Fiw17 v Minister for Immigration and Border Protection
[2023] FedCFamC2G 1046
•22 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FIW17 v Minister for Immigration and Border Protection [2023] FedCFamC2G 1046
File number: MLG 2661 of 2017 Judgment of: JUDGE FORBES Date of judgment: 22 November 2023 Catchwords: MIGRATION – protection visa – application for judicial review of decision of Immigration Assessment Authority – whether exceptional circumstances exist for consideration of new information – whether IAA should have invited applicant to interview – whether IAA unreasonably failed to exercise discretions - consideration of Part 7AA “fast track” review process as context for exercise of discretions – no error found Legislation: Migration Act 1958 (Cth) s 5H, 36, 473DC, 473DD, 473FA, 476 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
AQU17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 111
BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365
BVD17 v Minister for Immigration & Border Protection (2019) 268 CLR 29; [2019] HCA 34
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958
CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
Minister for Immigration & Border Protection v CQW17 (2018) 264 FCR 249; [2018] FCAFC 110
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 87 Date of hearing: 10 November 2023 Place: Melbourne Counsel for the Applicant: Mr Overend Solicitor for the Applicant: WLW Migration Lawyers Solicitor for the First Respondent: Australian Government Solicitor ORDERS
MLG 2661 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIW17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Applicant’s application for judicial review, as amended on 13 October 2023, be dismissed.
2.The Applicant pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 22 November 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
By an amended application filed on 13 October 2023, the applicant seeks judicial review pursuant to section 476 of the Migration Act 1958 (Cth) (the Act) of a decision of the Immigration Assessment Authority (the Authority) dated 21 November 2017. The decision of the Authority affirmed a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) made on 22 February 2017 not to grant the applicant a subclass 790 Safe Haven Enterprise Visa (SHEV).
By his amended application the applicant seeks to impugn the Authority’s decision on two grounds.
For the reasons set out below I have found that the Authority’s decision is not affected by judicial error. Accordingly, the applicant’s application is dismissed and the applicant should pay the Minister’s costs.
BACKGROUND
The following background is derived from the court book and outlines of submissions filed by the parties prior to the hearing. Unless otherwise stated, the following matters are common ground.
The applicant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia on 11 September 2012 as an unauthorised maritime arrival. He originates from the eastern region of Sri Lanka.
On 3 February 2013, the applicant participated in an Irregular Maritime Arrival Interview.
On 12 May 2016 the applicant applied for a SHEV[1].
[1] Court Book (CB) 134
The applicant’s claims can be summarised as follows[2]:
[2] CB 473-475
(a)he claims to have been harmed and harassed by the Criminal Investigation Department (CID) and Sri Lankan Army (SLA) many times, because of his father’s suspected involvement in the Liberation Tigers of Tamil Eelam (LTTE), and their suspicions that his father knew about the location of a buried LTTE weapons cache. He claims his father received training from the LTTE, and was forced to work as a guard at a checkpoint in an LTTE controlled area before the war restarted (in 2006). He later claimed his father was forced to fight in combat for the LTTE;
(b)the applicant and his family were displaced during the civil war, and lived in an IDP camp in Batticaloa from 2006 to 2008. The family returned to their home area near Trincomalee in 2008;
(c)after their return, the applicant claims the CID took his father in for questioning. He was held for three days during which time he was interrogated about the location of an LTTE weapons cache and severely beaten. There had been an LTTE camp near their house and the CID had assumed weapons must be hidden on the family land. His father was released and thrown out of a van outside the family’s home;
(d)the CID returned to their home on several occasions, asking about the location of the weapons and threatening the applicant’s family;
(e)sometime after his father’s detention, the applicant himself was detained and severely beaten by the CID. He was also asked about the LTTE and the location of the weapons. The applicant passed out from the beating and was also dumped by the CID near his home;
(f)the CID regularly visited the applicant’s home. They threatened and intimidated him and asked him questions about the LTTE and the location of the weapons. In 2010 or 2011 he was denied permission to travel to Batticaloa three times, before finally being allowed to travel;
(g)the applicant’s father was a candidate for the Tamil National Alliance (TNA) in the 2011 Municipal Elections. The applicant put up posters and handed out ‘how to vote’ cards for his father’s campaign. On one occasion the CID told him to stop and to take down other candidates’ posters. The applicant later claimed the army shot at him while he was campaigning for his father;
(h)the applicant’s father was not elected, but he wanted to help Tamil people. However, the CID would not understand this. The father became involved with the Rural Development Society which undertook community work for the local Tamil people. Because his father was well known to the CID, was suspected of supporting the LTTE, and was also politically active for Tamil people, he was afraid for the applicant’s safety. The CID had detained and seriously beaten him once and his father was afraid that this would happen again. Throughout 2012 the situation was not getting any safer so his father made the decision to send the applicant away. The applicant travelled to Batticaloa, then Colombo, before leaving the country illegally at Chilaw;
(i)while he was detained at the Wickham Point Immigration Detention Centre (IDC) in Darwin, the applicant clams to have been accosted by one of the CID officers who had detained and questioned him in Sri Lanka. This man forced the applicant to give him his father’s phone number. The applicant was scared, and did not report the confrontation while he was in Darwin, but he later reported it to his case manager after he was transferred to Scherger IDC. The applicant claims the CID officer later returned to Sri Lanka, called the applicant’s father and then went to his home. He attempted to extort money from the father by saying the applicant was sent away because he was guilty of supporting the LTTE and knew where the weapons cache was hidden;
(j)the CID has continued to harass the father. They make him report every weekend, and if he fails to attend they force him to chop wood and cook for them; and
(k)the applicant fears he will be detained, tortured or killed by the CID or SLA if he returns to Sri Lanka. He fears harm as a young Tamil male from a former LTTE area in the north (or east) who the authorities suspect supported the LTTE, or due to his father’s history with the LTTE. He also fears harm on the basis of his illegal departure and adverse profile as a person who sought asylum in Australia and criticizing the Sri Lankan authorities.
On 22 February 2017, a delegate of the Minister refused to grant the visa.
In refusing the applicant’s visa, the delegate found the applicant’s evidence to be “variously evasive, lacking in detail, implausible, changeable, and inconsistent”[3]. Further, the delegate found that the applicant was not a credible witness and rejected all claims apart from applicant’s father’s candidature for the TNA. The delegate was not satisfied that the applicant faced a real chance of persecution based on the applicant’s evidence and country information.
[3] CB 320
On 27 February 2017 the matter was referred to the Authority for review.
Immigration Assessment Authority
On 12 April 2017, the applicant’s representative made written submissions to the Authority. Further country information and articles were submitted to the Authority by the applicant’s representative on the 13 and 14 July 2017, and 14 and 30 August 2017.
At paragraph [3] of its reasons, the Authority found that written submissions provided by the applicant’s representative on 12 April 2017, to the extent they reasserted claims and country information already before the delegate, did not constitute new information. The Authority therefore had regard to those matters.
At [4], the Authority found that exceptional circumstances existed to justify consideration of a short report about the applicant’s treatment from a Counsellor at Foundation House. This new information was taken into consideration given the report was “recent, March 2017 […] redible personal information, which is not previously known, relevant to the question of whether he can return to the country safely, and may have affected the consideration of the applicant’s claims”.
At [5], the Authority found that exceptional circumstances existed to justify consideration of the 2017 Department of Foreign Affairs and Trade (DFAT) Report on Sri Lanka, a Human Rights Watch article from March 2017 about the progress of reform in the country, and an Amnesty Report from February 2017. Even though this information post-dated the delegate’s decision, this new information was taken into consideration “given their relevance to the applicant’s claims, reliance on the earlier reports by the delegate, and the evolving security situation in Sri Lanka”.
At [6], the Authority did not find exceptional circumstances existed to justify consideration of articles from the Edmund Rice Centre (2015), Tamilnet (2015), Firstpost (2016), The Guardian (2016) and Tamils against Genocide (2012). This information pre-dated the delegate’s decision. The Authority was not satisfied that the information could not have been provided to the Minister before the delegate made their decision, nor was it credible personal information which was not previously known or, had it been known, may have affected the consideration of the applicant’s claims.
At [7], the Authority found that written submissions provided by the applicant on 13 July 2017, 14 July 2017, two submissions on 14 August 2017, and an updated submission on 30 August 2017, to the extent they reasserted claims and country information already before the delegate, did not constitute new information. The Authority therefore had regard to those matters.
However, at [8]-[9], the Authority did not find exceptional circumstances existed to justify consideration of new country information (not already before the Authority) pursuant to s 473DD of the Act. In its reasons, the Authority stated:
“8.The submissions each state, with some variance, that the new country information points to the fact there remains in Sri Lanka, a sense of hyper-vigilance as to any possible Liberation Tigers of Tamil Eelam (LTTE) or Tamil separatist resurgences. The submissions state that the information 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. The submissions contend that this so 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 submission states that the information clearly shows the situation in Sri Lanka, contrary to the 2017 DFAT report which the Department most heavily relies on, are not entirely accurate. The representatives submit that this new information should be taken into consideration when determining their client’s application.
9.In contrast to the new information provided with the first submission to the IAA, the submissions containing new country information do not engage specifically with the applicant's claims, but provide a general update on the situation for persons who may or may not share the profile of the applicant. While the information is very recent, I do not consider it is particularly contentious. I accept on the information already before me that the Sri Lankan government remains sensitive to the re-emergence of the LTTE and Tamil separatism. I accept there are sophisticated databases employed by the Sri Lankan security forces about former LTTE members and supporters. I also accept there continue to be credible reports of torture and human right violations by the Sri Lankan security forces, and that persons with certain profiles linked to the LTTE or Tamil Separatism continue to face a risk or chance of harm in the country. To the extent that the submissions refer to new country information that postdates the delegate’s decision, I accept this information was not, and could not have been, provided to the Minister before the delegate made their decision. However, when weighing all the information before me, I am not satisfied there are exceptional circumstances to justify consideration of the new country information in these submissions, and I have not considered the information pursuant to s.473DD of the Act.”
This finding, set out in [8] and [9] above, is impugned in the first of the applicant’s two grounds of review.
At [10], the Authority explained its refusal to exercise its discretion to invite the applicant to an interview under s 473DC of the Act. The applicant’s representative had made a request for the applicant to be interviewed but the Authority declined to do so. In its reasons, the Authority stated:
“10.In the submission to the IAA, the representative has contended that a hearing (which I take to mean an interview under s.473DF) is required due to concerns with the delegate’s assessment and findings. I am satisfied that the submissions engage with any concerns the applicant may have with the delegate’s decision and findings, and in support of the applicant’s claims. Considering all the circumstances, I am not satisfied that an interview is necessary or required.”
As is discussed below, this finding is impugned in the second of the applicant’s two grounds of review.
The Authority’s decision on the applicant’s claims
On 21 November 2017, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
Whilst the Authority was prepared to accept more of the applicant’s claims than the delegate and formed a more favourable view of his credit, the Authority found that the applicant’s “only profile was that of a person from a Tamil family, and as a young Tamil male (of fighting age), who lived in a former LTTE controlled area, in the vicinity of a former LTTE base in the north-east of the country” [4].
[4] CB 481, [42] of the Immigration Assessment Authority (IAA) decision
The Authority referred to country information before it indicated “significant improvements for Tamils in recent years” [5]. Whilst it accepted that Tamils with the applicant’s profile may face discrimination, this did not amount to serious harm. Furthermore, whilst the Authority acknowledged that the applicant may face a fine or short detention on account of him having departed illegally from Sri Lanka, the Authority did not find that this would amount to serious or significant harm.
[5] CB 481, [43] of the IAA decision
Based on this reasoning, the Authority was not satisfied that the applicant faced a real risk of harm, and therefore did not meet the requirements of the definition of refugee in s 5H(1) of the Act. Consequently, the applicant did not meet the requirements of s 36(2)(a).
Judicial review
On 7 December 2017 the applicant filed an application in this Court seeking review of the Authority’s decision. On 13 October 2023, the applicant filed an amended application, alleging the following grounds of judicial error:
“1.At [8]-[9], the Immigration Assessment Authority (IAA) erred by misapplying, and or acting unreasonably in its application of, section 473DD of the Migration Act 1958 (the Act), specifically in determining whether there were “exceptional circumstances” to justify considering new information provided to the IAA.
2.At [10], the IAA erred by misunderstanding, and or acting unreasonably, in its refusal to exercise the discretion to invite the applicant to an interview under section 473DC of the Act.”
On 22 August 2018, a Registrar of this Court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions.
On 13 October 2023, the applicant filed their written submissions. On 3 November 2023, I ordered by consent that the first respondent file and serve their written submissions at least 7 days before the hearing. On 3 November 2023, the first respondent filed their written submissions.
I heard the application for judicial review on 10 November 2023. Both parties were legally represented. Mr Overend appeared for the applicant and Mr Brown from the Australian Government Solicitor represented the Minister.
Each of the parties relied on their written outlines of submissions and developed those submissions orally.
STATUTORY FRAMEWORK
The decision of the Authority was made in accordance with the FastTrack review provisions of Part 7AA of the Act.
A convenient précis of the “FastTrack” review process was set out by the Full Court (McKerracher, Murphy and Davies JJ) in AQU17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 111 (“AQU17”) at [1] where their Honours stated:
“[…] For present purposes it is sufficient to note the following salient features of the review process:
(a)s 473CA imposes a duty on the Minister to refer a fast track reviewable decision to the Immigration Assessment Authority (the Authority) as soon as reasonably practicable after the decision is made;
(b)s 473CB imposes a duty on the Secretary to the Department of Immigration and Border Protection (the Secretary) to give the Authority the “review material” in respect of each fast track reviewable decision that is referred by the Minister. The “review material” includes a statement that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision. The “review material” also includes “material provided by the referred applicant to the person making the decision before the decision was made” and “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”;
(c)s 473CC(1) provides that the Authority “must review a fast track reviewable decision referred to the Authority under section 473CA”. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600; [2018] HCA 16 (Plaintiff M174), the High Court held that the task of the Authority under s 473CC is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa had been met;
(d)s 473DB sets out the requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the “review material” provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant; and
(e)s 473DD is an exception to the prohibition under s 473DB on the Authority considering new information.”
The grounds of review engage two provisions of that fast-track process: ss 473DC and 473DD. Each provision deals with the discretion of the Authority to get new information from a review applicant and the circumstances in which such new information might be considered in the review process.
Section 473DC provides as follows:
Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under s 65; and
(b)the authority considers relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting sub-section (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD provides as follows:
Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
A common feature of the two grounds of review is that they assert legal unreasonableness on the part of the Authority in the exercise of discretions under sections 473DC and 473DD of the Act.
Whilst the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme. As was said by the Federal Court in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]:
“[71]Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the “review material” and, subject to the statutory exceptions contained in Part 7AA, without obtaining “new information” or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 Thawley J surveyed relevant authorities and stated at [45]:
“[45]The question of legal unreasonableness is to be approached through the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute: CRY16 at [67]; DZU 16 at [99]; BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]. As noted earlier, Division 3 of Part 7AA (with ss 473GA and 473GB) contains its own exhaustive statement of the natural justice hearing rule: s 473DA(1).”
At [48] his Honour also observed:
“[48]It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority “is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”.”
The statutory scheme contextualises this Court’s review of the Authority’s decision. In determining whether the Authority fell into error, the lens for review must be that of the specific statutory scheme and its objectives. Of course, the exercise of power by Authority is subject to the implied condition that it act reasonably in considering or exercising its discretions[6], but this Court must remain mindful of the parameters of the scheme within which those discretions are granted.
[6] ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [3] (“ABT17”)
Ground one
Prior to the Authority making its decision to affirm the decision of the delegate, representatives of the applicant forwarded a number of emails to the Authority attaching submissions and new country information concerning the situation in Sri Lanka for Tamils generally and persons with an LTTE profile. These emails were sent on 13 and 14 July 2017 and 14 and 30 August 2017[7]. The applicant submitted and the Authority appears to have acknowledged that this new country information had been advanced in response to the 2017 DFAT report – a report on which the Authority would rely.
[7] CB 402-467
The applicant contends that the new information contained reports of significant or serious harm suffered by Tamils or persons with perceived or even highly tenuous links to the LTTE.
At [9] of its reasons, having accepted that the information could not been provided earlier, the Authority concluded: “However, when weighing all the information before me, I am not satisfied that there are exceptional circumstances to justify consideration of the new country information pursuant to s 473DD of the Act”.
The applicant seeks to impugn this finding on the basis that the Authority engaged in a vague, superficial and illogical “weighing” of the probative value of the new information. The applicant submits that the Authority failed to engage in a consideration of all relevant circumstances and accordingly applied an “unduly narrow interpretation of the term “exceptional circumstances”.
The applicant submits that the Authority should have, but did not, engage in what the applicant describes as a “cumulative assessment” of the new information.
In BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 (“BVZ16”) the Court held at [41] that:
“[41]Generally, consideration of whether exceptional circumstances exist will require consideration of all relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as to reasonably be regarded as exceptional.” (citations omitted)
The “cumulative” approach contended for by the applicant, would have had the Authority consider, at least, among other relevant factors, the fact that the new country information could not been provided earlier, the fact that the information provided contradictory information to that found in the latest DFAT report and the fact that the Authority itself appeared to consider that the sources of the new information were “credible”[8].
[8] Meaning capable of being believed, as distinct from being genuine or true – see CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] (Bromberg J)
For example, the applicant submits that the Authority’s finding that the new country information did “not specifically engage with the applicant’s claims” reveals a fundamental misunderstanding of the nature of country information which by definition will never engage directly with an individual claimant’s circumstances. The approach, the applicant contends, was not consistent with the wholly broad and inclusive conception of “exceptional circumstances” required by BVZ16.
Moreover, the applicant submits that the Authority was wrong to conclude at [9] that the new information was “not particularly contentious”. The applicant submits that the new information should have been considered on the basis that it was corroborative of information that was already before the Authority and was therefore probative of and provided greater support for the applicant’s claims. The applicant submits that the new information spoke directly to a determinative issue, namely whether there was a risk faced by those with even tenuous links to the LTTE.
The Minister submits that the first ground of review is misconceived. The Minister submits that the Authority’s approach at [8]-[9] was consistent with the approach it was required to take, particularly having regard to the relevant ‘fast track’ statutory framework.
As to the relevant statutory framework and the scope of the Authority’s task, the Minister articulated the following principles in its written outline[9]:
[9] Minister’s Outline of Submissions at [27]
(a)in carrying out its functions, the Authority is to “pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias [….]”[10];
(b)the Authority’s review is limited to the material provided to or in the possession of the delegate at the time of the delegate’s decision[11] and, subject to certain exemptions, the Authority’s review must be done ‘on the papers’ without accepting or requesting new information and without interviewing the applicant[12];
(c)before the Authority can consider “new information” it must be satisfied of the matters stated in both s 473DD(a) and of either one of s 473DD(b)(i) or s 473DD(b)(ii). The requirements of s 473DD(a) and of either one of s 473DD(b)(i) or s 473DD(b)(ii) are cumulative[13];
(d)if either or both of s 473DD(b)(i) or s 473DD(b)(ii) is met, this is a circumstance which must be factored into the subsequent assessment of whether the new information meets the “exceptional circumstances” criterion specified in s 473DD(a). Accordingly, the Authority must consider both s 473DD(b)(i) or s 473DD(b)(ii) before determining whether there are exceptional circumstances for the purposes of s 473DD(a);
(e)the meaning of “exceptional circumstances” in the context of s 473DD of the Act should be construed in accordance with the High Court decision in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 where Gageler, Keane and Nettle stated at [30] - [31]:
“Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional circumstances need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
(f)there is no statutory obligation on the Authority to provide reasons for procedural decisions, such as where the new information meets the requirements of s 473DD of the Act[14]; and
(g)the characterisation of a decision or a state of satisfaction as legally unreasonable is not easily made. Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds[15].
[10] Migration Act 1958 (Cth) s 473FA(1) (Migration Act)
[11] Migration Act s 473CB(1)(b)-(c)
[12] Migration Act s 473DB(1)
[13] Minister for Immigration & Border Protection v CQW17 (2018) 264 FCR 249; [2018] FCAFC 110
[14] BVD17 v Minister for Immigration & Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [16] , [40] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ), [44] (Edelman J)
[15] Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 at [33]; [35]
The Minister submits that the Authority considered and determined the question of “exceptional circumstances” in an appropriate and orthodox fashion.
The Minister submits that it is readily apparent from a fair reading of the decision that the authority undertook an assessment of both ss 473DD(b)(i) and (b)(ii) - even though those provisions were not specifically mentioned.
Consideration
Section 473DD(a) provides that where the Authority has obtained new information under section 473DC, it must be satisfied that there are exceptional circumstances before it can take that new information into consideration.
As mentioned earlier, the statutory scheme must contextualise this Court’s review of the Authority’s decision. In determining whether the Authority fell into error, the lens for review must be that of the specific statutory scheme and its objectives.
In BVZ16, White J found that the question of whether exceptional circumstances exist will be informed by a “consideration of all the relevant circumstances”[16]. Nonetheless, the Court recognised that consideration is to be framed by the scheme and purpose of Part 7AA of the Act. At [42]-[43] his Honour observed:
“[42]The proper construction of the term “exceptional circumstances” in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of “fast track” review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all “fast track reviewable decision[s]” are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to “get” new information, it may consider it only in the limited circumstances specified in s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65.
[43]Further, account must be taken of the reference to the exceptional circumstances being such as to “justify” consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.”
[16] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 at [41]
In AQU17, the Full Court after surveying relevant authorities, relevantly observed:
“[13]As a matter of construction, it is undoubtably correct that s 473DD(a) and (b) are cumulative requirements. Section 473DD(a) that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD9a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s473DD(a):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.
[14]As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits on the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the preconditions set out in s 473DD(a): Plaintiff M174. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (b)(ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.
[15]In the present case, the question for the Authority was what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. It was necessary for the Authority to examine whether there was anything about the new information or the appellants circumstances which meant that there were exceptional circumstances justifying consideration of the new information[…]”
Fairly read, paragraphs [7]-[9] reveal that the Authority did properly consider whether there were exceptional circumstances warranting consideration of the new information and that, in the course of so determining, the Authority assessed the criteria or “preconditions” at s 473DD(b)(i) and (ii). The relevant discretionary factors were taken into account in reaching its finding that exceptional circumstances did not exist. The Authority’s non-satisfaction was in my view entirely open to it.
The relevant paragraphs of the Authority’s reasons give rise to the compelling inference that the Authority carefully read and considered in some detail the new information and submissions provided by the applicant’s representative, before coming to the conclusion that exceptional circumstances did not exist.
At [7] of it reasons, the Authority identified the various submissions which were the source of the additional country information. The Authority noted that the information included English or English translations of reports and articles. The authority correctly noted that there was considerable overlap in the information cited in the applicant’s various submissions - as was undoubtedly the case. The Authority also indicated that country information which was not “new” in the sense that it was already before the Authority, would be considered.
I accept the Ministers submission that the Authority’s summary at [8] of the new information upon which the applicant sought to rely is fair and accurate.
The finding that exceptional circumstances did not exist to justify consideration of the new country information pursuant to s 473DD of the Act is found in paragraph [9] of the Authority’s reasons. In my view, that paragraph of the Authority’s decision clearly reveals a sound path of reasoning, including that both s 473DD(b)(i) and (ii) were taken into account in reaching that finding, even though those subsections were not expressly mentioned[17]
[17] See AQU17 v Minister for Immigration and Border Protection & Anor [2018] FCAFC 111 at [16], where it was held that it is not necessary for an express finding to be made in relation to these criteria
Insofar as the s 473DD(b)(i) criterion is concerned, the Authority considered and accepted the recency of the new information. It found “to the extent that the submissions refer to new country information that postdates the delegate’s decision, I accept this information was not, and could not have been, provided to the Minister before the delegate made the decision”[18].
[18] IAA decision at [9]
Insofar as the s 473DD(b)(ii) is concerned, the Authority’s finding at [9] that the submissions containing the new information “do not engage specifically with the applicant’s claims” reveal consideration by the Authority of whether the information related to the applicant personally.
While ss 473DD(b)(i) and (b)(ii) properly informed the Authority in the consideration of its discretion, the Authority’s consideration of the exceptional circumstances issue was broader and did extend to considering whether there was anything exceptional about the new information itself or the applicant’s circumstances which warranted consideration of the information.
I agree with the Minister’s submission that the Authority’s finding in paragraph [9] that the new information was “not particularly contentious”, on a fair reading of the reasons, should be taken to mean that the Authority was already well aware of the arguments advanced by the new information. That is further reinforced by the Authority’s express acceptance of the following facts and circumstances:
(a)that the Sri Lankan government remains a sensitive to the re-emergence of the LTTE and Tamil separatism;
(b)there are sophisticated databases employed by the Sri Lankan security forces about former LTTE members and supporters;
(c)that there continued to be credible reports of torture and human right violations by the Sri Lankan security forces; and
(d)that person’s with certain profiles linked to the LTTE or Tamil Separatism continue to face a risk or chance of harm in the country.
It is again important to understand that the evaluative assessment of new information is to be undertaken by the Authority within the parameters of a Part 7AA review. This constraint was discussed in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 where Mortimer and Jackson JJ explained at [70]-[74]:
“[70] Thus, the parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.
[71]The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.
[72]Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
[73]However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
[74]As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.” (emphasis added)
The “weighing” process undertaken by the Authority in reaching its finding that exceptional circumstances did not exist to justify consideration of the new country information, was not vague, superficial and illogical. To the contrary, the Authority weighed all the information before it, including all the matters discussed above and the mandatory considerations in ss 473DD(b), as it was required to do in discharging its task within the statutory scheme. The Authority properly had regard to the material already before it and facts and circumstances it had already accepted. It was entitled to take the view that more of the same would not assist in its review. I reject the applicant’s submission that the approach taken by the Authority was unduly narrow.
Moreover, and in any event, the applicant’s underlying concern that the Authority failed to have regard to the continuing risks for Tamils in Sri Lanka, including those with tenuous links to the LTTE, is not made out. As the Minister observed in oral submissions, the Authority’s findings at [47], which are not challenged, reveal that this very issue was the subject of careful consideration and findings. That paragraph is extensively footnoted with country information which had been drawn to the attention of the Authority in the applicant’s submissions. Relevantly, the Authority said:
“[47]The applicant’s representatives throughout this process have made submissions on the unsatisfactory progress for reforms in the country and the continuing risks to Tamils in Sri Lanka, specifically those with sometimes tenuous links to the LTTE. Those reports suggest that the Sri Lankan authorities, army and security forces continue to act with impunity, and that torture and serious mistreatment and harm of Tamils continues to occur with some frequency. I accept that there have been reports of those with links to the LTTE, sometimes tenuous links, and the risks of human rights violations for those under the scrutiny of the Sri Lankan authorities must continue to be seen as credible[…]”
The conclusions at [47] are consistent with and reinforce the various facts and circumstances which were accepted by the Authority in [9] in the course of its weighing of whether exceptional circumstances existed for the receipt of new information. In light of the Authority’s findings at [47], the conclusion at [9] that the new country information was “not particularly contentious” is entirely unsurprising.
The applicant has failed to make out ground one and it must be dismissed.
Ground two
The Authority at [10] noted that a request had been made for it to interview the applicant, and the Authority declined to do so. The Authority found that the applicant’s submissions engaged with any concerns he may have had with the delegate’s decision and findings, and that an interview was not necessary or required.
By ground two the applicant contends that the Authority improperly exercised its discretion not to invite the applicant to an interview and that the discretion was not reasonably exercised.
In seeking an oral hearing, the applicant’s representatives drew the Authority’s attention to a number of matters. Submissions provided on behalf of the applicant[19] referred to his vulnerability at interview with the delegate, including his history of trauma and ongoing mental health issues. Those submissions noted that in the course of the interview with the delegate the applicant had become very emotional and had been crying and mumbling. The applicant’s representatives submitted that the applicant’s vulnerability increased the risk of him presenting with poor credibility before the delegate and as a possible explanation for inconsistencies in his evidence.
[19] CB 397-401
The applicant contends that the Authority’s finding that his submissions adequately engaged with the delegate’s decision and its finding that an interview was not necessary or required with the result of a “superficial and misguided assessment”[20].
[20] Applicant’s Outline of Submissions at [24]
Whilst acknowledging that the Authority was not required to invite the applicant to a hearing merely because credibility was in issue, the applicant nonetheless submits that the Authority was required to exercise its discretion reasonably. The applicant contends that the Authority in this case, acting reasonably, should have cumulatively weighed:
(a)the significance of the applicant’s demeanour in assessing credibility;
(b)that mental health can and does affect credibility assessments;
(c)that in this particular case the applicant’s mental health issues clearly affected his presentation at delegate’s hearing (as would have been evident from the audio recording and as was later corroborated by medical evidence); and
(d)that credibility was central to the ultimate conclusion of the Authority.
The applicant submits, although his counsel concedes that he cannot establish, the audio recording of the delegate’s hearing was not listened to by the Authority. The applicant contends that the audio would have been highly instructive as to his demeanour and mental state and, had it been listened to, might have given rise to an excise of discretion in favour of an invitation to hearing with the Authority.
Consideration
The Minister says that the applicant’s complaint does not disclose jurisdictional error and amounts to no more than a disagreement with the Authority’s decision not to exercise its discretion. I agree.
As with ground one, the alleged error must be assessed within the framework of the relevant statutory scheme. The Authority must generally conduct the review on the material that was before the delegate. The Authority is under no duty to get new information and while a discretion must of course be exercised reasonably, the Authority at [10] gave cogent reasons for its decision to decline to interview the applicant.
Although the Authority referred in its reasons to an interview under s 473DF (which sets out the manner in which an interview is to be conducted) rather than s 473DC (which provides the discretion to invite a person to provide new information), its reasons when read fairly and as a whole do not disclose any misunderstanding of the relevant discretionary power. The applicant does not contend otherwise - rather, the applicant’s complaint is that the discretion was not exercised reasonably.
As to the applicant’s mental state and demeanour at the delegate interview and its relevance to the Authority’s discretion, the Minister made two pertinent submissions.
First, it was submitted that the Court can infer that the Authority had the audio recording of the delegate’s interview and listened to it. There is evidence that the applicant’s representative was provided with the audio recording by the Authority[21]. Furthermore at [31] its reasons the Authority noted that the applicant became very emotional during the interview, which is suggestive of the Authority having listened to the audio recording. I also note [32] of the reasons which deals with an exchange between the delegate and the applicant, reinforcing the inference that the Authority listen to the audio.
[21] CB 352
Secondly, the Minister submitted that the authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate[22]. In ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (“ABT17”) the High Court held that:
“[25][…] the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which the account was given.”[23]
[22] ABT17 at [24]
[23] ABT17 at [25]
The Minister submitted and I agree that the present circumstances are quite unlike those in ABT17. Here the Authority did not reject an account which had been accepted by the delegate. Indeed, the Authority was more favourable in its assessment of the applicant’s credit than was the delegate. The applicant was on notice of the delegate’s findings and he was not taken by surprise by a credit issue not previously raised.
The applicant has failed to establish jurisdictional error as pleaded at ground two.
DISPOSITION
The applicant has failed to establish that the decision of the Immigration Assessment Authority made on 21 November 2017 is affected by jurisdictional error.
The application for judicial review must be dismissed and the applicant should pay the Ministers costs.
I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 22 November 2023
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