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[2020] FCA 1566
Federal Court of Australia
2020-10-29
O'Callaghan J
Original judgment source is linked above.
Background 1 This is an appeal from a decision of a judge of the Federal Circuit Court, who dismissed the appellant's application for judicial review of a decision of the Immigration Assessment Authority (the Authority). 2 The appellant is a citizen of Sri Lanka. He arrived in Australia in 2012. In 2016, he applied for a temporary protection visa, claiming he feared he would be harmed if he were returned to Sri Lanka. He said his fear was founded on his Tamil ethnicity, his past employment as a truck driver for the Liberation Tigers of Tamil Eelam (the LTTE), and the harassment that he and his wife had received from officials there in the past. 3 The Minister's delegate refused his application. The delegate accepted that the appellant was a Tamil, but not that he had been employed by the LTTE for several years. That, the delegate said, did not seem consistent with the appellant's insistence that the LTTE had not given him any training. The delegate concluded that "it [was] more likely that [the appellant] was forced to provide a low level [of] material support to the LTTE, possibly in the form of transport at one time or another". As to the appellant's claim of harassment by officials, the delegate accepted that the authorities may have questioned him and his wife, and that "the Sri Lankan government still takes a hard line against former senior LTTE leaders and cadres". Nonetheless, the delegate concluded that the appellant, not having been employed by the LTTE, was not on any official watch list and therefore was "of no interest to the Sri Lankan authorities for any reason when he left the country". 4 The delegate's decision was referred to the Authority. The appellant provided the Authority with a submission and supporting documents. His submission included the following passage, which is central to his case on appeal: Working for the LTTE - The Delegate stated that he does not accept that I worked for the [LTTE] and did not undergo any military training. I did not tell the correct information to the Delegate. I feared I would be detained if I reveal I took the LTTE self-defence training in 2005. I was told by friends that anyone with LTTE association would be put in detention in Australia. Therefore, I did not talk about it out of fear Close relative of a former LTTE cadre - My younger sister … was a LTTE cadre from 1998 - 2009. Her LTTE name was … Due to her association, I was not forced to join the LTTE. As I have previously stated, I worked for the LTTE between the years 2005 - April 2009. I will submit evidence of her membership as soon as I get them from my family from Sri Lanka. 5 The appellant's supporting documents comprised a "Detention Attestation" issued by the International Committee of the Red Cross and a "Release Certificate" issued by a Sri Lankan police official. Both related to the detention of his sister in Sri Lanka. 6 The Authority affirmed the delegate's decision to refuse the appellant a visa. 7 In its reasons, it identified two of the contentions in the appellant's submission - that he had carried out training with the LTTE, and that his sister was an LTTE cadre - as claims that had not been put to the delegate (the new claims). It decided not to consider these claims, or to get more information about them, relying upon ss 473DC and 473DD of the Migration Act 1958 (Cth) (the Act). 8 Those sections provide as follows: 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. 9 Applying those provisions, the Authority reasoned as follows: At his TPV [temporary protection visa] interview the delegate advised the applicant of the importance of putting his claims forward and cautioned that he may not have a further opportunity to do so. The delegate gave him an opportunity to correct any information in his application and to provide any further information and advised the applicant that the [Authority] can only accept new information in exceptional circumstances. … I note the delegate asked the applicant specific questions at his TPV interview about involvement with the LTTE and any training with the LTTE. The applicant stated that he had not undertaken any training with the LTTE and he did not advance the claim … that his sister was an LTTE fighter. The applicant states that he was previously fearful of divulging this information because he was concerned he could be detained in Australia. I am not persuaded by this explanation. The applicant advanced claims to have worked in a salaried position for the LTTE for four years, including claims that he transported weapons and fighters. Noting that he was willing to divulge this claimed LTTE involvement I am not satisfied that his stated concern of detention in Australia explains his failure to put forward the claims relating to training and his sister to the Minister. Furthermore, I find the late advance of these claims casts doubt on their credibility. … The applicant has not satisfied me that the new information, documents and claims could not have been provided to the Minister, or that it is credible personal information that was not known and had it been known may have affected the consideration of the applicant's claims. Furthermore, having regard to the entirety of the circumstances, I am not satisfied that there are exceptional circumstances to justify consideration of the new information, documents and claims. … In his submission the applicant advised he was willing to provide any further information requested by the [Authority]. The [Authority] is a limited form of review and can only consider new information in exceptional circumstances. The applicant was given an opportunity to discuss his fears on return to Sri Lanka at his TPV interview. I am not satisfied that any circumstances exist that warrant the [Authority] getting new information. 10 The following passages from the Authority's reasons are also relevant. The appellant submits that they show how the Authority's determination not to consider the new claims was material to its ultimate decision: I note the applicant's concerns about ongoing arrests and disappearances in Sri Lanka and I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils, and the reports from Freedom From Torture and International Truth and Justice Project are amongst those that detail claimed abuses. However, overall the reports of harm relate to people with LTTE connections or who are otherwise Tamil separatist activists and DFAT assess that the monitoring and harassment of Tamils has decreased under the Sirisena government. I am not satisfied that there is a real chance the applicant would experience harm on return to Sri Lanka for reason of being a young Tamil man from a former LTTE controlled area or his role driving for the LTTE during the war. I note the applicant sustained a shrapnel injury during the war. There is no indication that the applicant has any residual scarring from this incident and he has not advanced any claims to fear harm on this basis. Country information does not indicate that body scars alone are likely to attract the attention of the authorities. While body scars may result in questions about the origin of the scars, considering I have found the applicant has no other profile of concern, I am not satisfied that this would result in a real chance of harm to the applicant. … There is no indication on the evidence before me that the applicant's status as a failed asylum seeker would bring him to adverse attention on return to Sri Lanka. I accept that there are reports of mistreatment of returned asylum seekers who have an actual or imputed profile of LTTE links, but I do not accept the applicant has such a profile or would be perceived as such. I am not satisfied that there is a real chance the applicant would face any harm as a returning failed Tamil asylum seeker. (Emphasis added.)
Application to the Federal Circuit Court 11 The appellant applied for judicial review of the Authority's decision in the Federal Circuit Court. He relied upon the following four grounds of review, each of which challenged the Authority's decision not to consider his new claims or to seek more information about them: (1) The Authority fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information. PARTICULARS (a) The Authority did not consider all the material and information in the Applicant's submission dated and received by the Authority on 14 March 2017 including the claims and the supporting information that: (i) the Applicant undertook self-defence training with the LTTE in 2005. (ii) the Applicant's sister was a LTTE cadre from 1998-2009. (2) The Authority fell into jurisdictional error in that it did not give procedural fairness to the Applicant. PARTICULARS (a) The Applicant refers to and repeats the Particulars to Ground l of this application. (b) The Authority did not seek to get new information from the Applicant whether at interview or otherwise about the claims and the supporting information that: (i) the Applicant undertook self-defence training with the LTTE in 2005. (ii) the Applicant's sister was a LTTE cadre from 1998-2009. (3) The Authority fell into jurisdictional error in that it erred in interpreting or applying the law. PARTICULARS (a) The Authority ended in interpreting or applying section 473DD of the Migration Act 1958 when it did not consider all the material and information in the Applicant's submission dated and received by the Authority on 14 March 2017 including the claims and the supporting information referred to in the particulars to Ground 1 of this application. (b) The Authority erred in interpreting or applying section 473DC of the Migration Act 1958 when it did not seek to get new information from the Applicant whether at interview or otherwise about the claims and the supporting information that: (i) the Applicant undertook self-defence training with the LTTE in 2005. (ii) the Applicant's sister was a LTTE cadre from 1998-2009. (4) The Authority fell into jurisdictional error in that it was unreasonable. PARTICULARS (a) The Applicant refers to and repeats the Particulars to the other Grounds herein. (Cross-references omitted.) 12 The primary judge first considered grounds three and four. 13 His Honour held that the Authority did not misapply s 473DD, or act unreasonably, in determining not to consider the new claims. The Authority was permitted to have regard to the credibility of the new claims when deciding whether the "exceptional circumstances" requirement was satisfied (citing DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22] (McKerracher, Barker and Banks-Smith JJ)), and that is what it did. 14 The primary judge also held that the Authority did not misapply s 473DC, or act unreasonably, in determining not to seek more information about the new claims. There was nothing else that the Authority could have expected to learn beyond what the appellant had already told it in his submission. There was no obviously missing fact that could easily have been ascertained (citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)). In the circumstances, the Authority was under no obligation to seek more information. 15 As to grounds one and two, the primary judge held that the Authority did not fail to take into account a material consideration, or deny the appellant procedural fairness, by refusing to consider the new claims or to seek more information about them. That was because the effect of ss 473DC and 473DD was that "the information was not able to be placed before the [Authority]". 16 Having concluded that none of the appellant's grounds were made out, the primary judge dismissed his application.
Appeal to the Federal Court 17 At the hearing of this appeal, the appellant was granted leave to rely upon the following amended grounds of appeal, which are substantially identical to those relied upon before the primary judge: (1) The Federal Circuit Court at first instance erred in not finding that the [Authority] fell into jurisdictional error in not considering relevant considerations, including claims, integers of claims or material questions of fact or information. PARTICULARS (a) The Authority did not consider all the material and information in the [appellant]'s submission dated and received by the Authority on 14 March 2017 including the claims and the supporting information that: (i) the [appellant] undertook self-defence training with the LTTE in 2005. (ii) the [appellant]'s sister was a LTTE cadre from 1998 - 2009. (2) The Authority fell into jurisdictional error in that it did not give procedural fairness to the [appellant]. PARTICULARS (a) The [appellant] refers to and repeats the Particulars to Ground 1 of this application. (b) The Authority did not seek to get new information from the [appellant] whether at interview or otherwise about the claims and the supporting information that (i) the [appellant] undertook self-defence training with the LTTE in 2005. (ii) the [appellant]'s sister was a LTTE cadre from 1998 - 2009. (3) The Authority fell into jurisdictional error in that it erred in interpreting or applying the law. PARTICULARS (a) The Authority erred in interpreting or applying section 473DD of the Migration Act 1958 when it did not consider all the material and information in the [appellant]'s submission dated and received by the Authority on 14 March 2017 including the claims and the supporting information referred to in the particulars to Ground 1 of this application. (b) The Authority erred in interpreting or applying section 473DC of the Migration Act 1958 when it did not seek to get new information from the [appellant] whether at interview or otherwise about the claims and the supporting information that: (i) the [appellant] undertook self-defence training with the LTTE in 2005. (ii) the [appellant]'s sister was a LTTE cadre from 1998 - 2009. (4) The Authority fell into jurisdictional error in that it was unreasonable. PARTICULARS (a) The [appellant] refers to and repeats the Particulars to the other Grounds herein. (Cross-references omitted.)
Grounds three and four 18 Grounds three and four contain two central contentions. The first is that the Authority misapplied s 473DD or acted unreasonably by refusing to consider the new claims. The second is that the Authority misapplied s 473DC or acted unreasonably by refusing to seek further information about them.
Refusal to consider the new claims 19 The particular error that the appellant submits the Authority made when refusing to consider the new claims was failing to find that there were "exceptional circumstances" within the meaning of s 473DD(a). 20 The appellant submits that s 473DD as a whole is directed to the threshold question of whether the Authority should "think about" new information, not to the subsequent question of whether the Authority "should accept [that information] as truthful or reliable". With this in mind, he submits that the phrase "exceptional circumstances" in s 473DD(a) takes a broad meaning and does not pose a particularly high bar to considering new information (citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 229 [30] (Gageler, Keane and Nettle JJ)). 21 The appellant submits that in certain cases the Authority will have no choice but to find there are exceptional circumstances. He says that this flows from the Authority's task of determining de novo whether a person meets the criteria for a protection visa, and from the limits of reasonableness. He submits further that the limits of the Authority's powers should be determined by reference to the Act's general scheme for protection visa applications (citing ss 5H, 5J, 36(2)(a), 36(2)(aa), 54, 55 and 56 of the Act, but conceding that these provisions must give way to the more specific requirements of Part 7AA). 22 The appellant also relies upon Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45 (Mason J) ("[i]t would be a strange result indeed to hold that the minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant"), submitting: … I accept that Part 7AA has set up a limited form of review. It is not a simple straightforward entitlement to review on the merits on all [bases], but nevertheless, bearing in mind that its core task is to determine whether somebody is a person to whom Australia owes protection obligations because of just a real chance, which may not be very high, that the person may suffer gravely, then, in my submission, the importance of that task and the importance of having regard to recent information, if it might be important and have a direct bearing on the result, must lead to the way in which the Authority construes exceptional circumstances. 23 As to the particular circumstances of this case, the appellant submits that his new claims were "manifestly exceptional", because they asserted a much closer connection with the LTTE than his previous claims, and, for this reason, would necessarily have affected the Authority's assessment of the risk he would be harmed if returned to Sri Lanka. He submits that the nature of the claims meant that the Authority, acting reasonably, was required to find there were exceptional circumstances under s 473DD(a). 24 Finally, the appellant acknowledges that the Authority was entitled to have regard to the credibility of the new claims when determining whether there were exceptional circumstances that justified their consideration. He submits, however, that the Authority's concerns about credibility in this case were insufficient. He says that the Authority merely expressed some doubts, without finding that the new claims were so lacking in credibility that they could never be accepted. As to why he did not put the new claims to the delegate, he says it was unreasonable for the Authority to exclude the possibility that a person from "a country where there is a documented history of torture and oppression, may be afraid to speak to authorities in [a] foreign country". 25 The Minister submits that the Authority's doubts about the credibility of the new claims were a rational basis for it to determine that there were no exceptional circumstances. He points out that those doubts were based on: (i) the lateness of the new claims; (ii) the fact that they represented a reversal of the appellant's position on whether he had undergone LTTE training; and (iii) the weakness of the appellant's explanation for that change of position. As to the last matter, the Authority found that the appellant's explanation - that he had feared disclosing a close association with the LTTE - was inconsistent with his willingness on previous occasions to disclose that he had received a salary from that organisation and transported its weapons and fighters. 26 In my view, the appellant has not demonstrated that the Authority misinterpreted s 473DD(a) or applied it in a way that was illogical or unreasonable. 27 The Authority was entitled to consider the credibility of the new claims in determining whether there were exceptional circumstances. See DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22] (McKerracher, Barker and Banks-Smith JJ). It did so, and found that the claims lacked credibility. It stated its reasons for that conclusion. One was that the appellant's explanation for changing his evidence about whether he underwent LTTE training - which he did after the delegate identified it as a weakness in his case - did not make sense. That finding is unchallenged. 28 I do not accept the appellant's contention that the new claims had to be so incredible that they could never possibly be accepted before s 473DD(a) would bar their consideration. As the Full Court said in DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22] (McKerracher, Barker and Banks-Smith JJ): "the Authority may, even if it accepts a contention to be arguable, test it so as to consider for itself whether it is satisfied as to the truth of the new information. Any suggestion to the contrary would be inconsistent with the decision in Plaintiff M174/2016 and the purposely broad range of considerations relevant to the establishment of exceptional circumstances" (emphasis added). 29 For those reasons, I would respectfully adopt what the primary judge said at [31]: "the decision-maker had regard to the nature of the actual evidence, its relevance to the determination to be made, and the circumstances in which it was sought to be provided (having also noted the circumstances that cast doubt on the credibility of that new evidence). It is difficult to see that in all of the circumstances of the case it was legally unreasonable for the [Authority] to have concluded that there were not 'exceptional circumstances that would justify the receipt of this new information'".
Refusal to seek further information 30 The appellant submits that the Authority, acting reasonably, ought under s 473DC to have sought more information about the new claims, which "raised spectacular possibilities of changed danger". 31 He submits that the new claims were "new matters, not considered by the delegate, and the Authority needed to get new information, especially at an interview, in order to assess them". He says that in this regard, "the situation was analogous to that considered by the Full Court in DPI17 v Minister for Home Affairs [(2019) 269 FCR 134 (DPI17)]". He also referred to Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 (CRY16); and DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 (DGZ16). 32 The Minister points out that the Authority expressly considered in its reasons whether to seek further information about the new claims ("I am not satisfied that any circumstances exist that warrant … getting new information"). 33 He submits that the Authority decided not to seek further information because the appellant had already put his case, in both his interview and his written submission, and had set out "not only the new information he wanted to rely upon [but also] explanations as to why that information was not earlier raised". 34 He submits further that "if in these circumstances it was incumbent upon the Authority effectively to invite the appellant to an interview to give further explanation that he did not think himself to include in his statement, then that would lead to a situation where the Authority would be constantly inviting appellants to an interview. But the statutory scheme provides clearly that [it] would only be in unusual cases where such a power would be exercised". Finally, the Minister submits that this case "is not a case like DPI17 or CRY16", which were concerned with "very peculiar circumstances warranting the intervention of the court concerning the acquisition of new information". 35 In my view, the primary judge was correct to find that the Authority was not under any obligation in the circumstances of this case to seek more information from the appellant. 36 The appellant put his case about why the new claims should be accepted in his written submission to the Authority. He did not contend in this court that there was information obviously missing from his submission about which the Authority should have enquired. Compare Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123 at 1129 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). The Authority was simply not convinced by what it received. Asking for further information in those circumstances would have been to offer the appellant a general opportunity to put his case a second time, or to improve on what he had already said. None of the cases to which the appellant referred would suggest that the Authority was under any obligation to do that. 37 In CRY16 and DPI17, the Full Court held that the Authority had acted unreasonably in failing to consider exercising its powers under s 473DC. Both cases involved the Authority making different findings to the delegate based on the same material, without considering whether to seek more information first. See also, more recently, ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [24]-[25] (Kiefel CJ, Bell, Gageler and Keane JJ), [69] (Nettle J), [87] (Gordon J), [112] (Edelman J). That feature is sufficient to distinguish this case, where there is no contention that the Authority's approach differed materially from the delegate's, and where the Authority expressly considered whether to seek more information before it made its decision. 38 DGZ16 takes the appellant no further. In that case, the Full Court rejected a claim that the Authority should have sought further information. While accepting that "there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)" (at 569 [70] (Reeves, Robertson and Rangiah JJ)), the Full Court relevantly held that "the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond" (at 569 [72]). 39 It follows that grounds three and four are not made out.
Grounds one and two 40 Ground one contends that the Authority failed to take into account a relevant consideration because it did not consider the new claims. But, for the reasons I have given, those claims could not be considered by force of s 473DD. It follows that this ground must fail. 41 Ground two contends that the Authority denied the appellant procedural fairness because it did not consider the new claims or seek further information about them. As counsel for the appellant conceded, general considerations of procedural fairness must give way to the specific regime in Part 7AA of the Act. That regime includes ss 473DC and 473DD, which precluded the Authority from considering the new claims or from being obliged to seek more information about them. This ground too must fail.
Disposition 42 The appellant has not established that the primary judge erred. The appeal will be dismissed with costs. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan.
EDQ17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
(2019) 269 FCR 134
(2018) 264 CLR 217
(1986) 162 CLR 24