ELQ17 v Minister for Immigration
[2020] FCCA 162
•27 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ELQ17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 162 |
| Catchwords: MIGRATION – Apprehended bias – where applicant contends decision of Authority that exceptional circumstances not shown to receive submissions stood in direct contrast to decision that such circumstances were demonstrated in relation to receipt of 2017 DFAT report – whether open to consider reasons of decision-maker in determination of apprehended bias based challenge – applicable principles – no error demonstrated. MIGRATION – Country information – whether Authority failed to consider country information – whether failure to consider contradictory information –weight attached to information – whether applicant’s profile was such as to expose him to a real risk of harm – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 430, 473, 473CB, 473DA, 473DC, 473DD, 474, 476 |
| Cases cited: ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054 |
| Applicant: | ELQ17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2138 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 4 June 2019 |
| Date of Last Submission: | 14 February 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 27 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Guo |
| Solicitors for the Applicant: | WLW Migration Lawyers |
| Counsel for the Respondents: | Mr A. Yuile |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The amended application dated 8 May 2019 be dismissed.
The applicant pay the costs of the first respondent fixed at $6,100.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2138 of 2017
| ELQ17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application dated 5 May 2019, the applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 31 August 2017 affirming a decision of a delegate of the first respondent (Minister) refusing to grant him a Protection visa pursuant to s.65 of the Migration Act 1958 (Act).
For the reasons which follow I have concluded that the application should be dismissed. In summary, I have concluded that the Authority did not misunderstand or mischaracterise the meaning of the phrase ‘exceptional circumstances’ in s.473DD(a) of the Act when deciding it was not satisfied that exceptional circumstances existed to justify its consideration of summaries of country information which had been prepared by the applicant’s lawyers. Nor was its decision attended by apprehended bias. Finally, I am not prepared to infer that the Authority failed to consider country information. To the contrary, the Authority decided that it should consider that information and it did so.
Background
The background to the application is essentially common ground and is taken from the parties’ respective submissions. The applicant, a male Sri Lankan citizen aged 39 years who is a Hindu of Tamil ethnicity, first came to Australia on 5 November 2012 as an irregular maritime arrival. He is from Trincomalee, in the Eastern Province of Sri Lanka.
Claims to protection
On 15 April 2016, the applicant lodged an application for a Safe Haven Enterprise visa (SHEV).
Insofar as is relevant to these proceedings, the claims to protection made in his visa application were based on his fear that Sri Lankan authorities might impute to him a pro Liberation Tigers of Tamil Ealam (LTTE) opinion because of the LTTE activities of his uncle,[1] his Tamil ethnicity,[2] and his treatment as a failed Tamil asylum seeker who departed Sri Lanka illegally.[3]
[1] Reasons dated 31 August 2017 (Reasons), [29]-[31].
[2] Reasons, [37]-[39].
[3] Reasons, [47]-[53].
In a statement attached to his application, the applicant described how in 1983 his father, a farmer, fled with his family from Trincomalee to Jaffna to escape inter-racial violence. He stated that after his family had escaped Trincomalee, police continued searching for his father until they managed to escape to India, illegally, in 1986. In 1989, the applicant and his family returned to Trincomalee but shortly afterwards fighting resumed, and in 1990 they again fled back to India. Whilst in India, the applicant studied and obtained a job as an air conditioner mechanic, and subsequently started his own business in that field. The applicant stated that, in 2010, he arrived back at his camp after the 6.00pm curfew, and was arrested and interrogated by Q branch[4] police who detained him until his father and sister had bribed the police to release him. In the meantime, the applicant’s mother had returned to Sri Lanka where she was questioned by the army and CID as to the whereabouts of the applicant and his father. The applicant claimed that his mother told him not to return to Sri Lanka under any circumstances. The applicant stated that until he was able to escape to Australia illegally in 2012, he had to constantly bribe Q branch police in his camp so as to avoid harassment.
[4] A branch of the Sri Lankan Police force within its Criminal Investigation Department.
The applicant evidently completed his SHEV application by himself without the assistance of an interpreter.
Three features of the applicant’s statement may be noted. First is that the initial seven and a half pages of the statement are comprised of detailed extracts of country information. Secondly, after the factual bases of his claims were set out, the applicant listed that country information. Thirdly, the applicant provided extensive country information with his statement and SHEV application. As appears below, the Authority’s treatment of country information is the subject of Grounds 1 and 1A.
On 4 November 2016, the applicant attended an interview with the delegate. After the interview, the applicant submitted an internet link to the Department containing an ABC report regarding an asylum seeker who died by self-immolation. While the applicant claimed to be involved in the reporting of this incident, the report submitted by the applicant did not refer to him or contain any images of him.
Delegate’s decision
On 14 February 2017, a delegate of the Minister refused to grant the visa and gave reasons for so doing. While accepting some of the applicant’s claims, the delegate was not satisfied that the applicant would face a real chance of persecution now or in the foreseeable future if he were to return to Sri Lanka.
The delegate accepted that: the applicant was a Hindu Tamil from Trincomalee; the applicant and his family had fled to India twice during the course of the Sri Lankan civil war; the applicant had not been in Sri Lanka since 1990; the applicant had been involved in the reporting of a Sri Lankan who had died as a result of self-immolation in Australia; the applicant’s uncle had been a member of the LTTE who had been killed (along with most of his family) as a result of an airstrike in 2009; the applicant’s mother had returned to Trincomalee.
The delegate accepted that Q Branch had responsibility for oversight of Sri Lankan refugee camps in India. However, it did not accept that the applicant had been considered by Q Branch to have been an LTTE member or that he had an adverse profile, or was otherwise of interest to Q Branch.
The delegate gave detailed consideration to extensive country information including a report from the Department of Foreign Affairs and Trade dated 18 December 2015 (2015 DFAT report) which stated that changes in the government and presidency of Sri Lanka meant that it was now safe for Tamils other than those who had high-profile LTTE connections (which the delegate found the applicant did not have). The 2015 DFAT report further stated that failed Tamil asylum seekers returning to the country who did not have high profile LTTE connections were unlikely to face serious harm while being processed upon return.
At the time of the delegate’s decision, DFAT had updated its report. A newer version, dated 24 January 2017 (2017 DFAT report), was in existence but was not before the delegate at the time of his decision.[5]
[5] Reasons, [10].
The delegate concluded that the applicant was not a person in respect of whom Australia owed protection obligations, either as a refugee under s.36(2)(a) or by way of complementary protection under s.36(2)(aa).
Authority’s decision
The matter was then referred to the Authority. By letter dated 17 February 2017, the Authority informed the applicant that the delegate’s decision had been referred to it for consideration. In light of the contention advanced by Ground 1 that the Authority erred by finding there were no exceptional circumstances to justify the consideration of certain new information, it is necessary to trace the detail of this issue.
On 7 March 2017, the Authority notified the applicant’s solicitors that it would grant an extension of time until 17 March 2017 for the applicant to provide submissions. On that date, the applicant’s solicitors provided written submissions to the Authority. By these submissions, the applicant’s lawyers advised the Authority of three errors that were exposed in the delegate’s decisional record: (1) the delegate had erroneously assumed that the applicant’s uncle had been killed in the 2009 air raid when he had not; (2) the applicant’s mother had been questioned by the CID on regular intervals; (3) the CID had told his mother that they knew the applicant was in Australia and that he would be arrested on return. The submissions emphasised how, to that point, the applicant had not been represented, and that it was evident he had frequently been distressed in the course of the interview process and was evidently in a state of high vulnerability. The submissions addressed key topics including country information on issues arising from the delegate’s decisional record. It referred expressly to the 2015 DFAT report. Further information was provided and included a report, Freedom from Torture, ‘Sri Lanka’ Update on torture since 2009 – May 2016, which is addressed in further detail below. These submissions concluded:
[The applicant] squarely falls into a risk profile as a young Tamil man from the Eastern Province, with an uncle who was a former LTTE member, with parents who have an imputed pro-LTTE opinion, who has been involved in activities in the Tamil diaspora attended by LTTE sympathisers, and who has been identified in Australia by the Sri Lankan authorities for his involvement in the reporting of [the] death [of the person who died by self-immolation]. If returned to Sri Lanka, there is a real risk the applicant will suffer persecution and/or significant harm. Accordingly, we submit the IAA ought to remit the decision to the Department with an appropriate direction.
Attached to the submissions were a number of documents, including: a statutory declaration made by the applicant; his mental health plan, and various news articles and other country information. In his statutory declaration, he clarified and corrected aspects of his history so as to address issues about which the delegate had been mistaken.
One of the attachments to the applicant’s submissions was a report of the US Department of State – Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2016, entitled Sri Lanka 2016 Human Rights Report (USDOS 2016 report). The country information in the USDOS 2016 report referred to the election in January 2015 of a new President and the election in August 2015 of a new coalition Parliament. It identified that civilian authorities generally maintained effective control over the security forces but that there were continued reports of conduct on the parts of police and security forces acting independently. The most significant problems identified in relation to human rights problems involved incidents of arbitrary arrests, lengthy detention, surveillance and harassment of various persons (including those perceived to be LTTE sympathisers). It noted that the government had taken some incremental steps to address these issues including by the arrest and detention of a limited number of military, police and other official personnel.
In the period 7-21 July 2017, the applicant provided three tranches of ‘new information’[6] to the Authority, comprising two lots of further country information together with a report from the International Truth and Justice Project, July 2017 (ITJP report). The two compilations of country information provided on 7 and 21 July 2017 respectively (July submissions) each referred to, and anticipated that the Authority might rely on, the 2017 DFAT report. Those submissions were said to provide other country information that was said to contradict, or at least qualify, other country information which the delegate had relied upon.
[6] Act, s.473DC.
In the email providing these documents, the applicant’s lawyers identified the post-decision country information, including information related to the continued persecution of persons connected to former LTTE members and requested it be taken into account.
On 7 July 2017, the applicant’s lawyers provided the Authority with a distilled iteration of updated country information, some of which had been drawn from the 2017 DFAT report and observed:
We note that the available country information; in particular, the 2017 DFAT Report on Sri Lanka, whilst noting the improved situation, has been unable to make a definitive finding that Tamil asylum seekers returning to the country will not be harmed. As such, until such time that the IAA can state with confidence that the applicant will not face persecution on their (sic) return to Sri Lanka, we submit that the current information clearly points to ongoing human rights abuses.
On 14 July 2017, the applicant’s lawyers provided a link to the ITJP report which it requested be taken into account by the Authority and in relation to which it identified the key findings of that report.
On 21 July 2017, the applicant’s lawyers provided a further detailed submission entitled Sri Lankan Country Information which addressed a variety of reports for which internet links were provided. While the submission expressed the following conclusion, it should be noted that the submission did not directly identify the passage of the 2017 DFAT report to which reference was being made:
We submit that this information points to the fact there remains in Sri Lanka, a sense of hyper-vigilance as to any possible LTTE or Tamil Separatist resurgences. It further evidences the fact that Sri Lankan Tamils with even the most tenuous of connections in the past to the LTTE remain very much at risk of harm. This is regardless of the length of time they have spent outside of the country because the rigorous checks conducted at the Airport on their arrival will inevitably alert the relevant authorities to that person's entire history once a name and citizenship check has been conducted.
The information clearly shows that the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on are not entirely accurate.
The 21 July 2017 submission requested that the new information which it contained be taken into account. The two compilations of country information provided by the applicant’s lawyers on 7 and 21 July 2017 are the subject of Grounds 1 and 1A.
Authority’s decision
On 31 August 2017, the Authority affirmed the decision of the delegate to refuse the applicant a Protection visa, providing a statement of its reasons for so doing (Reasons).
In its Reasons, the Authority identified the material that was before it: [4]-[14].[7] For present purposes, it may be noted that as concerned:
a)a large number of documents containing new information, the Authority was satisfied that exceptional circumstances were shown to justify that this information be considered; and
b)two compilations of country information provided to it in July 2017, the Authority was not satisfied that exceptional circumstances were demonstrated to justify that this information be considered.
[7] Reasons, [4], Act, s.473CB.
The Authority considered but did not accede to the application that it should interview the applicant: [13]. It considered the applicant’s claims for protection at [15] and proceeded to make its refugee assessment and whether the applicant was entitled to complementary protection.
The Authority found that while the applicant’s uncle did have past LTTE involvement and had been the subject of adverse attention by Sri Lankan security forces,[8] it did not consider that this translated into the applicant himself having a high profile. The Authority affirmed the visa refusal on the bases that, according to the submitted country information, Sri Lanka was now safe for Tamils as long as they did not have a high profile and,[9] Tamils returning from abroad who had made failed asylum claims would not face a real chance of serious harm or real risk of significant harm while being processed on return.[10]
[8] Reasons, [31].
[9] Reasons, [32]-[39].
[10] Reasons, [47]-[53].
Procedural history
On 5 October 2017, the applicant filed an application for judicial review of the Authority’s decision, together with an affidavit affirmed by the applicant’s solicitor to which he exhibited a copy of the Reasons.
By a response filed on 1 November 2017, the Minister opposed the application on the stated basis that it failed to establish any jurisdictional error in the Authority’s decision.
On 8 May 2019, pursuant to leave, the applicant filed an amended application together with written submissions and an affidavit affirmed by his solicitor annexing a copy of the 2017 DFAT report.
Judicial review
If the Authority’s decision was a privative clause decision[11], it is not amenable to judicial review. An Authority’s decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error.[12] Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Authority’s decision.[13] Whether it should do so is a separate issue.
[11] Act, s.474(2).
[12]Act, s.474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
[13] Act, s.476(2).
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[14] and, where appropriate, to order that the matter be remitted and reconsidered according to law.
[14]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Consideration
By his amended application, the applicant amended Ground 1, inserted Ground 1A and maintained Ground 2 of his original application.
Ground 1 – misconstruction of ‘exceptional circumstances’
Ground 1 of the amended application reads:
The Authority erred by finding that there were no ‘exceptional circumstances’ to justify considering some of the new country information.
Particulars
a.The error is the Authority’s misconstruction of the term ‘exceptional circumstances’ at paragraph 12 of its decision.
b. Further or alternatively, the error is the unreasonableness in finding that ‘exceptional circumstances’ existed to justify considering some of the new country information that was supportive of the Authority’s conclusions, but that there were no ‘exceptional circumstances’ for the other country information that contradicted the Authority’s conclusions.Little was said of the operation of Part 7AA of the Act. It is convenient to address those provisions in the context of the grounds of review in order to place the Authority’s decision in its proper statutory context.
Ground 1 engaged consideration of s.473DD of the Act that lies within Sub-Div C of Div 3, Pt 7AA and concerns Additional Information.
Subject to Part 7AA, the Authority may get any information that was not before the delegate when the decision subject to the referral was made and which it considers to be relevant (new information).[15] It has no duty to accept such information.[16] Section 473DD reads:
[15] Act, s.473DC(1).
[16] Act, s.473DC(2).
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the ImmigrationAssessment 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 newinformation 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.
Importantly, the applicant confined the complaint under Ground 1 as being concerned solely with whether the Authority had misconstrued the requirement in par 473DD(a); namely, that it was proscribed from considering any new information unless satisfied exceptional circumstances justified the information to be considered. The applicant expressly disclaimed any complaint in relation to the manner in which the Authority had addressed the proscription in s.473DD(b). The scope of the jurisdictional error raised by Ground 1 was accordingly confined.
Nature of error
There was dispute as to the precise basis upon which the applicant pressed Ground 1. On behalf of the Minister it was submitted that the applicant had avoided identifying what it was that constituted the Authority’s jurisdictional error in the manner of its rejection of the new information. This invited attention to the nature of the error being raised.
In this context, attention was drawn to BVZ16 v Minister for Immigration and Border Protection.[17] There, White J rejected a submission based upon an alleged failure to have regard to the personal circumstances of an applicant in evaluating whether exceptional circumstances were shown to exist that would justify consideration of new information. His Honour described that submission as constituting an invitation to assess the factual merits of the applicant’s case as distinct from engaging in the process of judicial review.[18] White J noted it had not been submitted that the considerations upon which reliance was placed were mandatory considerations that the Authority had been bound to consider in relation to whether exceptional circumstances were made out.[19] The analysis is useful in focussing attention on the nature of the error which is being advanced where the Authority is not satisfied exceptional circumstances have been shown and declines to accept new information.
[17] [2017] FCA 958, [44].
[18] [2017] FCA 958, [45].
[19] Ibid, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40.
However, as counsel for the Minister also observed, jurisdictional error was established in BVZ16 on a quite distinct basis. White J accepted that there had been a constructive failure to exercise jurisdiction grounded upon the Authority adopting an overly confined approach to the question of whether exceptional circumstances were made out. His Honour found that this had occurred for essentially two reasons. First, the Authority had regarded the inadequacy of the applicant’s explanation for not having provided the information earlier as dispositive of whether any exceptional circumstances were shown. Secondly, this approach was considered to reflect an inappropriately narrow understanding of the meaning of exceptional circumstances in the context of s.473DD(a). It is convenient to address those matters in a little further detail below.
Relatedly, the reasons of an administrative decision-maker may indicate that jurisdictional error was committed because the decision-maker had wrongly narrowed the question which had to be considered.[20]
[20] See, eg, Tanji v Minister for Immigration [2001] FCA 1100, [12] (Tamerlin J).
The present case involves a complaint of a qualitatively different kind to that raised in BVZ16 where the error in approach concerned the rejection of whether an adequate explanation had been given for failure to provide, at an earlier time, information which was specifically related to the applicant and, in particular, his claims of torture.[21] Here, the error was grounded upon a rejection of new information that was said to either contradict or at least qualify general information (being other country information) that was before it. It is immediately apparent that here, the impugned decision – a failure to be satisfied of the existence of exceptional circumstances – related to information that was of a general kind and not related specifically to the applicant in this case. Counsel for the applicant stated he had found no authority which concerned circumstances analogous to the present (including no case that was decisive against circumstances on which Ground 1 was based).
[21]BVZ16 [2017] FCA 958, [19]-[21]. The new information concerned the claims of the manner in which the applicant had been tortured including threats that the same treatment would be meted out to his wife.
In DYS16 v Minister for Immigration and Border Protection,[22] a Full Court rejected a challenge to the Authority’s decision to accept only part of a psychiatrist’s opinion as new information, but reject another, as not being irrational or illogical. The Authority had accepted the opinion in relation to a diagnosis of post-traumatic stress disorder but declined (perhaps unsurprisingly) to consider an opinion as to the applicant’s credibility. Tracey, Murphy and Kerr JJ doubted that s.473DD conferred a discretion to admit or reject new information, and instead characterised the provision as imposing a restraint against its consideration unless the two conditions which it contained were satisfied. This characterisation of the section is important to the nature of possible jurisdictional error.
[22] (2018) 260 FCR 260.
In DYS16, the question was whether the condition expressed in s.473(a) was satisfied.[23] Their Honours’ reasoning proceeded from recognition of an entrenched distinction between Ministerial satisfaction and a requirement that a particular fact or facts be shown to exist.[24] The Full Court described the distinction as important. The Full Court held that s.473DD(a) required the Authority to make an evaluative judgment when deciding whether it was satisfied that exceptional circumstances were shown as would justify the consideration of any new information on referral. The reasoning demonstrates that, upon the referral of a fast track reviewable decision, the Authority’s evaluative judgment whether to admit or reject new information from its consideration is circumscribed by long-settled principles as to the width of the power relating to the formation of Ministerial satisfaction. Those principles thus inform the nature of the power being exercised when the Authority undertakes the evaluative judgment required by s.473DD(a).
[23] (2018) 260 FCR 260, [16].
[24](2018) 260 FCR 260, [17]-[20] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 275-6; Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, [52], [54]-[56].
Despite attention being drawn to the Full Court’s decision in DYS16, and apart from the claim that the Authority had misconstrued the meaning of the expression ‘exceptional circumstances’ in par 473DD(a), it was not said that the decision was illogical, irrational or otherwise legally unreasonable. In a reply submission, counsel for the applicant reiterated that the amended application made clear the ground of jurisdictional error relied upon in Ground 1 was that an administrative decision-maker may commit jurisdictional error where the decision was reached upon a misunderstanding of the applicable law.[25] So much may be accepted.[26]
[25]Craig v South Australia (1995) 184 CLR 163, 177-178.
[26]Craig v South Australia (1995) 184 CLR 163, 179; Wu Shan Liang, supra (1996) 185 CLR 259, 275-276; Minister for Immigration v Yusuf (2001) 206 CLR 323, [82] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, [67], [72].
The principles identified in DYS16 underscore the importance, when deciding questions of jurisdictional error, of paying proper regard to the statutory context in which the Authority is proscribed from considering new information unless the two cumulative conditions in s.473DD are satisfied. In particular, judicial review is to be considered in the statutory context of Pt 7AA, Div 3, Sub-Div C and, in particular, that the Authority is proscribed from considering any new information unless, relevantly, it is satisfied exceptional circumstances are shown to exist.
While ss.473DC and 473DD govern[27] the circumstances in which the Authority may get and consider new information, a distinction should also be drawn between the nature of the statutory powers conferred by those provisions. Section 473DC confers a discretion[28] on the Authority to get new information but imposes no duty to do so. By contrast, and as noted above, it has been doubted that s.473DD confers a discretion.[29] Instead, s.473DD is cast in terms that impose significant limitations upon the use to which the Authority may make of such information unless the two cumulative conditions that it contains are satisfied.[30] The first condition is that the Authority is satisfied exceptional circumstances justify such new information being considered for the purposes of the referral. Given the scope of issues raised by Ground 1, the second of those conditions is not relevant to the present application.
[27] Act, s.473DA(1).
[28] BVZ16 [2017] FCA 958, [42].
[29] DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, [16].
[30] BVZ16 [2017] FCA 958, [42].
‘Exceptional’ circumstances
Further, s.473DD(a) does not require the Authority to be satisfied of the existence of any particular facts, but requires it to make an evaluative judgment as to whether it is satisfied that there are exceptional circumstances to justify considering the new information.[31] The phrase ‘exceptional circumstances’ is “inherently incapable of exhaustive statement” and is not a term of art. In the context of s.473DD, the expression bears a broad, ordinary meaning.[32] Equally, to be exceptional, a circumstance need not be unique or rare but “cannot be one that is regularly, or routinely, or normally encountered”.[33]
[31]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 [75]; DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, [17]
[32]Plaintiff M174/2016, [30]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111, [104].
[33] Plaintiff M174/2016, [30].
In BVZ16, White J examined the meaning of the phrase ‘exceptional circumstances’ in the context of a challenge raised under s.473DD(a). From his Honour’s review of authority,[34] a number of propositions may be stated in the consideration of whether exceptional circumstances are shown to exist in the statutory context of Pt.7AA of the Act:
a)while circumstances will be exceptional if they are unusual or out of the ordinary, the phrase may have a wider operation;
b)factors which affect a person and set him or her apart from others in comparable situations may constitute exceptional circumstances;
c)special circumstances need to be extraordinary and not factors attributable to all persons who are the subject of a fast track referral;
d)it is not necessary that a particular circumstance be ‘special’ – several factors in combination could be regarded as special;
e)circumstances may be constituted as special in a particular case by reason of their weight, quality or a combination of factors;
f)an exceptional circumstance need not be unique or unprecedented or very rare, but cannot be one that is regularly or routinely or normally encountered.
The determination of whether the circumstances for admitting new information are shown to be exceptional, will require consideration of all of the circumstances of the particular case.
[34]BVZ16 [2017] FCA 958, [39]-[43]; see also PlaintiffM174/2016, (2018) 353 ALR 600.
In BVZ16, White J considered that the meaning of the phrase ‘exceptional circumstances’ required account to be taken of the statutory context in which it was used. To that end, his Honour noted that Pt 7AA of the Act provided for a fast track process of review, a regime which entailed referral to the Authority as soon as possible for a review on the papers and, in general, for this to occur without accepting any new information or any interview of the review applicant. His Honour noted that the Authority was proscribed from considering any new information unless each of the two conditions in s.473DD were satisfied, and that the circumstances must be such as to justify the Authority to give consideration to that new information.[35] These aspects of his Honour’s reasoning do not appear to have been considered in any later decision.
[35] [2017] FCA 958, [5], [42].
Relatedly, his Honour had regard to explanatory memoranda, albeit in relation to the proper construction of s.473DD(b).[36] White J’s analysis of those memoranda lends some support to a conclusion that where new information bore directly upon an applicant’s personal circumstances, the new information might be considered by the Authority.
[36] [2017] FCA 958, [54]-[57].
From this review, I accept the Minister’s submission that 473DD(a) does not require the Authority to be satisfied of the existence of any particular facts, but requires the Authority to make an evaluative judgment as to whether it is satisfied that there are exceptional circumstances to justify considering the new information.[37] I also accept that the phrase ‘exceptional circumstances’ is incapable of exhaustive definition and is not a term of art but a term with a broad, ordinary meaning.[38] As the authorities confirm, to be exceptional, a circumstance need not be unique or rare but it “cannot be one that is regularly, or routinely, or normally encountered”.[39] Further, I agree that factors which affect a person and set him or her apart from others in comparable situations may amount to exceptional circumstances. For those reasons, it may be more difficult to demonstrate exceptional circumstances where reliance is being placed on general country information in contrast with facts or circumstances which relate specifically to an applicant.
[37]Plaintiff M174/2016, (2018) 353 ALR 600 [75]; DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260, [17].
[38]Plaintiff M174 (2018) 353 ALR 600, [30]; BBS16 (2017) 257 FCR 111, [104].
[39] Plaintiff M174 (2018) 353 ALR 600, [30].
Where an applicant has supplied new information which related specifically to him or her and was shown to contradict or seriously qualify other information held by the Authority, I would accept that such information may satisfy the requirement of exceptional circumstances for the purposes of s.473DD(a). Indeed, in this case the Authority did accept that exceptional circumstances existed which justified it in correcting misunderstandings as to the applicant’s claims, history and his families’ circumstances: Reasons, [6], [29]. The evaluation whether exceptional circumstances are shown will always be fact intensive.
In the case of information that is of a general kind and not related specifically to the applicant, I consider the position to be quite different. Upon the principles addressed above, I consider that where the Authority’s evaluation has been to refuse to consider new information, the question of jurisdictional error will face a high threshold.
To say as much is to recognise that equally, the threshold of legal unreasonableness is also high and, for example, that extreme illogicality or irrationality must be shown before a conclusion of jurisdictional error is established. It is well settled that to establish jurisdictional error of that kind: (1) it is not enough for a question of fact to be one on which reasonable minds may come to a different conclusion; (2) a decision cannot be said to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.[40] By parity of reasoning, I also consider that the same caution should be exercised before concluding that the Authority had misunderstood or misconstrued the requirements of s.473DD in deciding whether it was satisfied exceptional circumstances were or were not shown to exist.[41]
[40] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
[41] Cf DYS16 (2018) 260 FCR 260, [18]-[19].
Resolution
Although the applicant submitted that Ground 1 might be most conveniently approached by first examining the 2017 DFAT report, I disagree. In my opinion, to appreciate the Authority’s consideration of whether to accept new information, it is useful to examine the approach that was taken as to all of it. The Authority at [5]-[12] considered all information which was sought to be relied upon by the applicant. It also considered how it should deal with the 2017 DFAT report that it had obtained: [10], [12], [14]. The Reasons demonstrate that the Authority considered each such item of information separately. Where the Authority concluded that the information was not new, it was put to one side. Where satisfied it was new, it gave individual consideration to whether it was satisfied that exceptional circumstances were shown so as to warrant its admission or rejection for the purposes of the fast track review. In many, but not all, cases the new information was accepted.
In the consideration of the various items of the further information that had been supplied, the Authority examined whether that information: was new information; could have been supplied to the delegate; was relevant; related specifically to the applicant or was general information, and, was satisfied that exceptional circumstances existed so as to justify the consideration of that new information for its purposes. Although the Authority did not refer expressly to s.473DD, the manner in which it approached its consideration of each item of new information confirms that it was conscious of the proscription against the use of such information and of the cumulative requirements that were pre-conditions to it being considered for the purpose of a fast track referral.
It is of assistance to the consideration of Ground 1 to appreciate how the Authority considered each of the further documents that had been supplied to or (in the case of the 2017 DFAT report), obtained by it. The Authority considered in relation to:
a)a submission made on 17 March 2017: that it related to claims which had been before the delegate and was not new information: [5];
b)a link to a television report: that it had been before the delegate and was not new information: [5];
c)a statutory declaration addressing errors in the delegate’s decision: the Authority was satisfied, having listened to an audio recording of an interview by the delegate on 4 November 2016, that there had been misunderstandings which were not apparent to the applicant until receipt of the decisional record. It was satisfied that this information: could not have been provided before the decision had been made; was directly relevant; and, exceptional circumstances existed to justify its reception by the Authority: [6], [29];
d)two medical reports: the Authority was satisfied that this information: pre-dated the delegate’s decision; was new; contained credible information that may have affected consideration of the applicant’s claims; could have been provided before the decision had been made, but was not provided by the applicant at a time when he was self-represented and evidently distressed; and, was directly relevant. It was satisfied that exceptional circumstances existed to justify its reception by the Authority: [7];
e)USDOS 2017 report: the Authority was satisfied that this information was new and could not have been provided before the decision had been made. Although an earlier iteration of this report had been considered by the delegate, the Authority was satisfied that the USDOS 2017 report contained more up to date and relevant information and that exceptional circumstances existed to justify its reception by the Authority: [7];
f)two documents relating to Indian refugee law: the Authority was not satisfied that this information related to the applicant personally or was otherwise relevant to the application. It was not considered. For the avoidance of doubt, the Authority stated that no adverse conclusions had been drawn against the applicant in relation to the circumstances of his departure from India: [7];
g)the ITJP report: the Authority accepted that this report had not been before the delegate, was new information and could not have been provided to the delegate. Although an earlier iteration of this report had been considered by the delegate, the Authority was satisfied that this report contained more up to date and relevant information and that exceptional circumstances existed so as to justify its reception: [8];
h)2017 DFAT report: the Authority noted that the 2015 DFAT report had been before the delegate but that the 2017 DFAT report had not. The Authority considered the 2017 DFAT report to be an authoritative source of country information which supplanted the 2015 DFAT report, and was satisfied that exceptional circumstances existed to justify its reception and consideration as new information: [10], [12], [14].
Thus, the Authority accepted that exceptional circumstances had been shown in relation to the items of information described in (c), (d), (e), (g) and (h) above, but not in relation to the items described in (a), (b) or (f). More generally, it cannot be said that the Authority gave the matter but passing consideration. Insofar as the Authority had located and considered the 2017 DFAT report, to have done so was consistent with the conduct of the review on the most up to date information available.
The Minister correctly submitted that several things should be taken from the matters above. First was that a large amount of country information had been before the Authority when it came to consider the July submissions. Secondly, this information included material provided by the applicant as well as material sourced by the Authority or the delegate. Thirdly, the Authority accepted the great majority of the new information that the applicant sought to put before it. Fourthly, in every case where an updated version of a report was before the Authority (whether provided by the applicant or sourced by the Authority), that updated report was accepted for consideration. I accept that each of those matters provided context to the Authority’s decision-making in evaluating whether exceptional circumstances were shown to justify accepting or rejecting the July submissions.
The Authority addressed at [9]-[12] whether exceptional circumstances had been shown to justify consideration of the new information contained in the July submissions. The following observations can be made respecting the approach taken in relation to the July submissions.
First, it recognised that: the documents had been prepared by the applicant’s lawyers; the applicant had not been previously represented; and, the information could not have been provided to the delegate.
Secondly, it observed that the information did not relate specifically to the applicant. The Authority stated at [9]:
The remaining two documents appear to have been prepared by the lawyer and contain summaries of general country information from a variety of sources. These were not before the delegate and are new information. As I have noted above, the applicant was not represented at the interview and the lawyer did not start acting for the applicant until after the decision was handed down. I accept that as these documents were prepared by the lawyer, they could not have been provided to the Minister before the decision. However, the documents contain general country information that is not specific to the applicant or his claims.
Thirdly, it addressed the applicant’s submission as to why the new information should be considered. It expressly recorded the applicant’s submission that the matters it set out “clearly shows the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department relies most heavily upon are not entirely accurate”: [10]. This reasoning confirms that the Authority well recognised the basis on which the applicant sought to demonstrate that exceptional circumstances justified the new information in the July submissions being considered.
Fourthly, as concerned the treatment of the 2015 and 2017 DFAT reports, the Authority stated at [10]:
The applicant has submitted that the information “clearly shows that the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on are not entirely accurate”. I note firstly that the delegate in this case considered the [DFAT] country information report dated 18 December 2015. Although DFAT released an updated version of the country information report on 24 January 2017, this was not before the delegate at the time of the decision. For the reasons I set out below however, I have considered part of the 2017 DFAT report and on that basis, I have considered the applicant’s submission re the DFAT reports.
(Emphasis added, omitting citations)
In light of that part of the passage which is emphasised above, it is of some importance to recognise that, contrary to Ground 1, the Authority considered the July submissions insofar as they related to the DFAT reports. To that extent, it was incorrect to say that either the 7 July or 21 July 2017 submission (each of which referred to the 2017 DFAT report) had not been considered.[42] The Authority’s later statement at [12] that it was not satisfied exceptional circumstances were shown to justify consideration of the new information in the July submissions must be read in light of the matters stated by the Authority in its Reasons at [10].
[42]The submission made on 14 July 2017 addressed the ITJP report (as to which the Authority was satisfied exceptional circumstances were shown to justify it being considered).
Further, as concerned the Authority’s treatment of the two DFAT reports, it paid regard to the credible nature of the source materials on which they were based. It observed at [11] that both versions of the DFAT report contained the following note at their commencement:
This report is based on DFAT’s on-the-ground knowledge and discussions with a range of sources in Sri Lanka, including Colombo, Jaffna and Kilinochchi. It takes into account relevant and credible open source reports, including those produced by the UK Foreign and Commonwealth Office, the US Department of State, the World Bank, the International Organisation for Migration; those from relevant UN agencies, including the Office of the United Nations High Commissioner for Refugees, the United Nations Office on Drugs and Crime, the United Nations Children’s Fund, and the United Nations Development Programme; recognised human rights organisations such as Human Rights Watch and Amnesty International; Sri Lankan non-governmental organisations and reputable news organisations. . . .
As to its decision that there were not exceptional circumstances to justify consideration of the July submissions, the Authority stated at [12]:
On the basis of the wide-ranging and divergent sources available to DFAT, I am satisfied that the DFAT reports can be regarded as reliable sources of evidence, but in any event there is also a significant amount of other country information in the material, including recent governmental, non-governmental and media reporting. Having regard to the amount of information already in the material, the sources and probative weight of that information and the fact that this new information is general country information, I am not satisfied that there are exceptional circumstances to justify considering the new country information provided by the applicant’s lawyer.
Thus, the Authority was conscious of the quantity of other information that it had and that the proposed new information was of a general character and not specifically related to the applicant.
While the applicant submitted that the reference to ‘material’ in [12] should be taken to be a reference to the material supplied to it by the Secretary,[43] in my view, giving the Reasons a fair reading, it is more likely that the reference to ‘material’ was a reference to that which had been provided by the Secretary together with the several other sources of new information that it decided it was also justified in considering (being all of the material referred to in the Reasons at [5]-[8] as to which it decided exceptional circumstances existed to justify its consideration).
[43] Reasons, [4], Act, s.473CB.
In summary, the Authority decided there were no exceptional circumstances that would justify considering the July submissions because: it was general information; it did not relate specifically to the applicant; it represented a summary of other country information; there was already a surfeit of other country information before it; the other country information was from respected sources; insofar as the July submissions related to the DFAT reports it decided to consider them; and, it said that it had considered them.
It was correctly submitted that it was not the case that the 2017 DFAT report and the July submissions were the only documents that had been supplied to the Authority with a request to be considered on review. Counsel for the Minister submitted that the applicant sought to make too much of a difference in the way the Authority had dealt with the 2017 DFAT report as compared with the applicant’s July submissions. It was correctly submitted that by isolating that report and the submissions from all the other material, the applicant sought to present those documents in something of a vacuum, removed from the Authority’s acceptance, that in some cases, exceptional circumstances were shown to exist and that it was justified in considering much of the country and other information that the applicant had placed before it.
Consistent with the principles considered above, I agree that resolution of whether exceptional circumstances were shown to justify consideration of the July submissions required an appreciation of all the facts and circumstances of the case, including the extensive material that was before and had been submitted to the Authority:
a)the Authority had before it, as part of the “review material” that had been provided by the applicant to the delegate, extensive country information from different sources including that which was contained in the delegate’s decisional record;
b)it also had before it the 2015 DFAT report, the USDOS report, UK government country information and other official country information including that referred to by the delegate;
c)the Authority considered that the applicant’s March submission was not new information and that the documents relating to the refugee law of India were not relevant (but did not draw adverse inferences in relation to the issues which they addressed);
d)the Authority recognised that the July submissions contained summaries of general country information that had been prepared by the applicant’s lawyers. It identified that those summaries did not relate to the applicant specifically, and was not satisfied that exceptional circumstances existed to justify their reception;
e)it identified and accepted that exceptional circumstances were shown to justify consideration of: (i) two medical reports which related solely to the applicant; (ii) an updated version of the USDOS report; (iii) the ITJP report; (iv) the 2017 DFAT report.
As noted above, the Authority also concluded that, as it had considered part of the 2017 DFAT report, to that extent it had also considered the applicant’s July submissions in relation to the DFAT reports.
The applicant grounded much of his submission that the Authority had misconstrued the meaning of exceptional circumstances in s.473DD(a) upon what was said to be an illogical and inconsistent treatment of the July submissions as opposed to the 2017 DFAT report. Having framed the submission in that way, it would at least be consistent with authority to require that extreme illogicality be shown before concluding that the Authority had misconstrued the meaning of that phrase.
The applicant submitted that, having regard to the basis on which the Authority decided to consider the 2017 DFAT report, it should have been satisfied that exceptional circumstances existed to warrant consideration of the July submissions. The submission focussed upon the Authority’s description of the 2017 DFAT report at [14] as containing information which ‘supplements’ the 2015 DFAT report and its conclusion that there were ‘exceptional circumstances’ justifying its consideration.
As the applicant submitted, while the Reasons stated that ‘the information relating to the treatment of returned asylum seekers in the 2017 report is substantially the same as the information that was in the 2015 report’, this did not detract from its conclusion that there were ‘exceptional circumstances’ to justify its consideration. However, contrary to this submission, this was not the only basis on which the 2017 DFAT report was received. As the Reasons at [11]-[12] made plain, the Authority paid regard to the source information from which the report had been compiled and identified the on-the-ground knowledge discussions and credible open source reports on which it was based.
The applicant complained of the parallel reasoning for the Authority’s decision that exceptional circumstances were not shown in relation to the July submissions. As noted, the Authority reasoned at [12] that:
Having regard to the amount of information already in the material, the sources and probative weight of that information and the fact that this new information is general country information, I am not satisfied that there are exceptional circumstances to justify considering the new country information provided by the applicant’s lawyer.
The applicant contrasted the Authority’s decision to accept the 2017 DFAT report on the basis that it merely supplemented the 2015 DFAT report with its decision that, because of the amount of country information already before it, exceptional circumstances were not shown to also justify the consideration of the July submissions. However, the Authority also considered that the July submissions were based on general information that was not specific to the applicant. It correctly concluded that it had a range of country information before it.
Having regard to the volume of country information that was before it, I do not consider it to be extremely illogical for the Authority to have rejected further general country information, particularly in circumstances where the Authority had accepted a good deal of further information, including that which had been placed before it by the applicant.
The applicant also submitted that the Authority’s explanation at [12] obscured the nature of the new information, which was said to contradict, or at least qualify, the other country information that the Authority did consider. As to this:
a)the 7 and 21 July submissions were also said to contain information contradicting the proposition that the situation for Tamils had markedly improved;
b)the 21 July submission was said to have been expressly prepared in anticipation of the possibility that the Authority would rely on the 2017 DFAT report and that the submission directly contradicted the other information relied upon by the Authority at [35]-[38] for the proposition that only persons with LTTE connections, or a particular profile and threshold, would be at real risk of harm.
While it is necessary to identify how the applicant contended the new information contradicted or qualified the 2017 DFAT report, it should be recognised that neither of the July submissions descended to this level. Although each of those submissions referred to the 2017 DFAT report, they did not refer to particular aspects of that report or suggest, or demonstrate, where or why parts of that report were contradicted or qualified by matters addressed in either of the July submissions.
The following contradictions or qualifications were suggested as being matters which supported a conclusion the Authority had been in error in not being satisfied of exceptional circumstances.
First, the 7 July submission referred to the case of a 62 year old woman who had been imprisoned for harbouring a suspected LTTE cadre. This was said to contradict a statement by the Sri Lankan government that the position of returnees had improved, and at odds with the Authority’s finding that “there is no information that a mere or indirect family association is, of itself, enough to expose a person to serious harm”.[44] Nowhere in the applicant’s case was it being suggested that he had been suspected of harbouring LTTE suspects. Information of this kind did not relate to his circumstances specifically. More generally, it was a matter for the Authority to be satisfied the circumstances relating to this case were exceptionally related to this case in the sense described.
[44] Reasons, [32].
Secondly, the 21 July submission referred to instances of abduction and torture. This was relied upon as contradicting information contained in the 2017 DFAT report at [4.21]-[4.22]. As to this:
a)DFAT had expressly acknowledged at [4.21] a small number of allegations of torture and mistreatment being raised by asylum seekers. At this level, the applicant’s submission did not contradict, but agreed with, the matters which DFAT expressly acknowledged.
b)the 2017 DFAT report stated at [4.22]:
Thousands of asylum seekers have returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment. Although it does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act. Overall monitoring has reduced under the Sirisena government and community fear of mistreatment has also decreased.
The applicant correctly submitted that this information was identified in the 2017 DFAT report at fn 15 to [4.22] as the source of the Authority’s statement in the final sentence of [47] of the Reasons that:
I am satisfied that the applicant departed Sri Lanka illegally as a child in 1990 and has not returned. I accept that given the information before me, there is a possibility he would be assessed by the Sri Lankan authorities as having sought asylum in Australia. DFAT has assessed the risk of torture or mistreatment for the majority of returning Tamils is low, including for those suspected of offences under the Immigrants and Emigrants Act . . .
Insofar as the 21 July submission was said to contradict those matters, three matters must be recognised: (1) that the source of the applicant’s submission was the ITJP report; (2) the ITJP report was one of the items of country information in relation to which the Authority was satisfied that exceptional circumstances were shown so as to receive it; (3) the Authority considered that report. As it transpired, the Authority, in effect, preferred the best evidence – the source document – over a secondary source; namely, the applicant’s submission which placed the author’s emphasis on the information being relied upon.
In this context, the Authority expressly acknowledged the nature of the allegations of abuse of returnees as described by the ITJP and others, including other sources of country information that the July submissions had distilled: Reasons, [48] . In doing so, the Authority stated that all of those reports of abuse related to “returnees who were known or suspected LTTE cadre[s] or had another adverse profile with the Sri Lankan authorities.” By contrast, even though this was general country information, it was not suggested that the applicant was in a comparable position to those persons. Specifically, it was not suggested that the applicant was an LTTE cadre or that he had an adverse profile with those authorities. In my opinion, the information in the July submissions did not contradict or qualify the 2017 DFAT report in a way that had a material bearing upon the applicant’s circumstances.
Thirdly, the 21 July submission described Sri Lanka’s enforcement of its Prevention of Terrorism Act as having had a disproportionate impact on Tamils. This was said to be inconsistent with the 2017 DFAT report which had been relied upon by the Authority for the proposition that ‘the risk of harm for the majority of returnees, including those suspected of offences under the I&E Act is low’.[45] A difficulty with this complaint is that the 21 July submission relied upon the ITJP report as its source of information. As noted, the Authority had accepted that exceptional circumstances were shown to justify the ITJP report being considered.
[45] Reasons, [59]; see also [47], [50].
Fourthly, the 21 July submission referred to the proposed enactment of a new Counter Terrorism Act which “if enacted, would guarantee the continued violation of the human rights of terrorism suspects”. It was at no point explained why this proposed legislation was of specific relevance to the applicant’s circumstances or any of his claims.
It was further submitted that whether the Authority had an incorrect understanding of the meaning of exceptional circumstances in s.473DD(a) fell to be ascertained having regard to the statutory context of Part 7AA.[46] Unlike the position at common law, Part 7AA did not confer an entitlement to a hearing,[47] contained no requirement for the Authority to invite the applicant to comment on contrary country information which the Authority might obtain[48] and entitled the Authority to proactively obtain other information which it might not be required to put before an applicant for comment.[49] It was correctly submitted that this statutory context applied to the present case as there had been no hearing, the Authority had proactively obtained the 2017 DFAT report, and no comment had been sought from the applicant.
[46] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27.
[47] Act, s.473DB(1)(b).
[48] Act, ss.473DA.
[49] Act, 473DE(3).
However, while it was said that the 2017 DFAT report had been “applied unfavourably to the applicant, and in a way which was not subject of any opportunity for comment”, I disagree. As other parts of the July submissions demonstrated, and as was submitted before me, the applicant had in fact anticipated the reception of the 2017 DFAT report and made submissions in relation to it. Insofar as a complaint on review must be considered in light of the way in which the matter had been conducted below, the applicant’s July submissions had not expressly analysed specific parts of the 2017 DFAT report or identified information that it contained so as to explain where or why it disagreed with it. Further, the Authority expressly recognised the applicant’s submission that the new information on which it sought to place reliance was said to show that the 2017 DFAT report was ‘not entirely’ accurate. Finally, the Authority stated at [10] that it would consider the July submissions insofar as they addressed the DFAT reports. I do not agree that the information now sought to be relied upon contradicted the 2017 DFAT report in the way suggested or that, in a practical sense, the applicant had been denied the opportunity to comment.
It was submitted that, for the purposes of s.473DD(a), a correct construction of ‘exceptional circumstances’ could not have permitted the Authority to reject the applicant’s new information in its entirety where there was other country information already before it and where the new information was said to contradict, or at least qualify, the other country information which the Authority had accepted. The applicant submitted that the Authority had therefore been in error in concluding that the matters it had identified at [12] denied the existence of exceptional circumstances. However, in my view, to have framed this submission in those terms obscured the proper operation of s.473DD. The Authority was proscribed from considering any new information until, relevantly, it had been affirmatively satisfied that there were exceptional circumstances to justify it being considered. It was expressly required to not consider new information unless satisfied that exceptional circumstances were shown to exist. By extension, to adapt the reasoning in BVZ16, the consideration of new information was not a mandatory consideration for the purposes of a review under Pt 7AA. To the contrary, it was mandatory to treat as irrelevant all new information unless both of the conditions for its reception were satisfied.
In my view, the Authority’s decision that it was not satisfied there were exceptional circumstances to justify acceptance of the July submissions was logical, understandable and in keeping with authorities about the general value of current information.[50] The information was not specific to the applicant and did not answer the description of circumstances which should be considered to be exceptional. I do not accept that the decision it was not satisfied of such circumstances demonstrated extreme illogicality or displayed a misunderstanding or mischaracterisation of s.473DD(a) or of its several requirements. To the contrary, I agree that the Authority’s decision to reject the applicant’s summaries was well within the boundaries of the evaluative judgment required of it.
[50] See, e.g., Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431.
The applicant submitted that the Authority’s conclusion that there were no ‘exceptional circumstances’ for the reasons it expressed at [12] demonstrated an incorrect understanding of the proper meaning of that phrase in the context of s.473DD(a). For the reasons above, I am not satisfied that this is so.
Ground 1 is rejected.
Ground 1A: Apprehended bias
Ground 1A of the amended application reads:
A reasonable observer might apprehend that the Authority might not have brought an open mind to the review finding, for the reasons it gave at paragraph 12 of its decision, that there were no ‘exceptional circumstances’ justifying the consideration of particular country information.
The addition of Ground 1A may be explained by the circumstance that the counsel before me appeared in CNY17 v Minister for Immigration and Border Protection,[51] to which reference will be made below.
[51] [2019] HCA 50.
In substance, the applicant submitted a fair-minded observer, having knowledge of the processes provided by Part 7AA might consider that, in light of its rejection of the July submissions, the Authority had chosen to ‘cherry-pick’ the country information which it would consider and might turn a blind eye to that which would have been favourable to the applicant. It was said that a fair-minded observer might apprehend that the Authority might have had a closed mind on the issues which the rejected new information addressed. In a reply submission, the applicant emphasised that a fundamental aspect of the July submissions was that they contained information which contradicted the 2017 DFAT report and which the Authority had chosen to take into account. It was also said that a more accurate summary of the complaint raised by Ground 1A was that the Authority had refused to ‘listen’ to his argument that the 2017 DFAT report “should not be applied against him.”
Applicable principles
The applicant correctly submitted that the statutory context in which the decision fell for fast track review expressly preserved the bias rule.[52]
[52]Act, s.473FA(1); see also CNY17, [2019] HCA 50, [16] (Kiefel CJ and Gageler J).
There was, however, some dispute as to the scope of material which could be considered upon an application grounded on apprehended bias. In particular, there was initially dispute whether the reasons of the decision-maker could be considered.
In Michael Wilson and Partners v Nicholls,[53] Gummow ACJ, Hayne, Crennan and Bell JJ said:
. . . an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment.
[53] (2011) 244 CLR 427, [67].
In Michael Wilson and Partners, the plurality reasoned that the test of apprehended bias was objective and that it called for assessment of the facts and circumstances said to give rise to the apprehension and a conclusion that the decision-maker might not bring an impartial mind to determination of the issues. The reasoning indicates the essentially forward looking nature of the test of apprehended bias. Upon that reasoning, the plurality held that the test of apprehended bias did not permit consideration of actual pre-judgment, and in that way recognised an important distinction between the tests of apprehended and actual bias. For those reasons, their Honours cautioned against resort to the reasons for the decision under challenge, as impermissibly confusing the quite different inquiries undertaken in relation to actual or apprehended bias. Their Honours identified two further considerations as informing why resort to reasons was not permitted: (1) it is tantamount to allowing a losing party to contend that their loss was demonstrative of apprehended bias; (2) it would allow resort to the absence of reasoning on particular arguments as demonstrating apprehended bias.
In CNY17 v Minister for Immigration and Border Protection,[54] Mortimer J said in respect of the proscription against reference to the decision-maker’s reasons when addressing an allegation of apprehended bias affecting a decision made on review under Part 7AA of the Act:[55]
First and foremost, it means the Court does not look to what the Authority said in its reasons for decision. Second, it means the Court must place the hypothetical lay observer, and the impression such a person might form, at a relatively early stage of the Authority review, after receipt of the material from the Secretary, and then assess what apprehension might arise once the hypothetical lay observer understands the Authority is considering this material as it is working through its assessment, on the papers, of the appellant and of his claims.
[54][2018] FCAFC 159.
[55][2018] FCAFC 159, [18] (Mortimer J).
While Mortimer J had been in dissent as to the result in CNY17, the Full Court’s decision was reversed on appeal in a 3:2 majority.[56]
[56] CNY17, [2019] HCA 50.
In CNY17, Nettle and Gordon JJ approved[57] the above statement of principle in Michael Wilson and Partners when emphasising in this context that apprehended bias was an aspect of procedural fairness and that “principles of procedural fairness focus upon procedures rather than outcomes.” Their Honours’ reasoning underscored that the statement of principle in Michael Wilson and Partners above had been made by a four member plurality. Insofar as the applicant submitted that the plurality in Michael Wilson and Partners had merely cautioned against having regard to the reasons for the ultimate decision by reason of the risk of inverting the proper inquiry I consider the submission misstates their Honours’ statement of principle. It was not a caution.
[57] [2019] HCA 50, [68]-[69].
Contrastingly, in a dissenting judgment, Kiefel CJ and Gageler J stated:
The question whether conduct has resulted in a breach of the bias rule falls to be determined in light of the totality of the circumstances that exist at the time when that question arises. Where the question arises for determination after the Authority has made a decision on a review, the totality of the circumstances includes the decision and the reasons that the Authority has given for the decision.
Edelman J also agreed that reference to the reasons for a decision may be appropriate,[58] stating:
Apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry. If apprehended bias is assessed at the conclusion of a hearing, as the appeal in this case requires, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. It would be absurd if, on the one hand, remarks made by the decision-maker during the course of a hearing could be considered as part of an assessment of the presence of reasonable apprehension of bias but, on the other hand, remarks at the conclusion of the proceeding could not. However, remarks at the conclusion of a proceeding or in reasons for decision are only one of the circumstances to take into account. In Michael Wilson & Partners Ltd v Nicholls, a joint judgment of four members of this Court cautioned against the error of assuming a reasonable apprehension of a decision maker's bias and using comments in the reasons for judgment by the decision-maker to “confirm, enhance or diminish the existence of a reasonable apprehension of bias”.
[58] [2019] HCA 50, [134]-[135].
Kiefel CJ, Gageler and Edelman JJ thus accepted that the reasons may be considered in the evaluation of a claim of apprehended bias.
After argument in this application, I invited further submissions from the parties in light of the High Court’s delivery of judgment in CNY17.
One feature of the analysis in reasoning of Mortimer J on the one hand and Kiefel CJ, Gageler and Edelman JJ on the other is notable. While Mortimer J identified the necessity of locating the hypothetical lay observer at a relatively early stage of review by the Authority so as to identify the impression that this person might form (upon a proper understanding of the statutory context), Kiefel CJ, Gageler and Edelman JJ considered that the test for apprehended bias was to be applied in light of the totality of the circumstances then existing. Their Honours also considered that where the question of apprehended bias arose after the Authority had decided the fast track review, the totality of circumstances then included both the decision and reasons for it. As is apparent, their Honours’ reasoning adopt quite different perspectives. As the applicant correctly submitted, the reasons of Kiefel CJ and Gageler J do not cite or consider Michael Wilson and Partners while Edelman J did.
In my opinion, the risks of employing the reasons of an administrative decision-maker in analysing a challenge of apprehended bias should not be ignored. However, as the parties’ further submissions accepted, a distinction may be drawn between those cases in which a claim of apprehended bias as to the ultimate result turns on the decision-maker’s alleged conduct in the course of a final hearing or review, and those where the impugned conduct arises at an anterior, interlocutory, phase of the decision-making process. The applicant was clear that the present case fell within the latter category. That was because the basis on which the claim of apprehended bias was made essentially turned upon the Authority’s decisions, at one and the same time, to accept the 2017 DFAT report as new information and to reject the July submissions.
The hypothetical lay observer would also recognise that the Authority had expressly identified the applicant’s submission that the 2017 DFAT report was not entirely accurate: [10]. And in that context, the observer would know that the Authority had said that it had taken those submissions into account insofar as it had addressed the 2017 DFAT report: [10]. I do not accept that such an observer would then conclude that the Authority had not considered the July submissions to that extent. To the contrary, the Reasons at [32] confirm that the Authority acknowledged there was some information which indicated that persons could be accused of LTTE association upon the basis of tenuous links. The constant reference by way of footnotes to the Reasons confirms the extent to which the Authority paid regard to source information, including the media and other reports that it identified. Its use of that source material is important in the present case because it demonstrates that the Authority paid regard to information of the very kind upon which the July submissions themselves were based.
Contrary to the applicant’s submissions, it may be accepted that for the Authority to have sourced the 2017 DFAT report for itself and to have used such information was (i) commonplace for the Authority; (ii) within the scheme of Pt 7AA; and, (iii) negated by the fact that the applicant’s solicitors expected this and made submissions in relation to that report.
The applicant complained that the Authority’s justification for rejecting the July submission was that the other information which it had included relies on the 2017 DFAT report as ‘authoritative’,[74] and that the sources upon which it drew included ‘relevant and credible open source reports’ such as those from ‘recognised human rights organisations such as Human Rights Watch and Amnesty International’.[75] It was not suggested that those propositions were wrong. Instead, it was submitted that the rejection of the July submission on the basis that it already had enough information was also ‘spurious’ in that it had been prepared upon equally probative sources. For the reasons given above, I do not consider that a reasonable properly informed observer, aware of the context in which the Authority was obliged to review the decision, might think that it had closed its mind to the content of the July submission. Instead, the observer would recognise that in evaluating whether or not exceptional circumstances existed, and would justify the July submissions being considered, the Authority had the source country information before it and had, in effect, preferred to conduct its review on the basis of the best evidence, as distinct from a secondary source, such as submissions prepared on behalf of the applicant. I also reject the suggestion that such reasoning on the part of the Authority was in any way ‘spurious’.
[74] Reasons, [14].
[75] Reasons, [11].
The applicant’s further submission, which accused the Authority of ‘double standards’ in accepting the 2017 DFAT report, but at the same time rejecting the July submissions, was expressed in a conclusory form. It did not explain or demonstrate how the decision of not being satisfied that exceptional circumstances had been made out established the Authority was guilty of ‘double standards’. The ‘double standards’ submission draws attention to the warning stated in Michael Wilson & Partners of the vice which is inherent in a result driven analysis of bias.
Objectively, the reasoning at [5]-[14] and in particular those given by the Authority at [9]-[12] of the Reasons do not support a conclusion that the Authority did not bring an impartial mind to the decision.
Exercising the caution that is appropriate when evaluating claims of apprehended bias and recognising the strictness of the applicable test, I am not satisfied that such bias is made out.
Ground 1A is rejected.
Ground 2 – failure to consider information
Ground 2 of the amended application reads:
The Authority failed to consider country information before it that was inconsistent with its conclusion that there was ‘no information that a mere or indirect family association [with the LTTE] is, of itself, enough to expose a person to serious harm’.
Particulars
The country information before the Authority which was inconsistent with its conclusion included:
a.The UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, December 2012, at pp 26-27.
b.The International Truth and Justice Project report, Unstopped: 2016/17 Torture in Sri Lanka’, July 2017, at pp 4, 5, 8, 20-21, 22, 60, 73 and 85.
In substance, the applicant contended the Authority’s decision was tainted by error that was jurisdictional in nature, grounded upon an alleged failure to consider the information identified in those particulars. In oral submissions, the scope of the complaint altered somewhat.
Applicable principles
The lack of reference to material evidence in the reasons of an administrative decision-maker may in some cases sustain an inference that it was not considered to be material to its process of reasoning.[76] It may also be accepted that in some cases where there are contradictory pieces of evidence which were objectively material and relevant to an applicant’s argument, the decision-maker may be required to undertake a process of explaining why a conclusion should be drawn consistent with one piece rather than another.[77] Equally, in Minister for Immigration and Multicultural Affairs v Yusuf,[78] McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed), rejected the submission that an administrative decision-maker was subject to “a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make”. The plurality stated in relation to s.430 of the Act:
Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made.
[76]MZYTS, (2013) 230 FCR 431, [49] (The Court) citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, [10] (Gleeson CJ), [44] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ).
[77] MZYTS, (2013) 230 FCR 431, [50].
[78] (2001) 206 CLR 323, [68].
Although a decision-maker’s reasons may not expressly refer to a particular report, a conclusion of jurisdictional error may not necessarily be drawn where it is clear that the Authority considered a broad range of country information, including that provided by the applicant. It is settled that the choice and the assessment of the accuracy and weight of country information is a matter for the Authority: AEX15 v Minister for Immigration and Border Protection.[79]
[79][2017] FCA 821, [30] (O’Callaghan J) citing NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [10]-[11].
Relatedly, in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs,[80] Gray, Kiefel and Lander JJ observed that jurisdictional error could not be established if the only complaint was as to the weight which the Tribunal had given to the various items of country information or by showing that particular country information had been preferred to other country information. It must at least be established that the decision-maker had ignored recent country information and proceeded to decide the matter on outdated country information. In VWFW, the Full Court identified that difficulties confronting acceptance of that proposition included that the country information which had been before the Tribunal had been sought and obtained by the Tribunal itself and, further, that it had discussed the country information in some detail. Those observations are apposite.
[80] [2006] FCAFC 29, [63]-[66].
Resolution
The applicant submitted that the Authority had affirmed the refusal to grant a protection visa in part because it was not satisfied that he would be imputed with any LTTE opinion by reason of his uncle’s past LTTE involvement. It was observed that the Authority had relied on country information, the effect of which was that the only people still at risk of harm were those who had themselves been active in the LTTE, rather than people who merely had a familial connection.
The applicant’s submissions focussed upon the Reasons at [32] where, after setting out various sources of country information, the Authority said that there was ‘no information that a mere or indirect family association is, of itself, enough to expose a person to serious harm’.
The applicant accepted that for the Authority to have reasoned this way was of itself unobjectionable. The gravamen of the complaint raised by Ground 2 was that the conclusion was inconsistent with other country information before the Authority which did not limit the risk of harm to people who themselves had been active in the LTTE. For this purpose, the applicant relied upon ‘opposing’ information before the Authority:
a)the IJTP report, which concerned threats and reprisals from Sri Lankan security forces towards Tamil family members, even though they themselves had not had any LTTE involvement;
b)the 2017 DFAT country report at [3.32], [3.47], which considered the position of persons with close family links to former LTTE combatants.
I have considered other aspects of suggested contradictory information in relation to Ground 1 above.
It was submitted that the applicant’s case rested in large part on his claim of fear of harm due to an imputed political opinion “because of an imputation arising from his uncle’s LTTE activity.” The applicant complained that there was no substantive reference in the Reasons to the opposing information on which reliance was now placed.
In the present case, the Authority’s decision was said to be tainted by jurisdictional error by reason of a failure to address the ‘opposing information’ in contrast with the 2017 DFAT report. I do not accept the submission that the decision is tainted in this way.
The Authority considered the question of whether the applicant had a well-founded fear of persecution from [17] to [54]. It will be recalled that on two occasions the applicant had spent time in camps in India. The Authority examined his claims and evidence in some detail at [18]-[26] before concluding at [27] that he was not under suspicion from Indian authorities of having any LTTE association or that those authorities would provide any details to the Sri Lankan authorities. The Authority examined the claim of an imputed LTTE association arising from the suggested involvement of the applicant’s uncle: [28]-[31]. Although it concluded that there was no evidence of his uncle having had any high level involvement, the Authority proceeded upon an assumption that this was the case. It found that his uncle was now ill and unlikely to be of any ongoing interest: [30]-[31].
It was against this background that the Authority examined country information so as to inform its consideration of whether, having departed Sri Lanka in 1990, the applicant was likely to be of any interest to, or to have an adverse profile with, the Sri Lankan authorities on account of suspected post-conflict activities: [32]. To that end it considered country information in detail: [33]-[39]. The Authority noted that the applicant had not claimed (and there was no evidence) that: (a) he or any member of his family had suffered as a result of being Hindu; (b) he had in fact had any involvement in post-conflict or anti-government organisation or activities; or, (c) he had been identified in a film relating to the self-imolation of another Tamil: [40]-[44].
The Authority was not satisfied that the applicant would be imputed with any LTTE or other adverse profile either personally or by reason of any association with his uncle or otherwise: [45].
As stated above, the focus of Ground 2 was upon the Reasons at [32] where the Authority had stated that there was ‘no information that a mere or indirect family association is, of itself, enough to expose a person to serious harm’. For the reasons above, I consider that the applicant’s extract of the Reasons at [32] was incomplete in terms of the matters that influenced the Authority in its conclusion that the applicant did not have an adverse profile such as to support a conclusion the applicant faced a real risk of persecution. Properly understood, the Reasons at [32] provided both an overarching conclusion for the reasoning from [18] to [31] and a junction for the Authority’s analysis at [33]-[44] that the applicant’s connection to the LTTE through his uncle, whether alone or in combination with his period of prolonged absence from Sri Lanka, was such as to attract adverse interest from the authorities.
I agree that the whole of the Reasons at [32] are important and that the Authority set out in some detail why it considered that the applicant did not have a profile that would lead to him being at risk of harm on return. Matters taken into account by the Authority in assessing profile and risk included the length of time that the applicant had been away; the fact that no one other than his uncle had been involved in the LTTE; that the Sri Lankan government had returned the family to Sri Lanka, suggesting they were not of interest; there was no suggestion the family had been harassed, threatened or had to live in hiding; his father and siblings had not been questioned about LTTE involvement; and there was no claim the Criminal Investigation Department had been interested in other family members. In this context, the Reasons at [31] are also important as setting out the reasons why the Authority considered the applicant’s uncle would no longer be of any interest to authorities. In turn, this reduced any derivative risk posed by, or interest in, the applicant.
Counsel for the Minister contended that the applicant’s submissions did not sufficiently identify the country information being relied upon in relation to Ground 2, or why a failure by the Authority to consider it more fully was indicative of jurisdictional error. Relatedly, it was noted that the USDOS report, discussed by the Authority at [34], was a document which had been supplied by the applicant. This was said to demonstrate that materials supplied by the applicant had been considered. In answer to those submissions, counsel for the applicant relied upon the following as demonstrating clearly contradictory evidence which, it was said, had not been considered.
UNHCR Guidelines: For the purposes of identifying contradictory information and an alleged failure to give it proper consideration, attention was drawn to DFAT’s consideration of persons having an imputed membership of the LTTE. In particular, at [3.32] and [3.47] of the 2017 report, DFAT had identified former LTTE cadres and persons with close family links as persons who may be arrested, detained or monitored. While it was not referred to before me, at [3.42] of the 2017 report, DFAT assessed that the great majority of low profile former LTTE members had already been released. At [3.47], DFAT found that persons who were close relatives of such members may be monitored. This information did not contradict the case being put by the applicant. The report was clearly considered. Notably, the 2017 DFAT report was information that the Authority had obtained for itself.
ITJP report: attention was drawn to the Executive Summary in this report in which it was stated that very close family members had also been tortured. The example given in that report was of the threatened abduction of a wife and mistreatment of close family members. The premise on which the suggested contradiction with the information on which the Authority had relied was said to rest was that the applicant had such a profile. However, the Authority also considered the nature of the applicant’s profile in detail. The Reasons examined country information at [32]-[39] for the purposes of considering whether the applicant may be suspected of post-conflict activities. It found that this was unlikely. The Authority also considered the nature of the applicant’s profile in detail, including potentially adverse aspects such as suggestions he had been filmed in relation to the death of another Sri Lankan: [40]-[46]. The Authority found that the applicant had not been involved in one of the suggested incidents and, having watched an ABC film relating to another, found that the applicant was not depicted in it: [41]-[42]. It found that his suggested connection to the LTTE though his uncle was not of a level that would attract adverse interest, including by reason of his residence outside Sri Lanka for a considerable period. Further, the Authority considered country information bearing upon the risk posed to returning failed asylum seekers: [47]-[54]. It considered the ITJP report. In doing so, it concluded that all of the media reports which concerned returning Tamils who had been arrested and detained related to returnees who were known LTTE cadres or persons having an adverse profile, and that those matters did not apply to the applicant, who had no such profile: [48]. The suggested contradiction and failure to consider the ITJP report was not, in my opinion, made out.
The applicant relied upon a statement expressed in the 17 March 2017 submission that quoted from the Freedom from Torture, ‘Sri Lanka’ Update on Torture since 2009 – May 2016, which stated:
The Sri Lankan authorities take a strong interest in the activities of the Sri Lankan diaspora in the UK and many returning to Sri Lanka with the real or perceived past connection to the LT TV, at whatever level and whether directly and/or through a family member or acquaintance, have been tortured and interrogated about their activities and contacts in the UK. (emphasis added)
It may be noted that the Sri Lankan government’s interest in the activities of the Tamil diaspora was expressed in relation to those Tamils who were resident in the United Kingdom.
Further, this report was considered by the Authority in relation to the applicant’s profile as a returning failed asylum seeker when it concluded that he did not have an adverse profile: [48] . I do not consider that those matters raised contradictions that were of any, or any particular, significance in the applicant’s case. It is not correct to say that the report was not considered.
At [32] of its Reasons, the Authority acknowledged that there was some information indicating that a person “can be accused of being associated with the LTTE on the basis of tenuous links”. However, it also referred to country information suggesting that family connections to the LTTE were not enough to cause harm. Ultimately, the Authority preferred country information, establishing that a connection to the LTTE would not itself warrant international protection unless other factors, such as post-conflict Tamil separatism, were also involved. That was open to it.
The submission that the applicant’s reliance on Minister for Immigration and Border Protection v MZYTS[81] in this context is inapt. In MZYTS, the applicant made a post-hearing submission which had drawn to the Tribunal’s attention critical new information about the situation on the ground in Zimbabwe. In MZYTS, the new information grounded a submission by the applicant that the political risk had recently and fundamentally changed and would leave him at greater risk. Although the Tribunal had noted the submission, it did not otherwise engage with it or set it out.[82] The Court held that the Tribunal’s reasons disclosed it had failed to understand the task required of it and had failed to given proper consideration to the post-hearing country information which was of central significance to the assessment of whether the applicant was at risk of persecution.[83] In the particular circumstances of MYZTS, consideration of submissions and information that gave an “accurate picture of the ongoing circumstances on the ground in Zimbabwe for him” was critical to the predictive assessment of risk.[84] Amongst the errors that occurred in that case, the post-hearing submission – being the most recent information on that topic – had not been considered and the Tribunal had instead proceeded by reference to older material. The Court inferred from all of the circumstances that the post-hearing submission had not been considered.[85]
[81] (2013) 230 FCR 431.
[82] MZYTS, (2013) 230 FCR 431, [17]-[18].
[83] MZYTS, (2013) 230 FCR 431, [38]-[46].
[84] MZYTS, (2013) 230 FCR 431, [38].
[85] MZYTS, (2013) 230 FCR 431, [44]-[46].
In ACE15 v Minister for Immigration and Border Protection,[86] Bromberg J has described the error found in MZYTS as follows:
This was not simply a matter of overlooking or failing to consider important, or even potentially dispositive, pieces of evidence in coming to a decision. The failures pointed to by the Full Court revealed that the Tribunal in that case had failed to form a “correct understanding of the basis” of the claim. In particular, it had not appreciated that the risk to the visa applicant was said to arise, or at least to be exacerbated, by the changed circumstances brought about by the prospect of elections. The Tribunal thereby failed to perform its statutory task.
[86] [2017] FCA 1054, [34].
Counsel for the applicant made the formal submission that this statement of principle in ACE15 was wrong. I was not referred to any later decision in which that statement has been considered and, my research indicates that it has not been further considered. I see nothing in the statement that mis-describes in any way the path of reasoning in MZYTS.
In any event, counsel for the applicant properly submitted that obiter statements by a Full Court, including those made in MZYTS as to the holding in Yusuf, were binding.[87]
[87]CEPU (Western Australia Division) v Fortescue Metals Group Ltd (2016) 310 FLR 1, [55].
Whatever disagreement there might be as to the metes and bounds of the principles considered in MZYTS, the present case is of an entirely different kind. The information to which attention was drawn here did not have the criticality or significance to a predictive assessment of a risk of persecution on the basis of the applicant’s claims as did the country information that bore upon the risk faced by MZYTS.
I decline to infer, as occurred in MZYTS, that critical material was not considered. The Authority’s discussion of the materials at [5]-[14] reveals knowledge of their content in a manner which is consistent with consideration of their relevance to the claims. It is clear from the Reasons, in particular at [33]-[39] that the Authority considered material, including information that had been provided by the applicant, directed to the same broad subject matter. The points being made in the ITJP report were clearly considered, even if the report itself was not extracted or further discussed.[88]
[88]AEX15, [2017] FCA 821, [30]; VWFW, [2006] FCAFC 29, [63]-[66].
I also accept the Minister’s submission that in the context of Part 7AA, a preferable approach is to apply the principles which bear upon an administrative decision-maker’s choice of country information.
In the present case, after the Authority had considered all of the country information that it decided to accept as new information, it necessarily had before it a large amount of relevant material. In those circumstances, “[w]hile the submissions on behalf of the applicant to the assessor referred to more extensive country information reports, the assessor was not obliged to accept them. It is well settled that the country information to which a decision-maker has regard and the weight it gives that information is a matter for the decision-maker”.[89]
[89] BNV15 v Minister for Immigration and Border Protection [2017] FCA 1048, [32].
Ultimately, the Authority’s conclusion was that the situation for Tamils had improved and that it continued to do so. That was a factual finding made by the Authority on material before it and which was open to it.
Insofar as the applicant otherwise sought to impugn the reasoning at [32], the following may also be said. First is that the Reasons ought not be read with an eye keenly attuned to error. Secondly, it must be recognised that the Reasons were otherwise comprehensive. Thirdly, erroneous fact finding does not of itself establish jurisdictional error. Fourthly, the suggested error (if it was error) ought not in the circumstances of this case be characterised as being jurisdictional in nature.
Ground 2 is rejected.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding one hundred and seventy-four (174) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 27 February 2020
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