FNU17 v Minister for Immigration
[2020] FCCA 501
•6 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FNU17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 501 |
| Catchwords: MIGRATION – Application for judicial review – Immigration Assessment Authority’s consideration of ‘exceptional circumstances’ pursuant to section 473DD of the Migration Act 1958 (Cth) – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.425, 473CC, 473DB, 473DC, 473DD, 473DE. |
| Cases cited: AMA16 v Minister for Immigration & Ors [2017] FCCA 303 AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 Crowley v Holmes & Ors [2003] FCAFC 189; (2003) 132 FCR 114 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 |
| Applicant: | FNU17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2774 of 2017 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 14 September 2018 and 13 March 2019 |
| Date of Last Submission: | 13 March 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kenneally |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr Yuile |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The time for filing the judicial review application be extended to 18 December 2017.
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 12 July 2017.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine the application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2774 of 2017
| FNU17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Background
Procedural History
The applicant is a Tamil from Sri Lanka who arrived in Australia on 4 November 2012 as an unauthorised maritime arrival.
The applicant participated in an entry interview around 8 January 2013 and ultimately was able to make an application for a Safe Haven Enterprise Visa on 13 May 2016: see Court Book page 197.
On 1 June 2017 a delegate of the Minister refused to grant the applicant a visa. The application was referred to the Immigration Assessment Authority (‘IAA’). The IAA affirmed the decision of the delegate of 12 July 2017. The applicant then applied to this court for judicial review of that decision.
Applicant’s Claims
The applicant's claims are set out in paragraph 20 of the IAA’s decision. In summary the applicant says that in 2007 during the civil war in Sri Lanka, he and his family were displaced. For a period he was also prevented from fishing for his livelihood. The applicant said that in 2007 he was stopped by eight Liberation Tigers of Tamil Eelam (‘LTTE’) members who forced him to transport some of them and their cargo on his boat to a forested area.
When the applicant and his family returned to the village, after being displaced in 2007, he said the other males were detained and taken for questioning and that he was tortured by the Criminal Investigation Department (‘CID’). The applicant said he stayed with his aunt for two months after that to avoid further mistreatment. The applicant said he was called upon again by the CID in 2009 and tortured during questioning.
In 2012, when the applicant was again asked to attend for questioning, he says he went into hiding with an aunt and a friend and then left Sri Lanka illegally in October 2012.
The applicant said that in 2016 the CID had come to his family home looking for him and asking about his whereabouts.
The IAA’s decision
The delegate found the applicant's claims implausible, not accepting that the CID would still be investigating him in 2016 for events that occurred in 2007: see Court Book page 207.
Following the delegate's decision, the applicant then provided new information to the IAA: see Court Book pages 282 to 289. Some of this new information was accepted by the IAA: see paragraphs [9] to [11] of the IAA’s decision.
The IAA noted that new country information was published by reputable sources and addressed more recent events in Sri Lanka and had been discussed by the delegate. The IAA member also noted that the applicant did not have a legal representative at the time of his interview with the delegate. The IAA concluded that there were exceptional circumstances to justify considering the new country information.
The delegate had also made findings with respect to the applicant's capacity to subsist. The applicant provided new information to the IAA in response to those findings. This new information was taken into account, as explained in paragraph 14 of the IAA’s decision.
The IAA did not consider other items of new information from the applicant, which forms the basis of the first two grounds for judicial review.
Whilst the application was filed out of time, like most protection visa cases there is no real prejudice to the respondent if time is extended. If the applicant has an arguable case there is significant prejudice to the applicant. As is apparent from the documents filed, the applicant had an arguable case that was well particularised. Time should therefore be extended.
Grounds 1 and 2
The first two grounds of judicial review relied upon by the applicant are in the following terms:
1. The Immigration Assessment Authority (Authority’s) decision was affected by jurisdictional error as the Authority adopted an unduly narrow definition of “exceptional circumstances” pursuant to s 473DD(a) of the Migration Act 1958 (Cth) (the Act) in assessing whether it could consider new information provided by the applicant in relation to his family connection to the LTTE, his political opinion , and the letter from his father.
Particulars
a. The applicant provided new information to the authority, including:
i. information regarding his family involvement with the LTTE;
ii. a claim that he faced harm due to his anti-government political opinion; and
iii. a letter from his father corroborating his claims
(the new information).
b. The Authority could only consider new information provided by the applicant if satisfied the criteria in
s 473DD(b)(i) or (ii) was met and “exceptional circumstances” within the meaning of s473DD(a) justified considering the material.
c. The authority found that no “exceptional circumstances” existed pursuant to s 473DD(a) of the Act to justify considering the new information.
d. The Authority’s reasons at [15]-[19] (Court book 308 – 309) focused exclusively on whether the applicant could have been provided to the Minister’s Delegate pursuant to s 473DD(b)(i) of the Act.
e. The Authority adopted an unduly narrow definition of “exceptional circumstances” confined to whether the new information could have been provided to the Delegate failing to have regard to the other potential exceptional circumstances such as the relevance of the information to the applicant’s claims.
2. The Authority’s decision was affected by jurisdictional error as the Authority failed to have regard to section 473DD(b)(ii) when determining whether there were “exceptional circumstances” for the purposes of section 473DD(a), in relation to the new information provided by the applicant in relation to his family connection to the LTTE, his political opinion, and the letter from his father.
Particulars
f. The applicant refers to and relies on the particulars in ground 1.
g. The Authority did not consider whether the new information satisfied s 473DD(b)(ii) as credible personal information not previously known to the Minister that would have been capable of affecting the consideration of the applicant’s claims.
h. The Authority, as a result:
i. did not consider the character of the new information itself in assessing exceptional circumstances; and
ii. failed to have regard to matters relevant to the presence of exceptional circumstances such as the degree to which the information was credible, and could have affected the consideration of the applicant’s claims.
These grounds relate to paragraphs 15 to 19 of the decision of the IAA, which are in the following terms:
Familial LTTE links – new claims
15. The applicant advanced new claims about the LTTE links of relatives and that he believes as a result of these links he and his family have been imputed as LTTE supporters. The applicant stated that his SHEV application was completed by a lawyer’s assistant who advised him that he should only write about his personal problems and not his family’s profile.
16. The applicant provided the IAA copies of death certificates for his cousins and uncles and English language translations which show these relatives were killed in 1994, 2000 and 2008 from gun shots. He also stated his younger brother was an LTTE fighter and he provided a copy of a letter dated 20 October 2009, from the Divisional Secretariat requesting resettlement assistance for a number of families, including his brother.
17. These events and documents pre-date the delegate’s decision and on that basis this information could have been provided to the Minister. I note the applicant’s assertion that acting on advice he only put forward his own personal experiences in his SHEV application. However, at his SHEV interview the delegate asked the applicant why he thought he would be harmed in Sri Lanka and the applicant responded because of his role transporting LTTE members in 2007. Despite being put on notice by the delegate that he had difficulty accepting that this incident would have resulted in the claimed level of adverse attention experienced by the applicant, the applicant did not advance these claims of familial links to the LTTE. The applicant stated to the IAA that he fears he will be killed like his uncles and cousins, yet he did not advance these claims at his SHEV interview when questioned about his fears on return to Sri Lanka. Furthermore, the applicant had the benefit of the presence of his legal representative at the SHEV interview and I am satisfied that he had the opportunity to put forward these claims at his interview. I am satisfied that the applicant had an opportunity to advance the claims of familial links with LTTE members to the Minister and I am not satisfied that there are exceptional circumstances to justify considering this new information.
Political opinion- new claim
18. In his statement to the IAA the applicant stated that he believes Tamils are denied freedom in Sri Lanka by the government and expressed his concern that he will be harmed because of his political opinion. The applicant did not advance claims of fear of harm on the basis of his real or imputed political opinion to the Minister and I find this is new information. There is no information before me to explain why the above information could not have been made available to the Minister. At his SHEV interview the delegate advised the applicant of the importance of putting his claims forward and cautioned that he may not have a further opportunity to do so and I am satisfied that the applicant had the opportunity to provide this information to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
Letter from father
19. The applicant provided a statement and English language translation dated 18 January 2016 from his father detailing past events and claims put by the applicant. The statement pre-dates the delegate's decision and there is no information before me to explain why this could not have been made available to the Minister. I am not satisfied that any exceptional circumstances exist that justify the IAA considering the new information.
The applicant argues that the IAA only considered whether the new information could have been provided to the Minister, rather than turning to address other relevant factors, and in particular, the matters set out in section 473DD(b)(ii) of the Migration Act 1958 (Cth) (‘the Act’).
The applicant’s argument confuses the operation of section 473DD of the Act. A number of points can be made about the operation of section 473DD:
a)Both sub-sections 473DD(a) and (b) must be satisfied before the information can be considered: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16;
b)The IAA does not have to consider both sub-sections 473DD(a) and (b), if they find one of the sub-sections is not satisfied;
c)Consideration of sub-section 473DD(b) is not strictly speaking a necessary element of consideration for sub-section 473DD(a): see AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111;
d)Whilst the IAA does not necessarily have to consider the matters set out in sub-section 473DD(b), the facts and circumstances relevant to sub-section 473DD(b) are nonetheless matters that are commonly relevant when considering the test in sub-section 473DD(a) in order to determine whether or not there are ‘exceptional circumstances’: see Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; and
e)The test in section 473DD(b)(ii) is generally so easily satisfied that section 473DD(a) is often the substantive practice issue in many cases.
The applicant’s argument was expressed simply as:
19. In relation to ground 1, the Authority adopted an unduly narrow definition of exceptional circumstances. The Authority’s reasons indicate that its finding the new information could have been provided to the Delegate was “decisive” to its conclusions on exceptional circumstances (CQW17 at [51]) because:
a. the Authority only addressed whether the new information could have been provided to the Minister;
b. the Authority did not address if the new information satisfied s 473DD(b)(ii) expressly or implicitly; and
c. the Authority did not address any other matter relevant to exceptional circumstances.
In CQW17 the Full Court of the Federal Court said:
51. The expression ‘exceptional circumstances’ in subpara (a) has a broad meaning and it is not possible to state exhaustively what factors will be relevant or what the Authority must consider in a particular case: Plaintiff M174 at [30]. The Authority is obliged to consider all relevant circumstances, and as White J observed in BVZ16 the matters in (b)(i) and/or (ii) will usually form part of the consideration. In the circumstances of the present case, the Authority did not evaluate the significance of the relevant part of the New Raid Information, or turn its mind to whether it was credible personal information capable of informing its satisfaction as to the existence of exceptional circumstances. On a fair reading of paragraph six, the Authority’s finding as to (b)(i) was decisive, and this bespeaks an overly narrow interpretation of the expression ‘exceptional circumstances’.
The information in CQW17 went to raids in Iraq, causing the applicant’s parents to flee to Iran. Unfortunately, the IAA in that case “distracted itself from the parts of the New Raid Information that related to Iraq by focusing on and then dismissing the relevance of Iran”: see paragraph [44].
In the present case, the IAA considered that the new information identified claims about the applicant’s circumstances in Sri Lanka. The IAA clearly identified these matters as directly relevant to his protection visa application.
In this case the applicant's explanation for not providing material earlier (being that the protection application was completed by a lawyer’s assistant who allegedly advised he should only write about his personal problems and not about his family's profile), was considered by the IAA: see paragraph [15]. The IAA has clearly engaged with the explanation given by the applicant, as can be seen from its discussion in this regard: see paragraph [17].
With respect to political opinions, the IAA concluded that there was no explanation for why these claims had not been advanced earlier.
Similarly, as is set out in paragraph 19 of the decision, the applicant sought to rely upon a statement by his father that was dated January 2016, a date prior to the delegate process. There is now an English translation. The IAA found that there was no information to explain why this statement could not have been made available sooner.
Counsel for the Minister argues that the information dealt with in paragraphs 15 to 17 was rejected, not simply because it could have been provided to the delegate, but rather because of the circumstances in which it was provided told against it being compelling or significant evidence.
Implicit in the IAA’s reasons is a consideration of the weight that could be attached to the evidence, given the circumstances surrounding the previous failure to provide the evidence.
Whilst in the abstract, it may have appeared to be credible evidence within the meaning of section 473DD(b)(ii), the significant issue in this case was the question of ‘exceptional circumstances’ in section 473DD(a). In substance, the information with respect to the additional incidents had the appearance of a recent invention, once one considered the statements made to the delegate and the circumstances in which they were made. The weight of the evidence was a relevant factor to be considered by the IAA under section 473DD(a).
The relative importance of the material was not in issue. The very reason it was before the IAA was to address adverse findings of the delegate. It was clear it founded claims. This was also relevant under section 473DD(a).
The provisions of Part 7AA provides for a scheme that limits the issues and material to what was before the delegate. The purpose of section 473DD is to provide a mechanism to ensure that the otherwise strict limits of the Part are not absolute. The test is exacting: ‘exceptional circumstances’. However, this does not necessarily exclude material available before the delegate hearing. Thus, even if material is available prior to the delegate hearing and for that reason of limited weight (as it was not provided in a timely manner), it may nevertheless be that there are “competing circumstances” in a given case.
Whether material passes the threshold of section 473DD(b)(ii) as being credible in the narrow sense of the word used in the section does not constrain the IAA from considering the weight or strength of the evidence, when considering ‘exceptional circumstances’ under section 473DD(a).
The IAA have considered the relevant factors and the decision under section 473DD(a) as appeared open to them.
Similar analysis can be undertaken on information referred to in paragraphs 18 and 19 of the IAA’s decision.
Whilst paragraphs 18 and 19 are not nearly as detailed as paragraph 17, the substance and the reasoning remains the same. The IAA identified that the letter detailed past events that the applicant relied upon. The IAA found that this was information that was readily available to the applicant, to either voice to the delegate at the hearing or obtain from his family members. In these circumstances, without any form of explanation, the weight that can be attached to it appears slight.
This was particularly the case with respect to his father's letter which appears on its face to have been translated in January 2016, prior to the delegate’s interview: see Court Book page 265. This material became available before the applicant's interview on 7 November 2016 and well before the date of the decision of the delegate on 1 June 2017. The letter was translated some 10 months before the interview with the delegate: see Court Book at pages 96 and 265.
Ultimately, I am not persuaded that in this case the IAA failed to sufficiently consider the circumstances in making their finding as to whether or not ‘exceptional circumstances’ were established, not that the decision was not open to the IAA. The IAA was not required to determine if section 473DD(b) was satisfied once it concluded section 473DD(a) was not satisfied.
I therefore refuse grounds 1 and 2.
Ground 3
Ground 3 of the application is framed as follows:
The Authority made a jurisdictional error in exceeding its jurisdiction under Part 7AA of the Act by considering new country information provided by the applicant without making a finding that s 473DD(b) of the Act was satisfied in relation to the information
Particulars
i. The applicant provided new country information to the Authority, including the UK Home Office, “Country Information and Guidance, Sri Lanka: Tamil separatism 3.0” August 2016 (Home Office Report).
j. The Authority is required by s 473CC, and s473DB to conduct the review of the decision of the Delegate of the Minister by reference to the “review material” without obtaining new information.
k. the Authority could only consider the new information provided by the applicant if it was satisfied both the criteria in s 473DD(a) and s 473DD(b) of the Act were met in relation to the country information.
l. The Authority considered the country information despite not making a finding as to whether the information satisfied s 473DD(b).
m. The Authority had no lawful authority to consider the Home Office Report
n. The Authority relied on the Home Office Report at [46] of its reasons (CB 315) to support finding that the applicant did not have a profile that would lead him to face a real chance of serious harm or a real risk of significant harm.
In this regard, the applicant relies on the findings of Judge Driver in CQY16 v Minister for Immigration & Anor [2017] FCCA 236 (at paragraph 103) where his Honour found that the IAA could not use new information against an applicant without first finding the information met the requirements of Part 7AA, saying:
103. […] Until such time as the Authority had met its obligations under Part 7AA in relation to the new information, the information was not available to the Authority to consider. Accordingly, it could not use the new information in order to support an adverse credibility finding against the applicant. These errors go to jurisdiction and the applicant should receive the relief he seeks.
In this case the applicant had provided the IAA with submissions that made reference to the UK Home Office Report. The IAA then relied upon another part of the Report to refuse the application.
It appears clear from paragraph 11 of the decision that the IAA approached the matter through the prism of section 473DD, saying that they were:
11. …“satisfied that there are exceptional circumstance to justify considering this new information”.
It was open to the IAA to conclude that they may consider this material on the basis of ‘exceptional circumstances’. However the IAA could not be satisfied of the section 473DD(b) matters, as this was country information, not personal information, published before the delegate decision and it was therefore outside the ambit of section 473DD(b). To the extent that it is new information “given or proposed to be given to the authority by the referred applicant” (section 473DD(b)), then the preconditions in that section have not been satisfied, just as they were not satisfied in CQY16.
Counsel for the Minister distinguished CQY16 by arguing that the UK Home Office material was new information obtained by the IAA, which was open to it under section 473DC.
Whilst the applicant referred to the UK Home Office Report, it was only for a limited purpose. The IAA chose to obtain the whole of the report, which itself was the act of ‘getting’ new information. It was not necessary to give the applicant particulars of the new information under section 473DE due to the exception in section 473DE(3).
It is apparent from the reasoning of the IAA that it was not approaching the matter on this basis, but rather through the prism of section 473DD. In circumstances where the IAA could lawfully ‘get’ the information, it matters not that it thought it was using the section 473DD pathway, rather than section 473DE. It was a lawful exercise of power for the IAA to ‘get’ the information in the circumstances of this case. Thus, this ground must fail.
Ground 4
Ground 4 was framed as follows:
4. The Authority’s decision is affected by apprehended bias as the Secretary of the Department provided highly prejudicial and irrelevant material to the Authority.
Particulars
a. The Authority must pursuant to s 473FA of the Act conduct a review free of bias.
b. The Secretary of the Department is required to provide to the Authority any material in the Secretary’s possession or control that is considered by the Secretary to be relevant to the review in accordance with s 473CB(1)(c) of the Act.
c. The Authority must review a decision referred to it under
s 473CA of the Act by considering the review material provided to it under 473CB.
d. In accordance with s 473CB(1)(c) of the Act, the Secretary provided to the Authority several documents relating to the Applicant having been charged with offences relating to reckless driving endangering life. These documents comprise 32 pages of the Court Book (CB 131 – 162) (the material).
e. The material revealed that:
i. The applicant’s two co-accused are alleged to have met and paid a 37-year old woman and her 14 year old niece for sexual services.
ii. The applicant was alleged to have arrived later in a silver sedan.
iii. The two co-accused were alleged to have had an argument with the woman and her niece.
iv. It is alleged the co-accused departed in a van – repeatedly running over the 37-year old woman.
v. A silver sedan departed driving over the 37-year old woman.
vi. One of the applicant’s co-accused was charged with attempted murder.
vii. The applicant was charged with driving offences including reckless driving placing a person at risk of death.
f. The material was irrelevant to the issues in the review by the Authority.
g. Given the highly prejudicial nature of this material, there is a real possibility that a fair-minded and appropriately informed lay observer may apprehend that the Authority may not have brought a fair, impartial and independent mind to the determination of the matter on its merits.
The nature of the additional material provided to the IAA was such that it is likely to inflame the passions and emotions of a reasonable person against the applicant. The circumstances of the incident from which the charges arise are shocking.
I accept that the matters are irrelevant to the determination that the IAA had to make in this case.
The IAA specifically identified that this material had been provided to it and that it was, in the view of the IAA irrelevant, saying:
3. I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). Part of the referred materials included documents regarding outstanding driving charges laid in Australia relating to the applicant and associated matters. I do not consider these to be relevant to the issue before me. The applicant did not advance any claims about this matter to the Minister, or in his submission to the IAA. The delegate noted in the decision that the applicant is due to attend the Magistrates' Court in October 2017 but there is no indication that he has had regard to this information or that it relates to the applicant's protection claims. I am satisfied that this information is not material to the applicant's protection claims and I have not had regard to it.
Counsel for the applicant relied upon the decision in AMA16 v Minister for Immigration & Ors [2017] FCCA 303. However, as pointed out by Counsel for the first respondent, the case is distinguishable because in that case, the decision maker had not specifically noted the material and stated that they had not had regard to it.
AMA16 also identifies the very practical problem confronting the parties in a case of this type, that is: what should ultimately be done when there is prejudicial material that is not technically relevant to the decision being made? Once that material appears in the records (particularly as it did in this case, referenced in a decision by a delegate, see Court Book page 204), there is no practical mechanism for redaction of the comments by the delegate. The comments in AMA16 about the effects of express identification of the material as being irrelevant are powerful. As Dowsett J said in an earlier case, Crowley v Holmes & Ors [2003] FCAFC 189; (2003) 132 FCR 114:
‘A fair-minded observer would not perceive bias merely because the Committee knew of such previous dealings between the Commission and the appellant. The Committee would inevitably know that the investigative and adjudicative referrals leading to its own deliberations were, in effect, instigated as a result of the Commission having such concerns. That it had previously had similar concerns about other conduct could hardly take the matter any further. The appellant will no doubt have an opportunity to be heard on the matter. He will almost certainly receive assurances similar to those referred to in Holmes v Mercado. Our society relies upon courts and tribunals to determine factual matters by weighing evidence, often rejecting or discounting some of it. There is no justification for the view that a professional tribunal such as the Committee is unable or unwilling to set aside material which, for one reason or another, is not proper for its consideration. I am confident that a fair-minded observer would share that view.’
In the circumstances of this case, where reference is made to these matters in the delegate's decision, it is unsurprising that the Secretaries’ delegate would supply copies of the material to the IAA. It is not argued that this conduct was a breach of the Act or in some way impugned the decision.
The IAA specifically identifies that the material was irrelevant and states such in its decision. It appears to me to be sufficient, at least in the context of this case, to result in circumstances to a conclusion that there would not be a reasonable apprehension of bias on the part of the decision-maker.
In the circumstances I am not persuaded that this ground is made out.
Ground 5
Ground 5 is framed as follows:
5. The Authority constructively failed to exercise its jurisdiction to consider the applicant’s claims to meet the statutory criteria under s 36(2)(a) or s 36(2)(aa) of the Act by failing to consider corroborative material relevant to the applicant’s claim that CID came to his family home on 14 January 2016.
Particulars
a. The applicant submitted letters from a Parish Priest and a Lawyer corroborating this claim that CID had visited his family home on 14 January 2016.
b. The Authority stated at paragraph [35] of its reasons that it “had regard” to the letters, but could not give them any weight because it had found the CID did not visit the applicant’s home on 14 January 2016.
c. The Authority, as a result, did not consider the letters in its assessment of the applicant’s claim to fear harm from CID.
The IAA's reasoning in this regard (as set out in paragraphs [26] to [27] and [34] to [36]) is as follows:
26. I accept as plausible that the applicant was stopped by LTTE members on 1 September 2007 who demanded he transport them and their cargo. I note that at this time Mannar was largely government controlled and I am not convinced that LTTE fighters would have been in a government controlled area, but noting the fighting in the nearby Vanni area in 2007 and reports of LTTE insurgent activity and the laying land mines in the region I cannot discount the presence of LTTE members in Mannar and that they were seeking to escape from the area [FN omitted]. I note that the applicant was not known to these LTTE members and that he was stopped by them as he returned from his morning fishing trip.
27. While I accept that this incident occurred I find the applicant's account of subsequent interest from the authorities to be implausible and I do not accept that the authorities became aware of the 2007 incident when they captured one of the LTTE members some time later and have imputed the applicant with an LTTE profile as a result, or believe he knows the whereabouts of hidden weapons. The applicant was not known to the LTTE members when they stopped him and forced him to transport them. They had no contact with the applicant after this time and there is nothing in the information before me to indicate that they knew his name or address, or any other feature other than he was a fisherman in Mannar, that would assist in identifying him to the authorities two or more years later. I consider it is speculation on the applicant's part that the authorities have become aware of his involvement after capturing one of the LTTE group involved. I note the applicant did not raise this claim in his written statement. I also note his account at his SHEV interview was inconsistent and lacked coherency; when first asked at the SHEV interview how he knew one of the LTTE group had informed on him, in response the applicant recited the claimed telephone call to him by the CID in 2012 but did not provide any information that indicates he was informed that the CID had captured one of the LTTE group. At one point in the interview the applicant stated that the authorities asked his parents in 2007 if he transported LTTE members, yet at a further point in the interview the delegate asked the applicant why the level of interest in him from the CID had escalated in 2015 and he responded it was because the CID had become aware of the 2007 incident. Furthermore, if the CID only became aware of the 2007 incident in 2015, this is inconsistent with the claimed CID regular visits to the family, albeit at a lesser frequency, from 2012 to 2015.
…
34. I have noted the claim from the SHEV application that the CID came to the family home on 14 January 2016 and threatened harm to the family. I have not accepted that the applicant is of ongoing interest to the authorities and I also take into account that this claimed visit is more than eight years after the applicant's 2007 encounter with the LTTE and I have serious doubts about the genuineness of this claim. In considering the veracity of this claim I have also taken into account the applicant's further testimony at his interview about claimed ongoing visits to his family home since 2012. In his SHEV application the applicant referred to one visit only by the CID in January 2016 and did not refer to the sustained level of interest claimed at the SHEV interview. I note his comment that his family may be concerned about worrying him and have not told him everything that is happening, but I note that they informed him of the claimed January 2016 visit and the threats issued to his father and brother. I also note that at the SHEV interview when initially asked' the total number of visits he stated that they may have visited three or more times, whereas later he stated that they visited weekly from 2012 increasing to thrice weekly from 2015. I consider it implausible that the CID would make the stated number of visits over a sustained period, particularly noting that the applicant stated his father told them he had gone overseas. Noting that I have not accepted that the CID are aware of his involvement in the 2007 incident, I do not accept that the CID have an ongoing interest in the applicant and I do not accept the CID has made ongoing visits to the family in search of, or to enquire about the applicant.
35. I have had regard to the documentation submitted in support of the claim that the applicant's father sought the assistance of the local priest after the January 2016 visit and the subsequent involvement of an attorney who contacted the CID. I have noted the letter of support provided by the Bishop of Mannar, however I am not satisfied that his account provides independent corroborative evidence of the claimed events and I give this letter little weight. I have not accepted that the CID have an ongoing interest in the applicant and that they have made ongoing visits, including the claimed visit in January 2016, and taking account of the weight of evidence before me that supports my finding that there is no ongoing adverse interest and that these visits did not occur I am not able to place any weight on the statements from the attorney or the parish priest. I do not accept the applicant's father sought the assistance of the local priest in January 2016 and that an attorney contacted the CID and advised them the applicant would surrender to the CID on return.
36. I accept there have been recent incidents of harm to Tamils, including in the Mannar area.
The thrust of the applicant's argument is based upon the rejection by the IAA of the documents on the basis of their finding of a lack of the applicant's creditability with respect to this issue. This is not a case where the IAA rejected the applicant’s credit on a wholesale basis. The IAA in its reasoning process cannot disregard the material that is potentially corroborative of the applicant, but must take it into account having regard to Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50 (at paragraphs 36 to 48) where North and Lander JJ say:
36. When a decision maker has conducted a hearing of the kind which is conducted by the RRT and has heard the applicant, and has reached the tentative conclusion that the applicant’s claims have been fabricated, the decision maker is entitled in our opinion to reject evidence which would, if accepted, have corroborated the applicant’s account. That does not mean that any evidence of corroboration could be rejected. It would depend upon the nature, content and quality of the corroborative evidence before a decision maker could determine to reject it out of hand. In this case, as we have said, the document which is said to be the corroborative evidence is a document written in the Chinese language which has been interpreted, no doubt faithfully, into the English language and purports to be a statement of Lu. The applicant, whom the RRT believed was not a credible witness, proffered it as Lu’s statement, but there was no other evidence other than the applicant’s say so that it was. There is nothing irrational about the RRT in those circumstances rejecting the document by giving it no weight. In circumstances where the provenance of the document is unproved, but it is proffered by a witness whose credibility has been destroyed, the document has no more credit than the person proffering it. Consequently, the alternative argument relied upon by the appellants, outlined at [22] above, cannot be sustained.
37. Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.
38. The RRT would fall into jurisdictional error if, after making an adverse credibility finding, it simply refused to consider the corroborative evidence. Applicant S20/2002 198 ALR 59does not sanction a practice of disregarding corroborative evidence. It still requires that the corroborative evidence be assessed and weighed in the balance with all the other evidence. Consequently, the observation concerning the dicta of McHugh and Gummow JJ at [49] in Applicant S20/2002 198 ALR 59 made in SZDGC v Minister for Immigration and Citizenship (2008) 105 ALD 25 at [23] is probably misdirected. Those observations addressed the situation where the corroborative evidence was disregarded.
39. On the other hand, it should be remembered that McHugh and Gummow JJ questioned whether the separate consideration of corroborative evidence was a preferable practice. The RRT should normally assess all the evidence together. Otherwise, it might be thought that the corroborative evidence is treated as a lesser category of evidence and that the RRT has not paid sufficient regard to it.
Katzmann J said:
43. At [12] of his reasons the Federal Magistrate said:
“In the instant case the Tribunal did not find that the [first respondent] had lied. It found it difficult to believe a number of assertions that she had made but it did believe others. For example, it believed her important assertion that she was a member of the Communist Party and that she held some government position of the type described by her. It came to the view that her evidence had been fabricated only after a consideration of the cumulative effect of ‘minor’ concerns. It should have weighted the corroborative evidence against those concerns because it went to the heart of her claims and confirmed some aspects of the [first respondent’s] story that the Tribunal also accepted, such as her employment by the local government.”
44. There are a number of problems with this paragraph.
45. First, the Tribunal did in fact conclude that the first respondent had lied. With respect, the distinction the Federal Magistrate sought to draw between fabricating evidence and lying is illusory. It was a distinction without a difference. Counsel for the first respondent accepted that the Federal Magistrate was in error in this respect.
46. Secondly, it is not true that the Tribunal believed the applicant’s assertion that she was a member of the Communist Party and held the government position she described. What the Tribunal did was to recite the substance of the first respondent’s evidence but when it came to setting out its findings it made no such findings. Rather, it said:
“The Tribunal finds it difficult to accept that a public servant in China and an active member of the Chinese Communist Party would assist a Falun Gong practitioner when the potential consequences could be very serious; it is difficult to accept that a person in that position and with those political affiliations would want to risk their employment and ill-treatment for someone who is not a close friend, a relative or a family member.”
47. Later in its reasons the Tribunal acknowledged it was “plausible” that the first respondent worked as a public servant and had been a member of the Chinese Communist Party.
48. Neither of these passages suggests that the Tribunal accepted the first respondent’s assertions about those matters. Rather, the Tribunal’s remarks formed part of its analysis of her claim based on a factual premise erected by the first respondent that it neither accepted nor rejected.
I am persuaded that the IAA did traverse the relevant evidence as a whole. The IAA specifically had regard to the information in paragraph 35. It was open to the IAA to make the findings that it did and this ground should be dismissed.
Further Grounds
At the hearing, the applicant sought to rely upon a Proposed Further Amended Application (Annexure A to the Affidavit of Natalie Young sworn 19 September 2018). Further submissions were filed and made at a subsequent hearing.
The first respondent filed Further Supplementary Submissions addressing the ‘new grounds’ on 24 September 2018. In these submissions the first respondent consented to the first proposed new ground (ground 6) but not to the second (proposed ground 7). The first respondent said the proposed ground 6 received considerable attention at the initial hearing on 14 September 2018 in this matter and that the parties were granted leave for the application to be again amended so the applicant could formally raise it.
The first respondent raised a distinction between ground 6 and 7, arguing that:
[3]… One [argument] considers the IAA’s rejection of new information and the reasons given by the IAA for that rejection. The other considers whether the IAA should have taken some additional step to get further information. That an aspect of the threshold in each question is unreasonableness does not mean the arguments overlap in substance. The questions and considerations are markedly different.
In the overall circumstances, it is difficult to see that there is any real prejudice to the Minister (once the Minister has had adequate opportunity to answer the arguments) as it causes no significant delay, and any delay is, on a practical level, a detriment to the applicant. The fact that delay generally is to be avoided in any justice system must be seen in the context of the migration case load in the Federal Circuit Court: there are insufficient judicial resources to deal with cases quickly and many cases far older than this case that are still awaiting a hearing. The grounds do raise serious issues, and the underlying litigation concerns a protection visa claim (thus the outcome has potentially life threatening consequences for the applicant). I therefore allowed the further grounds to be relied upon. The Proposed Further Amended Application contained two additional grounds which I now consider.
Ground 6
Ground 6 was framed as follows:
6. The Authority’s finding that there were no exceptional circumstances to justify considering the applicant’s new information regarding his family links to the LTTE was irrational and/or unreasonable.
Particulars
a) The applicant claimed that he was advised not to provide information regarding his family links to the LTTE in his protection visa application.
b) The Authority did not make any finding regarding:
a. whether the applicant had received advice not to give information regarding his family links to the LTTE; or
b. if the applicant had received that advice, did it constitute exceptional circumstances.
In this case there is a complex background, thus it is important to first identify the particular material that was before the IAA.
The applicant’s agent sent the IAA member an email on 29 June 2017, simply saying ‘Please find attached statement and supporting documents’: see Court Book page 280. There was nothing of significance in the email. The attached statement was a statement of the applicant that runs for five pages which are largely submissions, but also contains evidence. The agent made no effort to distinguish submissions from new information, nor was the test for receiving new information addressed. The form of the ‘statement’ made the task of the IAA particularly difficult. The statement contains numerous headings, giving the appearance of some degree of structure (such as ‘New Documents’, ‘Clarifications’, ‘Capacity to Subsist’, ‘Relocation’, ‘My Political Opinion’, ‘Prevention of Terrorism Act’, ‘Failed Asylum Seeker’, and ‘Country information’). Buried in the penultimate paragraph under the heading ‘Country Information’ is paragraph 17 which states:
17. My Protection visa application was prepared by an Oncall Interpreter, Srinivasan VENKATRAMAN, who claimed he is a lawyer's assistant. He advised me I should only write about my problems and did not write about my family's profile. Two of my uncles and two of my cousins were killed by the authorities for assisting the LTTE. I have attached their death certificates. One of my younger brothers was a LTTE cadre, who lives in India now. I have also attached his resettlement letter. I believe my profile is connected with my family's profile. We are seen as LTTE supporters by the authorities. I fear I will be also killed like my uncles and cousins.
The applicant did not provide any further evidence in support of this almost bare allegation. For example, there is no narrative about how the applicant came to have the interpreter complete his application form, nor a description of the conversations that took place or any discussions with his agent, and importantly, he does not address the comments in the delegate’s decision where the delegate says:
… it was put to the applicant at interview that I didn’t consider it plausible that the authorities would consistently visit his house enquiring as to his whereabouts up until January 2016, as many as 2-3 times per week, some eight years after he transported LTTE personnel on one occasion. In response to this the applicant said that he is not sure how many times the authorities have come looking for him, but he has relied on information from his family. After the natural justice break during his SHEV interview the applicant was given a chance to respond to the general doubts I had expressed about his pro-LTTE/anti-government profile. He said that he believes that the CID is looking for him as they believe that he knows the location of some weapons that the LTTE personnel were carrying on the day he took them from Mutharippu to Kallaru. He was asked why he thinks that this is the case to which he responded that “…because there is no other reason” why they would be still interested in him. He was also asked why he didn’t mention that the weapons were in the bags to which he responded that he suspects that there were weapons in the bags and suspects that the LTTE hid those weapons in the forest after he delivered them to their destination.
In summary, I am not convinced that the Sri Lankan authorities have targeted the applicant because he transported the LTTE personnel and their weapons in September 2007. I do not accept that this event occurred. I have come to this finding partly because the applicant could not provide detailed information about the day that he carried the LTTE soldiers but mainly because it took so long for the authorities to follow up on this event (a period of approximately five years). Also, I find that this claim is not credible because of the level of attention that the applicant claims that the authorities continue to invest in him. I find that such attention is not commensurate with having transported LTTE personnel on one occasion nearly 10 years ago. I do not accept the applicant’s claims that the authorities are interested in him, a civilian with no further profile in the government’s eyes, because he allegedly carried some LTTE personnel on one occasion. (at Court Book pages 206 to 207)
(emphasis added)
The delegate also recorded that during an interview with the CID the applicant had been asked about his family members (see page 4 of the delegate’s decision) and that the applicant claimed that, “his lawyer made a deal with the CID to leave his family alone on the proviso that he presents to them if he returns”: see Court Book page 210.
The transcript of the SHEV interview (that took place on 7 November 2016) is an Annexure ‘C’ to the Natalie Young Affidavit. It does not appear that the agent who prepared the statement for the IAA had obtained a copy of that transcript prior to preparing the statement. The case officer identified that the applicant was represented, saying ‘Okay. So the applicant's migration agent, Mr Ronald Gordon from Melbourne Immigration Lawyers is also present’: see T2.44. The transcript records that Mr Vunkataraman was also present, not in the role of an interpreter from On-Call Interpreters, but as a ‘trainee or an associate’ of Mr Gordon. Mr Gordon is recorded simply as a migration agent in the visa application summary (at Court Book page 84), not a solicitor.
In the transcript of the SHEV interview (at T20.34) it is recorded that the following exchange took place:
CASE OFFICER: Was anybody else in your family ever questioned by the Sri Lankan authorities for their anti-government or their pro LTTE profile or reason? So anybody else in your family who's ever had a pro LTTE or antigovernment profile and been questioned about the government for that reason?
INTERPRETER: No.
Significantly, after this exchange took place the officer gave the applicant a break, leaving the applicant and his advisors alone in the room, as is clear from the transcript: see T23.29:
CASE OFFICER: All right, we're going to have a break now. So, Ronald, I guess if you want to address the issues with your client - the profile, I guess I am concerned about the profile. I don't think that the one time with the LTT, carrying people who he was forced to carry justifies the level of profile that he's claiming, so that constant kind of interest from the authorities, and I guess that's just my overarching concern. So if you want to address that after the break then that will be great. Interpreter, I am just going to go out of the room for about ten minutes. Is ten minutes all right?
After the break the applicant made no mention of the alleged links of his family members. However, his agent, Mr Gordon, said (at T25.46):
MR GORDON: During the break I raised those issues that you raised with him towards the end, discussed with me, in particular for example why would the CID be interested in him, the level of interest in him, and through the interpreter we discussed it and he gave an explanation. I think he thinks that because he's given the explanation to me through the interpreter that I said to him when you come back in he's going to give the same explanation to you I think he hasn't understood that, because he has got explanations for clearly those issues.
CASE OFFICER: Did you want to ask him again now through the interpreter? I'm happy to.
MR GORDON: Madam Interpreter, you will recall that we discussed during the break that I asked him - - -
INTERPRETER: Yes, I remember.
MR GORDON: - - - and I said that when Wes comes back in that Wes needs to hear that through you, especially regarding I think that he said there was something with them when he transported them and stuff like that. So if you could ask him to repeat the explanation as to why the CID would be – would have a higher level of interest in him, even though he's only transported them once.
The applicant then gave further information, none of which suggested that his family had a profile that drew attention from authorities.
Later, as recorded in a departmental Case File note of a telephone conversation with the applicant on 13 June 2017 (at Court Book page 238), the officer notes that:
… He said he is having some difficulty contacting his lawyer and needs assistance with the IAA review. He said he has contacted Legal Aid who said they would visit but have not come yet. He went on to say that he'd provided documents with translations to his lawyer to forward to the department but does not think his lawyer forwarded these documents. He also stated that he did not provide all information to the department out of fear of repercussions for his friends and family and believes that the interpreter at the department interview did not interpret correctly.
The department also had some difficulties dealing with Mr Gordon as he had not completed a form appointing himself as agent for the applicant and the department had some difficulties clarifying whether he was acting (see Court Book 175 to 187). It seems that Mr Gordon is not a legal practitioner, as the form completed to appoint him does not list a firm name, and only lists his migration agent number.
The IAA gave brief reasons for finding that the applicant had not established exceptional circumstances under s.473DD, saying, at paragraphs [15] to [17]:
15. The applicant advanced new claims about the LTTE links of relatives and that he believes as a result of these links he and his family have been imputed as LTTE supporters. The applicant stated that his SHEV application was completed by a lawyer's assistant who advised him that he should only write about his personal problems and not his family's profile.
16. The applicant provided the IAA copies of death certificates for his cousins and uncles … from gun shots. He also stated his younger brother was an LTTE fighter and he provided a copy of a letter dated 20 October 2009, from the Divisional Secretariat requesting resettlement assistance for … his brother.
17. … at his SHEV interview the delegate asked the applicant why he thought he would be harmed in Sri Lanka and the applicant responded because of his role transporting LTTE members in 2007. Despite being put on notice by the delegate that he had difficulty accepting that this incident would have resulted in the claimed level of adverse attention experienced by the applicant, the applicant did not advance these claims of familial links to the LTTE. The applicant stated to the IAA that he fears he will be killed like his uncles and cousins, yet he did not advance these claims at his SHEV interview when questioned about his fears on return to Sri Lanka. Furthermore, the applicant had the benefit of the presence of his legal representative at the SHEV interview and I am satisfied that he had the opportunity to put forward these claims at his interview. I am satisfied that the applicant had an opportunity to advance the claims of familial links with LTTE members to the Minister and I am not satisfied that there are exceptional circumstances to justify considering this new information.
In the applicant’s Supplementary Contentions of Fact & Law (Annexure B to the Natalie Young Affidavit), the applicant first reviewed the authorities to clarify the circumstances in which the IAA’s decision as to whether to consider new information can be judicially reviewed, saying:
17. The authority must be satisfied “exceptional circumstances” exist to consider any new information (s473DD(a)). Exceptional circumstances includes circumstances that are unusual or out of the ordinary (BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [39]-[41]).
18. The determination of whether exceptional circumstances are present for the purposes of s 473DD(a) is an evaluative assessment rather than an exercise of discretion (M174 at [75] per Gageler, Keane, and Nettle JJ; DSY16 v Minister for Immigration and Border Protection [2018] FCA FC33 (DYS16) at [17]).
19. An evaluative assessment can be reviewed if it is unreasonable, irrational, and/or illogical (DYS16 at [18] – [21]). A finding may be irrational or illogical where the reasons reveal no intelligible justification or logical basis for the ultimate conclusion (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [131[, [135] per Crennan and Bell JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [4]).
The core of the applicant’s argument, however, is set out in paragraph 20 where submissions are made that:
20. The Authority’s decision that there were no exceptional circumstances to consider the applicant’s new information regarding his family profile was unreasonable and/or irrational for the following reasons:
a. It was out of the ordinary for:
i. the applicant to receive advice not to reveal claims for protection;
ii. the applicant to have received that advice from an interpreter who assisted with his visa application; and
iii. for the same interpreter to attend the SHEV interview.
b. The applicant had raised complaints about his ability to contact his migration agent directly with the Authority by telephone. These complaints were, in part, corroborated by material indicating the Department had been unable to contact the applicant’s agent to notify him of the Delegate’s decision.
c. The Authority made no findings as to whether the applicant’s complaint that he had received advice not to present his claims was credible.
d. The Authority noted at [17] that the applicant had the benefit of legal representation at the SHEV interview. The Authority did not reconcile this observation with the applicant’s allegations that he received the advice not to raise his claims from his migration agent’s assistant.
e. Therefore, the Authority’s finding that there were no “exceptional circumstances” did not consider matters that, if accepted, were out of the ordinary.
f. The Authority did not provide an intelligible or logical justification as to why the applicant’s complaint about the advice he received was no an exceptional circumstances warranting the consideration of new information.
The first respondent submitted that the actions taken by the IAA in response to the applicant’s explanation about his new material was more than sufficient to avoid legal unreasonableness, arguing that:
a)it is a difficult threshold to make out.
b)the IAA had considered the SHEV interview, where the applicant was expressly questioned and the applicant and his representative had a chance to make submissions on profile.
c)the IAA noted the applicant’s assertions that he had been advised about his written application by his lawyer’s assistant,
d)there was nothing provided that might have helped substantiate the claims of the applicant provided to the IAA.
e)whilst it would be ‘unusual’ for an applicant to receive advice of the type claimed, it is ‘less unusual for an applicant to claim that they made their claims in particular ways because of poor advice’.
f)given the lack of evidentiary material to establish this claim, in the face of material suggesting the opposite, the IAA did not need to make an express finding about whether the complaint was credible.
As a result, the first respondent submits, this was not a legally unreasonable course for the IAA.
In substance the difficulties in this case (as is not uncommon in migration cases generally), flow from alleged negligent conduct by a migration agent. In this case the primary negligence is alleged against the first agent. However, the second agent has prepared material addressing the conduct of the first agent that is so lacking in detail and prominence that one has to question whether the second agent even identified its importance. I have considerable sympathy for the IAA member when presented with material in this fashion. Nevertheless the legislative scheme provides for agents to undertake work as advocates in the Administrative Appeals Tribunal (‘the AAT’) and the IAA. As a result the reviewing bodies receive less assistance than a court would enjoy from legal practitioners appearing before the courts. This is a natural consequence of the policy decision to allow agents to represent applicants before the AAT and IAA.
Whilst the applicant’s statement to the IAA is particularly lacking in detail, it nonetheless raises a significant issue: a claim that negligent advice of the agent or their assistant adversely affected the applicant’s claim. Importantly, in a protection visa case, there is no adequate remedy for the failure of an agent, other than to have an opportunity to put the material before the decision maker.
When dealing with this question the IAA gave reasons, which shows that the IAA understood the allegation (at paragraph [15]) but proceeds upon the basis that there was a legal representative at the SHEV interview. The result appears to be that the IAA relied upon the applicant’s ‘legal’ representation at the SHEV interview to conclude that the allegedly inappropriate advice would have been remedied at the SHEV interview. The reasons do not appear to have noted that the representative at the SHEV interview was a migration agent and that the person who provided the allegedly inappropriate advice was also present as the agent’s assistant. In these circumstances it could not have been logically open to the IAA to infer that the applicant’s representation at the SHEV interview would have remedied any inappropriate advice given earlier by Mr Vunkataraman.
As a result I find that this ground is made out.
Ground 7
Ground 7 was framed by the applicant as follows:
6. The Authority’s exercise of discretion not to get new information from the applicant pursuant to s 473DC was unreasonable having regard to the applicant’s claim that he had been advised not to present claims regarding his family links to the LTTE in his protection visa application.
Particulars
a) The applicant claimed that he was advised not to provide information regarding his family links to the LTTE in his protection visa application.
b) The applicant requested the Authority exercise its discretion under s 473DC of the Act to invite him to an interview.
c). The Authority did not exercise its discretion to get new information from the applicant through an interview or in writing.
The applicant developed the following argument in support of this ground:
23. … the applicant's submission is that the question of whether the Authority's decision on review was legally unreasonable raises two overlapping issues: whether it's finding as to exceptional circumstances was reasonable and whether its exercise of discretion was reasonable.
24. …
a. The issues are closely related, both concern whether the Authority should have allowed the applicant to provide new information despite the prohibition in s 473DB of the Act.
b. If the applicant's claim he had received poor advice was capable of constituting an exceptional circumstance, it was relevant to the Authority's exercise of discretion under s 473DC of the Act.
c. The proposed ground turns on the same critical fact: that the applicant received advice not to raise his claims.
…
26. The Authority has discretion to get new information from an applicant either by inviting the applicant to an interview or seeking the information in writing(s 473DC(3)). The Authority's discretion must be exercised reasonably (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21] per Gageler, Keane, and Nettle IT (M174J; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [68] - [82]). An assessment of unreasonableness is an inherently fact-dependent inquiry (Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [42]).
27. The Authority's refusal to exercise its discretion pursuant to s.473DC was unreasonable for the following reasons:
a. The applicant provided indicated that he had received advice not to reveal his claims in his protection visa application. This is capable of constituting an exceptional circumstance.
b. The Authority made no finding as to whether the applicant's explanation that he had received advice not provide claims regarding his family profile was credible or not.
c. The applicant's complaint related directly to the utility of his SHEV interview before the Delegate.
d. In the circumstances, where the Authority did not reject the applicant's explanation that he had received poor advice that compromised his performance at the SHEV interview, it was unreasonable not to seek new information regarding the applicant's familial connections to the LTTE.
As Counsel for the first respondent argued, any information that the IAA received from the applicant would have been the same information already provided. In oral submissions, Counsel for the applicant said that the IAA , in exercising its discretion to get new information, could have asked the applicant for further information and that it might have seen the applicant in person to better assess whether to believe his claims regarding the interpreter.
Firstly, it must be accepted that the operation of section 473DC requires that the IAA determinations under that section are legally reasonable: see Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210. The circumstances that arose in CRY16 demonstrate that the principles in the cases on whether the AAT is required to seek out further information do not have precise application as those cases limit the requirement upon the AAT to obtain further information far more than that discussed in the context of CRY16. However, that is to be expected given that the process for review before the AAT and the IAA is quite different as the AAT must fulfil the requirements set out in section 425 of the Act.
In this case the IAA has considered whether to receive further information from the applicant on the relevant claim (and indeed to raise the relevant integer of the claim), upon the applicants request under section 473DD. The argument of the applicant is to the effect that in each case where the IAA finds against an applicant under section 473DD, it must nonetheless then turn to section 473DC and consider whether to ‘get’ new information on the same topic. Firstly, the IAA has no duty to ‘get’ new information: see section 473DC(2). Secondly, in cases such as this the IAA has already considered the applicant’s request to provide new information under section 473DD and rejected it on the basis that there are no ‘exceptional circumstances’. In substance that applicant is arguing that the IAA has acted legally unreasonably by not making enquiries into an issue despite finding that the material placed before it submitted by the applicant did not establish an exceptional circumstance. Effectively it is an argument that the IAA is required to look for evidence that may satisfy the test that the applicant has failed to satisfy. Generally, it would be reasonable for the IAA to simply consider the material put forward by the applicant, although in this context the existing jurisprudence with respect to the AAT’s obligation to seek further information would appear an apt caveat: an obvious enquiry about a critical fact, the existence of which is easily ascertained: see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25].
It could not be said that there is any information readily available to the IAA in this respect that would warrant a finding that it was legally unreasonable for the IAA not to make enquiries into the issues raised by the applicant.
I therefore find that this ground is not made out.
Conclusion
As I am persuaded that the applicant has established a ground for judicial review and I therefore make orders accordingly.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 6 March 2020
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