GOS18 v Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-06-21|Before: Jagot J

Leave to file the proposed amended notice of appeal dated 21 April 2021 be granted.
The appellant file and serve the amended notice of appeal within 7 days.
The appellant be granted leave to raise ground 1A in the proposed amended notice of appeal.
The appellant be refused leave to raise grounds 1B and 1C in the proposed amended notice of appeal.
The appeal be allowed.
Order 1 of the orders of the Federal Circuit Court of Australia made on 29 September 2020 (order 1) be set aside.
In lieu of order 1, it be ordered that the decision of the Immigration Assessment Authority dated 16 November 2018 affirming the decision under review be set aside.
The matter be remitted to the Immigration Assessment Authority for determination in accordance with law.
The first respondent pay 30% of the appellant's costs of and in connection with the appeal, as agreed or taxed.
Any party wishing to vary order 9 may file and serve a written submission not exceeding two pages identifying the costs order they propose and reasons in support within 14 days.
If any party files and serves a submission in accordance with order 10, the other party may file and serve a written submission in reply not exceeding two pages within a further seven days thereafter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background 4 The appellant is a Sri Lankan citizen who arrived in Australia on 6 July 2013 as an unauthorised maritime arrival. 5 In 2014 the appellant formed a relationship with her now husband, and they were married in a cultural ceremony later that year. The appellant's husband had arrived in Australia in November 2011 and on 20 November 2012 he applied for a TPV. 6 On 5 March 2015 the appellant and her husband's son was born. 7 On 29 April 2016 the appellant's husband was granted a TPV. On the same day, their son was also granted a TPV by operation of r 2.08(1) of the Migration Regulations 1994 (Cth), which provides that: (1) If: (a) a non-citizen applies for a visa; and (b) after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen; then: (c) the child is taken to have applied for a visa of the same class at the time he or she was born; and (d) the child's application is taken to be combined with the non-citizen's application. 8 On 15 July 2016 the appellant was invited to apply for either a TPV or a Safe Haven Enterprise (Class XE) visa. The appellant applied for a TPV on 5 December 2016 and included her son as a secondary applicant. As that application was made after the appellant's husband was granted his TPV, the appellant could not be granted a TPV on the basis that she satisfied the requirements in s 36(2)(b) or (c) of the Act by operation of s 91WB of the Act, which provides that: (1) This section applies to a non-citizen in Australia (the family applicant): (a) who applies for a protection visa; and (b) who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa. (2) Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa. 9 To the extent relevant, s 36(2) of the Act provides that: … (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or (b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa of the same class as that applied for by the applicant; or (c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant. 10 In her application for a TPV the appellant referred to her husband and son, including the fact that each of them held a TPV. Her accompanying statutory declaration said: In summary, I fear harm, including sexual violence, torture and murder at the hands of the [Criminal Investigation Department (CID)] and Sinhalese Army on the basis of my ethnicity and my association with the [Liberation Tigers of Tamil Eelam (LTTE)]. I further fear harm in other areas of Sri Lanka - including abduction, sexual violence, torture and murder at the hands of the CID or Sinhalese Army by virtue of my ethnicity and association with the LTTE. I have personally been threatened and pursued by my feared persecutors. I cannot rely on the protection of the Sri Lankan state and can not safely relocate anywhere else in Sri Lanka. 11 The appellant also said: I have rheumatic heart disease. I have a hole in my heart and a heart valve is blocked. I have a two year old son. I ask that the decision-maker take my specific circumstances and vulnerabilities into account in an assessment of my evidence. 12 On 8 March 2018 the Department invited the appellant to a hearing before the delegate. On 22 March 2018 the appellant attended the interview. Before the delegate the appellant claimed to be in need of protection because she feared harm, including sexual violence, torture and murder from the CID of the Sri Lankan police service on account of her gender, Tamil ethnicity and her association with the LTTE. 13 On 19 July 2018 the delegate refused to grant the TPV because of the operation of s 91WB of the Act and because he was not otherwise satisfied that the appellant met the requirements in s 36(2)(a) or (aa) of the Act. 14 On 26 July 2018 the matter was referred to the IAA. Before the IAA the appellant submitted "new information" which the appellant identified as the appellant's subjectively held fear of harm if she returned to Sri Lanka given her marriage to her husband and his status as an acknowledged refugee by reason of apparent connections to the LTTE. 15 The Minister identified the "new information" as follows: (a) the appellant and her husband did not talk much about their respective claims for protection; (b) the appellant's understanding that her husband has a fear of returning to Sri Lanka because he did some work with the LTTE, but the appellant was unsure about the nature of that work; (c) the appellant's knowledge that her husband was detained by the Sri Lankan army in a rehabilitation camp for around two years; (d) the appellant's husband had told her the Sri Lankan army had been to his house and was still looking for him in Sri Lanka; (e) the appellant's husband had told her that he had been fired from a job after it was found out he was detained; and (f) once a person had been in a rehabilitation camp, the Sri Lankan authorities will have that person's name on a list and will do regular checks, and as the wife and mother of her husband's child, the appellant was placed at risk as well, such that the appellant had "a fear about this". 16 This difference in characterisation of the "new information" is not material to my resolution of the appeal. 17 The IAA refused to consider this "new information", however it might be characterised. The IAA concluded that the appellant was not a refugee within the meaning of s 5H(1) and did not meet the requirements of s 36(2)(a) of the Act. On 16 November 2018, the IAA affirmed the delegate's decision not to grant the appellant the TPV. 18 The appellant applied to the Federal Circuit Court for review of the IAA's decision. The Federal Circuit Court dismissed the application with costs.

Leave to raise new grounds 19 Proposed appeal ground 1A was raised before the Court below but abandoned. Proposed appeal grounds 1B and 1C are new. 20 The appellant contended that it is in the interests of justice for the appellant to be granted leave to advance the new grounds of appeal because: (a) the new grounds involve short legal propositions that emerge from a settled factual record, and a grant of leave would not prejudice any party, (b) the new grounds are meritorious, and the prejudice to the appellant in not allowing leave in such circumstances is potentially very grave, and (c) although tending against a grant of leave are considerations in relation to the finality of administrative decisions and the efficient use of the publicly funded court system, these are outweighed by the considerations favouring a grant of leave. The appellant accepted that there was no satisfactory explanation for not having prosecuted ground 1A below (that ground having been raised and abandoned), and otherwise said it should be inferred that the appellant's lawyers had not thought of grounds 1B and 1C. 21 The appellant referred to SZUYG v Minister for Immigration and Border Protection [2019] FCA 2040 where Logan J said at [40]: I find it impossible to conceive of a circumstance, in the exercise of the judicial power of the Commonwealth in this type of case, where it would ever be in the interests of justice to refuse leave to amend to an appellant to raise a meritorious issue, providing that entailed no prejudice to the Minister. Such prejudice could but rarely if ever lie in the lateness with which a pure point of law was sought to be raised but it most certainly would usually exist if the point sought to be raised required an evidentiary foundation which was not led in the original juridical review proceeding and could have been challenged on the evidence in that proceeding by the Minister. 22 The appellant referred also to EAT17 v Minister for Home Affairs [2021] FCA 68 at [7]-[18], where McKerracher J said at [18]: I respectfully share his Honour's interpretation of the authorities [in SZUYG at [40]]. It is not the case that merit can never, on its own, provide a sufficient basis for a grant of leave to amend. Having regard to the interests of justice clearly calls for a balancing of the right of an appellant to seek proper review of a decision, with the protection of the appellate nature of the Court's jurisdiction in these cases. However, in circumstances where no cogent prejudice can be identified by the Minister, it is not in the interests of justice to allow jurisdictional error to go unidentified, potentially forming the basis for the detention and removal from Australia of the appellant, particularly when the factual basis of his claims (subject to a relocation issue) had been accepted. The interests of justice are best served by the review of administrative decisions on meritorious grounds such that jurisdictional errors do not go unchecked and future decisions are made according to law. 23 The Minister opposed the grant of leave to raise the three new grounds of appeal on the basis that no adequate explanation had been provided explaining why the grounds were not raised before the Court below. Further, raising the new grounds now effectively denies the Minister a right of appeal, referring to Han v Minister for Home Affairs [2019] FCA 331 where Bromwich J said at [10]: Appeals, even appeals by way of rehearing such as this appeal, are not to be relegated to the role of only providing an opportunity to conduct a second trial upon a different basis, the first trial having failed. Longstanding and much-cited authority of the High Court makes this abundantly clear, supported by related considerations raised by numerous cases in the Full Court of this Court… 24 The Minister also referred to BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [23] where the Full Court said: …it is generally undesirable to grant leave to raise new grounds on appeal because it makes this Court a de facto court of first instance and renders the proceeding before the primary judge "little more than a preliminary skirmish". 25 There is no inconsistency between these authorities. As a matter of principle, it is undesirable to permit new grounds to be raised on appeal. Equally, if jurisdictional error is apparent on a ground raised for the first time in the appeal, it would generally be contrary to the interests of justice to refuse leave to raise the new ground if the Minister cannot identify any specific prejudice as a result. The prejudice of being denied the effective opportunity of a further appeal as of right exists, but does not outweigh the prejudice to the appellant if leave is denied and the new grounds (or any one of them) otherwise should succeed. As a result, I propose to resolve the merits of the new grounds and decide the issue of leave on that basis.

Ground 1A 26 Section 473DD provides that for the purposes of making a decision in relation to a fast track reviewable decision, the IAA must not consider any new information unless satisfied that: (a) "there are exceptional circumstances to justify considering the new information" and the new information (b)(i) "was not, and could not have been, provided to the Minister before the Minister made the decision", and (b)(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". 27 The appellant contends that it is apparent from the IAA's reasons at [8] that it did not consider s 473DD(b)(ii) of the Act. In particular, the IAA did not assess whether the new information was "credible personal information". This means information capable of being believed: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [55], [62], [75], [81]; CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [43]. The IAA could not reject consideration of the new information merely on the basis that there were not exceptional circumstances justifying consideration of the new information. As explained in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 384 ALR 196 at [11]: Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. 28 Further, the appellant submits that had the IAA applied the correct test it is difficult to envisage that the new information would not have satisfied the required criteria as the appellant was in fact married to her husband, her husband had in fact been granted a TPV, and for the appellant to fear returning to Sri Lanka in these circumstances is unsurprising. 29 The Minister contends that, if consideration is given to the whole of the IAA's reasons in [7] and [8] of its decision, it is apparent that the IAA correctly considered s 473DD of the Act. 30 The IAA said this at [6]-[9] of its reasons: 6. The submission contains new information, in the form of a new (sur place) claim that the applicant is at risk from her husband's profile in Sri Lanka. The applicant contends that the interviewer from the Department (the delegate) did not ask her whether she had any fear about returning to Sri Lanka because of her marriage, even though he knew the applicant was married, and knew her husband had been found to be a refugee. I do not accept this reasoning. The applicant also was aware of these factors. Her husband (and child) was granted protection visas before she applied for her own protection visa. Her husband's profile (or her fears arising from his profile) did not form part of her statement or visa application. She was asked during the visa interview whether she had any further claims. She indicated she did not. She was also asked if she had anything else to add or raise. She asked, very reasonably, if she would be eligible for a TPV if her and her husband registered their marriage. She did not raise that factor as a separate claim or risk profile. I consider it was the applicant's responsibility, not the delegate's, to advance her protection claims. 7. Beyond the failure to advance these claims, she has not provided any specific detail about her husband's profile. She states generally that he has been found to be a refugee. She claims they do not really talk much about his claims, and he does not ask about hers. She said she understands he has a fear of returning to Sri Lanka because he did some work with the Liberation Tigers of Tamil Eelam (LTTE), but she was not sure what kind of work it was. She said she knows he was detained by the Sri Lankan Army in a 'rehabilitation camp' for around 2 years. He has also told her that the Army had been to his house and they are still looking for him in Sri Lanka. He told her he was fired from a job after they found out he was detained. She claims she has a fear about this because once a person has been in a rehabilitation camp, the authorities in Sri Lanka would have their name on a list and would do regular checks. As his wife and the mother of his child, she claims this would put her at risk as well. 8. The applicant claims to have entered a relationship with her husband JS in May 2014. They were married in September 2014, over four years ago. They had a child in May 2015. Her husband and child were granted protection visas in April 2016. Beyond some basic grant information, her husband's file, claims or visa information are not before me. I accept that these matters are potentially sensitive, and that they may not wish to share all aspects of their protection visa claims, however these are also the claims on which her son's protection visa status is dependent. In that context, I consider it would be reasonable for her to know the basis of her husband's protection claims. Instead, the information she has provided is general, and lacking in any real specificity that would enable an assessment of his or her risk profile. I consider it was well within her control to obtain a detailed summary of his protection claims, omitting any matters her husband did not wish to disclose, and also provide a specific assessment of how his profile was material to her claims and risk profile on return. The generality, and failure to obtain specifics, also raises concerns for me as to whether she in fact fears harm based on her husband's profile. 9. Weighing everything before me, I am not satisfied there are exceptional circumstances to justify consideration of the new information (sur place claims). 31 According to the Minister, the IAA should be understood as having reasoned that it was for the appellant to advance her protection claims. Having had the opportunity to do so before the delegate and the IAA, it was reasonable to expect that the appellant would know the basis of her husband's protection claims. However, rather than provide such information, the appellant relied instead on mere generalities. This generality and failure to provide specific information caused the IAA to consider that the "new information", about her fear of harm based on her husband's profile, was not credible personal information. 32 I am not able to understand the IAA's reasons in this way. 33 First, it is relevant that the reasoning in AUS17 as to the required approach to s 473DD of the Act is not obvious from the face of the provision. On its face, s 473DD suggests that if any one of the specified three criteria are not satisfied, the IAA must not consider the new information. 34 Second, while it is clear from the terms of [5]-[9] of its reasons that the IAA was aware of s 473DD of the Act, there is no suggestion in those paragraphs that the IAA was aware that it needed to consider s 473DD(b)(i) and (ii) before considering the issue of "exceptional circumstances" in s 473DD(a) as AUS17 requires. 35 Third, the IAA does not say in [6]-[9] of its reasons that it considers the new information is not "credible personal information" about the appellant. 36 Fourth, in discussing that information, the IAA concluded that it had concerns "as to whether she in fact fears harm based on her husband's profile". The existence of "concerns" may be accepted, but it indicates that the IAA was asking itself the wrong question. The relevant question under s 473DD was whether the new information was capable of being believed. Holding concerns about the veracity of the new information is not the same as concluding that the new information is not capable of being believed. In fact, the mere conclusion of "concerns" about the new information necessarily means that the information was capable of being believed. It necessarily followed that the IAA was bound to weigh that fact in assessing whether there were "exceptional circumstances". It is apparent the IAA did not do so. 37 Fifth, the IAA's conclusion in [9] was that it was not satisfied there were "exceptional circumstances" to justify considering the new information. Taken with the other four considerations referred to above, this reinforces the conclusion that the IAA failed to consider whether there were "exceptional circumstances" on the required basis that the new information was capable of being believed and thus was "credible personal information" as required by s 473DD(b)(ii) of the Act. 38 The Minister has not raised any issue about the materiality of ground 1A. Accordingly, I should not assume that the appellant would be precluded from relying on the new information before the IAA by reason of s 473DD(b)(i) which the IAA would have to consider on remittal. In any event, as the submissions for the appellant point out, there is a difference between new information to support an existing claim and a new claim based on existing information. It may be that the circumstances of the present matter are better described as an example of a new claim based on existing information. In that event, the IAA would be bound to consider the new claim irrespective of s 473DD. 39 For these reasons, ground 1A should succeed. I consider that, in this circumstance, it is in the interests of justice that the appellant should be granted leave to raise ground 1A in the appeal. While I accept that the Minister is the subject of some prejudice as a result, in that the Minister does not then have a right of appeal, that prejudice is insignificant compared to the prejudice the appellant would suffer is leave to raise ground 1A is refused. In this regard it is also relevant that: (a) the Minister has had the opportunity to make written and oral submissions about ground 1A, (b) while there is no right of appeal, the Minister may seek special leave to appeal to the High Court, and (c) the prejudice to the Minister in respect of costs can be ameliorated by not making any order disturbing the costs order below.

Ground 1B 40 The point for the appellant in respect of ground 1B is that the incontestable facts included that: (a) the appellant and her husband were married or in the equivalent to a marital relationship, and (b) the appellant's husband had in fact been granted a TPV on the basis of his connections to the LTTE. In these circumstances, the appellant submits that she had no reason to lie about the fact that she and her husband do not talk much about her husband's claims. The appellant contends that the fact that the IAA considered it "reasonable for her to know the basis of her husband's protection claims" does not make it logical for the IAA to reject the appellant's evidence that she and her husband did not talk much about their claims. 41 I am unable to accept these submissions. As the Minister put it: The IAA was alive to the possibility that the Appellant and her husband may not wish to share all details of their respective claims for protection with each other. Nonetheless, it was also the case that the Appellant apparently considered her husband's risk profile affected her. Consideration of the nature of the relationship between the Appellant and her husband, the relevance of their respective claims for protection to their child and the absence of evidence as to an inability to obtain relevant information from her husband were matters which provided a logical basis to conclude that the Appellant could provide a sufficiently summarised outline of her husband's claims for protection which resulted in the TPV. There is nothing unreasonable, illogical etc. in that conclusion. 42 For these reasons, ground 1B must be rejected. Leave to raise ground 1B should be refused.

Ground 1C 43 Section 473DC(1) of the Act empowers the IAA to get any documents or information that were not before the Minister when the Minister made the decision and which the IAA considers may be relevant. 44 The appellant submits that, as the power in s 473DC is to be exercised reasonably (Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]), and it was obvious that the details of the appellant's husband's claims may be important to the resolution of the appellant's claims, there was no intelligible justification for the IAA not getting the file of the appellant's husband from the Department or considering getting that file. The appellant also submits that the IAA failed to consider the new claim the appellant had made based on the existing information. 45 I do not accept that the IAA acted unreasonably or without intelligible justification in not considering to get or not getting the file of the appellant's husband from the Department. In dealing with ground 1B above, I rejected the appellant's submission that it was illogical for the IAA to have reasoned that the appellant could have provided more information about the basis upon which her husband had been granted his TPV. In those circumstances, it cannot be said that the IAA's position, that it was for the appellant to provide the necessary information to support her claims, was lacking an intelligible justification. Given this, it is not to the point that the IAA could readily have obtained the file of the appellant's husband (if that is the case). Nor need further consideration be given to the Minister's submissions about privacy issues. 46 The other aspect of ground 1C does not appear to have been identified in the proposed amended notice of appeal, but was the subject of written and oral submissions by both parties. As put for the appellant, this other aspect of ground 1C appeared to rely on the fact that the IAA did not get or consider getting the file of the appellant's husband from the Department. The ground must be rejected. Even if the appellant had made a new claim for complementary protection based on existing information, that does not make the conduct of the IAA in not getting or considering getting the file of the appellant's husband unreasonable or illogical. 47 For these reasons, ground 1C must be rejected. Leave to raise ground 1C should be refused.

Ground 2 48 In ground 2(a) (which was raised before the Court below) the appellant contends that the IAA made illogical findings about or failed to give proper consideration to her claim that the CID had visited her mother in 2015. The appellant abandoned the other aspects of ground 2. 49 At [41] the IAA rejected the appellant's contention that the CID visited her mother in 2015, in part on the basis that this contention did not form part of the appellant's visa interview. The appellant's point is that she raised this in her statutory declaration of 5 December 2016 and the terms of the subsequent visa interview included a statement to her that the delegate was not going to "go through every sentence you have written" and did not ask her about this aspect of her statutory declaration. 50 I do not accept that the IAA's reasoning in this regard involved jurisdictional error. The IAA was right that this did not form part of the appellant's visa interview. The delegate did not lead the appellant to believe that it accepted her statutory declaration in the interview. The appellant has not given evidence to this effect. The delegate asked the appellant why it was not safe for her to return to Sri Lanka. In her reply the appellant did not mention the CID visiting her mother, despite referring to her fear of the CID and what it might do to her if she was required to return to Sri Lanka (including rape). It was reasonably open to the IAA not to accept that the CID visited the appellant's mother in 2015. It was equally reasonably open to the IAA not to accept that the appellant was at risk of harm if she returned to Sri Lanka. The submission for the appellant that the IAA did not take into account the material before it (which seems to be another new ground of appeal) is unsustainable given that the IAA accepted that the appellant claimed to fear harm "related to her specific profile as a Tamil woman with LTTE connections, and the ongoing risks for Tamils (and Tamil women) in these areas": [41] of the IAA's reasons. The IAA was not bound to accept those claims. 51 For these reasons, ground 2(a) of the appeal must be rejected.

Conclusion 52 As a result, the appellant should be given leave to raise ground 1A in the proposed amended notice of appeal. The appeal should be allowed on the basis of that ground. The costs order below should not be disturbed and, in my view, the costs order in favour of the appellant in the appeal should be discounted to reflect the appellant's limited success on a single ground. Without having heard the parties, I would order the first respondent to pay 30% of the appellant's costs of the appeal as agreed or taxed. However, an opportunity will be given to the parties to make further submissions in this regard. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jagot.

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