DHH16 v Minister for Immigration & Anor
[2018] FCCA 1638
•23 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHH16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1638 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant believed in part but fears found not to be well-founded – applicant supplying new information to the Authority which it declined to receive – whether the Authority misapplied s.473DD of the Migration Act 1958 (Cth) considered – whether the Authority misapplied the real chance test considered, and whether the Authority made irrational or illogical findings unsupported by any probative evidence considered – jurisdictional error established in the application of s.473DD. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.25D Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 57, 65, 473DC, 473DD, 473EA, 473GA, 473GB |
| Cases cited: ABJ17 v Minister for Immigration & Anor [2017] FCCA 1240 AKK17 v Minister for Immigration & Anor [2017] FCCA 2486 ARG15 v Minister for Immigration (2016) 250 FCR 109 AQU17 v Minister for Immigration [2018] FCAFC 111 AUH17 v Minister for Immigration [2018] FCA 388 AUS17 v Minister for Immigration & Anor [2017] FCCA 1986 BRA16 v Minister for Immigration [2018] FCA 127 BVZ16 v Minister for Immigration [2017] FCA 958 Chan v Minister for Immigration (1989) 169 CLR 379 CHF16 v Minister for Immigration [2017] FCAFC 192 CQG15 v Minister for Immigration [2016] FCAFC 146 CQW17 v Minister for Immigration & Anor [2017] FCCA 2378 DAO16 v Minister for Immigration [2018] FCAFC 2 DHV16 v Minister for Immigration & Anor [2018] FCCA 349 DLB17 v Minister for Immigration & Anor [2018] FCCA 1299 DVF16 v Minister for Immigration & Anor [2017] FCCA 2278 DYS16 v Minister for Immigration [2018] FCAFC 33 Goundar v Minister for Immigration [2016] FCA 1203 Lee v Minister for Immigration [2005] FCA 464 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v BBS16 [2017] FCAFC 176 Minister for Immigration v CLV16 [2018] FCAFC 80 Minister for Immigration v CQW17 [2018] FCAFC 110 Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 Minister for Immigration v SZRKT (2013) 212 FCR 99 Minister for Immigration v SZUXN (2016) 69 AAR 210 Minister for Immigration v Yusuf (2001) 206 CLR 323 Plaintiff M174/2016 v Minister for Immigration (2018) 253 ALR 600; [2018] HCA 16 Singh v Minister for Immigration [2017] FCAFC 195 SZEEU v Minister for Immigration (2006) 150 FCR 214 SZLGP v Minister for Immigration [2008] FCA 1198 WAIJ v Minister for Immigration (2004) 80 ALD 568; [2004] FCAFC 74 |
| Applicant: | DHH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3040 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 June 2018 |
| Date of last submission: | 17 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms C Winnett |
| Solicitors for the Applicant: | Clifford Chance |
| Counsel for the Respondents: | Mr M Cleary |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari shall issue, removing into this Court the record of the Immigration Assessment Authority decision made on 4 October 2016, 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 3040 of 2016
| DHH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 4 October 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant arrived in Australia by boat on 10 October 2012,[1] and lodged a valid application for a Safe Haven Enterprise Visa (SHEV) on 17 February 2016.[2] There is no dispute that he is a “fast track applicant” and is not an “excluded fast track review applicant”, within s.5 of the Migration Act 1958 (Cth) (Migration Act).[3]
[1] Delegate’s decision (Court Book (CB) 202).
[2] Delegate’s decision (CB 202); Authority reasons at [1] (CB 241).
[3] See delegate’s decision (CB 202).
The applicant’s claims
The applicant’s visa application[4] was supported by (amongst other things): a covering letter[5] and country information on Sri Lanka[6] prepared by his migration agent; a statement signed by the applicant on 26 January 2016;[7] and various documents evidencing his identity.[8] He subsequently attended an interview with a case officer of the Minister’s Department on 17 June 2016, assisted by an interpreter,[9] and submitted a post-interview written submission through his migration agent on 3 July 2016.[10]
[4] CB 48ff.
[5] Letter from Rebecca Lim to the Minister’s Department dated 11 February 2016 (Covering letter) (CB 49).
[6] “Supporting Country Information – Sri Lanka”, February 2016 (CB 110).
[7] Statement of the applicant dated 26 January 2016 (Statement) (CB 102).
[8] CB 149ff.
[9] Affidavit of Hannah Kate Vieira sworn 18 May 2017, Annexure A (Interview transcript).
[10] Submission of Ms Lim dated 1 July 2016 and emailed to the Minister’s Department on 3 July 2016 (Post-interview submission) (CB 179-197).
The applicant claimed to fear harm by government authorities and paramilitaries if returned to Sri Lanka on several bases, which can be summarised as follows.
Tamil ethnicity: as a member of the Tamil ethnic minority, the applicant claimed that he had suffered “beatings, mistreatment, [and] threats to his life that resulted in hiding for his safety”, and would continue to be subject to discrimination and persecution if returned to Sri Lanka.[11] He stated that, whilst he was a student, he was “rounded up” on a number of occasions and beaten by police.[12]
[11] Post-interview submission (CB 184).
[12] Statement at [6] (CB 102).
Imputed connections with, and support for, the Liberation Tigers of Tamil Eelam (LTTE): relatedly, the applicant claimed to fear persecution by the Sri Lankan government and military and paramilitary groups working with it, chiefly, the Karuna group, otherwise known as the TMVP political party, and the “CID” (ie the Criminal Investigation Division of the government), based on his family links with, and his imputed support for, the LTTE.[13]
[13] Statement at [47]-[51] (CB 105); Post-interview submission (CB 184-187); delegate’s decision (CB 204).
The applicant stated that his two uncles, who were LTTE members, had been killed;[14] his father had been tortured; and his cousin “R”, a motor mechanic who used to repair motorbikes for the LTTE, had been abducted by men in a van in late 2007.[15] He submitted a letter addressed from a Member of Parliament of the Batticaloa District (MP letter), which stated that his uncles had been killed by unknown persons in 1993 and 1996 respectively, and that the applicant “had been subjected to intimidation and threat to his life by the same unknown armed group”, which had come to his house and searched for him.[16]
[14] Or at least one of them - Statement at [51] (CB 105) and Interview transcript at p14.
[15] Statement at [11]-[12], [51] (CB 102, 105).
[16] Letter from the MP dated 3 June 2013 (CB 16).
In his statement and at interview, the applicant explained that, around three days after he went with his aunt to the police station to complain about R’s abduction, approximately four men (whom he assumed were Karuna group members) came to his house, tried to grab him, told him that R had been kidnapped because he helped the LTTE, and threatened to harm and kidnap the applicant.[17] After this incident, he went into hiding at his friend “U”’s house,[18] located a few kilometres from his house.[19] His statement explained: “I was always looking over my shoulder but was always on the move. I avoided main roads and used short cuts.”[20] Later, when he attempted to leave Sri Lanka to work in Qatar for a short period in 2010-2011, he was questioned by the CID at Colombo airport for three hours about whether he supported the LTTE.[21]
[17] Statement at [13] (CB 102-103); Interview transcript at pp9, 16.
[18] Statement at [14], [16] (CB 103); Interview transcript at p9.
[19] Interview transcript pp8-10.
[20] Statement at [17] (CB 103).
[21] Statement at [20] (CB 103); Interview transcript at p11.
Importantly, the applicant claimed that men had continued to visit his house and look for him over the ensuing years after R’s abduction, including while he was overseas in Qatar and after he had left for Australia. Relevantly, his statement explained that:
a)“[a]fter this incident, there were three or four visits and I believe they were Karuna’s people”;[22]
b)while he was in Qatar in 2010 and 2011, “the same men who previously came to my house asking for me came back” on four to five occasions as reported by his mother; his mother and aunt said that they did not know where he was, and on one occasion, the men beat them;[23]
c)after he returned home to Sri Lanka, he “found out some men started asking for my whereabouts again at my aunt’s house that is close to my mother’s house”;[24]
d)after he left Sri Lanka for Australia, his mother “complained to the Sri Lankan Police that I am missing”, because “[s]he wants to be able to tell the men who continue to visit my house monthly and ask for me that she reported I am missing”; he believed that those men were “CID officers and Sri Lankan Police from the local station”;[25] and
e)“[t]here are people who still come to my house asking for me. My mother has already told the Police I am a missing person and if I turn up, I will be in trouble”, specifically, at risk of harm “by those people who are working together with the government such as the CID and the paramilitary groups of Karuna”.[26]
[22] Statement at [15] (CB 103).
[23] Statement at [22]-[24] (CB 103).
[24] Statement at [27] (CB 103).
[25] Statement at [46] (emphasis added) (CB 105).
[26] Statement at [48]-[49] (CB 105).
The applicant made similar statements in his subsequent interview on 17 June 2016. Asked whether any of his immediate family were “having any issues or problems in Sri Lanka”, the applicant responded through the interpreter: “They came asked for me [sic] … ”.[27] After relaying the story of R’s kidnapping, his complaint to the police and the men in the van who visited his house several days later,[28] the applicant was asked about his statement that the men kept visiting his house three or four times, and responded: “Yeah, they came, they came, even now they are coming but my mother said ‘I don’t know where my son is and he doesn’t talk to me’”.[29]
[27] Interview transcript at p13.
[28] Interview transcript at pp9, 14-16.
[29] Interview transcript at p16 (emphasis added in applicant’s submissions).
In his post-interview submission, the applicant contended that he would be “perceived as supportive of or sympathetic to the LTTE by the authorities” based upon his Tamil ethnicity and his familial links (i.e. R and his uncles associated with the LTTE), and noted that he had been threatened for assisting his aunts to lodge police and human rights complaints.[30] In the course of describing the threats that Tamils continue to face in Sri Lanka, the submission contended that a “spate of white van abductions was reported in April 2016”, and that the “notoriety of ‘white van’ abductions has become so ingrained in Sri Lanka that politicians openly refer to the practice”.[31]
[30] Post-interview submission (CB 186).
[31] Post-interview submission (CB 189-190).
Support for the Tamil National Alliance (TNA): the applicant further claimed that he was at risk of being targeted as a TNA supporter, having supported the TNA for the 2012 provincial elections through activities including distributing pamphlets and putting up posters.[32] He stated that, after the TNA won that election in September 2012, the CID came to his house, showed his mother a video recording of him present at the election victory celebrations, mentioned his previous complaint and his cousin’s kidnapping, and threatened his mother that she would not see him again.[33]
[32] Statement at [33]-[34] (CB 104); post-interview submission (CB 191).
[33] Statement at [41]-[42] (CB 104).
Return to Sri Lanka as a failed Tamil asylum seeker who fled the country: finally, the applicant claimed to fear persecution due to the fact that if returned to Sri Lanka, he would be doing so as a failed asylum seeker who left Sri Lanka illegally.[34]
[34] Statement at [53] (CB 105); post-interview submission (CB 194).
The decision of the delegate
On 22 July 2016, the delegate refused the applicant’s SHEV application. [35] The delegate was satisfied that the applicant had provided sufficient evidence of his identity;[36] that the information he provided had “remained highly consistent and detailed throughout the various stages of the assessment process”, with “no significant inconsistencies” in that material;[37] that he had responded to questioning in his interview in a forthright manner;[38] and that “most aspects of his account align[ed] with relevant country information”.[39] Nonetheless, the delegate did not accept the applicant’s various claims. Most relevantly for present purposes, the delegate found that the applicant:
a)had “no political profile and has no connection to LTTE”, and would not be perceived as having any such connection on his return to Sri Lanka;[40]
b)had “exaggerated any investigations or enquiries made by the CID or TMVP to enhance his profile”, including “the claims that he was threatened after the TNA won the election in 2012 and that his family has been visited and received threats after the applicant fled to Australia”;[41] and
c)“was of no particular adverse interest to the Sri Lankan authorities including the CID, the TMVP or any associated gangs or to anyone else prior to the applicant’s departure from Sri Lanka to Australia”.[42]
[35] Letter from the Minister’s Department to the applicant dated 22 July 2016 (CB 199).
[36] Delegate’s decision, Part 2 at [2] (CB 203).
[37] Delegate’s decision, Part 4 at [5] (CB 205).
[38] Ibid.
[39] Ibid.
[40] Delegate’s decision, Part 4 at [8] (CB 205).
[41] Delegate’s decision, Part 4 at [12] (CB 206).
[42] Delegate’s decision, Part 4 at [12] (CB 206).
“Considering the applicants [sic] individual circumstances cumulatively” along with the country information referred to in the decision, the delegate found that the applicant “does not face a real chance of persecution in the reasonably foreseeable future”,[43] nor was there a real chance that he would suffer significant harm upon his return to Sri Lanka.[44] Accordingly, the delegate concluded that the applicant was not a refugee for the purposes of s.36(2)(a) of the Migration Act, or a person in respect of whom Australia had protection obligations under s.36(2)(aa).[45]
[43] Delegate’s decision, Part 5 at [44] (CB 212).
[44] Delegate’s decision, Part 5 at [46], [49] (CB 213).
[45] Delegate’s decision, Part 5 at [50], [53] (CB 213-214).
Referral of the delegate’s decision to the Authority
On 27 July 2016, the Minister referred the delegate’s decision to the Authority for review. By letter dated the same day, the Authority advised the applicant that the Minister’s Department had provided it with “all documents [the Department] consider[s] relevant to your case”, including “any material that you provided to the departmental officer before they decided to refuse you a protection visa”.[46] The Authority stated that it would “proceed to make a decision on your case on the basis of the information sent to us by the department unless we decide to consider new information”, which could only be considered in limited circumstances, as explained in an attached fact sheet and Practice Direction.[47]
[46] Letter from the Authority to the applicant dated 27 July 2016 (CB 216).
[47] Letter from the Authority to the applicant dated 27 July 2016 (CB 216).
On 28 August 2016, the applicant’s migration agent emailed the Authority on his behalf, attaching “submissions and additional information for consideration by the reviewer”.[48] The written submission (Authority submission) largely focused upon the delegate’s rejection of the applicant’s claim that he feared harm in Sri Lanka due to his cousin's and uncles’ respective associations with the LTTE, arguing that this finding was irrational or unreasonable.[49] However, it also asked the Authority to have regard to three attached documents that were described as “new information”. Paragraph 9 of the Authority submission stated:[50]
9. New Information: The review applicant instructs me to forward the following 3 documents attached herewith for consideration by the IAA.
a.A copy of a complaint made by the review applicant’s mother to the Presidential Commission to Investigate into complaints regarding missing persons
b.A copy of the attestation complaint [sic]
c.A copy of a document titled “Declaration of Incident”.
[48] CB 229.
[49] Authority submission at [1]-[6] (CB 230-231).
[50] Authority submission at [9] (CB 232).
Of those three documents, two are critical to the present proceeding.
The first (Attestation) is entitled “Attestation of complain”, signed by the Officer in Charge at Kaluwanchikudy Police Station, and dated 10 August 2016.[51] Substituting the identifying information with generic references to the applicant and his family, the first paragraph of the document reads:
This is With The Reference of the Subject the person [the applicant’s mother] Who Complained that he husband who has been attack by unknown person of Four those Came by a white Colour van With Out number plate because he is inquired by them by asking his son [applicant’s name] on 07.06.2016 on Tuesday evening 6.35pm at home
(errors in original)
[51] CB 234.
The document then states that this complaint is registered to the file referable to the applicant’s mother.
The second (Declaration) is entitled “Declaration of Incident”, signed by a Justice of the Peace said to be located in Kaluwanchikudy, and undated.[52] Although some words appear to be cut off at the right-hand margin, the document reads (again substituting the identifying information with generic references):
This is conformed, [the applicant’s father] had been attacked and injured by four suspect people those co a white color van without the number, for asking his son [applicant’s name] in their home June 2016, at 6.35pm. —
(errors in original)
[52] CB 235.
The Authority decision
On 4 October 2016, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.[53]
[53] Letter from Authority to the applicant dated 4 October 2016 (CB 237).
“New information”
In its reasons, before considering the applicant’s claims, the Authority explained the information to which it had had regard and its reasons as to why it did not have regard to the new information provided by the applicant (i.e. the three documents annexed to the Authority submission). It is convenient to set out at [4]-[6] of the reasons in full:[54]
On 28 August 2016 the IAA received a submission providing reasons the applicant disagreed with the delegate’s decision and inferring that aspects of his claims had been overlooked. To the extent that the submission contains arguments responding to the delegate’s decision and reasserts claims that were before the delegate, I am satisfied that this does not constitute new information and have had regard to it.
Attached to the submission were three pieces of documentary evidence, none of which were before the delegate and which constitute new information for the purpose of this review. The first is a piece of internal correspondence between Sri Lankan government authorities evidencing that the applicant’s aunt made a representation at the public sittings in September 2015 before the Presidential Commission to Investigate Complaints Regarding Missing Persons. No explanation has been provided as to why this document, which is dated 30 September 2015 and therefore pre-dates the delegate’s decision by more than nine months, was not provided earlier and the applicant has not satisfied me as to the matters in s 473DD(b)(ii). Nor am I satisfied there are exceptional circumstances to justify considering this new information.
The second and third documents are an ‘Attestation of Complaint’ (dated 10 August 2016) and a ‘Declaration of Incident’ (undated) from the Kaluwanchikudy Police station. The documents indicate that on 7 June 2016 the applicant’s father was attacked by four unknown men asking after the applicant. While I note the Attestation of Complaint document post-dates the delegate’s decision, and the Declaration of Incident document is undated, no explanation has been provided in the submission to the IAA or otherwise, as to why the information in the documents was not provided earlier, given that the purported incident occurred more than six weeks before the decision was made. I am not satisfied there are exceptional circumstances in this case to justify considering this new information.
(applicant’s emphasis retained)
[54] CB 241.
Reasons for affirming the delegate’s decision
The Authority accepted that: the applicant was “rounded up” frequently during the war, and was once beaten and kicked;[55] two of the applicant’s uncles were killed due to their LTTE activity when the applicant was young;[56] the applicant’s cousin was abducted in 2007, “not implausibl[y]” because of his links to the LTTE;[57] the applicant and his aunt were assaulted and threatened by people they believed were from the Karuna group after lodging reports on the abduction;[58] the applicant was questioned by authorities at Colombo airport concerning his links to LTTE members and whether he was an LTTE supporter before he departed to work in Qatar;[59] the applicant provided low-level support to a TNA candidate prior to the provincial elections in 2012;[60] and the Karuna group beat the applicant and others for putting up TNA posters.[61]
[55] Authority reasons at [19] (CB 245).
[56] Authority reasons at [17] (CB 245).
[57] Authority reasons at [10] and [20] (CB 243-244 and 245).
[58] Authority reasons at [10] (CB 243).
[59] Authority reasons at [21] (CB 246).
[60] Authority reasons at [29] (CB 247).
[61] Authority reasons at [30] (CB 247).
Nonetheless, the Authority rejected the applicant’s claims that he was at risk of harm on the basis of: perceived support for, or links, with the LTTE;[62] his involvement in lodging complaints about his cousin’s disappearance;[63] his association with the TNA;[64] his Tamil ethnicity; or his status as a failed asylum seeker returning to Sri Lanka.[65] It was not satisfied that any of the applicant’s claims “individually or in a cumulative assessment” gave rise to a well-founded fear of persecution,[66] or that there was a real risk that he would suffer significant harm upon return to Sri Lanka.[67]
[62] Authority reasons at [27] (CB 246), [50]-[53] (CB 251-252), [59] (CB 253).
[63] Authority reasons at [46]-[49] (CB 250-251).
[64] Authority reasons at [40]-[45] (CB 249-250).
[65] Authority reasons at [59]-[68] (CB 253-255).
[66] Authority reasons at [70] (CB 255).
[67] Authority reasons at [82] (CB 257).
The Authority found that the applicant did not have a political profile that would expose him to harm.[68] Further, in light of country information, it found that he would not face a real chance of harm if he were to publicly support and promote the TNA upon return.[69] The Authority found that the applicant would not face harm on account of the complaint made in relation to his cousin’s abduction, given the time that had elapsed and the improved situation in Sri Lanka.[70] In light of country information, and the applicant’s profile, the Authority did not accept he would face harm on account of any imputed support of the LTTE, nor his Tamil ethnicity.[71]
[68] CB 249.
[69] CB 249-250.
[70] CB 250-251.
[71] CB 252.
In relation to the applicant’s claim to fear harm as a failed asylum seeker, the Authority referred to country information indicating that the applicant would face “standard procedures, regardless of their ethnicity and religion”[72] and that failed Tamil asylum seekers would not face harm in the absence of actual or perceived LTTE links.[73] In light of that country information and the applicant’s profile, the Authority found that the applicant would not face harm “as a failed asylum seeker who spent considerable time in Australia”.[74]
[72] CB 253 at [61].
[73] CB 254.
[74] CB 255 at [70].
In relation to the applicant’s illegal departure from Sri Lanka, the Authority found that the processes the applicant would face on return would not amount to serious harm. Further, the processes would be the result of a law of general application applied to illegal departures.[75]
[75] CB 255.
For those reasons, the Authority rejected the applicant’s claims and found he did not meet the requirements of the definition of refugee in s.5H(1) of the Migration Act.[76] For the same reasons, and making specific findings, the Authority found that the applicant did not satisfy the complementary protection criterion. In this context, the Authority also found that any discrimination and harassment the applicant may face would not amount to significant harm.[77] Further, the Authority found that the applicant’s experiences on account of his illegal departure would not amount to significant harm.[78]
[76] CB 255.
[77] CB 256.
[78] CB 256-257.
Relevantly for present purposes, one important factor underpinning the Authority’s decision on these issues was its rejection of the applicant’s allegations that he had been sought by the Karuna group or any other group of men, who threatened his family members, at his family’s house at various times following his cousin’s disappearance.[79] Based in part on those factual findings, the Authority concluded that “the applicant was not of adverse interest to authorities on suspicion of having links to the LTTE or for any other reason when he left and there is no credible evidence before me to indicate he has subsequently become of interest”.[80] Similarly, it concluded that he was of no adverse interest to paramilitary groups.[81] The link between those intermediate findings and the Authority’s ultimate conclusions is clear from, for example, [75] and [78] of its decision,[82] where the Authority lists them as reasons why it did not accept that the applicant would face a real chance of harm, or a real risk of significant harm, upon his return to Sri Lanka.
[79] See Authority reasons at [11] (CB 244), [15] (CB 244), [16] (CB 245-246), [36] (CB 248), [48] (CB 250-251).
[80] Authority reasons at [59] (CB 253); see also at [27] (CB 246), [35] (CB 248), [51] (CB 251), [75], [78] (CB 256).
[81] Authority reasons at [75] (CB 256); see also at [27] (CB 246).
[82] CB 256.
The current proceedings
These proceedings began with a show cause application filed on 4 November 2016. The application has been amended several times since then. At the trial of this matter on 21 June 2018 I granted the applicant leave to file and rely upon a further amended application. The grounds in that application are:
Ground 1: Misapplication of test in s 473DD of the Migration Act 1958 (Cth) (Act)
1.The Immigration Assessment Authority (IAA) fell into jurisdictional error by misapplying the test contained in s 473DD of the Act when determining whether it could consider "new information" provided to the IAA by the applicant.
Particulars
(a)Section 473DD of the Act provides that, for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any "new information" unless the criteria in ss 473DD(a) and 473DD(b) are met.
(b)Under s 473DC(1) of the Act, "new information" means any "documents or information" that were not before the Minister when the Minister made the decision under s 65 of the Act and that the IAA considers may be relevant.
(c)On 28 August 2016, the applicant's representative provided (inter alia) the following documents to the IAA on the applicants’ behalf:
(i) written submissions [CB 230-232];
(ii) a copy of a document entitled "Attestation of complain" [sic] signed by the Officer in Charge at Police Station Kaluwanchikudy and dated 10 August 2016 [CB 234] (Attestation of Complaint); and
(iii) a copy of an undated document entitled "Declaration of Incident" signed by a Justice of the Peace in Kaluwanchikudy [CB 235] (Declaration).
(d)The IAA found (at [5] [CB 241]) that the Attestation of Complaint and Declaration were "pieces of documentary evidence" that were not "before the delegate and which constitute new information for the purpose of this review".
(e)From the finding described at paragraph 1(d) above, it can be inferred that the IAA found that the Attestation of Complaint and Declaration fell within the "documents'' limb of the definition of "new information" in s 473DC(1) of the Act.
(f)The IAA found (at [6] [CB 241]) that, even though "the Attestation of Complaint document post-dates the delegate’s decision, and the Declaration of Incident document is undated, no explanation has been provided in the submission to the IAA or otherwise, as to why the information in the documents was not provided earlier. given that the purported incident occurred more than six weeks before the decision was made".
(g)From the finding described at paragraph 1(f) above, it can be inferred that the IAA found that the applicant had not satisfied the IAA of the matters set out in 473DD(b)(i) of the Act.
(h) In making the finding described at paragraph 1(f) above, the IAA misapplied the first limb of the test in s 473DD(b) (set out in s 473DD(b)(i)) by:
(i) asking whether the "information in the documents" (emphasis added), rather than the documents themselves, could have been provided earlier; and
(ii) asking whether the new information could have been "provided earlier" (emphasis added), rather than whether it could have been "provided to the Minister before the Minister made the decision under section 65".
(i)Had the IAA correctly applied s 473DD(b)(i), it would have been satisfied that the documents were not and could not have been provided to the Minister before the decision under s 65 was made.
(j)Further or in the alternative, the IAA misapplied s 473DD(b) by failing to apply the second limb of that test (set out in s 473DD(b)(ii)).
(k)The errors described in paragraphs 1(h) and/or (j) above infected the IAA’s further finding (at [6] [CB 241]) under s 473DD(a) that it was "not satisfied" that there were "exceptional circumstances" to "justify considering this new information".
(kA)Further or in the alternative, the IAA misconstrued and misapplied s 473DD(a) in adopting an inappropriately narrow understanding of the reach of the term "exceptional circumstances", by treating as decisive of the requirement that the circumstances be exceptional its finding that "no explanation has been provided … as to why the information in the documents was not provided earlier" (at [6] [CB 241]).
(l)By reason of the matters described in paragraphs 1(h) and/or (j) and/or (k) and/or (kA) above, the IAA refused to consider the Attestation of Complaint and Declaration, on a basis which was not available to it in law, and accordingly fell into jurisdictional error.
(m)The jurisdictional error described in paragraph 1(l) above was material to the IAA’s ultimate decision to affirm the decision not to grant the applicant a protection visa.
Ground 2: Misapplication of "real chance" test in s 5J(1)(b) of the Act
2.The IAA fell into jurisdictional error by applying the incorrect threshold in determining under s 5J(1)(b) of the Act whether there was a "real chance" that, if returned to Sri Lanka, the applicant would be persecuted for one or more of the reasons set out in s 5J(1)(a).
Particulars
(a)The term "real chance" in s 5J(1)(b) conveys the notion of a possibility that is not remote or far-fetched, regardless of whether it is less or more than 50 per cent.
(b)In relation to the applicant’s claim based on his previous support for the Tamil National Alliance (TNA) ([7] [CB 243]), the IAA found that, although the applicant was "beaten by [Youth Development Sports Club (YDSC)] members affiliated with the Karuna group due to the assistance he was providing with the TNA election campaign", the IAA was "not satisfied that the applicant had, or currently has a profile that would cause him to be targeted upon return (at [40], emphasis added [CB 249]).
(c)In relation to the applicant’s claim based on his status as a "Tamil from the East" ([7]), the IAA found that:
(i) although Tamils in Sri Lanka, particularly in the North and East, still face discrimination and harassment (at [57] [CB 253]), and the applicant "may face some discrimination or harassment upon return" (at [58], emphasis added [CB 253]), the applicant would not face a real chance of serious harm because incidences of extra-judicial killing, disappearances and kidnapping for ransom had "fallen considerably" (at [58] [CB 253]); and
(ii) the country information before the IAA did "not indicate that the applicant would face persecution in the reasonably foreseeable future on account of his being a Tamil of male gender or that this would elevate his profile to be of adverse interest to any authorities" (at [59], emphasis added [CB 253]).
(d)In relation to the applicant’s claim based upon the fact that he "would be returning [to Sri Lanka] as a failed asylum seeker who left illegally" ([7] [CB 243]), the IAA found that:
(i) the IAA was not satisfied that the applicant’s "profile is such that the applicant will be at risk upon return of being detained" (at [59], emphasis added [CB 253]); and
(ii) although there had been "reports of mistreatment and torture" of Tamil asylum seekers who have returned to Sri Lanka from western countries, DFAT had advised that the risk of mistreatment for the majority of returnees was "low", and the IAA was not satisfied that the reports indicated that returned Tamil failed asylum seekers "face such mistreatment" in the absence of factors such as actual or perceived Liberation Tigers of Tamil Eelam (LTTE) member or supporter profiles, and the IAA was "satisfied that the applicant ha[d] not been so attributed" (at [62], emphasis added [CB 253-254]).
(e)In reaching its findings described at paragraphs 2(b)-(d) above, the IAA asked whether the applicant would or would likely face persecution on his return to Sri Lanka, rather than whether there was a possibility that was more than remote or far-fetched that the applicant would face such persecution.
(f)By reason of the matter described at paragraph (e) above, the IAA applied a higher threshold under s 5J(1)(b) than that permitted by law, and accordingly fell into jurisdictional error.
(g)The jurisdictional error described in paragraph 2(f) above infected the IAA’s ultimate conclusions that:
(i) the applicant’s claims did not "individually or in a cumulative assessment give rise to a well-founded fear of persecution in the reasonably foreseeable future upon return" for the purposes of s 5J of the Act (at [70] [CB 255]); and
(ii) the applicant was not a "refugee" within the meaning of s 5H(1) of the Act (at [71] [CB 255]).
Ground 3: Findings affecting ultimate conclusions that were reached without any probative basis/ were irrational or illogical
3.The IAA fell into jurisdictional error by making findings that were reached without a probative basis, and/ or were irrational or illogical.
Particulars
(a) The IAA found (at [15] [CB 244]) that:
(i) it was "implausible" that the applicant was able to reside in his local area while a paramilitary group searched for him; and
(ii) if the applicant had been sought by any paramilitary group in the period between an "initial home incident" in 2007 and the applicant’s departure for Qatar, "they would have been able to locate him".
(b) The findings described at paragraph 3(a) above:
(i) were reached without any probative basis and/ or were irrational or illogical; and
(ii) underpinned the IAA’s further finding (at [15]-[16] [CB 244-245]) that it did not accept that any paramilitary group had searched for the applicant "at any time following the initial incident" ([16] [CB 244-245]).
(c)The finding described at paragraph 3(b)(ii) above was material to the IAA’s further findings that:
(i) it was not satisfied that the applicant was "of interest to the group that initially threatened him … , the [Criminal Investigation Division (CID)] or other authorities upon returning from Qatar" ([27] [CB 246], [59] [CB 253]); and
(ii) it was satisfied that "neither the authorities nor others have ever perceived the applicant as being an LTTE member or supporter" ([27] [CB 246], [53] [CB 251]).
(d)The findings described at paragraph 3(c)(i)-(c)(ii) were material to the IAA’s conclusions (at [59] [CB 253]) that it was not satisfied that:
(i) the applicant faced a real chance of harm on the basis of his Tamil race or his Tamil race and origins from the East; or
(ii) the applicant otherwise had a well-founded fear of persecution on the basis of any imputed LTTE support or links.
(e)By reason of the matters set out at paragraphs 3(b)-(d) above, the IAA’s ultimate conclusions that:
(i) the applicant’s claims did not "individually or in a cumulative assessment give rise to a well-founded fear of persecution in the reasonably foreseeable future upon return" for the purposes of s 5J of the Act (at [70] [CB 255]); and
(ii) the applicant was not a "refugee" within the meaning of s 5H(1) of the Act (at [71] [CB 255]),
were affected by jurisdictional error.
(f)The IAA found (at [18] [CB 245]) that it should give "no weight" to a "letter purportedly from a Sri Lankan Member of Parliament" that had been submitted by the applicant.
(g) The finding described at paragraph 3(f) above:
(i) was reached without any probative basis and/ or was irrational or illogical; and
(ii) was material to the IAA’s further findings that:
1.it was satisfied that "neither the authorities nor others have ever perceived the applicant as being an LTTE member or supporter" ([27] [CB 246], [53] [CB 251]); and
2.it was satisfied that the applicant "did not have a profile that led him to being arrested, or detained by authorities, nor harmed apart from once occasion during the war" [sic] ([53] [CB 251-252]).
(h)The findings described paragraph 3(g)(ii)1)-(g)(ii)2) were material to the IAA’s conclusion (at [59] [CB 253]) that it was not satisfied that the applicant had a well-founded fear of persecution on the basis of any imputed LTTE support or links.
(i)By reason of the matters set out at paragraphs 3(g)-(h) above, the IAA’s ultimate conclusions that:
(i) the applicant’s claims did not "individually or in a cumulative assessment give rise to a well-founded fear of persecution in the reasonably foreseeable future upon return" for the purposes of s 5J of the Act (at [70] [CB 255]); and
(ii) the applicant was not a "refugee" within the meaning of s 5H(1) of the Act (at [71] [CB 255]),
were affected by jurisdictional error.
(applicant’s emphasis retained)
I have before me as evidence the court book filed on 13 February 2017 and the affidavit of Hannah Kate Vieira made on 18 May 2017, to which is annexed a transcript of the applicant’s SHEV interview conducted on 17 June 2016.
Both the applicant and the Minister filed extensive pre-trial submissions and also made oral submissions at the trial through their counsel. I have been assisted by those submissions. I invited further submissions after the trial on the impact of the decisions of the Full Federal Court in Minister for Immigration v CQW17[83] and AQU17 v Minister for Immigration.[84] Both the applicant and the Minister took up that opportunity in further submissions filed on 17 August 2018.
Consideration
Ground 1 – did the Authority misapply s.473DD of the Migration Act?
[83] [2018] FCAFC 110.
[84] [2018] FCAFC 111.
The applicant’s contentions
The applicant submits that, in determining whether to have regard to the Attestation and the Declaration, the Authority fell into jurisdictional error by misconstruing and misapplying the test for considering “new information” in s.473DD of the Migration Act. It is said to have done so in three ways: first, by misapplying s.473DD(b)(i); secondly, by failing to consider and apply s.473DD(b)(ii); and thirdly, by applying an erroneously narrow interpretation of “exceptional circumstances” in s.473DD(a).
It is convenient to explain the asserted errors relating to s 473DD(b) first, before turning to s.473DD(a).
Misapplication of s.473DD(b)
The applicant submits that an examination of [6] of the Authority’s reasons reveals that the Authority made errors in respect of both limbs of s.473DD(b).
Section 473DD(b)(i)
In purporting to apply the test in s.473DD(b)(i), the Authority reasoned that “no explanation” had been provided “as to why the information in the documents was not provided earlier, given that the purported incident”, the attack described in the Attestation and the Declaration, “occurred more than six weeks before the decision was made”. That is said to reflect the wrong enquiry. Instead, the Authority should have asked whether the documents could have been provided to the Authority by the requisite date. If it had done so, the answer would have been “obvious”: at least in respect of the Attestation, and arguably also for the Declaration, the document postdates the delegate’s decision by close to three weeks.
As a broad category, “new information” in s.473DD comprises “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)”.[85] However, “new information” is expressly defined in s.473DC(1) as “documents or information” (emphasis added). This mirrors a distinction drawn in certain other provisions of Pt 7AA, for example, ss.473GA and 473GB. The applicant submits that the term “documents” must be given some work to do separate from the term “information”.
[85] Plaintiff M174/2016 v Minister for Immigration [2018] HCA 16 at [24], citing SZEEU v Minister for Immigration (2006) 150 FCR 214 at 259 [205].
The applicant submits that in this context, “document” means “something written … which provides evidence or information or serves as a record”.[86] This aligns with the Full Federal Court’s reasoning in Minister for Immigration v CLV16[87] that the term “documents” in s.473DC(1) points to “the means whereby the ‘knowledge of some fact or occurrence’ is conveyed to the Authority”, against the backdrop that the expression “new information” as defined in that provision “seeks to identify the sources whereby new factual material is sought to be placed before the Authority”.[88] Where a piece of documentary evidence was not before the Minister, and it is not the same in substance as evidentiary material that was before him,[89] it can constitute a new “document”, and thus “new information”, even if certain underlying claims or facts described in it are not “new”. But this then has important consequences for the application of s.473DD(b)(i): if the applicant has submitted a new document, the question is whether that documentary evidence, rather than the claims or facts described in it, could have been provided to the Authority by the requisite date.
[86] ABJ17 v Minister for Immigration & Anor [2017] FCCA 1240 at [40]; AKK17 v Minister for Immigration & Anor [2017] FCCA 2486 at [45].
[87] [2018] FCAFC 80.
[88] CLV16 at [51], [54].
[89] Cf. ABJ17 at [36]-[38], [40] (a translation of a previously untranslated document is not “new information” within s.473DC), CLV16 at [50] (a submission which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither a “document” nor “information” within s.473DC).
The Attestation and Declaration are said to have been new “documents” within s.473DC(1). The allegation within them had been conveyed by the applicant to the Minister’s delegate, albeit at a high level of generality: in his interview on 17 June 2016, the applicant confirmed that men “even now” continued to come to his house and ask for his whereabouts.[90] But these two documents conveyed “knowledge about some particular fact, subject or event”[91] that is said to have been different in substance to the applicant’s allegation: they purported to be independent documentary corroboration, provided by the Kaluwanchikudy Police Station, dating from 10 August 2016 (at least for the Attestation), that “on 7 June 2016 the applicant’s father was attacked by four unknown men asking after the applicant”.[92]
[90] See [11] above.
[91] Plaintiff M174/2016 at [24].
[92] Authority reasons at [6] (CB 241).
The Authority properly recognised that the materials attached to the applicant’s Authority submission were new “documents” within s.473DC(1), describing them as “pieces of documentary evidence” which “constitute new information for the purpose of this review”.[93] It then correctly applied this finding when considering the first attached document: the “internal correspondence between Sri Lankan government authorities evidencing that the applicant’s aunt made a representation at the public sittings in September 2015”[94] before a presidential commission (Presidential Commission letter). Specifically, the Authority asked why “this document, which is dated 30 September 2015 and therefore pre-dates the delegate’s decision by more than nine months, was not provided earlier”.[95]
[93] Authority reasons at [5] (CB 241).
[94] Authority reasons at [5] (CB 241).
[95] Authority reasons at [5] (applicant’s emphasis retained) (CB 241).
The applicant submits that, by contrast, in respect of the Attestation and the Declaration, the Authority erroneously asked why the information in the documents, apparently, the allegation that an incident had occurred on 7 June 2016, “was not provided earlier”.[96] But, having correctly determined that these pieces of evidence were documents that were not before the Minister’s delegate, the applicant contends that the Authority was required to determine whether those documents “could not have been provided to the Minister before the Minister made the decision under section 65”.[97] The answer to that question is said to be plain on the face of the Attestation: the document suggests that this corroborating evidence was only provided by the Kaluwanchikudy Police Station on 10 August 2016, nineteen days after the delegate made his or her decision. Whilst the Declaration is undated, in circumstances where the Authority accepted that it concerned the same complaint as the Attestation and was also provided by the Kaluwanchikudy Police Station,[98] the applicant submits that it should be inferred that it dates from approximately the same time.
[96] Authority reasons at [6] (CB 241).
[97] Section 473DD(b)(i).
[98] Authority reasons at [6] (CB 241).
A further error in the Authority’s construction and application of s.473DD(b)(i) is said to be that it focused on whether the applicant had explained why these two documents had not been provided “earlier”, [99] rather than “before the Minister made the decision under section 65” (as the subsection provides). That language is said to suggest the Authority erroneously construed s.473DD(b)(i) as, in effect, an obligation to provide new information to the delegate as soon as possible after the relevant facts or circumstances emerge. That is not what the provision requires.
[99] Authority reasons at [6] (applicant’s emphasis retained) (CB 241).
In each of these respects, the Authority is said to have applied the wrong test, or misunderstood the opinion it needed to form, under s.473DD(b)(i).[100] The applicant submits that it thereby fell into jurisdictional error.
[100] See Minister for Immigration v Yusuf (2001) 206 CLR 323 at [41], [82].
Section 473DD(b)(ii)
The applicant submits that, even if the Authority correctly applied s.473DD(b)(i), it failed to perform the statutory task required of it by s.473DD(b) for a different reason: in determining whether it could consider the Attestation and Declaration, it did not consider s.473DD(b)(ii). As explained in BVZ16 v Minister for Immigration,[101] that is a separate, and alternative, limb of s.473DD(b) with which the Authority must engage; the circumstances that an applicant may not have been able to satisfy subparagraph (b)(i) “[do] not foreclose him being able to satisfy subpara (b)(ii)”.[102]
[101] [2017] FCA 958.
[102] BVZ16 at [37].
It is said to be clear from [6] of the Authority’s decision that, in respect of the Attestation and Declaration, it did not apply (let alone consider) s.473DD(b)(ii). In stark contrast to [5], where the Authority stated that the applicant “has not satisfied me as to the matters in s.473DD(b)(ii)” with respect to the Presidential Commission letter, the Authority said nothing in [6] about s.473DD(b)(ii) or the matters it raises. Rather, it moved straight from its purported finding concerning s.473DD(b)(i) to its conclusion that the “exceptional circumstances” requirement in s.473DD(a) had not been satisfied. This closely mirrors the reasoning impugned in AUS17 v Minister for Immigration & Anor,[103] which was relevantly expressed in the following terms:
I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate’s decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied any exceptional circumstances exist that justify considering the new information.
[103] [2017] FCCA 1986 at [37] and [47].
The Court accepted in that case that the Authority erroneously failed to have regard to both subparagraphs of s.473DD(b).[104]
[104] AUS17 at [47].
Had the Authority considered and applied s.473DD(b)(ii), the test it imposes would readily have been satisfied. In large part, this is because the Authority had already accepted facts sufficient to satisfy the requirement that the new information be “credible personal information which was not previously known and, had it been known, may have affected the consideration of the … applicant’s claims”. It found that the documents were “new information” and, therefore, that they “may be relevant”.[105] It found that the documents had not been before the delegate. It found that the documents reported an incident in which four unknown men had attacked the applicant’s father and asked after the applicant. It accepted that those documents “indicate[d]” that the event had occurred. Considering the nature of the applicant’s claims and the content of the Attestation and Declaration against the backdrop of those findings, the documents were capable of being accepted by the Authority as truthful, and clearly could have affected the consideration of those claims. Specifically, they could have corroborated facts underpinning the applicant’s contention that he faced a risk of harm at the hands of the authorities and/or paramilitaries upon his return to Sri Lanka.
[105] Section 473DC(1)(b).
The applicant contends that, by failing to complete its statutory task under s.473DD(b), the Authority fell into jurisdictional error.[106]
Misapplication of s.473DD(a)
[106] See BVZ16 at [37].
The applicant further submits that, even if the Authority correctly applied s.473DD(b), it separately erred in its treatment of the requirement in s.473DD(a).
As stated above, in considering the Attestation and the Declaration in [6] of its reasons, the Authority moved straight from its consideration of s.473DD(b)(i) to its conclusion that no “exceptional circumstances” existed for the purposes of s.473DD(a). As was the case in BVZ16, [107] CHF16 v Minister for Immigration,[108] Minister for Immigration v BBS16[109] and AUS17,[110] it is said to be plain from those reasons that the Authority considered no other matter in reaching its conclusion. For example, it did not consider the subparagraph (b)(ii) matters, or (if not otherwise arising under subparagraph (b)(i)) the date of the Attestation. It did not consider the circumstance that the two documents had evidently been provided to “corroborate several of the applicant’s claims, in response to the adverse decision of the delegate”.[111] And it did not consider the “probative value of that purportedly corroborative evidence”.[112] Rather, the Authority treated as decisive of the requirement that the circumstances be “exceptional” its finding that “no explanation has been provided … as to why the information in the documents was not provided earlier”. In doing so, the applicant submits that it evidently misunderstood the scope of s.473DD(a).
[107] At [46]-[47].
[108] [2017] FCAFC 192 (at [44]).
[109] [2017] FCAFC 176 (at [111]-[112]).
[110] At [47].
[111] AUS17 at [47].
[112] AUS17 at [47].
The applicant submits that, for these reasons, the Authority also committed a jurisdictional error by applying an inappropriately narrow understanding of the reach of the term “exceptional circumstances” in s.473DD(a). Put another way, it failed to have regard to all material considerations in determining whether to accept the “new information”.[113]
Consequences of errors
[113] AUS17 at [47].
The applicant submits that each of the Authority’s errors in construing and applying the test in s.473DD separately infected its conclusion that the Attestation and Declaration were not “new information” to which the Authority could have regard. That finding was then material to its ultimate decision to affirm the delegate’s rejection of the applicant’s visa application. It deprived the Authority of evidence that could have corroborated the applicant’s claims that he faced harm at the hands of Sri Lankan authorities and/or paramilitaries, which the Authority ultimately rejected.[114]
[114] See [26]-[31] above.
The applicant anticipated the Minister’s submission that an error in the Authority’s construction and application of either subparagraph (a) or subparagraph (b) is non-jurisdictional if the Authority separately finds that the other limb of s.473DD is not satisfied. In BRA16 v Minister for Immigration,[115] Gilmour J held in obiter that, even if the Authority had erred in its consideration of s.473DD(b), such error could not be jurisdictional in circumstances where the Authority had made an adverse finding under s.473DD(a). That decision is said to be in tension with BVZ16 at [36]-[37], where White J held that the Authority’s failures in respect of s.473DD(b) were enough to give rise to jurisdictional error.[116]
[115] [2018] FCA 127 at [26].
[116] See also CQW17 v Minister for Immigration & Anor [2017] FCCA 2378 at [19] and Minister for Immigration v CQW17 [2018] FCAFC 110 at [68].
The applicant submits that such an argument would be incorrect. Most obviously, this is said to be because the Authority erred in its approach to both s.473DD(a) and s.473DD(b). But even if that is rejected, the applicant contends that the submission would still fail. If the Authority erred in its approach to s.473DD(b), those errors necessarily infected its finding under s.473DD(a): whether or not it is theoretically possible for the Authority to consider all exceptional circumstances without considering and applying both limbs of subparagraph (b),[117] in this case, the Authority’s erroneous approach to subparagraph (b) is said to have directly formed the basis for its conclusions on subparagraph (a). Alternatively, if the Authority erred in construing s.473DD(a), both BVZ16[118] and CHF16[119] are said to support the proposition that this is enough to vitiate its decision concerning s.473DD.
[117] A question not decided by the Full Court in CHF16, although their Honours noted (at [46]) that such a submission “as a matter of substance … has a tendency to sidestep the real issue”, an observation with which Mortimer J agreed in AUH17 v Minister for Immigration [2018] FCA 388 at [35].
[118] At [47]-[48].
[119] At [44]-[46].
In his supplementary submissions, the applicant contends that the position is not in substance altered by the full Federal Court decisions in CQW17 and AQU17, although those decisions demonstrate that each case will be fact dependent. The applicant relies on CQW17 to reinforce his submission that the Authority should have, but did not, give consideration to the matters in subparagraph (b)(ii) in deciding that it was not satisfied that exceptional circumstances existed under subparagraph (a). The applicant distinguishes AQU17 on its facts.
The Minister’s contentions
Section 473DD 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.
This provision was recently considered and explained by a majority of the High Court in Plaintiff M174/2016. For the purpose of this ground of review, in [29]–[31], the majority set out its observations about the provision so far as s.473DD(a) was concerned. The majority held:
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.
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”.
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 s473DD(b)(i) and (ii).
(citation omitted)
Also recently in BRA16, Gilmour J made this finding about the operation of s.473DD:[120]
Even if the IAA had made an error in respect of its consideration of the matters described in s 473DD(b), any error could not be jurisdictional, as a finding adverse to the appellant was made in respect of s 473DD(a). The chapeau to s 473DD imposes a prohibition on the consideration of new information. That prohibition can only be displaced if the requirements of both ss 473DD(a) and (b) can be satisfied. The word ‘and’ separating sub paras (a) and (b) is conjunctive. The position is not that new information given by a referred applicant can be considered if either s 473DD(a) or s 473DD(b) is met. Indeed, as the Minister correctly submits, the Minister's submission is consistent with BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [36] where White J proceeded upon the assumption that the Authority had misconstrued s 473DD(a) (as his Honour later held at [46]–[47]). It is also consistent with the Full Court's observation at [46] in CHF16.
[120] At [26].
The Minister contends that this statement of Gilmour J is consistent with what the majority of the High Court in Plaintiff M174/2016 at [29]–[31] set out above.
As Gilmour J pointed out in BRA16, the Full Federal Court in CHF16 at [46] made reference to one point of construction which their Honours did not need to consider in that case. At [46] their Honours stated:
There is one point of construction, which we do not find it necessary to pursue. This point is the Minister’s submission that there is no obligation cast by s 473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied. It is not necessary to consider this point further because the Authority in the present case has misunderstood the scope of (a) of s 473DD when concluding that it was not satisfied that there were exceptional circumstances to justify considering the new information. Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it. In a formal sense the Minister’s submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue.
The Minister contends, in other words, based on these authorities, in deciding whether it is prohibited from considering “new information”, under s.473DD, the Authority is not required to consider both paragraphs 473DD(a) and (b). As the requirements of s.473DD are cumulative, if the Authority considered that there were not “exceptional circumstances” to justify considering the information, then the precondition set out in paragraph 473DD(a) is not met, and the inquiry ends there.[121] If some other finding is made in relation to paragraph 473DD(b), it does not matter whether that finding is affected by error, so long as the Authority made an adverse finding under paragraph 473DD(a) which was not affected by any jurisdictional error.
[121] See BRA16 at [26].
The Full Federal Court decision in CHF16, referred to in BRA16, follows on from an earlier decision of the Full Federal Court in BBS16. In BBS16 the Full Federal Court found the Authority had committed jurisdictional error by not considering the applicant’s reasons for not providing the delegate with the “new information”, later given to the Authority. In CHF16, the Full Federal Court held that the Authority committed a similar error, and found that the Authority committed jurisdictional error because, when it made its finding that there were no “exceptional circumstances”, it did not take into account why the “new information” was not brought forward before, or any other circumstances.
The Minister contends that both those cases (BBS16 and CHF16) are distinguishable from the present case. As outlined below, unlike the situation in BBS16, the applicant in the present case did not give any reasons (he gave “no explanation”) as to why any of the “new information” had not been given to the delegate, so the Authority did not have to consider that matter in regard to any of the three documents attached to the applicant’s submission dated 27 August 2016. Unlike the situation in CHF16, the Minister submits that in the present case the Authority did consider why the “new information” had not been provided to the delegate, it found there was “no explanation” as to why any of the three documents had not been given to the delegate. There is therefore said to have been no error of the kind identified in BBS16 or CHF16 committed by the Authority in the present case.
Further, the Minister submits that the effect of s.473EA is that the Authority is not required to give reasons for its decision as to why there are not “exceptional circumstances” to justify considering it.
The Minister submits that it is for the applicant to satisfy the Authority that subparagraph 473DD(b) is met, and, where the applicant has not given any explanation as to why subparagraph 473DD(b) is met, the Authority is not required to go further and determine whether subparagraph 473DD(b) has been satisfied or not. In any event, as Gilmour J observed in BRA16, even if the Authority did go on to consider subparagraph 473DD(b), and made an error, such an error would not be jurisdictional, so long as a finding adverse to the applicant was made with respect to subparagraph 473DD(a). This is because the chapeau to s.473DD makes it clear the Authority may not consider new information unless one of the preconditions is satisfied.[122]
[122] See BRA16.
The Minister submits that the Authority is therefore not required to consider subparagraph 473DD(b) in determining whether there are exceptional circumstances in subparagraph 473DD(a). To the extent that there are decisions of this Court, or the Federal Court, that are contrary to this proposition, then the Minister submits that they have been wrongly decided, and should not be followed.
In particular, subparagraph 473DD(a) does not specify the matters that may be relevant to the Authority’s assessment of whether there exist, in a particular case, exceptional circumstances to justify considering new information. As the majority of the High Court observed in Plaintiff M174/2016, “[q]uite what will amount to exceptional circumstances is inherently incapable of exhaustive statement.” An exceptional circumstance is one which, while it “need not be unique, or unprecedented, or very rare”, must not be “one that is regularly, or routinely, or normally encountered”.[123] The application of that criterion will, inevitably, involve an evaluative judgement by the Authority.[124]
[123] Plaintiff M174/2016 at [30].
[124] Plaintiff M174/2016 at [75].
The Minister submits that what subparagraph 473DD(a) does not require is for the Authority “to be satisfied of the existence of a particular fact or facts.”[125] It is accepted that, in some cases, whether new information could not have been provided to the Minister at the time of the decision under s.65 or whether it is credible, personal information that was not previously known but, had it been known, may have affected the consideration of the referred applicant’s claims “may”[126] be relevant to the Authority’s assessment of exceptional circumstances. However, no decision of the Federal Court or the High Court suggests that they must be considered in forming the state of satisfaction identified in paragraph 473DD(a).
[125] DYS16 v Minister for Immigration [2018] FCAFC 33 at [17] per Tracey, Murphy and Kerr JJ.
[126] BBS16 at [102], CHF16 at [17]–[18] and DYS16 at [31].
In circumstances where the Authority’s discretion to consider particular matters in deciding whether there exist exceptional circumstances is unconfined by the terms of s.473DD, the Minister submits that it would not be appropriate to read subparagraph 473DD(a) as requiring the Authority to take a particular matter into account unless an implication that it is bound to do so is to be found in the subject matter, scope and purpose of the Migration Act.[127] The Minister submits there is nothing in the text or context of subparagraph 473DD(a) that would suggest that the matters described in subparagraphs 473DD(b)(i) and (ii) must be taken into account in determining the existence of exceptional circumstances. The Authority may, or may not, decide to have regard to them. But to treat them as mandatory relevant considerations would be to misread subparagraph 473DD(a).
[127] Goundar v Minister for Immigration [2016] FCA 1203 at [56] per Robertson J, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
The Minister further submits that it is noteworthy that, in Plaintiff M174, the Authority did not use the express language of subparagraph 473DD(b)(ii) or explain, even in substance, why the new information was not credible or was information that may not have affected the consideration of the plaintiff’s claims had it been known by the delegate. That notwithstanding, the majority concluded, at [75], that the Authority’s lack of satisfaction of the criterion in subparagraph 473DD(a) “involved an evaluative judgment which was elaborately explained by the Authority… and eminently justified by the reasons it gave.”
The Minister contends that applying these principles to the present case yields the following result. The Authority dealt with the “new information” in [5] and [6] of its decision as reproduced at [24] above.[128] There were three pieces of “new information” dealt with by the Authority.
[128] CB 241.
The first piece of “new information” (the first document) was an internal piece of correspondence between Sri Lankan Government authorities regarding the applicant’s aunt making a representation at public sittings before a Public Commission in September 2015. So far as this first document was concerned, the Authority made specific and separate findings in respect of each of subparagraphs 473DD(a) and (b) at [5] of its decision.[129] In the third sentence of [5], the Authority makes a finding that each of subparagraphs 473DD(b)(i) and (ii) were not satisfied. Further, in the fourth sentence of [5], the Authority makes a separate and distinct finding in relation to subparagraph 473DD(a). In that regard the Authority found that “nor am I” satisfied there were “exceptional circumstances to justify considering the new information”.
[129] CB 241.
The Minister submits that there was nothing erroneous about these findings. The Authority found that the first piece of “new information” did not satisfy any of the preconditions for its consideration under s.473DD. The fact that it chose to make findings on both preconditions in s.473DD is immaterial. For these reasons the Authority did not commit jurisdictional error when it decided in [5] that it was prohibited from considering the first document.
Next, the Authority, in [6] of its decision,[130] deals with the second and third pieces of “new information” (the Attestation and Declaration). The Authority found that the Attestation was referred to as an “Attestation of Complaint” dated 10 August 2016 and that it was a document which post-dated the delegate’s decision. The Authority found that the Declaration was undated, but related to an incident that occurred six weeks prior to the delegate’s decision. The Authority found that the applicant has not provided any explanation why these documents had not been provided earlier. The Authority then made a specific finding under paragraph 473DD(a) that it was not satisfied there were “exceptional circumstances” to justify considering the “new information” in the Attestation and Declaration.
[130] CB 241.
Contrary to the applicant’s written submissions the Minister contends that there was nothing erroneous about these findings. The Authority has not committed any jurisdictional error in the way it applied s.473DD in [6] of its decision.
The Minister submits that, for all these reasons, the Authority did not commit jurisdictional error in its application of the requirements of s.473DD to the “new information” as asserted in the applicant’s submissions.
In his supplementary submissions the Minister notes that AQU17 and CQW17 do not affect the correctness of the Minister’s submission that the requirements of ss.473DD(a) and (b) are cumulative. The Minister submits that in this case the Authority’s application of s.473DD is consistent with the finding of the Full Federal Court in AQU17. The Minister distinguishes CQW17 on its facts.
Resolution
This ground is concerned with whether the Authority breached s.473DD of the Migration Act when deciding whether to consider “new information” that was submitted by the applicant in a letter dated 27 August 2016. The “new information” consisted of three documents submitted to the Authority as attachments to the 27 August 2016 submission. In particular, the issue is whether, by deciding it would not consider the new information under s.473DD, the Authority committed jurisdictional error.
I prefer at least in part the applicant’s submissions in relation to this ground.
Section 473DD(a)
The Minister gives two main responses to the applicant’s argument that the Authority fell into jurisdictional error in construing and applying s.473DD(a). First, he contends that, as a matter of construction, the Authority is “not required to consider paragraph 473DD(b) in determining whether there are exceptional circumstances in paragraph 473DD(a)”.[131] Secondly, he contends that the decisions in BBS16 and CHF16 are distinguishable from the present case.[132] Each response is considered in turn below.
[131] See [68] and [70] above.
[132] See [64]-[65] above.
The scope of the enquiry mandated by s.473DD(a)
In DHV16 v Minister for Immigration & Anor[133] I rejected the proposition that the Authority is always required to consider s.473DD(b) in determining whether there are exceptional circumstances in s.473DD(a). I am fortified in that view by the judgment of the Full Federal Court in AQU17 in particular at [13]-[14]. For present purposes, however it is enough to recognise that:
a)the breadth of the phrase “exceptional circumstances” within s.473DD(a) “necessarily requires that consideration be given to all the relevant circumstances in determining whether there are ‘exceptional circumstances’”;[134]
b)it reflects a misconstruction and misapplication of s.473DD(a) to proceed solely from consideration of one matter (for example, the Authority’s evaluation of the appellant’s explanation for not having provided the information earlier,[135] the absence of any explanation for not providing the information earlier,[136] or the date of the events described in the new information[137]) to a conclusion that there are no “exceptional circumstances”;
c)on the face of the Attestation and Declaration, and from the circumstances in which the applicant submitted them, relevant matters arising for the Authority’s consideration in the present case included: whether those documents could have been provided to the delegate; whether they were credible personal information which was not previously known and which may have affected consideration of the applicant’s claims; the fact that the Attestation and Declaration had been provided to corroborate several of the applicant’s claims rejected by the delegate; and the probative value of that purportedly corroborative evidence;[138] and
d)the Authority committed a jurisdictional error by treating as decisive of the “exceptional circumstances” requirement its finding that no explanation had been provided as to why the information in the Attestation and Declaration were not provided earlier, instead of addressing other relevant matters.
[133] [2018] FCCA 349 at [89]-[91].
[134] BBS16 at [104], approving White J’s reasoning in BVZ16 (at [39]-[41]).
[135] BVZ16 at [47].
[136] BBS16 at [112].
[137] CHF16 at [44].
[138] See [52] above.
This reasoning is consistent with the Full Federal Court’s treatment of this construction issue in CHF16.[139] Whether or not it would be possible in another scenario, “as a matter of substance”, to consider all exceptional circumstances without considering the subparagraph (b) matters, the Authority’s confined reasoning process was erroneous in this case.
[139] At [46].
Further, each of BVZ16, BBS16, CHF16 and AUS17 support the proposition that the “relevant circumstances” which must be taken into account by the Authority in applying s.473DD(a) may include (but are not limited to) the substance of the matters reflected in subparagraphs (b)(i) and (b)(ii). Those decisions (apart from AUS17) are binding on this Court.
In BBS16, it is clear from the Full Federal Court’s reasoning[140] that their Honours attributed error to the Authority’s failure to consider whether “exceptional circumstances” arose from:
a)the material’s potential status as “‘credible personal’ information which was not previously known to the Authority and may have affected the consideration of the first respondent’s claims” (i.e. the subject of subparagraph (b)(ii));
b)“the first respondent’s explanation as to why he had not previously disclosed his affiliation with AFLA”; or
c)“other matters which were potentially relevant”.
[140] At [110]-[112].
Similarly, in CQW17 at [51] the Full Federal Court made clear that the matters in subparagraphs (b)(i) and (ii) will usually form part of the consideration of exceptional circumstances and a reliance only on (b)(i) (or indeed (b)(ii)) bespeaks an overly narrow interpretation of exceptional circumstances.
Further, in CHF16,[141] after concluding that the Authority had applied s.473DD(a) by considering only the fact that the new information had not previously been provided, the Full Federal Court found that the Authority had erroneously failed to consider “any other circumstances” in that analysis, including “whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims” (again, the subject of subparagraph (b)(ii)).
[141] At [44].
In addition, in AUS17, I held that the Authority’s application of s.473DD(a) miscarried because it was not informed by “the consideration of both subparagraphs of s.473DD(b)”, or by other material considerations “to which the Authority should have had regard”: namely, the fact that the applicant had provided the material to corroborate his claims in response to the delegate’s adverse decision, and the probative value of that evidence.[142]
[142] At [47].
The Minister submits that the subparagraph (b) matters cannot be viewed as “mandatory relevant considerations” in applying s.473DD(a).[143] It should be recalled, however, that s.473DD(a) asks the Authority to consider, in all the circumstances of the case, whether regard to the new information is “justif[ied]”.[144] On a proper construction of that provision in light of the subject matter, scope and purpose of the “new information” provisions of the Migration Act, the Authority is at least obliged to consider relevant matters raised by the applicant or evident from the nature of the new information that may bear on that question of justification. In a given case (such as this one), that will often include the subparagraph (b) matters. It is inconsistent with the statutory scheme for the Authority to be free simply to ignore such matters at its election. That would amount to a determination that it is not satisfied that the (potentially small or even non-existent) subset of circumstances that the Authority has chosen to look at are exceptional. It cannot amount to satisfaction that there are, or are not, “exceptional circumstances”.
[143] See [71] above.
[144] See BVZ16 at [43].
Plaintiff M174/2016 does not assist the Minister on this point.[145] The plaintiff’s challenge to the Authority’s application of s.473DD in that case was confined to an allegation of unreasonableness;[146] he did not argue that the Authority had misconstrued and misapplied the statutory tests in subparagraphs 473DD(a) and/or (b). The High Court held that this was “not a case in which the conduct of the Authority went anywhere near breaching the bounds of reasonableness”.[147] In any event, the “elaborately explained” and “evaluative judgment” of the Authority in that case upheld by the High Court[148] is in an entirely different category to the two sentences of reasoning that underpin the Authority’s conclusions in this case as to why there were no exceptional circumstances justifying consideration of the Attestation and Declaration.[149]
[145] Cf [72] above.
[146] See at [68].
[147] At [73].
[148] At [75].
[149] CB 241 at [6].
BBS16 and CHF16
I treat with caution the Minister’s submissions as to the nature of the error identified in these cases. As to BBS16, the Minister suggests that it was critical that the applicant had provided “reasons” for his failure to provide the new information to the delegate. On that view of the case, the jurisdictional error committed there was a failure to consider those reasons. Given that the present applicant “did not give any reasons”, the case is said to be distinguishable.[150] As to CHF16, the Minister contends that the relevant error was the Authority’s failure to take into account “why the ‘new information’ had not been provided to the delegate”.[151]
[150] See [64]-[65] above.
[151] See [65] above.
Contrary to the Minister’s contentions, the jurisdictional error identified in BBS16 was the Authority’s inappropriately narrow construction of the phrase “exceptional circumstances”, evident from the fact that the Authority’s conclusion was based entirely on its finding that the applicant “had not provided any explanation as to why the information could not have been provided earlier”.[152] Failure to take the applicant’s proffered explanation into account was simply one manifestation of that error, along with its failure to consider other potentially relevant matters.[153]
[152] At [111].
[153] See at [112].
To the extent the Minister suggests that the precondition in s.473DD(a) can never be met unless the applicant has expressly proffered “reasons” or an “explanation” for not providing the new information earlier,[154] that must be rejected. It is a gloss on the statutory text, which contains no such requirement. It is inconsistent with Plaintiff M174/2016, where the majority[155] and Gordon J[156] considered a hypothetical involving an applicant’s submission of new information to the Authority in circumstances where other information before the delegate had not been disclosed to the applicant contrary to s.57(2) of the Migration Act. Their Honours stated that s.473DD(a) would necessarily be satisfied in that case because the circumstances (in the majority’s words) “could not be regarded as anything other than exceptional”. The Minister's suggestion is also at odds with AUS17, where there is no indication that the applicant provided any “reasons” or “explanation” in connection with the letter of support sent to the Authority,[157] but this Court nonetheless concluded that the Authority’s application of s.473DD(a) miscarried.[158]
[154] See [64]-[65] above.
[155] At [50].
[156] At [89].
[157] See at [36].
[158] At [47]. See also DVF16 v Minister for Immigration & Anor [2017] FCCA 2278 at [25]-[26].
Similarly, the jurisdictional error in CHF16 was not confined simply to the Authority’s failure to consider “why” the new information had not previously been provided. The error was the narrow manner in which the Authority considered only the date of the events described in the information, to the exclusion of any other relevant circumstances,[159] including, amongst other things, the subparagraph (b)(ii) matters described at [88] above.
[159] At [44].
On a fair reading of [6] of the Authority’s reasons in this case, the only foundation for its conclusion concerning s.473DD(a) was its finding that the applicant had not explained why the information in the Attestation and Declaration was not provided earlier. This reasoning is on all fours with BVZ16,[160] BBS16[161], CHF16[162] and CQW17.[163] It amounted to a constructive failure to exercise the Authority’s jurisdiction.
[160] At [47].
[161] At [111].
[162] At [44].
[163] At [37]-[39].
To the extent the Minister suggests that the Authority may have had other reasons for reaching this finding that are not reflected in [6],[164] that is not supported by the structure, content and context of the paragraph. Whether or not s.473EA of the Migration Act required the Authority to give reasons for its conclusions concerning s.473DD,[165] the Authority did set out its reasons here, and the reasoning process it followed was affected by jurisdictional error.
[164] See [66] above.
[165] See [66] above.
I emphasise, in this connection, that I am not attracted to, and do not adopt, the distinction drawn by the applicant between documents and information. His attempt to draw that distinction by analogy from s.473DC(1) is unhelpful and confusing. The distinction in that section is between documents and other information (which may not be in documentary form). It is not between documents and the information they contain. The error by the Authority in this case was not to focus on the information in the documents rather than the asserted error of failing to focus on the documents themselves. The Authority’s error was to misunderstand what information was being proffered by the applicant. That information had three components:
a)there had been an incident involving the applicant’s father;
b)the applicant’s mother complained to the police about the incident; and
c)the police had acknowledged the complaint.
Only the information in (a) pre-dated the delegate’s decision. The Authority was in error to focus on that information in finding no exceptional circumstances, rather than the information in (b) and (c) which was corroborative of (a) and could not have been provided earlier.
Section 473DD(b)
The Minister does not attempt to defend the Authority’s treatment of s.473DD(b) in [6] of its reasons. In particular, he does not rebut the applicant’s arguments that the Authority misapplied s.473DD(b) by enquiring whether the information in the documents could have been provided to the delegate contrary to the requirements of s.473DD(b)(i),[166] and by failing to consider and apply s.473DD(b)(ii).[167] Rather, he contends that: (i) if the applicant “has not given any explanation as to why subparagraph 473DD(b) is met”, the Authority is under no obligation to apply that paragraph at all;[168] and (ii) in any event, even if the Authority did err in its application of s.473DD(b), “such an error would not be jurisdictional, so long as a finding adverse to the applicant was made with respect to subparagraph 473DD(a)”.[169]
[166] See [38]ff above.
[167] See [46]ff above.
[168] See [67] above.
[169] See [67] above.
Regarding the first argument: [6] of the Authority’s reasons demonstrates that the Authority did attempt to “determine whether subparagraph 473DD(b) ha[d] been satisfied”.[170] It purported to carry out its statutory task, but failed to adhere to the requirements of subparagraph (b) in doing so. To the extent that the Minister is contending that the precondition in s.473DD(b) cannot in fact be met unless the applicant proffers reasons that directly engage with ss.473DD(b)(i) and (b)(ii), I reject that submission on the basis explained above at [94] consistently with my reasoning in DHV16 at [93]-[95]. As Mortimer J reasoned in AUH17,[171] drawing an analogy with principles affirmed by the Full Federal Court in Singh v Minister for Immigration,[172] an applicant may “satisfy” the Authority about the matters in s.473DD(b) through the documents he or she produces; it is not necessary to clothe those matters in a “specific submission or specific evidentiary topic”. Here, the relevance and significance of the Attestation and Declaration to the applicant’s claims was evident on the face of these documents, and from facts accepted by the Authority in [6].[173]
[170] Cf [67] above.
[171] At [30]-[31].
[172] [2017] FCAFC 195.
[173] See [41], [49] above.
As for the second argument: this must also fail, for either or both of the following reasons. First, the present case is not a situation where the Authority made “an adverse finding under paragraph 473DD(a) which was not affected by any jurisdictional error”.[174] Rather, its finding under subparagraph (a) was infected by its misapplication of subparagraph (b), because the only foundation for its conclusion that there were no “exceptional circumstances” was its erroneous treatment of subparagraph (b).[175] Secondly, at least three authorities provide support for the view that the Authority’s incorrect application of the statutory test in s.473DD(b) will sometimes, but not always constitute jurisdictional error:
a)BVZ16 at [36]-[37] (quoted in CHF16 at [17] without apparent disapproval), where White J held that both a failure to consider subparagraph (b), and a failure to address each limb of that subparagraph, amounted to jurisdictional error;
b)AUS17, where I stated that I was “unable to distinguish this case from BVZ16”,[176] I quoted with approval from BVZ16 at [36]-[37] (as well as White J’s reasoning concerning “exceptional circumstances”) and concluded that I saw “the same error in this case”;[177] and
c)CQW17 at [68]-[72] where the Full Federal Court, while rejecting the proposition that the Authority must necessarily consider both subparagraph (a) and (b), made clear that the matters under subparagraphs (b)(i) and (ii) are potentially relevant in considering subparagraph (a) and the Authority may err in not considering them. The reverse proposition is less obvious but is open.
[174] See [63] above.
[175] See [38], [46], [56] and [96] above.
[176] At [44].
[177] At [45]-[47].
This conclusion must be qualified by reference to BRA16, where Gilmour J stated in obiter that the Authority’s error in considering s.473DD(b) could not be jurisdictional “as a finding adverse to the appellant was made in respect of s.473DD(a)”.[178] Plaintiff M174/2016 at [29]-[31] is neutral on this point.[179] In my opinion if the Authority has chosen to apply the test in s.473DD(b) in respect of “new information” but has failed to do so in compliance with the dictates of the provision, that error of itself is properly viewed as one going beyond the bounds of the decision that the statute authorises the Authority to make,[180] particularly given the interaction between subparagraphs (a) and (b).[181] This assumes that the Authority has not lawfully provided an independent basis for the rejection of the new information under subparagraph (a). This is most clearly the case in circumstances where the Authority has purported to apply subparagraph (b) before turning to subparagraph (a) and has not in substance augmented that reasoning.[182]
[178] At [26].
[179] Cf [61] above.
[180] See Yusuf at [82].
[181] See BVZ16 at [9], approved in BBS16 at [102].
[182] Cf [63] above.
Ground 2 – did the Authority misapply s.5J(1)(b)?
In Ground 2, the applicant asserts that the Authority applied the “incorrect threshold” when determining whether there was a “real chance” of persecution under s.5J(1)(b) of the Migration Act. It is submitted by the applicant that the Authority applied the real chance erroneously by assessing whether the applicant “would or would likely” be persecuted if returned to Sri Lanka.
The applicant submits that the Authority also fell into jurisdictional error by applying the incorrect threshold in determining whether there was a “real chance”[183] that, if returned to Sri Lanka, the applicant would be persecuted.
[183] Section 5J(1)(b).
In contrast to the delegate,[184] the Authority did not state the guiding principles from Chan v Minister for Immigration[185] or otherwise explain the meaning of “real chance” within s.5J(1)(b). Various parts of its reasoning suggest that it applied the “real chance” test by assessing whether the applicant would or would likely be persecuted upon his return to Sri Lanka, rather than whether the possibility that the applicant would face such persecution was more than remote or far-fetched. The applicant contends, as set out in particulars 2(b)-(d) to Ground 2 of the further amended application reproduced at [32] above:
a)in respect of the applicant’s claim based on his previous support for the TNA: whilst accepting that the applicant was “beaten by [Youth Development Sports Club] members affiliated with the Karuna group due to the assistance he was providing with the TNA election campaign”, the Authority stated that it was “not satisfied that the applicant had, or currently has a political profile that would cause him to be targeted upon his return”;[186]
b)regarding the applicant’s claim that he faced persecution due to his Tamil ethnicity: whilst the Authority accepted that the applicant “may face some discrimination or harassment upon return”,[187] it held (amongst other things) that the country information before it “does not indicate that the applicant would face persecution in the reasonably foreseeable future on account of his being a Tamil of male gender or that this would elevate his profile to be of adverse interest to any authorities”;[188] and
c)as to the applicant’s claim that he faced a risk of harm due to his status as a failed asylum seeker who departed illegally: the Authority found that it was not satisfied that the applicant’s profile “is such that the applicant will be at risk upon return of being detained”.[189] Further, despite accepting that there had been “reports of mistreatment and torture” of Tamil asylum seekers who have returned to Sri Lanka from western countries, the Authority stated that DFAT[190] had advised the risk of mistreatment for the majority of returnees was “low”, and concluded:
I am not satisfied that the reports indicate that the returned Tamil failed asylum seekers face such mistreatment in the absence of actual or perceived LTTE member or supporter profiles or certain types of post-departure diaspora activity and I am satisfied that the applicant has not been so attributed.[191]
[184] Delegate’s reasons at [26] (CB 209).
[185] (1989) 169 CLR 379.
[186] Authority reasons at [40], applicant’s emphasis retained (CB 249).
[187] Authority reasons at [58], applicant’s emphasis retained (CB 253).
[188] Authority reasons at [59], applicant’s emphasis retained (CB 253).
[189] Authority reasons at [59], applicant’s emphasis retained (CB 253).
[190] Department of Foreign Affairs and Trade.
[191] Authority reasons at [62], applicant’s emphasis retained (CB 253-254).
This reasoning is said to reflect a higher threshold than the “real chance” inquiry prescribed by s.5J(1)(b). Again, the applicant asserts that the Authority fell into jurisdictional error by applying the wrong test, or misunderstanding the nature of the opinion it needed to form, under that provision.[192] That error is said to have infected its ultimate findings that the applicant’s claims did not “individually or in a cumulative assessment give rise to a well-founded fear of persecution in the reasonably foreseeable future upon return” for the purposes of s.5J,[193] and that the applicant was not a “refugee” within s.5H(1).[194]
[192] See Yusuf at [41], [82].
[193] Authority reasons at [70] (CB 255).
[194] Authority reasons at [71] (CB 255).
I prefer the Minister’s submissions on this ground.
As Judge Smith has held recently in DLB17 v Minister for Immigration & Anor[195] at [16]:
It was a criterion for the grant of the protection visa, that the applicant satisfy the definition of a refugee within the meaning of the Act. In order to do so, there had to be a real chance of Convention based harm: sub-s.5J(1)(b). The term “real chance” was, before the introduction of s.5J into the Act, used to explain what constituted a “well-founded fear of persecution” within the meaning of Article 1A(2) of the Refugees Convention: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 In Chan the High Court explained that a fear of Convention based harm is “well-founded” when there was a real chance of that harm occurring in the sense that there was a risk that was “substantial”, “not remote” and which excluded “the far-fetched possibility of persecution”: Chan at 389, 398 and 429. The inclusion in s.5J of the phrase “real chance” in the context of that understanding of the definition of refugee in the Refugees Convention is not to be seen as changing any of the understanding of what constitutes a refugee as developed by the authorities in and since Chan.
[195] [2018] FCCA 1299.
The applicant’s submissions misunderstand the Authority’s decision. At [38][196] the Authority set out the correct legal test for determining a “well founded fear of persecution” under s.5J of the Migration Act. The Authority then proceeded to apply this test to each of the applicant’s claims in [39]–[70] of its decision.
[196] CB 249.
The applicant refers to various paragraphs of the decision and makes the broad challenge that they show the Authority applied the wrong test. The paragraphs challenged are [40], [58], [59] and [62]. The applicant has applied a fine toothed semantic comb to those paragraphs in an effort to find error, but in my view the argument in this case does not rise above semantics.
In respect of each of the claims made by the applicant, the Authority deployed the correct “real chance” test to determine the applicant does not have a well founded fear of persecution.[197] An ordinary reading of these paragraphs (read together with [38]) does not in my view reveal any misunderstanding of the “real chance” test on the part of the Authority.
Ground 3 – did the Authority make findings that lacked any probative basis or were irrational or illogical?
[197] See [39], [45], [49], [57], [65] and [68].
The applicant’s contentions
The applicant submits that the Authority made two findings that were irrational, illogical or reached without a probative basis. Those findings were material steps along the way to the Authority’s ultimate conclusions and are said to reflect jurisdictional errors.
For present purposes, the key principles governing the jurisdictional error of irrationality or illogicality can be summarised as follows. Many of these were conveniently collected by Wigney J in Minister for Immigration v SZUXN[198] at [52] and [54]-[56], which paragraphs were quoted with approval by the Full Federal Court in CQG15 v Minister for Immigration.[199]
[198] (2016) 69 AAR 210.
[199] [2016] FCAFC 146 at [60].
First, jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the ultimate conclusion.[200] However, such reasoning or finding of fact will not give rise to jurisdictional error if it was immaterial, or not critical, to the ultimate conclusion or end result.[201]
[200] SZUXN at [54], citing (amongst other decisions) Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [132]; see also ARG15 v Minister for Immigration (2016) 250 FCR 109 at [47].
[201] SZUXN at [55].
Secondly, a decision will only be vitiated for jurisdictional error on this basis if “extreme” illogicality or irrationality is shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.[202] Thus, a decision might be illogical or irrational “if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision … was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”.[203]
[202] SZUXN at [52], quoting from Minister for Immigration v SZRKT (2013) 212 FCR 99 at [148].
[203] SZMDS at [135], quoted with approval in DAO16 v Minister for Immigration [2018] FCAFC 2 at [30].
Thirdly, even though questions of weight are generally matters for the decision-maker, an assessment of the weight that attaches to a piece of evidence can still give rise to jurisdictional error if it is “so irrational or illogical as to be outside the bounds of a conclusion that a decision-maker could reasonably reach”.[204] Weight determinations, like credibility determinations, must be “made rationally and logically” and “articulated properly”.[205]
Hiding at the applicant's friend's house
[204] See AUH17 at [48].
[205] SZLGP v Minister for Immigration [2008] FCA 1198 at [25].
In the present case, one of the findings leading the Authority to reject the applicant’s allegations that he had been sought by the authorities and/or paramilitaries at various times concerned the applicant’s claim that he went into hiding at his friend U’s house to avoid his pursuers. In [15] of its reasons,[206] the Authority stated:
Additionally, the applicant confirmed at the SHEV interview that his friend’s house was in the same village, a few kilometres away from his home. I consider it implausible that the applicant was able to reside in his local area, albeit at a friend’s house for at minimum, close to one year (and for up to two or three years depending on the timing of his Qatar trip) while a paramilitary group searched for him. I note the applicant claims he was taking precautions however he was still in the local area, and returning home intermittently. I find that if he was sought by any group in the period claimed they would have been able to locate him. I do not accept that he was sought by the group subsequent to the initial home incident a few days after his cousin disappeared.
(applicant’s emphasis retained)
[206] CB 244.
By concluding that it was “implausible” that the applicant could hide at his friend’s house during this period, and that “if he was sought by any group … they would have been able to locate him”, the Authority is said to have engaged in illogical or irrational reasoning which had no probative basis.
The evidence before the Authority about the applicant’s local area and the distance between U’s house and the applicant’s house was limited to the applicant’s statement that these houses were a few kilometres apart (see [9] above). The Authority knew nothing else about, for example, the size and location of U’s house, the density of the village, the availability of back roads and hiding places, the precise distance between the houses, the width of the streets etc, apart from the applicant’s statements that he exercised caution by “avoid[ing] main roads and us[ing] short cuts”[207] and was able to play at “a grounds behind [U’s] house” where other people could not see him.[208] The applicant submits that the aspect of his account described as “implausible” “did not involve circumstances that were inherently impossible, or beyond belief according to human experience”.[209] And there is said to have been no rational or evidentiary basis for the Authority to conclude, in effect, that hiding at U’s house for an extended period without discovery was impossible and the applicant would inevitably have been found. To borrow the language of Crennan and Bell JJ in SZMDS,[210] the Authority’s conclusions at [15] of its reasons were “simply not open on the evidence”, and there was “no logical connection between the evidence and the inferences … drawn”.
[207] Statement at [17] (CB 103).
[208] Interview transcript at p15.
[209] WAIJ at [33].
[210] At [135].
The applicant contends that these asserted errors just described cannot be characterised as “immaterial” to the Authority’s ultimate decision. They underpinned the Authority’s finding in the next paragraph that it “did not accept” that the applicant “was sought by the Karuna group, or any other men following the initial incident a few days following the disappearance in 2007”.[211] That finding is said to have then formed an important plank of the Authority’s conclusion that it was “satisfied that neither the authorities nor others have ever perceived the applicant as being an LTTE member or supporter”,[212] which contributed to its rejection of the applicant’s claims to be at risk of harm based on his Tamil ethnicity or perceived support for or links with the LTTE.[213] Thus, these errors are said to have been jurisdictional in nature.
The MP letter
[211] Authority reasons at [16] (CB 245).
[212] Authority reasons at [27] (CB 246); see also at [53] (CB 251).
[213] See Authority reasons at [70]-[71] (CB 255).
In addition, the applicant submits that the Authority’s finding in [18] that it should give the MP letter “no weight” was irrational or illogical. Paragraph [18] reads as follows:
The applicant has submitted a letter purportedly from a Sri Lankan Member of Parliament (MP) attesting that the applicant’s uncles were shot in 1993 and 1996 respectively. It also attests that the applicant subsequently experienced intimidation and threats from an unknown armed group who searched for him several times and that was the reason he came to Australia. However, the applicant has never indicated at any other time that he was ever harassed in this manner in relation to his uncles (who I note would have both died when the applicant was a child) or that it was the reason he came to Australia. I am not satisfied the applicant has ever been questioned about his uncles or that his connection to them has attracted adverse attention. I am satisfied that he has never previously faced problems on account of their LTTE connections and I give the purported MP’s letter no weight.[214]
[214] Authority reasons at [18], emphasis added (CB 245).
The Authority gave no probative grounds for entirely rejecting the corroborative value of the MP letter. It said nothing about, for example, whether the letter appeared to be authentic, or as to the credibility of its author. Nor did it form rationally explained conclusions on the significance of this (along with other) evidence and consequently reach a factual finding that the applicant’s connection to his uncles had not attracted adverse attention. Instead, it is said to have reasoned backwards: independently of the MP letter, it made the factual finding just described, and then gave the MP letter “no weight”. Thus, the Authority’s only basis for dismissing the MP letter from its consideration as a piece of corroborative evidence is said to have been because that evidence ran contrary to the position that the Authority had already found to be established. The applicant asserts that this was irrational and illogical within the meaning of the authorities.
An analogy might be drawn with WAIJ v Minister for Immigration[215] (notwithstanding that the jurisdictional error in that case was characterised as a failure to afford procedural fairness).[216] In WAIJ, the then Refugee Review Tribunal described two letters provided by the applicant in support of her claims, purportedly from her sister and from a hospital noticeboard, and relevantly stated: “these letters do not overcome the problems that I have with the applicant’s evidence and I place no weight on them as proof of the credibility of the applicant’s claims”.[217] Noting that the Tribunal had determined the matter adversely to the appellant by disregarding those documents, which it was obliged to consider, a majority of the Full Federal Court reasoned:[218]
Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49].) Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purported corroborative material is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error.
(applicant’s emphasis retained)
[215] (2004) 80 ALD 568; [2004] FCAFC 74
[216] WAIJ at [53].
[217] WAIJ at [12].
[218] At [27]
In the present matter, the Tribunal did not make “comprehensive findings of dishonesty or untruthfulness” against the applicant. Nor, as explained above, did it conclude on probative grounds that the MP letter was “worthless”. Rather, the applicant contends that it dismissed the potentially corroborative material on an illogical basis.
The Authority’s treatment of the MP letter is said to have been material to its subsequent finding that the applicant was not perceived as an LTTE member or supporter,[219] which (as explained at [120]-[121] above) was critical to the Authority’s ultimate conclusion that the applicant was not a refugee. The applicant contends that such a conclusion, grounded in “illogical or irrational findings or inferences of fact”, was reached by a process not conducted according to law.[220]
[219] Authority reasons at [53] (CB 251-252).
[220] WAIJ at [22].
The Minister’s submissions
The first finding challenged is found at [15].[221] In this paragraph the Authority found that it was implausible that the applicant was able to reside in his local area, albeit at a friend’s house for at a minimum, close to one year (or up to two or three years, depending on the timing of the applicant’s trip to Qatar). This finding was based on evidence the applicant gave during the SHEV interview, a summary of which is set out at the commencement of [15]: “the applicant confirmed at the SHEV interview that his friend’s house was in the same village, a few kilometres away from his home”, and upon the factual findings in [11]‑[14] of the Authority decision. The evidence given by the applicant on this issue is located at pages 8–10 of the transcript of the SHEV interview.[222]
[221] CB 244.
[222] See affidavit of Ms Vieira.
The Minister contends that there was nothing illogical or unreasonable about this factual finding. It is based on evidence given by the applicant. That the Authority disbelieved the applicant’s claim that he was able to hide in his friend’s house, in circumstances where his recollection was vague and contradictory, was a finding the Authority was entitled to make based on the evidence of the applicant.
The second finding challenged is found at [18].[223] The applicant asserts that the Authority’s finding that the MP letter) should be given “no weight” was irrational or unreasonable. In making this argument the applicant asserts the Authority committed an error of the kind identified in WAIJ.
[223] CB 245.
In WAIJ the Court found the Tribunal committed jurisdictional error when it gave “no weight” to a letter in support of the applicant’s claims because of the “problems” the Tribunal had with the applicant’s evidence. In other words, the Tribunal erred because it determined the matter adversely to the appellant in circumstances where there was no objective basis identified by the Tribunal for suggesting that the letter was fabricated, and the Tribunal failed to deal with the possibility that it was evidence corroborative of the applicant’s claims.[224] Instead, the Tribunal found the documents “do not overcome the problems I have with the applicant’s evidence”.
[224] See WAIJ at [44]-[48].
The Minister seeks to distinguish the present case. In the present case the Authority considered the content of the MP letter,[225] outlined what it contained, and identified that it was inconsistent with claims made by the applicant. In particular, the MP letter indicated that the applicant had experienced intimidation when his uncles were shot in 1993 and 1996, on account of their LTTE connections. However, at no time has the applicant ever claimed to have been harassed in this manner in relation to his uncles, on account of their LTTE connections. The Minister submits that it was for this reason that the Authority decided to give the MP letter “no weight”, and not because of problems with the applicant’s credibility or evidence. It is said to be for this reason the present case is distinguishable from WAIJ.
[225] CB 245.
The question of weight to be given to documentary evidence is a matter otherwise for the administrative decision maker.[226]
[226] See Minister for Immigration v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [24]; Lee v Minister for Immigration [2005] FCA 464 at [27].
Resolution
In Ground 3 the applicant asserts that two findings made by the Authority were irrational and illogical or reached without a probative basis. The applicant alleges the Authority committed an error of the kind identified in SZMDS.
In my view, the Authority’s reasoning at [15], although questionable, does not establish any jurisdictional error. It was open to the Authority to reason that if the persons looking for the applicant in his home village really wanted to find him, they could have done so over a period of around a year at least. The applicant’s claimed efforts at evading detection were unsophisticated and unlikely to prove effective over a long period against a determined search. Likewise, it was open to the Authority at [18] to put no weight on the MP letter, having analysed its contents by reference to the applicant’s claims, in contrast to the approach taken by the Tribunal in WAIJ. I agree with and accept the Minister’s submissions in that regard.
I reject Ground 3.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 August 2018
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