DAS18 v Minister for Immigration

[2019] FCCA 3754

FEDERAL CIRCUIT COURT OF AUSTRALIA

DAS18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3754

Catchwords:
MIGRATION – Judicial review of decision of Immigration Assessment Authority to refuse SHEV – refusal to exercise discretion to consider a psychiatric report submitted to Authority outside period provided in the relevant practice direction – unreasonable exercise of discretionary power –decision quashed.

Legislation:

Migration Act 1958 (Cth)

Cases cited:

BVD17 v Ministerfor Immigration and Border Protection (2019) 93 ALJR 1091

Applicant: DAS18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 576 of 2018

Judgment of: Judge Young

Hearing date: 26 November 2019

Date of Last Submission: 26 November 2019

Delivered at: Darwin

Delivered on: 26 November 2019

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant: In person

Counsel for the Respondent: Ms Clark

Solicitors for the Respondent: Clayton Utz

Counsel for the Respondent: Ms Clark

Solicitors for the Respondent: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the second respondent quashing the decision of the second applicant dated 31 May 2018.

2. A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 9 February 2018.

3. The first respondent henceforth be referred to as “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

BRG 576 of 2018

DAS18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

IMMIGATION ASSESSMENT AUTHORITY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application for judicial review of a decision of the Immigration Assessment Authority made on 13 June 2018 to affirm a decision of the Minister’s delegate made on 9 February 2018 to refuse the applicant a Safe Haven Enterprise Visa (“SHEV”). 

3. The applicant’s background, which I will refer to briefly, is that he was born in the Northern Province of Sri Lanka during the civil war.  He said that he and his family initially moved from their home town in Kilinochchi to another town in Northern Province, Vavuniya, to avoid the war. The applicant says, as I understand it, that his family moved back to Kilinochchi after the end of fighting but he stayed in Vavuniya, going to school and living with his uncle. He says that in 2013, evidently the beginning of 2013, he moved back to Kilinochchi to where his family was living.

4. He says that while he was in Kilinochchi in 2013 he came to the attention of the Sri Lankan army because they were suspicious that any male of military age who had been absent for any particular period of time from his home town, as the applicant had been, was a member of the Liberation Tigers of Tamil Eelam, LTTE. The applicant made various claims: that he was regularly interrogated by soldiers and that soldiers had come to his parents’ home and asked his parents about his whereabouts. He said that he had been called to the army barracks on one occasion and was interrogated for 20 minutes and then released. The applicant left Sri Lanka in 2013 and travelled to Australia. He said that, after he left for Australia, soldiers from the Sri Lankan army went to his parents’ home and took a photo from the wall. He said that he was suspected of LTTE membership and was at risk of harm should be returned to Sri Lanka for that reason. 

5. The Authority reached various factual conclusions about the applicant: accepted his identify and accepted that he was a Tamil born in Northern Province but was concerned about some inconsistent claims. In particular, the Authority referred to what it saw as inconsistencies in the chronology offered by the applicant. At paragraph 10 of its decision it refers to inconsistencies in the time he said that he had moved, or he and his family had moved, to Vavuniya as being variously 1996, 2005 or 2007. The Authority was also concerned about inconsistencies in the applicant’s claims about when he had moved back to Kilinochchi, variously five months before his departure for Australia or one month before his departure for Australia. The Authority was of the view that if he had departed only one month after moving to Kilinochchi that was inconsistent with his claim that the Sri Lankan army had taken an interest in him and he was at risk of harm because of that.

6. There were other inconsistencies identified by the Authority. He said that he had first come to the attention of the Sri Lankan army when he was helping his mother or, on another occasion, when he was playing cricket. He gave, according to the Authority, inconsistent information about when he had been harassed or questioned by the army. The applicant asserted that he suffered from a medical condition: panic attacks and nightmare, as a result of his experiences in Sri Lanka. He said to me today that the relevance of that was that he had trouble recounting a history as a result of his disturbed mental state and that explained the inconsistencies in the information he had given. The applicant, in his SHEV statement, had stated that he suffered from mental health problems as a result of his experiences in Sri Lanka. In his SHEV statement he said briefly and simply:

   I suffered mental harm and still get nightmares and panic attacks.

   As far as I can see in the SHEV statement there is no claim that he is unable to give a reliable history because of mental disturbance or mental ill health.

7. The delegate recorded the applicant’s claims and referred to them and noted that there had been no assessment undertaken of the applicant’s mental health and that the applicant had not provided any medical evidence to support his claims that he had suffered mental health issues or that that was an ongoing problem. The delegate was not satisfied that the applicant suffered mental illness as a result of this harassment by the Sri Lankan army and concluded that the claims were spurious and intended to enhance his protection claims.

8. The applicant’s application for a SHEV was, after the delegate’s refusal on 9 February 2018, referred to the Authority by the Secretary under Part 7AA of the Migration Act. The date of referral was 14 February 2018. On 21 March 2018 the applicant, possibly assisted by a lawyer (it is unclear), sent an email to the Authority.

9. The applicant told me from the bar table today that he was represented by Mr Kurdimar, a solicitor and migration agent in Darwin. Nevertheless, the email is not signed by the solicitor. The email is in the applicant’s own name. Relevantly, the email asks for permission “to submit a few documents” including original identity documents and a “doctor’s assessment certificate”.

10. In relation to the “doctor’s assessment certificate”, so-called, the email contained this statement:

    The doctor’s assessment certificate/letter is also necessary to confirm aspects of my mental health-related issues, following the trauma and torture I suffered and how that relates to my difficulties in answering questions in interviews. I have only just received these documents and hence they could not be submitted earlier.

    A few sentences further on the email said:

    The above is credible personal information and highly relevant to my application.

11. Somewhat confusingly, the email also said:

    I should have all the documents ready by next week.

    That is confusing as it is said that the documents had been “just received”. However, I consider it probable that the “doctor’s assessment certificate” was in the possession of the applicant.

12. On the same day the Authority replied by email and said to the applicant:

    I refer to your correspondence of 21 March 2018, requesting additional time to provide new or further information. Your request has been considered, but not granted in this case. Under the Practice Direction for Applicants, Representatives and Authorised Recipients, any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department.

    The email went on to say:

    As the case was referred on 14 February 2018, this 21 day period ended on 7 March 2018 and the IAA is not satisfied that the circumstances warrant extending the time in this case. The IAA takes into account that you have been aware of these issues for some time and have had plenty of opportunity to provide information.

    The last sentence is presumably a reference to the fact that the delegate’s adverse decision was made on 9 February 2018, which had only been a few weeks before. 

13. The guidelines to which the Authority refers are those made under s. 473FB of the Migration Act which provide that the President may in writing issue directions not inconsistent with the Act or the regulations as to the operation of the Immigration Assessment Authority and the conduct of reviews by the Authority. Relevantly, sub-sections 4 and 5 say:

    (4)  If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

    (5)  The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or to continue to hear a person in an interview, if the person fails to comply with a relevant direction that applies to that person.

14. It is clear from the practice direction, as is it clear from the Act itself, that the Authority is not required to get new information nor is it required to receive new information but it may consider new information in exceptional circumstance, having regard to the matters in section 473DD of the Act. In my view, the guidelines reflect that, particularly at guideline 33:

    At our discretion, we may decide not to accept new information that does not comply with these requirements.

15. I interpret the guideline as saying, consistently with the Act, that the Authority may exercise a discretion to get new information, notwithstanding that it is not provided within the 21 days provided for in the guidelines.

16. I am satisfied that at the time of the email of 21 March 2018 from the Authority to the applicant, it had a discretion to get and consider new information if the requirements in ss. 473DC and 473DD were satisfied.  The only matters referred to in the Authority’s email are the guidelines, in particular the 21 day guideline. The final paragraph suggests that the Authority is aware that it may extend the time, in other words, exercise a discretion to receive new information, and seems to say, however, that the applicant has been aware of “these issues for some time, and had had plenty of opportunities to provide information”. 

17. That assertion, I think, must be read in the context of the delegate’s decision having been made on 9 February 2018, and the referral date being 14 February 2018, and the 21 days provided for in the guidelines, expiring on 7 March 2018, and that the request made was merely 14 days beyond the 21 days provided for in the guideline. Where the applicant said that he had a “doctor’s assessment certificate” relating to his mental health issues, it appears to me that if the Authority was acting reasonably, it was called on to consider whether that information was not only new information, including whether it may be relevant to one of the issues on the application, which it was in my view, but whether the requirements in s. 473DD applied. 

18. The applicant’s mental health was clearly an issue, even if it was an issue only to the extent of being rejected as spurious by the delegate and disbelieved by the Authority. The High Court’s decision in BVD17 v Ministerfor Immigration and Border Protection (2019) 93 ALJR 1091 makes it clear that the Authority is not required to provide reasons for procedural decisions such as a decision whether or not to disclose, for example, the existence of a 473GB certificate. Arguably, a decision about whether to accept material even if only a short time outside the 21 day guideline is a similar procedural decision for which reasons are not required and an absence of reasons is not a basis for inferring that the discretion was not exercised reasonably.

19. In my view, the discretion that is referred to in the guidelines at paragraph 33 must be exercised reasonably. The Authority has given reasons for failing to exercise a discretion in favour of the applicant. It simply emphasises the time limit, which appears to be a circular argument to me. It goes on to say that the applicant has been “aware of these issues for some time” and he has had “plenty of opportunity to provide information”. 

20. However, the fact that he was disbelieved about his mental health was presumably apparent to the applicant a few weeks before, following the delegate’s decision on 9 February 2018. Given the notorious slowness, or difficulty, in obtaining doctors’ reports it appears to me to be an overstatement to say that, in relation to any medical evidence, that he has had “plenty of opportunity to provide information”. I do not accept that was the case. The “doctor’s assessment certificate” referred to in the email was tendered in evidence to me today and is very inadequately described as a “doctor’s assessment certificate”. It is, in fact, an eight and a half page psychiatric report from a Dr Tamoor Mirza, who, judging by the report, appears to practise in Darwin. 

21. The report states on page 1 that he, Dr Mirza, met the applicant on two occasions, on 27 February and 16 March 2018, and he prepared the report shortly after. It is dated 19 March 2018. The report is detailed, and it offers a diagnosis of post-traumatic stress disorder and it says that such a disorder would affect - and explains how - the applicant’s ability to provide a coherent or chronological history. While the report does not directly go to the nature of the applicant’s protection claims, it certainly appears to go to matters relevant to his credibility and particularly the adverse credibility findings by the Authority that it did not accept that his mental health problems (a) existed or (b) were responsible for any inability to provide a sequential or orderly chronology of events.

22. To that extent, it appears to be an important document. It is regrettable that the email from the applicant did not describe the document in detail and give the Authority some information about why it was important, its contents and the fact that it was prepared by a psychiatrist. I am satisfied that the discretion the Authority had to consider exercising was, if the “doctor’s assessment certificate” was new information, as it was, whether it could be considered pursuant to s.473DD. That discretion was not properly exercised by simply referring to the 21 day time limit (and when the time had expired by only 14 days before on my calculation).

23. In my view the Authority was mistaken when it said that the applicant had plenty of opportunity to provide the information. It seems that he had a very limited opportunity to provide information. I am satisfied that the discretion referred to in paragraph 33 of the practice directions, that is, to accept new information outside of the 21 days, was not exercised reasonably.

24. However, had the material been considered, at least, by the Authority, there are some salient points relating to the history provided by the applicant to Dr Mirza.

25. A matter that is emphasised in the history taken by Dr Mirza, that is, as a “history of traumas”, relates to a claim made by the applicant that, in Vavuniya, where he had gone to school, there had been incidences of harassment and looting by Sri Lankan army soldiers. He claimed that, on one occasion, there was a violent confrontation between soldiers and the applicant, other members of his family and others and a shot was fired, one civilian was shot in the leg and that the applicant had seen his father injured and drenched in blood. As far as I am aware from the material, that is not mentioned anywhere else, although I have no carefully examined all of the material.

26. As far as I can see, it is not mentioned in the delegate’s decision or in the Authority’s decision. So the report itself raises further serious questions about the applicant’s credibility. However, it is not for me to make a finding about the applicant’s credibility. I raise this because it goes to the question of materiality. On a rehearing by the Authority of this application it might be that there is no different outcome, having regard to the matters that I have mentioned, and the very serious doubts about the applicant’s credibility, but neither am I sure that the jurisdictional error of the Authority could not have deprived the applicant of a successful outcome, having regard to the complex nature of a credibility assessment. 

27. I am satisfied there has been jurisdictional error and I propose to quash the Authority’s decision and remit it for rehearing.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date: 19 December 2019