DJF16 v Minister for Home Affairs & Anor

[2019] HCATrans 72

[2019] HCATrans 072

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B45 of 2018

B e t w e e n -

DJF16

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

BELL J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 12 APRIL 2019, AT 10.52 AM

Copyright in the High Court of Australia

MR L. BOCCABELLA:   May it please the Court, I appear for the applicant.  (instructed by NB Lawyers)

MR B. McGLADE:   May it please the Court, I appear for the Minister.  (instructed by Clayton Utz)

BELL J:   Mr Boccabella, I think you require an extension of time?

MR BOCCABELLA:   Yes, that is correct.

BELL J:   A relatively modest one.  Is that opposed?

MR McGLADE:   It is, formally, your Honours.  But it just comes down to the merits, so.

BELL J:   Yes, very well.

MR BOCCABELLA:   Thank you.  Your Honours, cases in migration law have made and continue to make an important contribution to the development of administrative law generally.  This case, DJF16, is capable of being part of that development of administrative law.  Pared down to its essentials, the argument is this.  This is a statutory scheme for merit review of decisions de novo in an inquisitorial model.  In essence, it is a remedial scheme providing for the review of those first instance decisions.  As a matter of public importance, restrictions on the admission of new evidence or information on a de novo review should be read strictly, and in such a way as not to devalue the notion of a de novo review.

As I hope to show, a heavy‑handed approach to restrictions on admission of new evidence stymies the very notion of a de novo review.  Perhaps in one sentence it is this.  It is in the interests of good and sound administrative review that review bodies should make decisions on the basis of the latest material available to them.  Rules restricting that objective should be read strictly, and applied in the context of the remedial objective of the review process.  Here, the review body simply applied an excessively restrictive approach, resulting in the review body therefore both not understanding the applicant’s case, and therefore not properly dealing with the applicant’s case.

KEANE J:   Well, whatever else one might say about how one were to approach the words of the statute, we are concerned with the words of 473DD(b)(ii), are we not?

MR BOCCABELLA:   Yes.  Yes, certainly.

KEANE J:   So the question is, has the authority in some way misunderstood the notion, or misapplied the requirement that the information be:

credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

MR BOCCABELLA:   Yes.  I will take you to that.  Your Honours, let us have a look at the information which the Tribunal rejected, I submit rather cursorily.  So if we look at it, first of all we have a death certificate on application book 142.

NETTLE J:   That is his cousin’s death certificate?

MR BOCCABELLA:   Yes.

BELL J:   And that is in 2008?

MR BOCCABELLA:   Yes.  Although the translation, of course, was not supplied until 24 September ‑ ‑ ‑

BELL J:   There may be some significance to the fact that it is relating to the death of the cousin in 2008.

MR BOCCABELLA:   Yes.

BELL J:   Yes.

MR BOCCABELLA:   Well, fossicking around looking for death certificates of a Tamil Tiger is not something one would do lightly.

BELL J:   Yes.

MR BOCCABELLA:   And also here, of course, he has had to obtain a translation of it.  So this document on page 142, of course, was not available to the Minister or the delegate.  Then in the same vein, there are the police certificates, which are respectively on 140 and 150.  So, again, obviously someone – not 140; we start with the one on page 150.

Now, someone has had to again fossick into the police documents on behalf of the applicant, again not something one would do lightly.  Given that he was in fact interrogated, albeit back in November 2010, in connection with terrorist activities and he was served with this notice, as you can see on page 150:

If you failed to do so severe actions will be taken.

Again, this translation is dated 22 September 2016, which postdates the Minister’s decision.  So neither he nor the delegate could have had access to that.  Then, of course, the next document on page 153, which similarly is dated 22 September 2016, says that he is to report every Sunday indefinitely and in both documents it says, although it seems to be a request:

If you failed to do so action will be taken.

So as you can see therefore, first of all, he was not able to obtain that material until, of course, they were translated, but more importantly, until somebody could fossick them out of a police record.  So then we go to his statement, which is on application book 137 – and obviously I apologise for the fact that the point size is extremely small, but it is certainly readable and it is worth looking at that again in detail.

He says that his cousin, who was, he says, his father’s brother’s son, obviously, joined the Tamil Tigers because he wanted to fight for equal rights and Tamils’ own country, Tamil Eelam:

My cousin worked near my village and we visited him –

and here is the crucial part.  They said:

We felt that LTTE purpose was good –

and he also supported the LTTE:

We provided them food, transport, accommodation and information of the movement of Sri Lankan army.

So, in effect, they were providing local intelligence, one assumes at some risk:

Whenever the Army came to our village they always inquired about the whereabouts of the LTTE members but I never told them.  We were treated as terrorist by Sri Lankan Army and we were very scared of our lives.

Then he describes his cousin as “cousin brother”, which people often do if they are very close to them.  He reports that his cousin died, a lot of people died in those circumstances.  You can see in that, lines 30 to 40, he goes on to describe it and then he further goes on to say:

I was kept in the police custody in questioned from 22 November 2016 to 23 November 2016 in relation to my involvement with the Liberation Tigers of Tamil (LTTE).  During the enquiry the police officer enquired about my connections with the LTTE and asked ... if somebody had connection with LTTE.  The Police took my photograph so that they can keep a record of me.  They also tortured and harm me and make me took my clothes off and punched me lot of time.

So that is obviously what happened, in the sense that there is a connection with the LTTE.  The police records do show that he is certainly of interest to the police for so‑called terrorist activities.  Then he goes on at page 138, and this is where, in my submission, the IAA made its fundamental error of setting the bar too high:

I have not previously told the above incidents to the interviewing officer as I was scared that the officer would consider me as a terrorist and would put in prison in Australia or send me back to Sri Lanka.  I am telling my past story because I am having real trouble if I am deported back to Sri Lanka and I feel that I might be killed if deported to Sri Lanka.

Now, if we go back to the decision.

BELL J:   Yes.

MR BOCCABELLA:   On application book page 6, at the bottom, I submit a cursory analysis of that whole position.  The Tribunal, in my submission, just did not engage meaningfully with what the applicant was doing.  The IAA did not even inquire as to when the applicant might have got these documents, which he obviously got them later.

BELL J:   What the IAA said, as I understand the reasons at paragraph 5, was that it was accepted that on first arrival a person may not reveal information about the links with the LTTE, for the reasons that the applicant gave.  But in light of the information that was provided before the interview with the delegate the IAA had difficulty understanding why, if that were the reason for not coming forth with information before the delegate, why it would be that the applicant would come to disclose the information before it.  That is, I think, their reasoning, is it not?

MR BOCCABELLA:   It is.  But my submission is that ‑ ‑ ‑

BELL J:   Well, what is wrong with that?

MR BOCCABELLA:   Well, they have just set the bar too high.  It is exceptional circumstances generally.  That is really one sliver of all the exceptional circumstances.  I submit the starting point for looking at the exceptional circumstances is what is the material?  What is the material that this man wants to produce?

The material is a death record of his cousin, but more importantly, those police records, which he had no way of revealing.  He had no documents at that stage.  Two things, I say.  One, if he had the fear of an officer sending him back to Sri Lanka, the second person was an officer as well.  So if you meet with the person who is doing the SHEV interview, they are simply an officer as well.  What we do not know is ‑ ‑ ‑

BELL J:   But the point that the IAA makes is that at the interview with the SHEV officer, the applicant’s attention was directed to whether he had made any false or misleading statements, and he was advised of the importance of being fully frank on that occasion.

MR BOCCABELLA:   He did not make any false or misleading statements, or at least none are alleged.  What he did not do was reveal this LTTE connection.

KEANE J:   Yes, he did not tell them what he knew.

MR BOCCABELLA:   Well, he did not have the documents at that stage to prove it.  Nobody might have believed him.

KEANE J:   Documents he might not have had, but he knew facts.

MR BOCCABELLA:   Yes.

KEANE J:   There is nothing to suggest he did not know the facts; he did not tell them.

MR BOCCABELLA:   Well, that is the case.  But is that the reason why ‑ ‑ ‑

KEANE J:   Well, 473DD requires that there be exceptional circumstances and subsection (b) has to be satisfied too. 

MR BOCCABELLA:   Yes.  Well, if we start ‑ ‑ ‑

KEANE J:   Even if it be accepted that you have an arguable case about exceptional circumstances, it is difficult to see how the Authority was wrong in proceeding on the footing that (b) was not satisfied.

MR BOCCABELLA:   Well, the position is that material could not have been provided to the Minister because he did not have it.  It is the new evidence - it is those documents that the Tribunal should have admitted.  Had it admitted those documents, it might have given a total, complete, different gloss to his case.

BELL J:   But was his claim not, at the time of the SHEV interview, that he had been active with the Tamil Nationalist Party, and his protection concerns arose from that activity?

MR BOCCABELLA:   Yes.

BELL J:   Now, regardless of what documents he had, the point that the IAA is making in paragraph 5, as I understand its reasoning, is that by the time of the SHEV interview, after being cautioned by the interviewing officer in the way the applicant was, there is no rational explanation for why he would not have then said, “I am in fear because I was an active member of the LTTE”.  If he did have that fear then preventing him from being frank, the IAA could not work out what had caused the fear to be dissolved by the time it conducted its review.

MR BOCCABELLA:   Well, the fear dissolves when he is able to prove it, and that is really the difference – after the documents came in, after the decision.

BELL J:   Yes.

MR BOCCABELLA:   Obviously somebody has found these.  So that would take the fear away, because he would say, “Well, look, I have got the documents to prove this”.

KEANE J:   So the fear was a fear of not being believed?

MR BOCCABELLA:   Well, it is a fear that he may be regarded by an officer as a terrorist.

KEANE J:   Mr Boccabella, this Act is going to be hard to administer if people do not tell their story because they fear it may not be believed.

MR BOCCABELLA:   Well, no, I submit not.  He was not able to collect the evidence, though, which is the difficulty.  I mean, he was in Australia, and this was obviously evidence that was obtained surreptitiously.  Certainly the police records could not have been obtained by just walking in and asking for them.  Somebody has done something to obtain those records.  But is that enough?

I mean, the whole area, unfortunately, the protection visa area, is that first of all people are often under‑resourced, in the sense of education and background.  But they often are not fulsome; they do not know who to trust.  I mean, they are coming into a country which we see, of course, after 30, 40 years of life, that it is a country which operates on the rule of law.  But do they necessarily know that?  Professor Hathaway has said on many occasions, you do not necessarily always draw an adverse inference, just because a protection visa applicant may not have been wholesome with the truth.

BELL J:   Mr Boccabella, I think that is where the IAA took into account that at the point where you are greeted by the first officer who is pulling you off the boat, you may not disclose all about your background.  But in the context of a SHEV interview, where the interviewer goes to lengths to explain to you the importance of laying out your claims to engage protection, it is another matter to come with a new and different claim before the IAA and, indeed, the structure of the scheme is against the IAA dealing with the matter on the basis of new information, save for satisfaction of 473DD, which is not an easy task. 

MR BOCCABELLA:   Yes, well, except that the IAA did not actually make an adverse credibility finding on the most important aspect of his claim, which is the connection with the LTTE.  What, in my submission, is that the IAA set the bar too high, first of all on the exceptional circumstances and of course, the information could not have been provided to the Minister, certainly as far as the supporting documents are concerned.

Of course, it obviously is credible personal information which was not previously known and that has been interpreted by the Full Federal Court correctly.  As was said in M174, which is one of my learned friend’s authorities, that is interpreted as known to the Minister, not to the applicant, so (ii) is certainly satisfied and (i) is satisfied, certainly as far as the documents are concerned. 

But once they are admitted, in my submission, to conduct a proper review, the IAA would need to hear the applicant’s story on those things.  So that is the difficulty with this provision.  It is just setting the bar too high as far as all of these things are concerned, especially when the applicant just could not get a hold of them.

If you look at that explanation literally at 137, they do have an inherent credibility to them, 137 and 138.  This man was brought up in a camp – caused by displacement, obviously from the war.  So it almost follows that his family would support the LTTE when they had been thoroughly displaced, and having to live in a camp.  Certainly he spent the first five years in that place.

But to conduct a proper review, it is my submission that this material ought to have been admitted, including obviously the two police records, which are very important, and also the death certificate.  What the death certificate does is just give credence to the fact that close members of his family have obviously been seriously damaged.

In cases, even when the war is over, what the Tribunal needed to inquire into, what are the residual retributions going on, either officially or unofficially?  I think we all know in times of war these things continue to go on for some time.  But it did not conduct that exercise, because it stumbled over the restrictions in that 473DD.  It denied itself the ability to get this new information, which was not extensive – and the story was provided.

In those provisions which are in the application book, the IAA can conduct these interviews by telephone.  So all they needed to do was to ask the applicant to go to an immigration office, present your identification.  We can talk to you over the phone.  This may take, you know, a half an hour.

BELL J:   The IAA was constrained by the requirements of 473DD.

MR BOCCABELLA:   Yes.  But in my submission, it just set the bar too high.  One, the exceptional circumstances ‑ ‑ ‑

BELL J:   Yes.  Mr Boccabella, the light is on.

MR BOCCABELLA:   Yes.

BELL J:   Yes.

MR BOCCABELLA:   Well, essentially, those are my submissions, your Honours.

BELL J:   Thank you, Mr Boccabella.  We do not need to hear from you, Mr McGlade. 

In our opinion, there are insufficient prospects that, were special leave to appeal granted, the appeal would succeed.  The application is dismissed with costs.

AT 11.15 AM THE MATTER WAS CONCLUDED