DCE16 v Minister for Immigration
[2020] FCCA 1344
•29 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCE16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1344 |
| Catchwords: MIGRATION – Application to review decision of the Immigration Assessment Authority – whether the Authority failed to exercise its jurisdiction properly in respect of information submitted to it – whether information was new information – whether the Authority failed to consider explanation in submission – whether error material. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD |
| Cases cited: AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442; [2018] FCAFC 111 |
| Applicant: | DCE16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2853 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 25 June 2019 |
| Date of Last Submission: | 23 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 29 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar (direct brief) |
| Counsel for the Respondents: | Mr Johnson |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 26 September 2016 into this court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2853 of 2016
| DCE16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICUTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Immigration Assessment Authority (the Authority) dated 26 September 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Safe Haven Enterprise visa (SHEV).
The Applicant, a citizen of Sri Lanka, arrived in Australia in August 2012. He made an initial application for a protection visa that was assessed as invalid. On 29 September 2015 he applied for a SHEV. In support of his application he provided a statutory declaration dated 22 July 2013 in which he claimed to be a Tamil, whose family had lived in the north of Sri Lanka in an area controlled by the Liberation Tigers of Tamil Eelam (the LTTE) and had been displaced. In 1999 they moved to the east, where his aunt lived. He claimed that after their displacement, he and his father were often rounded up by the army on suspicion of involvement in the LTTE.
He claimed that in 2009 the Karuna group took him and some friends with whom he was playing cricket to a private house where the group was known to conduct interrogations. They had asked him whether he had received weapons training from the LTTE then had beaten and threatened him. He claimed that the Karuna group worked with the Sri Lankan army and government to report and punish those affiliated with the LTTE. The Applicant claimed that he did not know why the Karuna group let him go, but he was released.
The Applicant also claimed that the army suspected that he and his family were LTTE supporters because they had been displaced in a LTTE controlled area and were from Jaffna. The army had continued to target and question him, although he told his questioners that he had no involvement with the LTTE.
In his statutory declaration the Applicant also claimed that in April 2011 members of the Karuna group waited for him near his house and warned him that he would be killed if he did not leave the area. He claimed that he recognised one of these men from the group who had beaten and interrogated him in 2009. The Applicant claimed to fear that the Karuna group may harm him and he moved to another part of Sri Lanka where his cousin lived. He claimed that he realised that he would continue to be targeted if he stayed in Sri Lanka and decided to leave.
The Applicant claimed to fear being detained, interrogated, kidnapped, assaulted or killed by the Karuna group and targeted by the army as a suspected member of the LTTE.
The Applicant attended an interview with a delegate of the First Respondent. His application was refused on 17 August 2016. The delegate accepted that the Applicant was questioned and threatened with a gun and beaten as claimed in 2009 but, in light of inconsistencies in the Applicant’s claims, did not accept that the 2011 threat had occurred.
The delegate also recorded that the Applicant had said at the interview that neither he nor his “immediate” family were involved with the LTTE or with any military activity in Sri Lanka.
The matter was referred to the Authority on 19 August 2016.
Submission to the Authority
The Applicant’s newly appointed agent provided a written submission to the Authority dated 14 September 2016. As discussed below, the submission expressed disagreement with the findings of the delegate and made new claims, in particular about the service of the Applicant’s aunt (his mother’s sister) in the LTTE. It was claimed that the aunt (whose name and LTTE name were provided) had served in the LTTE from 1995 to 1998. In addition, the agent sent the Authority photographs of the Applicant’s aunt which depicted her with very short hair, as was said to have been compulsory for LTTE cadres. Also provided was a letter dated 15 August 2016 from the Human Rights Commission of Sri Lanka (HRC) recording details of a complaint by the Applicant on 26 July 2012 about his claimed assault in 2009 and the threat in 2011, and a letter from the Tamil Civic Centre (in Australia) dated 2 September 2016 which confirmed that the Applicant had attended 4 Tamil remembrance events between 2014 and 2016. The agent also gave the Authority copies of extracts from country information said to indicate that Tamils in Sri Lanka were still being detained, arrested, interrogated and tortured by the Sri Lankan authorities.
The agent claimed to the Authority that the Applicant had mentioned in the SHEV interview that his mother’s sister was involved in the LTTE, but that the delegate had not engaged with him in relation to this claim. The submission provided explanations for the Applicant’s failure to give the new information referred to in the submission to the Department. In particular, it was claimed in relation to the information about the aunt that:
… The Applicant did not reveal this information in the entry interview or during the protection visa interview about his familial links with the LTTE. He instructs that he was told by other inmates in the detention centre that Australia views individuals with links to the LTTE as a terrorists and he was scared of being locked up indefinitely or deported immediately to Sri Lanka. Therefore, he was too fearful to be completely open with the Australian authorities. …
The decision of the Authority
In its reasons the Authority referred in some detail to the submission and information provided to it by the Applicant’s agent. The Authority was not satisfied that the six articles and three reports that predated the delegate’s decision provided to it by the Applicant’s agent met the preconditions for consideration in s.473DD of the Migration Act 1958 (Cth) (the Act). The Authority acknowledged that one article post-dated the delegate’s decision, but found that the Applicant had not made any claims to be involved with the LTTE or to have been involved in or the victim of chemical substances (as discussed in the article), and that there were no exceptional circumstances to justify considering the information in that article.
The Authority was not satisfied that exceptional circumstances existed to justify considering the new information concerning the Applicant’s activities in Australia or the supporting letter from the Tamil Civic Centre in that respect. However it had regard to the letter from the HRC under s.473DD of the Act (although it went on to find that it was fabricated). It stated that it had regard to the parts of the agent’s submission which addressed the Applicant’s claims.
The Authority understood that the submission sought to introduce new information about the involvement of the Applicant’s aunt with the LTTE. It considered the claim that the Applicant had told the delegate about his aunt’s involvement with the LTTE, but that the delegate had failed to engage with him about this “vital” information relevant to his claims and the request that it “re-examine” this issue. However the Authority was of the view that the Applicant had been given the opportunity to advance any further details about his aunt’s involvement in the LTTE at the SHEV interview, but had not done so. It found that there were no exceptional circumstances to justify considering the information in the submission about the aunt or the photographs. The Authority did not refer to the agent’s explanation for the Applicant’s failure to give all the information about his aunt to the Department.
The Authority summarised the Applicant’s claims as contained in the information that had been referred to it, including his claims about displacement during the civil war, that he and his father were often rounded-up and questioned on suspicion of being involved with the LTTE and that (as the Authority recorded he had told the delegate) his aunt had “some involvement with the LTTE and undertook LTTE training”. It described his claims about incidents in 2009 and 2011 and the basis on which he claimed to fear harm from the Karuna group, the army or the CID, including as a suspected supporter or member of the LTTE.
The Authority accepted that the Applicant’s family had experienced displacement and bombings and had witnessed conflict during the civil war, that the Applicant’s baby brother had died due to a bomb attack and that the Applicant and his father, along with other Tamils, had been subject to army round-ups and questioning during the civil war. It also accepted, without elaboration, that the Applicant’s aunt had “links” to the LTTE.
Having regard to country information and the Applicant’s consistent claims in this respect, the Authority accepted that the Applicant “came to the attention” of the Karuna group in 2009. However it did not accept that the Applicant was “detained” by the Karuna group in 2011. It is apparent that this was a reference to the claim that the Applicant was “stopped” by members of the Karuna group, called by his name and warned he would be killed if he did not leave the area.
The Authority had regard to the fact that the Applicant had given inconsistent evidence about when the claimed incident had occurred and to his explanation in his SHEV interview that the events had occurred a long time ago and he had trouble remembering when things happened. While the Authority did not consider the inconsistencies in the Applicant’s account about the month in which he was “accosted” during 2011 to be significant enough in themselves to bring his account into doubt, it placed significant weight on the fact that the Applicant had not mentioned the 2011 incident in his entry interview. While it accepted that the interviewer had told the Applicant to give his responses and claims briefly, it noted that in his responses the Applicant had said that “one time” he was “taken by the Karuna group, detained and beaten” and when asked why he had left Sri Lanka he had referred to “general kidnappings and to being scared of being taken to the “fourth floor””. The Authority accepted that being brief in his responses meant that the Applicant had not provided much detail “about the incidents” in his entry interview, but did not accept that he would have failed to mention the second Karuna group incident in 2011 when he was asked an open question about his motivation for leaving Sri Lanka.
The Authority also had regard to an inconsistency between the visa application and the Applicant’s evidence at the SHEV interview as to whether he knew one of the 2011 perpetrators. The Authority found that the inconsistencies in the Applicant’s account cast significant doubt on his claim to have been stopped and questioned by the Karuna group in 2011. It did not accept that this incident had occurred.
The Authority considered the letter of 15 August 2016 from the HRC about claimed incidents in 2009 and 2011 which stated “we certify that we inquired the above mentioned complaint very carefully and the facts enntoned above is true and correct” (sic). It recognised that it post-dated the delegate’s decision but referred to a report to it made in 2012. The Authority expressed “doubts” about whether this was a genuinely issued letter from the HRC, given its finding that the 2011 incident did not occur. It also had regard to the fact that the Applicant had not previously advised that he had lodged a complaint with the HRC that had been investigated, despite the fact that at the SHEV interview (on 6 June 2016) he had provided copies of some documents. This was said to indicate that he was aware of the importance of providing evidence to support his claims. The Authority was of the view that the Applicant had fabricated this letter in an attempt to enhance his protection visa claims. It found that this document was not a genuinely issued HRC letter.
In considering whether the Applicant had a well-founded fear of persecution the Authority accepted that his experiences during the civil war could have raised a subjective fear that he may experience similar harm on return to Sri Lanka. However it took into account the fact that the civil war had ceased in 2009, the security situation had improved since the cessation of hostilities and the family had established themselves in the east of Sri Lanka. The Authority was of the view that there was no reason to believe that in the foreseeable future the Applicant would face further displacement. It was not satisfied that there was a real chance of harm arising for the Applicant due to his experiences during the civil war.
The Authority also accepted that at the SHEV interview the Applicant had advised the delegate that his aunt was “involved with the LTTE and had received LTTE training”. I note that the delegate had not referred to this claim in his reasons for decision.
In assessing whether the Applicant had an imputed LTTE profile on the basis of this “involvement”, the Authority had regard to a lack of past interest in the Applicant and his other family members on the part of the authorities. It observed that DFAT had advised that “close family members” of LTTE operatives may come to the attention of the authorities, if their relative was a particularly high profile LTTE operative and that it had been widely reported that “family members” of LTTE operatives had been imputed as also being linked to the LTTE. The Authority accepted that “family members” of particularly high profile LTTE operatives had been arrested and detained then made to undergo rehabilitation and that the families of lower level LTTE operatives had also come to attention, although the level of monitoring had decreased significantly as the security situation eased. However the Authority was not satisfied that the Applicant had an imputed profile as an LTTE supporter or that he “is viewed as having links to the LTTE”. It was of the view that if the Sri Lankan authorities had an interest in the Applicant because of his aunt, it was “highly likely” that “family members” would also have come to the attention of the authorities and would have been questioned.
While the Authority accepted that the Applicant and his father had been rounded-up and questioned by the army along with other Tamils, it was not satisfied that this indicated that the army had any particular interest in the Applicant or his father as a result of his aunt. Rather, the Authority was of the view that this level of attention reflected the regular monitoring of Tamils at that time. The Authority also had regard to the fact that neither the Applicant nor his father had been charged with any offence and had been released after being questioned. It was not satisfied that there was a real risk of harm to the Applicant “on this basis”. It found that the Applicant’s fear of being detained and harmed by the army or taken to the “fourth floor” by the CID was not well-founded.
The Authority accepted that it was plausible that the Applicant, as a young Tamil male in the Eastern Province, came to the attention of the Karuna group in 2009. It reiterated that it had not accepted that the claimed 2011 incident with the Karuna group had occurred. It referred to the fact that the Applicant had acknowledged in his SHEV interview that the Karuna group had lost its influence in Sri Lanka and had also stated that part of his problem was with the army and that he feared harm from the army on return. The Authority had regard to country information that the Karuna group had disbanded and DFAT advice that the role of paramilitary groups in acts of violence, kidnappings and abductions had fallen considerably since the end of the civil war. It was not satisfied that there was a real chance of harm to the Applicant from the Karuna group.
The Authority accepted that because of his past experiences, the Applicant had a subjective fear of harm in Sri Lanka as a Tamil. However, having regard to country information, including about improvements in the security situation, a decrease in monitoring and harassment of Tamils and advice from the United Nations High Commissioner for Refugees that “being of Tamil ethnicity alone” did not give rise to a need for protection, the Authority found that while the Applicant and his father may have suffered harm during the civil war, there was not a real chance that he would experience future harm on the basis of those past events or on the basis of his Tamil ethnicity.
The Authority accepted that the Applicant left Sri Lanka illegally and considered it likely that on return he would be charged under the Immigrants and Emigrants Act (the I&E Act) and that he would likely be fined and released or, should he plead not guilty, that he would be released on his own surety. It found that the likely consequences of the Applicant’s illegal departure (including the possibility of detention on remand) were not such as to constitute persecution.
While the Authority acknowledged that returnees with “a profile indicating possible connection with the LTTE” were likely to face further investigation or prolonged detention and that there were reports of mistreatment of such returnees, it was satisfied that the Applicant had “no connection” to the LTTE or criminal history and that he did not have “an adverse profile” with the Sri Lankan authorities. Hence it was not satisfied that he would be subject to further investigation or prolonged detention or mistreatment during questioning and investigative proceedings under the I&E Act.
Further, the Authority considered, but rejected, the Applicant’s claim to have a well-founded fear of persecution on the basis of being a failed asylum seeker, despite country information indicating that those with “a profile that suggests connections with the LTTE” were targeted for mistreatment. It found that, for the reasons it had outlined, the Applicant “does not have actual or perceived links to the LTTE” and that he would not be of concern to the authorities on return to Sri Lanka. It was not satisfied that he faced a real chance of harm as a returnee and failed asylum seeker or a real chance of persecution as a Tamil who had departed Sri Lanka illegally.
In considering the complementary protection criterion, the Authority accepted that as a person who had departed Sri Lanka illegally the Applicant would be detained at the airport for questioning and security and character checks under the criminal justice system and that he may be charged with an offence. It accepted that this may involve being remanded on custody for a period at the airport or in a prison while waiting to be brought before a magistrate. It did not accept that this process amounted to or would expose the Applicant to significant harm, including as a result of being held on remand in overcrowded, poor and unsanitary prison conditions which, it found, would not be intentionally inflicted harm.
The Authority had regard to its findings that there was not a real chance that the Applicant would face serious harm because of his civil war experiences, the incident with the Karuna group, an imputed LTTE profile, “his aunt’s links with the LTTE”, his Tamil ethnicity or any interest in him from the army or CID in finding that it was satisfied that there was “not a real risk” that he would face significant harm for those reasons.
The Authority affirmed the decision not to grant the Applicant a protection visa.
These proceedings
The Applicant sought judicial review by application filed on 19 October 2016. He filed an amended application on 7 August 2017 which contained five grounds of review. In pre-hearing written submissions counsel for the Applicant advised that grounds 4 and 5 were not pressed. In the course of oral submissions counsel for the Applicant further advised that grounds 2 and 3 in the then amended application were not pressed and that he did not intend to pursue the contention in ground 1 that the Authority had “denied procedural fairness” or to press any issue in relation to the Authority’s consideration of the HRC letter.
The need for a further amended application became apparent at the hearing when an issue arose about the extent to which ground 1 in the then amended application concerned the manner in which the Authority applied s.473DD of the Act, in particular in relation to information about the Applicant’s aunt.
The Applicant was given leave to file and serve a further amended application to clarify the intended scope of ground 1. He filed a further amended application with an amended ground 1. However that ground retained the reference to procedural fairness. Moreover, the further amended application maintained grounds 2 and 3. While the Applicant’s post-hearing submission addressed only ground 1, the submission also stated that “otherwise” the Applicant adopted his earlier written and oral submissions.
Subsequently, in accordance with orders made at the hearing, the First Respondent filed and served supplementary submissions in which it was pointed out that, contrary to the Applicant’s counsel’s concession at the hearing that he would abandon the second and third grounds in the amended application upon which he then moved, the further amended application retained each of those “abandoned” grounds and also continued to refer to the procedural fairness complaint in ground 1 that the Applicant’s counsel had told the court he was not pressing.
The First Respondent noted that the Applicant had not addressed the second and third grounds or the denial of procedural fairness complaint in his post-hearing submission and indicated that, subject to contrary notice from the Applicant, the Minister proceeded on the basis that only the first ground in the further amended application (to which two particulars had been added) was being pressed, excluding the procedural fairness claim.
The Applicant had, but did not take, the opportunity to respond to the Minister’s post-hearing supplementary submissions.
In these circumstances I have proceeded on the basis of the concessions by counsel for the Applicant that the only ground relied upon is ground 1 as pleaded in the further amended application, except that the words “or denied procedural fairness” are not pressed.
The ground of review
The ground of review is as follows:
The Authority fell into jurisdictional error in failing to properly exercise its jurisdiction in respect of information submitted to the Authority (IAA at [1] – [8]); failed to ask correct questions and / or asked incorrect questions and irrational / illogical and / or denied procedural fairness and erred in the consider of exceptional circumstances.
Particulars
1.1 The Authority ignored the information.
1.2The Authority failed to take into account the information.
1.3The Authority failed to properly classify that the information was new information;
1.4The Authority failed to consider whether the section s 473DD was applicable in the circumstances.
1.5The Authority failed to consider whether the delegate should have considered the relevant information in any event (such that there was no need to apply exceptional circumstances test). Further or alternatively, on proper construction, the self-represented applicant’s lack of appreciation of how to run the matters before the delegate in itself constituted exceptional circumstances.
1.6The claim of the Applicant’s aunty was involved with the LTTE was critical claim in respect of which procedural fairness was denied and / or erred in finding that LTTE was not exceptional that it ought to have considered it (CB 253).
1.7There were exceptional circumstances which was ignored.
1.8The Authority rejected the country information (IAA at [3] and [4]) primarily on basis of the date and did not fully engage with s 473 DD and as to whether it would consider it.
1.9The Authority erred in rejecting the information (IAA at [5]) about aunt including the photo (which was not new information) and the information provided by the Events Coordinator – Tamil Civic Centre.
1.8(sic) The Authority committed jurisdictional error.
(errors in original)
The concluding sentence in particular 1.5, the first particular 1.8 and particular 1.9 were added in the further amended application which was filed after the hearing. These amendments were intended to address issues raised by the Applicant that went beyond the ground as pleaded in the amended application. I have attempted to summarise the essence of the Applicant’s contentions as they eventually emerged. However the First Respondent’s various submissions, appropriately at the time, addressed the disparate aspects of the Applicant’s submissions as they emerged.
Applicant’s submissions
As explained in the Applicant’s submissions, the ground of review relates to whether the Authority erred in its consideration of s.473DD of the Act. The Authority addressed the agent’s submission and new information provided to it in paragraphs 2 to 8 of its reasons as follows:
2. On 15 September 2016 the IAA received a submission from the applicant’s representative. The submission addresses the applicant’s claims and the delegate’s decision. The submission also seeks to introduce new information, noting that in UELESE v Minister for Immigration (2015) HCA 15 the High Court held that “s500 (6H) does not preclude the Tribunal from considering information which is not presented by or on behalf of an applicant for review as part of his or her case.” I have noted the submission, however the IAA must not consider any new information unless it meets the requirements of Part 7AA of the Act.
3. The submission was accompanied by seven publically available articles containing country information from a number of media sources. Six of these articles were published before the date of the delegate’s decision and were not before the delegate. I am not satisfied that the country information contained in these articles contain credible personal information, nor am I satisfied on the information before me that it could not have been provided before the delegate’s decision was made. I am not satisfied there are any exceptional circumstances to justify considering the information in these articles. The seventh article reports allegations that chemical substances were used on LTTE cadres and was published on 11 September 2016. The article is dated after the delegate’s decision and on that basis could not have been made available to the Minister. I have considered whether any exceptional circumstances exist that justify considering the information is this article. The applicant has not made any claims to be involved with the LTTE, nor to have been involved in, or the victim of, any chemical substance attacks and I find that there are no any exceptional circumstances to justify considering the information in this article. I have not considered the country information forwarded with this submission.
4. The submission refers to three reports and quotes country information from these reports. Each of these reports was published before the delegate’s decision. I am not satisfied that these reports could not have been provided before the delegate’s decision was made or that they contain credible personal information. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
5. The submission seeks to introduce new information about the applicant’s aunt’s involvement with the LTTE. The submission states that she was a member of the LTTE from 1995 to 1998 and attaches copies of photographs of her. The submission notes that the applicant told the delegate at the SHEV interview about his aunt’s involvement and comments “the delegate failed to actively engage with the applicant as regards to this vital information which is relevant to his claims”. The submission contends that the applicant has thereby been denied procedural fairness and asks the IAA to re-examine this important issue. At his SHEV interview the applicant was asked by the delegate to explain his aunt’s involvement with the LTTE. The applicant responded by saying that she was involved and had undertaken training. The delegate then asked the applicant if he knew anything further about her involvement and he responded “no”. I consider that the applicant had the opportunity to advance any further details about his aunt’s involvement in the LTTE at the SHEV interview. I find that there are no exceptional circumstances to justify considering this information and I have not had regard to the information in the submission about his aunt and the accompanying photographs.
6. The submission seeks to advance new claims regarding activities the applicant has been involved with in Australia and in support of these claims forwards a letter signed by the Events Coordinator – Tamil Civic Centre. This letter is dated 2 September 2016 and on that basis could not have been provided to the delegate. However the information contained in the letter relates to events the applicant attended from November 2014 to May 2016. The submission contends that the information should be considered on the basis that it was not given by the applicant at the SHEV interview “because the applicant was never asked” and the applicant did not know his activities in Australia were relevant. At his SHEV interview the delegate advised the applicant of the importance of putting his claims forward and cautioned that he may not have a further opportunity to do so. The delegate advised the applicant that the IAA can only accept new information in exceptional circumstances. I note the applicant was not represented at this time, however I am not satisfied that any exceptional circumstances exist that justify considering the new information regarding his activities in Australia. I have not had regard to this information.
7. The submission refers to the applicant’s claim relating to purported assaults and seeks to introduce a letter from the Human Rights Commission of Sri Lanka (HRC) in support. The letter is dated 15 August 2016 and was not information before the delegate. As the HRC letter was not before the delegate, I consider it to be new information under s.473DC(1) of the Act. Although the letter is dated before the delegate’s decision, I note that this was only two days prior to the decision. The representative notes that “this letter was not handed over to DIBP earlier because at that time he was self-represented and he was not aware of the importance of these letters”. I note that the applicant did not have the benefit of representation for his SHEV application. I accept that this new information is credible personal information, in that it relates specifically to the applicant and is capable of being believed. Had this new information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. In light of this I am satisfied that there are exceptional circumstances to justify considering the information contained in this letter.
8. The submission refers to the applicant’s claims regarding issues with the Karuna group, being a failed asylum seeker who left Sri Lanka unlawfully, Tamil ethnicity, relocation, state protection and complementary protection. No new information has been advanced regarding these claims and I have had regard to the relevant parts of the submission addressing these claims.
(footnotes omitted, errors in original)
Section 473DD of the Act provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The Applicant submitted that the Authority had fallen into jurisdictional error in the manner in which it considered the application of s.473DD to various aspects of the information given to it by his agent, being the country information cited in and accompanying the submission to the Authority, the information about the Applicant’s activities in Australia described in the supporting letter, and the information about and photographs of his aunt.
In so far as in written submissions the Applicant also took issue with what was said to be the Authority’s consideration in paragraph 5 of its reasons of claims relating to an arrest warrant, there is no reference to an arrest warrant in the submission to the Authority or in the Authority’s reasons and no error is established on that basis.
The Applicant contended that some of the independent country information given to the Authority should not be regarded as “new information” within s.473DD of the Act, but as information in relation to claims that had already been made by him. It was submitted that as the subject matter of the country information was the same as material already before the delegate, this material could be seen as corroborative rather than as new information, and hence that it should have been considered by the Authority.
In the alternative, the Applicant submitted that in considering the references to country information in the agent’s submission and the attached articles and reports, the Authority had erred in paragraphs 3 and 4 of its reasons in failing to engage with the requirements of s.473DD of the Act. It was contended that the Authority had rejected the country information primarily on the basis that that information predated the delegate’s decision and submitted that it had failed to properly exercise its jurisdiction in proceeding in that manner.
In relation to the Applicant’s activities in Australia evidenced by supporting letter from the Events Coordinator for the Tamil Civic Centre which stated that the Applicant had attended 4 specified remembrance events in 2014 and 2016 to honour and respect his family members who died in the civil war, the Applicant submitted that in paragraph 6 of its reasons the Authority had rejected consideration of this information solely on the basis that it could have been provided earlier. It was contended that the Authority had failed to engage with the issue of “exceptional circumstances” or had adopted too narrow an understanding of this concept, which was said to require consideration of the Applicant’s personal circumstances and hence whether this information was credible personal information (see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111; [2017] FCAFC 176 at [102]).
It was pointed out that the High Court had recognised in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [30] that “exceptional circumstances” was a wide concept that was “inherently incapable of exhaustive statement”. The Applicant submitted that by narrowly construing “exceptional circumstances” the Authority had not proceeded in the manner discussed in PlaintiffM174/2016 at [24]-[34] per Gageler, Keane and Nettle JJ. There was said to have been no meaningful consideration of why the Authority would not consider the Applicant’s diaspora activities as described in the letter from the Tamil organisation and the agent’s submission and hence no proper engagement with the issue of “exceptional circumstances” within s.473DD(a) of the Act.
The Applicant also contended that the two photographs of his aunt with very short hair which were attached to his agent’s submission did not in themselves amount to “new information” subject to the s.473DD restriction, but rather constituted a pictorial depiction of the claims that he had made at the SHEV interview that his aunt was involved with the LTTE and had undertaken LTTE training. The agent’s submission in this respect was said to be about factual information that was contained in the review material that was referred to the Authority under s.472CB of the Act. On this basis it was submitted that the Authority had erred in not having regard to this material in its reasons.
In support of this proposition, the Applicant referred to Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482; [2018] FCAFC 80 at [45]-[56].
It was also submitted that the information the Applicant’s agent gave to the Authority about the aunt was not totally new information, but was in relation to claims that had already been made and information that had already been submitted. The Authority was said to have fallen into error in failing to consider this information in circumstances where the subject matter was the same as material that was before the delegate.
It was contended generally that the material about the aunt was corroborative information and that the Authority fell into error and had applied the wrong test, in so far as it classified all the information about the aunt and the photographs as new information and failed to take it into account.
In the alternative, the Applicant submitted that if the photographs and the information about the aunt in the agent’s submission did constitute new information, then in paragraph 5 of its reasons the Authority had construed s.473DD of the Act too narrowly and, in particular, had erred in failing to take into account his explanation for not providing this information earlier in considering whether there were exceptional circumstances to justify considering such new information.
I note that while the ground asserted (in particular 1.5) that the Authority erred in failing to consider whether the delegate should have considered the relevant information (which was explained as the information given at the SHEV interview about the aunt), the Applicant’s oral submissions ultimately focused instead on the Authority’s failure to consider his explanation for not having provided to the Department all the information about his aunt which he gave to the Authority.
It was pointed out that the submission to the Authority stated that the Applicant had instructed his agent that his (named) aunt had served in the LTTE from 1995 to 1998. Her LTTE name was disclosed to the Authority and it was claimed that, as was reflected in the photographs, those who served in the LTTE must have their hair very short and kept that way to indicate that they were LTTE cadres. The submission to the Authority contended not only that the delegate had failed to actively engage with the Applicant in relation to the information he provided at the SHEV interview about his aunt and had denied procedural fairness to the Applicant, but also that the information about the aunt indicated that the Applicant had a “close association” with a family member who had served in the LTTE. It was submitted to the Authority that with such a profile, the Applicant would be of interest to the authorities on return to Sri Lanka in the foreseeable future. In addition, the agent had contended that the information about the aunt was “credible personal information which was not previously known” and asked the Authority to consider it under s.473DD of the Act.
The Applicant submitted that the Authority had failed to consider the explanation for why this information was not revealed earlier as set out at [11] above.
The Applicant acknowledged that the Authority was of the view (in paragraph 5 of its reasons) that the Applicant had had the opportunity to advance any further details about his aunt’s involvement with the LTTE at the SHEV interview. However it was submitted that the Authority did not engage with the issue of whether there were exceptional circumstances to justify considering the new information about the aunt (including the explanation that the Applicant had not disclosed this information earlier because of what he was told in the detention centre and his fear of being locked up indefinitely or deported as a terrorist). The Authority’s focus in this respect was said to have been limited to whether the information could have been provided to the Minister (that is, to a consideration of s.473DD(b)(i) of the Act).
The Applicant contended that, as discussed in BBS16 at [102], the Authority had adopted an “inappropriately narrow understanding” of the phrase “exceptional circumstances” in circumstances where the delegate’s rejection of the Applicant’s claims called for clarity. Counsel for the Applicant pointed out that in his reasons the delegate had made no reference at all to the Applicant’s claims at the interview that his aunt was involved with and undertook training with the LTTE.
It appeared that the Applicant may have intended to suggest that the explanation provided in that context could itself constitute new information or exceptional circumstances. In any event, counsel for the Applicant submitted that it should have been addressed by the Authority. In particular, it was contended that in failing to address this explanation the Authority had narrowly construed or failed to engage with the issue of “exceptional circumstances” in s.473DD(a) in a manner that demonstrated error of the kind identified in BVZ16 vMinister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958 at [46]-[47] and BBS16 at [112].
Counsel for the Applicant also pointed to the fact that the agent had suggested to the Authority that the Applicant was not on sufficient notice of the importance of providing additional information in support of his claims while the matter was before the delegate as he had been self-represented at that time. It was contended in particular 1.5 that the self-represented Applicant’s “lack of appreciation of how to run the matters before the delegate in itself constituted exceptional circumstances” and should have been considered by the Authority in this context.
In so far as the First Respondent submitted that any error in the Authority’s approach under s.473DD of the Act to new information about the aunt would not constitute jurisdictional error because it would not be material (as outlined at [78]-[82] below), the Applicant contended that such a submission involved speculation as to what the outcome of the review would be if the material had been accepted and considered by the Authority. It was contended that the new information was material to the Applicant’s claims and that it could not be said that if the material had been considered, it could or would have made no difference to the Authority’s decision.
First Respondent’s submissions
On the basis that the country information provided to the Authority was new information for the purposes of Part 7AA of the Act (an argument elaborated on in relation to the information about the aunt), the First Respondent submitted that the Authority had addressed this information and that its reasons in this respect revealed no error. It was submitted that such information was plainly not credible personal information within s.473DD(b)(ii) and pointed out that, with one exception, it predated the delegate’s decision (cf. s.473DD(b)(i)). The Authority had addressed whether there were exceptional circumstances in relation to the more recent article by reference to its content, but had found that the information therein did not relate to the Applicant’s claims and that there were no exceptional circumstances to justify considering that information. The First Respondent submitted that no jurisdictional error had been established in this respect.
In relation to the information about the Applicant’s activities in Australia prior to the delegate’s decision, the First Respondent submitted that unless the Applicant had identified something truly exceptional, that is, unusual or out of the ordinary, about the provision of that information in the letter from the Tamil Civic Centre, the Authority was not required to consider it. It was pointed out that the Authority had considered the Applicant’s explanation for why this information was not provided earlier and submitted that its findings in this respect did not demonstrate a misapplication of the statutory test.
It was also submitted that in so far as the Applicant relied on the fact he was self-represented and lacked expertise, this would not in itself amount to exceptional circumstances in the context of Part 7AA of the Act (see CLV16 at [54]).
The First Respondent addressed the Applicant’s alternative contentions that the Authority had fallen into error in characterising the information concerning the aunt (and the country information) as new information because it was either part of the review material or was corroborative of a claim that had been made prior to the delegate’s decision and/or that the Authority had misconstrued s.473DD in failing to consider properly the agent’s submission regarding the information about the aunt.
The First Respondent submitted that the two photographs of the aunt were plainly new information within s.473DC(1), as each was a document or information that was not before the Minister or delegate at the time of the delegate’s decision which the Authority considered may be relevant. Such potential relevance was said to be implicit in paragraph 5 of the Authority’s reasons.
It was pointed out that the High Court had stated in Plaintiff M174/2016 at [24] that “information” was “a communication of knowledge about some particular fact, subject or event” that met the two conditions in ss.473DC(1)(a) and (b). It was contended that this definition would extend to communication through a photograph and that the “information” communicated in the photographs was apparently provided in support of the claim that the Applicant’s aunt was connected with the LTTE as described in the submission.
The First Respondent did not dispute that during the SHEV interview the Applicant had told the delegate that his aunt had some LTTE involvement and undertook LTTE training. However it was submitted that it was plainly correct for the Authority to identify the additional information concerning the aunt as “new information”, as it was information that was not before the delegate which the Authority considered may be relevant to the review within s.473DC(1) of the Act.
It was acknowledged that in the submission to the Authority the Applicant sought to raise additional information concerning the aunt and the agent addressed the claim raised in the interview with the delegate that the Applicant would be imputed with a pro-LTTE political opinion due to his aunt’s involvement in the LTTE.
However the First Respondent contended that the fact that earlier information given to the delegate was expanded upon or developed did not strip the information in the submission to the Authority of its proper characterisation as “new information” as defined in s.473DC(1). The information in the submission concerning the aunt was said to be plainly new factual material that had not been presented earlier in the sense referred to in CLV16 at [54].
The First Respondent also acknowledged that in the submission to the Authority the agent had stated that the Applicant had not revealed this information in his entry interview or SHEV interview because he had been told by other inmates in the detention centre that Australia viewed individuals with links to the LTTE as terrorists and he was scared of being locked up indefinitely or being deported immediately and was too fearful to be completely open with the Australian authorities.
Counsel for the Minister accepted that the concept of “exceptional circumstances” would not be limited to the nature or content of the information in question, but would extend to the broader circumstances and that, in that sense, there was an overlap between paragraphs (a) and (b) in s.473DD of the Act.
It was also accepted that the Authority was required to take into account submissions advanced by the Applicant addressing the factors specified in s.473DD of the Act (see CLV16) and that in so far as a submission addressed why new information could not have been provided earlier (as required under s.473DD(b)(i)), this may assist the Authority in assessing the existence of exceptional circumstances under s.473DD(a) (see AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442; [2018] FCAFC 111 at [14]). In particular, it was acknowledged that the Full Court of the Federal Court had expressed the view that jurisdictional error may result where the Authority failed to take into account in assessing exceptional circumstances an explanation proffered by an Applicant as to why new information was not advanced earlier (see BBS16 at [112]).
However the Minister submitted that the Authority had not misconstrued s.473DD in the manner considered in BVZ16 or BBS16. First, contrary to the Applicant’s submissions, it was contended that in concluding that there were no exceptional circumstances justifying consideration of the information about the aunt, the Authority had not focussed exclusively on the fact that the information concerning the aunt could have been provided earlier. The Authority was said to have also taken into account the fact that the Applicant had been given the opportunity to give further information to the delegate, but had expressly responded “no” to a question as to whether he knew anything further about his aunt’s involvement with the LTTE. It was submitted that the Applicant had not identified what was exceptional about the circumstances that would have justified a consideration of the new information (see AQU17 at [17]).
While the First Respondent acknowledged that the Authority had not expressly addressed the explanation in the Applicant’s submission as to why the additional information about his aunt was not disclosed earlier, this was said not to involve jurisdictional error. It was contended that whether the absence of an express reference to the explanation indicated that the Authority had failed to take it into account was a matter for inference. The First Respondent submitted that in circumstances where the Authority had otherwise referred to specific aspects of the agent’s submission, it should not readily be inferred that it was not alive to the explanation given therein as to why the additional information about the aunt had not been provided earlier. It was submitted that it should not be inferred that the Authority had not had regard to this explanation, particularly in circumstances where it was under no obligation to give reasons for any determination under s.473DD (see CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29]). It was also pointed out that there were difficulties with drawing inferences from what had not been said by the Authority (see Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [25]).
The First Respondent submitted that in this case what should be inferred from the Authority’s reasons (at paragraph 5) was that it did not consider that the Applicant’s explanation for not providing the additional information about the aunt earlier was relevant to the existence of or amounted to exceptional circumstances under s.473DD(a) of the Act (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30). It was pointed out that, unlike BBS16, this was not a case in which the Authority had expressly relied upon the absence of an explanation as to why the new information had not been provided earlier when there was in fact such an explanation (and cf. BBS16 at [112]).
In the alternative, counsel for the First Respondent submitted that if the court did not accept the submission in this respect, any failure by the Authority to take into account the explanation for not providing the additional information about the aunt at an earlier time was not a jurisdictional error. This was put on the basis that any such error was not material.
The First Respondent submitted that the principle that jurisdictional error had to be material applied to a case in which the Authority had misapplied or misconstrued s.473DD (see BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94; [2019] FCAFC 44 at [58]-[60] and CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [64]-[69]).
It was submitted that even if the Authority had taken into account the Applicant’s explanation and even if this had satisfied it that exceptional circumstances existed (which was said to be highly speculative), the new information concerning the aunt (including the photographs) could not have made any difference to the outcome of the review in the sense considered in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29]-[30].
The First Respondent pointed out that the Authority had accepted the Applicant’s claim to the delegate in the SHEV interview that his aunt had “links” to the LTTE. There was said to be no reason not to read this finding as encompassing an acceptance of his claim to the delegate that his aunt had undergone training with the LTTE. Having accepted that claim, the Authority found that it was not satisfied that the Applicant was at risk for reason of his association with his aunt. The First Respondent submitted that this was because country information indicated that family members of LTTE operatives were subject to varying levels of adverse attention from the authorities, depending on the level of the LTTE operative and the Authority had found that the authorities in Sri Lanka had had no interest in the Applicant and/or his family members.
The First Respondent submitted that on the Authority’s approach, having regard to its observation that neither the Applicant nor his family had been the subject of any adverse attention from the authorities (beyond the regular monitoring of Tamils), information that might have been relevant as to the nature of the aunt’s involvement with the LTTE could not have affected the outcome of the review. In particular, it was submitted that the additional information the Applicant sought to give to the Authority concerning his aunt could not have made any difference to the Authority’s findings concerning his imputed political opinion or LTTE connection based on his relationship to his aunt.
Consideration
There are several aspects to this ground as explained in submissions.
I note first that while ground 1 included references to irrationality and illogicality, the Applicant did not raise any such argument in submissions.
Whether the information was “new information”
First, the Applicant submitted that the country information and the information about and photographs of his aunt related to or corroborated existing claims and hence did not constitute “new information” that would be subject to s.473DD of the Act. Rather, this was said to be information on the same subject matter as claims that had already been advanced so that it was part of the review material or corroborative of claims therein. On this basis it was contended that the Authority had erred in failing to consider this material.
I am not persuaded by the Applicant’s very general argument that the information about the aunt in the submission, the photographs or the country information provided to the Authority did not constitute new information. The Applicant’s submission in this respect did not address any provisions in Part 7AA of the Act other than s.473DD in support of the contention that the Authority had erroneously taken the view that the information provided was new information.
In Plaintiff M174/2016 Gageler, Keane and Nettle JJ explained at [22] that:
Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE. Close attention needs to be paid to each of those provisions and to their interrelationship.
Under s.473BB of the Act, in Part 7AA “new information” has the meaning given by s.473DC(1). As stated in Plaintiff M174/2016 at [23], s.473DC(1) is entirely facultative and is concerned with when the Authority can “get”, in the sense of seek out, “new information”. It provides:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
As the Full Court of the Federal Court stated in CLV16 at [54], in this context the expression “new information … seeks to identify the sources whereby new factual material is sought to be placed before the Authority”. Further, in Plaintiff M174/2016 Gageler, Keane and Nettle JJ observed at [24] that:
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). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
(footnote omitted)
In so far as it was intended to be suggested by counsel for the Applicant that the photographs of the aunt did not constitute “information”, in Plaintiff M174/2016 the plurality recognised at [24] that information may or may not be recorded in a document. In CLV16 at [51] the Federal Court acknowledged a distinction between the terms “document” and “information”, concluded that the term “documents” in s.473DC(1) was “confined to the means whereby the “knowledge of some fact or occurrence” is conveyed to the Authority”, but noted at [52] that for the purposes of s.473DC(1), “new information” was “seemingly defined” as documents or information that met the criteria in that provision. In other words, a document (such as a photograph) may be a source whereby new factual material was sought to be placed before the Authority and hence constitute new information.
I also note that the expression “review material” has the meaning given by s.473CB of the Act. It was pointed out in Plaintiff M174/2016 at [25] that there is “no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB”. There is no evidence or suggestion that the Secretary gave the country information cited in the agent’s submission to the Authority as part of the review material. However, even if the Applicant intended to contend that some of the country information attached to the agent’s submission was also review material in the Secretary’s possession or control that was considered by the Secretary to be relevant to the review within s.473CB(1)(c) of the Act and even if that had been established, as the High Court pointed out in Plaintiff M174/2016 at [27], such material would become new information if and when the Authority considered that it may be relevant and the Authority would need to comply with s.473DD of the Act if it was to take such new information into consideration.
As considered further below, it was held in CLV16 (at [56]) that neither s.473DC or s.473DD precludes the Authority from entertaining a “submission” as opposed to placing a constraint on its ability to “get” or “consider” further information. As the Full Court stated at [54], there is “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”.
However any “new information” in a submission or referred to therein cannot be considered by the Authority unless the preconditions in s.473DD are met. As recognised in CLV16 at [45]-[56], these statutory provisions reflect the legislative objective of Part 7AA in relation to the review of fast track reviewable decisions. Were it otherwise (such that an Applicant could provide further information to the Authority not subject to the constraints in s.473DD of the Act), this would “expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced” and thus “would run counter to the legislative objective of “fast track” decision-making” (CLV16 at [54]).
Whether seen as an elaboration of earlier claims made by the Applicant while the matter was before the delegate or as corroborative of such claims, the additional information about the Applicant’s aunt, the photographs and (on the evidence before the court) the country information were sources of new factual information. In its reasons the Authority indicated that it considered this information may be relevant. It constituted “new information” for the purposes of Part 7AA of the Act.
Hence it is necessary to consider the contention (variously expressed) that the Authority erred in its consideration of s.473DD of the Act in relation to any of the items of new information.
The application of s.473DD of the Act
As Gageler, Keane and Nettle JJ explained in Plaintiff M174/2016 at [29]-[34]:
29. The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.
30. Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
31. Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).
32. The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.
33. The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
34. Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
(footnotes omitted)
The new country information
The Applicant’s agent informed the Authority that the country information was provided to indicate that Tamils in Sri Lanka were still being detained, arrested, interrogated and tortured by the Sri Lankan authorities and suggested that these reports were relevant as the Applicant feared such harm on return (including as a suspected supporter and sympathiser of the LTTE).
The Authority observed at paragraph 2 of its reasons (set out at [42] above) that despite the approach of the High Court to an unrelated section in the Act (s.500(6H)) that was cited by the agent (but which has no application to the Authority), it must not consider any new information unless it met the requirements of Part 7AA of the Act. The Authority expressly considered the application of s.473DD to the country information provided to it by the Applicant’s agent.
Contrary to the Applicant’s submission, the Authority did not confine its consideration to whether that information predated the delegate’s decision. It found that six articles containing country information from a number of media sources were published before the delegate’s decision and were not before the delegate. It considered each of the alternative prerequisites in s.473DD(b). There was no suggestion or evidence that the country information in question contained credible personal information. Given this and the absence of any dispute as to the date of publication of these articles, it was not necessary for the Authority to elaborate on its findings that it was not satisfied the country information contained credible personal information or could not have been provided before the delegate’s decision was made. Nor, in those circumstances, on the material and submissions before it, was it a jurisdictional error for the Authority not to elaborate on its lack of satisfaction that the additional criterion in s.473DD(a) was met.
The seventh article was described in the Authority’s reasons (at paragraph 3) as reporting allegations that chemical substances were used on LTTE cadres. It was dated after the delegate’s decision and the Authority accepted that it could not have been made available to the Minister. While there was no express reference to the fact that s.473DD(b)(i) was satisfied, the Authority, appropriately, gave reasoned consideration to whether any exceptional circumstances existed that justified considering the information in the article. The Authority had regard to the fact that the Applicant had not made any claims that he was involved with the LTTE or that he had been involved in or the victim of any chemical substance attacks. On that basis it found that there were no exceptional circumstances to justify considering the information in that article. The Applicant has not pointed to any circumstance not considered by the Authority such as to suggest any misunderstanding of the law or the expression “exceptional circumstances” in this context.
It would appear that the Applicant’s contention in this respect was also intended to apply to the three reports cited by the Authority which were described in a footnote as an International Truth and Justice Project report of July 2015, a Colombo Telegraph report of May 2016 and a Human Rights Watch Report of 2015. Again, the Authority considered each of the elements in ss.473DD(a) and (b) in relation to these reports but, in circumstances where each of these reports was dated before the delegate’s decision and there was no suggestion or evidence that they “could not” have been provided to the Minister or that they contained any credible personal information, the Authority was not satisfied that s.473DD(b) was met or that any exceptional circumstances existed that justified considering the new information.
As the First Respondent submitted, the Applicant has not identified what exceptional circumstances the Authority failed to consider in relation to the country information, except that he did raise generally the fact that, as the agent had pointed out in the submission to the Authority, he was self-represented while his application was before the delegate. The Authority referred to this aspect of the submission in considering the Applicant’s failure to provide information about his diaspora activities or the HRC complaint to the Department. However it has not been explained how that fact, in itself, could amount to exceptional circumstances. I note that as stated in Plaintiff M174/2016 at [30] citing R v Kelly [1999] UKHL 4; [2000] QB 198 at 208, “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
The Applicant has not established jurisdictional error in relation to the Authority’s consideration of the country information.
The Tamil Civic Centre Letter
The Applicant submitted that the Authority had erred in its consideration of the supporting letter from the Tamil Civic Centre in relation to his attendance at 4 remembrance events between 2014 and 2016, in that it had failed to engage with the issue of “exceptional circumstances” or had adopted too narrow an understanding of that expression.
However, contrary to the Applicant’s contention that the Authority considered only that the information in this letter could have been provided earlier, the Authority took into account: the fact that the letter post-dated the delegate’s decision and on that basis it could not have been provided to the delegate; that the information in the letter related to events the Applicant had attended prior to the delegate’s decision; and that the information related to the Applicant’s activities in Australia. In this context, the Authority considered the explanation in the submission for the Applicant’s failure to provide this information at the SHEV interview (because he was never asked and because he did not know that his activities in Australia were relevant). This explanation was relied on in support of the proposition that the Authority should find that there were exceptional circumstances. However the Authority did not accept this explanation in circumstances where the delegate had advised the Applicant of the importance of putting his claims forward, had cautioned that he may not have a further opportunity to do so and had also advised that the Authority could only accept new information in exceptional circumstances. In this context the Authority noted that the Applicant had not been represented at that time. It is apparent that it did not regard that fact as constituting exceptional circumstances that justified considering the new information, having regard to the advice the delegate had given to the Applicant.
I am not persuaded by the Applicant’s general contention that the absence of a representative while a matter is before a delegate necessarily constitutes “exceptional circumstances”. The Applicant has not identified anything out of the ordinary in that respect, in his circumstances or in relation to the provision of the diaspora activities information such as to support the contention that the Authority took an unduly narrow approach to the meaning of exceptional circumstances. It has not been established that the Authority misapprehended or misapplied the statutory test in this respect.
The photographs and claims about the Applicant’s aunt
The Applicant submitted two photographs of his aunt to the Authority which were said in the agent’s submission to be reflective of the fact that it was compulsory for those who served in the LTTE to have their hair very short and to keep it that way. The agent also informed the Authority that the Applicant had instructed that his aunt had served in the LTTE from 1995 to 1998. Her name and her LTTE name were revealed. Such information was presented as relevant to the claim that the Applicant had a profile such that he had a well-founded fear of harm as an imputed supporter or person linked to the LTTE by virtue of his close relationship to his aunt.
As indicated above, I am not persuaded by the Applicant’s submission that the photographs and additional information were not new information for the purposes of s.473DD of the Act.
In so far as the Applicant took issue with the Authority’s consideration of s.473DD in relation to the photographs of and information about his aunt, in essence, his contention was that the Authority considered the exceptional circumstances prerequisite in s.473DD(a) too narrowly and in a manner that demonstrated an error of the kind identified in BVZ16 and BBS16. In the course of the hearing it emerged that the basis on which this contention was put was that the Authority erred in not considering to the explanation for the Applicant’s failure to disclose this information earlier as part of all the relevant circumstances.
In BVZ16 White J saw force in a submission that there had been a constructive failure to exercise jurisdiction by the Authority in that case because it had confined its consideration of whether there were exceptional circumstances to an evaluation of the visa applicant’s explanation for not having provided the information in question earlier. His Honour found (at [46]-[48]) that this seemed to reflect an “inappropriately narrow understanding of the reach of the term “exceptional circumstances””.
In contrast to the present case, in BVZ16 it appeared that the Authority had reasoned that rejection of the visa applicant’s explanation for not having disclosed the new information earlier was decisive of the requirement in s.473DD(a) of “exceptional circumstances”. This was not such a case.
However in BBS16 the Full Court of the Federal Court referred with approval to the remarks of White J in BVZ16 in relation to “an inappropriately narrow understanding” of the term “exceptional circumstances”. The Full Court also agreed that the requirements of ss.473DD(a) and (b) were cumulative, but may nevertheless overlap to some extent, such that the Authority’s consideration of either or both of the limbs in s.473DD(b) may inform its satisfaction under s.473DD(a) as to whether there were exceptional circumstances to justify considering the new information (at [102]). I note that, in this case, the Applicant’s explanation could be seen as containing “credible personal information” which was not previously known to the Authority and which may have affected consideration of his claims (see BBS16 at [109]-[110]).
In any event, in BBS16 the Full Court went on to point out (at [103]-[104]) that the matters in s.473DD(b) were not the only matters to be considered by the Authority in determining whether it was satisfied that there were “exceptional circumstances”. Rather, that phrase was to be given a broad meaning “along the lines of circumstances which are unusual or out of the ordinary”. As the Court stated: “This necessarily requires that consideration be given to all the relevant circumstances in determining whether or [not] there are “exceptional circumstances”” (see BBS16 at [104] and also BVZ16 at [39]-[41]).
In this case the Authority failed to have any express regard to the explanation for why the additional information concerning the Applicant’s aunt was not provided earlier in considering whether there were exceptional circumstances within s.473DD(a) of the Act.
The Authority addressed the submission to it that the Applicant had provided some information at the SHEV interview in relation to his aunt’s involvement in and training with the LTTE and that the delegate had not actively engaged with this information and also that the Applicant claimed that he had been denied procedural fairness and asked the Authority to re-examine the issue. The Authority also understood that before it could consider the new information about the aunt, regard had to be had to s.473DD of the Act.
In considering s.473DD, the Authority had regard to the fact that the Applicant was asked by the delegate to “explain” his aunt’s involvement with the LTTE and was recorded as having responded that she was involved with the LTTE and had undertaken training. The Authority recorded that when the Applicant was asked by the delegate if he knew anything further about her involvement, he had responded “no”. It found there were no exceptional circumstances because the Applicant had the opportunity to advance any further details about his aunt’s involvement in the LTTE at the SHEV interview. However it failed to consider the Applicant’s explanation (though his agent) for not disclosing the significantly more specific and relevant information about the nature and extent of his aunt’s involvement with the LTTE.
As First Respondent acknowledged, the agent had provided an explanation to the Authority for the Applicant’s failure to give all the information about his aunt to the Department. It was explained in the submission that the Applicant had not revealed this information about his familial links to the LTTE in the entry interview or during the SHEV interview because he had been told by other inmates in the detention centre that Australia viewed individuals with links to the LTTE as terrorists and he was scared of being locked up indefinitely or deported immediately. He was therefore said to be too fearful to be “completely open” with the Australian authorities and to reveal what the agent described as a close association with a family member who had served in the LTTE. Implicit in this explanation is a suggestion that it was only when he obtained representation that the Applicant came to understand the need to disclose such information.
The First Respondent acknowledged that jurisdictional error may result where the Authority failed to take into account in assessing exceptional circumstances an explanation proffered by an applicant as to why new information was not advanced earlier, consistent with the reasoning of the Full Court in BBS16 at [112], but sought to distinguish that case.
In BBS16 (as in this case) the Authority had not made any reference to material which explained why the visa applicant had not previously disclosed a claim. The Full Court suggested at [111] that this was a relevant matter to be taken into account in assessing whether there were exceptional circumstances for the purposes of s.473DD of the Act.
In BBS16 the Authority had also reasoned (incorrectly) that because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, it was not satisfied there were exceptional circumstances. This was said by the Full Court to reflect a misconstruction and misapplication of s.473DD of the Act. In this case the Authority did not rely on the absence of any explanation for the non-disclosure of the information about the aunt, however it addressed only some of the matters raised by the Applicant in relation to exceptional circumstances and made no mention at all of the relevant explanation.
As the First Respondent accepted, the Authority was required to take into account submissions advanced by an applicant addressing the factors specified in s.473DD of the Act (see CLV16). A submission addressing why new information was not provided earlier (or, indeed, why it was credible personal information) may, in a particular case, assist the Authority in assessing the existence of exceptional circumstances (see AQU17 at [14]). In my view, this was such a case.
As stated in AQU17 at [15]:
… the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the appellant’s circumstances which meant that there were exceptional circumstances justifying consideration of the new information. …
The Authority made no reference at all to the Applicant’s explanation for his failure to be completely open with the Australian authorities about the extent and nature of his aunt’s involvement in the LTTE. The agent had addressed the potential relevance of this information to the Applicant’s “profile” as a person with a close association with a family member who had served in the LTTE and hence to his risk of future harm as a person of interest to the authorities. The Authority did not address the question of whether there was anything about the new information, about the level and nature of the aunt’s involvement with the LTTE or the Applicant’s circumstances, of potential relevance to the Applicant’s claim to fear future harm in the manner referred to in AQU17 at [17].
Under s.473DD(a) it is for the Authority to be satisfied that there are exceptional circumstances. However the Applicant, though his agent, clearly raised an explanation or reason for his earlier limited disclosure of material of potential relevance to his claim to fear future harm as a circumstance relevant to whether there were exceptional circumstances to justify considering this more extensive new information disclosed in the submission. The Authority did not engage with this explanation. In proceeding in this way it therefore failed to consider the relevance of the more significant new information about the aunt’s involvement with the LTTE to the Applicant’s claim to fear future harm from the authorities.
I am not persuaded by the First Respondent’s submission that it should not be inferred that the Authority failed to take into account the Applicant’s explanation for not advancing this new information about his aunt earlier.
It is the case that the Authority is not required to provide reasons in respect of the exercise of its power under s.473DD of the Act (see CVS16). However in this case the Authority did provide some reasons for its conclusion that it was not satisfied that exceptional circumstances existed to justify considering this new information. It is open to the court to draw an inference as to what the Authority considered in this context, even if such an inference should not be too readily drawn (see Plaintiff M64/2016 at [25]).
The matters that the Authority did refer to in this context, the nature and extent of the new information and its potential relevance to the Applicant’s claims do not support an inference that the Authority did not consider the explanation relevant to the existence of exceptional circumstances as suggested by the First Respondent. On the contrary. I am satisfied that, in the particular circumstances of this case, having regard to the potential significance and relevance of the new information and the Authority’s express reference to other considerations, an inference can be drawn that the Authority did not have regard to the explanation given by the Applicant for failing to reveal a close association with a member of his extended family who had served in the LTTE for three years, in circumstances where he claimed to fear future harm as an imputed LTTE supporter on this basis. If this explanation had been considered and the new information had been taken into account, it is possible that the Authority may have reached a different view about the Applicant’s profile, relevant to its consideration of the chance or risk of future harm to him on return to Sri Lanka, including as a person who departed illegally and was a failed asylum seeker.
I am of the view that if the Authority had considered this explanation, it would be expected that it would have provided reasons why it did not find it relevant or persuasive.
As the Full Court of the Federal Court stated in AVQ15 v Minister for Immigration and Border Protection (2018) 266 FCR 83; [2018] FCAFC 133 at [28], a decision-maker is required to:
… remain conscious of the particular challenges facing asylum seekers in giving accounts of why they fear persecution, including that they may have to give multiple accounts, using interpreters, and that they may reasonably expect an interview or a review process will provide an opportunity for them to elaborate on, or explain, the narratives they have previously given. Consideration should also be given to whether there is an acceptable explanation for the person having given inconsistent evidence such that the fact of the inconsistency should attract little, if any, weight. How all these matters are weighed and evaluated in a particular case is a matter for the decision-maker, but a failure by the decision-maker to appreciate the particular nature of the task, or to perform it reasonably and fairly, may be the subject of judicial review.
While these comments were made in relation to inconsistent evidence, the reference to the particular challenges facing asylum seekers giving accounts of why they fear persecution and the need to give consideration to whether there is an acceptable explanation is equally applicable in this context.
While I am not satisfied that the mere fact of self-representation prior to the referral to the Authority would necessarily amount to exceptional circumstances, the Applicant’s circumstances included the fact that the Authority was on notice that he had been self-represented while the matter was before the Department. Inferentially, it was only when he obtained representation that he understood the importance of providing a more detailed explanation of his aunt’s particular involvement in the LTTE, notwithstanding his fear that if he was completely open with the Department he may be locked up indefinitely or deported immediately as a terrorist.
While the Authority was not obliged to accept the explanation proffered, it ought to have engaged with the explanation as why the Applicant had not previously disclosed the extent of his aunt’s involvement with the LTTE in considering whether there were exceptional circumstances such as to justify considering this information.
Materiality
The First Respondent made an alternative submission that if the court found that the Authority had erred in failing to take into account the explanation proffered by the Applicant as to why the new information about his aunt was not advanced earlier, nonetheless such error would not be jurisdictional because it would not have deprived the Applicant of the possibility of a successful outcome and hence would not be material.
In support of this proposition, reliance was placed on the following remarks of the plurality at [29]-[30] in Hossain:
29. That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
30. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome”, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made.
(footnotes omitted)
The First Respondent’s submission was put on the basis that the Authority had accepted the Applicant’s claim to the delegate that his aunt had links to and trained with the LTTE, but was not satisfied that he was at risk for reason of his association with his aunt because neither he or his family had come to the past attention of the authorities for this reason.
However I am not persuaded by this submission. As the Applicant submitted, such a submission invites speculation as to how the Authority would have considered the chance or risk of future harm to him if it had taken into account his claimed close familial relationship to an aunt who was a serving LTTE cadre for three years and (inferentially) was identifiable as such by reason of her very short hair which the agent had contended gave the Applicant a profile which gave rise to a real chance of future harm from the authorities.
Notwithstanding the absence of evidence of past negative attention to the Applicant or his family (an approach which I note, drew no distinction between immediate and extended family), the Authority was nonetheless obliged to consider the risk or chance of future harm to the Applicant, including on the basis of suspected support for or connection with the LTTE. The Authority recognised that returnees to Sri Lanka who had departed illegally and had “a profile indicating possible connection with the LTTE” were likely to face further investigation, prolonged detention or possible mistreatment and that a failed asylum seeker with a profile suggesting connections with the LTTE may be “targeted for mistreatment”. It had regard to the fact that it had found (not taking into account the level, extent and nature of the aunt’s involvement as claimed in the new information) that the Applicant did not have actual or perceived links to the LTTE. However in that context the Authority did not consider whether the Applicant may face future harm on return as having an imputed profile as an LTTE supporter or as having a connection to the LTTE (and thus be likely to face further investigation, prolonged detention or mistreatment beyond that applicable to other asylum seekers or illegal departees) based on the new information about his aunt. The information about the aunt was cogent and central and potentially significant to these claims. If the new information about the aunt had been considered and accepted by the Authority, it cannot be said that this could not have materially affected the decision.
I am not persuaded that this error could have made no difference to the Authority’s decision. It was material in the sense that it denied the Applicant the possibility of a successful outcome. Hence jurisdictional error is established.
The matter should be remitted for reconsideration according to law.
I certify that the preceding one hundred and thirty-nine (139) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 May 2020
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