DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 22 August 2019, the Immigration Assessment Authority ('IAA') affirmed an earlier decision in which the IAA had affirmed a decision of the delegate of the first respondent to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa. In conducting the review, the IAA considered whether it could have regard to 'new information' which the appellant had provided to it on 25 November 2016 and 18 August 2019. 2 In relation to the material provided on 25 November 2016, which included submissions and attached country information, the IAA: (a) found that parts of the material by way of submissions referred to, and made arguments in relation to, the delegate's decision, and to that extent the material was not 'new information': at [6]); and (b) found that the submissions referred to country information that was not before the delegate and was therefore 'new information': at [7]). The relevant country information is identified in footnote 1 to [7] of the IAA's decision. In relation to this new information, the IAA found that the Appellant had not satisfied it as to the matters in s 473DD(b) of the Migration Act 1958 (Cth) ('Act'), and that it was not satisfied that exceptional circumstances existed to justify considering the new information as required by s 473DD(a): at [8]. 3 In relation to the material provided on 18 August 2019, the IAA noted that the Appellant had provided a letter and attachments, and on 21 August 2019, had provided translations of the attachments. The attachments related to the Appellant's cousin who, according to the letter, was taken by force to join the Liberation Tigers of Tamil Eelam ('LTTE'), and was captured at the end of the war and had disappeared. The IAA noted that none of this information was before the delegate, and therefore it was 'new information'. 4 It is then useful to set out [8]-[10] and [12] of the IAA's reasons: [8] The new information all pre-dates the delegate's decision. I do not accept the applicant's submissions as to being unrepresented or illiterate. I am not satisfied that he was unable to participate in the preparation of the SHEV application or the interview. I also note the SHEV application was accompanied by a submission that referred to a wide range of country information. I am not satisfied that the new information could not have been provided to the Minister before the delegate made the decision. The United Nations report and one of the media reports contain general, and not personal, information. The other media report (CX302999) refers to individuals who claim to have been interrogated and tortured on return to Sri Lanka. The report does not identify the individuals' profiles, past history, or locations. One victim is described as having been a member of the LTTE but there is no other detail of the length or type of alleged membership, or why he was chosen for arrest and torture. The applicant does not claim to have any relationship with the individuals beyond the general profiles of Tamil and former member of the LTTE. I also note that the article is seven years old and there is more recent information before me, including information sourced from a variety of sources including non-government organisations. I am not satisfied that this media report is credible personal information that may have affected the consideration of the applicant's claims had it been known. Having regard to all of the above, the applicant has not satisfied me as to the matters in s.473DD(b). Further, and particularly as there is more recent information before me including information provided by government and non-government sources, I am not satisfied that there are exceptional circumstances to justify considering this new information. [9] On 18 August 2019, the applicant, through his agent, provided a letter and attachments to the IAA. On 21 August 2019, the applicant provided translations of these attachments. The attachments relate to the applicant's cousin who, according to the letter, was also taken by force to join the LTTE and was captured at the end of the war. The applicant states that this cousin came forward and disclosed his recruitment to the authorities and this was the last that the family saw of him. The applicant states that he believed his cousin was being detained and was not aware that he had in fact disappeared at the time of the interview. The letter states that the applicant produced these documents after the agent asked for proof that anyone that the applicant knew had come forward and suffered harm as a result. None of this information was before the delegate and I am satisfied that it is new information. [10] The documents do not identify the cousin's profile with the LTTE or the reason(s) for his detention beyond stating that he had surrendered to the Sri Lankan Army (SLA) on 18 May 2009, which I note was at the immediate end of the civil conflict. The applicant asserts that the cousin was a forced LTTE recruit but there is no other evidence of the cousin's status or involvement with the LTTE. The applicant has not claimed at any time that he was ever questioned about any family members other than his father, or that he fears harm because of any association with any family members other than his father. There is nothing in the provided documents to indicate that the cousin has been, or will be, linked to the applicant in any way. Even accepting that the applicant's cousin was detained and disappeared at the end of the war and is still missing, the documents now provided do not support the assertion that the authorities are now detaining or otherwise harming persons who did not disclose a previous, brief and coerced involvement with the LTTE. There is other information before me which refers to the risks faced by returning asylum-seekers, including those who were, or are imputed to have been, involved with the LTTE. Having regard to all of these factors, the applicant has not satisfied me that this new information is credible personal information which, had it been known, may have affected the consideration of the applicant's claims. I am not satisfied that there are exceptional circumstances to justify considering this new information. […] [12] Since the date of the delegate's decision, the Australian Department of Foreign Affairs and Trade (DFAT) has published a new country information report about Sri Lanka. [Department of Foreign Affairs and Trade (DFAT), "DFAT Country Information Report - Sri Lanka", 23 May 2018, CIS7B839411064] I have obtained this report. This report, which was prepared for the purpose of assisting decision makers considering protection claims in Australia, was published after the delegate's decision and the delegate (and the previous IAA) relied on an earlier version of the report. Relevantly, the 2018 report contains information on the current situation for Sri Lankan Tamils who are suspected of being associated with the LTTE and returning asylum-seekers who left Sri Lanka illegally. This information and the assessments made by DFAT are more current than the information that was before the delegate. Having regard to all of the above, I am satisfied that there are exceptional circumstances to justify considering this report. 5 The IAA found that the Appellant had not satisfied it that the new information was "credible personal information which, had it been known, may have affected the consideration of the applicant's claims" (as per s 473DD(b)(ii)), and the IAA was not satisfied that there were exceptional circumstances to justify considering this new information (as per s 473DD(a)). 6 On 24 September 2019, the Appellant applied to the Federal Circuit Court for judicial review of the IAA's decision of 22 August 2019. 7 The application was heard on 18 June 2020 and on 21 July 2020 a primary judge of the Federal Circuit Court delivered a judgment dismissing the application (DQS19 v Minister for Immigration [2020] FCCA 1638). 8 Other relevant factual background information is set out in the reasons of the primary judge at [3]-[14] which the appellant accepts as a correct recitation of the factual background. 9 On 15 August 2020, the Appellant filed an appeal with this Court. The grounds of appeal are: Ground 1 The primary Judge erred in not finding that the decision of the [IAA] was vitiated by jurisdictional error in that the conclusion that there were not exceptional circumstances to justify consideration of the new information referred to in its' reasons at [9] - [10] was legally unreasonable. Ground 2 The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the IAA misapplied s 473DD(b) of the Migration Act 1958 (Cth), erroneously requiring both sub-paragraphs of s 473DD(b) to be satisfied, alternatively failing to consider whether s 473DD(b)(i) was satisfied, thereby resulting in a misconception of what the statutory power it was exercising entailed. Ground 3 The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the [IAA] misapplied s 473DD(a) of the Migration Act 1958 (Cth), by failing to consider whether that section was satisfied on the basis that the 'new information' fell within either s 473DD(b)(i) or (ii) and that combined with the timing of the receipt of the information sufficiently constituted exceptional circumstances and instead erroneously relying on its findings in respect of s 473DD(b)(ii) to conclude that exceptional circumstances do not exist. Ground 4 The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the [IAA] misconstrued or misapplied the words 'credible personal information' in s 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a misconception of what the statutory power it was exercising entailed. Ground 5 The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the [IAA] misconstrued or misapplied the words 'may have affected the consideration of the referred applicant's claims' in s 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a misconception of what the statutory power it was exercising entailed, alternatively the conclusion was legally unreasonable. 10 The appellant no longer presses Ground 1.