Foe18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 141
•24 February 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
FOE18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 141
File number(s): SYG 2959 of 2018 Judgment of: JUDGE DRIVER Date of judgment: 24 February 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other claims found not to be well-founded –whether the Authority made an unreasonable finding, or failed to accord procedural fairness or erred in dealing with new information considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth), ss 473CB, 473DD Cases cited: AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442
AUH17 v Minister for Immigration and Border Protection [2018] FCA 388
BIR17 v Minister for Immigration and Border Protection [2019] FCA 850
BOS17 v Minister for Immigration and Border Protection [2020] FCA 75
Buck v Bavone (1976) 135 CLR 110
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221
CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333
DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
ESQ17 v Minister for Immigration and Border Protection [2019] FCA 826
FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620
Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457
Minister for Immigration and Border Protection v CQW17 (2018) 162 ALD 427
Minister for Immigration and Border Protection v Maioha [2018] FCAFC 26
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217
SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1
Number of paragraphs: 67 Date of hearing: 1 February 2021 Place: Sydney Solicitor for the Applicant: Mr S Hodges of Hodges Legal Counsel for the Respondents: Ms A Carr Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
SYG 2959 of 2018 BETWEEN: FOE18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
24 FEBRUARY 2021
THE COURT ORDERS THAT:
1.The application as amended by submissions filed on 26 March 2020 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 4 October 2018. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who arrived in Australia on 23 October 2012 as an unauthorised maritime arrival.
On 26 January 2013, the applicant participated in an arrival interview.[1] At that time, the applicant claimed that he departed Sri Lanka because of the harassment he received from the army due to the assistance he provided the Liberation Tigers of Tamil Eelam (LTTE) during the civil war by digging bunkers.[2]
[1] Court Book (CB) 1-17.
[2] CB 11.
On 23 December 2015, the applicant was invited to apply for a temporary protection (Subclass 785) visa or a Safe Haven Enterprise Visa (SHEV).[3] Consequently, on 4 April 2016 the applicant applied for a SHEV with the assistance of a registered migration agent.[4] The applicant’s claims for protection were set out in a statement accompanying the application.[5]
[3] CB 18-23.
[4] CB 24-61.
[5] CB 62-66.
The applicant claimed that between 1987 and 1990 he lived in Jaffna with his mother and was regularly beaten and abused by the Indian Peace Keeping Force because he was suspected of having links with the LTTE because he is a Tamil.[6] Between 1990 and 1995 the applicant claimed he lived in Tamil Nadu, India and various parts of the Jaffna District, but moved to the Kilinochi District on the advice of the LTTE because of the approach by the army towards the Jaffna District.[7]
[6] CB 62.
[7] Ibid.
The applicant claimed that in 1996, he completed five months training with the LTTE, after which he worked for the LTTE for 15 days a month digging bunkers, arranging sandbags and night watching until 2005 when the civil war came to an end and the applicant relocated to the Jaffna District.[8]
[8] CB 62-63.
The applicant claimed that when the civil war recommenced in 2006 he relocated back to the Kilinochi District in 2007 and helped the LTTE again by digging bunkers and assisting the wounded until 2008.[9] In September 2007, the applicant claimed that he was injured in a shell attack while digging bunkers and lost his small finger on his left hand and his right leg was wounded.[10] The applicant claimed that the civil war became worse in August 2008 and he subsequently relocated to the Jaffna District where he continued his work for the LTTE.[11]
[9] CB 63.
[10] Ibid, CB 64.
[11] CB 63.
The applicant claimed that in October 2009, while driving his tractor, he was arrested by Criminal Investigation Division (CID) officers because of suspected links with the LTTE.[12] The applicant claimed he was taken to a camp with five others where he was subsequently tortured, which caused his hand to become disformed.[13] The applicant claimed that he informed the authorities he only assisted the LTTE out of fear.[14] The applicant claimed that he was warned that he would be part of an inquiry.[15]
[12] Ibid, CB 64.
[13] Ibid.
[14] CB 64-65.
[15] CB 63-64.
After this incident the applicant claimed that he stopped driving his tractor, but resumed this activity in May 2011, at which time the army approached him to transport items.[16] The applicant claimed that when he was unloading his tractor an army officer noticed his missing finger which led to questioning about the applicant’s LTTE links.[17]
[16] CB 64-65.
[17] Ibid.
The applicant claimed that because of his fear of the army and CID and that he had been placed on a watch list, he subsequently relocated to Trincomalee in August 2011 and then departed Sri Lanka in October 2012.[18]
[18] CB 65-66.
On 29 September 2017, the applicant’s representative provided a statutory declaration made by the applicant which set out further claims.[19]
[19] CB 100-103.
The applicant claimed his involvement with the LTTE extended beyond digging bunkers to hiding weapons and valuables belonging to the LTTE, including jewellery, cash and documents.[20] The applicant also claimed that the authorities had visited his wife in Sri Lanka twice in 2015 and his son once in 2016 to enquire about the applicant’s whereabouts.[21]
[20] CB 102.
[21] Ibid.
On 9 January 2018, the delegate refused the applicant’s SHEV application,[22] and that decision was subsequently referred to the Authority on 12 January 2018.[23]
[22] CB 108-127.
[23] CB 128-137.
On 29 January 2018, the applicant’s representative provided a submission to the Authority which included voluminous country information.[24]
[24] CB 143-350. The submission to the Authority included an introductory statement regarding purported remittal (CB 346). This statement was later retracted by the applicant’s representative (CB 351-352).
On 4 October 2018, the Authority affirmed the delegate’s decision.[25]
[25] CB 357.
The Authority noted that the applicant had made two new claims before it; namely that the applicant was at risk from Tamil paramilitary members who may know the applicant and that, if returned to Sri Lanka, he will processed en masse and may be imputed with political opinion held by others.[26] The Authority was not satisfied that exceptional circumstances existed to consider these new claims in circumstances where no explanation had been proffered as to why these claims had not been raised before.[27] The Authority was also not satisfied that the country information provided to it by the applicant, which was variously dated between 2016 and 2017, also could not have been previously provided.[28]
[26] see [5] at CB 358.
[27] see [6] at CB 358.
[28] see [8] at CB 359.
The Authority, however, was satisfied that exceptional circumstances existed to take into account recent Department of Foreign Affairs and Trade (DFAT) country information which post-dated the delegate’s decision.[29]
[29] see [9] at CB 359.
The Authority accepted that the applicant was a Tamil from the north of Sri Lanka, who had departed Sri Lanka in 1990 for India after he was harassed for suspected involvement with the LTTE and that he returned in 1992 legally.[30] The Authority also accepted that the applicant was asked to assist the LTTE digging bunkers, was injured during a shelling attack,[31] and was detained, assaulted and questioned by authorities in 2009.[32]
[30] See [11]-[12] at CB 360.
[31] See [18] at CB 361, [27] at CB 363.
[32] See [19] at CB 362, [27] at CB 363.
However, the Authority found the applicant’s evidence about his last two years in Sri Lanka to be inconsistent and increasingly exaggerated.[33] The Authority did not accept the applicant’s claimed greater involvement with the LTTE including the claims that he hid weapons or valuables, or was part of a border force.[34] The Authority was consequently not satisfied that the authorities looked for the applicant seven years after his purported involvement with the LTTE, that his son was questioned in 2016, that he went into hiding or was on a watch list.[35]
[33] See [22] at CB 362.
[34] Ibid; [18] at CB 361.
[35] See [22] at CB 363-[23] at CB 363, [27] at CB 364.
The Authority relied on country information to find that conditions in Sri Lanka for Tamils had significantly improved since the election of the Sirisena government. The Authority noted that former LTTE members and those with significant links may come to the attention of the authorities and be severely mistreated, but the Authority found that there was not a real chance that the applicant would face this type of risk in circumstances where it was not satisfied that the applicant had been of interest to the authorities since 2009.[36]
[36] See [27] at CB 364, [33] at CB 365.
The Authority accepted that the applicant would be identifiable by the authorities as someone who had attempted to seek asylum overseas, however, on the basis of country information, the Authority found that any social stigma, reintegration issues or visits by the authorities would not amount to serious harm or significant harm.[37] The Authority also accepted that the applicant had departed Sri Lanka illegally and that, if returned to Sri Lanka, the applicant may have temporary travel documents and consequently face further investigations to confirm his identity, be briefly held, fined and may face court appearances. However, the Authority was not satisfied that this process would amount to serious harm or significant harm.[38]
[37] See [34] at CB 365, [44]-[45] at CB 367.
[38] See [35] at CB 365–[38] at CB 366, [43] at CB 367.
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 22 October 2018. The applicant continues to rely upon that application, which contains two grounds of review, but, at the trial of this matter on 1 February 2021 the applicant, through his representative, sought leave to add a third ground. I granted leave, noting that the third ground had been advanced in the applicant’s written submissions filed on 26 March 2020 and the Minister had not been prejudiced by it. Indeed, the Minister’s submissions dealt with the proposed additional ground.
The three grounds as formulated in the applicant’s submissions are:
Ground 1: The Authority committed jurisdictional error by making a finding that was unreasonable
PARTICULARS
aAt paragraph 14 of its decision, the Authority refers to the applicant's arrival interview during which he claimed that, while he was living in the LTTE controlled areas in Vanni, everyone was asked to dig bunkers for the LTTE;
bThe Authority then refers to the applicant's SHEV application in which he claimed that he worked for the LTTE in various capacities, including, not only digging bunkers but also caring for the wounded, watching out for the army at night, undertaking training and helping them with their oil business
c Although the Authority accepted the applicant's claim that he was asked to assist the LTTE dig bunkers it considered that the information given by the applicant "during and after the SHEV interview about his greater level of involvement with the LTTE uncertain and increasingly exaggerated".
dIn making the finding above, the Authority focussed on the applicant's generality and lack of disclosure during his arrival interview.
e Similarly the Authority referred to the applicant's failure to mention that he was questioned by the army at his arrival interview in paragraph 21 of its decision.
f Although the Authority noted the limitations of arrival interviews, it erred in finding that the applicant was accorded the opportunity to advance his claims in full;
g The applicant also relies on the particulars for Ground 2 below.
Ground 2 The Authority's decision was infected by the failure to accord the applicant procedural fairness.
PARTICULARS
a At Paragraph 14 of its decision, the Authority referred to the applicant's arrival interview and noted that it found that the interviewer's questioning of the applicant to be thorough.
b The Authority further noted that the applicant was initially having difficulty answering questions and provided, what it considered to be, irrelevant details or responses which did not answer the interviewer's questions.
c As a result, the interviewer asked the applicant to concentrate on providing responses to the questions posed to him. In [so] doing the interviewer controlled what information the applicant could provide, thereby restricting the applicant's ability to advance a full and thorough account of his claims.
d The applicant was, therefore, told in the arrival interview just to answer the questions but was later criticised by the IAA for following that direction.
e The applicant was not given the opportunity to advance his claims in the arrival interview.
Ground 3 That the Authority committed jurisdictional error in the manner in which it dealt with the submissions of the applicant's representative. By referring to matters already before the Secretary as "new information" or a "new claim" the Authority in effect failed to engage with the submissions made on behalf of the applicant.
PARTICULARS
a The applicant repeat[s] the matters referred to in paragraphs 14 and 15 above;
b By determining, incorrectly in the applicant's submission, that the country information referred to in the delegate's decision (paragraph 14 above) was new information, but did not satisfy the requirements of s.473DD(b) the Authority misdirected itself.
c It is noted that in any event, the Authority referred to both the documents in question-the 2017 DFAT country report and the Rapporteur report[39]
d The Authority referred to parts of the reports of its own choosing and did not deal with the parts (favourable to the applicant) referred to in the submissions from the representative
[39] CB 364.
The only evidence I have before me is the court book filed on 19 December 2018.
CONSIDERATION
The applicant’s submissions deal with Grounds 1 and 2 concurrently.
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang,[40] Brennan CJ, Toohey, McHugh and Gummow JJ approved the observations of Gibbs J in Buck v Bavone.[41] Gibbs J (as he then was) had stated:
… the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.
[40] (1996) 185 CLR 259 at 275-276.
[41] (1976) 135 CLR 110 at 118-119.
In Minister for Immigration and Border Protection v SZUXN,[42] Wigney J distilled the principles relevant to determining whether a decision might be vitiated because it was" illogical" or "irrational". His Honour there stated:
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 [148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions". And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 (at 22-23 [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
[42] (2016) 69 AAR 210 at 221-222.
The Authority is said to have impugned the applicant's credibility by finding the evidence given during and after his SHEV interview was uncertain and increasingly exaggerated. The applicant submits that this process of reasoning is unreasonable so that it amounts to a jurisdictional error. The context of the conclusion(s) is as follows:
(a)in the arrival interview the applicant stated in answer to two questions that he dug bunkers for the LTTE;[43]
(b)in the arrival interview the applicant stated that he did this for 10 years, 1995-2005;[44]
(c)again in the arrival interview, the applicant stated that he had been assaulted many times by the army, the last in 2009;
(d)the Authority recognised limitations of arrival interviews;[45]
(e)the Authority referred to the applicant appearing to have difficulties (in the arrival interview) answering questions and being directed by the interviewer to concentrate on providing responses to the questions posed;
(f)in his statement attached to his SHEV application[46] the applicant gave a detailed description of his work as part of the Thunai Padai division of the LTTE. In particular, the applicant referred to the efforts as being part time (15 days on and 15 days off) and various tasks, such as building bunkers, and night watch work; and
(g)the delegate’s description of the applicant’s statements at the SHEV interview is recorded in the decision.[47] It is submitted that the record certainly gives more details but it is extremely unreasonable to come to the conclusion that the statements are increasingly exaggerated (presumably meaning as compared with the arrival interview).
[43] CB 11 and 12.
[44] Ibid.
[45] [14] at CB 360.
[46] CB 62-63.
[47] CB 111
It is acknowledged that simply pointing out illogicality, irrationality or unreasonableness that is merely a difference of opinion is not sufficient to establish jurisdictional error. The applicant submits first that his broad statements during the arrival interview were consistently maintained throughout the passage to the Authority. It is true that more detail was given in due course. In this case though the additional details did not materially add to the claims stated plainly in the record of the arrival interview that the applicant had worked in one capacity or another for the LTTE over a period of 10 years. Secondly, the Authority is said to have ignored its own direction as to the limitations of the arrival interview. Thirdly, it is said to be unreasonable on the facts of this case to regard the giving of more detail about events as embellishment or exaggeration. There would be an infinite amount of detail available about events during war and extending over 10 years. To expect everything to be reported at the arrival interview is said to be unreasonable.
The foundation of Ground 3 is that neither of two reports referred to by the applicant, ie the 2017 DFAT Country Report nor the Rapporteur Torture Report were new material. The delegate had them and referred to them. The Authority referred to both as well.
The applicant contends that, when the Authority rejected the material and submissions from the applicant's representative as new material, it failed to engage with the submissions. In so doing it failed to engage with the case for the applicant. For example, the submissions included[48] reference to country information in the Rapporteur Report to the effect that numerous individuals suspected of having a link, even remote, with the LTTE have been abducted and then subjected to brutal torture, often including sexual violence and the rape of men and women.
[48] CB 349
Similarly,[49] the submissions refer to the DFAT Report stating that the Sri Lankan Police maintain a paramilitary force of 8,600 personnel. The submissions claimed that there was a real chance of harm to the applicant from these groups.
[49] [14] at CB 348
The applicant submits that the Authority decision, while referring to both reports, does not engage with the case put by the applicant that he would be at risk of harm because of a link (while not describing the applicant's links to the LTTE as remote, because they were extensive and prolonged) to the LTTE as mentioned in the Rapporteur Torture Report. Similarly, the Authority does not deal with the risk to the applicant from paramilitary groups.
In Minister for Immigration and Citizenship v SZIAI,[50] the majority of the High Court stated at [25]:
The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
[50] [2009] HCA 39
The Authority has the same duty as the Tribunal to review the decision in order to determine whether a “jurisdictional error” has been made. This duty to review involves making a finding on any “substantial, clearly articulated argument relying upon established facts”.[51] In this case, there was an articulated argument from the applicant’s representative and the established facts in the reports.
[51] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24] (Gummow and Callinan JJ)
The Authority must have “proper, genuine and realistic” consideration to the merits of the appellant's case.[52] It is submitted that the Authority’s reasons were affected by jurisdictional error because they failed to engage with the applicant's submissions and the facts referred to in each of the reports the subject of this ground.
[52] Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457
I prefer and adopt the Minister’s submissions in relation to the grounds as advanced.
Grounds 1 and 2
Although posited as two separate grounds in the application filed on 22 October 2018, the applicant essentially advanced one contention: that the applicant was not afforded the opportunity to advance his claims at the arrival interview in full.[53]
[53] see application, filed 22 October 2018, at [1(f)], [2(c)], [2(e)].
The applicant now appears to disavow this contention and, instead, contends that it was unreasonable for the Authority to find at [18] of its decision record that it found “the applicant’s evidence provided during and after the SHEV interview about his greater level of involvement with the LTTE uncertain and increasingly exaggerated”.[54] Despite the applicant submitting at [19] of his written submissions that Grounds 1 and 2 are merged, apart from a reference in that paragraph to “unfairness”, the applicant does not make any submissions in respect of an alleged failure to afford procedural fairness.[55]
[54] see applicant’s submissions at [21], [23].
[55] Ground 2 is set out differently in the applicant’s submissions compared to the application. In the application: “The Authority’s decision was infected by the delegate’s failure to accord the applicant procedural fairness” (emphasis added). In [17] of the applicant’s submissions: “The Authority’s decision was infected by the failure to accord the applicant procedural fairness.”
The applicant’s contention that the Authority’s finding at [18] of its decision record was unreasonable, in the legal sense, seeks to cavil with a finding that was open to the Authority to make on the evidence before it and for which logical, rational reasons were provided.[56]
[56] Cf Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [96], [124], [132] per Crennan and Bell JJ; see also generally DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30] per curiam (and the authorities cited there).
As to the arrival interview, at [14] of its decision record, the Authority noted that the applicant said that he lived in a LTTE controlled area for 10 years and dug bunkers, but was not involved with them.[57]
[57] CB 11.
In relation to the SHEV application, at [14] of its decision record,[58] the Authority noted that the applicant claimed in his SHEV application that he worked for the LTTE in various capacities, not only digging bunkers, but also caring for the wounded, watching out for the army, undertaking training and helping with the oil business.
[58] CB 360.
At [15] of its decision record, the Authority noted that at the SHEV interview the applicant could not provide details about his training or involvement with the border force or monitoring the army’s movements. The Authority also noted that the applicant had raised for the first time that, in addition to digging bunkers, he hid weapons and valuables and those who also assisted with hiding items were being questioned by the authorities.
At [16] of its decision record, the Authority noted that after the SHEV interview the applicant’s written submission provided more details about the bunkers, including hiding valuables and that his family was questioned by the authorities in 2015 and 2016.
At [18] of its decision record, the Authority found that “significant aspects were belatedly raised” and did not consider it plausible that the authorities would commence looking for the applicant seven years after he dug bunkers for the LTTE.
The Authority noted at [14] of its decision record the limitations of arrival interviews.[59] However, the Authority found that a significant portion of the arrival interview was dedicated to the applicant’s departure from Sri Lanka. Given the applicant’s involvement with the LTTE was central to his claims, the applicant’s denial that he was part of the LTTE was not a minor or trivial inconsistency.[60] However, as set out above, this was not the only reason for the Authority’s finding at [18].[61] The Authority relied on the applicant’s evolving and more detailed claims as the applicant progressed through each stage of the visa assessment process.
[59] See MZZJO v Minister for Immigration & Border Protection (2014) 239 FCR 436 at [56] per curiam.
[60] See BIR17 v Minister for Immigration and Border Protection [2019] FCA 850 at [40]-[44] per Charlesworth J.
[61] Ibid at [45] (and the authority cited there).
While reasonable minds may differ about whether the evolving nature of the applicant’s claims in respect of his greater involvement advanced “during and after the SHEV interview” was “uncertain and increasingly exaggerated”, this is not sufficient to found jurisdictional error.[62]
[62] See SZMDS at [131] per Crennan and Bell JJ; see also SZOOR v Minister for Immigration and Citizenship (2012) 202 FCR 1 at [84] per McKerracher J with whom Reeves J agreed.
Ground 3
The applicant contends that the Authority failed to engage with the applicant’s submissions provided to it on 29 January 2018 as it incorrectly considered country information provided with those submissions was “new information” for the purpose of the Migration Act.
The applicant submits that the Authority identified at [8] of its decision record two pieces of country information that it considered was new information for the purpose of the Migration Act but was actually before the delegate: “the DFAT country report on Sri Lanka issued 24 January 2017 and Report on the Special Rapporteur on torture 22 December 2016”.[63] The applicant further submits that, despite this finding, the Authority nevertheless considered these pieces of country information, but not parts that were favourable to the applicant.[64]
[63] see applicant’s submissions at [13], [25].
[64] see applicant’s submissions at [18(d)], [25].
I accept the Minister’s submission that the ground and submissions misconstrue the Authority’s findings.
On 29 January 2018, the applicant’s representative sent an email to the Authority which stated: “Please find attached submissions and additional documents in response to the delegate’s decision”. The email included five attachments:[65]
(a)“Committee against Torture, concluding observations on the fifth periodic report of Sri Lanka”, 7 November – 7 December 2016;[66]
(b)United Nations General Assembly, “Report on the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka”, 22 December 2016;[67]
(c)Home Office, “Country Policy and Information Note Sri Lanka: Tamil separatism”, Version 5.0, June 2017;[68]
(d)The Centre on Conflict, Development and Peacebuilding CCDP Working Paper, “An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE)”, October 2014;[69] and
(e)the applicant’s written submissions, dated 28 January 2018.[70]
[65] CB 143.
[66] CB 144–157.
[67] CB 158-181.
[68] CB 182–249.
[69] CB 250-345.
[70] CB 346–350.
The Authority stated at [8] of its decision record:
Relevantly attached to the submission were copies of a June 2017 report by the UK Home Office on Tamil Separatism and a 2016 Committee Against Torture Report. The applicant has not explained why these reports could not have been provided to the delegate before her decision was made and noting the applicant’s circumstances I am not satisfied they could not have. They are also not ‘personal’ information in the relevant sense. The applicant has not satisfied me as to the matters in s.473DD(b).
On a fair reading of [8], the reference to “June 2017 report by the UK Home Office” must be a reference to the country information set out at [52(c)] above and the reference to “2016 Committee Against Torture Report” must be a reference to the country information set out at [52(a)]. In circumstances where neither pieces of country information were before the delegate, the Authority was not permitted to consider this “new information” unless it was satisfied that there were “exceptional circumstances” for the purpose of s 473DD(a) of the Migration Act and the “new information” was of a kind which met the tests provided for in
s 473DD(b) of the Migration Act.[71]
[71] See Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217 at [22], [29], [31]-[34] per Gageler, Keane and Nettle JJ, [88] per Gordon J; see also FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [52] per Farrell J (and the authorities cited there); CMY17 v Minister for Immigration & Border Protection [2018] FCA 1333 at [26] per Thawley J (and the authorities cited there).
What amounts to “exceptional circumstances” is inherently incapable of exhaustive statement and depends on the particular circumstances of each case.[72] However, the ordinary meaning of the words may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[73] Leaving aside the question whether there must be an express finding under ss 473DD(b)(i) or (ii) of the Migration Act before considering s 473DD(a) (or expressly refer to these subsections), the matters under subsection (b) may be relevant in determining whether “exceptional circumstances” exist.[74]
[72] See Plaintiff M174/2016 at [30] per Gageler, Keane and Nettle JJ; see also AQU17 v Minister for Immigration & Border Protection (2018) 162 ALD 442 at [13]-[14] per curiam.
[73] See AQU17 at [13] per curiam.
[74] See AQU17 at [14]-[16] per curiam; see also Minister for Immigration and Border Protection v CQW17 (2018) 162 ALD 427 at [48]-[53] per curiam; BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [9] per White J.
Given that the applicant had been represented throughout the visa application process and the two pieces of country information pre-dated the delegate’s decision, in the absence of any explanation, it was open to the Authority to find that the matters in s 473DD(b)(i) were not satisfied.[75] Further, as the country information was not about an individual, but rather, about country conditions in Sri Lanka, it was open to the Authority to find that the matters in s 473DD(b)(ii) were not satisfied.[76] Although the Authority’s reasons were primarily directed towards the matters in s 473DD(b), this was sufficient to trigger the prohibition in s 473DD.[77]
[75] Although the Authority does not expressly refer to “s 473DD(b)(i)”, the language used by the Authority in the second sentence of [8] reflects the wording of the section.
[76] See BOS17 v Minister for Immigration & Border Protection [2020] FCA 75 at [59] per O’Bryan J; Although the Authority does not expressly refer to “s 473DD(b)(ii)”, the language used by the Authority in the second sentence of [8] reflecting the wording of the section.
[77] ESQ17 v Minister for Immigration and Border Protection [2019] FCA 826 at [62] per Stewart J (and the authorities cited there); see also AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [33] per Mortimer J.
I proceed on the basis that the applicant is referring in his written submissions to:
(a)“the DFAT country report on Sri Lanka issued 24 January 2017” is a reference to “Sri Lanka – Country Information Report, Department of Foreign Affairs and Trade (DFAT), 24 January 2017 CISEDB50AD105”; and
(b)“Report on the Special Rapporteur on torture 22 December 2016” is a reference to “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka A/HRC/34/54/Add.2, Office of the United Nations High Commissioner for Human Rights, 22 December 2016 CIS38A80123313”, as titled in the footnotes of the delegate’s decision and identified at [52](b) above.[78]
[78] CB 158.
The applicant is correct that both pieces of country information are referred to in the delegate’s reasons.[79] As these pieces of country information formed part of the material provided by the Secretary under s 473CB of the Migration Act, the applicant is correct that these pieces of country information were not “new information” for the purpose of the Migration Act.
[79] DFAT Country Information Report: footnotes 7, 13, 16, 24, 28, 43, 50, 55, 57, 58, 64, 65, 72 (CB 110-122); United Nations Country Information: footnotes 47, 48, 49 (CB 118).
As correctly identified by the applicant, the Authority referred to these pieces of country information in its decision record,[80] however, contrary to the applicant’s submissions, it was a matter for the Authority to determine the weight it attributed to the information before it.
[80] CB 364-365, footnotes 7, 8, 9, 11, 13.
To the extent that the applicant complains that the Authority failed to engage with his submissions to the Authority, I reject it.[81]
[81] Applicant’s submissions at [26] (two paragraphs), [27].
At page 4 of the applicant’s submissions to the Authority, the applicant refers to the “Committee against Torture”, 7 November – 7 December 2016.[82] This is the document referred to at [52(a)] above, not that referred to at [52(b)] a different piece of country information to the United Nations General Assembly, “Report on the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Sri Lanka”, 22 December 2016.[83] As noted above, it was open to the Authority to find that it was not satisfied of the matters in s 473DD of the Act to consider this “new information”.
[82] CB 144–157; see above at [41(c)]. In the applicant’s submissions to the Authority the applicant refers to this piece of country information as “New Country Information” (CB 349).
[83] CB 158-181Cf applicant’s submissions at [26], [27] and the reference to “Rapporteur report”.
At page 3, [14(g)] of the applicant’s submissions to the Authority,[84] the applicant claims that he may be at risk due to members of the Tamil paramilitary groups who remain on the island and who would recognise the applicant. This claim had not been previously raised, however, the applicant relied on the country information set out above at [57(a)].[85]
[84] CB 348
[85] Although not referred to in the applicant’s submissions to the Authority, it is assumed that the applicant is referring to [5.5] of the DFAT 2017 Report.
The Authority noted at [6] of its decision record that the applicant had been represented before the delegate and been afforded adequate opportunity to advance his claims. In the absence of an explanation as to why the new claims were only just raised, and details about the claims, it was open to the Authority to find that exceptional circumstances did not exist, such that there were no circumstances that were out of ordinary course, unusual, special or uncommon to justify considering the “new information”.
To the extent that the applicant contends that the Authority failed to give “proper, genuine and realistic consideration”, this rises no higher than a disagreement with the findings made by the Authority that were open to it to make on the material and evidence before it and for the reasons it gave.[86]
[86] See Minister for Immigration and Border Protection v Maioha [2018] FCAFC 26 at [42]-[45] per Rares and Robertson JJ (and the authorities cited there).
CONCLUSION
The applicant has failed to demonstrate that the decision of the Authority is affected by any jurisdictional error. It is therefore a privative clause decision and the application must be dismissed.
I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 24 February 2021
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