DYS16 v Minister for Immigration
[2017] FCCA 1975
•22 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DYS16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1975 |
| Catchwords: MIGRATION – Application for judicial review of determination of Immigration Assessment Authority – consideration of “exceptional circumstances” pursuant to s.473DD – considerations of “unreasonable, irrational, illogical”. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36(2)(a), (aa), 473DB, 473DC, 473DD, 473GB |
| Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] 24 CLR 611 Explanatory memorandum to Migration and Maritime Powers Legislation Amendment (resolving the Asylum Legacy Caseload) Bill 2014 @ [914] |
| Applicant: | DYS16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORTY |
| File Number: | LNG 81 of 2016 |
| Judgment of: | Judge McGuire |
| Hearing date: | 3 July 2017 |
| Date of Last Submission: | 3 July 2017 |
| Delivered at: | Hobart |
| Delivered on: | 22 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Barnes |
| Solicitors for the Applicant: | Leonard Fernandez Barristers & Solicitors |
| Counsel for the First Respondent: | Mr Wilson |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Solicitors for the Second Respondent: | No appearance |
ORDERS
That the application for judicial review be dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
LNG 81 of 2016
| DYS16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Application
The application before me asks for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made 22 November 2016 affirming a decision of the Minister’s Delegate (“the delegate”) made 9 August 2016 not to grant the Applicant a Safe Haven Enterprise (Subclass 790) visa (“the visa”).
Background
The applicant is a Hazare Shia from Afghanistan. He arrived in Australia as an unlawful maritime entrant on 6 July 2013.
The applicant lodged an application for the visa on 22 September 2015.
The applicant claims that his father was killed by the Taliban because he was involved in the building of a school. He says that other members of his family have been shot, injured and killed. He says his family was ostracised as Hazara living in a Pashtun area of Kabul.
The applicant claims that state authorities will not, and are not capable of protecting Haraza. He says that it is known in Afghanistan that he is in Australia and he would be persecuted as a returning unsuccessful asylum seeker.
The applicant engaged a solicitor and migration agent to assist with his application. Three further submissions dated 14 March 2016, 15 March 2016 and 10 June 2016 together with another undated statement were provided in support of his application for the visa. In those submissions the applicant claimed that his mother had told him that he had suffered a bicycle accident in his youth and incurred a brain injury which was a cause of his inability to remember information.
Additional and/or repeated summarised claims of the applicant’s fear of persecution are on the basis of:
a)His status as a young male person in Afghanistan;
b)His father’s suspected support of education in Afghanistan;
c)His status as the eldest son of a person who has been targeted by the Taliban;
d)His status as an educated Hazara with links to the west.
On 9 August 2014 the delegate was not satisfied that the applicant met the criteria for the grant of a protection visa under s.36(2)(a) or (aa) of the Migration Act 1958 (“the Act”) upon finding that the applicant did not have a well-founded fear of persecution pursuant to s.5J of the legislation.
The delegate’s decision was referred to the Authority for review pursuant to the fast-track process in Part 7AA of the Act with a certificate issued pursuant to s.473GB.
The applicant’s solicitor and migration agent provided further material and submissions by email letter of 13 September 2016. Included in that material was a psychiatric report on the applicant dated 9 September 2016 prepared by Geoffrey Bradshaw, Consultant Psychiatrist. It is the Authority’s dealing with that psychiatric report which sits at the crux of my consideration of the application for judicial review.
On 22 November 2016 the Authority affirmed the delegate’s decision not to grant the visa. It is clear that concerns as to the applicant’s credit grounded that determination.
Grounds of Review
The applicant’s amended application raises two grounds of complaint with the Authority’s process or determination and as follows:
i)The Second Respondent reached a decision irrational, illogical and not based upon findings or inference of facts supported by logical grounds; in finding that there were not exceptional circumstances to justify considering the psychiatrist’s opinion as to the credibility of the applicant’s claims.
ii)The Second Respondent misinterpreted, misapplied or failed to apply s.473(DD) of the Act in that he was not satisfied that there are exceptional circumstances to justify considering the psychiatrists opinion as to the credibility of the applicant’s claim.
The Relevant Legislation
The relevant parts of the Act appear at ss.473DC and 473DD as follows:
Section 473DC - Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD - Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Relevantly, Part 7AA introduces a ‘fast-tracked’ review facility. It does not mandate a further interview with an applicant. There is a discretion only in the authority to receive new information. However, consistent with the fast-track nature of the review of the delegate’s decision, consideration by the Authority of any new information is statutorily limited by the adjective ‘exceptional’. Such information must not have been previously available to the applicant to put before delegate.
Ground 1
The applicant here argues that the decision of the Authority not to consider Dr Bradshaw’s psychiatric opinion as to the applicant’s credibility was irrational or illogical and, as such, of such unreasonableness that the Authority fell into jurisdictional error.
Dr Bradshaw’s report is dated 9 September 2016. He sets out his qualifications. He then provides a detailed report and history from the applicant. At page 4, Dr Bradshaw opines:
There were many features of PTSD and he would clearly fulfil current standard diagnostic criteria as in the DSM-54 for this disorder. There is the history of exposure to major traumatic events as outlined above. There are clearly a number of intrusive symptoms associated with the traumatic memories. These include flashbacks related to the Taliban or people being killed; distressing dreams 2 two 4 times per week with horrible repeated content relating to the history of the trauma such as the Taliban coming to his house and shooting him and then cutting his head off with a knife, or he and his brothers being taken by the Taliban and then his mother fighting them and then being smashed with a gun and then his brothers and mother crying. There are attempts to avoid the distressing traumatic memories and things which trigger them (such as talking about them or some of the content on Facebook). There are disturbances in mood and thinking such as difficulty remembering significant aspects of the traumatic events, fear of thinking too much and becoming crazy (“I’m scared of my mind”), difficulty at times experiencing positive emotions, there are alterations in arousal and reactivity, such as episodes of irritable behaviour when he is at work, occasional reckless driving, problems with concentration, and sleep disturbance. The symptoms are chronic, the symptoms cause significant distress and sometimes they cause significant impairments in function, such as irritability and inattention at work.
The relevant and crucial part of Dr Bradshaw’s report appears at the bottom of page 5 where the psychiatrist offers an opinion on the applicant’s credibility and as follows:
I judge his account of his history and current symptoms and fears to be highly credible. I base this judgment on a careful consideration of his mental state and behaviour at interview, and also the on (sic) the consistency he demonstrated when I revisited the complicated and somewhat confusing parts of his history. I understand that the apparent memory lapses, vagueness and inconsistencies may invoke scepticism about his credibility particularly if his history is not assessed with adequate care and time. As mentioned, inability to remember aspects of the traumatic events is common with PTSD. Also some of the history relates to events long ago when he was still a boy. In addition, what may be seen as deliberate vagueness or prevarication could very adequately understood as he is avoiding the intense distress he tends to experience when revisiting traumatic memories.
This is clearly new information captured by s.473DD of the Act and hence the Authority is not permitted to consider it unless, firstly, there are exceptional circumstances justifying consideration. I see this provision as having two limbs as firstly, whether the circumstances are exceptional and, secondly, do they justify consideration?
The applicant argues that the circumstances here are exceptional because findings as to the applicant’s credibility ground the Authority’s own reasons as evidenced at [8] of those reasons as follows:
Moreover, and as will be discussed below, given my overall concerns about the applicant’s credibility I have found that the applicant is not a credible source of evidence with regard to the circumstances in Kabul.
The applicant says, therefore, that Dr Bradshaw’s evidence as to credibility was expert, available, not contradicted, and also relevant to a material issue and ultimate finding of the Tribunal being its findings as to credit. The applicant says then that the failure of the Tribunal to consider the opinion of Dr Bradshaw was unreasonable, irrational or illogical to such an extreme that the Tribunal fell into jurisdictional error in not considering the opinion.
The nexus of relevance is, according to the applicant, pertinent in the Tribunal’s reasons at [32] thus:
However, given the inconsistent and vague manner in which the applicant has provided evidence regarding this claim, and given my overall concerns with regard to the credibility of the applicant, I do not accept…
Consideration
Counsel for each of the applicant and the first respondent refer me to the oft quoted observation of the High Court in Minister for Immigration and Citizenship v SZMDS[1] where their Honours noted the high bar for showing on judicial review that a decision is of such illogicality and irrationality that the decision maker falls into jurisdictional error. At [131] their Honour’s observed:
…must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[1] [2010] 24 CLR 611
And at [135]:
...Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
In summary, therefore it is not enough to show jurisdictional error that different reasonable minds might come to different conclusions. There must, in my view, be an observable inconsistency between premise and conclusion such that the conclusion would not be reasonably open to any mind.
This is not a situation where Dr Bradshaw’s report was not considered. Rather, the Tribunal did accept the psychiatrist’s diagnosis of PTSD. The Tribunal considered this as ‘new information’. The Tribunal accepted it as ‘exceptional’ such to justify considering the new information. The following appears in the reasons at [6]:
The 9 September 2016 psychiatric report provides an assessment of the applicant’s mental health, a summary of the information which the applicant has provided to the treating psychiatrist and the psychiatrist’s assessment of the applicant’s credibility. With regard to the applicant’s mental health the report states that the applicant is affected by many features of Post-Traumatic Distress Disorder (PTSD). This is new information. The applicant has not provided reasons as to why the psychiatric report should be considered. Nevertheless, I am satisfied that a diagnosis of the applicant’s mental health by a registered psychiatrist amounts to credible personal information which was not previously known and, hadn’t been known, may have affected the consideration of the referred applicant’s claim. I am satisfied there are exceptional circumstances to justify considering this new information.
At [8] the Authority addresses issues of the applicant’s credit and notes inconsistencies in his evidence. Further consideration of the applicant’s credibility appears at [25] of the reasons where the Authority again notes inherent inconsistencies in the applicant’s reporting. In that paragraph appears the following:
While I accept that the applicant has difficulties with his memory and in talking about traumatic events, the credibility of the applicant’s claims these regards is seriously undermined by a fundamental lack of internal consistency. I am unable to be satisfied as to the credibility of the applicant’s claims regarding his living arrangements, ….
The Authority’s reasons at [29], [30], [31], [32], [33], [34], [35], [36] and [37] each deal with the issues of the applicants’ claims and the credibility with the Authority referencing inconsistency of the applicant’s reporting or contrary evidence.
At [9] the Authority recognises the introduction of the psychiatrist's opinion as to the applicant’s credibility per se. The Tribunal there states:
The 9 September 2016 psychiatric report also provides the treating psychiatrist's opinion that the applicant's account of his history is highly credible. While I accept that there are exceptional reasons for considering treating psychiatrist’s assessment of the applicant's mental health, the applicant's psychiatrist opinion as the applicant’s credibility does not carry more weight than other concerns regarding the applicant’s credibility which have been discussed above, and which will be discussed further below. I am therefore not satisfied that there are exceptional circumstances to justify considering the psychiatrist's opinion as to the credibility of the applicant’s claims.
The following flows from [9]:
a)The authority had, in fact, accepted the psychiatrist report as to new information available to it under s473DB;
b)The authority's observation that the applicant’s psychiatrist’s opinion as to the applicant’s credibility does not carry more weight is one that was open to the authority and is undoubtedly correct;
c)Findings of credit are ultimately matters for the authority;
d)The authority was required to exercise a discretion as to whether to consider the psychiatrist conclusive opinion as to the applicant’s credibility based on the strict statutory test imposed by s473DD;
e)The authority gives reasons for not considering the evidence as ‘exceptional' at [9]. This is prima face rational and logical reasoning on the part of the Authority. It follows as being irrelevant whether this or any other judicial officer would have made the same decision. Absent the requisite 'extreme illogicality or unreasonableness', the complaint of the applicant must be one as to the merits of the Authority’s decision which is an impermissible quibble as to merit. In summary, therefore, the Authority noted the psychiatrist’s opinion as to credibility as opposed to his diagnosis and exposition of historical facts and claims. The Authority noted that it was its role to make determinations as to credit. The Authority had other material before it relevant to the issue of credit and notably inconsistencies.
I find no merit in ground one of the complaint.
Ground Two
The applicant here complains that the Authority misinterpreted, misapplied or failed to apply s473DB in not being satisfied that there were exceptional circumstances to justify consideration of the psychiatrist's opinion.
Counsel for the applicant correctly observes that the term 'exceptional circumstances' is not defined in the Act thereby leaving some discretion of interpretation in the particular officer of the Authority.[2]
[2] See explanatory memorandum to Migration and Maritime Powers Legislation Amendment (resolving the Asylum Legacy Caseload) Bill 2014 @ [914]
The amending legislation was clearly intended to provide a system of fast track review from the delegate’s determination being a distinction from the process of the former Refugee Review Tribunal in matters of procedure albeit not in ultimate function.
The Authority has no duty to 'get, request or accept' new information and, further, must not consider new information unless the threshold of 'exceptional' is crossed (together with such information not being previously available).
The Authority here, in fact, made two different determinations in respect of the psychiatrist’s evidence at [6] and [9] respectfully. Absent, the applicant pointing to any evidence suggesting 'misunderstanding' or 'misinterpretation’ by the authority of the section then I find that this ground amounts to no more than a quibble as to the merits of the tribunal’s discretion at [9] and not, therefore, lapsing into jurisdictional error.
I find no merit in ground two of the complaint.
Conclusion
Finding no merit in either ground of complaint, the application for judicial review is dismissed with costs.
I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 22 August 2017
0
2