ECQ17 v Minister for Immigration

[2018] FCCA 2421

FEDERAL CIRCUIT COURT OF AUSTRALIA

ECQ17 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2421

Catchwords:
MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision not to grant temporary protection visa – whether IAA proceeded on a narrow view of the meaning of “exceptional circumstances” when considering whether to consider new information – whether IAA failed to have regard to the nature of the new information when considering whether exceptional circumstances exist to justify considering the new information – whether IAA was required to depart from delegate’s findings without giving prior notice to applicant – whether IAA found documents not genuine on the basis of a general credibility finding adverse to the applicant – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.5H(1), 36(2), s.36(2A), 473DC, 473DD

Cases cited:

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

BCY17 v Minister for Immigration & Anor [2018] FCCA 2044

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

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12

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

Minister for Immigration and Border protection v CRY16 [2017] FCAFC 210

Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50

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

HCA 16

Applicant: ECQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2856 of 2017

Judgment of: Judge Manousaridis

Hearing date: 3 August 2018

Date of Last Submission: 3 August 2018

Delivered at: Sydney

Delivered on: 31 August 2018

REPRESENTATION

Applicant in person assisted by an interpreter

Solicitor for the Respondents: Mr A Fisher of HWL Ebsworth

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2856 of 2017

ECQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a citizen of Sri Lanka, seeks judicial review of a decision of the second respondent (IAA) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Temporary Protection visa (XD 785) (TPV).

Background

1. The applicant departed Sri Lanka illegally by boat on 27 September 2012, and entered Australia on 14 October 2012. He was interviewed on 16 October 2012 by an officer of what is now known as the Department of Home Affairs (entry interview). He was granted a Humanitarian Stay Visa (Temporary)(UJ449) (Humanitarian visa) on 29 May 2013 which ceased on 5 June 2013.

2. The applicant lodged an application for a TPV on 11 January 2016.

Claims for Protection

1. In a written statement (Statement) accompanying the applicant’s TPV application (Form 866B), the applicant made the following claims:[1]

   [1] CB87

   a)The applicant was born in Jaffna in 1971. He lived in Mandathivu in Jaffna. He is a Roman Catholic, and Tamil.

   b)In December 1986 the applicant completed his schooling and began fishing with his father, elder brothers, and younger brother.

   c)In 17 June 1990 the Sri Lankan army captured Mandathivu. On 18 June 1990 the applicant moved to a coastal village.

   d)On 20 July 2008 the applicant moved from his village and stayed in Jeyapuram owing to shelling. The applicant and his family lived there for some days and the army chased them away.

   e)On 15 August 2008 the applicant and his family moved to Killinochchi where they stayed for some days, before moving between several areas and finally arriving in the Mathalam coastal area.

   f)The applicant and his family faced shelling and shooting for two months and spent time in bunkers. Owing to the army advancing they could not come out.

   g)In April 2009 the army took the applicant and his family to Iranaipalai for two days.

   h)On 22 April 2009 the applicant and his family were taken to a camp, where they stayed for two months until June 2009 when they were taken to another camp. Inside the camp the applicant was interrogated. The applicant and his family stayed there for four months.

   i)In October 2009 the applicant and his family returned to the applicant’s native area where he “did fishing thereafter”.

   j)On a day in 2011 at 10 pm a thief entered the applicant’s house. The applicant caught the thief and “made a noise that a thief had come into our house”. All the neighbours came running and beat that person up, tied him, and handed him to the navy officer who was in charge of the applicant’s village. When the officer questioned the thief in the presence of the applicant and other villagers, he confessed he was from the navy. Later, the applicant’s name and address were taken by the officer, who said they would investigate.

   k)Some days later, when the applicant came in from fishing, he needed to obtain a pass. At that time navy personnel asked the applicant his name and told him “you are the person who beat up our colleague.” “They” threatened the applicant, and this became worse day by day.

   l)It did not seem to the applicant that this would stop. Later, when he travelled to Jaffna and came back, “they” detained the applicant and “asked the same thing”. This happened ten to fifteen times.

   m)When the applicant went home and told his wife she became very scared and asked the applicant not to go anywhere. The applicant stayed at home from that time onwards. When he was at home he read “newspaper news”, and found out that people were travelling to Australia to seek refuge. His wife told him “you don’t stay here. If you stay here your life ill [sic] be in danger. Go to Australia and save your life”.

   n)After the incident with the thief who was a navy person the applicant lived a fearful life. He could not leave the house, or go to Jaffna. A similar incident happened to another young person who later disappeared.

   o)The applicant is fearful that he will be killed as he was involved in catching a navy person who came to his house as a thief.

2. In addition to the claims contained in the Statement, in answer to question 3 in the Form 866B the applicant stated “I was brought to Court in Negombo for trying to depart Sri Lanka illegally”.[2] In answer to question 86 of the Form 866B the applicant placed a tick in the box next to the word “Yes” which, in turn, appeared next to the question: “Have you been found guilty or convicted of a crime or any offence in any country?” In response to the request that the applicant provide details, he stated: “for trying to leave Sri Lanka illegally detained for 4 days in Negombo prison – court proceedings still pending”.[3]

   [2] CB3

   [3] CB31

3. The applicant attended a temporary protection visa interview on 11 May 2016 (TPV interview) and made the following additional claims:

   a)The applicant made an unsuccessful attempt to depart Sri Lanka illegally by boat in early September 2012. The boat was intercepted by the Sri Lankan Navy (SLN). The applicant was detained by the Sri Lankan authorities for four days and asked to provide a statement. The applicant was brought before the court in Negombo where he was represented by a lawyer, and subsequently released on bail. The applicant was required to return to court for further legal proceedings, but he departed Sri Lanka illegally by boat on 27 September 2012. The applicant fears that if he is returned to Sri Lanka, he may be harmed as a result of this outstanding court case and for not complying with the legal proceedings. [4]

   b)The applicant also previously obtained a Sri Lankan passport with the intention of travelling to Saudi Arabia or Qatar to find work to support his large family. After learning that the potential income was not much higher than what he was already earning in Sri Lanka, he decided not to go. The passport was issued in 2005 and valid until 2010. [5]

   c)Sometime after the incident with the thief, when passing local check points and showing his pass the SLN personnel would sometimes make comments like “you are the one who hit one of our men”. He would ignore the comments. The applicant estimated that over the period of 20 months this occurred 10-15 times. The applicant was fearful because of an incident involving local young men, some four or five years previously. The young men were playing soccer when a SLN officer on a bike rode through their game. They became angry and beat up the SLN officer. Later, two of the young men disappeared after being stopped and put in a white van. [6]

   [4] CB122

   [5] CB122

   [6] CB499, [13]

4. The applicant made an additional claim in a letter from a priest dated 14 November 2016 (Priest’s Letter) which, as I note later, the IAA accepted as new information and which it considered pursuant to s.473DD of the Migration Act 1958 (Cth) (Act).[7] The Priest’s Letter repeats claims the applicant had previously made and adds, among other things, that even after the applicant left Sri Lanka the SLN continues to visit the applicant’s family and “frequently harass the family”; and that they visited the family on a day in May 2017. The applicant had submitted to the delegate a letter dated 14 November 2016 from the same priest which stated, among other things, that the SLN “frequently” visits the applicant’s home, even in October 2016 when the SLN interrogated the applicant’s wife about his whereabouts.[8]

   [7] A copy of the letter is at CB491

   [8] CB470

Additional information before the IAA

1. On 28 November 2016 the IAA received submissions and further information from the applicant. The IAA did not consider that the submissions constituted new information to the extent that the submissions discussed evidence, including country information, which was before the delegate and responded to the delegate’s decision based on that material.[9] The further information consisted of:

   a)country information in the form of links to a number of articles;

   b)the Priest’s Letter;

   c)a letter from a Regional Coordinator of the Human Rights Commission of Sri Lanka;

   d)a Sri Lankan Police message form (together with an English translation).

   [9] CB497, [2]-[3]

2. The IAA considered each of these items to be new information because they were not before the delegate. The IAA found that, other than the Priest’s Letter, all the new information “pre-dates the date of the delegate’s decision”.[10]

   [10] CB497, [4]

3. The IAA was not satisfied that there were exceptional circumstances to justify a consideration of the new information except for the Priest’s Letter.[11] The IAA noted the applicant did not provide any explanation why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known and which, had it been known, may have affected the consideration of the applicant’s claims, other than to say he enclosed new evidence that “evinces” that his claims and fear of harm from the SLN are credible. The IAA also noted that at the TPV interview the delegate explained to the applicant the importance of providing his full claims as early as possible and that he may not have another opportunity to do so.

   [11] CB497, [4]

4. The IAA recorded that it also obtained new information pursuant to s.473DC(1) of the Act in the form of country information regarding conditions in Sri Lanka from the most recent Department of Foreign Affairs and Trade country report, being a report dated 24 January 2017. On 30 May 2017 the IAA invited the applicant to comment on the new information. On 19 June 2017 submissions and further information were provided on the applicant’s behalf in response. The IAA was satisfied that the new information provided should be considered.[12]

   [12] CB498, [6] – [7]

The IAA’s reasons

1. The Authority accepted the applicant’s claims about his address history, including his family’s displacements and the time he spent in displaced persons camps (IDPs); his being fisherman; the incident in January 2011 with the thief; the thief’s being a member of the SLN; the applicant afterwards having issues with SLN at checkpoints on about 10 to 15 occasions; and his family’s having been occasionally questioned about the applicant’s whereabouts because he and others from the applicant’s village had left Sri Lanka.[13]

   [13] CB500-501, [18]

2. The IAA, however, did not accept the applicant’s claims that he was detained for four days and brought to Negombo court for trying to depart Sri Lanka illegally, and found the applicant fabricated this claim.[14] First, although the applicant recorded in the Form 866B that he was detained, he did not make that claim in the Statement.[15]

   [14] CB501, [21]

   [15] CB501, [20]

3. Second, none of the supporting documents the applicant provided with the Form 866 mention the applicant’s unsuccessful attempt to leave Sri Lanka, and several of the letters “confirm that he was never charged in a court or wanted by the Sri Lankan authorities”.[16]

   [16] CB501

4. Third, during the initial part of the TPV interview the applicant said he had not tried to leave Sri Lanka previously, he had not been intercepted in a boat before his departure, he had never been brought before a court in Sri Lanka, and that when he departed Sri Lanka for Australia it was the first and only time he attempted to depart from Australia; but when he was reminded he had claimed that he had been brought to Negombo Court for trying to leave Sri Lanka illegally, the applicant reacted with surprise, stating that he had so many other worries he forgot.[17]

   [17] CB5210, [20]

5. Fourth, during the TPV interview the applicant stated that his wife, possibly as guarantor, attends court when the matter comes up; that a lawyer attends each time and somehow gets the matter adjourned; the applicant’s wife attended court in December 2015; and the applicant’s wife was next due in court in August 2016. The delegate asked the applicant to provide supporting documents. The applicant later provided to the delegate a letter dated 19 May 2016 from a lawyer, and two letters dated 15 September 2012, one purportedly from the applicant’s wife, and the other purportedly from the applicant’s brother.

   a)The letter from the lawyer stated he represent the applicant in the court proceedings, the applicant was bailed on two sureties and a cash deposit, that the applicant is required to attend court, but since the applicant failed to attend a court warrant has been issued for the applicant’s arrest; and the applicant can be arrested at any time if he returns to Sri Lanka.

   b)The purported letters dated 15 September 2012 from each of the applicant’s wife and the applicant’s brother were addressed to the Divisional Secretary stating that the applicant has never been engaged in subversive activities, or charged in any court or wanted by the police, and requesting that these matters be certified so they can apply for bail.

6. The IAA found that the letter from the lawyer did not refer to the applicant’s wife’s attending court in December 2015, or to the matter having been adjourned to August 2016. Further, the IAA did not consider it plausible that, if an arrest warrant were issued the applicant would be unaware of that fact or fail to mention it to the delegate when discussing the court proceeding. The IAA also found that the purported letters dated 15 September 2012 from the applicant’s wife and the applicant’s brother were inconsistent with the letters dated November 2012 the applicant provided with the Form 866B; those letters do not mention any unsuccessful attempt by the applicant to leave Sri Lanka, and one of the letters (being a letter dated 12 November 2012 from a justice of the peace) stated the applicant was never charged in a court or wanted by the Sri Lankan authorities.[18] Based on these matters, together “with the general incidence of document fraud in Sri Lanka”, the IAA concluded the letters from the lawyer and the applicant’s brother and wife were not genuine.[19]

   [18] CB501, [20]

   [19] CB501-502, [21]

7. The IAA also did not accept the claims made in the Priest’s Letter that the SLN continues to visit and frequently harasses the applicant’s family because it did not find it plausible that, after an absence of two or so years, the authorities would suddenly decide to again ask about the applicant.[20] The IAA referred to the applicant’s also having provided to the IAA without any explanation a copy of a purported letter dated 18 May 2018 requiring the applicant to appear before the SLA Regiment to be charged under the Prevention of Terrorism Act, but in effect found the document also was not genuine.[21]

   [20] CB502, [22]

   [21] CB502, 22]

Claim based on being Tamil fisherman from the North, LTTE links, and imputed political opinion

1. The IAA accepted the applicant and his family lived in areas that were controlled by the Liberation Tigers of Tamil Eelam (LTTE) during the war; the applicant gave food to the LTTE on occasion; the applicant and his family were held in IDP camps from April to October 2009 and he was interrogated in the camps and also twice shortly after his return to Mandathivu; the thief incident as recounted by the applicant; that after the incident on ten to fifteen occasions SLN personnel at checkpoints commented about the applicant being the person who beat up or assaulted one of their colleagues and would look at him and nod their heads; the applicant knew some young men who disappeared after an earlier incident in which they beat up a member of the SLN; and that after the applicant left Sri Lanka the authorities enquired of his family about his whereabouts on a number of occasions up to mid to late 2014.[22]

   [22] CB506, [37]

2. The IAA, nevertheless, was satisfied the applicant will not face a real chance of persecution from the Sri Lankan authorities if returned to Sri Lanka, now or in the reasonably foreseeable future, because of any real or perceived links to the LTTE, or for any imputed political opinion, or because of the thief incident, or because the applicant is a Tamil male and a fisherman from the North. The IAA principally relied on country information, and in particular, the following:

   a)the current government of Sri Lanka is focused on post-conflict reconciliation, transitional justice, and governance and economic reform, and that Sri Lankans of all backgrounds generally have a low risk of experiencing official discrimination;[23]

   b)the monitoring and harassment of Tamils in the North and East has significantly decreased, and there have been significant positive developments for Tamils in the country’s politics;[24]

   c)although a person’s real or perceived links with the LTTE may give rise to a need for international refugee protection, originating from an area that was previously controlled by the LTTE does not by itself do so;[25]

   d)torture, whether perpetrated by the military, intelligence, or police forces, is not presently systemic or state sponsored and the risk of torture from military and intelligence forces has decreased since the end of the war;[26]

   e)Sri Lankans face a low risk of mistreatment that can amount to torture, and allegations of torture pertain to a relatively small number of cases compared to the total population; white van abductions are now seldom reported, and the number of torture complaints has reduced, although new cases of Tamil victims continue to emerge, both of torture and occasional white van abduction, and the authorities continue to monitor people, particularly in the north and east and persons perceived to sympathise with the LTTE continue to be intimated, harassed, arrested, detained and tortured.[27]

   [23] CB502-CB503, [26]-[28]

   [24] CB504, [32]

   [25] CB504, [33]

   [26] CB505, [33]

   [27] CB506, [36]

1. Based on its acceptance of this country information the IAA did not accept that the visits by the authorities to the applicant’s house from after he left and up to 2013 were demonstrative of the authorities specifically targeting the applicant for any concerns other than his illegal departure.[28]

   [28] CB506, [39]

2. The IAA was also satisfied that the chance of the applicant suffering harm from either the thief or the SLN as a result of the thief incident is remote because; although the SLN made adverse comments and looked at the applicant after the thief incident, this occurred only on ten to fifteen occasions despite the applicant’s daily interactions with the SLN; the applicant was never arrested, further detained or physically harmed on those occasions; the applicant did not claim that he had any other dealings with the thief after the incident; the applicant had heard the thief had subsequently left the area; and more than six years had elapsed since the incident occurred.[29]

   [29] CB507, [40]

Claims based on identification as a failed asylum seeker and illegal departure from Sri Lanka

1. The IAA accepted that if he is returned to Sri Lanka the applicant will be identified as an asylum seeker, but it did not accept the applicant will be at risk of adverse attention from the Sri Lankan authorities when scrutinised on his arrival in Sri Lanka.[30] The IAA relied on country information that showed that the risk of mistreatment or torture for the majority of returnees, including those suspected of offences under the Immigrants and Emigrants Act 1949 (Sri Lanka) (IE Act) is low and continues to reduce. The IAA acknowledges there was country information that showed that those suspected of links with the LTTE would be at risk of adverse attention from the Sri Lankan authorities, but the IAA was satisfied the applicant’s profile was such that he would not be of interest to the Sri Lankan authorities.[31]

   [30] CB508, [49]

   [31] CB508, [49]

2. The IAA accepted the applicant will face action under the IE Act. In particular the IAA accepted the applicant is likely to be detained and questioned at the airport for up to 24 hours before being taken by the police to the nearest magistrate’s court; once before the court, and if not dealt with on the spot in response to the applicant’s pleading guilty, the applicant would be released unconditionally or be bailed to return to court on a later day; if the magistrate is not available immediately after the applicant is questioned at the airport, the applicant could be held in a nearby prison for a short time; and given the applicant was present on the boat by which he arrived to Australia only as a passenger, the applicant will only be fined for breaching the IE Act. The IAA was also satisfied the action under the IE Act the applicant would face would apply to all persons who had left Sri Lanka in breach of the IE Act and, therefore, what would occur to the applicant if he were to return to Sri Lanka would be the application of a law to him that is not applied on a discriminatory basis. The IAA, however, was not satisfied that in these circumstances the applicant faces a real chance of persecution, now or in the reasonably foreseeable future, on the basis of being a failed Tamil asylum seeker who departed Sri Lanka illegally.[32]

   [32] CB509, [57]

3. Given these findings, the IAA was not satisfied the applicant was a “refugee” within the meaning of s.5H(1) of the Act; and, therefore, it was not satisfied the applicant met the criterion provided for by s.36(2)(a) of the Act.

Complementary protection

1. The IAA accepted the applicant may face some level of discrimination as a Tamil fisherman from the North, and that he may face incidents of his fish being taken and some harassment due to various registration and pass requirements if the applicant takes up fishing again. The IAA was not satisfied, however, that this would amount to “significant harm” as that expression is defined in s.36(2A) of the Act.[33] The IAA repeated the substance of findings it had already made about the risks of harm to the applicant based on his being a Tamil from the North; and about what would occur to the applicant on his return to Sri Lanka, and considered whether what the applicant would experience on his return to Sri Lanka would amount to “significant harm” as that expression is defined in s.36(2A) of the Act. The IAA concluded it was not satisfied the applicant faced a real risk of significant harm if he were to return to Sri Lanka and, for that reason, the applicant did not satisfy the criteria provided for by s.36(2)(aa) of the Act.

   [33] CB510, [61]

Grounds of Application

1. The applicant’s grounds of application are as follows (errors in original):

   Ground 1 – The IAA appears to have applied an unduly narrow interpretation of the term “exceptional circumstances”, and 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.

   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…”

   2. More details to be provided once the court book is provided.

   Ground 2 - The IAA committed legal error by failing to have regard to s473DD (b) of the Migration Act when considering if exceptional circumstances does exist to justify considering the “articles, letters and a Sri Lankan police message form”

   Particulars

   1. s473DD(b)(i) requires a “factual enquiry as to whether or not the new information could have been presented to the Minister”

   2. s473DD(b)(ii) on the other hand requires “an evaluation of the significacnt of the new information in the context of an pplicant’s claims more generally” See: BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958, paragraph 57.

   3. The IAA accepted that “The letters and message form refer to the applicant” and therefore on the face of it was “credible personal information”.

   4. The IAA does not appear to have considered this new information it considered to be credible personal information against the s473DD(b)(ii) criteria. 

   5. Failing to do so amounts to a legal error.

   6. More details will be provided once the court book is provided to the applicant.

   Ground 3 – The AAT failed to consider an integer of the applicant’s claims that were put forward before the delegate See – In NABE v Minister for Immigration and Multicultural and Indigenous affairs (No 2).

   Particulars

   a. The applicant provided supporting document about his court matter to the delegate [20].

   b. The IAA makes its own findings regarding the contents of these documents.

   c. It is unclear if the delegate raised any concerns regarding the court documents.

   d. Should the IAA have deviated from a positive finding made by the delegate concerning the court documents tendered in post the delegate’s interview, the IAA would have committed legal error for railing to put the client on notice that it would be deviating from a positive finding made by the delegate.

   e. More details to be provided once the court book is made available.

   Ground 4 – The IAA committed jurisdictional error at [21], by rejecting documentary evidence “out of hand” See: Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (4 June 2010) paragraph 36.

   Particulars

   a. The IAA rejected the applicant’s claim that he was detained for four days and that he was brought to Negombo court for attempting to depart Sri Lanka illegally [21].

   b. The applicant provided the delegate post the delegate’s interview a letter from a lawyer who confirmed that he represented the applicant’s arrest [21], the IAA rejected the claim and in doing so did failed to consider the evidence in support of the claim.

   c. It was not open for the IAA reject the claim without dealing with the documentary evidence.

   d. It was not open to the IAA to make a finding as it did at [22] and state that the lawyer’s letter was not a genuine document.

2. The applicant, who is not legally represented, made no oral submissions to me. He stated “there is nothing more I can say”. In the remainder of these reasons, therefore, I will consider each of the grounds stated in the application.

Ground 1

1. Ground 1 is directed to the IAA’s finding that there were no exceptional circumstances to justify considering any of the new information, other than the Priest’s Letter, that information being country information in the form of links to a number of articles, a letter from a Regional Coordinator of the Human Rights Commission of Sri Lanka dated 5 December 2012, and a Sri Lankan Police message form (together with an English translation) dated 21 July 2016. I take ground 1 to contend, at least in part, that the IAA made an error similar to the error White J found the IAA made in BVZ16 v Minister for Immigration and Border Protection.[34] Before I identify the error White J found the IAA made in BVZ16, it will be useful to say something about s.473DD of the Act.[35]

   [34] [2017] FCA 958

   [35] I repeat in the next three paragraphs what I said in BCY17 v Minister for Immigration & Anor [2018] FCCA 2044, at [23]-[27]

2. Section 473DD of the Act provides 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.

3. The expression “new information” is defined in s.473DC(1) of the Act to mean “any document or information that . . . were not before the Minister when the Minister made the decision under section 65; and . . . the Authority considers may be relevant”. And the notion of “exceptional circumstances” in the context of s.473DD was considered by Gageler, Keane, and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[36]

   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”. Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

   [36] [2018] HCA 16 at [30] and [31] (footnote omitted)

4. The operation of s.473DD of the Act has been considered by the Full Federal Court on a number of occasions, a recent occasion being Minister for Immigration and Border Protection v CQW17.[37] The effect of what the Full Federal Court said in CQW17 is that before the Authority may consider “new information” it must be satisfied of the matters stated in both s.473DD(a) and of either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act. In other words, the requirements of s.473DD(a) and either one of s.473DD(b)(i) or s.473DD(b)(ii) of the Act are cumulative. That the requirements of these two paragraphs are cumulative does not, however, imply that the Authority must consider them sequentially – first paragraph (a) then either one of paragraphs (b)(i) or (b)(ii). That is because matters that are relevant to assessing whether paragraph (a) is satisfied may also be relevant to assessing whether either of paragraphs (b)(i) or (b)(ii) is satisfied, and matters that may be relevant to assessing whether either of paragraph (b)(i) or (b)(ii) is satisfied may be relevant to assessing whether (a) is satisfied. This point was made by White J in BVZ16 v Minister for Immigration & Anor[38] in a passage that has been approved by the Full Federal Court on four occasions:[39]

   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.

   [37] [2018] FCAFC 110

   [38] [2017] FCA 958 at [9]

   [39] This passage was set out with approval by the Full Federal Court in CQW17 at [48] after which the Court noted: “His Honour’s view was affirmed in BBS16 at [102]-[103] (Kenny, Tracey and Griffiths JJ) and cited with apparent approval by the Full Court in CHF16 at [17]-[18] (Gilmour, Robertson and Kerr JJ) and DYS16 at [31]-[33] (Tracey, Murphy and Kerr JJ).”

5. In BVZ16 White J held that the IAA had confined “its consideration of whether there were exceptional circumstances to the evaluation of the” review applicant’s “explanation for not having provided the information earlier”; and by doing so “the IAA had applied an unduly narrow interpretation of the term “exceptional circumstances””.[40]

   [40] [2017] FCA 958 at [46]

6. Also relevant is the judgment of the Full Federal Court in AQU17 v Minister for Immigration and Border Protection.[41] In that case it was submitted the IAA had taken too narrow a view of what constitutes exceptional circumstances. The Full Federal Court noted, however, that the review applicant “was unable to point to any fact or matter materially bearing upon the Authority’s consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration”.[42] That implies that before it can be found the IAA has taken too narrow a view of what constitutes exceptional circumstances, it is necessary to identify some fact or matter materially bearing upon the IAA’s consideration as to whether it was satisfied of the requirement under s.473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration.

   [41] [2018] FCAFC 111

   [42] [2018] FCAFC 111, at [17]

7. As I have already noted the IAA relied on two matters for concluding it was not satisfied there were no exceptional circumstances for considering the new information. The first was the applicant did not provide any explanation why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known and had it been known it may have affected the consideration of the applicant’s claims, other than to say he enclosed new evidence that “evinces” that his claims and fear of harm from the SLN are credible. The second matter is that at the TPV interview the delegate explained to the applicant the importance of providing his full claims as early as possible and that he may not have another opportunity to do so.

8. It was reasonably open to the IAA to rely on these matters to conclude there were no exceptional circumstances that would justify the IAA considering the new information. Further, ground 1 does not identify any fact or matter that could be said to have been relevant to the Authority’s consideration of whether it was satisfied of the requirement under s 473DD(a) of the Act that was not taken into account but which, had it been taken into account, would have been relevant to its consideration. In these circumstances, I do not accept the IAA took a narrow, or too narrow a view of what constitutes exceptional circumstances for the purposes of s.473DD(a) of the Act when considering whether there were exceptional circumstances justifying its considering the new information.

9. Ground 1, therefore, fails.

Ground 2

1. This ground claims that when considering whether there were exceptional circumstances for the purposes of determining whether s.473DD(a) of the Act applied to the new information the IAA did not consider whether matters relevant to s.473DD(b) of the Act were also relevant to s.473DD(a). I do not accept that claim.

2. As I have already noted, when considering whether there were exceptional circumstances the IAA asked the applicant to explain, among other things, why the new information may be regarded as credible personal information that was not known and had it been known it may have affected the consideration of the applicant’s claims. That indicates the IAA considered whether the new information may be regarded as credible information that was not known and had it been known it may have affected the consideration of the applicant’s claims was relevant to its considering whether there were exceptional circumstances justifying the IAA’s  considering the new information.

3. Ground 2, therefore, also fails.

Ground 3

1. Ground 3 is directed to the IAA’s not accepting as genuine the documents the applicant provided in relation to what he claimed was a pending court case arising from his having been detained for four days following the SLN’s interception of the applicant’s attempt to leave Sri Lanka by boat. The documents are the letter purportedly from a lawyer, and two letters each dated 15 September 2002, one from the applicant’s wife, and the other from the applicant’s brother. The claim appears to be that the IAA did not accept the genuineness of the documents in circumstances where it was not clear the delegate had rejected the genuineness of the documents. The underlying premise of the ground is that it was not open to the IAA to make a finding different from that of the delegate without first giving the applicant notice of its intention that it may do so.

2. The delegate accepted the applicant’s claim that he made a previous attempt in early September 2012 to depart Sri Lanka and was intercepted by the SLN, that the applicant was detained for four days in Negombo and released on bail, and that there was a court hearing outstanding at the time he left Sri Lanka on 27 September 2012.[43] The IAA, however, was not bound to accept the delegate’s findings; and when considering whether it should make a finding different from that of the delegate, the IAA was not bound to give the applicant notice of the possibility of its making a finding that was different from the delegate’s finding. That follows from the following passages from the judgment of Full Federal Court’s in DGZ16 v Minister for Immigration and Border Protection:[44]

   [72] In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond. . . .

   [76] It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.

   [43] CB436, [59]

   [44] [2018] FCAFC 12, at [72] and [76]

1. In his written submissions the Minister noted that where in a particular case the IAA decides a review on a different issue to the delegate, it may fall into error if it unreasonably fails to consider whether to exercise its discretionary power under s.473DC to get documents or information from an applicant.[45] I accept the Minister’s submission that the IAA did not in the case before me decide the applicant’s case on any issue different from the issues the delegate considered, but simply reassessed the material the delegate considered.

   [45] First Respondent’s Outline of Submissions, [25], referring to Minister for Immigration and Border protection v CRY16 [2017] FCAFC 210

Ground 4

1. Ground 4 is also directed to the IAA’s not accepting as genuine the documents the applicant provided in support of what he claimed was a pending court case arising from his having been detained for four days following the SLN’s interception of the applicant’s attempt to leave Sri Lanka by boat; and it relies on the Full Federal Court judgment in Minister for Immigration and Citizenship v SZNSP.[46] In that case the Refugee Review Tribunal (RRT) found the visa applicant had fabricated her claim of fear of persecution and, because of the adverse credibility findings it made against the visa applicant, the RRT decided not to give any weight to a witness statement that apparently corroborated the visa applicant’s claims. The words the Tribunal used were: “Given the adverse credibility finding, the Tribunal does not give weight to the document”.[47] The Full Federal Court said:[48]

   [I]t was open to the RRT to assess the credit of the first respondent and then, in the light of that assessment, consider what weight should be given to the witness statement. This was the process followed by the RRT which it described in the sentence “Given the adverse credibility finding, the Tribunal does not give weight to the document”. Although expressed in the most cryptic terms, this statement shows that the RRT made an assessment of the value of the witness statement and then considered its effect in the light of the view it had formed to that point about the credibility of the first respondent.

   [46] [2010] FCAFC 50

   [47] [2010] FCAFC 50, at [13]

   [48] [2010] FCAFC 50, at [33]

2. In the case before me the IAA concluded the documents on which the applicant relied were not genuine; but it did not so conclude on the basis of a general credibility finding adverse to the applicant. As I have set out in paragraph 17 of these reasons, the IAA relied on a number of matters for concluding the documents were not genuine. It was reasonably open to the IAA to rely on each of those matters for concluding the documents were not genuine, and its so finding was reasonably open for the reasons it gave.

3. Ground 4, therefore, also fails.

Conclusion and disposition

1. The applicant has not succeeded on any of the grounds stated in the application. I propose, therefore, to order that the application be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date:  31 August 2018