DOM17 v Minister for Immigration
[2018] FCCA 1318
•28 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOM17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1318 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in its assessment of whether to consider new information – jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A, 473BB, 473DB, 473DC, 473DD, div.3 of pt.7AA |
| Cases cited: BRA16 v Minister for Immigration & Border Protection [2018] FCA127 Minister for Immigration & Border Protection v Nguyen [2017] FCAFC 149 |
| Applicant: | DOM17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2507 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 2 March 2018 |
| Date of Last Submission: | 3 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 28 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the First Respondent: | Mr C Lenehan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 4 April 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 28 September 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2507 of 2017
| DOM17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who lodged an application for a protection visa on 24 September 2015. That application was refused by a delegate of the Minister for Immigration on 28 September 2016. On 4 April 2017, the Immigration Assessment Authority (IAA) made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the IAA’s decision.
Background
The applicant arrived in Australia on Christmas Island by boat and without a visa on 29 August 2012. The applicant therefore became an unauthorised maritime arrival and required the exercise by the Minister of his power under s.46A(2) of the Migration Act 1958 (Cth), in order to make a valid application for a visa.
On 8 September 2015, the Department of Immigration informed the applicant by letter that the Minister had exercised his power to permit him to apply for a Safe Haven Enterprise (subclass 790) visa (SHEV), a type of protection visa.
On 24 September 2015, the applicant made an application for a SHEV. In the circumstances, the applicant came within the definition of “fast track applicant” in s.5(1) of the Act.
The applicant claimed that between 1990 and 1999, his family were forced to relocate to the north of Sri Lanka from their home in an Eastern province of the country as a result of the civil war. During this period, one of the applicant’s older brothers was forcibly conscripted by the Liberation Tigers of Tamil Eelam (LTTE) where he served for approximately 2 years. The applicant’s brother was subsequently arrested, tortured and detained by the Criminal Investigation Department (CID) for one year and was eventually found by a Sri Lankan court to be innocent.
Upon return to his home district, the applicant claims that he and other young males of Tamil ethnicity were regularly verbally and physically assaulted, or detained and interrogated by members of the Sri Lankan Army (SLA) or CID on suspicion of LTTE affiliation.
In 2009, the applicant was a witness to the explosion of a landmine which killed and injured several personnel of the Sri Lankan Navy. The CID detained several Tamil males including the applicant who were in the vicinity of the incident. The applicant was interrogated and tortured for 3 days causing him to lose his hearing in one ear.
Around this time the applicant had begun to work for another brother transporting sand and firewood from the jungle to the district. The applicant was often forced to also transport items such as food supplies and water tanks for the LTTE who had a presence in the jungle. The applicant claims the CID would regularly harass him after returning from the jungle as they believed he had knowledge of the location of LTTE weapons and was himself a supporter of the LTTE.
On 28 September 2016, the delegate of the Minister made a decision to refuse to grant the applicant a SHEV. That decision was a “fast track reviewable decision” within the meaning of s.473BB of the Act, and so was referred to the IAA for review under pt.7AA of the Act.
IAA’s decision
On 25 October 2016, the applicant’s former migration agent sent to the IAA a psychological assessment report. The IAA noted that the interview for, and production of the report, had taken place after the delegate’s decision and was therefore new information. In addition, two further claims by the applicant arose from the report which were not made before the delegate.
First, the report included the claim that the applicant had been forcibly conscripted to the LTTE in 2002 and was an active member until 2009. The applicant in his role collected intelligence on the SLA and transported sand and other goods for the LTTE. The applicant had told the psychologist that he had not disclosed this information to the Department due to his concern that it would hurt his SHEV application.
Secondly, the report recorded the psychological and physical harm the applicant suffered as a result of his detention for 3 days by the CID in 2009. The physical injuries of the applicant were made known to the delegate, however the report also noted that the applicant had attended torture and trauma counselling in Australia and suffers from anxiety, depression and post-traumatic stress disorder.
The IAA did not accept that the new information regarding the applicant’s active involvement with the LTTE could not have been provided before the delegate’s decision. It stated at [7] of its reasons that the issue of the applicant’s LTTE involvement was of primary focus in his interview with the delegate and that he was afforded the opportunity and had had explained to him the importance of communicating any claim he had to the delegate.
In relation to the new information regarding the mental health of the applicant, the IAA considered at [8] that “the applicant had sufficient opportunity to seek a written clinical opinion before the delegate made the decision”. The IAA was not satisfied that there were exceptional circumstances for considering either pieces of new information.
The IAA found the applicant’s “evidence to be generally free from embellishment and credible”. It accepted that one of the applicant’s older brothers was forcibly conscripted to the LTTE and later held by the CID. However, it did not accept that the authorities had subsequently become specifically interested in the applicant emphasising that his first incident with the CID had occurred much later in 2009 and that he had failed to provide a plausible reason for why he would be targeted as the youngest male of his family.
The IAA accepted the applicant’s claim of being detained and tortured by the CID for 3 days in 2009 after he was found in the vicinity of an explosion. It also accepted that during his detention, the CID raised the issue of his brother’s previous LTTE involvement and may have recorded the applicant’s details. However, the IAA was not satisfied that the authorities as a result of this event had developed an ongoing interest in the applicant.
The IAA concluded that even when considered cumulatively with the applicant’s arrest in 2009 and familial connection with the LTTE, the authorities would not have an ongoing interest in him once he had ceased working in the jungle. In support of this finding, the IAA referred to country information and the absence of any claim by the applicant of his brother who had also worked in the jungle being investigated by the authorities or of his family being questioned regarding his whereabouts since his departure.
The IAA then went on to deal with whether the applicant may face harm upon return to Sri Lanka on the basis of being an illegal departee and failed asylum seeker; however, it is unnecessary for present purposes to refer to this in any detail as no issue is taken by the applicant in respect of those reasons. The IAA concluded that it was not satisfied that the applicant met the criteria for the grant of a SHEV and so affirmed the decision of the delegate.
Consideration
In his amended application dated 2 March 2018, the applicant contends that the IAA fell into jurisdictional error at [8] of its reasons in its assessment under s.473DD of the Act of whether to consider new information in the psychologist’s report referring to the applicant’s mental health.
At the hearing the applicant was granted leave to file a further amended application raising the additional ground that the IAA, at [7], applied an unduly narrow understanding of the phrase “exceptional circumstances” when considering the new information in the psychologist’s report regarding the applicant’s involvement with the LTTE. The parties were ordered to file further submissions in relation to the additional ground and the matter be further determined on the papers.
In order to properly deal with the grounds raised by the applicant, it is necessary to first briefly outline the statutory parameters in which the IAA operates.
The manner in which the IAA conducts a review is administered by pt.7AA of the Act and in particular div.3 of that Part. The IAA is ordinarily limited to reviewing a matter on the papers (s.473DB); however, subject to what follows, it may get “new information” as defined by s.473DC for the purposes of completing its review.
“New information” is information referred to in s.473DC which, read in context, is limited to “information” (which may or may not be recorded in a document) in the ordinary sense of a communication of knowledge about some particular fact, subject or event that meets the two conditions set out in sub-ss.473DC(1)(a) and (b).
The first condition is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second condition is that the IAA considers that the information may be relevant: Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16 at [24].
The circumstances in which the IAA may consider any “new information” are limited by s.473DD. It provides that the IAA may only consider “new information” if:
…
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The requirements of ss.473DD(a) and (b) are cumulative in that the IAA must not consider “new information” if either one of those sub-paragraphs has not been satisfied: Plaintiff M174/2016 at [31]; BRA16 v Minister for Immigration & Border Protection [2018] FCA 127 at [26].
I accept the Minister’s submission that the consequence of the cumulative nature of these requirements is that the IAA is not obliged to make findings in respect of one subparagraph after it has made an adverse determination in respect of the other. However, as acknowledged by the Minster, the “real issue” in these proceedings is whether the IAA in the context of its reasons as a whole, erred in its consideration of what “exceptional circumstances” within s.473DD(a) encompasses: CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192 at [46].
In Plaintiff M174/2016 the plurality explained, at [30]:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
(Citations omitted)
In BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958, White J at [9] explained the appropriate consideration to be given when determining whether exceptional circumstances arise:
The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority’s satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant’s circumstances are not exceptional.
(Emphasis added)
His Honour’s reasons for decision were subsequently approved by the Full Court of the Federal Court in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176:
102.… we agree with his Honour’s findings and reasons that the requirements of subparas (a) and (b) of s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in subpara (b) may inform the IAA’s satisfaction under subpara (a) as to whether there are exceptional circumstances to justify considering the new information.
103.That is not to say, however, that the matters in subparas (b)(i) and (ii) are the only matters to be considered by the IAA in determining whether it is satisfied that there are exceptional circumstances to justify considering any new information.
104.As White J explained, the phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary. This necessarily requires that consideration be given to all the relevant circumstances in determining whether or there are “exceptional circumstances” …
105.… we respectfully agree that subparagraphs (b)(i) and (ii) should be understood as referring to different kinds of new information. The former provision requires a factual inquiry as to whether or not the new information could have been presented to the Minister. The latter provision requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally.
(Emphasis added)
It is clear from both BVZ16 and BBS16 that it will generally not be sufficient for the IAA to conclude that there are no “exceptional circumstances” within the meaning of s.473DD(a) simply because the applicant could have provided the information to the delegate prior to the making of his or her decision and failed to provide an adequate reason for not doing so. Pertinent to the question posed by s.473DD(a) is whether the “new information” has any relevance to the applicant’s application for a protection visa.
The IAA dealt with the issue of the new information in the psychologist’s report at [3]-[8] of its reasons:
3.On 25 October 2016 the IAA received a psychological assessment report (‘the report’) on behalf of the applicant. The report states on 20 October 2016 the applicant took part in a clinical interview with a psychologist during which he spoke about his reasons for leaving Sri Lanka. I note the interview with the psychologist took place, and the report was produced, after the delegate's decision. It is new information. There are two issues raised in the report which were not before the Minister at the time the delegate made the decision and are also ‘new information’.
4.Firstly, in 2002, the report states that the applicant reported that as the only single male in his family, he was forced to join the Liberation Tigers of Tamil Eelam (LTTE) and remained actively involved with them until 2009. During the seven years he was with the LTTE the applicant gathered intelligence on the movement of the Sri Lankan Army (SLA) and used his regular job as a tractor driver delivering sand to also transport goods on behalf of the LTTE. The applicant advised the psychologist he had not disclosed this information to the Australian authorities out of fear it would jeopardise his SHEV application.
5.Secondly, the report describes the psychological, as well as the physical injuries the applicant suffered after the Criminal Investigation Department (CID) detained him for three days in 2009. As a result of the severe physical ill treatment he experienced during his detention the applicant suffers from pain and loss of hearing in one ear and peptic ulcers. While details regarding the incident itself and the applicant's physical injuries were before the delegate, and are not new information, the report also notes the applicant has also undergone approximately ten sessions of torture and trauma counselling in Sydney. The report concludes the applicant suffers from a discernible level of anxiety, depression and Post Traumatic Stress Disorder.
6.The applicant lodged his SHEV application on 24 September 2015, with the assistance of his then representative, a registered migration agent and solicitor, who was also present at his SHEV interview on 11 December 2015, and who has forwarded the report and two submissions to the IAA on the applicant's behalf (although he is no longer representing him). No information from the applicant or his former representative was received between the applicant’s SHEV interview and the delegate’s decision on 28 September 2016.
7.In terms of the new information regarding the applicant’s active involvement with the LTTE after he was conscripted by them, I do not accept this information could not have been provided before the delegate's decision. The nature of the applicant’s contact with the LTTE was squarely at issue at the SHEV interview on 11 December 2015. I note the interviewing delegate asked the applicant on more than one occasion if he had any other claims for protection he wanted her to take into account, and I am satisfied the applicant was put on notice regarding the delegate’s concerns. The applicant had been residing in Australia for more than three years by the time he was questioned by the delegate, who also advised him the IAA is a limited form of review and can only consider new information in exceptional circumstances. While the applicant has stated he did not disclose his claimed LTTE membership because of his fear, on the basis of the information before me I am not satisfied exceptional circumstances exist to justify considering this new information.
8.In terms of the new information regarding his mental health, the applicant has advised the psychologist he has been suffering from the described symptoms since he was detained in 2009; and since his arrival in Australia in August 2012, he has attended around ten professional counselling sessions to manage them. I consider the applicant had sufficient opportunity to seek a written clinical opinion before the delegate made the decision. Considering all the circumstances, I am not satisfied there are exceptional reasons to justify the consideration of the new information relating to his mental health.
While it is argued, and I accept, that there is no obligation on the IAA to give reasons in respect of s.473DD, the fact is that it did. There is nothing to suggest that the IAA had some other, undisclosed, reasons for not considering the new information in the psychologist’s report and so its actual reasons are of relevance to determining whether it applied an unduly narrow interpretation of the term “exceptional circumstances” under s.473DD(a): see Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [33] (French CJ and Kiefel J); [2011] HCA 1.
Clearly enough, the IAA shows in [4]-[5] of its reasons that it had looked at the psychologist’s report and had taken the time to consider what the “new information” was. However, in relation to the new information concerning the applicant’s mental health, the IAA’s only detailed finding in its consideration of whether there were “exceptional circumstances” was that “the applicant had sufficient opportunity” to provide this information to the delegate before a decision was made ([8]). No reference was made to the relevance of that information and certainly not in the terms of sub-s.473DD(b)(ii).
I place little weight on the fact that the IAA stated in the last sentence of [8] that it had considered “all the circumstances”. Such a conclusion is formulaic and does not sufficiently explain the actual circumstances which were considered by the IAA: see Minister for Immigration and Border Protection v Nguyen [2017] FCAFC 149 at [32], albeit in a context where, unlike the present case, reasons were required. In order to properly understand what is meant by this statement, particular attention should be directed to the preceding paragraphs of the IAA’s reasons.
For example at [6], the IAA highlights the fact that the applicant was previously represented yet did not provide any information in the time between the SHEV interview and the delegate’s decision. However, observations such as these only go to the question posed by sub-s.473DD(b)(i) of whether the applicant could have provided the “new information” before the delegate’s decision and do not assist with other relevant circumstances which may have warranted consideration. Therefore, I am satisfied with regards to the new information referred to in ground 1, that the IAA did not consider its significance or the matters in sub-s.473DD(b)(ii) and so took an unduly narrow approach to the question of whether there were exceptional circumstances.
Notwithstanding, a difficulty the applicant still faces in ground 1 is, in the context of that particular new information, the material before the IAA and the applicant’s protection visa application, whether the error committed by the IAA could have had any material impact on its consideration of the applicant’s claims.
The applicant concedes that neither the applicant nor his migration agent at the time ever claimed that the applicant would suffer significant (mental) harm by way of an act or omission upon returning to Sri Lanka. Even if I accept that the obligation of not limiting one’s consideration to express claims is the same in respect of the IAA, such an obligation does not extend to an expectation that the IAA undergo an excavation process of every possible claim which could arise from the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263; CRI026 v The Republic of Nauru [2018] HCA 19 at [66].
First, the psychologist’s report explains that the depression and anxiety the applicant experiences is a result of his torture and detention by the CID in 2009. Section 36(2A) of the Act lists the 5 types of harm which amount to significant harm with each one comprising of a future component. Although an applicant may continue to experience distress caused by a past event such a consequence does not fall within the realms of the test posed by sub-s.36(2)(aa): SZRSN v Minister for Immigration & Citizenship [2013] FCA 751. As Mansfield J observed in that case, each of the relevant types of harm required an act or omission.
Secondly, in my view, there was nothing in the material before the IAA that could have raised, or even lead to, the inference of a claim that the applicant will be at risk of suffering significant harm as a result of the actual subjective intentional non-provision of mental health treatment by the authorities in Sri Lanka: SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936; [2017] HCA 34.
Thirdly, the IAA accepted the applicant’s claim to which the new information related to, that is, the applicant had been tortured and detained by the CID for 3 days in 2009.
In light of those conclusions, I would refuse relief in relation to ground 1 in the exercise of my discretion. For the reasons I have explained above, consideration of the new information concerning the applicant’s mental health could not have affected the IAA’s consideration of the applicant’s protection visa application.
Ground 2 of the applicant’s further amended application deals with the new information referring to the applicant’s LTTE involvement which is directly addressed in [4] and [7] of the IAA’s reasons. As was the case with the new information relevant to ground 1, the IAA considered whether the applicant could have provided the new information of his LTTE involvement prior to the delegate’s decision. It cited, amongst other things, that the applicant was made aware in advance of the limitations placed on the IAA in considering new information ([7]). Further, I accept that the final sentence of [7] read as a whole is sufficient to form the conclusion that the IAA considered, and ultimately expressed, its dissatisfaction with the reason for why the applicant did not bring the new information forward before.
However, a more detailed analysis is required in respect of whether the IAA in considering “exceptional circumstances” under s.473DD(a) considered the relevance of the new information in question and whether that was addressed in terms of sub-s.473DD(b)(ii).
The Minister argued that the IAA had in fact turned its mind to these matters and emphasised the IAA’s statements at [7] that “contact with the LTTE was squarely at issue” and that it was “satisfied the applicant was put on notice regarding the delegate’s concerns”.
The Minister contended that, in the context of [7], these statements make it plain that the IAA had, in the front of its mind, how it was that the new evidence might be said to fit within the delegate’s consideration of those claims. I do not agree with that submission. Even if I accept that the reference to the “delegate’s concerns” was in fact in relation to the delegate’s views of the applicant’s LTTE claims, I do not consider it to have been made in terms of addressing the significance of the new information more generally or in the way it related to earlier claims: BVZ16 at [34].
In my view, the reference to the “delegate’s concerns”, seen in the context of the balance of [7], was only made to form part of the basis for why the IAA considered that the applicant could have provided the new information prior to the delegate making their decision. Therefore, I am satisfied that the IAA took an unduly narrow approach to the question of whether there were exceptional circumstances to consider the new information relating to the applicant’s LTTE involvement.
The Minister further submits that, in the event the IAA is found to have fallen into error, such an error “could have made no material difference to the outcome of the [IAA’s] decision”. In support of this submission, the Minister refers to [29] of the IAA’s reasons, where it found that “the applicant was not of any interest to the Sri Lankan authorities for any reason at the time of his departure”. However, at [23] the IAA found that the applicant did not provide a plausible reason for why he would be targeted by the authorities in circumstances where he was the youngest male of the family. The IAA goes on to state that it was not satisfied that “the applicant faced any targeted harassment from the authorities between 2002 and 2009”.
The new information in the psychologist’s report regarding the applicant’s LTTE involvement was directly related to the findings held by the IAA at [23]. The report detailed the applicant’s account of how he joined the LTTE, the training he underwent and his role of gathering intelligence. If accepted, those pieces of new information could have affected the IAA’s findings at [23] and therefore its consideration of anterior claims concerning the applicant, the LTTE and the Sri Lankan authorities. It is not for the Court to guess whether they would have made a difference. That is a matter for the IAA to determine if it is satisfied that both the requirements in s.473DD are met.
Conclusion
For those reasons, this is not a case where relief ought to be refused in the exercise of discretion. There will be an order for the issue of writs of certiorari and mandamus.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 28 May 2018
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