BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Consideration 34 Like the FCC Judge, I consider it odd that the IAA considered the application of s 473DD to the new claim without, as part of that consideration, also having regard to the medical reports on which the appellant relied. That is because it was self-evident that the appellant's purpose in providing the medical reports was to support his new claim in both its content and its timing. 35 However, it convenient to put the appellant's submissions concerning that aspect of the IAA's reasons to one side for the moment and to address first the issues raised by the appeal independently of this matter. 36 The IAA understood that s 473DD prohibited it from considering the new information provided by the appellant unless it was satisfied of both the subpara (a) and (b) conditions. For this reason, the IAA identified at the commencement of its reasons the information provided by the appellant which was new information and that which was not. The IAA also referred, at [12], to the submission of the appellant's representative as to "why all of the new information should be considered". 37 Having made that identification, the IAA then addressed the question of whether the new information could be considered. In doing so, it addressed first the appellant's claim of interrogation and torture in July 2012, characterising that as "the new claim". 38 I have emphasised these two matters about the approach of the IAA because they provide the context for the passages in its reasons which followed. 39 It is evident that, in [13]-[15] of the reasons, the IAA addressed first the issue under s 473DD(b)(i), that is, whether the new claim could have been provided to the Minister before the delegate had made her decision on 3 May 2016. Given that the new information comprised an additional claim of the appellant (as opposed, say, to additional evidence of an existing claim or evidence of some more recent relevant development), this meant naturally that there would be focus on the appellant's explanation for not having made the claim of interrogation and torture until 22 May 2016 (some four years and nine months after his arrival in Australia, some nine months after his application for the SHEV, some five months after his interview with the Minister's delegate, and some three weeks after the delegate's decision). The omission of the appellant to have made the claim earlier and at a time when it would have been in his interest to do so, made it almost inevitable that there arose a question as to the veracity of the claim and of the appellant's explanation for not having made the claim earlier. It is accordingly unsurprising that, in [13]-[15], the IAA addressed directly the explanation proffered by the appellant (through his representative) for the new claim not having been made earlier. 40 In [13], the IAA concluded that the obvious relevance of the new claim made it implausible that the appellant had been unable even to inform his own lawyer of any part of the claim and, in turn, for the delegate to have been informed. This was especially so as the delegate had warned the appellant that "failing to raise claims at the interview or before the decision was made might mean that he could not raise them if his application was refused", at [13]. 41 In [14], the IAA noted that the appellant had been able to discuss the claim with his lawyer in May 2016 but had not explained why he had been unable to do so earlier. 42 In [15], the IAA referred to the length of time the appellant had been in Australia and to the assistance he had been receiving from a migration lawyer. This led the IAA to reject the appellant's explanation that he had been "too scared to provide details of mistreatment by the Sri Lankan authorities because he thought he might be sent back to Sri Lanka", at [15]. 43 The IAA then concluded, at [16]: Having regard to all of the factors set out above, I do not accept the applicant's reasons for not raising the claims before the delegate made her decision. 44 This conclusion (and the omission of the IAA to refer to the other explanation which the appellant had provided for the new claim being made only belatedly) made inevitable the finding of the IAA that the appellant had not satisfied it of the subpara (b)(i) matter, namely, that the new information could not have been provided to the Minister before the delegate's decision. 45 In the very next sentence of [16], the IAA then said: This leads me to doubt the timing and content of the claims. 46 Although not stated so expressly, the evident focus of this sentence was on s 473DD(b)(ii), that is, whether the new claim was "credible personal information". Consideration of the time at which the new claim was made and its content were, considered rationally, an intrinsic part of the assessment of the credibility of the claim. The IAA's rejection of the appellant's explanation for the time at which the complaint was made went directly to its credibility. This was reflected in the IAA's statement that it doubted both the timing and credibility of the claim. That statement of assessment may have been concise but, in context, and reading the reasons fairly and in a way which is not unduly critical (BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091 at [38]), it is evident that the IAA was saying that it did not regard the new claim as credible. 47 The impression that the IAA was referring to subpara (b)(ii) when it said that it doubted the timing and content of the claims is confirmed by the fact that, in the very next sentence, it said: The applicant has not satisfied me as to either of the matters in s.473DD(b). 48 The IAA then addressed s 473DD(a), saying: Nor am I satisfied that there are exceptional circumstances to justify considering this new information. 49 When the IAA's reasons are considered in the way just discussed, it can be seen that it addressed separately each element in s 473DD. That being so, I do not consider that the FCC Judge was wrong in rejecting the appellant's contention that the IAA had "conflated" the requirements of subparas (b)(i) and (ii). This was a case in which the matters bearing upon subpara (b)(i) (being the timing and content of the new claim) were also pertinent to subpara (b)(ii). That being so, it is unsurprising that the IAA regarded the matters bearing upon its satisfaction of the former as also informing its satisfaction of the latter. To do so was not to conflate the requirements of the two subparagraphs. 50 The decision of Bromberg J in CSR16, on which counsel for the appellant relied, was delivered after the decision of the IAA presently under consideration. It was accordingly not possible for the IAA to make any express reference to that decision. However, on my assessment, this is a matter of no moment. That is because the IAA had found that the appellant's new claim was not credible, in the sense discussed in CSR16. That finding was sufficient for the IAA to conclude that the appellant had not satisfied it of the subpara (b)(ii) matter. 51 As the IAA considered that the appellant had not satisfied either subpara (b)(i) or subpara (b)(ii), there was, strictly speaking, no need for it to have considered whether there were exceptional circumstances (subpara (a)). 52 The decision of the High Court in AUS17 makes plain that the matters bearing upon satisfaction of subpara (b) may inform satisfaction of the "exceptional circumstances" condition. That was obviously so in the circumstances of the present case. The IAA's rejection of the explanation for the new claim not having been made earlier and the lack of satisfaction that the new claim was credible personal information was plainly relevant to the assessment of whether there were exceptional circumstances. In fact, subject to the matter to be considered next, the appellant's submissions did not indicate any rational means by which the IAA could have been satisfied that exceptional circumstances existed justifying the consideration of the new claim when his explanation for not making the new claim earlier had been rejected and when the IAA was not satisfied that the new claim was credible. 53 If matters had stood here, this would have meant that the appeal should be dismissed. 54 However, it is necessary to consider counsel's submission concerning the failure of the IAA to consider the medical reports when considering the credibility of the new information provided by the appellant. As already noted, counsel submitted that this indicated an unduly narrow understanding by the IAA of the term "credible personal information". 55 Paragraphs [17] and [18] of the IAA's reasons have been set out earlier. Both their place in the IAA's reasons and their content indicate that the IAA considered the reports of the appellant's general practitioner and the psychologist only after having found that the appellant had not, in relation to his own account, satisfied either of the conditions in s 473DD in respect of the new information. 56 Further, the manner in which the IAA addressed the medical reports suggests that it regarded them as being relevant only to the question of whether the appellant had been subject to the interrogation and torture he claimed, and not as relevant to the appellant's explanation for not having raised the claims earlier: [18] … As noted above, the reports refer to injuries and diagnoses that are consistent with the applicant's claimed history but do not confirm the applicant's claimed history or state that there are no other explanations for these issues. I am not satisfied that the reports are probative of the applicant's claims and for this reason, together with my earlier observations in relation to the applicant's failure to raise these claims before the delegate, I am not satisfied that there are exceptional circumstances to justify considering these reports. (Emphasis added) 57 These passages indicate that the IAA's rejection of the appellant's explanation for the lateness of the claim was reached without regard to the medical and psychological reports and therefore to the whole of the information. 58 The IAA appears not to have appreciated that both reports were relevant to the assessment of the credibility of the appellant's explanation for having raised the new claim only belatedly, and not just to the credibility of his claims concerning those incidents. For example, in the report of 11 October 2017, the general practitioner said: He has been so ashamed about this treatment [the insertion of objects into his rectum] and the sequelae he has found it difficult to describe to doctors to ask for help … [The appellant] experiences symptoms consistent with post traumatic stress disorder. He has a low mood and recurrent involuntary thoughts about the events of 2012 … I hope to continue to work with [the appellant and his wife] to help them recover from their traumatic experience. (Emphasis added) 59 In her report of 5 October 2017, the psychologist reported: Furthermore [the appellant's] hypervigilance, sensitivity to reminders of his traumatic history and high levels of anxiety restrict his ability to verbalise specific details of his past experience, such as recalling dates, locations and the times of sequence of events; consistent with the scientific literature on the psychological impact of trauma. (Emphasis added) 60 This expert medical evidence concerning the appellant's mental health went directly to the explanation proffered by the appellant for the belated making of the new claim. Despite that, in determining whether the new information (being the appellant's new claim) could be considered, the IAA did not have regard to it. The IAA thereby failed to have regard to the whole of the information when addressing the question of whether it could be "considered". This was an error. 61 There are various ways in which the error which the appellant imputes to the IAA may be expressed. It may be a failure to consider the new information as a whole in the assessment of whether it constituted "credible personal information". It may be a misunderstanding by the IAA of the way in which it was to discharge its function. However, the precise characterisation of the error is not important. The IAA was bound to consider whether the appellant's new information was credible personal information: AUS17 at [6], [11]. It was required to undertake that consideration in accordance with law. This was an essential requirement for the discharge of the statutory obligation to review imposed on the IAA by s 473CC of the Act. In undertaking that review, the IAA had to consider whether the new information provided to it by the appellant could be considered: AUS17 at [6]-[7]. That issue had to be determined by regard to all "the information, evidence and arguments" relevant to it: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [44]. By failing to have regard to the medical reports when considering whether the appellant's new information was credible personal information, the IAA failed to comply with this part of its statutory task. That was jurisdictional error. 62 This case is distinguishable from Re Minister and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 in which it was held that a feature to consider evidence corroborating an applicant's account, having rejected that account, was not an error of law, at [12]-[14] (Gleeson CJ), at [49] (McHugh and Gummow JJ). This is not a case of the kind to which Gleeson CJ referred in [14] of Applicant S20: Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him. 63 Instead, the compartmentalised reasoning adopted by the IAA meant that it considered both the appellant's claim and the medical evidence independently of the other, and without considering the new information as a whole. 64 It may be that the IAA's error could also be said to have made its decision legally unreasonable, because of irrationality in the reasoning process - see Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130]-[131]. However, counsel did not contend for such a characterisation and it need not be considered. 65 The IAA's error should be regarded as material because it affected a foundational step in its reasoning, that is, its rejection of the appellant's reasons for not raising his new claim before the Minister's delegate. As previously noted, the IAA had relied on that conclusion in the assessment of the s 473DD(b)(i) criterion and, in turn, on the assessment of the s 473DD(a) criterion. Given its importance to the IAA's reasoning, it can be concluded that the error has deprived the appellant of the possibility of a successful outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 34, (2018) 264 CLR 123 at [72]; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 at [4]. 66 Accordingly, I consider that, for this limited reason, the appeal must be allowed.

The Minister's "procedural power" submission 67 In reaching this conclusion, I have not overlooked the submission of counsel for the Minister that the IAA is not under any duty to explain its reasons for declining, pursuant to s 473DD of the Act, to consider "new information". Counsel made this submission by reference to BVD17 at [16] and [40] and to CAQ17 at [119]-[120]. 68 In BVD17, the plurality said, at [16], that the IAA "in giving reasons for [the] ultimate decision to affirm or remit is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1) or s 473GB(3)". In CAQ17 at [119], Derrington and Steward JJ cited BVD17 as authority for the proposition that the IAA is under no obligation to provide reasons for its determination as to whether information obtained by it or given to it was "new information". However, contrary to counsel's submission, neither BVD17 nor CAQ17 was concerned with the requirement for reasons to be provided by the IAA in respect of its decision as to whether it should consider new information which it has received. Following the decision in AUS17 at [6] that the IAA is bound to assess the new information it has received against the s 473DD criteria, it would seem inappropriate to regard the decision on whether the new information can be considered under s 473DD as the exercise of a "procedural power". In any event, in the present case, the IAA did give reasons and did thereby disclose its reasoning.

Conclusion 69 For these reasons given above, the appeal must be allowed. The orders of the Court are: (a) The appeal is allowed; (b) The orders of the FCC made on 29 October 2019 are set aside. (c) A writ of certiorari be issued quashing the affirmation by the IAA on 3 November 2017 of the decision of the Minister's delegate to refuse the appellant's application for a Safe Haven Enterprise Visa. (d) The matter be remitted to the IAA so that another member may undertake the review required by s 473CC of the Act in accordance with law. (e) The first respondent is to pay the appellant's costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the FCC. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice White.