DVG17 v Minister for Immigration

[2018] FCCA 3842

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVG17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3842

Catchwords:
MIGRATION – Application to review decision of the IAA – whether the Authority erred by declining to consider new information in accordance with s.473DD of the Migration Act 1958 (Cth).

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 473DD

Privacy Act 1988 (Cth), s.6

Cases cited:

ABC17 v Minister for Immigration and Border Protection [2018] FCA 254

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192;

(2017) 257 FCR 148

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 257 FCR 111

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013)

210 FCR 505

Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018]

HCA 16; (2018) 353 ALR 600

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003]

HCA 6; (2003) 214 CLR 1

Applicant: DVG17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2680 of 2017

Judgment of: Judge Barnes

Hearing date: 25 June 2018

Date of Last Submission: 1 August 2018

Delivered at: Sydney

Delivered on: 21 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Carey

Solicitors for the Applicant: Wotton + Kearney Solicitors

Counsel for the Respondents: Mr Johnson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ of certiorari issue quashing the decision of the Second Respondent dated 31 July 2017.

2. A writ of mandamus issue directed to the Second Respondent requiring it to determine the application for review of the decision of a delegate of the First Respondent dated 22 June 2017 according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2680 of 2017

DVG17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Immigration Assessment Authority (the Authority) made on 31 July 2017 refusing to grant the Applicant a temporary protection (Class XD) visa. 

2. The Applicant, a citizen of Sri Lanka, arrived in Australia in September 2012.  On 4 September 2015, while in detention on Christmas Island, he applied for a protection visa.  He did not have a migration agent acting for him at that time. 

3. On 22 June 2017 the application was refused.  On 28 June 2017 the matter was referred to the Authority for review.  As indicated, on 31 July 2017 the Authority affirmed the decision not to grant the referred Applicant a protection visa.

4. The Applicant claimed to fear harm on return to Sri Lanka, in essence on the basis of an imputed association with the Liberation Tigers of Tamil Eelam (the LTTE), because of his family associations and as a Tamil from the north who had departed Sri Lanka illegally.

5. As recorded in his protection visa application and the delegate’s decision, the Applicant claimed he lived in the Jaffna district in the Northern Province of Sri Lanka until about 1995.  His father went missing in 1989 and it was presumed that he had been killed.  The Applicant moved to an LTTE controlled area in the Northern Province.  He worked as a fisherman, married and had two children.  He later separated from his wife. 

6. The Applicant claimed that he was not involved in any fighting during the war in Sri Lanka and that he had no involvement with the LTTE other than “some forced labour, and having to give the LTTE some fish from his catch”.  He also claimed that in the closing stages of the war he had assisted in ferrying wounded and injured persons from the shore to Red Cross medical ships anchored at sea.

7. At the end of the civil war, the Applicant was placed in a camp for Internally Displaced Persons (the IDP camp).  He claimed he was questioned by the army and Criminal Investigation Division (CID) on two or three occasions and asked about his involvement with the LTTE and that he was mistreated and assaulted during this questioning.

8. The Applicant also claimed that sometime in 2009 one of his brothers (“U”), who had been forcibly recruited by the LTTE and was later held in a nearby detention camp, escaped from the detention camp using money given to him by the Applicant to pay a bribe.  U had subsequently disappeared and was believed to have been abducted and to have died.  The Applicant claimed he was questioned by the authorities following U’s escape and disappearance, but that he was not harmed or mistreated during that questioning.

9. Relevantly, having regard to the ground of review, the Applicant claimed that one of his sisters (“J”) came to the IDP camp in around 2010 or 2011 and that he had provided an assurance to the authorities that she would remain there.  However he claimed that J had escaped from the camp and that he was questioned by the CID about her escape.  He was not harmed or mistreated during this questioning, but was told he could no longer leave the camp and had to surrender his identity documents.

10. The Applicant claimed that shortly thereafter he escaped from the IDP camp and returned to Jaffna, where he obtained new identity documents.  He began working with another brother (“R”) had recently been released after three years of imprisonment, but faced criminal charges and was not allowed to leave Sri Lanka.  The Applicant claimed that in 2012 (while he was working with him), R was abducted and tortured by “unknown persons” and that as a result he decided to leave Sri Lanka illegally.  He arranged for the Applicant to accompany him.  The Applicant came to Australia with R in 2012.  The Applicant told the delegate that R had an outstanding court case when they left Sri Lanka and that their mother, who still lived in Jaffna, had been questioned about R’s whereabouts on a number of occasions.  He claimed to fear that he would be questioned on return because R had been in prison. 

11. The Applicant provided some supporting evidence to the Department, including documents relating to the claimed abduction, mistreatment, release and hospitalisation of his brother R and a letter from his mother referring, among other things, to the fact J had sought asylum in Australia and claiming that the authorities, including police officers, had made inquiries of her about the Applicant.

The delegate’s decision

1. In his reasons the delegate relevantly observed the following about the Applicant’s claims related to his sister J:

   I accept that the applicant’s sister [J] left the IDP camp in which she was being held with her husband, and that she subsequently travelled to Australia.  However, I do not accept that the applicant was held responsible for his sister’s failure to return to the IDP camp, or that he would be of adverse interest to the Sri Lankan authorities for this reason.  While it is reasonable to accept that the IDP camp authorities would have questioned the applicant after his sister failed to return to the camp, it is not reasonable that the camp authorities would have taken any action against the applicant as a result.  While the applicant claims he was questioned and ‘harassed’ by the IDP camp authorities after his sister’s departure, he has not claimed that he was harmed in any way, and I have found that he was later released from the IDP camp.  I do not find it plausible that the applicant would have been held responsible as a ‘guarantor’ for his sister, given that she was married at the time and left the camp with her husband and family.  Consequently, I find that the Sri Lankan authorities do not have an adverse interest in the applicant for this reason.  While I note the applicant’s claim that his sister owned land on which the LTTE stored material, he has not claimed that he has been questioned about this, or that the Sri Lankan authorities have any interest in him for this reason.

2. As to the Applicant’s claims about R, the delegate stated:

   I accept that the applicant travelled to Australia with his brother [R], and that [R] was facing criminal charges and was not allowed to leave Sri Lanka at that time.  However, the applicant has stated that he has never been questioned, detained or mistreated by the Sri Lankan authorities in connection with their interest in [R].  Neither has the applicant claimed that he is implicated in any criminal activity engaged in by [R], or that the authorities would have an interest in him for any reason other than having departed the country with [R].  The applicant has stated that he was working with [R] when he was abducted by ‘unknown persons’ in 2012, but has not himself been targeted or harmed by these ‘persons’.  While I accept that the applicant may be questioned on return to Sri Lanka as a failed asylum seeker who departed Sri Lanka illegally… and that he may be questioned about the whereabouts of [R], I find that there is no evidence indicating that he will be of adverse interest to the Sri Lankan authorities because his brother [R] departed Sri Lanka illegally, or because [R] was abducted by ‘unknown actors’ in 2012.

3. The delegate did not accept that the Applicant had escaped from the IDP camp without permission, rather than being formally released.  He did not accept the Applicant “had a genuine fear of harm from the Sri Lankan authorities for an imputed pro LTTE political opinion or for having LTTE connections when he departed Sri Lanka, or that the Sri Lankan authorities have an ongoing interest in the applicant for this reason.”

4. Nor was the delegate satisfied that the Applicant otherwise met the refugee or complementary protection criteria. 

Submission to the Authority

1. After the matter was referred to the Authority, it received a submission on behalf of the Applicant, dated 13 July 2017, from a NSW-based representative who described himself as a Solicitor and Barrister and advised that he had limited instructions, including to assist the Applicant to make written submissions to the Authority “as to why he disagrees with the DIBP’s decision”.  This appears to be the first occasion on which the Applicant had representation in connection with his protection visa application.

2. The submission did not refer to s.473DD of the Migration Act 1958 (Cth) (the Act), but asked the Authority to take into account “material facts” about the Applicant’s family members, including what were said to be the protection claims of two of the Applicant’s siblings who were in Australia (J and R) set out in attached statements; the fact that J (and her family) and R had “recently” been found to be refugees; that another brother (“S”) had also been found to be a refugee in Australia; as well as the disappearance of his father “due to his suspected political profile”; the adverse attention his mother faced from the security forces (mainly due to R); the abduction of U who was still missing; and the fact another sibling was in the United Kingdom.

3. J’s statement was dated 18 March 2012.  R’s statement was dated 16 September 2016.  Both statements were apparently made in support of protection visa applications.  These are discussed further below. 

4. In addition, the submission attached copies of a 2016 UK Home Office Report and a DFAT Country Information Report on Sri Lanka of 24 January 2017 which referred to 2012 UNHCR Eligibility Guidelines, in relation to which the submission stated:

   The UNHCR noted that persons at risk include “former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE”; and “persons with family links or who are dependent on or otherwise closely related to persons with this profile”.

   It is respectfully submitted that the for the material facts and the UNHCR Report detailed above, the Honorable Member should consider the applicant fits the profile as he is closely related to persons at risk, as noted by the UNHCR and who is therefore at risk of persecution in Sri Lanka.

   It is submitted in my concluding submission that the applicant’s siblings suspected profile is relevant matters and is material to the applicant’s IAA review and to his fear of serious harm in Sri Lanka.

   The applicant still has a genuine fear of harm, or is of interest to the Sri Lankan authorities, because of his own protection claims and his family links with the siblings who have been found to be a refugee in Australia.

   I humbly submit that there is a real chance that he would still face serious harm by reasons of combined factors of his Tamil ethnicity (a Tamil from the North), failed (Tamil) asylum seeker and his and his siblings’ real/imputed political opinion.

   The IAA should reconsider a protection visa for him and in the alternative, the complimentary protection criterion in s.36 (2) (aa) on the basis of the combination of each of the individual claims raised by the applicant, protection claims raised by his siblings’ in Australia, evidence and submissions to date and oral submission given at the TPV interview along with the fact that the applicant departed illegally and travelled to Australia by boat and if refused asylum in Australia, would, cumulatively, create a real chance he would suffer serious harm from the Sri Lankan security forces.

   I trust that you will call the applicant along with his siblings for an interview if required and/or if any issues arise even after this submission with the reliable country information which is relevant to his protection claims.  I am willing to represent him during the IAA’s interview if he instructs me to do so.

   (errors in original)

The Authority’s decision

1. In its decision of 31 July 2017, the Authority summarised the Applicant’s claims as claims to fear harm because of an imputed association with the LLTE; his family associations; and for being a Tamil from the north of Sri Lanka who had departed the country illegally.

2. Relevant to the only ground of review in these proceedings, the Authority considered the submission of 13 July 2017 and whether it contained new information, as follows:

   5.  The applicant provided a submission to the IAA on 13 July 2017.  This submission was drafted with the assistance and advice of a migration lawyer.  Part of this submission refers to information (including country information) that was before the delegate and is part of the referred material.

   6.  The submission contains assertions that some of the applicant’s siblings have been found to be Convention refugees and asks the IAA to take this into account.  It then attaches statements provided by the applicant’s brother, “R”, and his sister, “J”.  These statements were not before the delegate and I am satisfied that they are new information.  Both statements are dated before the interview with the delegate on 23 March 2017 (the interview) and the applicant has not explained why they were not or could not have been provided at the interview or in the three months between the interview and the decision.  I also note that both statements were made by the deponents in relation to their own refugee applications and the statements do not refer to the applicant or his personal circumstances.  I am not satisfied that there are exceptional circumstances to justify considering the statements. 

   7.  In relation to status of the applicant’s siblings, there is no other evidence or information in the referred materials relating to refugee status or any reasons why such status was granted.  While the applicant told the delegate that these siblings are in Australia, he has not previously attempted to provide any other information about their refugee claims or status.  Although he has previously claimed to face harm because of his involvement with his siblings’ departures from Sri Lanka, he has not made any previous claims arising from their refugee status.  I am satisfied that this claim is new information and for the reasons I have set out above, I am not satisfied that it could not have been provided to the delegate before the decision was made.  I am not satisfied that there are exceptional circumstances to justify considering this information.

3. In paragraph 5 the Authority did not refer to the January 2017 DFAT Report attached to the submission (which contained the reference to the 2012 UNHCR Guidelines for Sri Lanka at paragraphs 3.32-3.33), but this Report was cited in the delegate’s decision and referred to elsewhere in the Authority’s reasons.  It is not disputed that the DFAT Report was part of the referred material described in paragraph 5 of the Authority’s reasons.

4. The Authority found, at paragraph 8, that it was satisfied that the 2016 UK Home Office Report was new information, but as the 2017 version that had been referred to by the delegate contained more up to date information and as the Applicant had made no submissions in relation to the 2016 version, the Authority was not satisfied that there were exceptional circumstances to justify considering the 2016 version.  No issue is taken in respect of this aspect of the Authority’s decision.  

5. The Authority also stated at paragraph 9:

   The submission also makes what appears to be a request for an interview with the IAA.  Section 473DB of the Act provides that subject to Part 7AA, the IAA must review decisions on the papers without interviewing the applicant.  Section 473DC also provides that the IAA does not have a duty to get, request or accept any new information, whether the IAA is requested to do so by an applicant or in any other circumstances.  The IAA may only consider new information in limited circumstances.  Furthermore, there is no statutory entitlement to a hearing.  I take into account that the applicant was not represented by a lawyer or migration agent when he prepared his TPV application or at the interview; however, I am satisfied that the applicant was given an opportunity to present all of his claims and that he was also told that he could provide further information following the interview if he wished to do so.  The delegate did not make a decision until three months after the interview and there is nothing in the referred materials that indicates that the applicant sought to provide any further information or evidence.  I am not satisfied that an interview is necessary or required in the circumstances.

6. The Authority summarised the Applicant’s claims (excluding the new information about his siblings’ protection claims and refugee status which it had not taken into account).  It recorded that the Applicant claimed he was questioned by the authorities after he gave his brother U money which enabled him to bribe his way out of a detention camp.  After his sister J escaped from the IDP camp he was questioned by the CID, subjected to restrictions on leaving the camp and had to surrender his identity documents.  The Authority observed that the Applicant claimed that J and her husband later fled to Australia. 

7. The Authority also recorded that the Applicant claimed that shortly thereafter he had escaped from the camp and began working in the Jaffna district with R (who had been released from prison after serving a three year sentence and had to report regularly to the authorities); that R had been abducted and tortured in 2012; and that as a result R decided to leave Sri Lanka and arranged for the Applicant to go with him.  He claimed that since then his mother had to report to the police and court in relation to R and had been asked about R’s whereabouts.

1. The Authority considered four supporting letters from two Fishermen’s Co-Operative Societies and two persons in Sri Lanka which were all dated October 2012 and were in identical terms.  The Authority observed that these documents did not indicate whether the authors were making the observations and claims therein from personal knowledge or on the basis of information reported by another person.  The Authority was not satisfied that these documents were independent corroborative evidence and did not give them any weight when considering the Applicant’s claims.

2. The Authority accepted that the Applicant was a Tamil Hindu who had resided in the Northern Province of Sri Lanka and that it was plausible that as a young Tamil male in an IDP camp in 2009 he would have been questioned by the authorities.  It accepted the Applicant’s claim that this occurred on two or three occasions and that he was mistreated, but observed that his evidence was that he was asked general questions and was not charged with any offences, taken to a detention centre, identified for rehabilitation or subjected to further questioning or processing in relation to LTTE activity during the two years he remained in the IDP camp for the subsequent 12 months before he left Sri Lanka.  It also had regard to the Applicant’s evidence that he had been allowed to leave the camp for extended periods to work as a fisherman and the fact that he had not claimed that he was subjected to any reporting or monitoring requirements in such periods.  The Authority observed that although the Applicant claimed he had been subjected to further questioning by the authorities at different times, “this related to the activities of his brother and sister” and that the authorities had not questioned him about his own activities on those or any subsequent occasions.  The Authority also took into account the Applicant’s evidence to the delegate that he had never suffered any problems, interest or questioning arising from assistance he had given to the Red Cross in the closing stages of the war by ferrying wounded and injured persons to medical ships. 

3. The Authority was satisfied that the authorities had no further interest in the Applicant’s “personal LTTE profile” since his initial questioning in 2009 and found that there was no evidence “in the referred materials” to indicate that such interest had resumed since the Applicant left Sri Lanka. 

4. The Authority considered the Applicant’s claim that he was questioned by the authorities in 2009 after he provided financial assistance to his brother U to pay a bribe to help him escape from a detention camp.  The Authority expressed some doubt about this claim, but found that even if the Applicant’s version of events was true, his evidence was that he passed money directly to U and was not involved with any officials or other person during this process.  The Authority accepted that he was questioned by the authorities for this reason.  It was not satisfied that the Applicant’s role in giving U financial assistance was or would now be known to the authorities.  It found that even if this was known to the authorities, the Applicant had merely given money to his brother, had not been involved in bribing any officials and had had no contact with the persons who made the arrangements for U.  The Authority was satisfied that any interest the Sri Lankan authorities had in the Applicant in 2009 was of a very low level and given the lack of any follow-up since that single incident of questioning, the Authority was satisfied that the Applicant was of no ongoing or current interest to the authorities in relation to the disappearance of his brother U. 

5. In relation to the Applicant’s claims about his sister J, the Authority stated (at paragraphs 20 and 21):

   20. The applicant claims that in 2010 or 2011 his sister, J, arrived in the IDP camp from another camp.  At this time the applicant had permission to leave the camp and work as a fisherman and he also signed an assurance on behalf of J, that she would not leave the camp.  He told the delegate that one day he went out to work and when he came back, his sister was gone.  The delegate asked why she left and the applicant said that she and her husband owned some land that the LTTE had used to hide things on.  Although J was not involved in the LTTE, she and her husband were under suspicion because of this and that is why they fled.  The applicant then said that he would be punished because J had left.  The delegate asked the applicant why the authorities would want to punish him and he said that “you will have to ask them”, but that he had been called in for questioning about J and her husband.  He said that the authorities did not harm him during this questioning but he now fears that he will be put in jail for the rest of his life.  The delegate asked what happened after the questioning and the applicant said that the authorities took his identity documents and told him that he could not leave the camp anymore.  The applicant waited for a little while and then one night he escaped by travelling with the driver who delivered vegetables to the camp.

   21. I am prepared to accept that when J left the camp, the applicant was called in for questioning about her.  I take into account that this happened on one occasion only, that the applicant was not mistreated or harmed, and he was not subject to any reporting or monitoring within the camp.  I also accept that the authorities took his documents and told him that he could not leave and I am prepared to accept that he left the camp without permission in the manner he has claimed.  I take into account that this involved simply driving out of the camp and he did not have to bribe his way past guards or through any checkpoints, nor did he have to conceal himself.  Although he was in a IDP camp and not a detention centre, I do not accept that if the authorities had any particular interest in him arising from his sister’s departure, they did not keep him in some form of detention or under monitoring and I am satisfied that the manner in which he left the camp indicates that he was of no particular interest to the authorities at that time.

   (emphasis added)

6. The Authority observed that the Applicant claimed that after he travelled back to the Jaffna District he had stayed with his mother and other family members.  It took into account the fact that while the Applicant claimed he had moved around so the authorities could not catch him, at the same time he had (successfully) presented himself at government offices to obtain new identity documents and a driving permit and had not been subject to any interest by the authorities on those occasions or thereafter.  It also had regard to the fact that the Applicant had not claimed that any member of his family, apart from his mother, had ever been approached or questioned in relation to him.

7. The Authority considered the written statement from the Applicant’s mother in which she claimed that after the Applicant left the camp, armed forces and unidentified groups had come to the house to make inspections and inquiries.  It observed that the statement did not contain any further detail or information that indicated that these visits were directed at the Applicant personally (as opposed to general registration queries) and had regard to the fact that the Applicant had told the delegate that while his mother had been asked questions about R, she had not been asked questions about him.

8. The Authority considered it implausible that if the Applicant was a person of interest who had escaped from a camp, the authorities would not have identified him when he registered for new documents or would not have questioned or harassed other members of his family, searched for him or made other inquiries.  On the evidence it considered, the Authority did not accept that the authorities were searching for the Applicant or that he had avoided capture because he had lived at different addresses.  It found that the authorities were not searching for the Applicant after he left the IDP camp.  Based on its findings the Authority was also satisfied that the authorities had no ongoing or current interest in the Applicant “in relation to J leaving Sri Lanka” or his own departure from the IDP camp. 

9. The Authority continued (at paragraph 25):

   The applicant claims that his brother, R, left Sri Lanka while on bail and subject to criminal proceedings and that the applicant will be detained and jailed by the authorities for taking R to Australia with him.  However, the applicant has also claimed that he had nothing to do with arranging the travel to Australia and that this was all done by R, who asked the applicant to join him.  The applicant claims that since the brothers left Sri Lanka, his mother has had to attend the court on a regular basis in relation to R and is asked about R’s whereabouts, but she is not asked about the applicant.  There is no evidence in the referred materials that the authorities are aware that the applicant and R travelled together but even if they were, there is nothing in the materials before me that suggests that shared travel gives rise to any sort of adverse profile with the authorities.  Similarly, there is nothing in the materials or evidence to indicate that there is any suspicion that the applicant was involved in organising this travel.  While it is plausible that the applicant may be asked some questions about R should he return to Sri Lanka, there is nothing in the referred materials that indicates that the applicant would be suspected of any criminal offences or that he would have an adverse profile with the authorities.  I am satisfied that any such questioning would be general and if this was to occur, it would not be conduct that amounts to serious harm.

   (emphasis added)

10. The Authority acknowledged that at the end of the interview with the delegate the Applicant had also claimed that he was scared his wife would seek revenge on him because he had not gone to Jaffna with her during the ceasefire in 2002 to 2005.  However it found that the Applicant had not been able to give the delegate a reason she would seek revenge and had merely said that if he had problems with his wife he could not talk to the police.  The Authority found nothing else in the referred materials to indicate that the Applicant had faced or would now face a real chance of serious harm as a result of his relationship with his wife.

11. While the Authority was prepared to accept the claim that the Applicant was arrested in 2010 for riding a motorcycle without a helmet and held in custody for 14 days because he could not pay a fine, it was satisfied that this did not relate to any adverse security or criminal profile or from the Applicant’s association with his family members and was satisfied that he did not have any adverse security or criminal profile arising from this incident.

12. Overall, for the reasons given, the Authority was satisfied that the Applicant was not of any interest to the authorities at the time of his departure from Sri Lanka.  It also stated, without explanation, that it was “satisfied that [he] has not become a person of interest since he left Sri Lanka”.

13. The Authority accepted that as a Tamil male the Applicant had experienced mistreatment in the past and had witnessed or heard of his family suffering violence and mistreatment and that he had a subjective fear of arrest, detention, disappearance and mistreatment at the hands of the Sri Lankan authorities.  However it also took into account its finding that he was not of interest to the authorities at the time of his departure as well as country information that indicated that the situation in Sri Lanka had improved since the Applicant left in 2012. 

14. The Authority discussed cited country information in relation to the situation in Sri Lanka, particularly for persons of Tamil descent or ethnicity.  It found that the reports did not indicate that Tamil males now faced a real chance of serious harm in Sri Lanka on the basis of age, ethnicity or geographic origin/location alone.  It referred, with apparent approval, to the 2017 UK Home Office Report assessment that being of Tamil ethnicity would not in itself warrant international protection and nor would being a person who had past membership or connection to the LTTE unless such a person had or was perceived to have a significant role in relation to post-conflict Tamil separatism or appeared on a “stop list” at the airport (as a person against who there was an extant court order or arrest warrant).  It had regard to the fact that there were no claims and no evidence that the Applicant had engaged in any activities that may bring him to the adverse attention of Sri Lankan authorities for any reason and that he was not subject to any court orders or arrest warrants and would not appear on a “stop” list at the airport.  

15. The Authority also found that none of the referred information before it assessed that Tamil Hindus faced a real chance of serious harm on the basis of religion (although it acknowledged that the 2017 DFAT Report and 2017 UK Home Office Report noted harassment of some persons including those linked to the LTTE).  It took into account that the Applicant had not made specific claims or referred to any information that suggested that Tamil Hindus faced a real chance of serious harm (on the basis of religion), that he and his family had suffered harassment or harm on the basis of being Hindus or that he intended to engage in any actions that would constitute proselytising or conversion. 

16. The Authority referred to the fact that it had found that the Applicant had no adverse profile with the authorities “including arising from his family associations”, and that there were no claims and “no evidence in the referred materials that he has or intends to have any involvement in any activity that may place him at risk of arrest or detention”.  It also referred to its findings about Tamils before concluding that, having regard to its findings and the evidence, the Applicant did not face a real chance of serious harm on the basis of “any real or imputed association with the LTTE; because of his family associations, his assistance to the Red Cross or because of his wife; or for being a Tamil, a Tamil from the Northern Province, having been of combatant age during the conflict or for being a Hindu.” 

17. The Authority went on to consider whether the Applicant faced a real chance of serious harm arising from his illegal departure from Sri Lanka and/or as a returned asylum seeker.  It found (at paragraphs 42 and 43):

    42.    On the basis of the evidence before me, I accept that the applicant may be questioned on return as part of the airport screening process.  I have considered the screening process above and I am satisfied that this process is the same for all persons returning to Sri Lanka- whether voluntary or by escort, and it is not impacted by ethnicity.  The country information before me indicates that returned asylum seekers and those with an otherwise low profile are not generally at risk of harm on return to Sri Lanka.

    43.    I take into account information in the referred materials that alleges that the Sri Lankan government is taking a hard line on former LTTE cadre and persons who may be seeking/supporting a LTTE resurgence.  Some returnees suspected of such activities have been detained, questioned and in some cases, harmed by the authorities.  However, I am satisfied that the applicant does not have a security or criminal profile and would not face a real chance of being detained, questioned or harmed on that basis.  I have also found that while he may be questioned in relation to his brother R, who departed Sri Lanka whilst on bail, there is no evidence in the referred materials that indicates the authorities have any interest in the applicant because of R’s departure or that there is any suspicion that the applicant was involved in organising R’s departure.  I find that while the applicant may be questioned in relation to R, there is not a real chance that he would be harmed or mistreated because he is a returning asylum seeker.

    (footnotes omitted)

18. In light of country information, the Authority accepted that the Applicant had departed Sri Lanka illegally, that there was a possibility he would be assessed by the authorities as having sought asylum in Australia and that there was a real chance he would be charged and fined under the Immigration and Emigration Act (the I&E Act) as a person who had departed Sri Lanka illegally. However, in the absence of an adverse profile or current file, the Authority was satisfied that the Applicant would not be treated differently to any other returnee. It found it highly likely that if the Applicant were to plead not guilty he would be bailed on personal surety and was satisfied there was no prospect of him being given a custodial sentence. The Authority accepted that the Applicant may be fined, but on his evidence did not accept that this would cause him any economic hardship or otherwise threaten his capacity to subsist. It found that the prospect of detention for more than a few days on remand (depending on when the Applicant arrived in Sri Lanka) was remote, but acknowledged that any such detention on remand may occur in a Sri Lankan prison. However it found (at paragraph 48):

    …I have considered whether such a period of detention would constitute serious harm.  Under Australian law, the question of whether a loss of liberty amounts to serious harm is a qualitative judgment, involving the assessment of matters of fact and degree.  This includes an evaluation of the nature and gravity of that loss of liberty.  The country information before me indicates that any such detention would only continue until the applicant was given an opportunity to appear before a magistrate, and would likely be very brief.  I am not satisfied on the evidence before me that the applicant has any vulnerabilities or health concerns that preclude the possibility of a brief detention.  In all the circumstances, I find that any questioning and detention the applicant may experience would be relatively brief and would not constitute serious harm as non-exhaustively defined in the Act.

    (footnotes omitted)

19. The Authority was also satisfied that the provisions and penalties in the I&E Act were laws of general application and that country information did not suggest that the I&E Act was discriminatory in its terms or that it was applied in a discriminatory manner or selectively enforced. The Authority found that to the extent the Applicant may be fined, detained or questioned under the I&E Act it was satisfied that this would not constitute serious harm and that it would be as a result of the exercise of laws of general application that applied to all Sri Lankans equally.

20. The Authority concluded that “overall” it was not satisfied that the Applicant would face a real chance of serious harm arising from any imputed association with the LTTE; his family associations; his assistance to the Red Cross; his separation from his wife; being a Tamil or a Tamil from the Northern Province or having been of combatant age during the conflict; for being a Hindu; or for being a returned asylum-seeker who departed Sri Lanka illegally.  It found that the Applicant did not meet the requirements of the definition of “refugee” in s.5H(1) of the Act.

21. The Authority considered the complementary protection criterion in light of its findings that the Applicant did not face a real chance of serious harm on the specified bases considered in relation to the Refugees Convention criterion.  It concluded that, having regard to its earlier findings and the fact that real chance and real risk had been found in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 to equate to the same threshold the Applicant did not face a real risk of significant harm for any of those reasons.

1. The Authority considered the fact that the Applicant may be identified as a returned asylum seeker, but was not satisfied that he was currently of any interest to the authorities, “including as a result of his siblings’ departures from Sri Lanka”. In light of the findings and relevant country information the Authority was not satisfied that the Applicant faced a real risk of any harm for this reason for the purpose of s.36(2)(aa) of the Act.

2. The Authority accepted that the Applicant would be identified on arrival at the airport in Sri Lanka as having departed illegally, that he “may be questioned in relation to his brother R”, and that he would likely be subject to prosecution on account of breaching the I&E Act. The Authority also accepted that the Applicant may be questioned and detained at the airport for up to 24 hours, but in light of country information found there was no real risk of significant harm during such investigation, questioning or being held in airport detention.

3. The Authority considered the conditions the Applicant may face if held on remand in prison while waiting to come before a magistrate. It found no evidence that any prisoner undergoing a short period of detention awaiting prosecution under the I&E Act had been subject to the death penalty or otherwise arbitrarily deprived of life or tortured. It also found no indication that the authorities, or others, through any act or omission, intentionally inflicted pain or suffering such as to meet the Migration Act definition of cruel or inhuman treatment or punishment or that they had any intention to cause extreme humiliation. The Authority was not satisfied that questioning or the imposition of a fine (separately or in combination with a brief period of detention) constituted significant harm as defined under the Act.

4. The Authority concluded that it was not satisfied that the Applicant would face a real risk of significant harm arising from any bail or fine or during any questioning or time in detention or prison while awaiting a court hearing. 

5. In summary, having regard to the Applicant’s circumstances and profile, the Authority did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka there was a real risk that he would suffer significant harm.

6. The Authority affirmed the decision not to grant the Applicant a protection visa.

Section 473DD of the Migration Act

1. The Applicant sought review of the Authority’s decision by application filed on 25 August 2017.  He now relies on an amended application filed on 25 June 2018.

2. There is one ground in the amended application.  It is as follows:

   The Second Respondent (the Authority) erred and thereby failed to exercise its jurisdiction under s. 473DB of the Migration Act to review the decision (to refuse the Applicant a protection visa) of the First Respondent’s delegate (the Delegate) on 22 June 2017, by declining to consider “new information” presented to it by the Applicant’s migration agent on 13 July 2017 (the new information) in accordance with s. 473DD of the Migration Act.

   Particulars

   a. The Authority failed to apply subsections (a) and (b) of s. 473DD of the Migration Act cumulatively.

   b. The Authority failed to apply the correct test under s. 473DD(a) of the Migration Act to determine whether there were exceptional circumstances to justify considering the new information.

   c.  The Authority failed to consider whether, in all the circumstances, there were exceptional circumstances to justify considering the new information.

   d. The Authority conflated the test applicable under s. 473DD(a) of the Migration Act with that applicable under s. 473DD(b)(i).

   e. The Authority failed to consider whether or not the new information was credible personal information which was not previously known and, had it been known, may have affected the consideration of the Applicant’s claims for the purposes of s. 473DD(b)(ii) of the Migration Act.

   f. Further and in the alternative, the Authority applied an incorrect test to determine whether or not the new information was “personal information” for the purposes of 473DD(b)((ii) of the Migration Act.

   g.  Further and in the alternative, the Authority erred by finding that the new information was not “personal information” because it did not refer to the Applicant’s personal circumstances.

   h. Further and in the alternative, the Authority failed to apply the definition of “personal information” as specified under s. 5(1) of the Migration Act.

   i. Further and in the alternative, the Authority applied an incorrect test to determine whether or not the information was not previously known for the purposes of s. 473DD(b)(ii) of the Migration Act.

   j.   Further and in the alternative, the Authority erred by finding that the new information was previously known, because it was known by the Applicant, when the Authority ought to have considered whether or not the new information was previously known to the First Respondent or the Delegate.

   (emphasis in original)

3. The ground of review takes issue with the Authority’s consideration of new information before it in paragraphs 6-7 of its decision, as set out at [21] above. Counsel for the Applicant confirmed in oral submissions that no issue was taken in relation to the Authority’s conclusion (at paragraph 8) that it was not satisfied that there were exceptional circumstances to justify considering the 2016 UK Home Office Report.

4. The Applicant submitted that the Authority erred in its approach to the application of s.473DD of the Act. Among other things it was submitted that the Authority confused or conflated the test to be applied under s.473DD(a) with that applicable under s.473DD(b)(i), gave no independent consideration to whether, in all the circumstances there were “exceptional circumstances” for the purposes of s.473DD(a) and failed to apply ss.473DD(a) and (b) cumulatively. In particular it was submitted that the Authority failed to consider whether in all the circumstances there were exceptional circumstances justifying considering the new information, but took the absence of an explanation for the purposes of s.473DD(b)(i) to equate to the absence of exceptional circumstances for the purposes of s.473DD(a). The Authority was also said to have erred insofar as it considered whether the new information was “credible personal information” as well as in its approach to the submission.

5. As indicated, the submission to the Authority of 13 July 2017 asserted that three of the Applicant’s siblings (S, R and J) had been found to be refugees in Australia and asked the Authority to take this into account.  No further information was provided about S.  However the submission claimed that R and J (and her family) had each “recently” been found to be refugees in Australia.  The submission attached statements from each of R and J which were described as their protection claims.  These statements were not before the delegate.  The Authority’s consideration of these three “items” (the siblings’ refugee status, J’s statement and R’s statement) under s.473DD of the Act is the subject of the ground of review.

6. The submission to the Authority also enclosed a copy of the 2017 DFAT Report on Sri Lanka, which was in fact before the delegate and contained in the referred materials and was referred to in the Authority’s reasons (although not in relation to DFAT’s discussion of the 2012 UNHCR Guidelines on Sri Lanka in relation to risk profiles). 

7. Relevantly, the DFAT Report referred (at 3.32) to the fact that the most recent (December 2012) UNHCR Eligibility Guidelines for Sri Lanka noted that a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection and that the nature of these links could vary, but may include various listed categories of persons including “former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE” and “persons with family links or who are dependent on or otherwise closely related to persons with the above profiles”.  DFAT acknowledged (at 3.33) that accurately identifying people according to these categories “can be difficult”.

8. It is clear that the DFAT reference to these UNHCR guidelines formed the basis for the submission from the Applicant’s representative to the Authority set out at [19] above, including the contention that having regard to what were said to be the “material facts” about the Applicant’s siblings and the UNHCR Report the Authority should consider that the Applicant fitted the UNHCR profile as “closely related to persons at risk” and that he was “therefore at risk of persecution in Sri Lanka” and that “the applicant’s siblings suspected profile is relevant matters and is material to the applicant’s IAA review and to his fear of serious harm in Sri Lanka.”

9. Express reference was made in the submission to the Applicant’s “family links with the siblings who have been found to be a refugee in Australia”.  Reference was also made to the protection claims of R and J in support of the contention that the Applicant had a real chance of serious harm from the Sri Lankan security forces by reason of the “combined factors of his Tamil ethnicity (a Tamil from the North), failed (Tamil) asylum seeker and his and his siblings’ real/imputed political opinion” (as well as his illegal departure from Sri Lanka). 

10. The submission concluded by suggesting that an interview of the Applicant and his siblings would be appropriate if issues arose “after this submission with the reliable country information which is relevant to his protection claims”.

11. The Applicant submitted that, in essence, the submission to the Authority was that he fitted a UNHCR risk profile because of his close relationship with J and R and that he was therefore at risk of harm and hence that his siblings’ suspected profiles (and their real or imputed political opinions) and refugee status were material to his claims.

12. The Applicant contended that the written statements of J and R detailed their own interactions with the Sri Lankan authorities and that it could be inferred that such statements had apparently been judged by those assessing their respective claims for protection as justifying the grant of refugee status. 

13. It was pointed out that R made detailed claims in his statement of 16 September 2016 as to the basis for the CID’s belief that he was involved in the LTTE, including their belief that he had targeted and intended to harm the Sri Lankan Secretary of Defence who had been booked on the same flight to Italy as R in 2009.  He also made detailed claims about his past detention, torture and imprisonment on suspicion of involvement in the LTTE and his release after legal proceedings in the Sri Lankan Supreme and High Courts.  In addition, it was pointed out that R made claims about his attempts to leave Sri Lanka, his deportation from Turkey, the fact that he had then been charged with departing Sri Lanka illegally, imprisoned and while released on bail had travelled to Australia.  While R did not refer to the Applicant by name in his statement, he described setting up an ice cream business with his brother’s help after his release from prison in 2011. 

14. The Applicant submitted that these claims were relevant to his claims based on the UNHCR risk profiles and amounted to significant information concerning his brother R and the asserted basis for R’s claimed fear of harm as a perceived LTTE supporter.

15. The Applicant also pointed out that in J’s statement of 18 March 2012, she had elaborated on the basis on which she claimed she had an imputed political opinion, in that the CID believed she and her husband were members of the LTTE.  She made claims about her past employment in an LTTE library and her husband’s employment in a garage.  She claimed that families who rented a neighbouring home she and her husband owned were from the LTTE and that they had buried weapons in the garden.  She claimed that she and her family were first questioned by the CID in July 2009, that after about 3 months they searched the houses and discovered the weapons and that thereafter her husband was summoned by the CID for questioning and beaten up.  She described subsequent frequent questioning, threats and mistreatment by the CID said to be in an attempt to make them say they were LTTE members.  She referred to the disappearance of a younger brother (apparently U) in August 2009 and described her escape from the IDP camp in April 2011 after the intensity of questioning by the CID and warnings had increased. 

16. J did not refer to the Applicant in her statement.  She did mention that since she left Sri Lanka the CID had become more suspicious of a younger brother who lived with their mother.  She claimed that he had been called in for questioning several times and required to report every day.

17. The Applicant submitted that the information in J’s statement was relevant to his claims in that it included claims by J that there was a perception on the part of the CID that she and her family were connected to the LTTE in a significant way.

18. Counsel for the Applicant pointed out that J and R had figured in the Applicant’s claims as they were originally put, albeit not in quite the same way as was put in the submission to the Authority.  Notably, the Applicant’s claims about J referred to her perceived support for the LTTE because her tenants had such an association and had buried weapons on a property J and her husband owned.

19. While neither statement made any reference to the Applicant’s interactions with the Sri Lankan authorities and did not provide any information about his role in relation to J’s escape from the IDP camp or R’s escape from Sri Lanka, it was submitted that these statements and the grant of refugee status to J and R demonstrated that both J and R claimed to be suspected by the Sri Lankan authorities of having had significant LTTE involvement and that it had been accepted that they were at risk of harm as a result.  It was submitted that the relevance of such information was identified in the submission to the Authority on the basis that the Applicant feared harm because of his family associations on the basis of the cited UNHCR Guidelines referring to the risk profile of family members and those with a close association with those seen as LTTE supporters.  Consistent with this asserted relevance, the submission had foreshadowed that the Authority may invite the Applicant and his siblings to an interview to elaborate on this new information. 

20. It was also acknowledged that while the submission to the Authority of 13 July 2017 claimed that R had “recently” obtained refugee status in Australia, it made no mention of the fact that (as attested to in the affidavit of Heidi Nash-Smith of 20 June 2018) R was not granted a visa until 11 July 2017, which was after the delegate’s decision of 22 June 2017 and shortly before the date of the submission.  That information could not have been before the delegate.  J was granted a protection visa on or about 16 March 2017, which was before the delegate’s decision.  The submission to the Authority did not refer to the date of grant of J’s visa or explain why that information was not provided to the delegate.  The Applicant relied on the dates on which his siblings were granted refugee status (in particular R) in support of the proposition that there would be utility in remittal if jurisdictional error was established.

21. Counsel for the Applicant referred to the fact that in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 the Federal Court had discussed (at [35]-[49]) the distinction between new information and a submission on the basis of new information. The Court made the point that while the restriction in s.473DD of the Act applied to new information, it did not apply to a submission. It was submitted that, consistent with the approach in CLV16 at [38] and having regard to the Authority’s Practice Direction and information sheet, there was no restriction on the Authority’s ability to consider the representative’s submission (including as to why new information should be considered as well as in relation to the existing pool of factual information before the delegate) and that it ought to have done so.

22. The Applicant submitted that in this case the submission and the reference to the 2017 DFAT Report (which was in the referred materials) had explained that the relevance and potential impact on the Applicant’s claims of the new information was that he was a person who was closely related to people who were perceived by the Sri Lankan authorities to be significantly connected with the LTTE.  It was submitted that it was apparent from J and R’s protection claims that their perceived association with the LTTE was the basis for their (successful) protection visa applications.  These were matters which, it was submitted, the Authority should have taken into account in considering whether there were exceptional circumstances justifying the consideration of the new information consisting of J and R’s statements and the information about their refugee status.

23. In relation to the concept “exceptional circumstances” the Applicant referred to the fact that in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 White J held that the requirements of s.473DD(a) and (b) were cumulative and that while the test with respect to “exceptional circumstances” might be informed by considerations relevant under s.473DD(b), it was not limited by reference to that provision. His Honour expressed the view (at [39]-[43]), that the expression “exceptional circumstances” was to be understood as meaning circumstances that were “unusual” or “out of the ordinary”, although not necessarily “unique” or “unprecedented” or “rare” and that consideration of whether or not there were exceptional circumstances for the purposes of s.473DD(a) required consideration of “all” of the circumstances and not just those relevant for the purposes of s.473DD(b)(i) or (ii).

24. The Applicant also referred to the observations of the Full Court of the Federal Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [102]-[106]. The Full Court agreed with the approach taken by White J in BVZ16, including the observation that it was necessary for the Authority to consider “all the relevant circumstances” in determining whether there were exceptional circumstances within s.473DD(a) of the Act.

25. The Applicant submitted that in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [29]-[34] the High Court had confirmed that the approach taken in BVZ16 and BBS16 was the correct one. 

26. However it was contended that when the Authority’s reasons in this matter were considered, it was apparent that its finding that there were not exceptional circumstances that would justify consideration of the statements of R and J for the purposes of s.473DD(a) of the Act was unduly narrow and limited. It was said to have been based upon the fact that the statements were both dated before the interview with the delegate and there was no explanation as to why those statements had not been provided to the delegate. The Applicant acknowledged that the Authority had also “noted” that both statements related to the deponents’ own refugee applications and did not refer to the Applicant or his personal circumstances.

27. In relation to the refugee status of his siblings, written submissions for the Applicant suggested that it appeared that the Authority took into consideration the fact that no prior claim had been made by the Applicant on the basis of his siblings’ refugee status and no previous information had been provided about the siblings’ refugee claims or status in determining whether there were exceptional circumstances.  However in oral submissions it was clarified that it was submitted that the only reason given by the Authority for why there were not exceptional circumstances was the Authority’s lack of satisfaction that the refugee status information could not have been provided to the delegate.  It was suggested that this view appeared to be based on the absence of an explanation for not having provided this information to the Minister before the delegate’s decision was made.  

1. The Applicant submitted that the Authority’s approach to the application of s.473DD to this new information was clearly misconceived and wrong for the same reasons outlined by White J in BVZ16 at [38]-[68] (and also see Plaintiff M174/2016 at [30]; BBS16 at [102]-[116]; and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148 at [43]-[49]).

2. It was contended that to the extent the Authority had regard only to whether this information was not and could not have been provided to the Minister, it had adopted the same approach to s.473DD(a) as had been considered in BVZ16 and BBS16 in that it had conflated and confused the test to be applied under s.473DD(a) with that applicable under s.473DD(b)(i) and had given no independent consideration to whether, in all the circumstances, there were exceptional circumstances for the purposes of s.473DD(a). In this respect the Authority was said to have taken the absence of an explanation for the purposes of s.473DD(b)(i) to equate to the absence of exceptional circumstances for the purposes of s.473DD(a) of the Act. It was submitted that the Authority had also failed to apply s.473DD(a) and s.473DD(b) cumulatively.

3. In any event, the Applicant submitted that the Authority had failed to consider whether in “all the circumstances” (including having regard to the submission), there were circumstances that were “unusual” or “out of the ordinary”, although not necessarily “unique” or “unprecedented” or “rare”, such as to constitute exceptional circumstances to justify considering any of the new information.

4. It was submitted that “for the most part” the Authority had failed to consider whether the new information was “credible personal information” within s.473DD(b)(ii), and that to the extent that the Authority did consider whether the statements were personal information, it appeared to have adopted the wrong test, in that the concept of “personal information” was not limited to information about the Applicant himself.

5. The Applicant submitted that having regard to the nature of the submission put forward by his representative to the effect that country information indicated that “close relatives” of those suspected of being LTTE supporters were also at risk, the information about the circumstances of the Applicant’s siblings and their risk profiles was information relevant to the Authority’s consideration of the Applicant’s risk profile and, as such, was information about the Applicant’s own personal circumstances which had to be considered by the Authority in determining whether there were exceptional circumstances within s.473DD(a) of the Act.

6. It was also suggested that the Authority had assumed, because of the date of each of J and R’s statements, that the information in them was known to the Applicant prior to the delegate’s decision and on that basis appeared to have determined that s.473DD(b)(ii) had not been met because no explanation had been provided as to the Applicant’s failure to provide the information to the delegate. However it was submitted that the Authority had given no consideration to whether or not that information was known to the Minister or the delegate (as was said to be required under s.473DD(b)(ii) of the Act).

7. Finally, the Applicant submitted that insofar as the Authority refused to take into consideration the refugee status of his siblings because no claims in that respect had been made to the delegate, the Authority had ignored the fact that it was involved in a hearing de novo and was not limited to a reconsideration of the submissions made to the delegate. The Applicant submitted that the Authority’s power to receive new information under s.473DD was not so limited and was to be exercised according to its terms and having regard to its statutory purpose.

8. The First Respondent suggested that the Applicant appeared in broad terms to be asserting that the Authority had erred in respect of s.473DD(a) and in its understanding of exceptional circumstances as considered by the Full Court in BBS16; that it had erred in respect of s.473DD(b)(i) in “conflating the test” with s.473DD(a); and also in respect of s.473DD(b)(ii), in particular in failing to understand the meaning of “personal information” and failing to apply the correct test as to whether or not information was previously known.

9. The First Respondent acknowledged that the relevant authorities in relation to s.473DD(a) and (b)(i) were those identified by the Applicant, but submitted that the Authority had not fallen into the asserted error in respect of s.473DD(a) and the meaning of “exceptional circumstances” and that it had not conflated the tests in s.473DD(b)(i) and s.473DD(a) of the Act.

10. It was pointed out that in BVZ16 White J had found that the Authority had erred by treating as “decisive” of the question of the existence of “exceptional circumstances” its rejection of the appellant’s explanation for why he had not raised the new information earlier and that his Honour had concluded that in doing so the Authority had applied an unduly narrow interpretation of the term “exceptional circumstances” (see BVZ16 at [46]).

11. However the basis on which White J found error in the Authority’s approach to the construction of s.473DD(a) was said to be that the Authority had considered it had to take into account only the absence of any explanation by the appellant for the delay in advancing the new claim.  It was submitted that the proposition to be taken from BVZ16 was that (as stated by his Honour at [9]):

    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.

    (emphasis added in First Respondent’s submissions)

12. The First Respondent submitted that it was not apparent that in BVZ16 White J was suggesting that s.473DD required that the Authority consider and make findings in respect of both paragraphs (a) and (b), as this would be contrary to his Honour’s observations at [9] and also at odds with subsequent Federal Court authority (see BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26]).

13. The First Respondent also submitted that while in BBS16 the Full Court of the Federal Court had generally endorsed the approach of White J in BVZ16 in relation to s.473DD(a) of the Act, in that case the Authority had made a finding that because the appellant had not provided any explanation as to why new information had not been given to the delegate it was not satisfied that there were exceptional circumstances, when in fact the appellant had provided an explanation as to why the new information had not been given to the delegate.

14. It was submitted that care had to be taken in applying the Federal Court’s decisions in BVZ16 and BBS16 to the facts of a particular case.  The question in this case was said to be whether the Authority had applied an impermissibly narrow construction to the meaning of “exceptional circumstances”.  It was submitted that in the particular circumstances of this case and having regard to the Authority’s findings, it had not made such an error. 

15. It was also submitted that it was not apparent that the High Court in Plaintiff M174/2016 had “confirmed” the approach taken in BVZ16 and BBS16, that the High Court did not mention BVZ16 in its reasons and that BBS16 was referred to with approval only once, in relation to the meaning of “personal information” at [106] (see Plaintiff M174/2016 at [33]).

16. In relation to the statements of J and R, the First Respondent submitted that it was apparent from the reasons of the Authority that in assessing s.473DD(a) it had taken into account the fact that the statements were dated before the delegate’s decision and the fact that there was no explanation from the Applicant as to why these statements could not have been provided at the interview or in the three months between the interview and the delegate’s decision. It was submitted that it should fairly be inferred from the fact that the Authority also noted that the statements related to the siblings’ own refugee claims and did not refer to the Applicant or his personal circumstances, that the Authority was also not satisfied that the information, had it been known to the delegate, would have affected the consideration of the Applicant’s claims. The First Respondent submitted that in making these findings the Authority had taken into account the factors in s.473DD(b)(i) and (ii) of the Act. It was acknowledged that the Authority had not expressed any conclusions as to whether these statements were “personal information” or indeed “credible personal information”, but submitted that it did not need to do so in circumstances where it had concluded that it was not satisfied that there were exceptional circumstances to justify considering the statements within s.473DD(a). There was said to be no error apparent in the Authority’s approach in this respect.

17. The First Respondent pointed out that the Authority had assessed separately the new information consisting of the claims by the Applicant’s representative that his siblings had refugee status and (it was submitted) the reasons why they were granted that status.  It was observed that the Applicant had not previously attempted to provide any other information about his siblings’ refugee claims or status, although he had informed the delegate that his siblings were in Australia.  The Authority was said to have taken this into account.  It also noted that the Applicant had not made any previous claims arising from his siblings’ refugee status.

18. It was submitted that the Applicant could not point to any submission to the Authority explaining why he had not advanced this claim earlier or as to why this information was credible personal information that, had it been known, may have affected consideration of his claims. 

19. The First Respondent observed that the Applicant had been requested to provide an explanation to the Authority (by reference to the Authority’s Practice Direction) and submitted that while there was no requirement for an applicant to give such an explanation to accompany the provision of new information to the Authority, the absence of such an explanation was a relevant factor for the Authority in determining whether exceptional circumstances existed to justify consideration of the new information (see ABC17 v Minister for Immigration and Border Protection [2018] FCA 254 at [8]-[10] and [17] per Allsop CJ). Indeed it was submitted that this factor alone distinguished this matter from the circumstances considered in cases such as BVZ16 and BBS16. 

20. On this basis it was contended that the Authority made no error in relation to its understanding of “exceptional circumstances” under s.473DD(a).

21. It was also submitted that the Authority had not conflated the test applicable to s.473DD(a) with that applicable to s.473DD(b)(i), but rather that it had taken into account the matters in s.473DD(b)(i) to the extent that such information was available to it.

22. In relation to the asserted errors in respect of s.473DD(b)(ii) and the “further and in the alternative” contentions in the ground of review, the First Respondent submitted that while the Authority had not made any express findings regarding whether any of the new information was “personal information” or “credible personal information”, at paragraph 6 of its reasons the Authority appeared to have directed itself to the question of whether the new information, if it were known, may have affected the consideration of the Applicant’s claims, and that this was sufficient to dispose of any suggestion that the Authority had not turned its mind to s.473DD(b)(ii) (see Plaintiff M174/2016 at [34]).

23. Insofar as the Applicant’s claim that the Authority had erred in considering whether or not the “information was not previously known” amounted to a submission that the Authority had failed to consider whether the statements of J and R were known to Minister or to the delegate, the First Respondent submitted that on a fair reading of paragraph 6 of the Authority’s reasons it was not apparent that the Authority had misunderstood the test.  It was submitted that there was no evidence that the delegate in the present matter was aware of the statements of J and R and that the Authority had directed itself to the question of whether, had the delegate had the statements, it may have affected the consideration of the Applicant’s claims.  The First Respondent submitted that the Authority had focused on this question in finding that “I also note that both statements were made by the deponents in relation to their own refugee applications and the statements do not refer to the applicant or his personal circumstances”. 

24. The First Respondent submitted that the Authority made no error in respect of its understanding of the tests in s.473DD(b)(ii) or otherwise in its application of s.473DD of the Act.

25. While judgment was reserved, counsel for the Applicant drew the court’s attention to the decisions of the Full Court of the Federal Court in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111. Neither party identified any particular issues arising therefrom.

Consideration

1. The ground of review relates to the Authority’s consideration of s.437DD of the Act.  In one sense, this section is an exception to the s.473DB prohibition on the Authority considering new information when reviewing a fast-track reviewable decision under Part 7AA of the Act (and see the summary of the review process in AQU17 at [1]), but it is expressed as a restriction on when the Authority can consider new information (see Plaintiff M174/2016 at [28]) as follows:

   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.

2. “Personal information” is defined in s.5(1) of the Act by reference to the definition of that term in s.6 of the Privacy Act 1988 (Cth). It means:

   … information or an opinion about an identified individual, or an individual who is reasonably identifiable:

   (a) whether the information or opinion is true or not; and

   (b) whether the information or opinion is recorded in a material form or not. 

3. Under s.473DD the requirements of both s.473DD(a) and one of the limbs in s.473DD(b) must be met before the Authority can consider new information (see BVZ16 at [9] and BBS16 at [102]). Nonetheless, these requirements may overlap. Matters directly relevant to the requirements of s.473DD(b)(i) or (ii) may be relevant to a consideration of whether there are exceptional circumstances within s.473DD(a) (and see the remarks in CHF16 at [46]).

4. As Gageler, Keane and Nettle JJ stated in Plaintiff M174/2016 at [29]:

   The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

5. It is not necessary to consider the existence or extent of the Authority’s obligation to give reasons for not considering new information.  In this case the Authority gave such reasons.  I have borne in mind that the determination of what constitutes “exceptional circumstances” is an evaluative exercise for the Authority and that each case is to be considered on its own facts.

6. The Full Court of the Federal Court summarised the law in this respect in AQU17 at [13]-[14] as follows:

   13.  As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

   Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

   The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

   14.  As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

7. As pointed out in AQU17 at [14], s.473DD(b) does not codify or limit what constitutes exceptional circumstances, albeit that in most cases matters relevant to the s.473DD(b) requirements may be part of all the circumstances to be taken into account by the Authority in determining whether it is satisfied that there are exceptional circumstances within s.473DD(a). If the Authority finds that s.473DD(a) is not met, it is not necessary for it to also make findings as to whether one of the limbs in s.473DD(b) is met (AQU17 at [16]).

1. To the extent that the ground of review asserted error in relation to the test in s.473DD(b)(ii), the Authority made no finding as to whether s.473DD(b) was satisfied because it was not satisfied as to the requirement in s.473DD(a). Nonetheless, as discussed below, the Authority’s consideration of factors in s.473DD(b) in the context of considering s.473DD(a) may, and in this case does, reveal error in its approach to whether there were “exceptional circumstances” to justify considering the new information.

2. However, insofar as the ground of review may be seen as suggesting that BVZ16 supports the proposition that the Authority was under an obligation to make findings in respect of both s.473DD(a) and s.473DD(b), that is not the case and is inconsistent with later Federal Court authority (in particular see BRA16 at [26]).

3. It is implicit in the Authority’s characterisation of the statements of J and R and the information about the siblings’ refugee status as “new information” that it considered that this information was not before the delegate and also that it “may be relevant” (emphasised added) (see s.473DC(b) and Plaintiff M174/2016 at [24]). Contrary to the Applicant’s contention, it is not the case that the Authority can be taken to have found that the information “was” relevant to the Applicant’s claims for protection. 

4. As explained in submissions, the essence of the ground of review is a contention that the Authority failed to apply the correct test in determining whether there were exceptional circumstances to justify considering the new information.  The Authority was said to have erred in the same manner as that considered in BVZ16 and BBS16, to have taken an unduly narrow approach to the meaning of “exceptional circumstances” and to have failed to consider all relevant circumstances.

5. In BVZ16 White J found that the Authority had adopted an inappropriately narrow understanding of the scope of the term “exceptional circumstances” in s.473DD(a) because it had confined its consideration of whether there were exceptional circumstances to an evaluation of the appellant’s explanation for not having disclosed the information earlier. However his Honour also stated more generally at [9]:

   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.

6. BVZ16 illustrates that if the Authority takes into account only the absence of an explanation by an applicant for delay in advancing new information in concluding that there are not exceptional circumstances within s.473DD(a) it may, where there is evidence of other relevant circumstances, fall into error.

7. While White J stated in BVZ16 that bearing in mind the scheme of Part 7AA of the Act, “exceptional circumstances” in s.473DD(a) were those which were “out of the ordinary course” and which justified the new information being considered even though it had not been provided to the Minister at the time of the delegate’s decision (at [42]-[43]), his Honour was also of the view (at [41]) that “generally” consideration of whether exceptional circumstances existed would require consideration of all relevant circumstances “because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.”

8. The Applicant also relied on BBS16 in which the Full Court of the Federal Court rejected the contention that in BVZ16 White J had misconstrued or misapplied the term “exceptional circumstances” in s.473DD(a) of the Act. The Court endorsed the view of White J that the Authority in BVZ16 had adopted an inappropriately narrow understanding of “exceptional circumstances” and agreed that the requirements of s.473DD(a) and (b) were 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” (at [102]).  Importantly, their Honours continued at [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.

9. It is the case that the Full Court in BBS16 identified the central issue in that particular case as whether, on a proper and fair reading, the Authority had reasoned that there were no exceptional circumstances “simply because the [applicant] had not explained his delay in providing the information” (at [74]) in circumstances where an explanation had been provided, but, relevantly, the Full Court also stated at [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”...

10. Their Honours also agreed (at [105]) that s.473DD(b)(i) required “a factual inquiry as to whether or not the new information could have been presented to the Minister”, whereas s.473DD(b)(ii) required “an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally.”

11. Further, the Court stated (at [106]) that in the context of s.473DD(b)(ii) the phrase “which was not previously known” applied to new information “which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims for protection” (see BBS16 at [106]).

12. I also note that in a footnote to paragraph [30] the plurality in Plaintiff M174/2016 referred to BVZ16 in the context of considering the concept of “exceptional circumstances” within s.473DD(a). The plurality in Plaintiff M174/2016 also discussed the requirements of s.473DD(b)(ii) (finding it unnecessary to address s.473DD(b)(i) in the circumstances of that case) concluding at [34] that:

    … all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.

    (footnotes omitted)

13. In CQW17 the authorities in relation to the expression “exceptional circumstances” in s.473DD(a) were summarised at [51] to reflect a requirement that the Authority must consider “all relevant circumstances” as follows:

    The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration...

    (emphasis added)

14. In this case the Authority considered separately the statements of J and R and the refugee status information.  Its consideration of whether it was satisfied there were exceptional circumstances to justify considering the statements provided by J and R appears in paragraph 6 of its reasons as follows:

    The submission contains assertions that some of the applicant’s siblings have been found to be Convention refugees and asks the IAA to take this into account.  It then attaches statements provided by the applicant’s brother, “R”, and his sister, “J”.  These statements were not before the delegate and I am satisfied that they are new information.  Both statements are dated before the interview with the delegate on 23 March 2017 (the interview) and the applicant has not explained why they were not or could not have been provided at the interview or in the three months between the interview and the decision.  I also note that both statements were made by the deponents in relation to their own refugee applications and the statements do not refer to the applicant or his personal circumstances.  I am not satisfied that there are exceptional circumstances to justify considering the statements.

15. Although expressed as a “note”, I am satisfied that in addition to the absence of an explanation for why the statements were not or could not have been provided to the delegate, the Authority took into consideration that both statements were made by the deponents in relation to their own refugee applications and that they did not refer to the Applicant or his personal circumstances.  In this sense, in considering the statements the Authority did not err in exactly the same manner as did the Authority in each of BVZ16 and BBS16, in that it did not confine its consideration of whether there were exceptional circumstances to the absence of an explanation for the delay in providing the statements. In this part of its reasons the Authority did not conflate the test applicable under s.473DD(a) with that applicable under s.473DD(b)(i). However, as discussed further below, this does not mean that the Authority applied the correct test under s.473DD(a) or that it considered whether in “all” the circumstances there were exceptional circumstances to justify considering the new information consisting of the statements.  The relevance of the statements of J and R to the Applicant’s claims to fear harm lay in their claims about being seen as supporters of the LTTE.  This was not dependent on the Applicant or his personal circumstances being mentioned in those statements.   

16. At paragraph 7 of its reasons the Authority dealt separately with the status of the Applicant’s siblings as follows:

    In relation to status of the applicant’s siblings, there is no other evidence or information in the referred materials relating to refugee status or any reasons why such status was granted.  While the applicant told the delegate that these siblings are in Australia, he has not previously attempted to provide any other information about their refugee claims or status.  Although he has previously claimed to face harm because of his involvement with his siblings’ departures from Sri Lanka, he has not made any previous claims arising from their refugee status.  I am satisfied that this claim is new information and for the reasons I have set out above, I am not satisfied that it could not have been provided to the delegate before the decision was made.  I am not satisfied that there are exceptional circumstances to justify considering this information.

17. The first three sentences of this paragraph explained why the Authority was satisfied the refugee status information constituted new information.  The only reason given for why the Authority was not satisfied there were exceptional circumstances to justify considering the refugee status information was the Authority’s lack of satisfaction “for the reasons… set out above” that this information could not have been provided to the delegate before the decision was made. 

18. However, such “reasons…set out above” addressed only the absence of evidence or information “in the referred materials” relating to the fact of or the reasons for the refugee status of J and/or R; the absence of “previous” attempts by the Applicant to provide such information (that is, before the referral); and the absence of “previous” claims by R arising from his siblings’ refugee status.  The Authority’s reference to these matters may also be seen as reflecting some consideration of the absence of an explanation from the Applicant for not providing the new information to the delegate.

19. Insofar as the Authority was proceeding on the basis that it would not consider the refugee status information because it was not before the delegate (or for this reason and also because there was no explanation in that respect), this reveals an inappropriately narrow understanding of the term “exceptional circumstances” in the sense considered in BVZ16. There was no evaluation of the significance of the new information about refugee status to the Applicant’s claims of the nature referred to in s.473DD(b)(ii) having regard to the matters addressed in the statements and in the representative’s submission.

20. In light of the information and submission before the Authority in this case, it was not sufficient for the Authority to rely solely on the fact the information was not before the delegate and/or the absence of an explanation for why the refugee status information was not and could not have been provided to the delegate. In this respect it conflated the test in s.473DD(a) with that in s.473DD(b)(i) and took an unduly narrow approach to the meaning of exceptional circumstances in the sense considered in BVZ16 and BBS16.

21. It is the case that there was no clear explanation in the submission to the Authority as to why the information about the refugee status of J and R could not have been given to the Department before the decision was made.  The assertions that J and her family and R had “recently” been granted refugee status were not put forward in the submission as an explanation for why the information could not have been provided to the Department. However, while this may be a relevant factor for the Authority in determining whether exceptional circumstances existed within s.473DD(a) (see ABC17 at [8]-[10]), that does not mean that it was open to the Authority in this case to equate the absence of an explanation with an absence of exceptional circumstances.

22. In relation to the Authority’s observation that the Applicant had made no “previous” attempt to provide other information about his siblings’ refugee claims (as such) or their status and had not previously claimed to fear harm on the basis of their refugee status, I also note that the letter from the Applicant’s mother that was before the delegate referred to the fact that J had sought asylum and that the Applicant had made some claims about R’s abduction and mistreatment and his illegal departure from Sri Lanka while required to report regularly as well as about J’s perceived links to the LTTE.      

23. More fundamentally, in contrast to ABC17 (at [9]), the submission to the Authority containing the new information about the refugee status of J and R provided an explanation of the reason that the information was “important”, in the sense of relevant to a consideration of the Applicant’s claims, whether considered as the sort of material to which s.473DD(b)(ii) applied or more broadly in the context of s.473DD(a). This explanation related not only to the refugee status of J and R, but also to the written statements they had each provided in relation to their applications for asylum. It was based in part on country information (the DFAT Report about the UNHCR Guidelines) in the referred material. This potential relevance was not considered at all by the Authority in relation to the new information consisting of the refugee status of J and R and was not sufficiently considered in relation to J and R’s statements.

24. Further, the constraints in s.473DD do not apply to submissions, as distinct from new information. As discussed in CLV16, the Authority’s Practice Direction, a copy of which had been provided to the Applicant, indicated that if it was proposed to give new information to the Authority a submission would be invited as to why the information could not have been given to the Department before the decision was made or why the information was credible personal information which was not previously known and which may have affected consideration of the Applicant’s claims had it been known.

25. The Full Court pointed out in CLV16 (at [42]) that the guidance to referred applicants provided in the Authority’s information sheet and the Practice Direction lent support to the existence of an expectation on the part of visa applicants that submissions of the nature referred to therein would be taken into account and suggested that (subject to the observations of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 and Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1), it would be “contrary to good administrative decision-making” for the Authority to invite and receive a submission in relation to a s.473DD issue, but then to fail to take it into account (at [42]).

26. The Court in CLV16 found no constraint in Part 7AA of the Act on the ability of the Authority to entertain a submission made by a visa applicant, including a submission that the Authority should consider new information pursuant to s.473DD (CLV16 at [54] and [69]).

27. As the Applicant submitted, in the particular circumstances of this case, to consider whether there were exceptional circumstances to justify considering the statements of J and R and/or their refugee status the Authority had to consider “all” the relevant circumstances.  This necessarily required it to engage in a meaningful sense with the claims in J and R’s statements in support of their protection visa applications, the fact that they had recently been granted asylum and to address the asserted relevance of the new information to the Applicant’s claims.

28. The context in which the new information was provided to the Authority and its potential relevance is to be seen in light of the delegate’s findings (described at [12]-[15] above) in relation to the Applicant’s claims about J and R. As indicated, the Applicant claimed that his sister owned land on which the LTTE had stored material, albeit that he did not claim to the delegate that he had been questioned about this or that the Sri Lankan authorities had any interest in him for this reason. The delegate found that the Sri Lankan authorities did not have any interest in the Applicant because of J’s departure from the IDP camp.

29. In relation to R, the delegate accepted the Applicant’s claims that R was facing criminal charges and was not allowed to leave Sri Lanka at the time the Applicant came to Australia with R, but had regard to the absence of claims the authorities would have an interest in the Applicant for any reason other than having departed Sri Lanka with R.     

30. The delegate did not accept that the Applicant had a genuine fear of harm from the Sri Lankan authorities for “an imputed pro LTTE political opinion or for having LTTE connections when he departed Sri Lanka, or that the Sri Lankan authorities have an ongoing interest in the applicant for this reason”.

31. The submission can be seen as a response to the delegate’s decision and what was said to be the fact that J and R had each “recently” obtained refugee status (albeit that it was sought in accordance with the Authority’s Practice Direction).  The submission included copies of the statements made by J and R in support of their successful protection visa applications, the information about their refugee status, as well as an explanation of the relevance of this information in light of the UNHCR Guidelines referred to in the DFAT Report.

1. While the Applicant had not previously (when he was unrepresented) claimed to fear harm on the basis of a risk profile within the UNHCR Guidelines, he had made some claims about the circumstances of J and R which were subsequently reflected in the statements in which they claimed to be perceived to be involved with or supporters of the LTTE. 

2. Among other things, R claimed that he had been detained on order of a judge (until legal action was taken in superior courts) on wrongful suspicion of involvement with the LTTE.  In addition, he claimed that in 2009 it was thought that he was involved in the LTTE and intended to target the Sri Lankan Secretary of Defence.  R also made claims about an unsuccessful attempt to escape from Sri Lanka (which had resulted in his deportation from Turkey) and the fact that he had been charged with illegal departure, released on bail and had to report to the authorities regularly (some of which had been referred to by the Applicant).

3. In the course of describing subsequent events R also referred to the ice cream business he started in 2011 with the help of his brother.  The Applicant had referred to working with R at this time and had described and provided documentary material about R’s abduction and torture in April 2012 which was also referred to in R’s statement.

4. The claims in J’s statement related solely to an asserted perception by the authorities that she and her husband were involved with the LTTE.  She described the fact that their tenants were associated with the LTTE and had buried weapons on the property and referred to increased harassment and questioning which led to her escape from the IDP camp (to which the Applicant had referred).

5. In addition, after claiming she feared harm from the CID on the basis of an imputed political opinion, J made a claim about the impact of her circumstances on another sibling in Sri Lanka.  She suggested that since she left Sri Lanka (in 2011) the CID had become more suspicious of her younger brother who was living with their mother in Jaffna and that he had been called in for questioning several times and was required to report every day.  J claimed that “[t]he CID is trying to find out where we are through my brother”, thus raising a concern about the impact on family members of her perceived profile as an LTTE supporter.  This was the very issue the submission to the Authority addressed in relation to the Applicant by reference to the UNHCR Guidelines.

6. Insofar as the Authority’s reference to the fact that the statements of J and R did not refer to the Applicant or his personal circumstances was intended to be a consideration of s.473DD(b)(ii) factors in the context of s.473DD(a), as the Applicant submitted, this reveals an incorrect approach to the requirement of “personal information” which, as defined in s.5(1), means “information… about an identified individual, or an individual who is reasonably identifiable” (and see Plaintiff M174/2016 at [34]).

7. Section 473DD(b)(ii) is not limited to personal information about a referred applicant (as distinct from personal information about an identified or identifiable person). Moreover in the context of a consideration of all relevant circumstances under s.473DD(a), the absence of specific reference to the Applicant or his personal circumstances in the statements of J and R should not be dispositive where there was an explanation of the relevance of the new information in the submission.

8. The Authority failed to engage with the submission (based on country information in the referred materials) that the Applicant was at risk of harm because of his close relationship with siblings seen as LTTE supporters who had been granted asylum in Australia.  It failed to address the asserted relationship between J and R’s statements containing claims about their perceived links to the LTTE and the fact that after those claims were made, J and R were granted refugee status, inferentially on the basis of acceptance of at least some of those claims.  It failed to engage in any meaningful sense with the statements which set out the basis on which J and R had claimed to fear harm in connection with their (successful) protection visa applications.  It failed to address the suggested relevance of the new material to the consideration of the Applicant’s claims.  It did so in circumstances where the information about the UNHCR Guidelines and some information about J’s claimed profile as a perceived LTTE supporter was in the referred materials.

9. The Authority failed to have had regard to all the circumstances in determining whether there were circumstances that were unusual or out of the ordinary to justify considering the new information notwithstanding the constraints on the consideration of new information in Part 7AA of the Act discussed in CLV16 at [91]-[92].

10. The Applicant, through his representative’s submission, made a clear claim to the Authority that in addition to his previous claims he also claimed to fear harm as a family member of persons with a perceived LTTE link on the basis of country information in the referred material, being the 2012 UNHCR Guidelines referred to in the DFAT Report. While J and R’s statements were not described in the submission as credible personal information that, had it been known, may have affected consideration of the Applicant’s claims within s.473DD(b)(ii), they clearly raised matters of that nature which had to be considered by the Authority in the context of s.473DD(a). In light of the country information referred to in the submission about the risk profile of family members and those with close associations with LTTE supporters, the content and importance of these statements clearly fell for consideration within s.473DD(a) as potentially relevant credible information about identified siblings of the Applicant who had made successful asylum claims which included claims about their LTTE links. As indicated, the importance and relevance of this information was explained in the submission.

11. The Authority failed to consider this aspect of all the circumstances on the material before it in evaluating whether there were exceptional circumstances to justify considering the new information consisting of J and R’s statements as well as their refugee status. It was for the Authority to evaluate this information, but it could not ignore relevant circumstances in considering s.473DD(a) by limiting its consideration to the circumstances referred to in paragraphs 6 and 7 of its reasons.

12. Such error amounts to jurisdictional error.

13. Insofar as the Applicant contended that the Authority erred in relation to the additional precondition in s.473DD(b) of the Act, as well as in relation to s.473DD(a), the Authority did not make findings in relation to s.473DD(b). However in considering the requirements of s.473DD(a) the Authority conflated the tests in s.473DD(a) and s.473DD(b) and failed to consider factors relevant to s.473DD(b)(ii) in a manner that revealed a failure to have regard to all relevant circumstances in the sense referred to in CQW17 at [51].

14. As jurisdictional error has been established in relation to the Authority’s consideration of s.473DD(a) the application should be remitted for reconsideration according to law.

I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  21 December 2018