DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 559
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 559
File number: MLG 2585 of 2022 Judgment of: JUDGE RILEY Date of judgment: 29 June 2023 Catchwords: MIGRATION – Immigration Assessment Authority – Safe Haven Enterprise Visa – whether the Authority failed to determine whether s.473DD(b)(i) of the Migration Act 1958 (“the Act”) was satisfied – whether the Authority failed to consider relevant information in determining whether s.473DD of the Act was satisfied – whether the Authority erred by treating 473DD(b)(i) and (ii) as cumulative criteria – whether the Authority set the bar too high in determining whether certain information was “credible” within the meaning of s.473DD(b)(ii) of the Act. Legislation: Migration Act 1958 s.473DD Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; (2020) 384 ALR 196; [2020] HCA 37
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 30 March 2023 Place: Melbourne Counsel for the Applicant: Nicholas Mutton Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Julia Lucas Solicitor for the First Respondent: The Australian Government Solicitor Counsel for the Second Respondent: No appearance Solicitor for the Second Respondent: The Australian Government Solicitor ORDERS
MLG 2585 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DSC22
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
judge riley
DATE OF ORDER:
29 June 2023
THE COURT ORDERS THAT:
1.The application filed on 23 November 2022 and amended on 16 March 2023 be dismissed.
2.The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the court’s records.
Note:This copy of the court’s reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)..
REASONS FOR JUDGMENT
JUDGE RILEY:
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 not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”). A previous decision by the Authority in respect of the present applicant had been set aside by the Federal Court.
THE APPLICANT’S CLAIMS FOR PROTECTION
In his written submissions filed on 21 March 2023, the applicant provided the following summary of his protection claims:
11.In a statutory declaration of 10 December 2016 submitted with his SHEV application, the Applicant set out a number of claims, including that:
a.He fled Sri Lanka in 2012 owing to fears of persecution by government agencies.
b.He feared harm and discrimination because he is Tamil, he and his wife were considered to be supporters of the Liberation Tigers of Tamil Elam (the LTTE), and because they belong to a particular cultural group (Telugu) which is considered low caste.
c.He had been taken and beaten severely by the army.
d.His wife was a member of the LTTE but then left. Afterwards, the LTTE followed and harassed her. When she was asked to re-join and refused, the LTTE told her they would take one of their sons.
12.The Applicant also supplied identity documents to the delegate, which included his ‘Emergency Certificate’ (CB 113-115), a type of travel document. That certificate contains some handwritten notes, including the number ‘B3409/11’.
13.The 31 October 2017 statutory declaration contained further claims, including that:
a.In 2011, his son was arrested and charged for the murder of his (the son’s) wife and held in prison pending trial. He was imprisoned for 8 months until the Applicant paid his bail. His son was required to report to police once per month. The number for his son’s case is B3409/11.
b.Instead of reporting to police, he and his son fled Sri Lanka and, as a consequence, arrest warrants were issued for both of them and the Applicant’s wife.
c.He had not previously disclosed that the arrest warrant had been issued because he had heard the Australian government had been returning people of Tamil descent to Sri Lanka and he thought he would be deported.
d.He felt very anxious during the interview and didn’t know if he could trust the Department of Immigration and Border Protection (DIBP). He was also worried DIBP would pass on his whereabouts to the Sri Lankan government.
e.If forced to return, there was a high chance he would be imprisoned because he fled by boat and because of the arrest warrant, and he would likely be detained. He would be denied bail because he left the country unlawfully.
f.As an elderly Tamil man, there was a high risk he would face serious harm at the hands of prison officers and authorities, many of whom are former army members and Sinhalese.
14.In the review now subject of appeal, the Authority considered this statutory declaration to be new information and was satisfied that s 473DD was met.
15.The Applicant’s statutory declaration of 17 August 2022 contained further claims. This included claims about his mental health (set out below) as well as a claimed fear of harm on the basis that he and his family are Pentecostal Christians. …
(footnotes omitted)
MATERIAL RELIED UPON
At the hearing before this court, the applicant relied upon:
(a)his application filed on 23 November 2022 and amended on 16 March 2023 (“the application”);
(b)the court book filed on 18 January 2023;
(c)his written submissions filed on 21 March 2023; and
(d)his bundle of authorities filed on 29 March 2023.
At the hearing before this court, the Minister relied upon:
(a)his response filed on 19 December 2022;
(b)the court book filed on 18 January 2023;
(c)his written submissions filed on 24 March 2023; and
(d)his bundle of authorities filed on 27 March 2023.
GROUND 1
The first ground of review in the application is:
1. The Immigration Assessment Authority (the Authority) erred by failing to determine whether s 473DD(b)(i) was satisfied in relation to new information provided by the Applicant about his mental health
Particulars
a.The Applicant provided the Authority new information about his mental health in his statement of 17 August 2022 (the new mental health information).
b. The Authority determined that neither s 473DD(b) nor s 473DD(a) was met in relation to the new mental health information and so did not consider it when performing its review.
c. The Authority was required, but failed, to determine whether s 473DD(b)(i) was satisfied in relation to the new mental health information.
Section 473DD of the Migration Act 1958 (“the Act”) provides as follows:
473DD Considering new information in exceptional circumstances
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.
The Authority addressed the question of new information about the applicant’s mental health as follows:
15.On 16 August 2022, the IAA received a further email from Refugee Legal with attachments. This included a statutory declaration dated 17 August 2022, a legal submission, and two country information reports.
16. The applicant’s statutory declaration refers to some claims made before the delegate and arguments in response to the delegate’s and previous IAA’s findings, which I will consider in undertaking this review. The statutory declaration also refers to some information that I consider to be new claims not made before the delegate.
…
23.In his statement, the applicant claims that he has increasingly struggled with his mental health. He says he has severe anxiety, largely in relation to his family’s situation and that while he was prescribed medication, he stopped taking it as it caused him extreme drowsiness. The applicant claims that there are limited mental health services in Sri Lanka and that there is stigma around mental health. It would be difficult for him to access the support he needs which would result in worsening of his mental health. The applicant further claims that he has experienced strong feelings of hopelessness and guilt around his family’s circumstances leading him to consider ending his life and that he fears that without access to treatment he will commit suicide in Sri Lanka. These claims or any reference to the applicant having suffered from mental health conditions were not raised before the delegate and are new information. The applicant has not provided any details of when his mental health issues arose or deteriorated, nor has he provided any reports from health providers detailing his condition or treatment plan. The applicant also has not referred to any independent information supporting his claims that he will not be able to access the required treatment if returned to Sri Lanka. If the new information relates to recent health issues and could not have been provided to the delegate, given the limited details about the applicant’s claimed mental health condition and lack of any medical reports outlining his diagnoses, medication, current or future treatment requirements, I am not satisfied that the applicant’s assertions without any supporting evidence is credible information. In addition, the information provided is lacking in any meaningful detail to allow assessment of the applicant’s future treatment requirement or whether he will be able to access treatment if returned to Sri Lanka. I am not satisfied that the requirements under s.473DD (b) or (a) are met.
In his written submissions filed on 21 March 2023, the applicant said in relation to this ground that:
29.In deciding whether it could ‘consider’ the new mental health information under s 473DD, the Authority was first required to determine whether either or both of ss 473DD(b)(i) and (ii) were satisfied in relation to the information. The authority was then required to consider, under s 473DD(a), whether there were exceptional circumstances justifying considering the new information.
30. In assessing the information against the criterion in s 473DD(a), the Authority was obliged to take into account its assessment against the criteria in ss 473DD(b)(i) and (ii). A failure to do so constitutes a failure to take into account a mandatory relevant consideration in the purported application of s 473DD(a).35
31. In considering the new mental health information, the Authority referred to perceived deficiencies in details the Applicant provided about his mental health and said that, if the new information could not have been provided to the delegate, it was not satisfied it was credible information. However, it did not make any finding as to whether s 473DD(b)(i) was met.
32. The Authority’s consideration of the new information cannot be taken to amount to a finding as to whether s 473DD(b)(i) applied.
33. In failing to determine whether s 473DD(b)(i) was met, the Authority failed to exercise (or constructively failed to exercise) its jurisdiction. Further, its error meant it failed to take into account a mandatory relevant consideration in its purported application of the information against s 473DD(a).
FN 35:AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, 501-2 [10]-[12] (Kiefel CJ, Gageler, Keane and Gordon JJ) (citations omitted).
In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; (2020) 384 ALR 196; [2020] HCA 37, the plurality of the High Court said that:
10Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12The result, as has been recognised by the Federal Court in numerous other cases (29), is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) (30).
(emphasis added)
FN 29:BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at 224-225 [9], 230 [35]-[37]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at 144-146 [102]-[112]; CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148 at 158-159 [44]-[45]; Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at 259 [47]-[49], 260 [51].
FN 30:Pace Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at 259-260 [50].
In his written submissions filed on 24 March 2023, the Minister said in relation to this ground that:
12.The imposed requirement in s 473DD(b)(i) concerns the obligation on the Authority not to consider new information unless the 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 was not, and could not have been, provided to the Minister before the Minister made the decision under section 65.
13. The Authority observed that (CB 439 [23]):
13.1. The mental health conditions were not raised before the Delegate and are new information;
13.2. The Applicant had not provided any details about when his mental health issues arose or deteriorated.
13.3. It also noted that “if the new health information relates to recent health issues and could not have been provided to the delegate…”
14. It was implicit in the Authority’s observations and findings referred to above that s 473DD(b)(i) was not satisfied.
15. It is unnecessary for the Authority to engage in a formulaic consideration of the criteria prescribed by s 473DD(b). It will be sufficient, in a particular case, that the Court can be satisfied that the requisite assessment has been made, that is, the substance of the criteria in s 473DD(b) has been considered prior to a consideration of whether “exceptional circumstances” exist for the purposes of s 473DD(a): APH17 v Minister [2021] FCA 23 at [79]. The matters set out at above at [13] were only matters which could be considered relevant to s 473DD(b)(i).
In APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, Markovic J said at [79] that:
As the Minister submits, notwithstanding the plurality’s statement [in AUS17] that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
(emphasis added)
The question for the court in relation to ground 1 is whether the court can infer that the Authority was not satisfied that the applicant’s mental health information could not have been provided to the delegate before the delegate made his decision. The court can readily draw that inference in the present case. The Authority said in paragraph 23 of its reasons for decision:
… The applicant has not provided any details of when his mental health issues arose or deteriorated …
It follows that the Authority was in no position to be satisfied, and was not satisfied, that the applicant could not have provided his mental health information before the delegate made his decision.
The Authority, properly, went on to consider the alternative in s.473DD(b)(ii) of the Act, concerning credible information. In relation to that issue, the Authority said at paragraph 23 of its reasons for decision:
… If the new information relates to recent health issues and could not have been provided to the delegate, given the limited details about the applicant’s claimed mental health condition and lack of any medical reports outlining his diagnoses, medication, current or future treatment requirements, I am not satisfied that the applicant’s assertions without any supporting evidence is credible information. …
In effect, that passage meant that, even if the applicant had satisfied the Authority that the information about his mental health was new and therefore could not have been provided to the delegate before he made his decision, the Authority would not have considered it credible information for the reasons given.
I am not persuaded that the Authority made the error alleged. Ground 1 is not made out.
GROUND 2
The second ground of review in the application is:
2.The Authority erred by constructively failing to exercise its jurisdiction, and/or acting unreasonably or illogically, by failing to consider relevant information in determining whether s 473DD was satisfied
Particulars
a.The Authority had information before it which was relevant to its assessment of whether the new mental health information satisfied s 473DD, including:
i. information relevant to the timing and causes of the Applicant’s claimed deterioration in mental health; and
ii. country information regarding the availability and adequacy of mental health treatment in Sri Lanka.
b. The material was relevant to its assessment of each of ss 473DD(b)(i) and (ii) and s 473DD(a).
c. The Authority failed to take the information into account in determining whether s 473DD was met.
d. The Authority thereby constructively failed to exercise its jurisdiction and/or acted unreasonably or illogically.
In ground 2, the applicant argued firstly that the Authority was wrong in paragraph 23 of its reasons for decision to have found that:
… The applicant has not provided any details of when his mental health issues arose or deteriorated …
The applicant argued that he had provided those details in the following form:
(a)the letter sent by his representatives to the Authority dated 21 November 2017 (CB 164);
(b)the first dot point in the email from his representatives to the Authority dated 9 August 2022 (CB 348); and
(c)paragraphs 16 – 20 of his statement dated 17 August 2022 (CB 368).
The relevant paragraphs of the letter sent by his representatives to the Authority dated 21 November 2017 are as follows:
a.The applicant’s mental health has been declining due to the stress of living with ongoing uncertainty related to his own application as well as his son’s application and the separation from his wife in Sri Lanka.
…
e.The serious hardship suffered while in the processing system including the ongoing uncertainty, period of denial of access to health care and the right to work.
…
g.The applicant feels significant stress resulting from his belief that his wife is still being harassed on an ongoing basis in Sri Lanka.
The delegate’s decision was made on 2 November 2017. The applicant made the SHEV application on 14 December 2016. He arrived in Australia by boat on 4 November 2012. There is nothing in the passages cited from the letter dated 21 November 2017 that suggests that the applicant’s mental health difficulties post-dated 2 November 2017. In fact, the letter suggests that the applicant’s mental health difficulties pre-dated 2 November 2017, because he had been separated from his wife since 2012 and his immigration situation in Australia had been uncertain since then.
The first dot point in the email dated 9 August 2022 from the applicant’s representatives to the Authority is as follows:
•The Applicant is currently held in immigration detention and his mental health has deteriorated significantly as a consequence. Additionally, as the Applicant is not able to attend our office, communicating with him is more difficult and this has an obvious impact on our ability to assist him with providing any further submissions to the IAA.
According to paragraph 8 of the applicant’s written submissions, the applicant was taken into immigration detention on or about 30 September 2019. That was about two years after the date of the delegate’s decision. I accept that this was information provided by the applicant that could have indicated that his mental health issues arose after the delegate made his decision. However, it is not clear that the Authority would have been aware of the date when the applicant was taken into detention. The letter dated 9 August 2022 did not specify that date. The letter asked the Authority to defer its decision until after 18 August 2022, which it did. I have not been taken to anything that shows that the Authority had evidence before it of the date that the applicant was taken into immigration detention.
Paragraphs 16 – 20 the applicant’s statement dated 17 August 2022 are as follows:
16. I have increasingly struggled with my mental health. I have severe anxiety, largely in relation to my family’s situation. I was prescribed medication to manage my anxiety by the Mental Health Team, but I stopped taking it as it caused extreme drowsiness.
17. There are limited mental health services in Sri Lanka, with very few mental health professionals and one state-run hospital dedicated to mental health services. These services will be impossible to access at the moment due to the economic collapse in Sri Lanka.
18. Due to the harm and discrimination I will experience on the basis of my LTTE links, Tamil and Telugu ethnicity, Pentecostal religion, and low caste, it will be especially difficult to access the support I need.
19. There is a lot of stigma around mental illness in Sri Lanka, with may Sri Lankan’s attributing it to a curse or ‘black magic’. I am already stigmatised as a result of my religion, ethnicity, and caste, and will be scared to seek treatment, even if it were accessible.
20. Without adequate support, my already poor mental health will worsen. I have experienced strong feelings of hopelessness and guilt around my family’s circumstances. These feelings have been so severe that I have considered ending my life. I fear that without access to treatment I will commit suicide in Sri Lanka.
The applicant’s statement dated 17 August 2022 does not say when his mental health isues began or became increasingly bad.
All in all, I am not persuaded that the Authority was in error when it said that:
… The applicant has not provided any details of when his mental health issues arose or deteriorated …
The applicant’s second point in ground 2 concerned the Authority’s alleged failure to consider country information regarding the availability and adequacy of mental health treatment in Sri Lanka. In this connection, the Authority said at paragraph 23 of its reasons for decision:
… The applicant has not provided … any reports from health providers detailing his condition or treatment plan. The applicant also has not referred to any independent information supporting his claims that he will not be able to access the required treatment if returned to Sri Lanka. … given the limited details about the applicant’s claimed mental health condition and lack of any medical reports outlining his diagnoses, medication, current or future treatment requirements, I am not satisfied that the applicant’s assertions without any supporting evidence is credible information. In addition, the information provided is lacking in any meaningful detail to allow assessment of the applicant’s future treatment requirement or whether he will be able to access treatment if returned to Sri Lanka. (emphasis added)
The applicant said that there was information before the Authority dealing with those issues, being:
(a)the CNN articles from June 2022 regarding Sri Lanka’s economic crisis (CB374-CB377); and
(b)paragraphs 2.25 and 2.27 of the Department of Foreign Affairs and Trade (“DFAT”) Country Information Report Sri Lanka (23 December 2021) (CB 390).
Regarding the CNN articles, the applicant argued that the economic crisis in Sri Lanka would make it more difficult for him to access mental health services in Sri Lanka. That can be accepted. However, the Authority’s point was that the applicant had not supported his claims with independent expert evidence that he would need any mental health treatment if he were to return to Sri Lanka. It was therefore unnecessary for the Authority to consider whether mental health treatment would be available to the applicant in Sri Lanka.
Paragraphs 2.25 and 2.27 of the DFAT Country Information Report Sri Lanka (23 December 2021) are as follows:
2.25Sri Lanka offers some mental health services but there are gaps. Local sources suggest the health system has a strong mental health focus with a good cohort of trained counsellors, and a number of NGOs active in the sector. However, there are limited numbers of qualified psychologists and psychiatrists. The Ministry of Health operates the National Institute of Mental Health in Colombo which is the only state-run hospital dedicated to treating mental illness with 1,200 full-time staff and 1,500 beds. The National Institute of Mental Health admits over 8,000 patients annually.
…
2.27Local sources report that mental illness still carries a stigma and elicits a strong sense of pity in Sri Lankan society. Such stigma deters sufferers from revealing and seeking treatment for mental illness, and is likely worse the more a mental illness is ‘visible’ to outsiders. Stigma can have a strong impact upon families in particular. Additionally, according to a local NGO, a family unit may bear primary responsibility for caring for those with mental health problems, due to the lack of adequate services in most parts of the country. Families reportedly fear mental illness will mean their daughter is not able to get married or that children may be bullied in school. Such social estrangement is reportedly even worse in the case of suicide. Understanding of the causes of mental illness can be limited. Mental illness is sometimes attributed to black magic and curses. Some families seek traditional methods to ‘cure’ mental illness, including through use of local healers. Despite this context, overall, stigma has declined considerably in the last fifteen years and Sri Lankans now access counselling services more freely, where available.
The DFAT report indicates that mental health support services in Sri Lanka are limited. However, as mentioned above, the Authority’s point was that the applicant had not supported his claims with independent expert evidence that he would need any mental health treatment if he were to return to Sri Lanka. It was therefore unnecessary for the Authority to consider whether mental health treatment would be available to the applicant in Sri Lanka.
Ground 2 is not made out.
GROUND 3
The third ground of review in the application is:
3.The Authority erred by applying s 473DD(b)(i) and (ii) as cumulative criteria and/or in finding that s 473DD(b) was not met in relation to the new mental health information
Particulars
a.Sections 473DD(b)(i) and (ii) are alternatives. If the Applicant satisfied either, s 473DD(b) was met.
b. The Authority found that, if the new mental health information could not have been provided to the Minister’s delegate, it was not satisfied the information was ‘credible’ and concluded that s 473DD(b) was not met.
c. In doing so, the Authority erroneously required the Applicant to satisfy both ss 473DD(b)(i) and (ii).
In his written submissions filed on 21 March 2023, the applicant said in relation to this ground:
44.If, contrary to what is argued in Ground 1, the Authority found that s 473DD(b)(i) was satisfied, it erred by imposing a further requirement that the information must also satisfy s 473DD(b)(ii) and/or in finding that s 473DD(b) was not met.
45. Sections 473DD(b)(i) and (ii) are alternatives. If the Applicant satisfied either, s 473DD(b) was met.
46. The Authority found that, if the new information could not have been provided to the Minister’s delegate, it was not satisfied the new information was ‘credible’. It went on to conclude that s 473DD(b) was not met.
47. The only logical reading of the decision that the Authority erroneously required the Applicant to satisfy both ss 473DD(b)(i) and (ii).
This ground misapprehends the Authority’s reasons for decision. As discussed in relation to ground 1, the Authority found that the applicant did not satisfy the Authority that the new information:
(a)could not have been given to the delegate (s.473DD(b)(i)); and, in the alternative,
(b)was credible personal information (s.473DD(b)(ii)).
Ground 3 is not made out.
GROUND 4
The fourth ground of review in the application is:
4.The Authority erred by asking itself a wrong question or imposing a wrong threshold in assessing whether the new mental health information was ‘credible’ under s 473DD(b)(ii)
Particulars
a.In assessing whether the new mental health information satisfied s 473DD(b)(ii), the Authority was required to consider whether it was ‘credible’.
b.This only required that the Authority be satisfied the new information was ‘capable of being believed’.
c.The Authority erroneously imposed a higher bar for assessing whether the new mental health information was credible.
In his written submissions filed on 21 March 2023, the applicant said in relation to this ground:
48.In deciding whether to consider the new mental health information, the Authority was required to determine, inter alia, whether the information was ‘credible’ personal information.
49.In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), Bromberg J, at [41]-[43], considered the meaning of the word ‘credible’ as used in s 473DD(b)(ii). His Honour found the term only requires that the new information be ‘capable of being believed’.43 He further explained that s 473DD(b)(ii) is concerned with an early stage of the Authority’s review directed at whether new information should be received so that it may be considered at the later, deliberative stage, which is when the Authority will be required to determine if the new information is true.44 It is only information that the Authority is satisfied is evidently not credible that fails to meet the credibility requirement in s 473DD(b)(ii).45 In CSR16, his Honour found the Authority required satisfaction that the new information was true and thereby fell into jurisdictional error.46
50.The correctness of Bromberg J’s approach in CSR16 has been confirmed by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (BTW17).47 In that case, Mortimer and Jackson JJ highlighted that the assessment of whether information is credible under s 473DD(b)(ii) does not involve ‘some kind of intensive and final analysis of the probative value’ of the information.48
51.Paragraph 23 of the Authority’s decision referred to perceived deficiencies in the information the Applicant provided in support of his mental health claims. It went on to say (emphasis added):
given the limited details about the applicant’s claimed mental health condition and lack of any medical reports outlining his diagnoses, medication, current or future treatment requirements, I am not satisfied that the applicant’s assertions without any supporting evidence is credible information. In addition, the information provided is lacking in any meaningful detail to allow assessment of the applicant’s future treatment requirement or whether he will be able to access treatment if returned to Sri Lanka.
52.The Authority’s analysis shows it imposed a higher bar than was permitted when determining if the new mental health information was credible. It made no reference to whether the information was capable of being believed and did not find that the claims were evidently not credible. Its reasons demonstrate it was concerned with whether the claims should be believed. It focussed on a lack of corroborative evidence, as highlighted by its comment that it was not satisfied the assertions were credible ‘without any supporting evidence.’
53.The Applicant’s claims about his own mental state were inherently capable of being believed, especially when considered in the proper context of other information before the Authority regarding his mental health, including that concerns were raised about his mental health in the submissions made on his behalf in 2017 and the fact he had spent several years in immigration detention.
54.A lack of supporting evidence did not show that the Applicant’s claims were not capable of being believed. Any supporting evidence, or lack thereof, was relevant to the Authority’s task at the deliberative stage.
55.In imposing a higher bar for the purposes of s 473DD(b)(ii), the Authority erred.
FN 43:At [42].
FN 44:At [41].
FN 45:At [42].
FN 46:At [43].
FN 47:At [75]-[77] (Mortimer and Jackson JJ), Besanko J not deciding the issue.
FN 48: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159, [77].
I do not accept that the Authority set the bar too high in the present case. The Authority, in effect, said that the applicant’s claims regarding his poor mental health were not capable of being believed because they were bare assertions from himself, rather than being supported by independent expert evidence. That conclusion was open to the Authority.
Ground 4 is not made out.
GROUND 5
The fifth ground of review in the application was struck out by consent at the hearing on 30 March 2023.
CONCLUSION
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Riley. Associate:
Dated: 29 June 2023
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