FEDERAL COURT OF AUSTRALIA
CVV16 v Minister for Home Affairs [2019] FCA 1890
ORDERS
WAD 592 of 2018 BETWEEN: CVV16
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
MORTIMER J
DATE OF ORDER:
15 NOVEMBER 2019
THE COURT ORDERS THAT:
1.Pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), the appellant has leave to adduce new evidence on the appeal, being the oral evidence of the appellant given on 3 September 2019 and the…
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Details
- Case
- [2019] FCA 1890
- Decision Date
CaseChat Overview and Summary
The appeal concerns a decision of the Immigration Assessment Authority (IAA), a statutory body that reviews decisions of the Minister for Home Affairs, to refuse a protection visa to the appellant, a citizen of Sri Lanka. The appellant, who is of Tamil ethnicity, arrived in Australia by boat and lodged an application for a Safe Haven Enterprise Visa on 24 February 2016, which was supported by an undated statutory declaration. The appellant's application was ultimately refused by a delegate of the Minister on 25 July 2016. This decision was referred to the IAA for review, which affirmed the decision on 23 September 2016. The appellant sought judicial review of the IAA’s decision, but the Federal Circuit Court dismissed the review application on 26 November 2018. The appellant now appeals the decision of the Federal Circuit Court.
The central issue before the court was whether the IAA failed to consider new information when it reviewed the appellant's visa application and, if so, whether this was a material error that justified overturning the IAA’s decision. The appellant argued that the IAA failed to consider information from the Human Rights Commission of Sri Lanka (HRCSL), which had the potential to satisfy the statutory requirement that the IAA only consider new information if "exceptional circumstances" exist. The appellant submitted that the HRCSL documents were credible and had not been previously known to the Minister. The appellant also argued that the IAA had misconstrued or misapplied s 473DD of the Migration Act 1958 (Cth). The court found that the IAA had indeed failed to consider the HRCSL documents, which the court found to be credible personal information that had not been previously known to the Minister. The court held that the IAA’s failure to consider this information was a material error that warranted overturning the IAA’s decision. The court also found that the appellant was entitled to adduce fresh evidence on the appeal, which included affidavits and translated documents from the HRCSL.
The court allowed the appeal and set aside the orders of the Federal Circuit Court, directing that the matter be remitted to the IAA for redetermination. The court also ordered that the Minister pay the appellant’s costs of the appeal and judicial review application. The court noted that if the parties could not agree on the amount of costs, the matter would be referred to a Registrar for determination.
The central issue before the court was whether the IAA failed to consider new information when it reviewed the appellant's visa application and, if so, whether this was a material error that justified overturning the IAA’s decision. The appellant argued that the IAA failed to consider information from the Human Rights Commission of Sri Lanka (HRCSL), which had the potential to satisfy the statutory requirement that the IAA only consider new information if "exceptional circumstances" exist. The appellant submitted that the HRCSL documents were credible and had not been previously known to the Minister. The appellant also argued that the IAA had misconstrued or misapplied s 473DD of the Migration Act 1958 (Cth). The court found that the IAA had indeed failed to consider the HRCSL documents, which the court found to be credible personal information that had not been previously known to the Minister. The court held that the IAA’s failure to consider this information was a material error that warranted overturning the IAA’s decision. The court also found that the appellant was entitled to adduce fresh evidence on the appeal, which included affidavits and translated documents from the HRCSL.
The court allowed the appeal and set aside the orders of the Federal Circuit Court, directing that the matter be remitted to the IAA for redetermination. The court also ordered that the Minister pay the appellant’s costs of the appeal and judicial review application. The court noted that if the parties could not agree on the amount of costs, the matter would be referred to a Registrar for determination.
Orders
Orders of the court
1. Pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth), the appellant has leave to adduce new evidence on the appeal, being the oral evidence of the appellant given on 3 September 2019 and the following affidavits, together with the exhibits to those affidavits:
(a) Affidavit of Patricia Ng Phaik Kim dated 22 June 2019;
(b) Affidavit of CVV16 dated 24 June 2019;
(c) Affidavit of the father of CVV16 dated 30 August 2019;
(d) Affidavit of Ganasan Arujunan dated 30 August 2019; and
(e) Supplementary affidavit of CVV16 dated 14 August 2019.
2. The appeal be allowed.
3. The orders of the Federal Circuit Court made on 26 November 2018 be set aside, and in lieu thereof, order that:
(a) The decision of the Immigration Assessment Authority made on 23 September 2016 be set aside.
(b) The matter be remitted to the Immigration Assessment Authority, differently constituted, for determination according to law.
(c) The first respondent pay the applicant’s costs of the application, to be fixed by way of a lump sum.
4. The first respondent pay the appellant’s costs of the appeal, to be fixed in a lump sum.
5. If lump sums are agreed between the parties in respect of orders 3 and 4, proposed orders reflecting that agreement are to be filed on or before 29 November 2019.
6. In the absence of proposed orders filed in accordance with paragraph 5, the question of appropriate lump sums for the appellant’s costs of the appeal, and of the judicial review application to the Federal Circuit Court, are to be referred to a Registrar for determination.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons I set out below, the appeal will be allowed. Relevant background The appellant is a citizen of Sri Lanka and is of Tamil ethnicity. The appellant arrived on Cocos Island by boat on 13 October 2012 and was first interviewed on 2 January 2013. He lodged an application for a Safe Haven Enterprise (subclass 790) Visa (SHEV) on 24 February 2016 which was supported by an undated statutory declaration. There is no explanation in the evidence why there was such a delay between the appellant’s arrival and the lodgement of his visa application. The appellant was interviewed by a delegate of the Minister on 23 June 2016 and his application for a visa was refused in a decision on 25 July 2016. The decision of the delegate was, by operation of s 473CA of the Migration Act 1958 (Cth), referred to the Immigration Assessment Authority for review on 26 July 2016. The Authority affirmed the decision not to grant a protection visa to the appellant on 23 September 2016. The appellant sought judicial review of the Authority’s decision on 3 October 2016. There was a single ground of review before the Federal Circuit Court, concerning the Authority’s approach to s 473DD of the Migration Act, and whether “new information” on which the appellant sought to rely should be considered by the Authority. As I have noted at [1] above, the judicial review application was dismissed. The appellant’s claims and the parties’ contentions are set out in the Federal Circuit Court’s reasons and I do not repeat them here, save where necessary to consider the grounds of appeal. I do, however, note this aspect of the process leading to the appeal. The substantive orders dismissing the judicial review application were made on 26 November 2018 by Judge Street, with ex tempore reasons. On 13 December 2018, the appellant filed a notice of appeal, although it was dated 6 December 2018. Judge Street’s formal reasons were not given until 1 February 2019.The appeal to this Court Initially, there was a single ground of appeal to this Court which was pressed. The extent to which it overlapped with the grounds pressed before the Federal Circuit Court was a matter the Minister initially disputed, but this was resolved at the hearing of the appeal by a clarification on behalf of the appellant. The ground is expressed thus:1.The primary Judge erred in not finding that the Immigration Assessment Authority, by not considering ‘credible personal information’ from the Human Rights Commission of Sri Lanka as capable of informing the requirement of ‘exceptional circumstances’ under paragraph 473DD(a) of the Migration Act 1958 (Cth), misconstrued or misapplied section 473DD. Section 473DD provides:473DD Considering new information in exceptional circumstances 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.
Evidence
Evidence Before The Court
In my opinion, for the reasons I set out below, it does. Indeed, I have concluded the ground should succeed: in those circumstances, and in the absence of any proven prejudice or proven unfairness or conscious disregard for the matters found in s 37M of the Federal Court of Australia Act 1976 (Cth), it is in the interests of the administration of justice for leave to be granted, and also for leave to be granted to adduce new evidence on the appeal.The evidence Belatedly, the appellant’s counsel accepted that the appellant required leave to adduce fresh evidence on the appeal, pursuant to s 27 of the Federal Court Act. The Court has the power to permit fresh evidence to be adduced on appeal. While this power is relevantly unconfined, there are well-established principles for the exercise of the Court’s discretion under s 27. I referred to these principles in Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [30]-[31] and I adopt the opinions I expressed in those passages. In respect of the first condition, and as I have dealt with at [57] above, no legal representative was aware of what the appellant claimed had happened until the day of the appeal hearing, nor of the factual basis for the fresh evidence. In respect of the second condition, as I have found on the existing grounds of appeal, the Commission documents had obvious probative value as they corroborated the appellant’s account of what happened to him. In my view, it is therefore appropriate to exercise the discretion to grant leave to adduce the fresh evidence. The evidence relied upon in support of the new ground was:(a)Affidavit of Patricia Ng Phaik Kim dated 22 June 2019 annexing a transcript of the delegate interview; (b)Affidavit of CVV16 dated 24 June 2019 annexing a translated version of his father’s Human Rights Commission Sri Lanka (HRCSL) letter dated 29 January 2010 and deposing evidence in relation to the assistance he received applying for a protection visa and his recollection of the delegate interview;(c)Affidavit of CVV16’s father, whose name should not be reproduced in these reasons, dated 30 August 2019 annexing the untranslated HRCSL letter and HRCSL acknowledgement cards;(d)Affidavit of Ganasan Arujunan dated 30 August 2019 annexing an amended part of the transcript of the delegate interview; and(e)Supplementary affidavit of CVV16 dated 14 August 2019 further deposing evidence in relation to the delegate interview. There was no challenge by the Minister to the accuracy of the transcript of the delegate interview. The substance of the appellant’s evidence-in-chief (contained in a principal and supplementary affidavit), as it relates to the new ground was:(a)He was assisted to complete his protection visa application by a volunteer from an organisation called “The Humanitarian Group”. That person took his statement and filled in the application form for him.(b)He gave that person a set of documents, which included the Commission documents.(c)The organisation had so many asylum seekers to help that they could not assist him to lodge his visa application within time, and two extensions were sought. Eventually it was lodged on his behalf by that group. (d)The appellant deposed that the application the group helped him complete is contained in the Appeal Book, but he also stated “[t]here were a lot of missing information in the application form”. It was not clear what he meant by this evidence: it may be a reference to what the delegate did at the interview, by filling in missing information: see (i) below.(e)There is a reference in his protection visa statement (to which I have referred earlier in these reasons) to a Human Rights Commission letter that he would bring to the interview. He deposed that what he was referring to was the English translation of his father’s letter to the HRCSL dated 29 January 2010.(f)He deposed (at [16], and [19]-[21]):I also told the delegate at the SHEV interview that my father took me to Human Rights Commission to lodge a complaint on 29 Jan 2010.I have now listened to the audio recording of the SHEV interview held 3 years ago, and to the best of my recollection I am quite certain that I tried to give the HRCSL documents to the delegate but the delegate said she had all the documents without even looking at the documents I was trying to give her. At that time my father’s letter dated 29 Jan 2010 to the HRCSL was in Tamil language.I have now annexed the English translated version of my father’s letter marked JN1. My lawyer pointed it out that the date on the translated copy was written as 09 Jan 2010. This is an error by the translator who has mistaken the date “29” as “09” because of the way my father wrote the no. 2.I apologise for not being able to state more firmly at what stage of the interview I tried to give the delegate the HRCSL documents.(g)In his supplementary affidavit, he deposed that he still has the originals of the HRCSL’s letter of acknowledgement of complaint on 29 January 2010 and the two HRCSL cards. The original of his father’s letter was, obviously, sent to the HRCSL, but the appellant deposed he has the copy his father sent him.(h)The four documents were posted to him by his father sometime between July and October 2015. He cannot remember the exact date and month. (i)At [5]-[9] of his supplementary affidavit, the appellant gave evidence about what happened at the interview:At some point during the interview on 23 June 2016, the interviewer said there was some information missing in my application.The interviewer then stopped the recording. She went through the application form and was asking me questions and filling in the missing information while I was answering.At that time, the interviewer had documents spread out on the table nearer to her. These included copies of documents which I had given to the Humanitarian Group, and looking at the documents I did not see the HRCSL documents I referred to above (AB 232-237).I remember showing her the HRCSL documents, including a copy of my father’s letter sent to HRCSL (in Tamil), but she didn’t take them and told me she already had everything. But I can’t remember exactly when this happened.At the end of the interview, she said I could send documents but I didn’t send these documents to her because I already tried to give them to her at the interview and she said she had them, so I assumed she had them.
Decision
Reasons for decision
The notice of appeal contained a second ground, concerning an alleged denial of procedural fairness by the Federal Circuit Court, but in his written submissions counsel for the appellant stated the ground was not pressed. At the hearing, counsel indicated leave would be sought to raise a further ground of appeal. I deal with this issue separately at [49]-[58] below. The aspect of the Authority’s decision impugned by the appellant The material which was the subject of the decision under s 473DD is set out at [5] of the Authority’s reasons (with redactions to prevent the appellant being identified) :5. The applicant has submitted the following documents to the IAA:•untranslated letter dated 29 January 2010 bearing a receipt stamp of that date with the emblem “HRCSL” − Regional Centre Vavuniya;•complaint receipt confirmation dated 29 January 2010 from the Human Rights Commission of Sri Lanka (HRCSL), Vavuniya addressed to the applicant’s father;•two Human Rights Commission of Sri Lanka cards bearing separate reference numbers;•documentation concerning complaint made to the HRCSL on 29 January 2010 by the applicant’s father;•reference from the Church of the American Ceylon Mission, [REDACTED] dated 1 September 2013;•birth certificate showing a year of birth as 1995 (untranslated);•letter from the [REDACTED] Rural Development Society, Vavuniya dated 20 February 2010 (untranslated);•untranslated document;•untranslated document in the form of a letter dated 23 August 2013;•untranslated document apparently bearing the date 8 October 1997. The ground of appeal does not challenge the Authority’s decision on the untranslated documents, but focussed on the Human Rights Commission documents and the letter from the American Ceylon Church. It cannot be disputed that one of the appellant’s central claims of prior persecution had referred to a complaint to the Human Rights Commission, arising out of what on the appellant’s narrative was a serious incident of kidnapping and physical assault and injury perpetrated on him by people the appellant claimed were part of, or associated with, the Sri Lankan authorities. This is how the Authority described this aspect of the appellant’s narrative: On 14 January 2010 in Vavuniya the applicant was kidnapped, tortured and held for 12 days; two people came in a van and kidnapped the applicant when he was on the street. They wore black uniforms and their faces were masked. The applicant was restrained and blindfolded and over the 12 days he was detained, he was tortured and accused of helping the LTTE When the applicant refused to answer questions or confess to anything he was cut on the arm with a blade and he bears a scar from this. He was released after 12 days in a bus terminal. The applicant was taken to the human rights commission of Sri Lanka by his father and he has a human rights letter regarding this event. Following this the applicant stayed with his mother for three months and then obtained work in a bike shop. He did not return home to live with his parents;
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.