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

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.

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (4)