DZU17 v Minister for Immigration & Anor
[2019] FCCA 491
•4 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DZU17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 491 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant either disbelieved or his fears found not to be well-founded – whether the Authority erred in considering whether to receive or to reject substantial new information considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.473DC, 473DD, 473DE |
| Cases cited: ABJ17 v Minister for Immigration [2018] FCA 950 |
| Applicant: | DZU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2777 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 1 March 2019 |
| Date of Last Submission: | 26 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 4 June 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr S Tambimuttu of Hodges Legal |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 10 August 2017 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2777 of 2017
| DZU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 10 August 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the applicant’s initial outline of submissions filed on 17 February 2019.
The applicant is a male, born in Trincomalee, in the Eastern province of Sri Lanka on 25 October 1970, and is of Tamil ethnicity.[1]
[1] Court Book (CB) 3
The applicant arrived in Australia at Cocos (Keeling) Islands, without a valid visa, by boat on 28 October 2012 and applied for a Safe Haven Enterprise Visa (SHEV) on 11 May 2016.[2]
[2] CB 51, 109
The delegate refused to grant the visa on 9 January 2017.[3]
[3] CB 106
The delegate’s decision was reviewed by the Authority. The Authority affirmed the delegate’s decision and refused to grant the applicant a visa on 10 August 2017.[4]
[4] CB 486
The applicant’s claims
The applicant’s initial claims included the following:[5]
a)in 2001 or 2002, the applicant was a cake decorator and made a design of the Liberation Tigers of Tamil Eelam (LTTE) leader, Prabhakaran;
b)in 2006, he was injured in a bombing attack and has some residual scarring;
c)the applicant has been unable to practise his Hindu religion because families in his village were denied permits to make noise during religious festivals and need permission to construct Hindu temples. Out of anger over religious discrimination and to allow children to sleep peacefully, the applicant sabotaged the speakers of a local Buddhist temple and believes that he is suspected of this crime;
d)in 2010 or 2011, the applicant made paper models of Hindu temples and was warned to stop making such models;
e)in 2012, the applicant was concerned about a wine shop which operated next door to his daughter’s school and joked to some Sinhalese acquaintances about demolishing the shop. On 5 July 2012, the shop was damaged and burned, and on 12 July 2012 the army visited his home. He believes that he is suspected of damaging the shop; and
f)the applicant is very politically active and believes that he will be perceived to be an LTTE supporter and persecuted.
[5] CB 492
The applicant’s claims made in a supplementary statement after his SHEV interview and the decision of the delegate, include the following:[6]
a)the applicant worked for the intelligence wing of the LTTE for 17 years, and was a senior officer;
b)in May 2009, the applicant witnessed the “White Flag Incident”,[7] and was forced into entering the Mullivaikal camp. At the camp he was told that there would be serious consequences if he did not register as a LTTE member;
c)in May 2009, the applicant was captured and taken from Mullivaikal camp to the Chettikulum camp. While in Chettikulum, the applicant was tortured. The Sri Lankan Army (SLA) would degrade prisoners, such as the applicant, by forcing them to participate in humiliating acts;
d)the applicant’s brothers-in-law were also involved with the LTTE. One of them died in 2002 and was a second lieutenant and combatant;
e)since the applicant left Sri Lanka, his wife has been questioned about his whereabouts by unknown men and was forced to bribe the police to stop them coming to her house;
f)the applicant has visible and prominent scarring due to his involvement in conflicts during the war; and
g)the applicant is suffering from severe post-traumatic stress disorder (PTSD) and depression, which prevents him from recalling specific details about his torture and prevented him from disclosing all his claims initially. Additionally, during his SHEV interview, the interpreter spoke a different dialect of Tamil and the applicant was unrepresented, and so felt intimidated and did not express himself clearly.
[6] CB 148-151
[7] an alleged massacre of surrendering LTTE leaders and their families by the SLA at Mullivaikal
The applicant claims to fear harm or persecution from the Sri Lankan authorities because he:
a)is of Tamil ethnicity;
b)was a high-ranking member of the LTTE and may be recognised as such;
c)witnessed war crimes;
d)departed Sri Lanka illegally; and
e)applied for asylum in Australia.
The decision of the Authority
The Authority considered the applicant’s claims[8] and made findings which included the following:
a)at [10][9] the Authority found that there were not exceptional circumstances which justified considering the applicant’s claims from his supplementary statement;
b)at [17]-[20][10] the Authority is said to have found, in effect, that because the applicant had access to psychological support before his supplementary statement and he was asked many questions during his SHEV interview about the exact nature of his LTTE involvement and experiences with torture, his claims could likely have been put forth at the initial interview;
c)at CB 493-494 the Authority accepted a majority of the applicant’s initial claims;
d)at [36][11] the Authority did not accept that the Sri Lankan authorities suspected him of being involved in the damage to the wine shop;
e)at [44][12] the Authority found that because of his release from the camp the applicant was not imputed with an LTTE profile;
f)at [48][13] the Authority found that the applicant’s political outspokenness is not likely to make him of interest to Sri Lankan authorities because of the improvement in local conditions; and
g)at [51][14] the Authority found that because of the defeat of the Rajapaksa government which had promoted Buddhist militants, the applicant would be able to freely practise his religion upon returning.
[8] from CB 487
[9] CB 489
[10] CB 490
[11] CB 494
[12] CB 496
[13] CB 497
[14] CB 498
The present proceedings
These proceedings began with a show cause application filed on 6 September 2017. An amended application was filed on 13 February 2019. At the trial of this matter on 1 March 2019 the solicitor for the applicant handed up a proposed further amended application and sought leave to rely upon it. The Minister objected to that course, noting that procedural orders for the filing of additional material had not been complied with and the Minister was taken by surprise by a proposed new ground. I nevertheless granted leave, bearing in mind that the proposed new ground was related to the first two grounds and raised a serious question to be tried. I took into account that the proposed new ground would provide an opportunity to address remarks I made in obiter in BBE17 v Minister for Immigration & Anor.[15] I invited further submissions from the parties addressing my observations in that case.
[15] [2018] FCCA 2200
The grounds in the further amended application are:
Ground 1
The IAA’s decision to not consider the new information (contained in the applicant’s supplementary statement dated 9 February 2017 and the photographs of scars on the applicant’s body) is affected with legal error.
Particulars
1.The IAA found that there were exceptional circumstances that justify considering the psychologist’s report and psychologist’s letter [7].
2.At [8] the IAA outlines some of the contents recorded in the psychologist’s report and letter and they are as follows,
a.The applicant met the psychologist during the period 7 February 2017 – 10 February 2017 [8 and 17].
b.During the consultations with the psychologist the applicant “detailed his claim to have joined the LTTE intelligence wing, witnessed massacres and atrocities and to have been tortured by the Sri Lankan army” [8].
c.The psychologist diagnosed “the applicant with post-traumatic stress disorder (PTSD), and an extremely severe level of depression, anxiety and stress” [8].
d.The psychologist assessed “that the applicant has been unable to meaningfully participate in psychological assessment due to his PTSD and overwhelming innate fear responses” [8].
e.The psychologist stated that the applicant had a “severe psychological illness which is entrenched and chronic and has resulted in a dissociative state and amnesic state” [8].
f.The psychologist further stated “that through persistent encouragement the applicant has revealed the intimate and shameful nature of his torture and that the applicant be referred to an expert clinician” [8].
3.The new information, consisted of new claims in the applicant’s supplementary statement dated 9 February 2017 which included details of his involvement in the LTTE, other sensitive information [9] and a “number of photographs of scars” [9].
4.The IAA however was not satisfied that that there were exceptional circumstances to justify considering the new information [10].
5.The IAA accepted that “people with PTSD may have difficulty recounting events from their past particularly where this includes trauma and torture” [14].
6.The IAA’s reasons for not considering the number of photographs of scars is due to the applicant having disclosed the scars on his hand inflicted due to a bomb blast in 2006 to the delegate and not the “other scarring” [14].
7.Having found that there were exceptional circumstances to justify considering the psychologist’s report and psychologist’s letter the IAA erred when exercising its discretion in an unreasonable manner to not consider the new information in the applicant’s supplementary statement dated 9 February 2017 and photographs of scars,
a.as the psychologist’s report and psychologist’s letter referred to detailed claims of LTTE involvement and torture which has been referred to in the supplementary statement dated 9 February 2017 and ought to have been considered together.
b.The scars on the applicant’s hand was inflicted due to a bomb blast in 2006 (a traumatic event) unlike the other scarring which was inflicted during torture.
Ground 2
The IAA adopted and applied an unduly narrow interpretation of the term “exceptional circumstances” and accordingly failed to consider all matters capable of constituting the circumstances of the applicant’s case as exceptional; See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.
Particulars
1.As in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 paragraphs 46 and 47, there has been a constructive failure to exercise jurisdiction by the IAA as the IAA “confined its consideration of whether there were exceptional circumstances to the evaluation…” of the following,
a.The IAA decision record does not refer to the applicant having provided an explanation for not having disclosed the new information earlier, hence the IAA discusses several opportunities the applicant had during the process to disclose the new information and the photographs [11 - 15]. In essence the IAA assessed the applicant’s reasons for non-disclosure of new information as it thought fit.
b.The reasons for the applicant’s non-disclosure as stated in the psychologist’s report and the representative’s submission [16].
c.The IAA’s subjective opinion of the psychologist’s reasons for non-disclosure of new information [17].
2.The IAA in its evaluation at [14] gave consideration to the fact that the applicant “was willing to disclose scars on his hand inflicted in this bomb blast…” but did not “advance claims of extensive scars on other parts of his body”.
3.The IAA considered the psychologist’s report and letter which inter alia stated “that through persistent encouragement the applicant has revealed the intimate and shameful nature of his torture and that the applicant be referred to an expert clinician” [8].
4.The IAA failed in its evaluation at [14] to consider that the applicant is likely to have been too embarrassed to reveal “scars on other parts of his body” [14] to the delegate.
5.The IAA erred in its evaluation at [17] as it gave no weight (though it may have considered) to the expert opinion of the psychologist who stated, that it was through persistent encouragement that the applicant revealed intimate and shameful things relating to the torture, instead the IAA relied on its own subjective opinion.
6.It was not open to the IAA in its evaluation at [17], to infer that the psychologist, an expert witness lacked the ability to cause (i.e. persistent encouragement ….within a safe confidential context) the applicant to disclose information that was not before the delegate notwithstanding the IAA’s reasoning at [16] and [17].
7.The IAA’s understanding of the reach of the term “exceptional circumstances” appears to be narrow as described by White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 paragraphs 47.
Ground 3
The Authority failed to assess the applicant’s new claims which was reported to the psychologist and contained in the psychologist’s report/letter.
1.The applicant provided new claims to the psychologist [CB 480]
2.The new claims in essence was that he “joined the intelligence wing of Liberation Tigers of Tamil Eelam (LTTE) ….” and that “he was severely tortured” by the SLA [CB 480].
3.The applicant showed his “scars in different parts of his body which resulted from the torture” to the psychologist.
4.Though as part of its assessment under s473DD the IAA assessed the new claims which was contained in more detail in the supplementary statement [CB 148 – CB 152], the new claims that was reported to the psychologist which was contained in the psychologist’s letter/report was not considered.
5.There was an obligation to assess the new claims contained in the psychologist’s letter/report and there was an obligation to make a finding regarding the contents in the psychologist’s letter/report concerning the LTTE claims and torture.
6.Though the evidence concerning the LTTE claim and torture in the psychologist’s letter/report could be described as a synopsis of what was contained in supplementary statement, the method and credentials of the person extracting the new information contained in these two different pieces of documentary evidence were different.
(errors in original)
The only evidence I have before me is the court book filed on 31 October 2017.
Consideration
The applicant contends that it was legally unreasonable for the Authority to exclude the applicant’s proffered new claims from consideration, especially in circumstances where the Authority agreed that there were exceptional circumstances to receive a new psychologist’s report provided by the applicant and that the applicant’s new claims were part of the history recounted to the psychologist. The applicant further asserts that the Authority adopted an unduly narrow construction of unreasonable circumstances when applying s.473DD of the Migration Act 1958 (Cth) (Migration Act).
The Minister contends that there is a glaring disconnection between the propositions in the psychologist’s report and the additional statement provided to the Authority by the applicant. In short, the submission by the applicant appeared not to be from a person with the disabilities asserted by the psychologist. The Minister denies that the distinction that the Authority drew between acceptance of the psychologist’s report and the refusal to consider the applicant’s new claims was either legally unreasonable or disclosed a misunderstanding or misapplication of s.473DD.
The Authority’s reasons for accepting and not accepting the new information are quite detailed and, in my view, need to be considered in full. The Authority stated:[16]
[16] CB 487-490
Information before the IAA
3.I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act).
4.On 10 February 20167 (sic) the IAA received a submission from the applicant's representative including a statement from the applicant in which he seeks to introduce additional protection claims, photographs, country information, and a letter dated 9 February 2017 from Medhi Abiyat, psychologist. In a further submission received 24 March 2017 the IAA received a copy of a report from the psychologist.
5.In part the representative's submission addresses the delegate's decision and findings and refers to a "previous similar decision of the IAA". To that extent, it may be referred to as argument rather than new information and I have had regard to it.
6.The representative's submission also includes new information and puts forward reasons why the applicant did not disclose the full extent of his claim at his initial interviews with the department. The representative refers to psychology literature which "consistently affirms that refugees and asylum seekers are highly vulnerable to psychological disorders particularly PTSD" and to the Service for the Treatment and Rehabilitation of Torture and Trauma Survivors comments that "a lack of disclosure from Tamil clients may involve being too traumatised to speak, a lack of trust ... and cultural taboos". The representative submits that the applicant's "prior experience with the Sri Lankan conflict and his claimed experiences of trauma have seemingly triggered avoidance-type response that appear to be consistent with PTSD". The representative further notes that the applicant "struggled to hold confidence that the Australian state would not inform the Sri Lankan Army of his LTTE involvement. This is seemingly exacerbated by the fact his immediate family is still present in Sri Lanka and is a perception likely intensified by the well-publicised sale of navy ships to Sri Lanka." The psychology literature referenced by the representative was not before the delegate and is new information, however I am satisfied that it addresses the applicant's psychological functioning and his ability to provide information to the Minister and I am satisfied that there are exceptional circumstances to have regard to it.
7.The psychologist's report and letter post-date the delegate's decision and on that basis could not have been provided to the Minister. The report and letter addresses the applicant's psychological functioning and puts forward reasons why "he is unable to think coherently and in an adequate narrative process to identify and explain what has occurred". As this information goes directly to the applicant's psychological functioning and factors that may have affected his ability to recount events I consider there are exceptional circumstances that justify considering it.
8.The psychologist's letter notes that the psychologist met with the applicant on 7 February 2017 and the psychologist noted the impact of his traumatic past experience in stopping the applicant from talking about his ordeal or giving a coherent picture. The report dated 6 March 2017 stated that the psychologist met with the applicant on 7 February 2017 and 10 February 2017[17] and in the consultations the applicant detailed his claim to have joined the LTTE intelligence wing, witnessed massacres and atrocities and to have been tortured by the Sri Lankan army. The psychologist has diagnosed the applicant with post-traumatic stress disorder (PTSD), and an extremely severe level of depression, anxiety and stress. The psychologist assessed that the applicant has been unable to meaningfully participate in psychological assessment due to his PTSD and overwhelming innate fear responses. The psychologist stated that the applicant's experience of torture to which he has alluded has led to a severe psychological illness which is entrenched and chronic and has resulted in a dissociative and amnesic state. The psychologist states that through persistent encouragement the applicant has revealed the intimate and shameful nature of his torture and the psychologist has recommended the applicant be referred to an expert trauma clinician.
[17] The report states that the psychologist consulted on “3 occasions” but only two consultation dates are noted
Supplementary statement and photographs
9.The applicant has submitted a detailed supplementary statement to the IAA dated 9 February 2017 and a number of photographs of scars on his body. The statement and photographs were not before the delegate and are new information. The statement restated some information already before the Minister and put forward the following new claims:
•He worked for the intelligence wing of the LTTE for 17 years from 1990. Only his wife and closest relatives were aware of his involvement. He did physical training with the LTTE as part of his involvement. His position was the equivalent of a major and he had 30 boys under his command. The boys gave him information and he passed this to the Intelligence Chief of the LTTE. After his marriage he tried to stay away from the LTTE and only visited the organisation's office after hours and only if requested.
•In May 2009 he was living in Mullikaival with his family and he spoke to his superior LTTE officer about surrendering to the army. He left the LTTE and later found out that his superior officer suicided.
•On 17 May 2009 he witnessed the beginning of the Mullikaival massacre. He entered army controlled territory. In the camp he registered with the army as an LTTE member. He was tortured in the camp. He has extensive scarring on his body from the war. The UNHCR attended the camp, after which the soldiers were less violent. Due to an administrative error his file went missing in the camp and he was able to leave the camp under the guise of no longer being an LTTE member.
•He fears that someone may inform the military of his LTTE involvement. He fears that the soldiers who registered him will uncover his identity, or his missing file.
•One of his wife's brothers was a second lieutenant with the LTTE and the other was a village secretary who registered details about LTTE involvement.
•After his departure several men in a white van have come to the family home several times to ask about the applicant and she made a complaint with the police. She has since paid a bribe of 50,000 rupees to the police and the men have stopped coming.
10.For the following reasons, I am not satisfied there are exceptional circumstances to justify considering this new information and I have not considered it.
11.In his statement to the IAA the applicant stated he did not disclose the extent of his claims earlier because he was unrepresented and because of fear that his information may be shared with the Sri Lankan authorities. He stated that he was unrepresented at the interview with the delegate and the interpreter was a Malaysian Tamil and he is concerned his claims were not properly put to the delegate; that is common for non-Sri Lankan Tamil speakers to understate the situation in Sri Lanka; and that the accents are different and it is easy to confuse; and that he felt intimidated and did not express himself clearly. He stated that he has had female interpreters and it has been difficult for him to share some details. He was able to share some painful experiences in the interview for the statement to the IAA because the female interpreter was present by telephone
12.The applicant had the benefit of assistance from Refugee Advocacy Service of South Australia (RASSA) when completing his SHEV application; RASSA requested an extension of time to lodge this application, until 30 March 2016, due to the demand for the pro bono service and limited resources, and the application, together with a detailed statement of claims, was lodged on 11 May 2016.
13.At the SHEV interview the delegate asked the applicant if he had read and understood the Tamil language information sheet, Important Information About Your Protection Visa Interview, sent to him with his invitation to interview, which he stated he had, and the delegate gave him an opportunity to correct any information in his application and to provide any further information. The delegate also advised the applicant of the importance of putting forward his complete and accurate protection claims and cautioned that he may not have another opportunity to do so and that the IAA can only consider new information in exceptional circumstances.
14.I have had regard to the psychology report and the comments by the representative and accept that people with PTSD may have difficulty recounting events from their past, particularly where this includes trauma and torture. However I note that the applicant was willing to disclose claims related to a traumatic experience of a bomb blast in 2006 and to disclose the scars on his hand inflicted in this bomb blast, yet the applicant did not at this stage advance claims of extensive scars on other parts of his body, as now presented to the IAA in the photographs. I have some concerns that the applicant has disclosed being injured in a bomb attack and has explained his fears that scars may result in him being attributed as having an LTTE profile, but that he did not inform the delegate of his other scarring.
15.During the SHEV interview the delegate asked the applicant directly if he had any experience fighting with the LTTE and he responded that he had not. The delegate also asked the applicant why he would be of adverse interest to the authorities on return to Sri Lanka as he had not fought for the LTTE, and the applicant did not take this opportunity to put forward his claim to have joined the LTTE. I note his comment that he was afraid that his information could be provided to the Sri Lankan authorities, but I note that this did not prevent him disclosing that his brothers-in-law had LTTE links or that he made a cake decoration of LTTE leader Prabhakaran. During the SHEV interview the delegate asked the applicant on a number of occasions if he was harmed in Chettikulam camp, or in general in Sri Lanka; the applicant responded by explaining the harsh conditions in the camp, but did not advance any claims to have been physically harmed by the Sri Lankan authorities.
16.The psychologist's report and the representative's submission have advanced that the applicant's previous non-disclosure of these events may be due to his PTSD which has triggered "avoidance of the traumatic memories ... as a coping mechanism during the crucial interviews" and the representative has put forward relevant commentary from experts. The psychologist also references dissociative and amnesic state and notes the applicant's illness has the "features described".
17.There is no indication in the report that in the two, or possibly three, consultations conducted over four days from 7 February 2017 to 10 February 2017 that any therapy was conducted or the applicant was treated in any way for his PTSD and "chronic" and "entrenched" psychological illness, and in particular for possible dissociative and amnesic state, beyond the psychologist's "persistent encouragement ... within a safe confidential context". I therefore have significant concern that on 9 February 2017, only two days after the first consultation with the psychologist, and taking into account that after that consultation the psychologist noted the importance of needing more time with the applicant to get a "full picture", that the applicant was able to provide the detailed account of his LTTE links and subsequent harm from the authorities in the supplementary statement. I also note that this supplementary statement was completed with the assistance of a female interpreter, yet the applicant stated that he has felt constrained from advancing some of his claims because of the presence of female interpreters in the past. I am not convinced by his statement that he felt comfortable sharing on this occasion because the interpreting was conducted by telephone as I note that the statement of claims submitted with the SHEV application was also conducted with a telephone interpreter.
18.I am not convinced that he could not reveal the new information at the application stage, where he was assisted by RASSA, or at the SHEV interview in November 2016, yet after receiving the delegate's negative decision he was able to reveal these claims despite there being no indication that he has received treatment or therapy for the underlying chronic and entrenched problems that it is claimed may have prevented him from revealing this information to the Minister.
19.I have also had regard to the applicant's concerns about interpreting and his information being understated by interpreters, however I am not satisfied that this accounts for the applicant's previous lack of disclosure of the claims now advanced.
20.I have considered the information put forward by the applicant, his representative and the psychologist, and I have taken the applicant's PTSD into account, however I am not satisfied that exceptional circumstances exist that justify considering the new information in the additional statement of claims and I have not considered it.
In BBE17 I stated the following at [24]-[27]:
At [5] and [6] of its reasons the Authority stated this in relation to information received by the Authority:
On 22 October 2016, a migration lawyer provided the IAA with a psychological assessment report in respect of the applicant. The migration lawyer is not acting for the applicant. The report is dated 22 October 2016 and refers to a history provided by the applicant. Much of this history is consistent with information and claims that were before the delegate and I am satisfied that this is not new information.
In the history in this report, the applicant makes two claims relating to a further involvement with the LTTE in 1996 and excavating a pit full of body parts in 1998. These claims were not before the delegate and are new information. I have considered the arrival interview conducted on 2 January 2013, the statutory declaration dated 3 January 2016 and the interview with the delegate on 6 April 2016 (the interview). The applicant's claims have remained reasonably consistent throughout these interactions. Although the applicant has referred to problems remembering exact dates and circumstances, (and this is supported by the psychological report), I am satisfied that the applicant has shown consistent recall of his key claims. I note that he was represented by a migration lawyer at the interview and the delegate clearly explained the importance of making full and complete claims at that time. I also note that the delegate gave the applicant a number of opportunities to raise any additional information and also advised the applicant and his lawyer that she would accept post-interview submissions. The post-interview submissions that were provided did not refer to any new or additional claims. Although I accept that the applicant has mental health issues as identified in the psychological report, I am not satisfied that there are exceptional circumstances to justify considering the new claims and pursuant to s.473DD(a) I have not considered them.
It is apparent that the Authority attempted to deal with the psychological assessment report in the same way as it might deal with submissions bearing upon the decision of the delegate. While it is appropriate, and often necessary, for the Authority to deconstruct written submissions in order to isolate new information (ie new asserted facts and circumstances) from submissions about facts and circumstances that were before the delegate, it was probably not open to the Authority to deal with the psychological assessment report in a similar way. That is because the report needed to be considered as a whole. The observations, opinions and recommendations expressed by the psychologist who prepared the report are not, in my opinion, severable from the history provided by the applicant to the psychologist. The report as a whole was either new information or it was not. In my opinion, it was new information because it was a medical assessment which was prepared after the decision of the delegate and which was undoubtedly of some relevance to the applicant’s claims.
The Authority plainly had regard to the report because it referred to the report at [6] and it appears to have been part of the evidence referred to in relation to mental health issues dealt with by the Authority at [32]-[33] and [50].
However, in order to deal with the psychological report, the Authority needed to satisfy itself of matters prescribed under s.473DD of the Migration Act. There is no evidence that it did so. The Authority appears to have excluded from consideration two elements of the history recounted to the psychologist on the basis that these were “new claims” while apparently dealing with the psychological report on the basis that it was part of the material from which sprung a claim which had not been specifically put.
The parties’ post hearing submissions
I made orders for the applicant and the Minister to file post hearing submissions concerning the Authority’s treatment of the psychological report and the additional claims made. In submissions filed on 5 March 2019 the applicant relevantly submits as follows.
The applicant’s new claims relating to his LTTE involvement and extent of torture was recorded in both the supplementary statement[18] and in the psychologist’s report (which was a summary/synopsis of the new claims).
[18] in greater detail at CB 148-152
Though the psychologist’s report and supplementary statement essentially refer to the same new claims (ie. the applicant’s involvement with the LTTE and that he was severely tortured by the SLA), the information was extracted by two different persons (one being the psychologist and other being the applicant’s representative) who had different skill sets in being able to extract “shameful”[19] incidents of torture from victims like the applicant. It also appears from the evidence that the psychologist had seen scars in different parts of the applicant’s body, unlike the representative who does not appear to have seen any scarring.
[19] CB 481
When assessing whether there were exceptional circumstances to consider the supplementary statement and photographs, the Authority considered the observations, opinions and recommendations expressed by the psychologist who prepared the report,[20] however failed to consider content under the heading “Client’s description and history of the problem”,[21] which essentially is what was reported by the applicant to the psychologist with corroborating evidence (ie. scars which the psychologist confirms having seen).
[20] CB 489 at [14], CB 490 at [16], CB 490 at [17]
[21] CB 480
The applicant contends that, as the Authority took the approach of using the contents in the psychologist’s report for the purpose of assessing whether there were exceptional circumstances to consider the supplementary statement and photographs, it ought to have considered the whole report. This it did not do.
At [17][22] the Authority appears to have considered everything other than the content under the heading “Client’s description and history of the problem”[23] contained in the psychologist’s report when applying the s.473DD test for the purpose of assessing whether there were exceptional circumstances to consider the supplementary statement and photographs. This constitutes having severed the observations, opinions and recommendations expressed by the psychologist who prepared the report from the content under the heading “Client’s description and history of the problem” when assessing whether there were exceptional circumstances to consider the supplementary statement and photographs.
[22] CB 490
[23] CB 480
Though the facts in BBE17 may be different to the instant matter, there is one thing in common, namely that the Authority severed the observations, opinions and recommendations expressed by the psychologist contained in the psychologist’s report from the “history provided by the applicant to the psychologist”[24] contained in the same psychologist’s report, for the purpose of assessing whether there were exceptional circumstances under s.473DD to consider the supplementary statement and photographs which formed part of the new information put to the Authority.
[24] BBE17 at [25]
However, unlike in BBE17, there was no uncertainty as to whether or not the psychologist’s report was considered as a whole to be new information, as the Authority did make a positive finding concerning this piece of new information, treating it as a whole document.[25]
[25] CB 488 at [7]
The applicant notes that the question that this Court may need to answer, however, is whether the Authority has the power to sever the observations, opinions and recommendations expressed by the psychologist contained in the psychologist’s report from the content under the heading “Client’s description and history of the problem” contained in the psychologist’s report, after the psychologist’s report (as a whole document) has met the two limb test in s.473DD for the purpose of conducting a fresh assessment of new information (ie. the supplementary statement and photographs). The applicant maintains that the fact that contents under the heading “Client’s description and history of the problem” contained in the psychologist’s report was similar in content with what was contained in the supplementary statement does not negate the obligation to consider this information in the psychologist report separately.
The applicant submits that the Authority fell into error in any event, because, once the psychologist’s report had been found to have met the s.473DD test, this would mean the “Client’s description and history of the problem”, being the relevant summary of his claims, was considered as the Authority found exceptional circumstances that justified the consideration of the “whole report”. However, what the applicant reported to the psychologist and what the psychologist saw (ie. scarring) was not dealt with when considering if the supplementary statement and photographs met the s.473DD test.
The Minister responded in submissions filed on 26 March 2019 as follows.
The Minister submits that the Authority did not err in its consideration of the information in the psychological report of Mr Abiyat (Report) as:
a)it is not an error to treat different information within a document in a differential manner for the purpose of s.473DD of the Migration Act; and
b)even if that were not correct:
i)it was not an error on the facts of this case for the Authority to treat the information within the Report in a differential manner; and/or
ii)even if it was an error, it was not a material error.
As noted above, in BBE17, this Court stated:[26]
It is apparent that the Authority attempted to deal with the psychological assessment report in the same way as it might deal with submissions bearing upon the decision of the delegate. While it is appropriate, and often necessary, for the Authority to deconstruct written submissions in order to isolate new information (ie new asserted facts and circumstances) from submissions about facts and circumstances that were before the delegate, it was probably not open to the Authority to deal with the psychological assessment report in a similar way. That is because the report needed to be considered as a whole. The observations, opinions and recommendations expressed by the psychologist who prepared the report are not, in my opinion, severable from the history provided by the applicant to the psychologist. The report as a whole was either new information or it was not. In my opinion, it was new information because it was a medical assessment which was prepared after the decision of the delegate and which was undoubtedly of some relevance to the applicant’s claims.
[26] at [25]
However, as Gageler, Keane and Nettle JJ observed in Plaintiff M174/2016 v Minister for Immigration[27] at [24]:
The term “new information” must be read consistently when used in ss.473DC, 473DD and 473DE as limited to “information” (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s.473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.
[27] (2018) 353 ALR 600
Thus a particular document may contain a number of items of information (various communications of knowledge about “particular” facts, subjects or events). Further, in such a case, some of those items of information may be “new information” and some of them may not fall within that statutory concept.
Further, and in reasons that are said to be entirely consistent with the statement in Plaintiff M174/2016, the Full Federal Court has held that the term “documents” in s.473DC(1) designates the means by which new material is provided to the Authority, rather than the content of that material. So, in Minster for Immigration v CLV16[28], the Full Court held in relation to “documents” and “information”[29] that:
…The natural and ordinary meaning of the term “information” is “[c]ommunication of the knowledge of some fact or occurrence” …. Albeit less certain, it is nevertheless further concluded that the term “documents” in s.473DC(1) is confined to the means whereby the “knowledge of some fact or occurrence” is conveyed to the Authority.
[28] [2018] FCAFC 80; special leave refused: see CLV16 v Minister for Immigration & Anor [2018] HCATrans 266
[29] at [51]
The Full Court continued:[30]
The expression “new information” as defined in s.473DC(1)…seeks to identify the sources whereby new factual material is sought to be placed before the Authority.
[30] at [54]
An essentially identical approach can be seen in each of the following authorities:
a)in considering documentary submissions provided by applicants to the Authority, the Full Federal Court has implicitly approved (or at the least raised no issue with) the Authority distinguishing between argument about an established pool of factual information (not “new information” for the purpose of s.473DC(1)) and new assertions of fact (“new information” for the purpose of s.473DC(1));[31]
b)the Federal Court has rejected an argument that a document containing a faithful translation of a document which was before the Minister’s delegate was “new information” within the meaning of s.473DC(1);[32] and
c)the Federal Court has found that a new “claim” contained in a written submission concerning the effect of existing information (the fact of a charge of sexual assault which had been subsequently withdrawn) was “new information” for the purpose of s.473DC(1).[33]
[31] see CLV16 at [78]; EEM17 v Minister for Immigration [2018] FCAFC 180 at [42], [44]; Minister for Immigration v CQW17 [2018] FCAFC 110
[32] ABJ17 v Minister for Immigration [2018] FCA 950 at [22] and ff
[33] CVK16 Minister for Immigration (2017) 257 FCR 297, recently approved by Griffiths J in ADN18 v Minister for Home Affairs [2018] FCA 1677 at [39] noting there was no inconsistency between that decision and the decision of the plurality in Plaintiff M174/2016 at [17] and [24]
The Minister contends that it necessarily follows from the authorities identified above that the exercise of power under s.473DD does not require an “all or nothing” approach to the question of new information which appears within a document. That is because a particular document may contain a number of items of information (various communications of knowledge about “particular” facts, subjects or events). It also necessarily follows that in such a case, some of those items of information may be “new information” and some of them may not fall within that statutory concept. Indeed, there is some (albeit limited) authority suggesting just such an approach may be validly applied to documents containing medical opinions based upon factual material of the nature in issue here. For example, in CIH16 v Minister for Immigration,[34] Derrington J found that there were two separate and distinct pieces of information in a doctor’s letter; the factual history as recorded by the doctor, and a medical opinion,[35] and found that jurisdictional error had arisen as the Authority had failed to apply the second limb of s.473DD(b) when considering the medical opinion.[36] However, nowhere did Derrington J suggest that there was any relevant error in relation to the Authority’s determination, pursuant to s.473DD, that the factual history should not be considered.[37] A similar approach was taken by the Authority in DYS16 v Minister for Immigration[38] and again the Full Federal Court did not suggest that any relevant error arose in that regard.[39]
[34] [2018] FCA 1317
[35] at [59]
[36] at [60]
[37] see [53], [57], [59]-[60]
[38] [2018] FCAFC 33; see [10]
[39] see [36]-[41]
To the extent that BBE17 held otherwise the Minister submits that it is not correct to apply an “all or nothing” approach in the present case, given the new information that was before the Authority.
My decision in BBE17 was appealed to the Federal Court, which handed down judgment on 26 April 2019.[40] Murphy J allowed the applicant’s appeal on a new ground (that the Authority had overlooked a claim). His Honour stated the following in relation to the ground of appeal relevant to this case:[41]
Ground 1 in the amended notice of appeal alleges that the primary judge erred in not finding that the Authority fell into jurisdictional error by failing to treat the whole of the psychologist's report as new information under ss 473DC and 473DD of the Act.
The Minister filed a notice of contention in relation to this ground of appeal, by which he says that the decision of the Federal Circuit Court to dismiss the application should be affirmed on another basis: that the Authority did not err by treating the two elements of the history recounted to a psychologist and contained in a psychologist's report as new information within the meaning of section 473DC(1) of the Act and by excluding that new information from consideration under section 473DD.
I can see little merit in Ground 1 of the appeal but, in light of my conclusion that the appeal should be allowed under Ground 2 it is unnecessary to deal with this ground.
[40] BBE17 v Minister for Immigration [2019] FCA 573
[41] at [12]-[14]
The Minister contends that, even if my views in BBE17 were correct, the facts of this case cannot give rise to any logical error. BBE17 is premised upon the history recorded by the psychologist (which contained the “new information”) as being the basis for the opinions expressed by the psychologist.
However in this case, as explained in detail in oral submissions and briefly in the Minister’s primary written submissions,[42] the “new information” recited in the Report could not logically be the foundation for the opinion Mr Abiyat reached about the applicant’s psychological functioning: that is, an inability to think coherently due to PTSD and dissociative amnesic states.[43] This is because the applicant’s new statement which also contained the “new information” made plain that this information was not previously supressed traumatic memories, which had only now resurfaced, but rather memories he claimed he always had but had decided to deliberately withhold because, for rational reasons, he was concerned that the Australian government could operate like the Sri Lankan government and he had concerns about the interpreters.[44]
[42] at [5]–[6]
[43] at CB 481
[44] CB 148 at [3]–[6]
Accordingly, there was no logical or apparent link between the “new information” in the Report and the opinion proffered by Mr Abiyat. That distinguishes the facts of this case from those considered in BBE17.
Further, the Minister submits that even if BBE17 is not distinguished on the basis set out above, like BBE17, any error was not material.[45]
[45] Minister for Immigration vSZMTA [2019] HCA 3 at [2]-[4]; Hossain v Minister for Immigration (2018) 359 ALR 1 at [30]
There can be no doubt that the material which the Authority did exclude from consideration under s.473DD was in fact new information. As set out in the Minister’s primary written submissions,[46] the Authority’s reasons cogently explained the applicant’s new claims were not convincing, having regard to, among other things:
a)the fact he had been represented by a specialist refugee advocacy service in preparing his first written claims;[47]
b)the care with which the delegate had questioned the applicant about the accuracy of his written claims and invited him to provide any further information;[48]
c)the inconsistency of the psychological report claiming that the applicant may have difficulty with traumatic events when the applicant had previously been able to detail other allegedly traumatic events;[49]
d)the applicant’s responses to the delegate about his family’s involvement in the LTTE which were again not consistent with the claim to fear that his information given to the delegate would be provided to Sri Lankan authorities;[50] and
e)the applicant’s claims that he was now comfortable with a female interpreter because she had been on the telephone when his previous statement prepared by his earlier refugee advocate had been prepared with the assistance of a female interpreter over the telephone.[51]
[46] at [5]–[6]
[47] CB 489 at [12]
[48] CB 489 at [13]
[49] CB 489 at [14]; 490 at [16] – [18]
[50] CB 489 at [15]
[51] CB 490 [17], see CB 84
In short, and as in AQU17 v Minister for Immigration[52], the Minister submits that the Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible (notwithstanding the fact that, as in AQU17, it did not make any finding in express terms in respect of the s.473DD(b)(ii) requirement).
[52] [2018] FCAFC 111; special leave refused: see AQU17 v Minister for Immigration [2018] HCASL 327; see at [16]
Acceptance of that submission is said to lead to the consequence that if the “new information” was not considered “credible” information by the Authority then it could not have made any difference whatsoever to the reasoning of the Authority and the ultimate outcome of the decision. Thus, even if the exclusion of that material involved some form of error, it could not have the character of jurisdictional error.
Finally, and for completeness, the Minister submits that the applicant’s further submissions of 5 March 2019 are not entirely accurate and in part impermissibly seek to expand Ground 3 of the amended application handed up in Court on 1 March 2019. In particular:
a)it is said not to be correct that the Authority considered the Report “as a whole” as falling within s.473DD of the Migration Act.[53] On the contrary, the Authority is said to have made plain that information within the Report that it considered to be “new information” was information as to the applicant’s psychological functioning;[54] and
b)Ground 3 of the amended application only raises the relationship between the Report and the new claims in the applicant’s new statement. There is no allegation of error with respect to the photographs.[55]
[53] applicant’s submissions at [8], [12]
[54] CB 487 at [7]
[55] cf applicant’s submissions at [9]
The applicant did not take up the opportunity to file submissions in reply.
Resolution
The Minister is correct, and the applicant is incorrect, in describing how the Authority dealt with the psychologist’s report. The Authority did not consider the report as a whole. The Authority only considered the report insofar as it provided new information about the applicant’s psychological functioning. It clearly did not consider those elements of the applicant’s recited history which constituted new claims.
The Minister is also correct in submitting that the authorities do not establish that s.473DD requires an “all or nothing” approach to new information in a document. My observations in BBE17 were not intended to suggest that an “all or nothing” approach is required by the section. On the contrary, I pointed out (as has been confirmed by the cases referred to) that it will be frequently necessary for the Authority to deconstruct a document to sever new claims from old and asserted new facts from argument about existing facts. That assumes, however, that a document can be deconstructed in that way. In BBE17 I doubted that the psychologist’s observations, opinions and recommendations in that case could be severed from the history on which they were apparently based. In a particular case the Authority may fall into error by attempting to unscramble an omelette. Such an error may be characterised in several ways, such as an unreasonable exercise of the discretion conferred by the section, or a misunderstanding of its requirements.
The Minister is incorrect in submitting that the new claims made by the applicant could not be the foundation for the opinion of the psychologist about the applicant’s psychological functioning. It was not the case that the applicant had suppressed traumatic memories, as the Minister notes. This, however, overlooks the obvious point that the applicant had chosen not to reveal precisely the detail of his LTTE involvement because of the harm he had suffered at the hands of the Sri Lankan authorities, and his fear that the truth of his involvement would place him at future risk of such harm. The issue was an apparent lack of trust and confidence in the protection assessment process, rather than the applicant’s psychological condition, which stemmed from his experience of past harm. The psychologist nevertheless linked the applicant’s PTSD to his past asserted experiences.
I also disagree with the Minister’s submission that the Authority, while not making any express finding under s.473DD(b), was not satisfied that the new information was credible. In my view, the Authority limited its credibility assessment to the proffered reasons why the new claims had not been advanced earlier. Nowhere in the Authority’s assessment of whether to receive the new information do I find any consideration of the credibility of the new claims themselves. The reality is that there was a logical arguable connection between the nature of the new claims and the failure to reveal them earlier. The applicant was now claiming to be a long term, hard core and senior intelligence operative of the LTTE which gave him a profile that would expose him to a real risk of serious harm on return to Sri Lanka if the truth became known. These claims, if true, would fundamentally impact upon the review.
At [33]-[34] of Plaintiff M174/2016, the High Court enunciated the following approach to s.473DD(b)(ii):
The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term "personal information" takes its defined meaning within the Act of "information or an opinion about an identified individual, or an individual who is reasonably identifiable". Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously "known" might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to "extend the types of 'new information' that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister". The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
Accordingly, all 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)
In the present case, the Authority merely considered opportunities the applicant had to advance the information and failed to consider whether the information, had it been known earlier, could have affected the consideration of the applicant’s claims.
It was not sufficient to dwell entirely on the explanation for the failure to reveal the claims previously, regardless of how careful and detailed that consideration was (and it was). The Authority clearly gave detailed consideration to s.473DD(b)(i) but the same consideration in relation to s.473DD(b)(ii) is not evident. While that of itself may not be an error going to jurisdiction, the seriousness of the new claims impacted upon the consideration of exceptional circumstances. The Authority needed to consider the credibility of the claims for the purposes of considering exceptional circumstances and it failed to do so. That failure, consistently with BVZ16 v Minister for Immigration[56] and related authorities, constitutes a jurisdictional error and the applicant should receive the relief he seeks.
[56] [2017] FCA 958
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. I will make orders for the constitutional writs of certiorari and mandamus to issue.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 June 2019
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