ALF21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Federal Circuit Court 8 In the Court below, by way of further amended application, the appellant filed five grounds of review although ultimately only grounds 1(a) and 4 were pressed. 9 In relation to ground 1(a) (ground 1 in this Court), the Court observed that the Authority's reasons are not to be read with a keen eye for error and must be read as a whole. The Court concluded that while the Authority did expressly refer to s 473DD(a) of the Migration Act 1958 (Cth) (Migration Act) it was apparent from its reasons that the Authority addressed the substance of s 473DD(b)(i) which concerned whether the information could have been provided before the Minister made the decision. The Court concluded that the Authority's analysis also extended to the content of the information and, on a fair reading, the Authority's reasons support the Authority taking into account s 473DD(b)(ii), observing that it was not necessary for the Authority to expressly refer to the content of the subsection. The Court found that the issue of credibility was apparent on the face of the Authority's reasons, and referred in particular to: the reference to the post-interview submissions not raising either expressly or by inference any claim that the appellant had such involvement; where the Authority does not accept that the appellant only realised the information regarding his activities in Malaysia was relevant after the interview and decision; the consideration of the brothers where the Authority makes express reference to no such claim being made in the post-interview submissions; and that the delegate had explained the importance of providing full and accurate claims and the consequences of not doing so. The Authority also noted the appellant had been provided opportunities to explain why he would still be of interest to the authorities, which the primary judge found showed the Authority was clearly dealing with the credibility of the personal information and supported the conclusion that the Authority expressly took into account s 473DD(b)(ii) in determining whether exceptional circumstances existed. The primary judge found it was unnecessary for the Authority to expressly refer to the whole of the section and that on a fair reading, the Authority's reasons took into account the whole of the provisions of s 473DD. The primary judge did not accept that there was any error of the kind identified in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 (BVZ16). 10 In relation to what was ground four (ground two in this Court), the primary judge observed that the Authority did not have to refer to every piece of evidence before it to determine the application. The Court found that it is apparent that the Authority took into account the appellant's claims concerning his involvement in the thesis and the involvement and engagement that required him to have with the LTTE. The Authority provided logical and rational reasons dispositive of the appellant's claims in relation to LTTE involvement in particular, being the appellant's release and ability to lawfully depart Sri Lanka. The primary judge concluded that there is no basis to conclude that the Authority failed to have a real and meaningful engagement with the whole of the appellant's claims in respect of his LTTE involvement. The primary judge stated that the absence of expressed reference in the Authority's reasons to the acknowledgement of LTTE persons in the thesis was not a matter in respect of which the Authority was required to make separate findings and that the Authority addressed the integer of the appellant's claim in relation to his actual or imputed pro-LTTE involvement. Consideration Ground 1: the primary judge erred in not finding the Authority, in refusing to consider "new information", had misconstrued and misapplied s 473DD of the Migration Act 11 The appellant's argument is that the Authority, in satisfying itself of whether there were "exceptional circumstances" under s 473DD(a), only considered the criteria in s 473DD(b)(i), being the appellant's reasons for not providing the new information earlier, to the exclusion of considering the content of the information and whether it was "credible personal information" under s 473DD(b)(ii), and therefore capable of informing "exceptional circumstances". The appellant argued that such an approach involves misconstruing or misapplying s 473DD of the Migration Act. 12 The appellant placed particular reliance on the decision of BVZ16, and the Full Court decisions of Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 162 ALD 427 (CQW17) and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 (BBS16) which are said to endorse the reasoning in BVZ16. 13 The appellant addressed each of the items of new information by reference to the Authority's reasons, and invited particular attention to the absence of specific reference to the contents of the new information in the reasons of the Authority, (apart from what is in [5]-[14], extracted at [7] above), which, it was argued (as discussed in further detail below), did not amount to a proper consideration. In that regard the appellant referred to BVZ16 where the Authority "summaris[ed] the content of the new material": BVZ16 at [23] and CQW17 in which it was found there was a "brief restatement of that [new] information": CQW17 at [38]. The appellant submitted by contrast, the reasons in this case amounted to a mere passing reference to the new information. 14 The appellant also relied on the fact that s 473DD(b)(ii) was not expressly referred to in the reasons, relying on BVZ16 at [34] - [35]. Further, the appellant submitted that the structure of the reasons in this case was similar to that in BVZ16, in that it included an explanation of why it rejected the appellant's reasons for late disclosure of the new information, and then immediately proceeded to express a conclusion that there were no exceptional circumstances. The appellant also submitted that this case bears similarities to CQW17. It was submitted that in CQW17 the Full Court made the point that, although the Authority did describe the new information, that was not to be assimilated to an evaluation of it, and that it was only a brief restatement or summary of it. The appellant explained how that proposition applied to the reasons in this case. 15 The appellant argued that the only cognisable basis for the Authority's finding that there was an absence of "exceptional circumstances" was that it considered that its non-acceptance of the explanation for not providing the new information earlier was a sufficient answer to the requirements of s 473DD. 16 The respondent submitted that the decisions in BVZ16, BBS16 and CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148 (CHF16) stand for the proposition that the matters under subsections 473DD(b)(i) and (ii) are potentially relevant in considering whether exceptional circumstances exist under s 473DD(a): CQW17 at [69]. However, the assessment of exceptional circumstances does not require the Authority, in all cases, to consider the matters relevant to the criterion in s 473DD(b): AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 (AQU17) at [14] and DLB17 v Minster for Home Affairs [2018] FCAFC 230 (DLB17) at [22]. The respondent placed particular reliance on AQU17 at [14], [16] and [17] and submitted that the present case is very similar. 17 The respondent submitted that while the Authority did not make an express finding under s 473DD(b)(ii), on a fair reading of the decision without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (Wu Shan Liang) at [30], it is apparent that it had concerns as to whether the new information was credible. On the respondent's submission, those concerns can be inferred from the Authority's findings that the appellant was warned at the visa interview that he may not be able to raise new information with the Authority, and was invited on a number of occasions to provide any further information, in circumstances where the appellant was represented and his representative made post-hearing submissions to the delegate (which did not refer to the new information sought to be advanced in the statutory declaration). It was submitted that those considerations were not solely directed to the matters referred to in s 473DD(b)(i) but also went to the credibility of the information. The respondent submitted that the Authority also referred to the fact that the statutory declaration contained assertions that the appellant's previous advisor did not provide certain advice, and this was a matter that it specifically had regard to in considering whether exceptional circumstances existed. 18 The respondent submitted that the Authority was not obliged to evaluate the credibility of the new information or the significance of the new information to the appellant's case beyond the consideration it gave: AQU17 at [17]. 19 It is first appropriate to consider the authorities relied upon. 20 As noted above, the appellant relies on BVZ16 at [9] where White J said: The requirements of subparas (a) and (b) are cumulative but may nevertheless overlap to some extent. The Authority's satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision (subpara (b)(i)) may contribute to its satisfaction that there are exceptional circumstances to justify considering the new information. So also may the Authority's satisfaction that the new information is credible personal information which had not previously been known (subpara (b)(ii)). Accordingly, one would expect the IAA to consider the subpara (b) matters when considering in a given case whether the circumstances are exceptional. Obviously enough, however, the matters which may contribute to a finding that the circumstances in a particular case are exceptional may extend beyond those specified in subparas (b)(i) and (ii) and it seems improbable that the Authority could be satisfied, by reference to one matter only, that an applicant's circumstances are not exceptional. 21 This view was affirmed in BBS16 at [102]-[103], and cited with apparent approval in CHF16 at [17]-[18], DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 at [31]-[33] and CQW17 at [48]. 22 While the appellant's argument as originally framed tended towards the Authority being required to consider s 473DD(b)(i) and (ii) as relevant and mandatory considerations, ultimately the argument was that in the circumstances of this case the Authority should have, but did not, give consideration to the matters in s 473DD(b)(ii) in deciding it was not satisfied exceptional circumstances had been made out. The broader contention, in so far as it was suggested, could not be maintained: CQW17 at [50], and it was accepted that the comments by White J in BVZ16 do not apply to every case, but rather it is a case specific inquiry. 23 As noted above, the appellant placed reliance on CQW17 while the respondent relied on AQU17. These were decisions of the Full Court comprised of the same bench delivered on the same day. 24 In AQU17 at [7] the Court referred to BVZ16 as follows: In BVZ16, White J, after reference to R v Kelly [1999] UKHL 4; [2000] QB 198 at [51] and other authorities, held that "exceptional circumstances" will be those that are out of the ordinary course and which justify the new information being considered even though the information was not provided to the Minister at the time of the s 65 decision. White J stated that, generally, consideration of whether "exceptional circumstances" exist will require consideration of all relevant circumstances because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional. White J found that the Authority, in that case, had adopted an inappropriately narrow understanding of the scope of the term "exceptional circumstances" in applying s 473DD because the Authority had confined its consideration as to whether there were exceptional circumstances to the evaluation of the appellant's explanation for not having disclosed the information earlier. His Honour reasoned that whilst the requirements in s 473DD(a) and s 473DD(b) are cumulative, they may nevertheless overlap and because ss 473DD(b)(i) and 473DD(b)(ii) involve different considerations, both considerations are potentially relevant in considering whether the circumstances are "exceptional" and meet the requirements of s 473DD(a). 25 The respondent relied particularly on paragraphs [14], [16] and [17] of AQU17, relating them to the reasons of the Authority in that case which are extracted at [7] above (emphasis added): 14. As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist as s 473DD(b) does not codify what constitutes "exceptional circumstances". Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case. … 16. Contrary to the appellant's submission, the Authority did not conclude that the s 473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister's delegate. Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant's claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible. 17. Although the appellant argued that the Authority took too narrow a view as to what constitutes exceptional circumstances, the appellant was unable to point to any fact or matter materially bearing upon the Authority's consideration as to whether it was satisfied of the requirement under s 473DD(a) that was not taken into account and, had it been taken into account, would have materially borne upon its consideration. In our opinion, it has not been shown that the Authority took an unduly restricted approach to the question of whether exceptional circumstances existed. The fact that a different account was put to the Authority would not, of itself, constitute "exceptional circumstances" to justify consideration of the new information. Nor, contrary to the appellant's submissions, was the Authority obliged to evaluate the credibility of the new information or the significance of the new information to the appellant's case beyond the consideration given, absent some feature or matter to cause, or which should have caused, the Authority to consider that there was something about the appellant's case which made it unusual or out of the ordinary. Nor does it appear from the material that anything was put to the Authority about the appellant's personal circumstances or reason for the later inconsistent account, which was potentially relevant to the issue of "exceptional circumstances". In the present case, as the Authority reasoned, the new information was information which the appellant could have provided the delegate in response to direct questioning on the topic and was information which was inconsistent with the version of events he gave the delegate. In our opinion, it was open to the Authority to decide, having regard to those matters, that it was not satisfied that exceptional circumstances existed. 26 Against that background, it is necessary to consider the Authority's reasons in this case. The reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Wu Shan Liang at [30]. 27 There are three propositions underpinning the appellant's submission: first, the Authority only referred to the new information in a cursory way; second, the Authority did not refer to s 473DD(b)(ii) in its reasons and in any event, did not consider that criteria; and third, the Authority's reasons focussed solely on the explanations for the delay. 28 Properly considered, those submissions are not made out. 29 First, while it is correct that in relation to some of the individual paragraphs which address the new information, the topic of the information is referred to, without detail of the content, it does not necessarily follow, as the appellant contends, that the content of the information was not considered. There is no proper basis to draw that inference. The Authority had, at paragraph [7], summarised the new claims. The accuracy of that summary is not challenged. To arrive at that summary the Authority must have considered the contents of the statutory declaration to determine what the new claims were. The Authority then referred to the new information by topic (as it had previously summarised) in the individual paragraphs, although paragraphs [10] and [12]-[13] contain more detail as to the contents. The reference to the topic contained in the subtitle at the outset of each paragraph indicates what topic of new information that paragraph addresses. The content of the new information does not necessarily need to be recited to achieve that purpose. 30 Second, as noted above, the appellant's submission ultimately was that in the circumstances of this case the Authority did not, but should have, given consideration to s 473DD(b)(ii) in deciding whether exceptional circumstances had been established. As the respondent submitted, and as the appellant accepted, the Authority is not required to consider s 473DD(b)(ii) in all cases in deciding whether exceptional circumstances exist: AQU17 at [14]. In any event, as the appellant accepted, it does not necessarily follow from a failure to expressly refer to s 473DD(b)(ii) that the Authority did not consider the matters relevant to that provision. As the respondent submitted, the matters considered by the Authority in the paragraphs extracted above, include matters which go to the credibility of the information provided. For example, a conclusion that the appellant had a number of prior opportunities to provide the information but did not, reflected on the appellant's credibility. The Authority elaborated on the opportunities, the context in which they arose in light of the new information, and the assistance the appellant had in providing submissions. This included that the appellant was represented in his interview before the delegate and was invited to provide post-interview submissions. Despite submissions being provided, claims now relied on were not explicitly or implicitly made. The Authority's rejection of the appellant's submission that he only realised the significance of the information after the post-interview submission, given the nature of the claim, involves a credit finding. Moreover, the reasons reflect that the Authority assessed the significance of the appellant's failure to provide information at an earlier point in time by reference to the nature of the new information provided. While the Authority did not expressly refer to s 473DD(b)(ii), it can be inferred from the reasons that it considered whether the information was credible. An authority can be evaluating the credibility of the information without expressly stating so. There was nothing about this particular case, in light of the Authority's findings, that necessarily required the Authority to undertake any further consideration than what it did: AQU17 at [17]. 31 Third, contrary to the appellant's submission the Authority's reasons did not solely focus on explanations for the delay in providing the new information, but rather, that was a relevant factor, the significance of which was assessed by the Authority in light of the nature of the new information. As discussed above, that necessarily involved an assessment of the nature and credibility of the claims and the appellant's credit. 32 Each case is different from other cases and must be considered on its merits. It follows that the matters the Authority takes into consideration in each case will also vary: AQU17 at [14]. What might be sufficient in one case might not be in another. That the determination is case specific is evident from the decisions of CQW17 and AQU17, each of which applied the same principles to the individual case resulting in different conclusions. 33 In the circumstances of this case, no error has been established in the reasons of the primary judge in dismissing this ground of appeal. Ground 2: the primary judge erred in not finding that the Authority had failed to give proper, genuine or realistic consideration of an important integer of the appellant's claim 34 The appellant submitted that the Authority was "not satisfied that [the primary appellant] was then, or would now be, imputed with membership of the LTTE or of being involved in separatist activities" but that in arriving at that conclusion it overlooked important evidence given by the appellant as to why the Sri Lankan authorities would have been interested in him. 35 The appellant drew particular attention to paragraph [29] of the Authority's reasons which is in the following terms: I accept the claim that in 2007, four Tamils were arrested near the primary applicant's home and were later shot and burned. This is consistent with country information about incidences of violence against Tamils in the north at this time. The primary applicant claims that the same night, the SLA came to his home searching for him but he was not at home. There is no evidence before me as to why they might have been looking for him but I consider it plausible that the SLA may have been visiting or searching all homes in the area where the four Tamils were arrested. I am not satisfied that the SLA was searching specifically for the primary applicant. 36 Attention was also drawn to paragraph [31] where the Authority stated: The primary applicant has not claimed, and there is no evidence or information before me, that he has been involved in any LTTE support, commemoration, propaganda, financing or any activities linked to the resurgence or re-establishment of the LTTE. 37 The information provided by the appellant, which he submitted was not properly considered is an answer given by him in his interview which was as follows: 2004 December 2005 January. When I was doing my project for my these, actually I stayed with them and collected a lot of data from them. I went and talked with the political wing, as well as their political centre; everywhere I went and collected data. In my thesis, at the end while I was proposing thanks and acknowledging particular units and I have given the names of those persons as well. I think even now that copy of the thesis should be at the university. When all these things cumulatively, I cannot deny, I cannot argue against these facts there. 38 It was submitted that the appellant was saying there is a published document with his name on it where he thanked named persons in the LTTE, and anybody could have access to that document. It was submitted that would have informed the deficiency in the evidence identified by the Authority, if the Authority had considered that particular answer. It was submitted the answer was not referred to anywhere in the Authority's reasons. It was submitted that given the nature of the information, it is to be inferred it was overlooked. The appellant submitted the evidence was central, and it was jurisdictional error of the kind referred to by Robertson J in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT). 39 The respondent submitted that the Authority summarised the appellant's claims as including a claim that he undertook university studies between 2001 and 2006 and that, for the purposes of his thesis, he had to maintain a working relationship with the LTTE. It was submitted that the appellant did not raise any specific claim to fear harm as a result of the acknowledgements in his thesis. It was submitted that given the Authority accepted the appellant's claim that he was arrested in 2006 suspected of having higher-level involvement with the LTTE arising out of his interactions with the LTTE connected with his thesis, it was not necessary for it to specifically refer to the appellant's evidence that he had acknowledged and thanked the LTTE in his thesis: see Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (Applicant WAEE) at [46]. It was unnecessary for the Authority to make a finding in relation to the acknowledgments in the thesis, because it was subsumed in findings of greater generality: Applicant WAEE at [47]. 40 The respondent submitted that having accepted the appellant's evidence as to the extent of his interactions with the LTTE, and that he was released from detention in 2006 after about two weeks and was able to leave Sri Lanka lawfully and without hindrance in January 2007, the Authority concluded that the appellant had no adverse security profile when he departed Sri Lanka. That finding was open on the material before it, and is not illogical or unsound. Having regard to those findings, it was also open to the Authority to conclude that there was no evidence before it as to why the authorities may have been looking for the appellant as he claims in 2007, and to reject that claim. 41 When the impugned passages are read in their proper context, the appellant's complaint is not established. 42 In Applicant WAEE the Full Court relevantly stated at [46] and [47]: It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason… The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 43 As the respondent submitted, the authority referred to the appellant's claim in paragraph [16] which included a reference to his attending university, and that the preparation of his thesis on the effects of the tsunami involved him seeking permission from and liaising with the LTTE administration and that he had to maintain a working relationship with the administration. There is no complaint that the claim was inaccurately understood. However, the question to be addressed must be the importance of the material to the exercise of the Authority's function and thus the seriousness of any error: SZRKT at [111]. 44 The two statements in the Authority's reasons about the absence of evidence (extracted at [35] and [36] above), relied on by the appellant, are findings that relate to events in 2007 and thereafter. As the respondent correctly submitted, the Authority accepted that in 2006 the appellant was detained, questioned and accused of being a high level member of the LTTE and that he was released after two weeks subject to reporting conditions. The Authority did not accept the appellant would have been released if the authorities continued to suspect him of that involvement. It concluded that the reporting conditions suggested a low level of interest in the appellant. The Authority also concluded that the appellant obtained a passport, and departed Sri Lanka lawfully. The Authority concluded from this that the appellant did not have an adverse profile at that time. The statements about the absence of evidence must be viewed in that context. 45 The events in relation to the thesis were linked to what occurred in 2006. Those events, in effect had been dealt with, and the Authority had found that the appellant was released and lawfully left the country. The events in relation to the thesis were dealt with by the Authority. The Authority engaged in an active intellectual process in relation to the claim made. I note that the Authority expressly referred to the appellant's interview with the delegate and the questioning therein, in such a way, that it is apparent the Authority considered the interview. The Authority is not required to refer to each piece of evidence. It was unnecessary for the Authority, in the circumstances of this case, to specifically refer to, or make a finding about, an acknowledgement in the thesis. 46 Contrary to the appellant's contention, the conclusion about the absence of evidence is not perverse, when the reasons are fairly read. The Authority's statements as to the absence of evidence which relate to events in 2007 and thereafter, in the context in which they were made, were open to it on the material before it. 47 The appellant has not established any error with the decision of the primary judge in relation to this ground. 48 This ground has not been established. Conclusion 49 As the grounds have not been established the appeal is dismissed. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham.