DSC17 v Minister for Immigration and Border Protection & Anor

[2019] HCATrans 134

[2019] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S280 of 2018

B e t w e e n -

DSC17

Applicant

and

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 JUNE 2019, AT 11.00 AM

Copyright in the High Court of Australia

MR N.J. OWENS, SC:   If the Court pleases, I appear with my learned friend, MS C. TRAHANAS, for the applicant.  (instructed by Nicholas Owens SC)

MS R.S. FRANCOIS:   If the Court pleases, I appear for the respondent Minister.  (instructed by Sparke Helmore Lawyers)

NETTLE J:   Thank you.  Yes, please.

MR OWENS:   Thank you, your Honours.  Your Honours, we require an extension of time.  There is an affidavit in the book at page 66 which explains, for the most part, the delay was an inability to commence in the High Court Registry until a sealed copy of the judgment had been obtained, and then there is a short period of two weeks which is ‑ ‑ ‑

NETTLE J:   Is the extension as such in issue, Ms Francois?

MS FRANCOIS:   No, your Honour.

NETTLE J:   Thank you.  Perhaps we might go to the substance of the matter, then.

MR OWENS:   Yes, thank you, your Honour.  May I identify at the outset the issues upon which we see the fate of this application as resting?  Analytically, it seems to us that the critical issue is whether there was jurisdictional error in the Authority’s finding that there were no exceptional circumstances within the meaning of section 473DD of the Migration Act.

I say that is analytically the critical step, because if I cannot persuade your Honours that there is a problem with that finding, then there is an independent sufficient basis to sustain the decision not to consider the new information.

NETTLE J:   Well, there is no dispute, is there, that there was a mistake made in treating the two conditions as conjunctive rather than alternative?

MR OWENS:   We apprehend that the Minister does contend that, properly construed, the Authority did not make that mistake. 

NETTLE J:   I see.

MS FRANCOIS:   I think the appeal judge made that mistake, but not the Authority.

NETTLE J:   I see, thank you.  Yes, Mr Owens.

MR OWENS:   In any event, I will come to that issue at the end.  I have identified what I have described as the analytical central issue, which is exceptional circumstances.  But practically or substantively, it seems to us that the critical issue is whether the Authority’s finding that the new information was not credible is really the point.

GORDON J:   You mean a legally unreasonableness type argument?

MR OWENS:   Yes, because if there was a valid decision that this information was so implausible that it could not, no matter what the other circumstances be accepted, then I accept that exceptional circumstances will not be able to be established.  So I accept that there is a connection between the existence of exceptional circumstances and the, what I will call, credibility or plausibility of the propounded information.

NETTLE J:   You contend the two are so interlapped that you cannot separate them out, at least to a point of certainty, do you not?

MR OWENS:   I do.  So I say, in relation to the error that has taken place in relation to exceptional circumstances, we say the problem there is there has been an impermissible confinement of the considerations relevant to that question.  And, in effect ‑ and this is apparent at paragraph 11 of the Authority’s decision, which is on page ‑ ‑ ‑

GORDON J:   That is the critical paragraph, is it not?

MR OWENS:   It is.  We say there are three errors that we complain about.  We say they are all found in one paragraph.

GORDON J:   11?

MR OWENS:   In paragraph 11.  We say they all involve different aspects of section 473DD, which we say is a centrally important section, because it really defines the scope of the review which is available under section 473CC.  473CC says that, unlike a decision by the Administrative Appeals Tribunal, which is correct and preferable on the basis of the information at the time of the AAT decision, this is a de novo review but limited to the material before the delegate unless you can bring yourself through the hoop of DD.  So we say it is a very important section to understand, and we say that this case provides a vehicle for, in effect, exposition of the entire section because of the three separate errors that we have identified.

As your Honour Justice Nettle observed to me, we do say it is very difficult to disentangle the exceptional circumstances from the credibility point because as we read paragraph 11, at best what is being said is there are no exceptional circumstances because the information is not credible.  So the credibility finding is being used as the leap spring to the finding about absence of exceptional circumstances.

GORDON J:   Or there is no justification and explanation for the finding of no exceptional circumstances.

MR OWENS:   Quite.  That is why I said at best one has to read in or infer that that was the reasoning process.  As we have said in our written submissions, we in fact say the better construction of it, or the plain construction of the section, by reason of the word “nor”, is to introduce a new and separate topic for which there are no reasons provided.

But even if one says, all right, well, assume against me for the moment that there was a finding about credibility which was the basis for an absence of finding of exceptional circumstances, we say that that process has miscarried in a way giving rise to jurisdictional error.  And for this reason, first, it is very important to appreciate the precise nature of the question that is being raised by subsection (b)(ii).  It is not an inquiry at that stage of the analysis directed to whether the information ought to be accepted as true.  It is in accordance with ‑ we understand not to be controversial ‑ Federal Court authority, it is a test which is asking whether the information is capable of being accepted if it is considered.

We emphasise in relation to the words of subparagraph (a) that the exceptional circumstances are directed to whether those circumstances justify the consideration of the material.  So at this stage of the test, it is only asking, “Does this material get into the review”, at which point it will be considered and assessed and so forth.  We are not, at this stage of the inquiry, engaged in any analysis of whether the information is true.

GORDON J:   Do you draw any support for that from the distinction that requirements (i) and (ii) under (b) are not cumulative?

MR OWENS:   Quite, quite.  In effect, what has been done here, by relying on the non‑satisfaction of (ii), as it were, the automatic reason why you fail on (a), both treats (a) as if it is nothing more than an inevitable corollary to whatever is decided in relation to (b), but (b) is also making clear that there can be different reasons why it will be appropriate for new information to be placed before the Tribunal to be considered.

So we say that, one, there is a question when one looks at paragraph 11 about what exactly the Authority was deciding in relation to this new information.  The word “plausible” is used on several occasions.  We note in passing that that is the same word that is used throughout the substantive reasons to describe an acceptance or rejection in fact of a proposition put by the applicant.  Paragraph 21 is a good example; paragraph 31 is another.

Even accepting that the Authority had correctly identified the question it was asking itself, namely, “Is this information capable of being accepted?” we do say that no reasonable Authority could have concluded that it is not, for these reasons.  First, the country information demonstrated in the clearest of possible terms that there was a history and ongoing practice by the Sri Lankan security forces which involved arbitrary detention, including torture, human rights violations of people with only tenuous links to the LTTE, and credible reports of ongoing arrests and disappearances and we have put those references in our written submissions.

We also emphasise that the new information is quite consistent with the existing prior version of events propounded by the applicant.  The applicant had previously said that his father had been on several occasions detained and tortured.  So this information is consistent with that and, indeed, consistent with the view that the security forces, having reached a dead end with the father, have now turned their attention to another family member.

The point raised against us by the Minister, which is, one would never think that one would get useful information out of a 14‑year‑old, we have several responses to that.  The first is to say, “Why not?” but particularly why not in the context of security forces which are engaged in, on the accepted country information, acts of torture and arbitrary detention and the like.

When one looks at the actual account of the new information in paragraph 10, it is not actually inconsistent with the proposition that the Minister advances.  In the middle of the paragraph, about line 25, it is observed that when the younger brother was questioned he could not reply.  In other words, it is consistent with the fact that he does not in fact have information.  But the story is not at that point he is patted on the back and sent on his way.  What has happened is, he is then beaten and kicked, and sexually harassed, and held in detention until he signs a document.

Now, none of that is – it is obviously not the way that a rational person, sensitive to the probative quality of evidence, would approach things but we are not talking about such a person.  We are talking about security forces who, on the country information, engage in torture and torturers are not ordinarily known for being punctilious about the quality of the information that they seek to elicit.  They want to get a signature on a page, which is what has happened here.

So we say that when one bears firmly in mind the very precise question which is being asked in relation to (b)(ii), which is, “Is the information capable of being accepted?” we say in light of the country information, the consistency with the applicant’s own evidence, and the inherent plausibility of the story itself, no reasonable decision‑maker could, at that stage of the inquiry, have considered that the information was not capable of being accepted.

Now, if that is right, there is jurisdictional error in relation to that finding.  We then fall back on the exceptional circumstances limb, and it can no longer be said that any reasonable decision‑maker would have a basis for denying the existence of exceptional circumstances.  One, they have not considered anything other than the credibility of the information here.  But two, when the circumstances are directed to the justification for considering the information, the fact that the event in question occurred after the delegate’s decision, the information in question is not simply information relevant to some event or allegation that has already been considered by the Authority, it is a new, independent event which, on its own terms, is capable of providing support for the applicant’s claims.

More than that, it is capable, when considered in conjunction with other claims of the applicant that had heretofore been rejected, it is capable of prompting a re‑evaluation of the plausibility of those claims and therefore affecting the outcome of the overall decision.

So, for those reasons, we say that there is jurisdictional error both in the finding of absence of exceptional circumstances in whichever relevant purpose it had, the finding of credibility, and then we say ‑ and I do not wish to add anything to our written submissions ‑ we say there is the additional problem that the conditions in subparagraphs (i) and (i) of (b) were treated cumulatively.

It ought to have been enough for the applicant to say, as was accepted, “This is new information in (i).  I only need now to satisfy you of exceptional circumstances”.  Then the scope of the review is expanded beyond the minimum scope, the default scope provided for in 473CC.  And the bottom line is, the applicant has not had the review which is mandated by 473CC.  Unless there is anything I can assist your Honours with, those are my submissions.

NETTLE J:   No, thank you, Mr Owens.  Ms Francois.

MS FRANCOIS:   Thank you, your Honours.  The Minister has two responses.  Firstly, the questions of principle as to the proper construction with respect to what is in the written application for special leave are not in contention.  So there is agreed principles, and what this case raises is those questions as applied to a particular set of facts.  So we say it does not necessarily give rise to a general question of public importance because those principles are agreed.  The second point is that we say that, in any event, applying those principles to these facts, there is no error.  And coming to the first alleged ‑ ‑ ‑

GORDON J:   Can I just ask you a question about your first proposition, that there is no dispute about the principles.  When you say “principles”, I just want to make it clear that I understand what that encompasses.

MS FRANCOIS:   Thank you.

GORDON J:   As I had understood it, there was a distinction between the two of you about the way in which you looked at 473DD.

MS FRANCOIS:   Not insofar as the question of whether or not 473DD(b)(i) and (ii) are cumulative, that is clearly agreed, that they are in the alternative.

GORDON J:   Yes.

MS FRANCOIS:   Further, we agree that the exercise of that discretion has to be undertaken reasonably.  And we also agree that the 473DD(a) exceptional circumstances can encompass more than the matters in (b); it is a broad inquiry.  So those questions of principle are agreed, and that is what we say is not in dispute, but raised by the questions in the special leave application.  And we say that applying those principles to these facts, in any event, there is no error.

In relation to the first question, we say that having regard to the way in which the applicant put his submissions, and the summary at 10 – I have brought the actual submissions, because they are more detailed and they emphasise that his information was credible personal information, and why he wanted to put it before the IAA, being that his brother was taken specifically for interrogation about his whereabouts.  So that was an emphasis not upon general persecution based on race, but that there was something rational occurring with respect to his brother.

They wanted him for information from his brother about his LTTE activities, which can only have occurred when the brother was four, five, six, and being asked about that when he was 14.  So not about recent events, about events far in the past not related to him as a five or six‑year‑old, but about someone else.

So we say, having regard to the way in which that new information was put to the IAA, it in fact engaged in a proper process of working through section 473DD.  So firstly what it did was, in paragraph 11, it went to 473DD(b)(i) and it accepted that that condition could be met.  The reason it then uses the word “However” is because it is saying that, “I am ultimately going to be negative on this point”.  It then deals with the argument that had been put in the written submissions, which was addressed to 473DD(ii), and then completing it, it concludes with there being no exceptional circumstances.  My learned friend is right ‑ ‑ ‑

GORDON J:   I do not understand that.  You will have to step me through it.  At the moment it seems to me that paragraph 11, at least on one view, has a number of problems.  It seems to conflate what you accept is not the way you read (b)(i) and (b)(ii), as separate potential avenues home.  It seems to treat them as cumulative.

NETTLE J:   It does.

MS FRANCOIS:   Can I just take the Court then to paragraph 5 of the IAA’s reasons on the application book, page 5.  So paragraph 5 is the statement of the Tribunal’s understanding of the task before it with respect to new information, where it correctly sets out in the second last line the alternative nature ‑ ‑ ‑

GORDON J:   I know it does that in 5, but that is not what it does in 11.

MS FRANCOIS:   Well, it is entitled.  So the case law cited by both parties from the Federal Court is that you can take into account both limbs of 473DD(b)(ii) and (i) in considering exceptional circumstances.

GORDON J:   Yes.

MS FRANCOIS:   So a consideration of both.  You are entitled to look at both to inform what you might then consider to be exceptional circumstances.  In this case, what the IAA is doing is firstly seeing that (i) is met, but then dealing with the argument specifically made by the applicant in his submissions, where he introduces this information, which is that it was credible personal information.  It is dealing with a specific argument raised by the applicant and addressing it.  And then, having considered that it is not credible personal information because it is implausible in the consideration of the IAA, it then concludes with, “And I do not think there are exceptional circumstances”.

Now, if it had thought that (i) and (ii) were cumulative, it did not need to go back to (a).  So if you had decided that (i) and (ii) were not met, then the conditions which are cumulative, being (a) and (b), you must have both exceptional circumstances, and if you are an applicant, you must meet one of those two limbs.  If the Tribunal truly thought that those two were cumulative, it did not have to consider exceptional circumstances, the test was not met.  So it does not make logical sense for the Tribunal to then be considering (a) if it thought that (i) and (ii) were also cumulative, because the test is not then met at all.

Anyway, that is the argument the Minister puts, and we do not accept that there is that error – that this Authority considered them to be cumulative.  We say it is a fact‑specific inquiry, when one has regard to the way in which the submission is put, the Authority is the just addressing applicant’s arguments, and ultimately coming to and explaining why there were no exceptional circumstances.

GORDON J:   Can I deal with that last aspect then, and this is the quality of the explanation?

MS FRANCOIS:   Yes.

GORDON J:   It is put against you that it is, in effect, legally unreasonable to reach the conclusion it reached, which is set out in that paragraph.  It seems to be a reference to the child’s age.  Is that a fair assessment of paragraph 11?

MS FRANCOIS:   Yes.  I think ultimately, just dealing with the preconditions, the way in which those reasons should be read is that the non‑satisfaction of (b)(ii) is ultimately the factor as to why there are no exceptional circumstances because there is no other reason given.  So that has to be why there are also no exceptional circumstances such as to give rise to the obligation to consider the information.  So we say the first question does not arise.  That then brings the next question, which is the legal unreasonableness question about the child’s age.

NETTLE J:   So the sole issue in the appeal is whether a reasonable decision‑maker could come to that conclusion?

MS FRANCOIS:   Yes.

NETTLE J:   That is it?

MS FRANCOIS:   Yes.  And the principles, we say, are not in contest.  We accept that if you evaluated this in a way inconsistent with authority, then it might be unreasonable.  We say on the facts, it is not.  But the principles of legal unreasonableness are not in dispute.

GORDON J:   Sometimes interests of justice play a part in applications for special leave.

MS FRANCOIS:   That is in the eye of the beholder, and I cannot say anything further on that, your Honour.

GORDON J:   You do not want to say anything about that?

MS FRANCOIS:   Ultimately, all of these refugee cases give rise to significant questions of personal safety for the individual, so they arise in every case.

NETTLE J:   There is only injustice, though, if a reasonable decision‑maker could not reasonably come to this conclusion.

GORDON J:   That is the point.

MS FRANCOIS:   Yes.  We say that that is not conceded.  We say that you could, having regard to the age of the child at the time.

GORDON J:   A 14‑year‑old?

MS FRANCOIS:   No, but it is a child at the time of the events in question.  So the applicant says specifically, in his new information, that his brother was brought in for questioning about his LTTE activities.  So it is a very specific proposition, and that places it in time as to when the child must be under six years of age because that is when the war ended, when this child was six.

So it is questioning a 14‑year‑old about something that they could only have known peripherally as a six‑year‑old that had no direct, necessary impact on them, being questioned about that nearly eight years later.  In terms of childhood development and all of those theories, it is not clear that it is not open to the Tribunal to take the view that a child that young would not have rationally any possible memory that would be of use to security forces.

NETTLE J:   Which, I must say, in another place, you might have a reasonable doubt about it.

MS FRANCOIS:   Well, if it was about activities the child had undertaken at the age of six, so personal things being done by the child or being done to the child, there might be a different argument, but this is quite removed.  Certainly, my understanding of childhood development is that this is a very self‑obsessed age, in terms of that process of growing up, and that is what the child psychology is.  Sorry, I am just, in terms of what do children remember versus adults, this is a phase in life where things not directly occurring to them is not something that one would ordinarily expect them to be observant about and remember eight years later.

NETTLE J:   Yes.  Thank you.

MS FRANCOIS:   So that then comes to the question of the country information and we say the country information about mistreatment and human rights abuses in Sri Lanka was more confined than the way in which the applicant reads that information.  So the proposition that I would like to take the Court to is that that information limited it to fairly high profile persons with LTTE involvement, or persons against the current peace process.

So if I could just direct the Court’s attention to paragraph 37, where the UN guidelines about the profile for persons who would be subject to those type of human rights abuses was set out, noting that that really involves some significant level of LTTE involvement or being the member of a family with someone with significant LTTE involvement.  And then although 41 is cited by my friend, 42 qualifies that, and really limits it to the persons identified in that paragraph, being activists, journalists and sympathisers publically involved in that process.

So we say, having regard to that information, the idea that human rights abuses were occurring generally to 14‑year‑olds, having regard to this information, those human rights abuses were targeted at a different type of person.

GORDON J:   Throughout – I mean, even at the end of 41, it is talking about that the targeting continues in relation to people even with tenuous links, along with their families.

MS FRANCOIS:   I accept that, but that is qualified by 42.

GORDON J:   I accept that, but it is still a finding made by the relevant project report.

MS FRANCOIS:   It is, but in terms of the IAA’s acceptance, that is not the basis upon which it acts.  It qualifies that by 42, and that can be seen further by 45.  Unless I can be of further assistance, those are the submissions for the Minister.

NETTLE J:   Thanks, Ms Francois.  Yes, Mr Owens.

MR OWENS:   Yes.  Can I, your Honour, deal with what my learned friend submitted in response to your Honour Justice Nettle’s question, which is, is the only issue in this case whether a reasonable decision‑maker could have come to this decision?  We say that that very much understates the true significance of the issues in this case.

What my friend conceded, quite properly, is that there is no dispute that exceptional circumstances can take into account, in an appropriate case, matters beyond the matters in subsections (b)(i) and (ii), that much is agreed.  But we say that here there is a more fundamental problem involving a more subtle error and that is there has not been proper attention to the requirement in (a) that the exceptional circumstances be directed to the justification for the consideration of the new material.  We say there has been an unwarranted jump to a further stage in the analysis.

We say that in relation to the substance of the credibility point, again there is an important factor underlying the legal unreasonableness challenge, which is, what is the proper construction of the section that gives rise to knowing what the question is that the Authority was considering?  And it is only when that is properly identified that the full complexity and nature of the legal unreasonableness is revealed.

NETTLE J:   There is no doubt about the correct construction of the section, is there?

MR OWENS:   Well, as I understand it, there may be some, at least in relation to exceptional circumstances – I did not understand my friend’s concession to go all the way.  But even if there is, at a very high level of generality, agreement about what section 473DD requires, this case provides a perfect vehicle for this Court to pronounce upon the very great complexities and subtleties that will arise in relation to the application of those general statutory commands, and how they produce reasonable or unreasonable results in relation to a matter of very great importance, very general great importance.

NETTLE J:   It is surely fact‑specific.  I mean, it is fact and degree.  It is a question of assessment, is it not?

MR OWENS:   Your Honour, I am not being facetious, but obviously every case is a question of its individual facts.

NETTLE J:   Yes.  What is it particularly about this that makes it stand out as an appropriate exemplar of the application of the principle…..just to warrant special leave?

MR OWENS:   Because there has been error in every single step of this section’s requirements.  There was an error in relation to (a), there was an error in relation to the credibility finding, and there was an error in treating the conditions in (b) as conjunctive, not alternative.  At every step of the way there was a problem.

So this is a potentially unique vehicle for this Court to pronounce upon the section as a whole, the section having the important consequences that I have identified.  And by reason of the particular factual issues, those difficulties in application of the general statutory standards will be able to be elucidated with clarity, will provide guidance, and will provide some considerable assistance for decision‑makers going forward.

Then at the heel of the hunt I fall back ultimately on ‑ and I do not say this dismissively ‑ a visitation case.  My client has not had the review that is mandated to be performed in relation to his application by section 473CC.  He has raised very serious claims in relation to his risk of harm that he will suffer if returned.  And until he has had the minimum, already very confined, species of review that he is entitled to, he would be legitimately aggrieved in feeling that his important international law rights have not been properly vindicated by this country.

So I do not put the ultimate interests of justice ground as any sort of secondary interest here.  We say this case presents both an opportunity for the Court to provide general useful and important pronouncements on the operation of this section.  And we also say that it, in doing so, will correct a very grave injustice to my client.

NETTLE J:   I understand what you say what about the visitation aspect of the matter but what is it going to establish in terms of principle as to whether the two requirements are alternative or conjunctive, when it is clear that they are alternative?

MR OWENS:   It is clear that they are.  It will, no doubt in that respect, serve as a salutary reminder to Authority decision‑makers that they ought to pay very close attention to what are the obvious requirements of the statute.  But the Court will also be providing important guidance in relation to the concept of exceptional circumstances, and the matter to which those circumstances must be directed – as I say, justification for consideration, not determination of, at a preliminary stage, acceptance or rejection of an applicant’s claims.

It will also provide very important guidance on the nature of the credibility assessment that is being performed at this stage and its relevance to the expansion of the scope of review beyond the minimum, standard scope, which is confined to material already before the delegate.

NETTLE J:   Essentially it is within the remit of the IAA to have regard to relevant information to determine whether it is satisfied that it is credible information, is it not?

MR OWENS:   It is, but here it has erred in taking into account irrelevant and unjustified assumptions not supported by the evidence.

NETTLE J:   Well, it comes to that at the end, does it not?  That is to say, no reasonable decision‑maker could come to the conclusion which these did on the basis of the identified considerations?

MR OWENS:   Yes, and it has either done that because it has misunderstood the task that it was directing itself to, or because it has strayed so far from the permissible path in answering the question that it is unreasonable.

NETTLE J:   It is put against you that when one has regard to paragraph 5 of the IAA’s reasons, it is clear that it did not make the error that you attribute to it.

MR OWENS:   Well, no.  All that, with respect, one gets from paragraph 5 is that when in abstract terms of the beginning of the reasons, it correctly paraphrased the legislation.  At the critical moment, when it is actually turning its mind to, “Does this applicant get their new information before me to consider in my view?” ‑ ‑ ‑

NETTLE J:   You say it conjoined the requirements.

MR OWENS:   It goes off on a wrong path.  Unless I can assist your Honour.

NETTLE J:   No, no, thank you very much.

Notwithstanding reservations which the Court has regarding some aspects of the reasoning of the decision of the court below, we are not persuaded that if there were to be an appeal to this Court the prospects of success would be sufficient to warrant the grant of special leave.  In the circumstances, the application is refused.

MS FRANCOIS:   The Minister seeks costs, your Honours.

NETTLE J:   Is that opposed, Mr Owens?

MR OWENS:   No, your Honour.

NETTLE J:   The application is dismissed with costs.

AT 11.35 AM THE MATTER WAS CONCLUDED