DID17 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The appellant pay the costs of the first respondent, to be agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

O'CALLAGHAN J: 1 This is an appeal from the judgment and orders of a judge of the Federal Circuit Court of Australia (the Federal Circuit Court), delivered on 17 September 2018, dismissing an application to review a decision of the Immigration Assessment Authority (the IAA) dated 5 July 2017. 2 This judgment was deferred pending the decision of the High Court in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, but the reasons do not affect the issues that fall to be decided. 3 The appellant is a male citizen of Sri Lanka and of Tamil ethnicity. He arrived in Australia by boat on 19 July 2013 as an unaccompanied minor. 4 He arrived at an excised offshore place, and so was deemed to be a so-called "unauthorised maritime arrival", pursuant to s 5AA(1) of the Migration Act 1958 (Cth) (the Act). He was therefore prohibited from making a visa application by s 46A of the Act. 5 In July 2015, the appellant was invited to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV). 6 On 14 September 2015, the appellant lodged an application for a SHEV. In summary, he made the following claims for protection: (1) During the civil war in Sri Lanka, many of the appellant's family members were injured, including his mother's cousin whose arm was amputated due to a bomb blast. His schooling was also interrupted and many fellow students were killed. (2) The male members of the family were at risk of being abducted by the Liberation Tigers of Tamil Eelam (LTTE) even though they were not supporters. Two of his cousins were forcibly recruited and held for twenty days until they escaped. (3) Shortly after, the appellant's father was captured by the LTTE. The appellant's uncle went looking for him and was captured and killed by the Eelam People's Democratic Party (EPDP). The father escaped after 20 to 25 days and told his family he was made to do labouring work. The family then moved from the LTTE controlled area to the army controlled area. (4) Life inside the camp was very strict and they were unable to leave freely. One night the appellant's father left after curfew and the army caught him on the road. A neighbour saw the army point their gun at the appellant's father and told the family to beg for his release with the officer in charge, which they did. (5) The army would check in and interrogate any member of the family at any time. In addition, ten or so men were required to guard their area to protect them from 'grease men'. 7 On 2 May 2016, a delegate of the first respondent refused to grant the appellant a SHEV. 8 Because he was a "fast track applicant", the matter was automatically referred to the IAA for review under Part 7AA of the Act. 9 On 30 May 2016, the appellant provided a submission to the IAA addressing the delegate's decision. On 8 June 2016, the IAA affirmed the decision under review. 10 The appellant sought judicial review of that decision, and on 23 May 2017 the Federal Circuit Court ordered that the First Decision be quashed and the matter be remitted to the IAA for reconsideration according to law. 11 The application was referred to a second IAA member and on 11 June 2017, the appellant's representative provided a further submission which attached a 2017 DFAT report and a 2016 UK Home Office report. 12 On 5 July 2017, the IAA affirmed the decision under review. 13 Because the appeal to this court ultimately sought to rely on one ground of appeal, which counsel for the appellant described as "reasonably confined", it is not necessary to rehearse in detail the reasons given by the IAA for affirming the decision under review, other than to set out those paragraphs of the decision which directly or indirectly relate to the ground of appeal. The paragraph from the decision of the IAA upon which the ground of appeal centres is [7]. It reads as follows: The applicant submits that he is at risk of harm in Sri Lanka because he is a Christian. He states that while he and his family are yet to experience any threats, many people in his area have experienced intimidation and threats. No details are provided as to the nature of the intimidation or threats, or when these incidents are said to have occurred. I note the applicant made no reference to fearing harm on account of his religion in his SHEV application and in an interview with the delegate on 16 December 2015 (SHEV interview) he advised that he had no prior difficulty in Sri Lanka on account of his catholic faith and that he 'faced persecution because of [his] race, not religion'. It is not clear if this information relates to events that predate the delegate's decision; however, based on the applicant's previous evidence I am satisfied this is new information. Although no actual report or citation is provided, the IAA submission refers to a 'May 2016' report by the Sri Lanka Campaign for Peace and Justice (SLCPJ) titled 'Ominous Rise in attacks on Sri Lankans [sic] Christians', which the applicant submits cites attacks on Christians and the failure of police to intervene. The applicant further states that the SLCPJ report cites a 2015 Annual report by the United States Commission of Enquiry of Religious Freedoms detailing reports of police harassment of religious minorities at their place of worship, which I note relates to events that pre-date the delegate's decision. I note the applicant was legally represented in respect of his SHEV application, including at the SHEV interview, and these matters (fear of intimidation and/or threats and/or police harassment on account of his religion) have not previously been mentioned by the applicant or his representative, including in an extensive post-SHEV interview submission. In the circumstances, and in the absence of these reports, I am not satisfied that there are exceptional circumstances to justify considering this new information. 14 At [51]-[52], the IAA also found as follows: Accordingly, I am not satisfied that the applicant faces a real chance of serious harm on account of his age, his religion, or due to an incapacity to subsist. I am also not satisfied that the applicant faces a real chance of serious harm due to a potential LTTE revival or from 'Grease men' upon his return to Sri Lanka, now or in the foreseeable future. Data Breach In the post-SHEV interview submission, the applicant's representative raised a new claim that as a consequence of his personal details being leaked on the Department's website on 11 February 2014, he fears the Sri Lankan authorities have identified him as an asylum seeker in Australia. It is submitted that the data breach may result in the applicant appearing on a 'stop' or 'watch' list. It is further submitted that the leak of the applicant's personal details will serve to reinforce his imputed political opinion as 'anti-government' and 'pro-LTTE'. 15 The appellant then sought judicial review of the IAA's decision to affirm the delegate's decision. 16 Ground 1 was as follows: 1. The IAA fell into jurisdictional error when it found [7] there were no exceptional circumstances to allow the IAA to consider further claims as to his religious fears, in that • the finding was unreasonable; and/or • that no reasonable decision maker would have come to that conclusion; and/or • it was made without any logical or probative basis (see CIC15 v Minister for Immigration and Border Protection [2018] FCA 795); and/or • the IAA misunderstood the meaning and nature of s 473DD of the Migration Act and/or misunderstood its own function and duty in respect thereof. 17 The primary judge dismissed the application and, in respect of ground 1, held that the IAA provided logical and rational reasoning in the exercise of its power under s 473DD on the basis that the new information was not provided earlier (at J[28]). His Honour considered that the IAA had provided an evident and intelligible justification for its findings, noting that additional reasons had also been provided for its finding. 18 At the hearing, I gave leave to the appellant to rely on an amended notice of appeal. It is not clear to me why it was necessary for such leave to be given, but at the hearing counsel for the appellant sought to advance only one ground of appeal (which was ground 1 before the primary judge). 19 The true basis for the appeal, however, was more precisely articulated by counsel during the course of his oral submissions. The submission was to the effect that the IAA, by failing to inquire of the appellant why he had not at any previous time submitted that he was at risk of harm in Sri Lanka because he was a Christian, formed the view that it was not satisfied that there were exceptional circumstances to justify considering the new information, which amounted to a failure to comply with s 473DD of the Act. The appellant's counsel also sought to characterise the same alleged error as one that was legally unreasonable. 20 Counsel for the appellant conceded, quite properly, that there was nothing in the material before the delegate, all of which was contained in the appeal book in this court, which provided any information volunteered by the appellant as to why he had not made that claim before. Counsel also frankly and properly conceded that he did not know what such an explanation could be. 21 Counsel for the Minister pointed to the fact that the appellant had been told by the IAA that, if he wished to, he could provide any new information, including any explanation as to why information had not been given to the department before the decision was made, by the terms of a letter sent to the appellant by the IAA. Critically, however, the Minister's counsel submits that the single ground of appeal sought to be agitated in this court cannot succeed in light of the statutory regime governing the information to which the IAA must or may have regard. 22 It is necessary to set out the three relevant provisions of the Act dealing with the material or information to which the IAA either must or may have regard when it reviews a fast track reviewable decision. Sections 473DB, 473DC and 473DD provide: 473DB Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. Subdivision C - Additional information 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 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. 23 In her reasons in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902, Mortimer J referred to 473DB(1) as the "primary rule". As her Honour said at [27]: The term "new information", rather than being defined in a dictionary or a separate provision, is defined in s 473DC(1). It is apparent, as the Federal Circuit Court noted, that there are two limbs to the definition. The first limb concerns a matter of historical fact: namely, whether the "documents or information" were or were not before the Minister or the Minister's delegate when the decision under review was made. The second limb relates to a state of mind the Authority must form about the relevance of the documents or information to the fast track decision which it is required to make. 24 In my view, the submission put on behalf of the appellant is at odds with the legal provisions governing the review of a fast track review decision. It cannot, with great respect to counsel for the appellant, possibly be the case that the IAA would be under a duty to ask for new information (i.e. for an explanation of why the appellant had not before claimed to be at risk of harm in Sri Lanka because he is a Christian) in circumstances where, by the terms of s 473DB(1), the IAA was bound to review the delegate's decision without requesting new information and without interviewing the appellant. The fact that the IAA may have had a discretion to seek such information cannot be elevated into a duty because to do so would be in conflict with s 473DB(1). But that would be the precise consequence of accepting the appellant's contention that the tribunal acted unreasonably, and committed a jurisdictional error, by not asking the appellant for an explanation of the type to which I have referred. 25 In deference to counsel for the appellant, I should briefly refer to the cases on which he relied: AQU17 v Minister for Immigration and Border Protection [2018] FCCA 122; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC l92; (2017) 162 ALD 1; BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 158 ALD 198. Nothing in those cases suggests the contrary result, and are all concerned with a different point, namely, situations in which the IAA has been said not to have considered exceptional circumstances. 26 As counsel for the appellant submitted: [T]he Primary Judge was correct to find that the IAA clearly did provide reasons for in support of its assessment of the new information under section 473DD of the Act (at J [28]). The reasons outlined by the IAA were that no details had been provided as to the nature of the intimidation or threats received by people in his area, the appellant made no reference to fearing harm on this basis in his SHEV application and expressly stated he did not fear harm on this basis in his SHEV interview, the appellant was represented in respect of his SHEV application, and did not provide the supporting reports in respect of this claim (at [7] of the IAA decision). These were detailed and cogent findings that were open to the IAA to make. 27 For these reasons, the appeal must be dismissed with costs to be agreed or assessed. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.