DJY18 v Minister for Home Affairs
[2019] FCCA 185
•1 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DJY18 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 185 |
| Catchwords: MIGRATION – Immigration Assessment Authority – safe haven enterprise (subclass 790) visa – whether the Authority applied the wrong test when deciding not to have regard to new information – whether the Authority impermissibly elevated to a guiding or principal consideration whether the applicant had provided a satisfactory explanation for not providing the new information to the delegate – whether the Authority applied the wrong test in determining whether the applicant faced a real chance of serious harm. |
| Legislation: Migration Act 1958, s.473DD Acts Interpretation Act 1901, s15AB |
| Cases cited: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 |
| Applicant: | DJY18 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 1899 of 2018 |
| Judgment of: | Judge Riley |
| Hearing date: | 13 November 2018 |
| Date of last submission: | 13 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 1 February 2019 |
REPRESENTATION
| Counsel for the applicant: | Siobhan Kelly |
| Solicitors for the applicant: | Victoria Legal Aid |
| Counsel for the first respondent: | Graeme Hill |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
The decision of the Immigration Assessment Authority made on 5 June 2018 in matter number IAA18/04745 be set aside.
The matter be remitted to the Immigration Assessment Authority for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1899 of 2018
| DJY18 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority. In that decision, the Authority affirmed a decision of a delegate of the Minister for Home Affairs not to grant the applicant a safe haven enterprise (subclass 790) visa.
Background
The applicant is a citizen of Iran, who was born on 29 March 1983. He arrived in Australia on 24 July 2013 as an irregular maritime arrival. The applicant was a Shia Muslim. However, since 2003, the applicant ceased practising Islam and regarded himself as an atheist. He is of the Khavari ethnicity. The applicant was diagnosed in Iran as having bipolar disorder. He also has an acquired brain injury as the result of a motor bike accident in Iran.
The applicant’s claims
The applicant summarised his claims at paragraph 6 of his written submissions as follows:
… In general terms, the applicant claimed to fear harm based on:
(a) his ethnicity;
(b) a data breach that occurred in February 2014;
(c) apostacy; and
(d) his mental health.
The Authority’s reasons
Following the delegate’s decision, the applicant attempted to provide some new information to the Authority. The Authority declined to accept the new information, on the basis that there were not exceptional circumstances justifying the consideration of it, the applicant could have provided the new information to the delegate and the new information was not credible personal information.
The Authority accepted that the applicant had suffered various forms of abuse and discrimination as a Khavari but did not accept that they amounted to serious harm.
The Authority accepted that the applicant had ceased to be a Muslim and had become an atheist. However, the Authority, after considering relevant country information, did not accept that the applicant faced serious harm for that reason.
The Authority accepted that the applicant had bipolar disorder, an acquired brain injury and ongoing mental health needs. However, the Authority considered that country information did not support a conclusion that the applicant would be denied mental health services in Iran.
The Authority accepted in paragraph 41 of its reasons for decision that the applicant’s details had been released in the data breach, and that he feared that the data breach put him at increased risk. However, notwithstanding the data breach, the Authority considered that the applicant was not at real risk of serious harm upon return to Iran.
The Authority was not satisfied that the applicant faced a real chance of significant harm if he were to return to Iran.
Ground 1
The first ground of review in the application filed on 28 June 2018 and amended on 17 October 2018 (“the application”) is:
The Second Respondent erred by constructively failing to discharge its statutory function by applying the wrong test when determining, under s 473DD, whether to have regard to new information provided by the Applicant.
Particulars
(a)On or about 15 May 2018, the Applicant provided to the Second Respondent new information within the meaning of s 473DC(1) of the Migration Act 1958 (Cth) (“the Act”). The new information was to the effect that:
(i)in 2017, the applicant got a tattoo of the atheist symbol on his left hand, which is clearly visible even when he wears long sleeves;
(ii)in Iran the applicant had begun making posters that promoted human rights and had begun secretly posting his posters on walls around the city at night;
(iii)on one occasion the applicant asked his friend, who owned a video club, to put one of his posters up on the wall at his club;
(iv)in 2012, his friend's club was raided by the Basij, who were looking for illegal videos;
(v)his friend did not have any illegal videos, but he was asked by the Basij who was responsible for the poster and his friend gave them the applicant’s name;
(vi)a few days later, the applicant was at his friend's club and the applicant was arrested by the Basij, taken to their base, blindfolded and interrogated about why he had made this poster; and
(vii)while in custody, the applicant was instructed to take off his clothes, his hands were tied and he was assaulted and humiliated by the [Basij] officers.1
(b)The Second Respondent determined that the “new information” that the appellants sought to have it consider did not meet the criterion at s 473DD(b)(ii) of the Act, by imposing a higher standard of satisfaction than the criterion requires, namely, whether the "new information" was true. The Second Respondent asked whether the information was “consistent” with earlier information provided. That was a higher standard of satisfaction than that imposed by s 473DD(b)(ii) of the Act, which required only the Second Respondent's satisfaction that the new information was capable of being believed at the deliberative stage of its review.
1 Applicant's statement dated 15 May 2018 at [8]-[10], CB141.
Section 473DD of the Migration Act 1958 (“the Act”) provides that:
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.
As can be seen, the Authority was only able to consider new information that satisfied both (a) and (b)(i) or (a) and (b)(ii). One way or another, the new information had to satisfy (a). If the Authority made a jurisdictional error in relation to either (b)(i) or (b)(ii), the Authority’s decision would still stand, provided that the decision in relation to (a) was free of jurisdictional error. Ground 1, in its terms, only challenges the Authority’s determination of the issue in (b)(ii).
However, White J said in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; (2017) 159 ALD 417; [2017] FCA 958 at [9] that:
The requirements of paras (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the para (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
The reasoning in BVZ16 has been upheld by a unanimous Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 & Anor (2017) 158 ALD 198; [2017] FCAFC 176 at [102] to [112]. Consequently, a jurisdictional error in the consideration of (b)(ii) could have infected the consideration of (a). The Minister did not dispute that.
In any event, the applicant claimed that the Authority made the same type of error as was identified by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 where his Honour said:
41.In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42. The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
The applicant submitted that the Authority decided that certain new information was not credible, in the sense of deciding it did not believe it, rather than deciding whether it was capable of being believed. In his submissions, the applicant relied on paragraph 13 of the Authority’s reasons for decision, which is as follows:
Considered overall I am not persuaded the applicant has put forward a satisfactory reason for not putting forward to the Minister the new information regarding his tattoo and the human rights posters and subsequent interrogation. I am not satisfied that the applicant could not have put the new information to the Minister. Nor am I satisfied the new information is credible personal information. I have already noted that the claim to the IAA of being involved in political activity is inconsistent with the applicant’s evidence at his SHEV interview that he was not involved in or interested in political activity. There is no information before me to explain how the tattoo would be identified as an atheist symbol. The applicant did not put this claim forward in his email to the delegate. Nor was it discussed in the post-interview submission which otherwise addressed his religious opinion at some length and referred to the possibility of the applicant being interviewed by the authorities and “likely to admit his renunciation of Islam”, yet failed to mention the claimed “clearly visible” tattoo. I am not satisfied the provisions of s.473DD are met and I have not considered the new information.
More particularly, the applicant only took issue with the Authority asking whether certain new information provided by the applicant was consistent with other information he had provided. The applicant said that, in doing so, the Authority imposed a higher standard than was required by s.473DD(b)(ii) of the Act, which only required consideration of whether the new information was capable of being believed.
The particular information that the Authority said was not consistent with other information was the new information that the applicant had been involved in political activity. That new information was not consistent with information the applicant gave at his SHEV interview to the effect that he had not been involved in or interested in political activity.
The Minister accepted that CSR16 is presently binding on this court. The Minister submitted, however, that, in deciding whether the new information was capable of being believed, the Authority was not confined to an assessment only of the new information. The Minister also submitted that the Authority was entitled to rely on a clear inconsistency between the new information and the applicant’s own previous evidence to conclude that the new information was not capable of being believed.
I accept the Minister’s submissions on this point. That is, I accept that the Authority was entitled to reject the new information regarding the applicant’s political activity as incapable of being believed when it was glaringly inconsistent with the applicant’s own previous evidence.
The applicant did not make any particular submissions about other aspects of the new information in relation to the CSR16 point. I am not persuaded that the Authority in the present case made the type of error identified in CSR16. This ground is not made out.
Ground 2
The second ground of review in the application is:
The Second Respondent erred by constructively failing to discharge its statutory function by applying the wrong test when determining, under s 473DD, whether to have regard to the new information provided by the applicant.
Particulars
(a)On or about 15 May 2018, the Applicant provided to the Second Respondent new information within the meaning of s 473DC(1) of the Act.
(b)In considering whether the new information should be considered under s 473DD of the Act, the Second Respondent impermissibly elevated whether a satisfactory explanation had been provided for the information not being provided at the time of the s 65 decision, to the principal or guiding consideration.
In his submissions, the applicant clarified that this ground concerned the Authority’s consideration of whether there were exceptional circumstances justifying consideration of the new information.
The Authority considered at length whether to consider the new information. The Authority said on this topic:
6. The submission also refers to new information put by the applicant in his statement and submits that there are exceptional circumstances to justify considering the new information including that the applicant has bipolar 1 disorder, an acquired brain injury and past trauma. The new information put by the applicant in his statement is that he has a tattoo of an atheist symbol and that in Iran he made posters promoting human rights and as a result he was interrogated and assaulted by Basij officers. The applicant stated that he forgot to mention his tattoo to the delegate as he did not have enough time in the SHEV interview to speak about all his experiences and that he did not mention his political activities because he was advised by people in Indonesia not to speak about political activities.
7. Under s.473DD of the Act, the IAA can only consider new information provided by an applicant if there are exceptional circumstances that justify considering the information, and either the information could not have been provided to the Minister before the delegate’s decision was made or the information is credible personal information that was not previously known by either the Minister or the applicant and had it been known may have affected the consideration of the claims. The Explanatory Memorandum to the Bill that introduced these and related provisions1 explains that the package of proposed reforms places an emphasis on all fast track applicants making their full protection claims accurately and at the earliest possible opportunity. As such, there is a presumption that there should be no requirement to consider new information because a fast track review applicant has had ample opportunity to present their claims and supporting evidence throughout the decision-making process and before a primary decision is made. I also note the observation of the Full Federal Court in MIBP v CLV16 [2018] FCAFC 80 (at [54]) that to expose the IAA “to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of ‘fast track’ decision-making”. In relation to the concept of “exceptional circumstances”, the Explanatory Memorandum states (at [916]) that information which was available to the applicant at the primary stage and was not presented for unsatisfactory reasons would not satisfy the exceptional circumstances requirement. While I do not regard these commentaries as binding, I do regard them as providing guidance. I am also guided by judicial statements as to the meaning and scope of exceptional circumstances in this context.
8. The representative has advanced the following as individually and cumulatively meeting the exceptional circumstances threshold: the applicant’s bipolar disorder, acquired brain injury and past trauma, and that the new information “may make a material difference in the outcome of the Authority’s decision, and not doing so may lead to the applicant being exposed to a real and substantial risk of serious human rights abuses in Iran”. I have given this submission, and the circumstances overall, careful consideration, and I accept that the applicant’s mental health is an exceptional circumstance. However I am unable to be satisfied that this, individually or together with the other factors posited, amounts to exceptional circumstances that justify considering the new information. The applicant had these conditions at the time of completing his SHEV application and when he attended his SHEV interview and it has not been put forward, nor is it apparent to me, that the applicant’s mental condition posed any difficulties in him advancing his protection claims in his application or at his interview, apart from the applicant’s statement at his SHEV interview that his memory is not good due to his brain injury. I have had regard to the audio recordings of his SHEV and Entry interviews and the applicant was engaged in both interviews; I note that in the Entry interview he was reluctant to share some of his past traumatic experience with the interviewing officer, yet he was able to put forward the claim of sexual assault and the resultant trauma in his SHEV application. The applicant showed a level of insight into his mental condition in both his SHEV and Entry interviews by explaining to the interviewing officer on each occasion that he may smile or laugh at times during the interview but that this was not an indicator of disrespect but rather a facet of his condition. I take into account that the applicant’s bipolar disorder, acquired brain injury and past trauma did not prevent him putting forward the detailed protection claims advanced in his SHEV application and there is no indication of any change in these conditions that satisfy me they constitute exceptional circumstances that justify considering the new information. Nor is there any indication that because of his condition the applicant was unable to advance his claims such as would constitute exceptional circumstances to justify considering the new information. The applicant had the benefit of representation in completing his SHEV application, during the SHEV interview and in completing a post-interview submission. At the commencement of the SHEV interview there was some discussion as to whether the applicant understood how his claims would be assessed and while he initially stated this had not been explained to him by his representative he later agreed that his representative had explained this to him.
9.I have considered the applicant’s statement dated 15 May 2018 in which he explains why this information was not provided to the Minister. The applicant himself did not advance any reasons linked to his mental health and past trauma as a reason for not providing this information to the Minister.
10.The applicant commented in his statement to the IAA that his SHEV interview was “very rushed” and he did not get enough time to speak about all his circumstances. In this regard the applicant sent an email to the delegate on 12 February 2018 which stated “I need to share 2 things with you that I wished we had time to talk about, but unfortunately I didn’t have this chance”. In that email the applicant addressed the allegation that resulted in the cancellation of his bridging visa, and his religion. He did not refer to his tattoo or his political claims, nor did the detailed post-interview submission sent by his representative dated 5 February 2018. I am not satisfied that his feeling rushed in his SHEV interview constitutes exceptional circumstances to justify considering the new information or satisfactorily explains why he did not put forward the new information to the Minister. The applicant had an opportunity to put forward further information following the SHEV interview, and both he and his representative took advantage of that opportunity to put forward submissions, but these claims were not raised.
11.Additionally the applicant stated he did not mention his political activities because he was advised by people in Indonesia not to speak about political activities. I accept that on initial arrival in Australia an applicant may be reluctant to advance all their claims for any number of reasons and that such word-of-mouth advice may account for not mentioning claims of political activity in an Entry interview. But I take into account the applicant’s SHEV application was completed with the assistance of legal representation almost four years after he left Indonesia and the accompanying statement of claims included detailed and sensitive claims, including the statement that “I do not identify myself as Iranian. Iran does not accept me as a citizen of their country and this has left me with a great resentment”. Noting he was assisted in the completion of the application and that he was willing to make this statement disassociating himself with Iran I do not consider it credible that he would not have advanced the claim of having made human rights posters and been interrogated as a result if it were true. His claim is also inconsistent with his statement at his SHEV interview, which I have been presented with no reason to disbelieve, that he was not involved in politics as he is not interested in politics.
12.The applicant’s explanation for not declaring his tattoo was that it was not seen by the delegate at the interview as the tattoo was covered by tape and he felt he did not have enough time at this interview to speak about all his experiences. I am not persuaded that the delegate not seeing the tattoo constitutes a satisfactory reason for not presenting this claim earlier. While the applicant may have felt he did not have the time to speak about all his experiences at the SHEV interview the delegate provided his representative time to make post-interview submissions and the applicant also took the opportunity to address matters not covered in his SHEV interview in his post-interview email to the delegate in which he referred to his religious opinion but did not inform her of his tattoo.
13.Considered overall I am not persuaded the applicant has put forward a satisfactory reason for not putting forward to the Minister the new information regarding his tattoo and the human rights posters and subsequent interrogation. I am not satisfied that the applicant could not have put the new information to the Minister. Nor am I satisfied the new information is credible personal information. I have already noted that the claim to the IAA of being involved in political activity is inconsistent with the applicant’s evidence at his SHEV interview that he was not involved in or interested in political activity. There is no information before me to explain how the tattoo would be identified as an atheist symbol. The applicant did not put this claim forward in his email to the delegate. Nor was it discussed in the post-interview submission which otherwise addressed his religious opinion at some length and referred to the possibility of the applicant being interviewed by the authorities and “likely to admit his renunciation of Islam”, yet failed to mention the claimed “clearly visible” tattoo. I am not satisfied the provisions of s.473DD are met and I have not considered the new information.
14. The representative submits that the report from Dr Harms dated 19 September 2017 is not new information as it provides further information regarding the applicant’s health and treatment which was known to the delegate. In her submission to the IAA the representative advised this report was provided in relation to a review of the decision to cancel the applicant’s bridging visa. She advanced that the medical information in the report is directly relevant to a number of material issues for assessing whether lesser forms of physical and mental harm the applicant may experience would meet the requisite thresholds of serious harm, and issues of demeanour and the assessment of the material relevance of any perceived inconsistencies or material omissions regarding [the] applicant’s evidence to the department. I note the delegate accepted the applicant’s account of his experiences in Iran and made no adverse findings regarding “perceived inconsistencies or material omissions”. The delegate already had before her a report from Dr Harms dated 5 February 2018, which while briefer, confirms the applicant’s diagnosis of bipolar disorder, that he had been attending for treatment as an outpatient since 2015 and had been prescribed medication for his condition. The applicant’s concerns regarding his mental health conditions and related fears were addressed in his statement of claims submitted with the SHEV application and the applicant described his post-accident brain surgery to the delegate at the SHEV interview.
15.Dr Harms’ September 2017 report is a detailed description of the applicant’s mental health treatment in Australia and provides clinical detail of various medications prescribed and their effects. The report cites the applicant’s clinical history in Iran and cites incidents the applicant has put forward in his statement of claims, including the depressive episode following the sexual assault and his feelings of being vilified and discriminated against when at university. The report cites the results of a CT scan which confirms evidence of surgery to the brain consistent with a motor vehicle accident and discusses the applicant’s “obsessional ideas” and “sexual ideas” which are considered to be “egodystonic”. In the report Dr Harms refers to the applicant’s vulnerability in the context of his return to immigration detention in Australia following the cancellation of his bridging visa as a “person vulnerable to deterioration in mental health if he has further lengthy detention”.
16.The September 2017 report from Dr Harms was not before the Minister. The additional information in this report consists of the detailed clinical history of treatment and medications, discussion of the applicant’s engagement with his clinicians and his awareness of his conditions, and reference to his vulnerability should the applicant be detained long term in immigration detention. The substance of the applicant’s mental health conditions and his related concerns was information before the Minister. Dr Harms’ September 2017 report provides further elaboration on information already before the Minister and, as indicated below, I have accepted the applicant’s claims in this regard. I am not satisfied that there are exceptional circumstances that justify the IAA considering the new information and detail in the September 2017 report. Moreover, noting the delegate accepted that the applicant had bipolar disorder and had regard to the applicant’s mental health needs I am not satisfied that the more detailed information in the September 2017 report may have affected the consideration of the applicant’s claims. Nor am I satisfied that this report could not have been provided to the Minister.
1 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill (2014) (Cth) (at [920])
The applicant objected to the Authority’s reliance on the explanatory memorandum. The Authority noted in paragraph 7 of its reasons for decision that:
In relation to the concept of “exceptional circumstances”, the Explanatory Memorandum states (at [916]) that information which was available to the applicant at the primary stage and was not presented for unsatisfactory reasons would not satisfy the exceptional circumstances requirement. While I do not regard these commentaries as binding, I do regard them as providing guidance.
The applicant submitted that it was not appropriate for the Authority to receive guidance from the explanatory memorandum, because the circumstances in which an explanatory memorandum may be used do not include the provision of guidance.
Section 15AB of the Acts Interpretation Act 1901 provides that:
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) …
(3)In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a)the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b)the need to avoid prolonging legal or other proceedings without compensating advantage.
The applicant did not make any particular submissions on s.15AB of the Acts Interpretation Act 1901, and the Minister did not deal with this issue at all. In any event, the Authority was permitted to rely on the explanatory memorandum to confirm that the meaning of s.473DD was the ordinary meaning conveyed by the words of that provision.
The Authority indicated that it used the explanatory memorandum to understand the circumstances in which exceptional circumstances would exist. The Authority said it was guided by the explanatory memorandum in relation to its assertion that exceptional circumstances would not exist if the new information had not been presented to the delegate for unsatisfactory reasons.
That is not the ordinary meaning of s.473DD(a) of the Act. That provision simply required that there be exceptional circumstances justifying the consideration of the new information. It says nothing about whether the applicant had provided a satisfactory explanation for not providing the new information to the delegate. If the Authority actually acted in accordance with the guidance it derived from the explanatory memorandum, the Authority would have made a jurisdictional error.
The applicant argued that the structure and content of paragraphs 8 to 13 of the Authority’s reasons for decision showed that it did give weight to the guidance provided by the explanatory memorandum. The applicant argued that those paragraphs reveal that the Authority made a jurisdictional error by assessing the question of whether there were exceptional circumstances through the prism of whether the applicant had provided a satisfactory explanation for not providing the new information to the delegate.
The applicant conceded that the Authority in the present case did not make the error referred to in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [8], namely, the error of considering that exceptional circumstances did not exist only because there was no explanation for not providing the new information earlier.
However, the applicant argued that the Authority made the error identified in Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198; [2017] FCAFC 176 in that the Authority failed to consider all of the relevant circumstances in deciding whether there were exceptional circumstances. However, the applicant did not identify any particular circumstance that the Authority did not consider. Rather, the applicant focussed on the argument that the Authority had decided the question of whether exceptional circumstances existed by reference to whether the applicant had provided a satisfactory explanation for not providing the information to the delegate.
The Minister noted paragraphs [13] and [14] of AQU17, which are as follows:
13.As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):
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”.
The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.
14. As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
The Minister submitted that the Authority identified at paragraph 8 of its reasons for decision all of the matters that the applicant had put forward as constituting exceptional circumstances, and then proceeded to consider them. The Minister denied that the Authority had treated the applicant’s lack of an explanation for not giving the new information to the delegate as a principal or guiding consideration.
The Authority noted at paragraph 9 of its reasons for decision that the applicant’s statement of 15 May 2018, which was provided to the Authority, set out various reasons for the applicant not providing the new information to the delegate. It was proper for the Authority to consider those explanations, to determine whether they amounted to exceptional circumstances.
In relation to the applicant’s first explanation, the Authority said at paragraph 10 of its reasons for decision:
I am not satisfied that his feeling rushed in his SHEV interview constitutes exceptional circumstances to justify considering the new information or satisfactorily explains why he did not put forward the new information to the Minister.
That sentence does not reveal jurisdictional error, because the Authority’s consideration of whether the explanation amounted to exceptional circumstances was separate from and additional to its consideration of whether the explanation was satisfactory.
However, in relation to the second explanation, regarding the applicant’s atheist tattoo, the Authority said at paragraph 12 of its reasons for decision:
The applicant’s explanation for not declaring his tattoo was that it was not seen by the delegate at the interview as the tattoo was covered by tape and he felt he did not have enough time at this interview to speak about all his experiences. I am not persuaded that the delegate not seeing the tattoo constitutes a satisfactory reason for not presenting this claim earlier.
The Authority then concluded at paragraph 13 of its reasons for decision:
Considered overall I am not persuaded the applicant has put forward a satisfactory reason for not putting forward to the Minister the new information regarding his tattoo and the human rights posters and subsequent interrogation.
The Authority did not separately consider whether the issues relating to the tattoo constituted exceptional circumstances. By focussing on whether the applicant had not provided a satisfactory reason for not giving the delegate information about the tattoo, the Authority misdirected itself, and fell into jurisdictional error.
I note that, in paragraph 8 of its reasons for decision, the Authority said that it was not satisfied that the factors, individually and cumulatively, that the applicant had put forward amounted to exceptional circumstances justifying the new information being considered. However, that conclusion was based on the Authority misdirecting itself, as explained above. Ground 2 is made out.
Ground 3
The third ground of review in the application is:
The Second Respondent constructively failed to exercise jurisdiction by applying the wrong test for the purposes of determining whether the applicant would suffer serious harm.
Particulars
(a)The Second Respondent identified that the Applicant had, in Tabriz, been raped, abused and insulted by shop-keepers, a tutor at university and others and had also been treated badly by the Police while travelling to university. It also identified that the applicant was abused by Persians travelling to Teheran on a bus and that in Teheran itself he experienced difficulty obtaining documentation.
(b)The Second Respondent made no finding as to whether or not the Applicant would, in fact, experience harm of the kind he had alleged he would, on return to Iran. In concluding that any harm suffered by the applicant if he were to be subjected to similar experiences would not be serious harm, the Second Respondent did not have regard to particular vulnerabilities of the applicant, being his bipolar 1 disorder, acquired brain injury and past trauma.
For this ground, the applicant relied upon AGA16 v Minister for Immigration and Border Protection [2018] FCA 628, where Moshinsky J said:
41It is convenient to refer first to the alleged factual error in [31] of the Reasons. The primary judge stated “[a]s set out in paragraph 51 of the Decision Record, the Tribunal found that the sexual harassment that is a frequent occurrence across Egypt did not amount to ‘either serious or significant harm’” . In my respectful opinion, this statement was incorrect. It appears that her Honour was referring to the Tribunal’s statement, “however I do not consider that such treatment necessarily amounts to either serious or significant harm”. But this was not a finding that such treatment (sexual harassment and unwanted physical contact) would not amount to serious or significant harm. It was merely a finding that they would not necessarily amount to such harm. In other words, as counsel for the Minister accepted, the Tribunal was saying that sexual harassment and unwanted physical contact may amount to serious or significant harm in some cases, and not in others. This left open whether or not they could give rise to a real risk of serious or significant harm to the appellant, a matter in respect of which the Tribunal did not make a finding in the balance of [51] of the decision record. (The Tribunal made a finding in relation to societal discrimination, but this is a different matter.)
42I turn now to address the Tribunal’s decision. Although the Tribunal was aware of and reached an overall conclusion in relation to the appellant’s claim to fear persecution for reason of her membership of a particular social group, namely women in Egypt (see [52] of the decision record), the Tribunal failed to make findings about two critical issues in relation to this claim. These were:
(a)whether, if the appellant was required to return to Egypt, there was a real chance that she would experience gender-based violence, sexual harassment or unwanted physical contact; and
(b)if so, whether gender-based violence, sexual harassment or unwanted physical contact would amount to “serious harm” or “significant harm” to the appellant.
…
45Further, the Tribunal did not consider and make a finding as to whether gender-based violence, sexual harassment or unwanted physical contact amounted to “serious harm” or “significant harm” to the appellant. The matters referred to in the second half of [51] do not address whether gender-based violence, sexual harassment or unwanted physical contact would amount to serious or significant harm to the appellant. No reference was made to the appellant’s personal circumstances, including her vulnerabilities, in connection with gender-based violence, sexual harassment and unwanted physical contact. To the extent that a finding was made as to serious or significant harm, it related to societal discrimination, not to gender-based violence, sexual harassment or unwanted physical contact.
The applicant argued that, in the present case, the Authority erred by failing to make a finding about whether the applicant would experience certain types of harm upon return to Iran and by failing to consider whether the applicant’s particular vulnerabilities meant that those types of harm would amount to serious harm for the applicant in particular.
The Minister submitted that:
a)it had been necessary for the Tribunal in AGA16 to make the specific findings mentioned in paragraph 42(a) and (b) of AGA16 because the Tribunal in that case had said that the relevant types of harm were not necessarily serious harm;
b)that left open the possibility that, in some cases, those types of harm would be serious harm;
c)the Tribunal in AGA16 had not dealt with the issue of whether the applicant in that case faced a real chance of those harms befalling her, and whether they would amount to serious harm in her case.
By contrast, the Minister submitted that the Authority in this case made clear findings that the past abuse and discrimination experienced by the applicant did not amount to serious harm and would not amount to serious harm if he returned to Iran and experienced similar treatment in the future: paragraphs 23, 25 and 26 of the Authority’s reasons for decision.
I accept the Minister’s submissions in this regard. That is, I accept that AGA16 is at least partially distinguishable, because the Authority in this case did make findings to the effect that, if the applicant returned to Iran and experienced the abuse and discrimination he had previously experienced, it would not amount to serious harm.
Although the Minister did not mention it, at paragraph 27 of its reasons for decision, the Authority specifically dealt with the rape that the applicant had previously experienced. The Authority accepted that the rape had occurred. On any view, rape would constitute serious harm. However, the Authority was not satisfied that the chance of the applicant being raped again was more than remote. That finding was open to the Authority.
In keeping with AGA16, the Minister conceded that it is necessary for the Authority to take into account an applicant’s personal circumstances in determining whether he or she has a real chance of serious harm. The Minister submitted that the Authority’s findings did take into account the applicant’s personal circumstances.
The applicant submitted that the Authority erred by considering whether the conduct in question amounted to serious harm, when the Authority should have considered whether the conduct in question might amount to serious harm for the applicant, given his particular vulnerabilities.
Reading the Authority’s reasons fairly and as a whole, I consider that the Authority did take into account the applicant’s particular vulnerabilities when considering whether he had experienced serious harm in the past and faced a real chance of serious harm in the future. The Authority accepted the applicant’s mental health vulnerabilities. The applicant had them when he lived in Iran. When the Authority concluded that the applicant’s experiences in the past did not amount to serious harm, I infer that it considered the applicant’s personal circumstances, including his vulnerabilities. I also infer that the Authority also included those vulnerabilities in its consideration of the applicant’s future, should he return to Iran. Ground 3 is not made out.
Conclusion
As one of the applicant’s grounds has been made out, the Authority’s decision will be set aside with costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 1 February 2019
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