DBJ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 590
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DBJ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 590
File number(s): SYG 2151 of 2017 Judgment of: JUDGE MANSINI Date of judgment: 1 July 2024 Catchwords: MIGRATION – protection visa – reinstated application for judicial review of decision of Immigration Assessment Authority – where the Authority did not misconstrue the “exceptional circumstances” threshold in deciding not to consider new information not before the delegate – where the Departmental Secretary’s failure to provide certain material to the Authority was material – jurisdictional error established – application allowed with costs. Legislation: Migration Act 1958 (Cth) ss. 36, 65, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 474
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021(Cth) rr.13.06
Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401
BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443
Craig v South Australia [1995] HCA 58
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Division: Division 2 General Federal Law Number of paragraphs: 75 Date of hearing: 30 April 2024 Place: Sydney Counsel for the Applicant: Mr Chia Counsel for the First Respondent: Mr Knackstredt Solicitor for the First Respondent: Clayton Utz ORDERS
SYG 2151 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DBJ17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANSINI
DATE OF ORDER:
1 JULY 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship and Multicultural Affairs.
2.The application as reinstated on 14 August 2023 is allowed.
3.A writ of certiorari issue bringing the record of the decision of the Second Respondent dated 13 June 2017 in file number IAA16/01363 affirming the decision of a delegate of the First Respondent not to grant the Applicant a protection visa into this Court and quashing it.
4.A writ of mandamus issue directing the Second Respondent to re-determine, according to law, the Applicant’s application to it for review.
5.The First Respondent pay the Applicant’s costs fixed in the amount of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
The Applicant is a citizen of Sri Lanka who sought protection in Australia primarily on the basis of claims to fear that, on return, harm would be occasioned by militant groups because of his Tamil ethnicity and imputed political opinion.
The Applicant now seeks judicial review of an administrative decision to affirm an earlier decision to refuse him a protection visa.
For the reasons that follow, the application is allowed with costs.
CONTEXT
The Applicant is of Hindu faith, Tamil ethnicity and a citizen of Sri Lanka. At the time of these reasons, he was 70 years of age.
Having arrived in Australia as an irregular maritime arrival, in May 2016 the Applicant applied for a safe haven enterprise (subclass 790) visa.
On 3 November 2016, a delegate of the First Respondent refused to grant the visa.
On 13 June 2017, the Immigration Assessment Authority (Authority) affirmed the delegate’s decision on review.
The Authority’s reasons
Relevant to the grounds of review, the decision maker’s reasons commenced with a summary of the material before it and included reasons for certain “new information” being considered or not considered: at [2] to [13].
The Authority then summarised the Applicant’s claims including: to have been threatened (by letters), pressured, harassed, taken away, detained and tortured by the Tamil Makkal Viduthalai Pulikal (TMVP) because they wanted his son to join them and who continued to come looking for him after he departed Sri Lanka: at [14].
The Authority accepted certain of the Applicant’s claims as plausible including that: the Applicant’s son would have been seen as a potential recruit for paramilitary or other Tamil political organisations at 20 years of age (in around 2005); the TMVP may have applied pressure on the Applicant and his son in this respect; the Applicant feared his son’s forcible recruitment and arranged for his son to live in Hong Kong; and the son’s failure to join would have angered the TMVP: [22] and [23] of the reasons. The Applicant’s fear of extortion was accepted as plausibly held: at [28]. The Authority also accepted that the Applicant had been detained by the Liberation Tigers of Tamil Eelam (LTTE) in 2002 for some 2.5 months on account of his role as President and Treasurer of local Hindu temple groups and was forced to work in the garden and assaulted: [31] of the reasons. The Applicant’s subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lankan authorities was also accepted: [37] of the reasons.
Various of the Applicant’s other claims were found to be inconsistent or implausible including with reference to certain country information about the TMVP presence in Sri Lankan provinces, and the Authority determined that it was not satisfied that the TMVP had any interest in the Applicant because of his son’s profile or his involvement in the temples or that its members had continued to harass, threaten, track down or torture him: [22] to [27] of the reasons. Nor was the Authority satisfied that the Applicant was at risk of extortion: [28] of the reasons.
The Authority took into account that the Applicant had never claimed and produced no evidence that he had any further contact with the LTTE since his detention or claimed to have been harassed, abused or threatened in any way by them and was not satisfied of a real chance of serious harm from the LTTE on the Applicant’s return or any imputed association of support for the LTTE: [32] and [33]. The Authority applied country information in the form of the UNHCR guidelines and found that the Applicant does not and will not have any profile arising from any real or suspected links to the LTTE and there were no claims or evidence before the Authority that the Applicant had or will have any of the other profiles identified in the guidelines: [37] to [38] of the reasons – notwithstanding that the Applicant claimed his family was displaced during the conflict, he lost property and his farm was destroyed and because he was provided with emergency assistance and was able to return to his house in Puttalam, his wife had since returned to the farm and was able to support the family: [38]. The Authority further considered the absence of a claim to have suffered harassment, discrimination or violence by the Applicant or his family because of being Hindus, and found that the detention by the LTTE was due to his access to temple funds and not his religion itself: [39].
Not having been found to suffer serious harm as a result of his religion in the past and there being no evidence to suggest he faced a real chance of serious harm for this reason should he return to Sri Lanka, the Authority further concluded no satisfaction that the Applicant had a real chance of serious harm on the basis of being a Tamil, a Tamil from the East or a Hindu: [39] to [40].
Finally, the Authority was satisfied that the Applicant had departed Sri Lanka illegally and would possibly be assessed as having sought asylum from Australia but, having regard to the country information before it, concluded that the Applicant would not be at risk on the basis of any adverse security or criminal profile, and there was not a real chance he would be subjected to harm on return as a returning asylum seeker: [41] to [42]. The Authority did pay regard to the likelihood that the Applicant would be subjected to penalties for his illegal departure as was the law of Sri Lanka, considered there to be a real chance that the Applicant would be charged and fined under that law, but that he would not be treated differently to any other returnee and with a not guilty plea would likely be bailed on personal surety – which, on the Applicant’s evidence of his financial circumstances, would not constitute serious harm although he may be briefly detained which also would not constitute serious harm: [43] to [45].
The Authority’s findings were summarised at [47]. The Authority then articulated that it had considered the Applicant’s claims cumulatively and, having found the Applicant to have no adverse profile with and be of no interest to paramilitary organisations, was satisfied that those claims would not impact a cumulative assessment. Further, that the Applicant does not face a real chance of serious harm as a Tamil, a Tamil from the East and being a returned asylum-seeker who fled Sri Lanka illegally and these claims also did not alter the conclusion whether considered cumulatively or in combination: at [48] of the reasons.
The Authority’s final disposition as to the criteria at ss.36(2)(a) and (aa) of the Migration Act 1958 (Cth) (Act) were recorded at [49] and [57] of the reasons.
THIS APPLICATION FOR JUDICIAL REVIEW
Materials relied upon
The Applicant relied on the:
(a)Court Book filed 30 October 2017;
(b)Supplementary Court Book filed 19 July 2018;
(c)Affidavit of Lecia Stark made 19 July 2018 and filed 24 July 2018, annexing transcript of the Applicant’s departmental interview on 31 August 2016;
(d)Further Supplementary Court Book filed 25 September 2023, only to the extent that it contained a letter dated 29 August 2016 (the remainder being opposed by the First Respondent); and
(e)Affidavit of the Applicant made on 26 September 2023, but served on the Minister’s solicitors in unsigned form on 25 September 2023 (the late receipt of which was not opposed by the First Respondent).
The Applicant and the First Respondent also filed outlines of written submissions. The Applicant also provided a bundle of case authorities.
Procedural context
On 10 July 2017, the Applicant filed an initiating application in this Court which was accompanied by a supporting affidavit.
On 19 July 2018, the Applicant filed an amended application.
On 2 March 2022, the proceeding was listed before a Judicial Registrar of this Court and adjourned due to the Applicant’s non-appearance.
On 30 March 2022, the proceeding was again listed before a Judicial Registrar of this Court. The Applicant again did not attend the hearing and the matter was subsequently dismissed pursuant to rule 13.06(1)(c) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules).
On 2 August 2023, the Applicant filed a reinstatement application which was accompanied by an affidavit and an outline of submissions. Those materials indicated that the Applicant was then represented by a legal practitioner.
On 14 August 2023, the application for reinstatement was heard in person by the Court as presently constituted and the orders of 30 March 2022 were set aside. The substantive application for judicial review was set down for final hearing and various programming orders were made.
On 30 April 2024, the matter proceeded to final hearing before the Court as presently constituted. The Applicant and First Respondent were respectively represented by Counsel.
Grounds of judicial review
By the amended application, the Applicant identified 3 grounds of judicial review in the following terms:
1.The second respondent (Authority) misconstrued and misapplied the term ''exceptional circumstances" in section 473DD of the Migration Act 1958.
2.Further or in the alternative, the Authority's statutory function of review was subverted by:
a.the failure by the Secretary of the first respondent's department to provide to the Authority material given by the applicant at his protection visa interview: or
b.representations made which gave rise to the expectation that the material would be provided to the Authority.
3.Further or in the alternative to 1 and 2, the Authority failed to consider an integer of the applicant's claims and thereby constructively failed to exercise its jurisdiction.
Particulars
The Authority reasoned at [32] that the applicant "has never claimed ... that he has had any further contact with the LTTE or been harassed, abused or threatened in any way" after 2002.
The applicant claimed in his statement dated 8 September 2013 that in 2005 he was being "continuously harassed by LTTE".
(sic.)
Statutory framework
A “privative clause decision” as defined at s.474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s.476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [76].
The task on judicial review is not to undertake a general review of the decision or substitute it with a decision which the Court considers ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds the most important of which is jurisdictional error. And, where appropriate, to order that the matter be remitted and reconsidered according to law: see Craig v South Australia [1995] HCA 58 as cited in BIJ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 443 at [19]-[20].
The grant of a protection visa is (and at the relevant times, was) confined by the criteria at s.36 of the Act. Relevant to the present application, ss.36(2)(a) and (aa) provides (and, at the relevant times, provided) that “a” criteria for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
An administrative decision maker is required to refuse to issue a visa absent the requisite state of satisfaction that the criteria applicable to the visa application are satisfied: s.65 of the Act.
Division 3 of Part 7AA of the Act governs the conduct of a review by the Authority of a “fast track reviewable decision” which, relevantly, includes a decision to refuse to grant a protection visa to a “fast track applicant”.
The Authority must review a “fast track reviewable decision” referred to it by the Minister under s.473CA of the Act.
Section 473DB provides that the Authority must review a fast track reviewable decision based upon the “review material” provided to it by the Secretary at the time the decision was referred. With limited exceptions, the Authority must conduct its review without accepting or requesting “new information” and without interviewing the referred applicant: ss.473DB(1), 473DC and 473DD.
Where any “new information” has been, or is to be, considered by the Authority under s.473DD and would be the reason or a part of the reason for affirming the decision under review, the Authority is required to give it to a referred applicant: s.473DE. However, the Authority is not required to give a referred applicant any material that was before the Minister when the Minister made the primary decision: s.473DA(2).
By s.473EA of the Act, a Part 7AA decision of the Authority must be accompanied by a written statement which sets out both “the decision” on review and “the reasons for the decision”.
As concerns the present application, the statutory framework and principles applicable to the conduct of a fast track review by the Authority are outlined in relation to each ground below.
GROUND 1
The Authority misconstrued and misapplied the term ''exceptional circumstances" in section 473DD of the Act
The first ground of the amended application is concerned with the Authority’s power at s.473DD of the Act. Specifically, the Applicant contended that the Authority’s decision not to consider his new claims (new information about the Applicant’s son’s involvement with paramilitary groups in Sri Lanka) involved an error in the application of the meaning of “exceptional circumstances”. In their submissions, the Applicant elaborated to say that the error was in the nature of having determined that the Authority was not satisfied of exceptional circumstances pursuant to s.473DD(a) without having first reached the state of satisfaction as to whether both limbs at s.473DD(b) were met.
The First Respondent argued the contrary and contended there was no error of jurisdiction in this respect.
Applicable principles
Part 7AA is taken to be an exhaustive statement of the rules of natural justice and it is subject only to those provisions that the Authority must review a fast track reviewable decision. The Authority is to conduct such review by considering the review material provided to it and must do so “without accepting or requesting new information” and “without interviewing the referred applicant.”: s.473DB of the Act.
Subdivision C of Part 7AA, most relevantly at s.473DD, concerns how the Authority may “consider” new information that was not before the Minister when the decision was made under s.65. Specifically, s.473DD of the Act 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.
It is well established that the Authority must first assess the information against the criteria provided by s.473DD(b) before then proceeding to make an assessment under s.473DD(a). In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17) the consequences of a failure to make such assessment was cast by the High Court of Australia, at [12], in the following terms:
The result, as has been recognised by the Federal Court in numerous other cases[ BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at 224-225 [9], 230 [35]-[37]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at 144-146 [102]-[112]; CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148 at 158-159 [44]‑[45]; Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at 259 [47]-[49], 260 [51].], is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)[ Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at 259-260 [50]].
Whilst a written statement of the Authority’s decision on review and the reasons for the decision is required, the Authority’s role is not to engage in a “formulaic” analysis of the statutory criterion at s.473DD(b). Depending on the particular circumstances, it may be sufficient if a Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]. Further, s.473DD is a procedural power and the Authority is therefore not obliged to give reasons for its exercise or non-exercise: BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 at [68].
Consideration
Subject of this first ground was the Applicant’s written submission to the Authority dated 7 December 2016, which included new claims about his son’s involvement with paramilitary groups. Specifically, the alleged error was said to relate to the information contained therein comprising the Applicant’s claims that his son had been forcibly recruited to the LTTE, that the Applicant’s son had escaped and surrendered to the leader of the TMVP who threatened to hand the son over to the Sri Lankan army if he did not help them.
The Authority’s written statement canvassed whether to consider the new claims subject of this first ground at [5] to [9] of the Authority’s reasons.
There, the Authority commenced by summarising the Applicant’s stated reasons for not providing the new claims during the application process and at the interview with the delegate on 31 August 2016 in terms that he had been afraid to provide his actual claims and evidence during the application process and at the delegate’s interview but was now able to provide the true story: at [5].
The Authority considered the transcript of the Applicant’s entry interview and the other referred materials and recorded its satisfaction that the new claims in the Applicant’s written submission of 7 December 2016 constituted new information: at [6].
The Authority then considered the guidance provided to the Applicant about the procedure and the importance of making full and accurate claims and possible limitation on raising new claims at a later stage, if his application was refused: at [7] and [8]. Further, the opportunity afforded to amend or add to the claims and provide additional information: at [8].
At [9], the Authority concluded, in relation to whether to consider this new information, as follows:
I am satisfied that even though the applicant was not represented, the importance of the process was explained clearly and he was given every opportunity to make his claims to the Department. I do not accept the applicant’s explanation of why he did not raise these significant claims before. I am not satisfied that there are exceptional circumstances to justify considering these new claims.
As will be apparent from the above, the Authority recorded brief written reasons for not considering the new claims subject of this first ground. That said, in doing so, the Authority did not disclose its reasons for declining to consider the new information subject of this first ground by precise reference to the limbs of ss.473DD(b)(i), (ii) and, in turn, s.473DD(a). On the authority to which the Court was taken in AUS17, there was no obligation on the Authority to do so provided that the Court can discern that the substance of the criteria prescribed by s.473DD(b) has been considered prior to the consideration of whether exceptional circumstances exist for the purposes of s.473DD(a). The inference contemplated in APH17 was not an adverse inference to be drawn on the basis of what is not said, but rather a positive inference to be drawn (that the requisite assessment has occurred) with regard to the substance of the criteria at s.473DD(b).
Here, the Authority’s cognisance of certain essential facts as to satisfy itself that limb s.473DD(b)(i) was not met is apparent on the face of the written record. At [5] the Authority was plainly conscious of the Applicant’s own submission that he had been afraid to provide this information during the application process or to the delegate before the delegate’s decision was made and was now able to provide the true story. At [9], the Authority did not accept the Applicant’s explanation for not having raised these significant claims before. It follows that, before reaching its conclusion at the final sentence of [9], the Authority had before it and considered the Applicant’s own account that the information comprising the true story, or the new claims subject of this first ground, was information which was not and could have been provided to the Minister before the Minister’s delegate made the refusal decision under s.65.
In relation to the criterion at s.473DD(b)(ii), the Authority did not expressly make a finding that the new information was “credible personal information”. However it may be inferred that it was considered as such where the substance of s.473DD(b)(ii) was considered. At [6] and [7], the Authority plainly analysed the Department’s available records and was satisfied that the new information was not previously known to the Minister. At [9] the Authority disclosed its consideration that the new information contained significant claims not raised before and, it follows, the Authority considered this information may have affected the consideration of his claims. From these reasons it is apparent that the Authority considered the substance of s.473DD(b)(ii). It did so before reasoning as to s.473DD(a).
For completeness, in my view and contrary to the First Respondent’s submission, the Authority’s references to the procedural guidance provided to the Applicant (such as the importance of providing full and accurate claims and the number of opportunities afforded to him to do so) does not enable a conclusion that the new information itself was not considered by the Authority to be credible. Rather, in the context of their reasons, this was reflective of the Authority’s overall assessment of whether exceptional circumstances existed.
Resolution of Ground 1
This is not a case where the limb at s.473DD(b)(ii) was entirely incapable of being met (as contemplated in AUS17 and APH17). However, the Authority’s written record disclosed that the substance of the limbs at s.473DD(b)(i) and (ii) were considered and the Authority was entitled to then go on to make its assessment of s.473DD(a) and find that exceptional circumstances did not exist. This first ground does not succeed.
GROUND 2
The Authority’s statutory function of review was subverted by:
a) the failure of the Minister to provide the Authority with material given by the Applicant at interview; or
b) representations made which gave rise to the expectation that the material would be provided to the Authority.
This second ground was plead in the alternative to the first. It relates to a letter from the New South Wales Treatment and Rehabilitation of Torture and Trauma Survivors dated 29 August 2016 (STARTTS letter) which was given to the First Respondent but not provided to the Authority as part of the review material. The Applicant argued that the Authority’s decision could have been different were it privy to the contents of the letter and the threshold to be applied for the purposes of assessing jurisdictional error in this respect is low.
For their part, the First Respondent acknowledged that the document in question was not provided with the Departmental file but contended it could not realistically have affected the outcome of the review.
Applicable principles
Division 2 of Part 7AA includes a mandatory requirement that the Secretary of the Department give to the Authority certain review material and must do so at the same time as, or as soon as reasonably practicable after, referring the decision to the Authority. Relevant to this section ground, s.473CB(1)(b) requires the Secretary to provide the Authority with "material provided by the referred applicant to the person making the decision before the decision was made".
A breach of the Secretary’s obligation at s.473CB(1)(b) may establish jurisdictional error on the part of the Authority if its consequence was that the review conducted by the Authority was not a "review" of the kind authorised by Part 7AA: EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 at [35] and [40] – [42].
In such a case, it will be necessary to determine whether the material that was not given to the Authority could have realistically affected the outcome of the review. The Court was taken to the High Court of Australia’s reasoning in Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson) which related to a review of an Administrative Appeals Tribunal decision. In that case, the majority explained that the burden falls “on the plaintiff to prove on the balance of probabilities the historical facts “necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with had there been compliance with that condition”: at [32]. Further, that the bar is fixed at such a level that the standard of “reasonable conjecture” is considered to be “undemanding”: at [33].
Consideration
It is not contentious that the Applicant provided the STARTTS letter to the First Respondent’s delegate at the interview and a copy was taken by the delegate, but did not ultimately appear in the Departmental file provided to the Authority for the purposes of conducting its review.
The Secretary’s failure to perform the mandatory obligation at s.473CB(1)(b) of the Act in the present case is to be considered in the context of a Part 7AA review – which, other than to the extent of the statutorily prescribed requirements, is devoid of basic requirements of natural justice and procedural fairness.
It falls to determine whether this error was material having regard to the approach outlined in Nathanson.
In embarking on the materiality assessment, it is instructive to have regard to the contents of the STARTTS letter that was missing from the materials before the Authority, a copy of which came to be before the Court in these reinstated proceedings. Its author purported to be a psychologist (which proposition was not challenged) whose role is to assess the physical, psychological and settlement needs of refugees and humanitarian entrants and provide counselling to them as required. According to the psychologist’s letter, the Applicant was referred for supportive counselling in July 2016 and had attended sessions on a regular basis at the time of writing (on 29 August 2016). The psychologist’s letter recorded the following facts and observations:
(a)The Applicant was (at that time) a 62 year old gentle man from Sri Lanka who came to Australia on a boat and was seeking asylum in Australia;
(b)The Applicant had reported to have a wife and three daughters who were still in Sri Lanka and his only one son who had escaped to China (then) 15 years prior due to the war between the LTTE and the army;
(c)The Applicant was observed to become very distressed and down when he spoke about his son whom he had not seen for more than (then) 15 years;
(d)The Applicant reported that he was leading a normal life until the onset of the attacks to Tamil civilians by the Sri Lankan Army, he was tortured by the Sri Lankan Army and thereafter became a prime target of the Sri Lankan Army and decided to escape to Australia (then) 3 years prior when the torture became very intense;
(e)The Applicant reported various symptoms including separation anxiety, depression, sleep issues, hopelessness and helplessness, fear of being deported, nightmares and flash backs, memory issues and lack of confidence – all of which were very severe with reported gradual improvement since attending the counselling sessions;
(f)The Applicant had attended the counselling sessions on a regular basis and learned new strategies to manage his stated symptoms, however, due to his (then current) visa status and fear of being deported he was observed to have presented as depressed and very down most of the time, he was directly observed to be very tearful during the sessions and to have a very high level of anxiety when speaking about his family and (then current) visa status;
(g)The Applicant was noted to have spoken mostly about his son and his daughters in Sri Lanka, and had expressed concerns about the wellbeing of his family and his inability to support them especially when they need him most;
(h)The Applicant was observed to need social and psychological support to stabilise his (then current) mental health status and affect of the trauma from Sri Lanka and detention in Australia.
The STARTTS letter concluded with the psychologist’s professional opinion that a positive decision would help the Applicant to reduce his (then current) symptoms and lead a healthy life. The psychologist also extended an invitation to contact them if any assistance in the matter was required.
In some respects, the STARTTS letter repeated and referred to a series of claims that the Applicant had reported to the psychologist. There is nothing significant or material to be drawn from those mere recitations to the extent that they corroborate claims which the Authority had accepted.
However, to the extent that the Authority dismissed the new information the Applicant sought to produce in his 7 December 2016 submission (subject of ground 1 above), the substance of the STARTTS letter may realistically have affected its assessment of whether “exceptional circumstances” existed for the purposes of s.473DD of the Act.
In particular, the Authority may not have rejected the Applicant’s explanation for not having provided the new information at the time of his visa application or at interview with the delegate if the Authority had been privy to the STARTTS letter. The Applicant’s explanation was set out in his 7 December 2016 submission and went beyond the summary in the Authority’s reasons – detailing his concerns about deportation and language difficulties he faced and absence of Tamil interpretation, which caused him to be afraid to tell his true story and to have hidden information about it. The Applicant went on to refer to questioning by the departmental officer about his claims that he and his son were still subject of searches by paramilitary groups even after having left Sri Lanka a long time prior – and detailed that the interview CD would reflect that he was emotional at this point of the questioning and it would be apparent that he was trying to hide and avoid telling the real truth.
The STARTTS letter included the psychologist’s professional observations (based on their assessment of the Applicant’s presentation) which included as to the extent of the Applicant’s mental health and depression which was professionally assessed to be directly connected with the Applicant’s visa status and fear of being deported and acute in relation to his family.
To the extent of the Applicant’s self-reporting, at least one available interpretation of the substance of the STARTTS letter is that before the delegate delivered their refusal decision on 7 December 2016, the Applicant was reporting (to the psychologist, during his treatment sessions) information that was corroborative of the new information in his 7 December 2016 submission.
The Authority itself described the Applicant’s new information as comprising “significant claims”.
In my view, if the Authority had received the STARTTS letter, there was a realistic possibility that it would have determined that the new information met the requirements of s.473DD such that it would have been considered. Were the new information considered, then the Authority may have reached a different view about whether the Applicant was likely still of interest to the TMVP and/or the LTTE.
It is also conceivable that, were the Authority privy to the STARTTS letter, it may have exercised its power under s.473DC to get more information from the Applicant or his psychologist in relation to those issues and any identified inconsistencies (for example, were the psychologist’s reference to the Sri Lankan Army a matter the Authority thought required elaboration or explanation – of which there may be various possibilities including when regard is had to the nature of the assessment, the purpose of the letter and the standard of interpretation that may have been provided for those sessions).
Resolution of ground 2
For the above reasons, the First Respondent’s failure to provide the STARTTS letter to the Authority hindered its ability to conduct its review as authorised by Part 7AA and this is a matter which was material to the extent that there is a realistic possibility that the outcome of the review may have been different.
This ground 2 succeeds.
GROUND 3
It being strictly unnecessary, I decline to address the third ground.
CONCLUSION
For the above reasons, I have found the Authority’s decision is affected by jurisdictional error. The application before this Court therefore succeeds and the First Respondent will be ordered to pay the Applicant’s costs.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 1 July 2024
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