015: Plaintiff M174 at [54]-[55]. The delegate telephoned Reverend Brown the day after interviewing the plaintiff, and the Reverend told the delegate that the plaintiff stopped attending in 2013, that he attended for a few weeks in 2015, and then only once more on 14 June 2015: Plaintiff M174 at [57]. The delegate did not ask for the plaintiff’s comment on this adverse information: Plaintiff M174 at [58]. In reliance upon it, the delegate refused the plaintiff a visa: Plaintiff M174 at [59].
The plaintiff’s migration agent provided the IAA with a further letter of support from Reverend Brown dated 10 May 2016, which said that “from 2014-2016, and because he has been living firstly in Pascoe Vale and then in Broadmeadows, [the plaintiff] has come to services [at the Syndal Baptist Church] more occasionally”. The agent also provided letters from other members of the congregation, one of which said that because the plaintiff had moved to another part of Melbourne he “could not get [to the Syndal Baptist Church] as regularly as before but still made the effort when he could”: Plaintiff M174 at [62].
The IAA took Reverend Brown’s new letter into account, on the basis that part of it reiterated information that had previously been given, while there were exceptional circumstances justifying the IAA considering that part of it which constituted new information: Plaintiff M174 at [64].
The IAA did not take into account the letters from congregants. In relation to the letter from Mr and Mrs Andrews, the IAA said that the letter “appears to refer to events which occurred before the protection interview and the Minister’s decision”, and the plaintiff “was aware that he could provide supporting information of this kind, as demonstrated by his provision of the June 2015 letter from Rev Brown. He had legal assistance in preparing his protection visa application. I am not satisfied that there are exceptional circumstances justifying consideration of this letter.”: Plaintiff M174 at [65]. For similar reasons, the IAA did not take into account a letter from Mr Zimmer: Plaintiff M174 at [65].
The High Court said that the IAA’s “lack of satisfaction [about exceptional circumstances] involved an evaluative judgment which was elaborately explained by the Authority”. The judgment made was again open to the IAA and “eminently justified by the reasons it gave”: Plaintiff M174 at [75].
The following observations can also be made about the reasons of the IAA in Plaintiff M174 which were endorsed, as “elaborately explained”, by the High Court:
a)the IAA did not refer expressly to the provisions of s.473DD;
b)the IAA only used the express language of s.473DD(a) (namely, exceptional circumstances) and s.473DD(b)(i) (namely, could not have been provided before the Minister’s decision); and
c)the IAA did not use the express language of s.473DD(b)(ii), or explain (even in substance) why the new information was not credible, or was information that may not have affected consideration of the plaintiff’s claims.
AQU17
The issue in AQU17 concerned what was described as the “restriction” in s.473DD(a) – that section which dictates that the IAA must not consider “new information” unless satisfied there are “exceptional circumstances” for that new information to be considered: AQU17 at [3].
The appellant in AQU17 was a Sri Lankan Tamil whose claims included that he was arrested and tortured by the CID in August 2011 and released after paying a bribe: AQU17 at [3].
The delegate in AQU17 did not accept that the applicant had had the encounters or incidents with the CID as claimed. Accordingly, the appellant’s application for a visa was refused: AQU17 at [3].
The application was referred to the IAA and the appellant provided the IAA with new information in the form of a statutory declaration. In that declaration the applicant declared that, in respect of his claim to have been arrested and tortured in 2011, he had refused to give the CID his true identity and other details as he knew that he was on a watch list as he was a “LTTE fugitive” that was being searched for and, if this was revealed, the CID would kill him: AQU17 at [3].
The IAA considered this to be “new information” as provided in the Act. It then turned to consider whether the new information satisfied the requirements of s.473DD(a) of the Act. The IAA was not satisfied it did, noting that:
a)it had had regard to the appellant’s responses to questions put to him at the interview before the delegate about the 2011 claim;
b)the delegate told the appellant that she could not understand why the CID did not come looking for him when he did not report back to them as this was one of the conditions of his release and the [appellant’s] response did not advance any of the matters that were now contained in the statutory declaration;
c)the appellant had had the opportunity to advise the delegate at the interview of the claim (or details) that he had raised in his statutory declaration; and
d)the response the appellant had given at the interview was in contradiction to his claim in the statutory declaration that the CID did not identify him during the period he was detained.
(AQU17 at [5])
On appeal, it was argued that the IAA had focussed only on the failure to use the opportunity to provide the information at the interview and had limited itself to an unduly narrow interpretation of “exceptional circumstances”: AQU17 at [6].
At [7]-[9] of AQU17, the Court helpfully summarised principles from other Full Court authorities BVZ16 v Minister for Immigration & Border Protection (2017) 254 FCR 221, Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111 and CHF16 v Minister for Immigration & Border Protection (2017) 257 FCR 148. The appellant relied on these authorities in support of his arguments.
The appellant submitted that there was no actual finding on the matters in s.473DD(b)(ii) and that “merely noting an inconsistency”, which was what the IAA had done, did not constitute proper consideration as to whether the new information was credible personal information that may have affected the consideration of the appellant’s claims: AQU17 at [12].
It was said that ss.473DD(a) and 473DD(b) are cumulative and not coextensive thus the question of whether “exceptional circumstances” exist cannot be answered just by confining the consideration to the s.473DD(b) matters, rather it requires consideration of whether there is anything out of the ordinary that justifies consideration of the new information: AQU17 at [12].
In turning to consider, and dispose of, the grounds of appeal, the Court in AQU17 noted as follows:
a)it is undoubtedly correct that ss.473DD(a) and 473DD(b) are cumulative requirements: AQU17 at [13];
b)“Exceptional circumstances” is to be given an ordinary meaning. That ordinary meaning is that circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13];
c)what will amount to exceptional circumstances is inherently incapable of exhaustive statement and Each case will be different to every other case and must be treated on its merits: AQU17 at [14]; and
d)it is not the case that the factors in s.473DD(b) must, in every case, be considered by the IAA in deciding whether “exceptional circumstances” exist as per s.473DD(a). While s.473DD(b) may assist the IAA in deciding if it is satisfied that exceptional circumstances exist, it is not determinative or applicable in every case: AQU17 at [14].
In applying those matters to the facts of the appellant in AQU17, the Full Court stated that the question for the IAA was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information: AQU17 at [15]. To answer that question, it was necessary for the IAA to examine whether there was anything about, or in, the statutory declaration or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information: AQU17 at [15].
The pivotal extracts of AQU17 appear at [13]-[14] (which the Court has summarised above but extracts here for the sake of completeness), where McKerracher, Murphy and Davies JJ stated:
13 As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.
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.
The Court then went on to state as follows:
16. Contrary to the appellant’s submission, the Authority did not conclude that the s 473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister’s delegate. Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible.
17. Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute “exceptional circumstances” to justify consideration of the new information. Nor, contrary to the appellant’s submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant’s case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant’s case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant’s personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of “exceptional circumstances”. In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed.
Applicant’s submissions
The applicant’s submissions (made here through Counsel) were at times confusing and unclear. They seemed to suggest, at some level, that the Court should ignore Full Court authority as precedent. That suggestion (which is rejected) aside, generally it can be said that the applicant’s submissions focussed on the Full Court’s decision in AQU17.
Unusually, neither Mr Draper nor Mr Hannan summarised the decision in AQU17 for the Court and Mr Draper did not analyse the decision in Plaintiff M174 or respond to the Minister’s submissions in that regard.
In relation to AQU17, the Court refers to its summary at [117]-[129] above.
The applicant’s written submissions in relation to AQU17 and s.473DD generally can be summarised as follows:
a)in AQU17 the applicant gave a response in an interview concerning information that was inconsistent with another response in that interview;
b)the Court held that “exceptional circumstances” will be those that are out of the ordinary course and which justify the new information being considered even though the information was not provided to the delegate at the time of their decision;
c)AQU17 noted that, generally, consideration of whether “exceptional circumstances” exist will require consideration of all relevant circumstances because even though no one factor may be exceptional, in combination the circumstances may be such as to reasonably be regarded as “exceptional”;
d)the phrase “exceptional circumstances” is to be given a broad meaning along the lines of circumstances that are unusual or out of the ordinary and, as the Court stated, this “necessarily requires that consideration be given to all the relevant circumstances in determining whether there are ‘exceptional circumstances’”;
e)further, “exceptional circumstances” is not a defined term for the purposes of s.473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon; and
f)AQU17 found, in agreement with Plaintiff M174, that 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 IAA to take into consideration must necessarily vary from case to case.
The applicant noted, in particular, [13]-[14] of AQU17 which the Court has highlighted above at [128].
With respect to the particular (“exceptional”) circumstances relevant to this this matter, the applicant submitted as follows in written submissions:
a)the e-mail raises claims that the applicant is being sought by the Sri Lankan authorities. This information was not provided earlier to the delegate, despite the delegate explaining to the applicant the need to provide it with all information.
b)the IAA noted that the applicant:
i)had received assistance from The Humanitarian Group; and
ii)has had access to Tamil interpreters, his home language being Tamil;
c)the applicant was not represented at the time of the delegate’s explanation and there is no evidence that he had an interpreter;
d)further, The Humanitarian Group did not represent the applicant or provide any legal advice;
e)Exhibit 2 is a bundle of documents presented to and prepared by The Humanitarian Group. The documents do not contain any legal advice and constitute no more than basic assistance in completing the application. At best, The Humanitarian Group provided assistance in completing the application and “writing (the) Statement of Claim”;
f)the IAA did not examine anything contained in the e-mail provided by the applicant. The only circumstances considered were that the applicant had access to interpreters, was assisted with the completion of forms and possibly the declaration and that the delegate had advised him of his obligations regarding the need to provide all his evidence and claims at a time when he was unrepresented and without an interpreter;
g)in failing to consider the information contained in the e-mail, the IAA was not and cannot be said to be in a position to consider the credibility of that e-mail (or the information in it). This is indicative of a lack of care on the part of the IAA;
h)it was incumbent on the IAA to make a finding on credibility and to find that the applicant lacked credibility pursuant to s.473DD(b)(ii);
i)it was not incumbent on the IAA to make a finding on credibility with reference only to the delay. Findings of credibility with regard to delay are not to be made, and cannot be made by the IAA in the same manner according to the same considerations as those made by the Administrative Appeals Tribunal;
j)with reference to considerations being made by the IAA in respect of exceptional circumstances, AQU17 held that the phrase “exceptional circumstances” is to be given a broad meaning along the lines of circumstances that are unusual or out of the ordinary and this “necessarily requires that consideration be given to all the relevant circumstances in determining whether there are ‘exceptional circumstances’”;
k)relevant circumstances such as the home language of the applicant, the use or otherwise of interpreters and The Humanitarian Group have been taken into account, but little else has; and
l)the IAA has therefore erred in considering how s.473DD of the Act when applied to the e-mail.
In oral submissions, Mr Draper for the applicant submitted:
a)what the IAA found was that as the applicant had received assistance from The Humanitarian Group, had had access to Tamil interpreters and there was no reasonable explanation as to why the information that was not provided could not have been provided to the delegate at the relevant time;
b)in reaching that conclusion the IAA relied solely on assumptions as to the advice provided by The Humanitarian Group and apparent access to interpreters;
c)Exhibit 2 does not indicate that the applicant was assisted by an interpreter and the documents do not contain references to the Act or any rights or obligations that the applicant has;
d)to assume that because The Humanitarian Group provided assistance does not entitle the IAA to assume that he received legal advice, nor that that legal advice notified him or informed him that he was obliged to provide the information in the e-mail to the delegate;
e)it is unreasonable for the IAA to assume that because the applicant may have had access to Tamil interpreters that he ought to have known that he was required to provide the information in the e-mail to the delegate;
f)the applicant has been unrepresented throughout this process and at the time this information was given he was an unrepresented and non-English-speaking applicant who was obliged to do things of which he had no knowledge. Further, he could not have possibly acquired that knowledge and this constitutes “exceptional circumstances” as provided for in AQU17;
g)the IAA has the power to test the credibility of any information that is placed before it to determine whether or not that information goes to credibility as per s.473DD(b) and it has the ability to consider the information before, or in order to, make a decision there are exceptional circumstances to admit that information;
h)section 473DD must be narrowly interpreted to mean that if new information appears before the IAA and if that information goes to credibility, it is at that point that the IAA must make its decision as to whether it should accept it or not. It cannot look at that information, acknowledge that it goes to credibility, and then extensively consider the content of that information, and then reject it. By considering the information without accepting it, the IAA would be in breach of the relevant section.
The Court is mindful of the authorities which warn against the admission of new evidence in judicial proceedings that was not before the decision-maker. Nonetheless, Exhibit 2 was tendered for the purpose of seeking to establish jurisdictional error in respect of the New Information Issue and for that reason the Court finds Exhibit 2 to be admissible: SZJMG v Minister for Immigration & Citizenship [2008] FCA 1145 at [2].
Minister’s Submissions
The Minister’s submissions filed 28 June 2018 refer specifically to Plaintiff M174. They provide:
a)the IAA’s reasons do not support the inference that the IAA misunderstood the breadth of s.473DD(a) and do not disclose any error;
b)the IAA’s careful examination of all of the new information demonstrated that it was very well aware of, and faithfully applied, the requirements of s.473DD;
c)when reading the reasons as a whole (and making allowance for the style and structure adopted by the IAA) there is no foundation for any argument that it misunderstood the scope of s.473DD;
d)section 473DD(a) and (b) set up cumulative, not disjunctive, requirements – hence, there is no need to make a specific finding about s.473DD(b) if an adverse finding has been made in relation to s.473DD(a);
e)the applicant gave no explanation for not raising this information previously and the IAA concluded that the applicant “was given ample opportunity to raise matters relevant to his application” (having set out what was said during the delegate’s interview);
f)the IAA did not simply advert to the previous opportunities given to the applicant to put forward everything he wanted to say; rather, the IAA dealt specifically with what was asked by the delegate of the applicant. The IAA did so fulsomely. It did not adopt an unduly narrow approach to this issue; and
g)the IAA’s reasons in this case are more fulsome than those in Plaintiff M174 as the IAA referred to the specific warnings the applicant had been given during the delegate’s interview including that:
i)the IAA can only consider material provided in the application to the Department unless exceptional circumstances apply;
ii)it was extremely important that the applicant give the Department full, personal and accurate protection claims as early as possible in the protection visa process;
iii)if the applicant did not give the Department all of his claims and any additional information he may have, and the application is refused, he might not have another chance to provide the claims; and
iv)the applicant was also specifically asked whether he had put forward all of the reasons why he needed protection and was advised that if further information was provided to the delegate, it may be taken into account before a decision was made.
The Minister’s submissions concerning AQU17 were that:
a)in the present case, as in AQU17, the question for the IAA was what, if anything, took the circumstances of the applicant’s case out of the usual or ordinary course to justify consideration of the information contained in the e-mail;
b)the IAA examined whether there was anything about the information contained in the e-mail or the applicant’s circumstances which meant that there were exceptional circumstances justifying consideration of that information;
c)read wholly, the IAA’s reasons do not suggest that the IAA focused solely on whether the information contained in the e-mail was information that could have been provided to the delegate; rather the IAA was properly concerned as to whether that information was credible;
d)in the present case, the IAA judged credibility by reference to delay in making discrete and important claims and given the features of pt.7AA of the Act, it would be an odd outcome if the IAA cannot make credibility assessments using a framework the Administrative Appeals Tribunal is entitled to use; and
e)as in AQU17 at [17], in this case the applicant cannot point to any fact or matter materially bearing upon the IAA’s consideration as to whether it was satisfied of the requirement under s.473DD(a) of the Act that was not taken into account and, had it been taken into account, would have materially borne upon its consideration.
At hearing, the Minister advanced the following submissions in reply:
a)whether or not the IAA is obliged to consider s.473DD(b) depends upon the particular facts of the case
b)there should be nothing surprising in and of itself that there’s no reference in the reasons to s.473DD(b)(i) and (ii);
c)the practice direction the applicant received indicated what was required in relation to new information and what the IAA received in the e-mail was “new information”. However, the IAA was not told what the exceptional circumstances were as to why it should be received and there was no real linking of the new material to s.473DD(b)(i) and/or (ii);
d)if the applicant had provided an explanation as requested in the practice direction then how the IAA addressed the new information in [6] would not have been sufficient;
e)having received the e-mail, the IAA undertook the best analysis it could. It had regard to the history of the case, which included the assistance of The Humanitarian Group. While the applicant submits that this is an unwarranted assumption, the important point is that it is not for the IAA to second guess what legal advice may or may not have been given to the applicant; and
f)bearing in mind the restrictive nature of pt.7AA and the fact that the IAA was not obliged to give reasons why it did not consider the e-mail was “new information” it cannot be said that the IAA misunderstood the breadth of exceptional circumstances for the purposes of s.473DD(a) in considering the e-mail against the context of what had occurred previously.
Consideration
The New Information Issue centres upon the IAA’s treatment of the e-mail outlined above at [9] and the letter and web link attached to that e-mail. There was no argument that this was not “new information”. The applicant himself referred to the e-mail as “new information” and “additional information” (CB 164-165).
The issue thus turns upon the effect of s.473DD as relevant to this matter.
The Court notes that the most helpful summary of the principles that have developed in respect of s.473DD provided by Thawley J in CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [26] (“CMY17”):
(1)The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13].
(2)The words ‘exceptional circumstances’ are not defined and are to be given their ordinary meaning; circumstances are ‘exceptional’ if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13].
(3)What will amount to ‘exceptional circumstances’ is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute ‘exceptional circumstances’, or one factor itself may be sufficient for ‘exceptional circumstances’ to exist: AQU17 at [13].
(4)The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:
(a)could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or
(b)is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49].
(5)Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are ‘exceptional circumstances’ for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether ‘exceptional circumstances’ exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether ‘exceptional circumstances’ exist under (a): AQU17 at [16].
(6)It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:
(a)the circumstances contended to be exceptional; and
(b)how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b): CQW17 at [71]-[72].”
Relevantly, in CMY17 the Court concluded that the IAA had not erred in circumstances where:
The appellant did not:
(1)make an express request for the Authority to consider ’new information’;
(2)identify the content of any new information which he wanted the Authority to consider;
(3)provide any fact or submission which put the Authority into a position where it could form a view about whether any such new information fell within s 473DD(b)(i) and (ii) on the basis that it:
(a)was not, and could not have been, provided to the Minister before the delegate made the decision; and
(b)was credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Here, although (regrettably) it is not entirely clear, the applicant appears to raise two (somewhat related) arguments in respect of the IAA’s consideration of the new information:
a)the first is that the IAA acted unreasonably or illogically in referring to the applicant’s previous “assistance” (from The Humanitarian Group and interpreters) as the basis for finding that there were not “exceptional circumstances” to consider the information. There was nothing in the materials to indicate the extent of the advice provided or that interpreters were available to the applicant and, as such, the fact that he had neither support or was able to understand what was happening means that exceptional circumstances did in fact exist; and
b)the second is that the IAA failed to consider the “credibility” of the information in the e-mail pursuant to s.473DD(b)(ii) in determining whether it should have considered the new information and it was obliged to do so.
In relation to the first argument, the Court does not agree that the IAA’s reasoning was illogical or unreasonable or that the references to The Humanitarian Group and interpreters were “wrong” (such that “exceptional circumstances” did actually exist in the circumstances of this case).
On one level, the fact that an applicant was unrepresented and/or non-English speaking cannot be seen to produce a situation that is out of the ordinary course, unusual, special or uncommon: AQU17 at [13]. It would, regrettably, more likely be an all too common scenario in relation to proceedings before the IAA.
The Court notes that the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [916] refers to matters that are not “exceptional” or would not justify the consideration of “new information”:
information which was available to the applicant at the primary stage and was not presented for unsatisfactory reasons;
general misunderstanding or lack of awareness of Australia’s processes and procedures;
…
The extent to which the IAA needed to consider whether the applicant was represented or assisted by another person or whether he was aware that he needed to supply all his claims is, at least arguably, irrelevant in light of Parliament’s intention. However, the breadth of “exceptional circumstances” is wide and subjective and the IAA had an area of freedom within which to consider those matters.
Importantly here, there was no information before the IAA that the applicant did not properly have representation and did not understand what was required of him. The fact that the IAA seems to imply that, in some circumstances, this might be an issue, is neither here nor there in circumstances where the applicant has never raised these factors as an issue or as an explanation for failing to do what was required of him.
Here, the IAA considered this issue on the basis of the (limited) information it had before it.
That information showed that the applicant’s declaration was interpreted to him and that he had declared that the information was true (CB 76).
Further, while the applicant may not have been on notice or had the knowledge at that time that he should present all his claims and evidence, it became apparent or was communicated to him in the processes that followed.
As the Minister correctly points out, the applicant was advised on a number of occasions that he needed to present his claims and evidence entirely as he might not have a further opportunity to do so. This included providing him with an information leaflet sent prior to the delegate’s interview. That information was provided in Tamil and indicated that it was important that he present all claims, that he may not be able to present new claims if the delegate refused his visa and included a section entitled “Your responsibility in relation to your protection claims” (CB 107-119). In this regard, it is noted that in his visa application the applicant indicated he could speak, read and write in Tamil (CB 43) and that he attended school until “grade 10” (CB 88).
The Court does not have before it a transcript of the delegate’s interview; however, the first portion of [6] of the IAA decision makes clear that the applicant was advised that he should put forward all of his claims and evidence. A Tamil interpreter also assisted the applicant at the interview (CB 108).
The IAA, perhaps giving the applicant the benefit of the doubt in light of his failure to provide an explanation of why the information should be taken into account, turned its attention to the surrounding circumstances. These were the only matters that the IAA could have regard to as they were the only matters apparent on the materials before them that could be “relevant”: AQU17. Those matters showed that some assistance from The Humanitarian Group had been provided and that interpretation services had also been made available.
As in CMY17, the applicant here did not provide any fact or submission which put the IAA in a position where it could form a view about whether s.473DD(a) of the Act applied. This placed the IAA in a position where it needed to determine if “exceptional circumstances” under s.473DD(a) existed on the basis of very limited information.
The IAA’s reasons in this case are not dissimilar from Plaintiff M174. The IAA in Plaintiff M174 referred to the applicant in that case having some legal assistance in preparing his application and noted that he was aware of the need to provide supporting documentation. The High Court found no jurisdictional error, noting that the reasons provided were “elaborately explained”, “eminently justified” and “open” to be made – hence, logical: Plaintiff M174 at [75].
It cannot be said in these circumstances that the IAA acted illogically or irrationally in finding that the applicant was, in effect, sufficiently aware of what was expected of him. The IAA assessed and worked with the information it had before it. It cannot be said that its assessment of that evidence was irrational or illogical in determining that no exceptional circumstances existed that would allow for the late provision of the e-mail and relevant attachment.
Turning to the second argument, insofar as the Court understands Mr Draper’s submissions, the applicant seems to submit that the “credibility” of the “new information” would inform the “exceptional circumstances” and that the IAA did not have regard to this under s.473DD(b). Mr Draper submits in written submissions at [21] that it was incumbent on the IAA to make a finding on credibility pursuant to “s.473DD(2)(ii)”. The Court assumes Counsel means s.473DD(b)(ii). Mr Draper then seems to submit (at [22]) that the IAA did make a credibility finding but did so on the basis of “delay” – something which, Mr Draper says, the IAA cannot do.
Referencing CMY17, the Court notes that the applicant here:
a)did ask the IAA, expressly, to consider the “new information”; and
b)did, albeit broadly, identify the content of the new information which he wanted the IAA to consider; but
c)did not provide any fact or submission which put the IAA into a position where it could form a view about whether any such new information fell within s.473DD(b)(i) and (ii).
There is no obligation on the IAA to specifically address and consider credibility under s.473DD(b)(ii) in determining s.473DD(a) – particularly in circumstances where the applicant has provided no information to the delegate as to why the new information is credible personal information which was not previously known.
The Court refers specifically to the decision of Thawley J in CMY17 at [26], wherein His Honour says:
(5)Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are ‘exceptional circumstances’ for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether ‘exceptional circumstances’ exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether ‘exceptional circumstances’ exist under (a): AQU17 at [16].
The Court also again highlights the decision in AQU17 at [14] as follows:
… 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.
The Court cannot see anything in the authorities cited that requires the IAA to make credibility findings under s.473DD(b)(ii). Those findings, if made, can be made and relied on in assessing whether exceptional circumstances exist under s.473DD(a).
That is what has occurred here. The IAA says here (at [5]) that the e-mail and letter raises new claims in regard to ill treatment but notes that the applicant did not provide any information about why he did not mention this claim earlier. This, along with the other factors assessed above, went against a finding that the new information should be allowed as per s.473DD(a). There is nothing lacking in this approach.
Insofar as the applicant then submits that any credibility finding that was made cannot reference the delay in providing the new information (which, here, referenced a new claim), the Court disagrees with any suggestion that is not a relevant focus for the IAA.
On one level, the “delay” was the only matter that was, in fact, relevant to the credibility of the claim in circumstances where no explanation was provided by the applicant.
Delay in providing a claim is a factor that can be taken into account in determining the credibility of a claim: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [30] (“WAIJ”); Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALR 347 at 349. It cannot be said that the regime of pt.7AA prohibits the IAA from taking into account a delay. The regime of pt.7AA was, in effect, enacted so as to prohibit or restrict an applicant from being able to raise new claims and evidence.
Both parties referred to WAIJ at [30], which provides:
In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented.
Here, any material that may have supported the new information being taken into account, such as an explanation, was not provided by the applicant. In those circumstances, the IAA considered the applicant’s individual circumstances and the limited information it had before it. It cannot be said on the facts specific to this case in that the IAA lacked care in relation to the delay issue. Rather, it did what it could to determine if the information was in any way exceptional and was not so satisfied.
Overall, on the basis of the above findings, the Court is not satisfied that the IAA has misunderstood or misapplied s.473DD of the Act. It cannot be said that the IAA’s findings were illogical or that it failed to address the requirements of the Act as clarified in the legal authorities referred to throughout this judgement.
No jurisdictional error arises in respect of the New Information Issue and s.473DD of the Act.
The 2006 Issue
The 2006 Issue was raised at a late stage by Counsel for the Minister as an issue the Court might need to address.
The 2006 Issue centres on a claim referred to at [56]-[57] of the delegate’s decision as follows:
56. The applicant stated that in 2006 he was called by name and was required to present himself at the CID office weekly to “sign”. Whilst at the office, the applicant stated he was asked whether he supported the LTTE and what was his role as a supporter. The applicant stated that he was aware the LTTE members were hiding in the forest near his village however the applicant denied any involvement with the LTTE.
57. The applicant stated when he reported for signing his hands were tied and sometimes his feet would also be tied and a black cloth inserted in his mouth. He would then be beaten stating the officer would kick him or stomp on his chest. The applicant stated that after thirty minutes, he would be permitted to leave and then told the officer responsible for dismissing him had left the office and he had to wait. According to the applicant, the maximum period of time that he was in the office was one and a half hours. Despite his injuries, the applicant was able to ride his bike home and also stated he sought medical attention as he was in a lot of pain.
Applicant’s Submissions
Through Counsel, the applicant’s written submissions were as follows:
(28)There is no express reference to the mistreatment issue by the Authority (Respondents Third Outline of Submissions, page 3, paragraph 26 (hereinafter [RTS 3, 26]).
(29)The Applicant’s Statutory Declaration, at [CB 74, 29], details the kidnapping and torture of the Applicant and his younger brother for three days by the CID.
(30)The Delegate records, at [CB 130, 13] that the Applicant was:
(i)harassed, kidnapped and tortured by the Sri Lankan army; and,
(ii)kidnapped and beaten by the CID for three days.
(31)The Authority states at CB 183-184 [17], that:
“I accept that in one such round up in 2006 the applicant was among those singled out for questioning and beaten by the authorities … [and] consider[s] the 2006 incident to be part of a routine round up of Tamils …”.
(32)This routine round up of Tamils is not the same incident described by the Delegate in (30) above. There is no mention or consideration of the kidnapping or torture of the Applicant by the Authority.
(33)And while it is accepted that Port of Newcastle Operations Pty Ltd v Australian Competition Tribunal [2017] FCAFC 124 does not require the reasons to be read with an eye ‘finely attuned to perceive error’, nonetheless, [at 163]:
“it is necessary to bear in mind the observations of the Full Court of this Court in Applicant WAEE v Minister for Immigration and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”
(34)The issue of torture and kidnappings have not been dealt with comprehensively or identified at all by the Authority and nor were the finding of the Applicant’s treatment at the hand of the Army and ‘Authorities’ dealt with at all and so cannot be said to be subsumed in the findings. The Authority has failed to deal with the 2006 Mistreatment Issue at all and a strong inference must be made that this issue has been overlooked by the Authority.
The Minister’s Submissions
The Minister’s submissions were as follows:
a)the delegate’s reasons record that during the interview the applicant “did not make any additions or amendments to his claims”; however, there is material to suggest that the 2006 Issue emerged during the responses given by the applicant to questions from the delegate;
b)the IAA summarises the applicant’s protection claims in 11 points, none of which expressly refer to the 2006 Issue; and
c)the IAA’s reasons should not be read with an eye finely attuned to perceive error and the IAA was obviously mindful of the delegate’s reasons and reviewed the issues arising therefrom.
Counsel for the Minister’s then made oral submissions as follows:
a)given the factual context in which the complaint about the 2006 Issue was put, the issue cannot be said to have been overlooked by the IAA;
b)the IAA accepted and said that when the applicant was visiting a sign-on session in 2006, he was detained and beaten and treated very badly; and
c)what is referred to at [56]-[57] of the delegate’s decision was accepted by the IAA and, accordingly, was not overlooked.
Consideration
The issue here seems to be whether the IAA overlooked a set of events that occurred in 2006 that were raised and addressed in the delegate’s decision.
The applicant’s submissions are misplaced. He appears to be referring to an incident in 1997. The IAA accepted that the 1997 incident occurred (CB 182 at [12]). The event described by the delegate occurred in 2006. The question here is whether that 2006 event was adequately assessed by the IAA.
The details in relation to this 2006 incident were not previously provided in the applicant’s declaration. It is inferred that these details were provided by the applicant in the course of the interview with the delegate.
While the IAA does not specifically detail the 2006 incident in its summary of the applicant’s claims, the IAA does refer to the applicant’s claim that “the SLA harassed, kidnapped and tortured him and his family because they assumed that they were associated with the LTTE” (CB 181 at [7], first dot point).
The 2006 incident was, in effect, evidence in support of the claim that the applicant would be imputed with a pro-LTTE political opinion as in the past he was harassed, kidnapped and tortured. The IAA made findings in relation to what had occurred in the past based on the applicant’s evidence of previous incidents. It accepted that the applicant was the subject of previous harm at the hands of the authorities.
The Court accepts the Minister’s submission that what the delegate is referring to at [56]-[57] is what the IAA addresses at [15]-[17], wherein the IAA states:
15. In his SHEV interview, the applicant referred to round ups by the SLA once or twice a month in his village following the end of the cease-fire and stated that in 2006 during a round-up exercise, he was asked to come and sign. The applicant was asked by the delegate what he meant by round up. He stated that “they will surround an area and ask everyone to assemble at the temple or school”…
16. When the delegate asked why the SLA would call him by name, he stated that once he’d been taken the first time, all his details would be with them…
17. I accept as plausible that in 2006 the applicant along with other people from his village was rounded-up, questioned and beaten about providing support to the LTTE following the end of the ceasefire. Country information confirms that after President Rajapaksa came to power in November 2005, there was an initial period of violence and short lived talks between the LTTE and the Government in December 2005 and January 2006 but that largescale violence resumed in April 2006. Given this and the applicant’s evidence about the LTTE’s presence in the forest west of his village and the fact that all persons living in LTTE areas necessarily had contact with the LTTE and its civilian administration in their daily lives, it is plausible that the army would conduct round-ups in the applicant’s village once or twice a month following the end of the cease-fire. I accept that in one such round up in 2006 the applicant was among those singled out for questioning and beaten by the authorities. I also accept that the army would have all the applicant’s details as a result of the 1997 incident. However, given the time elapsed since the 1997 incident and because I do not accept that the applicant was required to sign on with the army every week, I consider the 2006 incident to be part of a routine round up of Tamils and unrelated to the 1997 incident.
As is apparent, the event described by the applicant at [56]-[57] of the delegate’s decision is not expressly referred to by the IAA as a “kidnapping” or “torture”. Nonetheless, even though the IAA did not use those terms in [15]-[17], it cannot be said it failed to consider these elements. Rather, it can be seen that the substance of what is stated in [56]-[57] of the delegate’s decision is considered and addressed by the IAA.
The IAA did not need to refer to kidnapping as it was the applicant’s own evidence that he reported to the authorities on this occasion after being called to “sign” and that he was beaten and questioned when doing so. The applicant did not use the term “torture” in describing the event in question. The IAA simply adopted what was purportedly the applicant’s description of what had occurred.
Whether what occurred was torture or not, the IAA clearly considered the incident at [17] and accepted that the applicant was the subject of what he said occurred – that is, that he was questioned and beaten.
The 2006 Issue was addressed. Having read the IAA’s decision as a whole, the Court is satisfied that the IAA considered each of the applicant’s claims to fear harm on return to Sri Lanka – including those arising from previous harassment, kidnapping and torture.
Conclusion
The Court thanks the Minister, who raised the New Information Issue and 2006 Issue to ensure that the applicant (initially unrepresented) was not prejudiced by his lack of legal knowledge.
The Court also thanks Mr Draper for taking on this matter at a very late stage. He assisted the applicant in presenting his case on what are clearly complex issues. His efforts in that regard are noted and appreciated.
Despite these best efforts, however, for the reasons outlined above, the Court is not satisfied there is any error arising in the IAA’s decision.
The application must, accordingly, be dismissed.
I certify that the preceding one hundred and ninety two (192) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 5 July 2019
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