DFP16 v Minister for Immigration

[2018] FCCA 1586

FEDERAL CIRCUIT COURT OF AUSTRALIA

DFP16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1586

Catchwords:
MIGRATION – Review of decision by Immigration Assessment Authority – whether the Immigration Assessment Authority’s decision was affected by jurisdictional error – whether the Immigration Assessment Authority failed to consider all claims before it – whether the Immigration Assessment Authority misconstrued the material before it – whether the Immigration Assessment Authority’s decision was unreasonable – whether the Immigration Assessment Authority correctly applied s.473DD of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.5, 5H, 5J, 31, 36, 65, 473BA, 473CA, 473CB, 473DA, 473DB, 473DC, 473DD
Migration Regulations 1994 (Cth), reg.2.01, sch.1

Treaties:
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), art.1A.
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967 (entered into force 4 October 1967).

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

First Applicant: DFP16

Second Applicant: DFQ16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2967 of 2016

Judgment of: Judge Emmett

Hearing date: 13 June 2018

Date of Last Submission: 13 June 2018

Delivered at: Sydney

Delivered on: 27 June 2018

REPRESENTATION

Counsel for the Applicant: Mr Philip Santucci

Solicitors for the Applicant: King & Wood Mallesons

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Australian Government Solicitor

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2967 of 2016

DFP16

First Applicant

DFQ16
Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Immigration Assessment Authority dated 30 September 2016 (“the Authority”) of a review by the Authority of a decision of a delegate of the first respondent (“the Delegate”) made on 9 August 2016, refusing the applicants Safe Haven Enterprise (Subclass 790) visas (“SHEV”).

2. The applicants are citizens of Sri Lanka of Christian faith and Tamil ethnicity, who fear harm from the Sri Lankan Authorities including but not limited to the Criminal Investigation Division (“CID”) and/or the Sri Lankan Army (“SLA”) in Sri Lanka. The first applicant is the primary applicant and the father of the second named applicant (“the Applicant”). Both applicants rely on the claims as described in independent written statements of claim.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicants’ claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Authority’s review and decision.

Background

1. The applicants arrived in Australia on 23 October 2012, having departed illegally from Sri Lanka.

2. On 28 July 2015, the applicants lodged applications for SHEVs with the Department of Immigration and Border Protection (“the Department”).

3. On 28 October 2015, the applicants attended an interview with the Delegate.

4. On 9 August 2016, the Delegate refused the applicants’ application for a SHEV.

5. On 11 August 2016, the Delegate’s decision refusing the applicants SHEVs was referred to the Authority.

6. On 30 September 2016, the Authority handed down its decision affirming the decision of the Delegate not to grant the SHEVs.

7. On 28 October 2016, the applicants filed an application in this Court seeking judicial review of the Authority’s decision.

Legislative framework

1. Pursuant to s.65(1)(a) of the Migration Act 1958 (Cth) (“the Act”), if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.

2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is SHEV (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

3. Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 36(2A) and 5 of the Act defines “significant harm.”

7. Part 7AA of the Act provides for a limited form of review of certain decisions (“fast track decisions”). Under Part 7AA, s.473BA of the Act provides as follows:

   “Simplified outline of this Part

   This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

   Fast track decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants.

   Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants.

   …”

8. Under s.473BC of the Act, the Minister may determine that a specified fast track decision, or a specified class of fast track decisions, may be reviewed.

9. Pursuant to s.473CA of the Act, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made.

10. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

12. Section 473CB of the Act sets out the material that must be provided to the Authority by the Department when a decision is referred for review:

    “Material to be provided to Immigration Assessment Authority

    (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

    (a) a statement that:

    (i) sets out the findings of fact made by the person who made the decision; and

    (ii) refers to the evidence on which those findings were based; and

    (iii) gives the reasons for the decision;

    (b) material provided by the referred applicant to the person making the decision before the decision was made;

    (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

    (d) the following details:

    (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

    (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

    (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct--such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

    (v) if the referred applicant is a minor--the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

    (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

13. Pursuant to s.473CC(1) of the Act, the Authority must review a fast track reviewable decision referred to it under s.473CA of the Act. Section 473CC(2) provides that the Authority may either affirm the decision under review, or remit the decision for reconsideration.

14. The requirements of the natural justice rule are exhaustively set out in Subdivision A, Division 3 of Part 7AA of the Act (s.473DA). That section provides as follows:

    “Exhaustive statement of natural justice hearing rule

    (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

    (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”

15. Section 473DB(1) of the Act provides that the Authority must review a decision referred to it under s.473CA of the Act on the papers; that is, by considering the review material provided to it under s.473CB without accepting or requesting new information; and without interviewing the referred applicant.

16. Sections 473DC and 473DD of the Act set out the circumstances in which the Authority may consider new information in the conduct of a review of a fast track reviewable decision. Section 473DC provides:

    “Getting new information

    (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.

    (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

    (3)  Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a) in writing; or

    (b) at an interview, whether conducted in person, by telephone or in any other way.”

    Section 473DD of the Act provides as follows:

    “Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.”

The applicants’ claims

1. The Applicant claimed to fear persecution from the SLA, the CID and an armed group, the Elam People’s Democratic Party (“EPDP”) because of his Tamil ethnicity; imputed anti-government and pro-LTTE political opinions; as a Tamil with perceived former links to the Liberation Tigers of Tamil Elam (“LTTE”); and, as a returned failed asylum seeker.

2. From 1996 to 1997, the Applicant claimed he was detained and tortured by the SLA and subsequently jailed by the police.

3. In 2007, the Applicant claimed he was again arrested and tortured by the SLA.

4. In 2011, the Applicant claimed he was detained by the SLA and, following his release, was required to report to the SLA on an ongoing basis.

5. The Applicant claimed his wife was questioned about his whereabouts since he left Sri Lanka and was required to report to the SLA in his absence.

6. The second applicant claimed to fear persecution from the SLA, the CID and the EPDP for the same reasons as the Applicant and that he would be questioned by the SLA about his father and what they were doing in Australia.

7. The second applicant has a crooked bone in his leg that prevents him from running. The second applicant claimed he was questioned about his mother’s whereabouts since he left Sri Lanka.

The Delegate’s decision

1. On 28 October 2015, the applicants attended an interview with the Delegate.

2. The Delegate outlined its findings on the Applicant’s identity as claimed.

3. The Delegate summarised the Applicant’s claims for protection.

4. The Delegate noted a submission from the Applicant’s migration agent, dated 27 October 2015, which stated that the Applicant would suffer harm from members of the CID or the SLA for reasons of his Tamil ethnicity, his imputed political opinion, his membership of the particular social group of Tamils with perceived former links to the LTTE and/or his membership of the particular social group of returned asylum seekers.

5. The Delegate noted a further submission by the Applicant’s migration agent, dated 4 November 2015, which submitted that the Applicant was of documented adverse interest to the Sri Lankan authorities prior to fleeing the country and attached as well as country information that supported the Applicant’s claim that he would be of adverse interest to the authorities if returned.

6. The Delegate noted a letter from the Applicant’s migration agent, dated 2 January 2016, that provided further country of origin information and submitted that no effective protection was available to the Applicant in Sir Lanka.

7. The Delegate accepted many of the applicants’ claims.

8. The Delegate was not satisfied that the Sri Lankan authorities maintained a degree of interest in the Applicant beyond possible low level monitoring.

9. The Delegate did not accept as credible that the Sri Lankan authorities continually visited the Applicant’s home in search of him or that his wife had to report on a daily basis to the SLA.

10. The Delegate did not accept as credible that the Applicant’s photograph had been distributed around all the SLA camps in Sri Lanka.

11. The Delegate had regard to various reports and country information which did not indicate that Tamils were at risk of persecution in Sri Lanka purely on account of their race or imputed LTTE membership or a pro-LTTE opinion. The Delegate was therefore satisfied that the Applicant would not be targeted upon return for reasons of his Tamil race.

12. The Delegate was not satisfied that the Applicant faced a real chance of harm now or in the reasonably foreseeable future in Sri Lanka on the basis of his Tamil race or his origins from the North or that this would elevate his profile to be of adverse interest to any authorities. The Delegate did not accept that the Applicant was of adverse interest to the SLA or any other Sri Lankan authority at the time of his departure from Sri Lanka.

13. The Delegate found that the Applicant did not face a real chance of persecution should he be returned to Sri Lanka for the reason of his non-compliance with the demands of the EPDP.

14. The Delegate was not satisfied, on the evidence and material before it, that the Applicant faced a real chance of serious harm for his illegal departure from Sri Lanka.

15. The Delegate found that any investigation, prosecution and punishment for the Applicant’s illegal departure under the Immigrants and Emigrants Act (“the I&E Act”) would be the result of the a law of general application and would not amount to persecution for the purposes of s.5H(1) and s.5J(1) of the Act.

16. The Delegate found that the harm the Applicant might incur due to departing Sri Lanka illegally and for being a failed asylum seeker was not significant harm.

17. In relation to the claims of the second applicant’s physical disability and health, the Delegate did not accept that those claims related to persecution on return to Sri Lanka for reasons of race, religion, nationality, membership of a particular social group or political opinion.

18. The Delegate found that the applicants’ claims relating to any inadequacy, unavailability or high cost of medical treatment in Sri Lanka, or unavailability or high cost of medical did not arise from any intention to inflict either pain or suffering for the purposes of the definition of torture and cruel or inhuman treatment, or to cause extreme humiliation for the purposes of the definition of degrading treatment or punishment.

19. The Delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Sri Lanka, there was a real risk the Applicant would suffer significant harm as outlined by s.36(2)(aa) of the Act. Therefore the Delegate found the Applicant was not a person in respect of whom Australia had protection obligations as outlined in s.36(2)(aa) of the Act.

1. On 9 August 2016, the Delegate refused the applicants’ application for SHEVs on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention or the alternative complementary protection criterion.

The Authority’s review and decision

1. On 11 August 2016, the Delegate’s decision refusing the applicants SHEVs was referred to the Authority.

2. On 30 August 2016, the Authority received written submissions and further information from the applicants’ representative. The Authority found that to the extent that the submission discussed evidence, including country information that was before the Delegate, it did not constitute new information.

3. Further information was contained in an unsigned statement, dated 25 August 2016, in which the Applicant made a new protection claim being that he had trained with the LTTE for six months prior to his arrest and that his profile and links to the LTTE were greater than was disclosed to his representative or the Department. The Authority noted that his reason for doing so was out of fear and outlined the previous opportunities for him to have disclosed a new protection claim.

4. The Authority referred to the discussions the Applicant had with the Delegate and noted that towards the end of his interview, the Delegate confirmed with the Applicant that he had provided all his protection claims, then asked the Applicant if there was anything further he wished to put to the Delegate. The Delegate also said that if the Applicant provided further information to the Department it may be considered prior to the decision being made.

5. The Authority found that the Applicant’s reasons for non-disclosure did not satisfactorily explain his failure to provide the information before the Delegate made a decision and was therefore not satisfied that there were exceptional circumstances to justify considering the new information provided by the Applicant.

6. The Authority accepted the Applicant’s claims as follows:

   i) A fear of persecution by the Sri Lankan Army (SLA), the Criminal Investigation Department (CID) and an armed group, the Eelam People's Democratic Party (EPDP).

   ii) A fear of harm because of his Tamil ethnicity; imputed political opinions of being anti-government and pro-LTTE; as a Tamil with perceived former links to the LTTE and as a returned failed asylum seeker.

   iii) He was detained and tortured by the SLA and subsequently jailed by the police in 1996 to 1997; arrested and tortured by the SLA in 2007; detained by the SLA in 2011; and required to report to the SLA on an ongoing basis.

   iv) His wife was questioned about his whereabouts since he left Sri Lanka and was required to report to the SLA in his absence.

7. The Authority accepted the second applicant’s claims, as follows:

   i) His fear of persecution by the SLA, the CID and the EPDP.

   ii) His belief that he will be harmed because of his Tamil ethnicity; imputed political opinions of being anti-government and pro-LTTE; as a Tamil with perceived former links to the LTTE; as a returned failed asylum seeker; and that he will be questioned by the SLA about his father and what they were doing in Australia.

   iii) He has a crooked bone in his leg that prevents him from running.

   iv) His mother was questioned about his whereabouts since he left Sri Lanka.

8. The Authority did not find it plausible that the SLA would place a daily reporting requirement on the Applicant’s wife when he was under an intermittent reporting requirement at the time he left Sri Lanka, nor after she advised the SLA that she did not know the Applicant’s whereabouts. The Authority noted that none of the country information supported a finding that the Sri Lankan authorities required a person to report to them in the place of a close relative. Consequently, the Authority did not accept that the Applicant’s wife was required to report to the SLA in his absence. The Authority was prepared to accept that the SLA visited the Applicant’s wife to enquire about his failure to report given he was the subject of low level monitoring by the SLA at the time.

9. The Authority did not accept that the harassment suffered by the Applicant in relation to his fishing work was to such an extent that it threatened his capacity to subsist or otherwise constituted serious harm.

10. The Authority found that there was not a real chance that the applicants would, as Tamil males from the north, face official or societal discrimination amounting to serious harm upon their return to Sri Lanka, now or in the foreseeable future.

11. The Authority did not consider the Applicant to be at risk of harm for various reasons, as follows:

    a)The Applicant residing in a LTTE controlled area did not give rise to a need for protection.

    b)Although the Applicant was held for just over a year by the authorities on suspicion of LTTE involvement, after his release in 1997 he was never again arrested detained or questioned on suspicion that the was a member of the LTTE, despite 15 years of reporting to the SLA.

    c)Although he was arrested and detained by the SLA in 2007 and 2011, on both occasions he was arrested in connection with specific investigations in relation to stock movements or stock recognitions at the MMCS and subsequently released at the end of those enquiries.

    d)The frequency of his reporting requirement, after an increase following his failure to report for eight months while in Colombo in 2007, reduced over time until it became intermittent.

12. With reference to the above and to country information, the Authority considered any risk of harm to the Applicant from the authorities based on his profile, including as a Tamil male from the north, to be remote.

13. The Authority, having regard to the Applicant’s personal circumstances (including his interactions with the Sri Lankan authorities in 2007 and 2011), did not accept that he would have faced adverse action of any other kind if he returned to Sri Lanka, or that there was a real chance of harm if he were to return to Sri Lanka.

14. The Authority found it was implausible that, with the Applicant’s ongoing monitoring by the SLA, he would not have been further detained at some point during the period of 15 years from his release from prison in 1997 and until he left Sri Lanka in 2012, other than the two discrete investigations into issues in relation to stock at the MMCS in 2007 and 2011, if he was of particular concern to the Sri Lankan authorities in relation to suspected involvement with the LTTE. Accordingly, the Authority was not satisfied that the Applicant was of ongoing interest to the Sri Lanka authorities at the time he left Sri Lanka, except as the subject of routine, intermittent monitoring.

15. The Authority was not satisfied that the second applicant, as a young Tamil male from the north, whose father was detained in 1996. 2007 and 2011, was of any interest to the Sri Lankan authorities at the time he left Sri Lanka. The Authority did not accept that the second applicant would have faced adverse action of any kind from the Sri Lankan authorities if he remained in Sri Lanka or that there was a real chance of harm if he returned to Sri Lanka.

16. The Authority therefore found that there was not a real chance that the second applicant would, as a young Tamil male from the north with a disability, face serious harm upon his return to Sri Lanka, now or in the reasonably foreseeable future.

17. The Authority accepted that on their return to Sri Lanka, the applicants would be considered by the authorities to be failed asylum seekers who departed Sri Lanka illegally. The Authority accepted that an asylum seeker with actual or perceived links to the LTTE may be at risk of harm when processed at the airport. However, the Authority did not accept that the applicants would be at risk of adverse attention from the current Sri Lankan authorities when scrutinised on arrival in Sri Lanka, other than the possibility of further monitoring and reporting for the Applicant.

18. The Authority further found that the investigation, prosecution and punishment of the applicants under the I&E Act would be the result of a law of general application and would not amount to persecution for the purpose of ss.5H(1) and 5J(1) of the Act.

19. The Authority was not satisfied that the applicants faced a real chance of persecution on the basis of being failed Tamil asylum seekers who departed Sri Lanka illegally, now or in the reasonably foreseeable future.

20. The Authority considered the applicants’ circumstances cumulatively and accepted that the Applicant may experience some official and societal discrimination as a Tamil male from the north.  The Authority also accepted that the second applicant may face some societal discrimination as a Tamil male from the north, due to his disability, and that the applicants would face some non-discriminatory penalties because of their illegal departure from Sri Lanka.

21. Considering the Applicant’s circumstances as a whole the Authority was not satisfied that he faced a real chance of persecution now in in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, for any suspected links to the LTTE, as a Christian, from the EPDP, as a Tamil fisherman and Tamil male from the north or any combination of those circumstances. The Authority found that the Applicant did not have a well-founded fear of persecution within the meaning of s.5J of the Act.

22. Upon considering the second applicant’s circumstances as whole, the Authority was not satisfied that he faced a real chance of persecution now or in the reasonably foreseeable future, either in the period following his arrival or on his return home, whether because of his illegal departure, having made a claim for asylum in Australia, as the son of the Applicant, as a Christian, as a young Tamil with a disability and as a young Tamil male from the north, or any combination of those circumstances. The Authority found that the second named applicant did not have a well-founded fear of persecution within the meaning of s.5J of the Act.

23. The Authority concluded that the applicants did not meet the requirements of the definition of refugee in s.5H(1) of the Act and subsequently the applicants did not meet s.36(2)(a) of the Act.

24. The Authority was not satisfied that the discrimination and harassment that the Applicant might face would amount to significant harm as defined in ss.36(2A) and 5 of the Act. The Authority found that the discrimination that the second named applicant was low level harm and did not amount to significant harm as defined in ss.36(2A) and 5 of the Act.

25. The Authority was not satisfied that being questioned, arrested finger printed and photographed, any bail surety imposed, any fine imposed and the poor prison conditions, to which applicants may be briefly subjected, and considering the second named applicants age and disability in and of themselves or in combination constituted significant harm as defined under s.36(2A) of the Act.

26. The Authority was therefore not satisfied that the applicants would face a real risk of significant harm during any processing at the airport, from any brief period of detention and/or from any bail or fine imposed.

27. The Authority was not satisfied that there was a real risk the applicants would suffer significant harm on the basis of their Tamil ethnicity.

28. Having considered the applicants’ circumstances individually and cumulatively, the Authority was not satisfied that they faced a real risk of significant harm.

29. Ultimately the Authority concluded that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being returned from Australia to a receiving country, that there was a real risk that the applicants would suffer significant harm and that subsequently they did not meet s.36(2)(aa) of the Act.

30. Accordingly, the Authority affirmed the decision under review.

The proceeding before this Court

1. The applicants were represented at the hearing by Mr Philip Santucci, of counsel.

2. By consent, the applicants were given leave to rely on a Further Amended Application, filed on 5 May 2018, as follows:

   “1. The second respondent fell into jurisdictional error by:

   (a) failing to take into account a relevant consideration;

   (b) reaching a mistaken conclusion; and/or

   (c) constructively failing to exercise its jurisdiction,

   when it failed to consider the first applicant’s claim that his wife was questioned about his whereabouts when she reported to the Sri Lankan Army (SLA).

   Particulars

   i. Transcript of the Department of Immigration and Border Protection Interview held on 28 October 2015 at AS-1 of the Affidavit of Aarthi Sridharan dated 24 April 2017 (at 36.41-37.15 and 41.19-41.21) (Transcript).

   ii. Paragraph 26 of the second respondent’s reasons (CB:347).

   2. The decision of the second respondent was unreasonable, or was not open to it, or was a decision that no sensible decision-maker acting with due appreciation of his or her responsibilities would make, when it decided that it was not satisfied the first applicant had a well-founded fear of persecution based on the conclusion that it was not plausible that the SLA would place a reporting requirement on the first applicant’s wife, in circumstances where:

   (a) the first applicant had claimed that his wife was subject to a daily reporting requirement; and

   (b) in the interview conducted with the first applicant on 28 October 2015, a Departmental Officer stated that she had “no concerns about [the first applicant’s] credibility”.

   Particulars

   i. At 33.44 of the Transcript, the interviewing officer told the first applicant she had no concerns about his credibility and that she was satisfied he had told her the truth.

   ii. At paragraph 50 of the first applicant’s Statutory Declaration (CB: 106).

   iii. Transcript at 36.41-37.15, the first applicant claimed that the SLA had placed a daily reporting requirement on his wife in his absence.

   iv. Paragraph 26 of the second respondent’s reasons (CB:347).

   3. The second respondent fell into jurisdictional error by constructively failing to exercise its jurisdiction, or failing to correctly apply section 473DD of the Migration Act 1958 (the Act) when it

   (a) failed to consider whether the criteria in section 473DD(a) and

   (b) had been satisfied;

   and/or

   (b) adopted and applied an unduly narrow interpretation of the term “exceptional circumstances” in section 473DD(a) or failed to consider all the matters capable of constituting “exceptional circumstances” in the first applicant's case to “justify" the consideration of the new information.

   Particulars

   i. Supplementary statement of the first applicant dated 25 August 2016 (CB:330).

   ii. Paragraphs 4 to 7 of the second respondent’s reasons (CB:343-344).”

3. In support, the Applicant read the Affidavit of Aarthi Sridharan, affirmed 24 April 2017 and filed 27 April 2017, annexing a transcript of the interview with the Delegate. Both applicants had attended the interview and both were interviewed.

4. The Applicant also tendered a bundle of documents filed on 23 March 2017 and marked Exhibit 1A.

Grounds 1 and 2

1. Grounds 1 and 2 broadly assert that the Authority erred in failing to take into account the Applicant’s claim that his wife was questioned about his whereabouts when she was made to report to the SLA; and unreasonableness.

2. The contentions in relation to Grounds 1 and 2 arise from the following paragraphs in the Authority’s decision:

   “Problems since leaving Sri Lanka

   25. The applicants said in their written statements that Applicant l's wife was visited by the SLA after their departure from Sri Lanka to enquire about their whereabouts. In his written statements Applicant 1 states that after an initial period in hiding, she approached the SLA, together with the local priest and Grama Seva, to explain she didn't know where Applicant 1 was and the SLA consequently required that she report daily in his absence. His wife's daily reporting requirement continued until the January 2015 election.

   26. I do not consider it plausible that the SLA would place a daily reporting requirement on Applicant l's wife when he was under an intermittent reporting requirement at the time he left Sri Lanka nor after she advised the SLA that she did not know where he was. None of the country information before the delegate supports a finding that the Sri Lankan authorities require a person to report to them in the place of a close relative. Applicant 1 does not claim that his wife was questioned about his whereabouts, or any other matter, when she supposedly reported to the SLA. I do not accept that Applicant l's wife was required to report to the SLA in the absence of Applicant 1. However, I am prepared to accept that the SLA visited Applicant l's wife to enquire about his failure to report, as he was subject to low level monitoring by the SLA at the time.”

3. In paragraph [25] above, the Authority was reciting the Applicant’s claims about approaches made to his wife by the SLA after his departure from Sri Lanka. The Applicant claimed that after his departure, his wife was visited by the SLA to enquire as to his whereabouts. Following a period of hiding, the Applicant claimed that his wife approached the SLA to explain that she did not know where the Applicant was, whereupon the SLA required her to report daily in the Applicant’s absence.

4. The Authority then states that the Applicant did not claim that his wife was questioned about his whereabouts or any other matter when she reported to the SLA. The Authority did not consider it plausible that the SLA would place a daily reporting requirement on the wife when the Applicant was under an intermittent reporting requirement when he left Sri Lanka. Nor did the Authority accept that after the wife advised the SLA that she did not know where the Applicant was, that they required her to report daily.

5. The Authority based its decision on country information before the Delegate which the Delegate found did not support a finding that the Sri Lankan authorities required a person to report to them in the place of a close relative. It is a matter for the decision maker the country information to which it has regard and the weight it gives that information (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

6. However, the Authority did accept that the SLA visited the Applicant’s wife to enquire about his failure to report, as he was subject to low-level monitoring by the SLA at the time.

7. Mr Santucci referred to the following material in support of the Applicant’s claim that his wife was required to report daily to the SLA in his absence:

   a)The Applicant’s statutory declaration dated 4 June 2015 where the Applicant stated as follows:

   “47. Since leaving Sri Lanka, the SLA have been to my house a number of times, looking and asking for me as I have been missing my daily reporting.

   48. My wife was visited by the Field Five, who work with the SLA. They arrived to my house on motorbikes and intimidated my wife. My wife then went into hiding.

   49. As my wife is now at home by herself, she spoke to our Priest and Grama Seva. Together they decided to go to the SLA Camp and explained to the SLA that my wife did not know where I was.

   50. The SLA have now imposed the daily reporting condition on my wife, in my absence.

   51. My wife continued to report daily until the election in January 2015.”

   b)The second applicant’s statutory declaration dated 1 July 2015 where the second applicant stated as follows:

   “18. Since coming to Australia I still talk to my mother. My mother has told me that after we left the SLA would come and go from our house, looking for us.”

   c)The Delegate’s interview with the Applicant as follows:

   “(T 36.41-37.15)

   MS THOMAS: Ok. Thank you. Can I just ask about your wife’s reporting? How often does she need to report?

   [APPLICANT]: Every week she has to report to the army personnel. Because they came and they asked her to come to the, report to them because since I have not reported to them. So with the help of the GS and her father she is allowed to report to them. If you are suspicious about the reporting, you can, through IOM, you can get the information, whether my wife is reporting in the [indistinct] camp.

   MS THOMAS: How often do you speak to your wife?

   [APPLICANT]: Daily because she is depressed, stressed and every daily I speak to her.

   MS THOMAS: And what does she tell you about what happens when she reports?

   [APPLICANT]: Because when they ask about me then she always says, he has gone to work. And she sign the form, she always go and report to them.

   MS THOMAS: She tells them that she went, she goes to work?

   INTERPRETER: No she always tells that he has gone for work.

   MS THOMAS: Ok. Alright before we finish the interview, is there anything else you would like to say in regard to your protection visa application?”

   d)The second applicant’s interview with the Delegate as follows:

   “(T40.41-41.21)

   MS THOMAS: And in your statement of claims you say she told you that the army personnel went to your house in search of you and your father?

   [SECOND APPLICANT]: Yes my mother told me.

   MS THOMAS: Mhm. So when was that?

   [SECOND APPLICANT]: After coming to Australia.

   MS THOMAS: Hmm.

   [SECOND APPLICANT]: With after coming here they were asking my mother why they have not, we have, my father didn’t report to them. Usually my mother was telling that he had gone out and he had gone out, my father’s gone out but now of course, my mother is reporting to them.

   MS THOMAS: Hmm. And did she say they had asked about you specifically?

   [SECOND APPLICANT]: Because previously they know but I always at home or at school or sometimes with my --- in the shop, in the Co-operative shop. But since they got to know that we both two were not there, they were asking my mother where are we.

   MS THOMAS: Do you know when was the most recent time this happened?

   [SECOND APPLICANT]: Between 2013 and 2014. Because at present my mother is signing the register so because of that they are not coming to my home. But even though my mother signing the register they’ll ask where’s your son and your husband.”

1. The Applicant submits that that material was not taken into account by the Authority.

2. The Applicant submits that the Authority incorrectly stated that the Applicant did not claim that his wife was questioned about his whereabouts when she reported to the SLA.

3. In its decision record, the Authority referred to the Applicant’s claim that “his wife was questioned about his whereabouts since he left Sri Lanka and was required to report to the SLA in his absence”. The Authority also referred to the second applicant’s claims that “his mother was questioned about [the Applicant’s] whereabouts since he left Sri Lanka”.

4. The Authority accepted that the SLA enquired about the Applicant’s failure to report when it visited the Applicant’s wife. However, for the reasons referred to above, the Authority did not accept that the Applicant’s wife was required to report daily to the SLA. It is accurate to say that the Applicant did not claim that his wife was questioned about his whereabouts when she reported to the SLA. The Authority referred to the Applicant’s statements where it was claimed that the Applicant’s wife was visited by the SLA after the departure of the applicants from Sri Lanka to enquire about their whereabouts.

5. In the circumstances, it is clear from the statements of the Applicant and the second applicant that they did not make a claim that the Applicant’s wife was questioned about his whereabouts when she allegedly reported to the SLA.

6. In relation to the Applicant’s oral evidence to the Delegate, even if the oral evidence of the Applicant suggests that the Applicant made a claim that his wife was interrogated about the Applicant when she visited the SLA daily, the Authority did not accept that the Applicant’s wife was placed on daily reporting for the reasons it gave (that is, none of the country information supported such a finding and the Applicant himself was only under an intermittent reporting requirement at the time he left Sri Lanka). Having rejected that claim by the Applicant that his wife was placed on daily reporting, it must follow that the Authority would reject the Applicant’s claim that she was questioned about the Applicant’s whereabouts, or any other matter, when she allegedly reported to the SLA. A rejection of that claim is subsumed in a finding of greater generality of the Authority’s finding that the Applicant’s wife was not placed on daily reporting (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [91]).

7. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604, the Full Court of the Federal Court (French, Sackville and Hely JJ) stated as follows:

   “[46] It is plainly not necessary for the Tribunal refer to every piece of evidence and every contention made by an applicant in its written reasons. …there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf MIMIA v Yusef (2001) 206 CLR 323; 62 ALD 225; 180 ALR at [87] to [97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a Court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. …Its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

8. As stated above, the Authority’s findings were open to it on the evidence and material before it and for the reasons it gave.

9. It is well established that the Authority is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Authority have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

10. Unreasonableness is where a decision-maker has come to a conclusion so unreasonable that no reasonable decision-maker could have come to it (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [28] per French CJ), or where a decision has been made that lacks an “evident and intelligible justification” (see Li at [76]; Associated Provincial Picture House Limited v Wednesbury Corporation [1949] 1 KB 223 at [234]). The test for unreasonableness is “stringent” and only arises in rare cases. Unreasonableness is not a means for challenging a decision on the basis that the court disagrees with the consideration of matters or the evaluative judgments made by the decision maker (see Li at [30], [113]).

11. The Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33 recently summarised the general principles of reasonableness as follows at [38]:

    “38.The following general principles may be extracted from the three leading authorities referred to immediately above (further general guidance is provided by the Full Court’s decision in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158): there is a legal presumption that a statutory discretionary power must be exercised reasonably in the legal sense of that word (Li at [63] per Hayne, Kiefel and Bell JJ; Singh at [43] per Allsop CJ, Robertson and Mortimer JJ; Stretton at [4] per Allsop CJ and at [53] per Griffiths J);

    nevertheless, there is an area within which a decision-maker has a genuinely free discretion, which area is bounded by the standard of legal reasonableness (Li at [66]; Stretton at [56] per Griffiths J);

    the standard of legal reasonableness does not involve a court substituting its view as to how a discretion should be exercised for that of a decision-maker (Li at [66]; Stretton at [8] per Allsop CJ) and [76] per Griffiths J);

    the legal standard of reasonableness is not limited to what is in effect an irrational, if not bizarre, decision and an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified (Li at [68]);

    in determining whether in a particular case a statutory discretion has been exercised unreasonably in the legal sense, close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions (Li at [74]; Stretton at [62] and [70] per Griffiths J);

    legal unreasonableness “is invariably fact dependent” and requires a careful evaluation of the evidence. The outcome of any particular case raising unreasonableness will depend upon an application of the relevant principles to the relevant circumstances, rather than by way of an analysis of factual similarities or differences between individual cases (Singh at [48]; Stretton at [10] per Allsop CJ and at [61] per Griffiths J);

    the concept of legal unreasonableness can be “outcome focused”, such as where there is no evident and intelligible justification for a decision or, alternatively, it can reflect the characterisation of an underlying jurisdictional error (Singh at [44]; Stretton at [12]-[13] per Allsop CJ);

    where reasons are provided, they will be the focal point for an assessment as to whether the decision is unreasonable in the legal sense and it would be a rare case to find that the exercise of a discretionary power is legally unreasonable where the reasons demonstrated a justification (Singh at [45]-[47]).”

12. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [124] per Crennan and Bell JJ:

    “124.More recently it has been suggested that statutory tribunals must not only act reasonably as intended by the legislature, they must also act rationally[97]. If rationality is a separate freestanding common law standard for good administrative decision-making it seems at least related to the implied standard of reasonableness following the articulation by Lord Greene MR of what has come to be known as "Wednesbury unreasonableness"[98]. It appears closely allied also to the requirement in Avon Downs that extraneous reasons should not be taken into consideration but relevant considerations must be. It appears to be allied as well to the principle that fact finding must be based on probative material, one correlative of which is that a decision based on no evidence displays jurisdictional error. Accepting rationality, as a freestanding common law requirement in decision-making, with the consequence that irrationality may attract judicial review, is complicated by three considerations. First, describing reasoning as "illogical or unreasonable, or irrational" may merely be an emphatic way of expressing disagreement with it[99], and to describe a conclusion that a decision maker is not satisfied as "irrational" might mean no more than that, on the material before the decision maker, the court would have reached the required state of satisfaction[100].

    Secondly, the word "irrationality" is conventionally defined as "the quality of being devoid of reason"[101], "illogicality" is conventionally defined as "unreasonableness"[102] and "unreasonableness" is conventionally defined as "irrationality"[103].

    In reliance on a statement made by Sir Thomas Bingham MR in R v Secretary of State for the Home Department; Ex parte Onibiyo[104] the authors of de Smith's Judicial Review[105] have remarked:

    "Although the terms irrationality and unreasonableness are these days often used interchangeably, irrationality is only one facet of unreasonableness."

13. In the circumstances, as stated above, the Authority’s findings were reasonably open to it for the reasons it gave, and were not without an intelligible justification. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Authority] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

14. Accordingly, Grounds 1 and 2 are not made out.

Ground 3

1. Ground 3 broadly contends that the Authority misconstrued or misapplied s.473DD(1) of the Act.

2. As stated above, on 25 August 2016 the Applicant provided to the Authority a supplementary statement that he said he had not disclosed to the Department or the Delegate because he was scared that this would create more trouble for him both in Australia and in Sri Lanka. The Applicant’s statement was as follows:

   “Supplementary Statement of [the Applicant]

   (Boat ID: ABA016)

   I, [Applicant name] of [address] in the state of New South Wales do solemnly and sincerely declare:

   1. I have not disclosed the full extent of my participation with the Liberation Tigers of Talim Eelam (LTTE).

   2. Before my arrest in Sri Lanka, I had participated in six months of formal training with the L TTE. My profile and links to the L TTE were greater than I had advised my agent and the Department.

   3. I was too scared and frightened to mention this as I was scared that this might create more trouble for me both in Australia and Sri Lanka if I admit to my participation with the L TTE.

   4. I have a very strong fear of the authorities. I have been detained and tortured, this experience has left me very wary and afraid.”

3. In considering whether it should have regard to the new information, the Authority stated as follows:

   “3. On 30 August 2016 the IAA received a submission and further information from the applicants' representative. To the extent the submission discusses evidence, including country information, which was before the delegate and responds to the delegate's decision based on that material, I consider this does not constitute new information and I have had regard to it.

   4. The further information is an unsigned statement dated 25 August 2016 from Applicant 1 in which he makes a new protection claim that he trained with the Liberation Tigers of Tamil Eelam (LTTE) for six months prior to his arrest and therefore his profile and links to the LTTE were greater than he disclosed to his representative or the Department of Immigration and Border Protection (the Department). He also states he was too scared and frightened to mention this as he was scared that this might create more trouble for him in both Australia and Sri Lanka if he admitted his participation in the LTTE.

   5. A fear of possible adverse consequences when supplying some information to the people encountered in the protection visa claim and assessment process - whether representatives, interpreters or Department officers - is not uncommon among protection visa applicants. Although the new statement post-dates the delegate's decision, the information provided by Applicant 1 relates to matters that pre-date the delegate's decision. Additionally, Applicant 1 had two previous opportunities to disclose the new protection claim to his representatives (original protection visa claim and SHEV application) and failed to do so. At the SHEV interview, Applicant 1 was also specifically questioned in relation to any involvement with the LTTE and did not provide the information he now seeks to rely on.

   6. The delegate explained to Applicant 1 at the SHEV interview that the IAA can only consider material provided to the Department in his application, unless exceptional circumstances apply, and told him that it was extremely important that he give the Department full, personal and accurate protection claims as early as possible in the protection visa application process, including during the interview. The applicant was told that if he did not give the Department all of his protection claims and any additional relevant information he may have, and the application was refused, he might not have another chance to provide these claims. Near the end of his interview, the delegate confirmed with Applicant 1 that he had provided all his protection claims, asked him if there was anything further he wished to put to the delegate and said if he provides further information to the department it may be considered prior to the decision being made. The SHEV interview in October 2015, or prior to the delegate making a decision in August 2016, was Applicant l's opportunity to put forward all his protection claims, raise any concerns he had that may have prevented an earlier disclosure of a protection claim and discuss any fears he held about the visa assessment process and disclosing information that may place him at risk. The applicant's reasons for non-disclosure do not satisfactorily explain his failure to provide the information before the delegate made a decision.

   7. The applicant was represented by a registered migration agent and had access to a Tamil translator throughout the process. The delegate also explained to him the necessity of being truthful in his dealings with the Department. The applicant, besides confirming he had set out all his protection claims, was also specifically told that any further information that was provided before a decision was made may be taken into consideration. His representative provided a further written submission after the SHEV interview but this new claim was not raised. Considering all of the above factors, I am not satisfied that there are exceptional circumstances to justify considering the new information provided by Applicant 1.”

4. As stated above, s.473DD of the Act prohibits the Authority from considering new information unless satisfied of various criteria. In particular:

   “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.”

5. The Applicant contends that the Authority was bound to consider the criteria in s.473DD(b)(i) and (ii); and/or adopted and applied an unduly narrow interpretation of the term “exceptional circumstances” in s.473DD(a) of the Act. Alternatively, the Applicant contended that the Authority failed to consider all the matters capable of constituting “exceptional circumstances” in the Applicant’s case to justify the consideration of the new information.

6. At the heart of the Applicant’s submissions is the contention that the Authority did not address the s.473DD(b)(ii) criterion, and in considering whether “exceptional circumstances” justified considering the new information, the Authority considered only s.473DD(b)(i) of the Act.

7. The Applicant submitted that paragraph [4] of the Authority’s decision record refers to the substance of the new information, being that the Applicant had participated in 6 months of formal training with the LTTE.

8. Paragraph [4] records that the Applicant stated he was too scared and frightened to mention this information to the Department because it might create more trouble for him in both Australia and Sri Lanka if he admitted his participation in the LTTE.

9. In paragraph [5], the Authority stated that a fear of possible adverse consequences when supplying some information to the Department, its representatives or interpreters, was not uncommon among protection visa applicants. The Authority noted that the new statement post-dated the Delegate’s decision but related to matters that predated the Delegate’s decision. The Authority noted that the Applicant had had two previous opportunities to disclose the new protection claim to his representatives, being his original protection visa claim and the SHEV application, and had failed to do so. The Authority noted that at the SHEV interview, the Applicant was specifically questioned in relation to any involvement with the LTTE and that the Applicant had failed to provide the information now sought to be relied upon.

10. In paragraph [6], the Authority states that the Delegate explained to the Applicant at the SHEV interview that the Authority could only consider material provided to the Department if exceptional circumstances applied and that it was extremely important that he give the Department full personal and accurate protection claims as early as possible, including during the interview. The Authority noted that the Applicant was told that if he did not give the Department all of his protection claims and any additional relevant information he may have, and his application was refused, he might not have another chance to provide those claims. The Authority noted that near the end of the interview, the Delegate again confirmed with the Applicant that he had provided all his protection claims. The Authority noted that the Delegate asked the Applicant if there was anything further he wished to put, and that if he did, the Department would consider that information prior to making a decision. The Authority noted that the Applicant had from the SHEV interview in October 2015 to the Delegate’s decision in August 2016 to put forward all his protection claims, raise any concerns he had that may have prevented an earlier disclosure of a protection claim and discuss fears about how disclosing information or the visa process may place him at risk.

1. The Authority found that the Applicant’s reasons for non-disclosure did not satisfactorily explain his failure to provide the information before the Delegate made its decision.

2. In paragraph [7], the Authority noted that the Applicant had been represented by a registered migration agent and had access to a Tamil translator throughout the process. The Authority also noted that the Delegate had explained to the Applicant the necessity of being truthful in his dealings with the Department and was specifically told that any further information that was provided before a decision was made may be taken into consideration. The Authority noted that the applicants’ representative provided a further written submission after the SHEV interview but that this new claim by the Applicant was not raised.

3. The Authority then concluded that “considering all of the above factors,” it was not satisfied that there were exceptional circumstances to justify considering the new information provided by the Applicant.

4. Counsel for the Applicant submitted that paragraph [7] of the Authority’s decision record only addressed the criterion in s.473DD(b)(i) of the Act and that the Authority was obliged to address (ii) as well; and, that it was obliged to consider that criterion before determining if there were exceptional circumstances.

5. Counsel for the first respondent, Mr Tim Reilly, contended that the requirements of s.473DD(a) and (b) are cumulative and, having not been satisfied that there were exceptional circumstances to justify considering the new information, the Authority was not obliged to consider the criteria in s.473DD(b) of the Act. Mr Reilly referred the Court to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”) where the plurality of the High Court of Australia (Gageler, Keane and Nettle JJ) stated as follows 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" [R v Kelly [2000] QB 198 at 208, quoted in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [40]].

   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"[Section 5(1) of the Act, definition of "personal information", read with s 6(1) of the Privacy Act 1988 (Cth), definition of "personal information"]. 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" [Australia, Senate, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, Supplementary Explanatory Memorandum (Sheet GH118) at 6 [29]]. 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 [See Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [106]].

   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.”

6. The plurality in Plaintiff M174, at [75], noted that the Independent Assessment Authority’s choice not to consider information was based on its lack of satisfaction that there were exceptional circumstances to justify considering that new information with the result that the precondition in s.473DD(a) was not met. Gordon J stated that the lack of satisfaction involved “an evaluative judgment which was elaborately explained by the Authority”.

7. Plaintiff M174 involved new information from two sources. The first source was a letter from a Reverend Brown which reiterated evidence provided to the Department and was therefore found not to be new information and that the Independent Assessment Authority had had regard to that information. The Independent Assessment Authority accepted that to the extent that the letter referred to the applicant’s church attendances in 2016, this was new information that was not before the Minister and which may be relevant because it concerned the applicant’s attendance at Church after the protection interview and before the Delegate’s decision. However the applicant had been informed at the protection interview that he could provide further information for the Delegate’s consideration up to 7 days after the protection interview.

8. The Independent Assessment Authority in Plaintiff M174 records that the applicant was not told he could provide new information at any time up until the decision was made and that there could be a delay before his application was finalised. The Independent Assessment Authority accepted that the applicant may have thought that he could only provide the new information for 7 days after the interview. In those circumstances, the Independent Assessment Authority considered the new information could not have been provided before the delegate made its decision. The Independent Assessment Authority then had regard to the potential relevance of the applicant’s ongoing religious activities in relation to an assessment of the genuineness of his commitment to Christianity. The Independent Assessment Authority consequently found that there were exceptional circumstances to justify considering the new information about the applicant’s religious activities during the period between the protection interview and the Independent Assessment Authority’s decision.

9. The second source of information in Plaintiff M174 was letters from Church congregants. Those letters confirm that the applicant attended Church and was enthusiastic in growing his Christian faith, until the applicant and the authors of the letters moved away. The Independent Assessment Authority found that that information referred to events which occurred before the protection interview and the Minister’s decision and did not specifically refer to events after either the protection interview or the Minister’s decision. The Independent Assessment Authority found that the applicant was aware he could provide supporting material of that kind, as demonstrated by his provision of the Reverend Brown letter. The Independent Assessment Authority also noted that the applicant had legal assistance in preparing his protection visa application. The Independent Assessment Authority concluded that it was not satisfied there were exceptional circumstances to justify consideration of the congregants’ letters.

10. The Independent Assessment Authority made a similar finding in relation to another letter from a congregant who referred to the applicant’s religious activity before the protection visa interview and the Minister’s decision.

11. As stated above, the plurality found that analysis by the Independent Assessment Authority to be elaborate in its explanation as to why it was not satisfied that there were exceptional circumstances to justify consideration of the information.

12. In my view, the Independent Assessment Authority in Plaintiff M174 engaged in no greater analysis of whether exceptional circumstances existed than did the Authority in the case before this Court.

13. In the case before this Court, the Authority clearly summarised with particularity the substance of the information and found that the information provided by the Applicant related to matters that predated the Delegate’s decision. There was no time impediment put on the Applicant in furnishing further material or information to the Delegate, as occurred with the Reverend Brown letter in Plaintiff M174. The Authority noted the pains to which the Delegate had gone in explaining to the Applicant the importance of providing all his claims and that he could do so prior to the Delegate’s decision which, ultimately, was some 10 months later. The Authority evaluated the reasons provided by the Applicant as to why he had not provided that information before and was not satisfied that the Applicant’s explanation for the non-disclosure was sufficient to persuade the Authority that there were exceptional circumstances to justify consideration of the new information. As in Plaintiff M174, the Authority noted that the Applicant had been represented throughout by a migration agent and noted that the Delegate had regard to a further written submission after the SHEV interview but which did not raise the new information.

14. In the circumstances, it was open to the Authority not to be satisfied that there were exceptional circumstances to justify consideration of the new information provided by the Applicant.

15. The case before this Court appears to be on all fours with Plaintiff M174. As stated above, the plurality makes clear that a precondition to considering any new information is the satisfaction of the Authority that there are “exceptional circumstances” to justify considering it. The plurality in Plaintiff M174 went on to state that s.473DD(b) of the Act sets out a further precondition that must also be met before the Authority can consider the new information.

16. The Applicant submits that in considering whether there are exceptional circumstances, the Authority must have regard to both limbs in s.473DD(b) of the Act.

17. The Applicant relied on the decision of White J in BVZ16 v Minister for Immigration 17] FCA 958 (“BVZ16”) and of the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”), in contending that the Authority was bound to consider s.473DD(b)(i) and (ii) of the Act before determining whether or not it was satisfied that exceptional circumstances exist to justify consideration of the new information.

18. Counsel for the Applicant referred to the following paragraphs in BVZ16:

    “[9] The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the Authority to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.

    [35] Moreover, and in any event, there is no indication that the IAA member considered the new material having regard to the criterion stated in subpara (b)(ii).

    [36] For these reasons, I respectfully disagree with the conclusion of the FCC Judge on this point. In my opinion, the FCC Judge erred in failing to find that the IAA had considered only the subpara (a) requirement. The FCC Judge had accepted (at [23]) that it would have been erroneous for the IAA not to have considered the subpara (b) requirement. It follows that the FCC Judge should have found jurisdictional error by the IAA in failing to discharge the task of review imposed by s 473DB(1).

    [37] I would also uphold an additional and related contention of the appellant. This was to the effect that, even if the FCC Judge had been correct in finding that the IAA had addressed s 473DD(b)(i), this would not have completed the IAA’s statutory task, given that subpara (b) is expressed in alternatives. The circumstance that the appellant may not have been able to satisfy subpara (b)(i) did not foreclose him being able to satisfy subpara (b)(ii).

    [41] Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).”

19. Counsel for the Applicant referred to the following paragraph in BBS16:

    “[114] For these reasons, we consider that the IAA made a similar error to that which was identified in BVZ16. Instead of addressing other matters which were potentially relevant to the issue of “exceptional circumstances”, including the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA, the IAA reasoned that, because the referred applicant had not provided any explanation as to why the new information could not have been provided earlier, the IAA was not satisfied that there were exceptional circumstances. That reflects a misconstruction and misapplication of s 473DD.”

20. Counsel for the Applicant submitted that there was no consideration by the Authority as to how the information in the supplementary statement may have affected the consideration of the Applicant’s claims.

21. Unlike in BBS16, the Authority did not consider as relevant only the fact that the information was not submitted earlier, or that there was the absence of an explanation, as in BVZ16. In the case before this Court, the Authority clearly referred to the explanation proffered by the Applicant as to why he had not disclosed the information earlier but was not satisfied by it. Otherwise, the Authority considered the nature and content of the new information, the explanation why it was not submitted to the Delegate, and the satisfactoriness of that explanation in the circumstances.

22. In the circumstances, it was open to the Authority to conclude that it was not satisfied that exceptional circumstances existed to justify considering the new material. That is precisely what the Independent Assessment Authority did in Plaintiff M174, no more no less. Such analysis was considered adequate by the judges of the High Court of Australia in considering whether there was jurisdictional error in the manner in which the Independent Assessment Authority had considered whether or not exceptional circumstances existed to justify considering the new information.

23. Plainly, in considering whether exceptional circumstances existed, the Authority found that the information predated the Delegate’s decision and therefore was information that could have been provided to the Minister before he made his decision. There was nothing to suggest that the information itself was not credible personal information and, in accordance with Plaintiff M174, it was not information that was previously known to the Authority. It is possible that it may also have been information that might have affected consideration of the Applicant’s claims. However, the Court in Plaintiff M174 makes clear that it is not necessary for the Authority to consider s.473DD(b)(i) and (ii) of the Act where the Authority is not satisfied that there are exceptional circumstances to justify considering the new information.

24. Having decided that s.473DD(a) of the Act was not met, in that the Authority was not satisfied there were exceptional circumstances to justify considering the new information, in my view, it was not necessary for the Authority to consider s.473DD(b) of the Act.

25. I do not accept that the Authority misconstrued the meaning of “exceptional circumstances” in s.473DD(a) of the Act.

26. In the circumstances, the Authority correctly construed and applied s.473DD(1) of the Act.

27. Accordingly, Ground 3 is not made out.

Conclusion

1. A fair reading of the Authority’s decision record makes clear that the Authority understood the claims being made by the Applicant; and, had regard to all material provided in support. The Authority identified independent country information to which it had regard.

2. The Authority made findings based on the evidence and material before it. Those findings of fact were open to the Authority on the evidence and material before it and for the reasons it gave. A fair reading of the Authority’s decision record makes clear that the Authority reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Authority complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Authority’s decision is not affected by jurisdictional error and is therefore a privative clause decision.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:  

Date:  27 June 2018