CVU17 v Minister for Immigration
[2018] FCCA 3618
•14 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVU17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3618 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority erred in failing to consider applicant’s claims – whether Authority erred in applying the “real chance” test – whether the Authority erred in considering certain documents as “new information” – no jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36, 473CA, 473CB, 473DC, 473DD |
| Cases cited: Buadromo v Minister for Immigration & Border Protection [2017] FCA 1592 |
| Applicant: | CVU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2017 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 24 October 2018 |
| Date of Last Submission: | 24 October 2018 |
| Delivered at: | Sydney |
| Delivered on: | 14 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Kumar |
| Solicitors for the Respondents: | Mr K Eskerie, Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 15 June 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 16 January 2017 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2017 of 2017
| CVU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision made by the Immigration Assessment Authority dated 15 June 2017. The Authority affirmed the decision of a delegate of the Minister for Immigration to refuse the grant of a Safe Haven Enterprise (subclass 790) visa, a type of protection visa.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia at the Cocos Islands as an unauthorised maritime arrival on 10 October 2012. On 14 March 2016 the applicant applied for a protection visa.
The applicant’s claims were summarised at [5] of the first respondent’s submissions which I adopt for the purposes of this judgment:
...
a) The applicant is a Tamil male from Batticaloa in the Eastern Province of Sri Lanka. When he was two, his family was displaced following anti-Tamil riots. He and his family were also displaced on two occasions during the war.
b) After the Indian Army occupied the Eastern Province, the applicant’s father was accused of driving a tractor for the Liberation Tigers of Tamil Eelam (LTTE) and was detained and tortured.
c) In 1995, the applicant was abducted from his house by four armed Tamil Eelam Liberation Organisation (TELO) youths and two Criminal Investigation Department (CID) officers. He was questioned about his family and relatives, and was beaten repeatedly. In a different incident, the applicant’s father was also taken and physically abused by TELO youths and made to pay money.
d) In 1997, a friend from school named ‘K’ came to live with the applicant. It subsequently emerged that K had joined the LTTE and was doing intelligence work for them. K later joined the Karuna group and was accused of having taken money from the LTTE.
e) The applicant produced artworks for the LTTE, including signboards. On one occasion in 2003, he was threatened by military people when attending a cultural event.
f) On 12 April 2004, the applicant was accosted at gunpoint by two men who were looking for K. The applicant was beaten and questioned about K’s whereabouts. He later learned that the LTTE had taken K, and that K believed the LTTE would look for the applicant. His parents went searching for the applicant at the LTTE office, and when told that he was being held for an inquiry, lodged a complaint with the Sri Lankan Human Rights Commission (SLHRC). The applicant did not keep a copy of the complaint.
g) Following his release, the applicant left Sri Lanka and lived in Abu Dhabi until 2009, visiting Sri Lanka once during that period (in 2007) to marry.
h) On numerous occasions between 2009 and 2010, a man from the Sittandy office of the Karuna group, named ‘IB’, tried to get the applicant to speak with him by sending him letters and making threats but the applicant refused and went into hiding.
i) In 2010, IB called the applicant and threatened to kill him if he did not give him information about where K had hidden 2 million rupees, which he had stolen from the LTTE.
j) In March 2012, the applicant went to Murunkan for the birth of his daughter. When returning to his cousin’s house, he saw a man called J, who he had previously seen with IB. His wife informed him that two CID men had come to his house in Sinna Urani. He went to Singapore for two months, before returning to Sri Lanka, where he remained until coming to Australia.
k) Since being in Australia, the applicant’s wife and parents had told him that CID officers had visited his home looking for him on various dates. He did not keep in touch with K after coming to Australia. He continued to paint after coming to Australia and painted a controversial memorial, which he feared may give him an increased profile if returned to Sri Lanka (CB 286).
(Emphasis in original, without alteration)
The applicant claimed that while in Australia he had been involved in training courses, teaching art on a voluntarily basis and had participated in art exhibitions. It will be necessary to consider these activities in some detail when addressing grounds 3 and 7 in the application.
On 16 January 2017 a delegate of the Minister refused to grant the applicant a protection visa and the matter was referred to the Authority for review pursuant to s.473CA of the Migration Act 1958.
On 16 February 2017 the applicant’s migration agent forwarded written submissions to the Authority and a statutory declaration of the applicant. Annexed to that statutory declaration was an article[1] from 2004 showing a picture of artwork he had painted and two photographs that he had recently found online which showed artworks that he had completed, the first while in Sri Lanka and the second in Australia.
[1] “NorthEast to observe Annai Poopathi anniversary”, TamilNet, Sunday, 18 April 2004, 11:01 GMT.
On 15 June 2017 the Authority affirmed the decision of the delegate not to grant the applicant a protection visa.
Authority’s decision
The Authority had regard to the materials referred to it under s.473CB of the Act and then turned to consider if the further materials provided by the applicant’s migration agent was “new information” within the meaning of s.473DC of the Act.
The Authority considered the applicant’s statutory declaration, in which he included information concerning the involvement of his father with the LTTE and his paintings being published online, was “new information”. Given the information was not before the delegate and the applicant was given ample opportunity to provide evidence and information relevant to his protection claims prior to the delegate’s decision, the Authority was not satisfied that the new information was credible personal information or that there were exceptional circumstances to consider it.
The Authority first considered the applicant’s claims to fear harm on the basis of his “Tamil ethnicity, imputed political opinions and perceived links to the LTTE”. The Authority accepted certain aspects of the applicant’s version of past events from 1980 up until 2009 as were supplied previously in a protection visa application and before the delegate. It did not accept an incident in 2004 where the applicant claimed he was questioned and beaten by six men who were looking for K.
The Authority did not accept the applicant’s claim that his parents lodged a complaint that his life had been threatened by the LTTE with the Human Rights Commission of Sri Lanka on 11 October 2004. Further, the Authority had “significant concerns” in relation to the applicant’s evidence in respect of the claimed threats from IB upon the applicant returning to Sri Lanka in 2009. It found it unlikely “that a person who had never met the applicant would express such an interest in him and seek him out to the degree” that the applicant was claiming, concluding that the applicant had concocted the story in an attempt to strengthen his protection claims.
It also was not satisfied that the CID visited the applicant’s wife in 2012 looking for the applicant as there was no information to indicate that the CID, Sri Lankan authorities or anyone for that matter had any interest in the applicant at this time. The Authority formed the view that the applicant travelled to Singapore for a holiday rather than out of fear for his life.
At [25]-[26] the Authority considered whether the applicant faced a real chance of harm on account of his producing artwork for the LTTE and his works being exhibited in Australia since his arrival and was not satisfied that any chance of harm would befall him for this reason.
The Authority accepted that during the civil war the applicant had been displaced, that his father had been interrogated, that he had had altercations with paramilitary youths due to his ethnicity and that these incidents amounted to serious harm. It found that the incidents in 2003 and 1995, although credible, were isolated and based on the applicant’s own evidence that he had never associated with the LTTE other than providing occasional artwork to them during 2003 and 2004 and had not suffered from threats, harassment, interest or harm as a result of his artwork, the Authority was not satisfied that the applicant or his family would be imputed with an LTTE profile.
The Authority then considered if the applicant would face any chance of harm as a returning Tamil asylum seeker who had departed the country illegally. It noted that while the applicant claimed his deteriorating mental health put him at risk of failing to answer questions that may be put to him at the initial screening interview, and therefore subject him to further interrogation, it was satisfied the applicant would present himself in such a demeanour that he would not be identified for further interrogation. In any event, having referred to the country information on this issue and its earlier finding that there was no credible evidence that the applicant was a person of interest to the police, Sri Lankan authorities or any other person or group, it was not satisfied the applicant faced a real chance of harm upon return to Sri Lanka.
The Authority concluded the applicant did not meet the definition of a refugee and so did not satisfy the criterion in sub-s.36(2)(a). It then turned to consider the complementary protection obligations in sub-s.36(2)(aa) of the Act. In this respect the Authority essentially relied on its earlier findings to conclude that the criterion was not met. For those reasons, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
Consideration
The applicant sought leave to rely on an amended application filed outside of the time allowed by the Court’s orders. He did not press grounds 5, 8 and 9. The Minister did not oppose the applicant being granted leave to rely on the amended application as pleaded, however opposed the applicant having leave to recast or argue the particulars of ground 7 in the manner he contended in his written submissions. I will address this when considering ground 7.
Ground 1
In ground 1 the applicant contends that the Authority failed to realistically consider the applicant’s claim that his father had links with the LTTE. Much like the phrase “proper, genuine and realistic” the addition of “realistic” to consideration adds little, if anything to the decision-maker’s obligation to consider claims and risks a slide into merits review: Buadromo v Minister for Immigration & Border Protection [2017] FCA 1592 at [45] (Flick J) and the cases cited there. As Rares and Robertson JJ said in Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216 at [45], albeit in a different context:
What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. ...
In his statement the applicant said that from time to time the LTTE would come to his house and demand that his father drive their own tractor and that his father was unable to refuse as they were an armed militant group. The applicant’s oral evidence was that his father was arrested and taken under gunpoint to an Army camp where he was detained and received a shoulder injury due to systematic torture having been accused of driving a LTTE tractor.
At [9] of its reasons, the Authority stated that it accepted the applicant’s version of past events contained in his statement, application and at interview. Those events included his father’s involvement with the LTTE. Further, at [28] of its reasons, the Authority expressly accepted that the applicant’s father had been interrogated and found that this amounted to serious harm. However, having accepted those factual claims, it was not satisfied that they led the applicant or his family to have, or be suspected of having links to the LTTE. The essential reason for that conclusion was that the last credible incident had occurred over 20 years ago and there had been no repercussions or questioning relating to any perceived links to the LTTE following the end of the conflict in 2009.
It is plain that the Authority considered the applicant’s claims about his father: it accepted them. That consideration was realistic in the sense that it addressed the possible consequences of the accepted facts and came to a conclusion about that on the basis of a logical inference drawn from the applicant’s own evidence.
Ground one is rejected.
Ground 2
In ground 2 the applicant contends that the Authority failed to take into account the applicant’s claim that he was abducted by TELO, did not “realistically consider it” and did not make “appropriate findings” in respect of the claim. I repeat what I said about the qualification of “realistic” in respect of ground 1. Further, it is unclear what the “appropriate findings” the Authority should have made were.
At [13] of its reasons, the Authority considered and accepted the applicant’s claims that he was abducted by four TELO paramilitary boys and two CID officers, was kept overnight at their camp and interviewed to find out if he was aware of any boys at his school who had joined the LTTE and that his father had secured his release by paying 15,000 rupees. The applicant’s father was also detained by TELO, tortured and forced to pay a sum of money for his release.
The Authority also expressly referred to this claim at [28] of its reasons, accepting that the applicant had had “altercations with paramilitary youths during the years of the conflict as a result of his Tamil ethnicity”. However, for the same reasons it gave in respect of the claim concerning the applicant’s father (see [20] above), it found that there were no ongoing consequences of these events. For the reasons I have given in respect of ground 1, this shows that the Authority did consider the claim concerning the TELO and the CID officers.
Ground 2 is rejected.
Ground 3
The applicant contends in this ground that the Authority failed to consider the applicant’s previous artworks and his diaspora artwork activities and failed to assess whether this would come to the attention of the authorities and in doing so did not ask itself the correct question.
In order to determine whether the Authority did deal with this claim it is first necessary to examine the details of the claim.
On 30 August 2016 the applicant attended an interview with the delegate of the Minister for the purposes of the visa application. After that interview, his migration agents made written submissions to the delegate[2]. In those submissions, the agents made the following claim:
[2] Exhibit A, p.283.
As an accomplished artist in the Brisbane community on a bridging visa, [the applicant] was approached to display his art showcasing the conflict in Sri Lanka and Tamil culture. He painted images of war and suffering, as well as Tamil culture and history. He painted an image of Mullivaikal memorial from photographs. The memorial is located in India because the memorial is banned in Sri Lanka. Mullivaikal is a place in the Mullaithivu District where over 70,000 Tamils were killed in 2009. [The applicant’s] painting was displayed at the annual commemoration in Brisbane. [The applicant’s] artwork was featured in 11 art exhibitions in Brisbane, Toowoomba and Northern NSW, and in an SBS report [The applicant] did not reveal his identity or his face for fear of being recognised by the Sri Lankan authorities. He paints using the pseudonym [K]. His profile would have increased as a result of these activities and that on re-entry to Sri Lanka, there is a more than remote chance that [the applicant] will be subjected to further detention and possibly significant physical ill-treatment in the course of questioning on the basis of his imputed political opinion.
(Identifiers omitted, emphasis added)
In her decision the delegate accepted that the applicant had engaged in the claimed activities and appeared to accept that he had been the subject of a television report[3]. However, when assessing the risk of harm that might arise as a result of these events, the delegate took into account the fact that the applicant had not revealed his identity or his face and that he paints using a pseudonym[4].
[3] Exhibit A, p.317.2.
[4] Exhibit A, p.321.9.
In his submissions to the Authority the applicant’s agent referred to the artwork claim and wrote:
28. The Delegate erred by failing to consider all evidence, specifically the SBS report which highlights that the applicant was involved in Refugee Week and showcases a painting of two Sri Lankan Army offices harming a woman. It is evident that such a painting is not in relation to the cultural activities of the Tamil community, but directly draws attention to the atrocities committed by the Sri Lankan authorities; an experience of the applicant. As submitted by the Delegate a pro-LTTE profile or being seen as a critic of the current government as being risk factors: Decision at [pg 14]. It is evident that through his artwork which draws attention to the refugee and human rights crisis, the applicant falls within this profile and is likely to be subjected to serious harm if returned.
29. Given that the authorities continue to monitor activities of individuals overseas and the public domain in which this SBS report was made available, it is plausible that the authorities are aware of the applicant’s pro-Tamil opinion.
(Emphasis in original, without alteration)
The Australian artwork claim was not included in the Authority’s summary of the applicant’s claims at [9] of its reasons for decision; however, it did consider the claim at [26]:
Concerning the applicant’s claims that he has a well-founded fear of persecution on the basis of this artwork in Australia, the applicant’s representative refers to artwork in Australia and a SBS report which was considered by the delegate. I accept that the applicant is an artist and that he continued his artwork after his arrival in Australia. As I have discussed above, I have not accepted that CID officers visited the applicant’s home after he left Sri Lanka in 2012. There is no credible information in front of me that any of his artworks have come to the attention of the Sri Lankan authorities or anyone for that matter. The applicant stated at his interview that he was in regular contact with his wife and family back in Sri Lanka and he has not mentioned that there has been any interest expressed by anyone in Sri Lanka on the basis of his artwork in Australia. Considering the lack of any adverse interest in the applicant and also there being no credible evidence before me that indicates that his artwork came to the attention of the Sri Lankan authorities or any other paramilitary body or that he faced any repercussions, or any questioning relating to his artwork or having suspected links to the LTTE I am not satisfied that there is a real chance of him facing harm amounting to serious harm on the basis of his producing artwork for the LTTE or his artwork being exhibited in Australia.
(Emphasis added)
The Authority appears to have accepted that the applicant had created artwork in Australia depicting atrocities committed by the Sri Lankan authorities during the civil war. Its conclusion that that did not give rise to a real chance of serious harm was not based, as the delegate’s decision was, on the anonymity of that artwork, or the fact that the applicant had not revealed his face or name in the television documentary. Rather, its reasons were:
a)there was a lack of interest in the applicant;
b)there was no credible evidence that the artwork had come to the attention of the Sri Lankan authorities or other paramilitary body; and
c)the applicant had faced no repercussions or questioning relating to his artwork or having suspected links to the LTTE.
This reasoning purported to deal with the potential impact of the applicant’s artwork in both Sri Lanka and Australia; however, only the second of the Authority’s reasons could have had any rational connection to the Australian artwork claim. That is because the events constituting that claim only took place after the applicant had arrived in Australia and so could not have been known to anybody prior to his departure from Sri Lanka. The question, then, is whether the second reason given by the Authority was legally sufficient.
The problem with the second reason is that it focusses solely on the past. While it may be that it is logical to draw conclusions about the probability of future events from what has, or has not, occurred in the past that does not necessarily provide an answer to this issue. That is because, given the nature of the claim (being one arising in Australia, or sur place), what has occurred already in Sri Lanka is not likely to be the most reliable guide as to what will happen when the applicant returns there from Australia. This was explained in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574:
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. …
The Authority’s focus on what has already happened indicates that it has not properly assessed the likelihood of future harm. It ought to have considered, as the delegate appears to have, what was the likelihood of the applicant’s Australian artwork coming to the attention of the authorities in Sri Lanka and, in the event that there was some chance, what was the likelihood of the applicant being seriously harmed as a result. The Minister argued that the Authority did not have to make those inquiries because the applicant’s claim was that the authorities had already found out about the applicant’s Australian activities (see [31] above). I disagree. This is a case where a claim that the authorities might find out about the applicant’s Australian artwork was implicit in his claim or, put another way, one that clearly arose on accepted facts.
I consider that the Authority fell into error in failing to ask these questions. In effect, it asked itself the wrong question and so constructively failed to exercise its jurisdiction.
Ground 4
In this ground the applicant contends that the Authority failed to give realistic consideration to the claim that his parents lodged a complaint with the Human Rights Commission of Sri Lanka advising that the applicant’s life had been threatened by the LTTE.
The Authority expressly considered, and rejected, this claim at [15]. However, the applicant argued that the Authority simply brushed aside supporting evidence in the form of untranslated documents. That is not correct. The Tribunal rejected this claim because it rejected the underlying factual claim that the applicant had been questioned about his involvement with K. It explained that the untranslated documents did not overcome its concerns about those claims. That explanation reveals that the untranslated documents were taken into account but were simply insufficient to quell its doubts.
Ground 4 is rejected.
Ground 6
The applicant alleges that the Authority failed to give realistic consideration to the claims that the applicant was being harassed by a man named IB, a former LTTE combatant he alleged to be “one of the most dangerous Tamil men”, from December 2009. In support of this claim the applicant submitted a number of letters whereby the “Political Affairs Office of the Tamil People Liberation Tigers” required the applicant to present himself for questioning in regards to “certain important matters”. The applicant claims the Authority fell into error as it had simply considered the letters on the basis of the written translated contents rather than actively engage with these.
Contrary to the applicant’s contention, the Authority dealt in some detail with the applicant’s claims concerning IB and set out a number of significant concerns regarding the applicant’s claimed threats by IB at [18]-[21] of its reasons. These included that the letters the applicant provided to support this claim were unconvincing, and that it was unlikely that IB took an interest in the applicant to the extent the applicant claimed having never met him and that the timeline of the events the applicant claims occurred was concerning. Considering all of the applicant’s evidence and placing no weight on the letters the applicant offered in support, the Authority was not satisfied of any claimed threats by IB.
In light of those matters, the applicant’s true complaint is that the Authority did not accept the applicant’s claim about IB. That may be so, but it only attacks the merits of the decision and does not amount to jurisdictional error.
Ground 6 is rejected.
Ground 7
As it appears in the amended application, ground 7 attacks the Authority’s findings in relation to new information regarding the applicant’s artwork in Sri Lanka; however, in the applicant’s submissions, as far as they can be understood, this ground was framed as an attack on the Authority’s finding that it could not consider country information provided by the applicant. Rather than paraphrasing the submission, it is best to set it out.
At [41] of his written submissions, the applicant submits:
… the Authority did not properly consider the legislation, particularly s 473DD and exceptional circumstances.
However, in the following paragraph, he makes the following, apparently inconsistent, submission:
The information that the Applicant submitted was not “new information” but country information on claims already made and information already submitted. … the Applicant submits that the country information was not new information but some corroborative information.
Then the applicant says, somewhat confusingly:
... The IAA took the matters that were raised but in respect of which new information was sought too narrowly.
At [44] of his submissions, the applicant submitted:
The Applicant submits that the IAA misconstrued s 473DD and thereby committed jurisdictional error. The additional information was “corroborative” only and was not caught by s 473DD. The Applicant submits that the IAA erred under s 473DD in not considering the information and has erred in the interpretation of “exceptional circumstances” under s 473DD of the Act.
In other words, the applicant says both that the “country information” was not “new information” and that the Authority was wrong to find that it could not consider it under s.473DD. However, s.473DD only applies to “new information” and so the argument is internally inconsistent.
In his oral submissions, the applicant appeared to rely solely on the first argument, namely, that the information in question was not “new information” because it was “directed at an existing pool of factual information which was before the delegate”: see Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80 at [35]. His submissions were also focussed on the photographs sent to the Authority with the submissions rather than the country information.
Section 473DD of the Act prohibits the Authority from considering “new information” except in the circumstances set out in that provision. “New information” is defined by s.473DC(1) to mean information and documents that:
...
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
In Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 the plurality explained, at [24]:
The term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). …
(Citation omitted)
These provisions were later explained in CLV16 relevantly as follows:
35 The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to such matters as:
• the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or
• the reasons why “new information” should be considered, including a “submission” as to why such “new information” satisfies the criteria in s 473DD.
…
54 The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority – and to have the Authority in fact consider – a submission directed to an established pool of factual information.
…
74 The constraints imposed by s 473DD, and the power of the Authority to entertain a “submission” so confined, cannot he [sic] subverted by the simple expedient of a visa applicant’s attempt to force upon the Authority for consideration “new information” under the guise of a submission. To the extent that a visa applicant seeks to do so and where the “new information” does not meet the requirements of s 473DD, however, the Authority can properly place to one side any such “new information” and not take it into account. The fact that difficulties may be encountered in a single document headed “submissions” which may contain a mixture of arguments as to the consequences flowing from established facts and interwoven new factual material confers no licence upon a visa applicant to force upon the Authority a “duty” to consider new material which does not meet the requirements of s 473DD or a licence upon the Authority to disregard the constraint imposed by s 473DD. Although such difficulties may be accepted, those difficulties cannot preclude a visa applicant from advancing his or her claims in such a manner as he or she sees fit. It remains for the Authority to sort the wheat from the chaff.
On one view, if it is correct that the “information” in the country information provided by the applicant to the Authority was before the delegate, then the point goes nowhere. That is because the Authority considered that information, albeit in the form in which it appeared before the delegate.
That said, the argument must be rejected for another reason. That is that the applicant suggests that “new information” does not include “information” that was directed at an existing pool of information. That is another way of putting one of the applicant’s written submissions (see [47] above), namely, that information that is corroborative of information that was before the delegate is not “new information”. That is inconsistent with the ordinary meaning of “information”, the plain text of s.473DC(1) as well as with the authority of CLV16. The reference to “existing pool of factual information” at [35] in that case was made to explain that the limitation in s.473DD was imposed on adding to that pool and not to any submissions addressed to the consequences that ought to derive from that pool.
The applicant effectively abandoned reliance on s.473DD and I need not consider it.
This ground is rejected.
Conclusion
The Authority fell into error in failing properly to consider the impact of the applicant’s artistic activity in Australia. Its decision must be quashed and the matter be remitted to it for determination according to law.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 14 December 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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