BRC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RELEVANT LEGISLATION 6 Section 473DD of the Act is relevant to several aspects of the present appeal: Division 3 - Conduct of review Subdivision C - Additional information 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

THE DECISION OF THE IAA 7 The IAA commenced its reasons by stating that it had had regard to the material referred by the Secretary pursuant to s 473CB of the Act. It then noted the submissions filed on behalf of the appellant and his son. It refused to accept two classes of additional documents that were sought to be introduced to it. The first was a number of documents in relation to the appellant's mental health, that the IAA considered to be new information; the second was a new statement (and translation thereof) given by the appellant. I return to this subject further below. 8 The IAA then summarised the claims advanced by the appellant as follows: (a) He was born in Jaffna on [date], Sri Lanka and is of Tamil ethnicity and Christian faith and is a citizen of Sri Lanka. (b) During the ceasefire, between 2002 and 2006, he ran a restaurant in Jaffna and also drove a rickshaw during the day. (c) His restaurant was located near an army base. The LTTE [Liberation Tigers of Tamil Eelam] used to come near his restaurant and throw grenades at soldiers coming out of the nearby army base. (d) He was forced by the LTTE to transport people in his rickshaw which he took turns doing with other rickshaw drivers. A brother of one of the drivers was killed by the LTTE and the driver then joined the EPDP [Eelam People's Democratic Party] and informed on the other drivers who worked for the LTTE. Two of his driver friends were subsequently shot dead by the authorities. The driver who worked for the EPDP was later abducted by the LTTE. (e) In July 2006, he took his brother's rickshaw to the Vanni where he was approached by a female member of the LTTE who asked him to take a letter to her sister in Jaffna to which he agreed. When he was waiting outside a hospital in Jaffna to give her sister the letter, he was approached by an armed man who told him to empty his pockets, but he managed to escape. The man shot at him but missed. He is afraid the man would link him to the LTTE because of the letter. (f) A week later he was riding his bike when two men approached him on a motorcycle. They told him that if he needed help he should contact them, then a third man appeared and pointed at him, saying he was the one, and then one of the men pulled out his gun and shot at him but missed. (g) On another occasion the EPDP came to his home with guns and started looking for him but he escaped and ran away and hid at a friend's house. After this he did not return home and left for Colombo in July 2006. (h) After arriving in Colombo, he later found out his father went missing [in August 2006]. He is afraid that the EPDP took his father as a way to get to him and claimed they also had other issues with his father. (i) He left Sri Lanka in September 2006 and fled to Malaysia via air on a tourist visa where he was granted refugee status by the United Nations High Commissioner for Refugees (UNHCR) in 2007. His wife and children later joined him in Malaysia due to fear and because one [of] his children had been followed. (j) He was arrested on several occasions by the Malaysian police because he did not have Malaysian residency and each time he had to pay them a bribe in order to be released. He could not continue residing in Malaysia as he had no legal rights and therefore came to Australia to seek asylum. (k) The birth of the second applicant was only registered with the United Nations High Commissioner for Refugees in Malaysia and he is stateless. (l) After he left Sri Lanka, the authorities went to his mother and asked for him. The last time this happened was in early 2013. (m) He is separated from his wife and his two other children remain with her in Sri Lanka. (n) He is afraid the Sri Lankan authorities, including the Sri Lankan Army (SLA), may harm him because of his suspected LTTE links. Despite the end of the war Tamil men suspected of LTTE involvement are still being abducted, tortured and killed. (o) Failed returned asylum seekers are being persecuted in Sri Lanka. 9 After considering the evidence relevant to these claims, the IAA made the following relevant adverse findings: (1) that it did not accept that the murder of the rickshaw drivers identified in (d) was because the driver who joined the EPDP had informed on the other drivers; (2) that it did not accept that the incidents in (e), (f) and (g) were related or that they were evidence of a real threat faced by the appellant due to his links with the LTTE; (3) that it was not satisfied that the appellant's father was abducted by the EPDP as claimed in (h), or that his disappearance was connected with the appellant's involvement with the LTTE; (4) that it was unlikely that any issues that the appellant's father had with the EPDP in 2006 would create a real risk of harm for the appellant; (5) that it was not satisfied that the appellant departed Sri Lanka illegally, or that he bribed an immigration officer in order to depart the country through the Sri Lankan airport using his own passport; (6) that although failed asylum seekers such as the appellant would be subjected to questioning upon return to Sri Lanka, this questioning would not amount to serious harm; and (7) that it was not satisfied that there is a real chance that the appellant would face harm due to his ethnicity, religion or his language, because the situation in Sri Lanka for Tamil males from the north has improved in recent years, and because the appellant claims to speak Sinhala, the language of the Sinhalese majority. 10 The appellant's son did not advance any protection claims of his own. He was instead included in his father's application as a member of his father's family group. It was claimed that the son was stateless, as his parents were illegally residing in Malaysia at the time of his birth, and for that reason the son had no Sri Lankan identity documents and his birth had been registered only with the UNHCR. The IAA accepted that the son had no Sri Lankan identity documents, but did not make a finding as to the son's purported statelessness. In any event, the IAA was not satisfied that the son would face a real chance of harm from the Sri Lankan authorities as a result of his statelessness and/or lack of Sri Lankan identity documents. 11 The IAA concluded that the appellant and his son did not meet the requirements of the definition of a refugee and did not meet the criteria in s 36(2)(a), or the criteria to qualify as entitled to complementary protection pursuant to s 36(2)(aa) of the Act.

THE DECISION OF THE FCCA 12 The FCCA noted that whilst before the IAA there were two applicants, being the father and his son, in the FCCA proceedings only the father was an applicant. At the trial, the solicitor for the father sought leave to join the son as a second applicant. That application was refused on the bases that: the proceedings had been on foot for over two years and the application was made only at the hearing; the son did not make any protection claims of his own and only applied as a member of his father's family group; and that although the son claimed to be stateless, the IAA accepted that were he to be returned to Sri Lanka as a stateless person, he would not be at risk of harm for that reason. The FCCA considered that these circumstances were distinguished from the decision of the Full Court in FER17 v Minister for Immigration [2019] FCAFC 106. The present appeal does not raise any issue concerning the refusal by the FCCA to allow the son to be joined. Even so, I have considered the reasoning of the primary judge in this respect, and conclude that it does not demonstrate error. 13 After summarising the claims advanced on behalf of the appellant, the FCCA addressed the five grounds of review advanced before it. 14 In the first ground, the appellant contended that the IAA had unreasonably refused to consider the new documents concerning his mental health pursuant to s 473DD of the Act. The FCCA rejected that ground. The learned primary judge found: [19] At [4], the Authority essentially reasoned that: a it was not clear why the documents that post-dated the delegate's decision (the doctor's letter and mental health assessment) could not have been obtained earlier in order to be provided to the delegate; b it was not satisfied that the other documents, from 2013, could also not have been provided earlier; and c the applicant had not indicated how these documents were relevant to his claims for protection. [20] On that basis, the Authority declined to consider the new information under s.473DD of the Migration Act, finding that there were no "exceptional circumstances" within the meaning of the provision. That is not a "rare case" of reasoning lacking an evident and intelligible justification. To the contrary, the applicant having failed to explain the relevance of the new information to his protection claim, the matters relied upon provide justification for the statutorily mandated conclusion that was reached, that no "exceptional circumstances" exist warranting their consideration for the purpose of s.473DD(a). 15 The primary judge rejected an argument, advanced on the basis of the decision of the Court in BVZ16 v Minister for Immigration [2017] FCA 958, that there was a failure on the part of the IAA to consider the requirements of s 473DD(b)(ii). The primary judge said: [23] In any event, at [4], the Authority observed that: The applicant has not indicated why these documents are relevant to his claims for protection. I note that he did not raise any concerns about his mental health in his primary application for protection or during his protection visa interview. [24] Read fairly without an eye keenly attuned to error, and in context, this is confirmation that the applicant had not satisfied the Authority that the "new information" referred to in [4] was "credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims". The fact the Authority did not use the language of the section does not affect that conclusion. 16 The primary judge also found that the requirements of s 473DD(a) and (b) are cumulative, and that notwithstanding the decision in BVZ16, when considering "exceptional circumstances" for the purposes of s 473DD(a) the requirement is not that the IAA must consider the matters in s 473DD(b). Rather, consideration of those factors may assist the IAA in deciding whether exceptional circumstances exist. Accordingly, even had his Honour found that the factor in s 473DD(b)(ii) had not been considered, this would not necessarily amount to jurisdictional error. 17 In the second ground, the appellant contended that the IAA had failed to consider a particular social group claim, namely that should he be returned to Sri Lanka, he faces harm because of his membership of a particular social group of three wheel drivers who were involved in providing transport for the LTTE. The primary judge rejected this claim on the basis that it was not factually correct. He noted that the IAA had considered the appellant's claim to fear harm on the basis that he drove the LTTE around in a rickshaw in three different parts of its decision, identifying each (IAA reasons at [14] - [22], at [33] and at [47]). 18 In the third ground the appellant again contended before the FCCA that the IAA had failed correctly correctly apply s 473DD(b)(ii), this time in relation to the second item of new information identified by it, being the appellant's further statement. The primary judge rejected this ground for two reasons. First, because when read in context the IAA's reasons show that the IAA did in fact take into account the factor in s 473DD(b)(ii). Secondly, because in any event the reasoning advanced by the IAA in relation to its construction of what amounted to "exceptional circumstances" was not, as the appellant contended, "inappropriately narrow". 19 In the fourth ground, the appellant contended that the IAA had taken into account an irrelevant consideration, being the statement contained in a letter from the IAA to the appellant pursuant to s 473DE of the Act that the appellant had left Sri Lanka "illegally". However, the primary judge found that this ground was not sustained, because notwithstanding the content of the letter, the IAA did not take into account the consideration that the appellant had left Sri Lanka illegally. The primary judge said: [44] Here, and notwithstanding the material in the letter, the Authority did not take [into] account the consideration that the applicant left Sri Lanka illegally. To the contrary, in the context of considering the applicant's claim to fear harm as a failed asylum seeker, and as the ground itself notes, the Authority found that: I accept that the applicant departed Sri Lanka legally on his own passport and with a valid visa to Malaysia in 2006. I am not satisfied the applicant will be charged with illegal departure on return to Sri Lanka. 20 In the fifth ground the appellant substantially repeated the content of ground 1, contending that the IAA applied an unduly narrow interpretation of the term "exceptional circumstances" when it inferred that it was not satisfied that there were exceptional circumstances to justify not considering documents in relation to the appellant's mental health. The primary judge rejected this ground for the same reasons that he rejected ground one.

THE APPEAL 21 As noted, the appellant represented himself at the hearing of the appeal. In his oral submissions, he submitted first, that the Sri Lankan authorities came looking for him, but he fled the country. It was after the appellant had fled that his father was taken by the authorities, and his father has not been seen since. Secondly, he submitted that the IAA had provided him with certain documents, and that before he could respond to them it had issued its decision. Thirdly, he submitted that he was unable to participate properly in the immigration interview, because his son was present. Otherwise, I assume that the appellant sought to rely upon the grounds of review advanced before the primary judge, and that the appellant submitted that the primary judge erred by failing to find in his favour on those grounds. 22 In this context I commence my consideration of this appeal with the observation, which is apt for many such appeals, that neither this Court nor the FCCA has jurisdiction to decide afresh on the evidence whether the appellant satisfies the criteria for the grant of the SHEV or to grant the appellant a visa. As such, neither court has the capacity to consider the factual merits of the IAA's decision to refuse to grant the SHEV to the appellant. The jurisdiction of the FCCA is limited to considering only whether the IAA's decision to refuse to grant the appellant the SHEV is lawful under the Act; that is, whether the decision of the IAA is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). In turn, this Court is required to consider whether there is error in the decision of the FCCA, on appeal from the IAA, under s 24 of the Federal Court of Australia Act 1976 (Cth). 23 In relation to the first point raised orally, it is to be noted that the IAA made specific findings of fact at [22] of its reasons, where it accepted that the appellant's father went missing in August 2006. However, it concluded, on the basis of credit findings that it had made earlier, that it was not satisfied that the disappearance was related to any perceived affiliation between the appellant and the LTTE, or that it was the EPDP who had abducted his father. The findings of the IAA in this regard stand as an insurmountable hurdle to the success of this submission. 24 The second point raised orally is in effect a contention that the appellant did not have an opportunity to respond to material put to him by the IAA. However, counsel for the Minister points out that on 23 February 2017 it wrote to the appellant, inviting him to comment on certain country information by 20 March 2017. In its reasons at [6] the IAA notes that there was no response. Furthermore, in his Third Amended Application for Review of the decision of the IAA, the appellant's solicitors referred specifically to the letter of 23 February 2017 in ground 4, but did not contend that the appellant had not had an opportunity to address it. These matters indicate that the contention that the appellant did not have the opportunity to respond to the letter of 23 February 2017 is not supported by the facts. I would not grant leave to the appellant to raise it on appeal. 25 The third point raised orally was not advanced before the IAA or the FCCA. No transcript of the interview is available. In those circumstances the submission cannot be sustained. 26 The appellant does not provide any specific basis upon which he contends that the primary judge fell into error in failing to find jurisdictional error on the part of the IAA. As he is unrepresented, I shall assume in his favour that he seeks to rely on the grounds advanced before the primary judge, and to contend that the primary judge fell into error in reaching his conclusions. 27 In this regard, it is apparent from a review of the decision of the IAA that the second and fourth grounds advanced in the court below were correctly decided. Each are clearly based on an incorrect factual premise that the primary judge was correct to identify. No more need be said about them. 28 The first, third and fifth grounds concern the new information that the appellant sought to rely upon pursuant to s 473DD of the Act. The first and fifth grounds concern the new documents addressing the appellant's mental health. I address these together below. 29 The IAA gave the following reasons for refusing to receive the mental health documents as new information: [4] On 24 November 2016 the IAA received a number of documents in relation to the applicant's mental health which I consider to be new information as they were not before the delegate. These included a cover letter from Dr Lou Sanderson which is dated 18 November 2016 which assessed that the applicant has signs of mild to moderate depression and anxiety related to worries about family and his and his son's future in Australia and that he has attended their clinic since 2013 and further enclosed a mental health assessment. The attached General Practitioner (GP) Mental Health Assessment from Dr Sanderson is also dated 18 November 2016 and provides brief information on the applicant's background and notes that he has had counselling relating to trauma and transition to Australia during 2013. There is also a letter from Dr Sanderson to Mr Chris Mackey at Chris Mackey and Associates referring the applicant for counselling and support dated 29 May 2013 which notes details about the applicant's background and that the applicant is troubled by the separation of his family. There is a further undated referral letter from Dr Sanderson to Mr [sic] Emily Hill at Chris Mackey and Associates in relation to the applicant where he thanks Ms Hill for seeing the applicant regarding ongoing stresses around living in community detention with his son and notes he is separated from his other children with no prospect of being reunited with them in the near future and suffers from disturbed sleep, fluctuating appetite and lowered mood at times with worry. There are also two General Practitioner referral forms in relation to the applicant's need to see a psychologist. There is also a GP Mental Health Treatment Plan dated 6 December 2013 which notes that the applicant requires counselling around stresses relating to immigration. Although I accept that Dr Sanderson's letter and mental health assessment are dated in November 2016 and post-date the delegate's decision, given the applicant has been seeing Dr Sanderson since 2013 in relation to his worries about his family and immigration process, it is not clear why these documents could not have been requested earlier from Dr Sanderson in order to provide to the delegate. I am also not satisfied the other documents from 2013 could also not have been provided earlier. The above documents confirm that the applicant has been treated for mental health issues in relation to his stress and worry over his family separation and the immigration process. The applicant has not indicated why these documents are relevant to the assessment of his claims for protection. I note that he did not raise any concerns about his mental health in his primary application for protection or during his protection visa interview. For these reasons I am not satisfied there are exceptional circumstances to justify considering this information. 30 The application of s 473DD has been considered in many cases. In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; 162 ALD 442 the Court summarised the position: [13] As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa (s 473DD(b)(i)) or is new information that is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims (s 473DD(b)(ii)). "Exceptional circumstances" is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are "exceptional" if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a): Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered". The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning "exceptional circumstances" in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute "exceptional circumstances", or one factor of its own which may be sufficient for "exceptional circumstances" to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant's case. [14] As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits 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. 31 Before the primary judge, the criticism made of the decision of the IAA was that it failed to consider the matter in s 473DD(b)(ii) in determining whether to consider the mental health documents. For the reasons advanced by the primary judge, I do not consider that this criticism is warranted. First, it is apparent from the reasoning in [4] of the IAA's reasons that the IAA considered the lateness of the information and its availability to the appellant before the decision of the delegate was made in August 2016. Notwithstanding that several of the medical reports and documents provided to the IAA were prepared in November 2016, the medical practitioners who provided those reports had been treating the appellant since 2013. The appellant also provided a number of contemporaneous medical records dated between 2013 and 2014. It was open to the IAA within s 473DD(b)(i) to find the documents had not been sought and provided earlier. Secondly, in observing that the appellant had not indicated why the documents were relevant to his claims, the IAA plainly had regard to whether the information "may have affected the consideration" of the appellant's claims within s 473DD(b)(ii). The appellant had not provided any basis upon which the documents were said to do so. Nor, as the IAA noted, had he raised the concerns earlier. Thirdly, in the final sentence of [4] of its reasons the IAA noted that it was not satisfied that there were exceptional circumstances to justify considering this information. Having regard to the reasoning that it set out earlier in that paragraph, it was entitled to reach this conclusion in relation to s 473DD(a). 32 Accordingly, on the assumption that grounds one and five in the court below have also been raised in this appeal, I find that they have no merit. 33 The third ground raised before the primary judge concerned the refusal of the IAA to receive new information in the form of an additional statement provided by the appellant dated 2 December 2016. The primary judge found, from reading [5] of the reasons of the IAA that, contrary to the submission advanced in the Court below, the IAA at least implicitly took into account s 473DD(b)(ii). The appellant's additional statement significantly embellishes upon the claims made by the appellant as to the degree of his collaboration with the LTTE in 1995 and in 2001 or 2002 until 2006 and adds later claims as to events that happened up until 2013. The IAA notes that no explanation has been given as to why these matters had not been previously addressed in his visa application, his 2013 statement of claims or during his visa interview with the delegate, who informed him that he must provide a full account of the events upon which he relies. It is implicit that these observations address the credibility of the later raised claims. 34 Having regard to the authority to which I have referred, it is apparent that in concluding that the requisite "exceptional circumstances" do not exist for the purpose of s 473DD(a) it is not necessary for each of the requirements of s 473DD(b) to be addressed and answered. The reasoning of the IAA to the effect that in the circumstances described it was not satisfied that there were "exceptional circumstances" do not demonstrate error. In my view the primary judge was correct to so find.

DISPOSITION 35 The appeal must be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley.