DYS16 v Minister for Immigration and Border Protection

1. Leave be granted to the appellant to commence his appeal out of time.
2. The appeal be dismissed.
3. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT: 1 This is an appeal from a judgment of the Federal Circuit Court ("the FCC"): see DYS16 v Minister for Immigration and Border Protection [2017] FCCA 1975. The FCC dismissed an application by DYS16 for judicial review of a decision of the Immigration Assessment Authority ("the IAA") which had affirmed a decision of a delegate of the Minister for Immigration and Border Protection ("the Minister") not to grant DYS16 a protection visa. 2 DYS16 is a citizen of Afghanistan. He arrived in Australia in 2013 as an unlawful maritime entrant. In 2015 he lodged an application for a Safe Haven Enterprise (Class XE) Subclass 790 visa. He claimed to fear persecution at the hands of the Taliban because he was an educated Hazara with links to the West whose father had been targeted and killed by the Taliban because he was involved in the building of a school. 3 The review of the delegate's decision was undertaken by the IAA under Part 7AA of the Migration Act 1958 (Cth) ("the Act"). 4 During the IAA's consideration of DYS16's case an issue arose as to whether a report, from a psychiatrist, which had been prepared after the delegate's decision, should be considered by the IAA. 5 The psychiatrist had interviewed DYS16 on three occasions and taken a history from him. Following these consultations the psychiatrist had prepared a report in which he expressed the opinion that DYS16 was suffering from post-traumatic stress disorder ("PTSD"). Such a condition, he reported, caused "significant distress and sometimes … significant impairments in function, such as irritability and inattention at work". Reference was also made to "disturbances in mood and thinking and memory, such as difficulty remembering significant aspects of the traumatic events". 6 Later in his report the psychiatrist expressed the opinion that: I judge his [DYS16's] account of his history and current symptoms and fears to be highly credible. I base this judgment on a careful consideration of his mental state and behaviour at interview, and also the on [sic] the consistency he demonstrated when I revisited the complicated and somewhat confusing parts of his history. 7 The IAA determined that it should consider the psychiatrist's PTSD diagnosis but did not consider that it should have regard to the psychiatrist's opinion about DYS16's credibility. 8 The decision of the IAA relating to the reception of the psychiatrist's report was governed by s 473DD of the Act. That section provides: 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. 9 Subsection 473DC(1) provides that the IAA may get new information. The term "new information" is defined in s 473DC(1) to mean documents or information that were not before the Minister (or delegate) when he or she made the decision under review and which the IAA considers may be relevant to performance of its statutory duties. Subsection 473DC(2) clarifies that the IAA's power to obtain new information is discretionary: the IAA "does not have a duty to get, request or accept, any new information whether the [IAA] is requested to do so by a referred applicant or by any other person, or in any other circumstances." 10 The IAA explained its reasons for its decisions relating to the psychiatrist's report as follows: 6. The 9 September 2016 psychiatric report provides an assessment of the applicant's mental health, a summary of the information which the applicant has provided to the treating psychiatrist, and the psychiatrist's assessment of the applicant's credibility. With regard to the applicant's mental health, the report states that the applicant is affected by many features of post-traumatic stress disorder (PTSD). This is new information. The applicant has not provided reasons as to why the psychiatric report should be considered. Nevertheless, I am satisfied that a diagnosis of the applicant's mental health by a registered psychiatrist amounts to credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. I am satisfied that there are exceptional circumstances to justify considering this new information. 7. The psychiatric report also provides a summary of the claims which the applicant has provided to the treating psychiatrist. Much of this information was before the delegate and is not new information. However, some of the information provided was not before the delegate and is new information, including: that the applicant can only remember living in one house in Kabul (although the applicant only listed one Kabul residential address in his SHEV [Safe Haven Enterprise Visa] application he stated at the SHEV interview that he and his family had lived in different locations in Kabul); speculation as to why his father may have purchased a home in a majority Pashtun area (although the applicant introduced the claim that his father had purchased two properties in Kabul in a 14 March 2016 submission the reasons behind the locations were not previously mentioned; that he once went on a trip with a friend, on the only occasion he departed his home area, and this ended in a place with people who were very scary and threatening; that a Pashtun man belonging to the Taliban man named Mr M would hang around there [sic] house and threaten and taunt his mother for having the same pro-government attitudes as her husband, and somehow employed or extorted or expected that the applicant's mother and her sons would watch over the generators that powered the mobile phone tower located very close to their house (apparently a source of income for the man); and that Mr M had said that if his mother moved he would find her and hill her and her sons, and this made it impossible for her to move; and that his mother's only source of adult male support in Kabul, a cousin, had been killed in the Hazara demonstration bomb attack on 23 July 2016, and could thus no longer collect the rent from their rental property, the resident of which had threatened to shoot his mother if she came again to collect the rent; that he had seen people being beaten on a number of occasions in Afghanistan; that he once saw the body of a neighbour who had been shot for working with the army; and that he once saw the aftermath of a suicide bombing and also a car bombing which almost killed his cousin. He said that he had been reluctant to talk of these matters with Immigration because they would ask for details such as dates and this would be stressful. 8. The applicant has never before mentioned that his family had been threatened by a Mr M who ran the telecommunications tower on the home in which they had lived. The applicant submits that he did not do so because this would have been stressful; and the treating psychiatrist suggested that this was presumably because he would be unable to provide precise details, as well as the memories being so distressing and traumatic. I am not persuaded by this given that the applicant had the assistance of a migration agent, and given that in addition to his SHEV application and SHEV interview he also provided further information in three subsequent submissions. Moreover, the applicant's claims in these regards are not internally consistent with his previous evidence where the applicant only ever referred to having trouble with a Mr R in relation to the telecommunications tower, and that this trouble resulted from the applicant's reporting Mr R to his supervisor. The applicant now claims to fear the man who ran the tower. Even allowing for the applicant's being a youth of 17 years when he initially lodged his SHEV application, even allowing for the fact that he is affected by memory difficulties, and an unwillingness to discuss traumatic matters, the lack of internal consistency in the applicant's evidence concerning the management of the telecommunications tower and the man he fear [sic] in regard to its operations, seriously undermines the credibility of the applicant's claims. Likewise, the applicant's claims to have only every lived in one home in Kabul is inconsistent with his evidence at the SHEV interview that he and his family had moved to different homes in Kabul, and that the most recent home he had lived in with the telecommunications tower was owned by the company which owned by the tower. Moreover, and as will be discussed below, given my overall concerns about the applicant's credibility I have found that the applicant is not a credible source of evidence with regard to his circumstances in Kabul. I am not satisfied that the applicant's new claim - that he and his family were threatened and forced to work by a Mr M who ran the telecommunications tower - is credible. Nor am I satisfied that his claim to having only ever lived in one home is credible. I do not accept that he has witnessed the killing or beating of persons in Kabul, or that his cousin was killed in the 23 July 2016 bomb attack or that the applicant's mother's life has been threatened by a rental tenant. I am unable to be satisfied that any of the new information which he has provided to the treating psychiatrist is credible or that it could not have been provided before the delegate made his decision. I am not satisfied that s.473DD(b) is met, nor am I satisfied that there are exceptional reasons to justify considering this information. 9. The 9 September 2016 psychiatric report also provides the treating psychiatrist's opinion that the applicant's account of his history is highly credible. While I accept that there are exceptional reasons for considering treating psychiatrist's assessment of the applicant's mental health, the applicant's psychiatrist opinion as the applicant's credibility does not carry more weight than other concerns regarding the applicant's credibility which have been discussed above, and which will be discussed further below. I am therefore not satisfied that there are exceptional circumstances to justify the psychiatrist's opinion as to the credibility of the applicant's claims. 11 In his application for judicial review in the FCC DYS16 relied on two grounds. The first was that the IAA's decision not to consider the psychiatrist's opinion on his credibility was irrational and illogical. The second ground was that the IAA had misinterpreted, misapplied or failed to apply s 473DD "in that [the IAA] was not satisfied that there [were] exceptional circumstances to justify considering the psychiatrists [sic] opinion as to the credibility of [DYS16's] claim." 12 The FCC rejected both of these grounds and dismissed DYS16's application. 13 DYS16's appeal to this Court alleges that the primary judge erred in rejecting these two grounds. 14 The appeal was filed a few days outside the prescribed period. DYS16 sought leave to appeal out of time. This application was not opposed by the Minister. The Court granted leave.