FEDERAL COURT OF AUSTRALIA

BJH17 v Minister for Immigration and Border Protection [2018] FCA 891

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LOGAN J:

1    The appellants are each citizens of Sri Lanka. They comprise, respectively, the first appellant, his wife, the second appellant, and then their four daughters who are the other appellants. They are members then of a family unit. Of that family unit, it was the first appellant who came to Australia by boat on 14 November 2012. The nature of his arrival was such that he is what is termed “an unauthorised maritime arrival”.

2    After his arrival, the Minister for Immigration and Border Protection (Minister) came to exercise his discretion under s 46A of the Migration Act 1958 (Cth), so as to allow the first appellant to make a valid application for a particular visa. Thereafter, the first appellant applied for that class of visa known as a Safe Haven Enterprise Class XE visa. That application was received by the Minister’s department on 23 June 2016. The other appellants, namely the first appellant’s wife and their daughters, were included in that visa application as members of the family unit. Their claim for that visa was, as set out in the application, derivative in the sense that their claim to the visa depended upon satisfaction by the Minister or his delegates, or some review authority in their place if there be such, that entitlement to the visa sought existed.

3    The first appellant claimed to fear harm at the hands of authorities in Sri Lanka and also paramilitary groups on the basis of his Tamil ethnicity, his sister’s involvement in politics, his imputed support of the Liberation Tigers of Tamil Eelam (LTTE), a data breach within the Minister’s department which relevantly involved him, his membership of the Tamil diaspora, and also, if returned to Sri Lanka, his status and related asserted consequences of being a failed asylum seeker who had left Sri Lanka illegally under the laws of that country.

4    On 31 January 2017, a delegate of the Minister decided not to grant to the first appellant or the other members of this family the visa sought. That decision was of a kind in respect of which referral to the Immigration Assessment Authority (Authority) could and did occur. On 17 March 2017, the Authority decided to affirm the Minister’s delegate’s decision.

5    Thereafter, the appellants sought the judicial review of the Authority’s decision by the Federal Circuit Court. On 28 November 2017, for reasons for judgment delivered ex tempore, that court dismissed, with costs, the appellants’ judicial review application. The appellants appeared in person on the hearing of that application. It is also evident that the authorship of the judicial review application was not claimed by a legal practitioner but rather by the appellants themselves. The grounds of review before that court reflect such authorship.

6    The appellants have now appealed to this Court against that order of dismissal. In this Court, the appellants have had the benefit of representation by counsel. The result of that has been a value judgment made by counsel, as is the particular and essential responsibility of counsel, in respect of the merits of the grounds pleaded by the appellants in the notice of appeal. Those grounds have not been addressed in the written submissions filed on behalf of the appellants and authored by counsel; rather separate grounds of challenge are evident in those written submissions.

7    The appellants’ written submissions were not accompanied by a related draft amended notice of appeal and related notice of an application to seek the amendment of the existing grounds of appeal today. The absence of such a draft amended notice and notice of application is not a practice to be encouraged. Nonetheless, the amended grounds are tolerably clear from the appellants’ written submissions and the Minister had, in advance of today’s hearing, an opportunity, which was taken up, to address the substantive merits of the issues which were raised.

8    In O’Brien v Komesaroff (1982) 150 CLR 310 at 319, Mason J, as his Honour then was, with whom Murphy, Aickin, Wilson and Brennan JJ agreed, observed that in some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided. Those observations were later cited by Gibbs CJ and Wilson, Brennan and Dawson JJ with approval in Coulton v Holcombe (1986) 162 CLR 1 at [7] – [8] in the course of addressing circumstances in which the High Court would permit to be raised for the first time a point not taken below.

9    Those principles likewise inform whether, in this Court, in the exercise of an intermediate appellate jurisdiction, leave should be granted to an appellant to raise for the first time issues not taken in the judicial review application before the Federal Circuit Court.

10    As they came to be pressed, there were two grounds raised by the appellants. One appears at para 12 in the appellant’s written submissions under the heading “Ground 1”:

12.    His Honour dealt with the issue of cumulative consideration without proper engagement with the claims. It is submitted that His Honour’s reasons lack sufficient intellectual engagement with this issue. His Honour found that the IAA had given cumulative consideration: BHJ17 & Ors v Minister for Immigration and Border Protection [2017] FCCA 2932 at [47]; [51].

11    The other appears, nominally in response to a notice of contention filed by the Minister but, substantively not responsive and instead raising a separate ground, namely that set out in paras 28 and 29 of the appellants’ written submissions:

28.    The Appellants submit that the IAA erred under s 473DD in not considering the information and has erred in the interpretation of ‘exceptional circumstances under s 473DD of the Act. The Authority committed jurisdictional error.

29.    The Appellants submit as per Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102] that the IAA adopted in ‘inappropriately narrow understanding’ of the phrase ‘exceptional circumstances’.

12    There was a third issue raised under the heading “Ground two” in the appellants’ written submissions relating to an asserted inadequacy by the Authority in dealing with a claimed fear of sexual harassment and intimidation on the part of the third and fourth appellants. This ground of challenge was not pressed by Mr Kumar, having regard to the addressing of the subject expressly by the Authority at para 50 in the Authority’s reasons. The basis for that forensic value judgment by counsel is readily apparent.

13    In the circumstances of this particular case, it seemed to me that the interests of justice required that the appellants be granted leave to raise the points to which I have referred and that they be deemed to be amended grounds of appeal.

14    It is convenient first to address the alleged error in relation to the way in which the Authority decided whether to receive new information. The construction of s 473DD of the Act has recently been the subject of consideration by the High Court in Plaintiff M174/2016 v The Minister for Immigration and Border Protection (2018) HCA 16 (M174). It has also earlier been the subject of consideration by the Full Court of this Court in some cases. In the circumstances of this particular case, it is sufficient to refer to the observations made in the High Court.

15    Section 473DD imposes, as the High Court observed at [28], restrictions on when the Authority can consider new information. The Authority’s ability to “get” new information is governed by s 473DC which, as observed at [23] by the High Court, is “entirely facultative”. In this instance, the Authority did embark upon deciding whether or not to “get” new information.

16    Section 473DD provides:

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 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.

17    In respect of that section, Gageler, Keane and Nettle JJ observed in M174 the following:

29.    The precondition set out in s 473DD(a) must always be met before the Authority can consider any new information. Whatever the source of new information, the Authority needs always to be satisfied that there are “exceptional circumstances” to justify considering it.

30.    Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

31.    Cumulatively upon the precondition set out in s 473DD(a) that the Authority must be satisfied that there are exceptional circumstances to justify considering new information, s 473DD(b) sets out a further precondition that must also be met before the Authority can consider new information that is given to it, or proposed to be given to it, by the referred applicant. In respect of new information within that category, the Authority must be satisfied of one or other of the circumstances set out in s 473DD(b)(i) and (ii).

32.    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(i) is that the new information that is given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. No explication of that circumstance is required in the present case.

33.    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term “personal information” takes its defined meaning within the Act of “information or an opinion about an identified individual, or an individual who is reasonably identifiable”. Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously “known” might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to “extend the types of ‘new information’ that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s asylum claims by the Minister”. The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.

34.    Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

[Footnotes omitted]

18    In her separate reasons for judgment, Gordon J made the following observations in respect of s 473DD at [88]:

Section 473DD in Pt 7AA provides an exception to the prohibition on the Authority considering new information. The Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Where the new information is given or proposed to be given to the Authority by the referred applicant, s 473DD(b) imposes, relevantly, a further requirement that the new information was not, and could not have been, provided to the Minister before the Minister made the decision to refuse to grant the protection visa. Section 473DE provides the mechanism to ensure that the referred applicant has an opportunity to address new information that has been, or is to be, considered by the Authority under s 473DD where that new information would be the reason, or part of the reason, for affirming the fast track reviewable decision.

[Footnotes omitted]

19    It is a feature of the breadth of “exceptional circumstances” as employed in s 473DD(a) that, permissibly, the Authority may advert to topics which, if it ever became necessary, would also be necessary to consider in addressing s 473DD(b). If, however, the Authority were not satisfied that the requirements of s 473DD(a) was met, there would, as a matter of necessary construction of s 473DD, be no need for the Authority to address separately s 473DD(b).

20    In this instance, the Authority’s consideration of s 473DD(a) is materially to be found in para 8 of the Authority’s reasons:

8.    The submission also seeks to introduce new information in the form of a statement from Applicant 2 which details events after Applicant 1 departed Sri Lanka. The representative submits the IAA consider this information under s473DD as it is credible personal information that was not previously known and, had it been known, may have affected the consideration of Applicant 1’s claims. She also advanced that there are exceptional circumstances to justify considering the new information because it demonstrates the extent of the ongoing interest of the authorities, which when considered cumulatively with the other factors, suggest that Applicant 1 and his family will face significant threats to their personal security if returned. I am satisfied that the information contained in the statement of Applicant 2 is credible personal information, however I am not satisfied that the information was not previously known or had it been known, it may have affected the consideration of Applicant 1’s claims. In her statement Applicant 2 relates the same events already advanced by Applicant 1, albeit in a personalised form and in greater detail. In assessing the protection visa claims the delegate had regard to Applicant 1’s account of the visits by the authorities after his departure. The statement from Applicant 2 also advised that she attended a Liberation Tigers of Tamil Eelam (LTTE) Memorial Day in Australia and she referred to the data breach incident and expressed her fear that the Sri Lankan authorities know she is in Australia and she has sought protection. Applicant 2 did not advance her own claims for protection in the SHEV application; at Question 87 of the application form, “Are you making your own claims for protection?” she responded No. These events pre-date the delegate’s decision and there is no information before me to explain why this information was not provided to the Minister before the decision was made on 31 January 2017. I note that Applicants 1 and 2 had the benefit of legal representation in completing their SHEV applications. The applicants have not satisfied me that the new information was not, and could not have been, provided to the Minister before the decision was made, or that it was credible personal information that was not previously know, and had it been known, may have affected the consideration of the applicants’ claims. I am not satisfied that there are exceptional circumstances that justify the IAA taking into account the statement from Applicant 2 and I have not had regard to it.

21    It is the information which the Authority declined to receive and the reasons for that that form the focus of this particular ground of appeal.

22    It may be accepted that, if the Authority had confined its consideration of whether or not to receive the information concerned just to whether it might earlier have been obtained, that this would evince an overly narrow conception of the true meaning of “exceptional circumstances” as explained by the High Court in M174.

23    That, in my view, is not the case in this instance. In particular, in relation to each of the items of information concerned, the Authority has gone to the extent of asking itself whether or not that information may have affected the consideration of the appellants’ claims. The Authority has reached a view that it may not. The Authority’s reasons, in my view, do not evince a narrow conception of “exceptional circumstances” of the kind which in this Court in the past has been regarded as giving rise to jurisdictional error: CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 and Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176.

24    There is then, in my view, no merit in relation to the first amended ground of appeal termed “Ground 3” in the appellants’ outline.

25    The other ground focuses upon the adequacy of the discharge of the judicial function by the learned primary judge in the exercise of that court’s original jurisdiction. The grounds of review concerned appear to be those set out in para 45 of his Honour’s reasons for judgment:

Consideration of the grounds in the originating application

45.    The grounds in the originating application are as follows:

1.    IAA did not consider all the claims of the Applicant cumulatively.

Particulars

IAA failed to discern that the Applicant with his gaol term and afterwards will be perceived as an LITE

IAA failed to find a Convention nexus namely Applicant will be imputed with L TTE profile

2.    IAA made a procedural error:

Particulars

IAA did not exclude the daughters who had married and did not form the family composition at the decision.

3.    IAA made a jurisdictional error:

Particulars

IAA did not consider the Applicant's participation in the ex-patriate Tamil diaspora against the Sri Lankan government.

There is evidence that Tamils participating in ex-patriate Tamil activities will lead to persecution in Sri Lanka.

IAA did not give any rebutting evidence.

4.    IAA did not apply the well-founded fear test.

Particulars

IAA did not consider the claims of the Applicant cumulatively.

26    As an initial observation, whether this point is maintainable at all does seem to me to be moot in that there was an amendment made to the judicial review application with the amended grounds being set out in para 52 of his Honour’s reasons for judgment:

Consideration of the grounds in the amended application

52.    The grounds of the amended application are as follows:

Ground 1

The IAA making of a finding and drawing of an inference in the absence of evidence or the IAA must make a finding on the basis of evidence.

Particulars

Because the media article was not initially interpreted into English, the Article was not properly understood. As a result, the IAA misquoted the Article and refused to admit the English Translation which would have shown that the Article expressed the support of Tamil separatism, as a pro-LTTE person and anti-government person contrary to what the IAA found in paragraph 32.

The IAA minimized the importance of the Article in Tamil with photographs. Because no-one within the DIBP translated the Tamil Article and showed the IAA has had no basis to conclude “he has not been outspoken in support of Tamil separatism or against the government”.

Ground 2

The IAA failed to take into account the relevant information

Particulars

The particulars are the DFAT articles. The Applicant was denied natural justice. Refusal of the IAA to admit the English translation of the medial article

Ground 3

The IAA erred in finding in paragraph 32 that the applicant did not engage in anti-government activities (paragraph 32) when the medial article was translated showed opposite.

I need my protection visa interview CDS to listen to and I also need to closely read the full evidence cited as footnotes in the IAA’s decision which will enable me to provide particulars of all my grounds in my submission to the court when the court orders me to do so.

I am seeking a barrister’s opinion as to whether the IAA complied with the law in respect of all my grounds of review.

27    However that this may be, the learned primary judge faced all of the difficulties inherent in dealing with grounds of review pleaded by a person without legal training. As to Ground 1, his Honour’s reasons for judgment are set out in para 47:

47.    Ground 1 in substance, reflects a disagreement with the adverse findings by the Authority. The adverse findings were not trivial or insignificant matters. The adverse findings were open for the reasons given by the Authority. The adverse findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by ground 1.

28    His Honour has endeavoured, as the paragraph may explain, to address the substance of the reasons of the pleaded ground. In so doing, it is true that his Honour has not in terms addressed the statement in the chapeau as to not considering all the claims of the applicant “cumulatively”.

29    His Honour has addressed Ground 4 at para 51 of his reasons for judgment:

51.    In relation to ground 4, the Authority correctly identified the relevant law. Further, the Authority’s reasons refer expressly to considering the claims cumulatively. No jurisdictional error is made out by ground 4 in the originating application.

There his Honour does expressly address the subject of whether or not there was error in a failure to address claims cumulatively. His Honour found that no such error existed because the Authority’s reasons referred expressly to considering the claims cumulatively. When one reads Grounds 1 and 4 together, insofar as Ground 1 seeks to raise a question about an alleged failure to address claims cumulatively, it raises no different issue, in my view, to Ground 4.

30    An examination of the Authority’s reasons bears out the statement made succinctly by the learned primary judge in para 51 of his Honour’s reasons for judgment. That is because the Authority stated expressly, in para 35 of the Authority’s reasons, the following:

35.    Considering the above individually and accumulated I do not accept Applicant 1 is of interest to the authorities on the basis of being Tamil, being perceived as a supporter of the LTTE and anti-government or because he is a member of the particular social group of failed asylum seekers who are returning from a western country after leaving Sri Lanka illegally. I do not accept that his fear of harm from the authorities on the basis of these claims is well-founded and I am satisfied there is not a real chance he will be harmed by the authorities in the foreseeable future in Sri Lanka.

31    It is patent from this passage in the Authority’s reasons that the Authority is not just alive to the need to consider claims cumulatively but has done so. There is no basis for questioning what is said on the face of that paragraph. It is undoubtedly the case that the reasons for judgment of the learned primary judge are compressed insofar as they address the subject of the alleged failure by the Authority to consider claims cumulatively. They are though accurate in their characterisation of the Authority’s reasons and that characterisation was a complete answer to the point sought to be agitated.

32    In BKL15 v Minister for Immigration and Border Protection (2016) FCA 602, Flick J helpfully collected authorities bearing on the need for reasons in the exercise of judicial power. That subject was also addressed earlier this year by Griffiths J in COZ16 v Minister for Immigration and Border Protection (2018) FCA 46 (COZ16), as Burley J noted in BEA15 v Minister for Immigration and Border Protection (2018) FCA 639 at [15]. As did Burley J in that case, I adopt the summary offered by Griffiths J in COZ16.

33    Taking the law to be as that stated, the position is that the learned primary judge did, on a fair reading of his Honour’s reasons, which necessarily incorporates both paras 47 and 51, address the point if indeed in light of amendment that point remained. Further, the way in which at para 51 his Honour addressed the point was not inaccurate and a complete answer to the asserted jurisdictional error.

34    One might perhaps have expected, with respect, reference by the learned primary judge to the Full Court’s reasons for judgment in DDK16 v Minister for Immigration and Border Protection (2017) FCA 188 in relation to the obligation to consider claims cumulatively: see especially [34] and [35]. That though, is a counsel of perfection and the absence of such reference does not detract from the learned primary judge’s dealing with the point expressly in a way which was not inaccurate and which completely answered the point against the appellants.

35    For completeness, I should mention that the Minister chose to file a notice of contention in respect of the upholding of the orders made. The notice of contention does not, with respect, provide an alternative basis for upholding the judgment below which is the role of a notice of contention; rather it seeks to quibble with a particular statement made by the learned primary judge as to the extent of the obligations of the Authority to observe procedural fairness. It is sufficient for present purposes to note that the nature and extent of that obligation was described in COA16 v Minister for Immigration and Border Protection [2018] FCA 475 at [37] and [38] in a passage with which I respectfully agree:

37.    His Honour did not identify the source of any obligation of procedural fairness that required the Authority to afford an applicant, in the circumstances, any opportunity to provide new information or put submissions. There is nothing in Pt 7AA that prevents an applicant for a visa putting submissions or providing whatever he or she wishes to the Authority for it to consider as new information. However, the material before me does not suggest that, in the circumstances, Pt 7AA imposed on the Authority any obligation to afford an applicant any opportunity to provide new information or put submissions to it.

38.    To the extent that the statement by his Honour formed part of his reasons, as opposed to being an unnecessary observation, it was wrong in the circumstances, for the reasons I have given. The Authority had no obligation to provide the appellant with an opportunity to provide new information or put submissions, albeit that he exercised his freedom to provide new material, in the form of the two letters and the translation, to the Authority. It considered those letters and found that it was not able to take them into account as “new information” within the meaning of s 473DD, for the reasons that I have set out above, and those reasons appear to me to have been both open to it and correct.

36    It is to be remembered in relation to the Authority that, within Pt 7AA of the Act, there is said to be an exhaustive statement of the Authority’s procedural fairness obligations: see s 473DA. It is unnecessary in this case to do other than record that to the extent that in this case, the Authority may have exceeded its obligation. It did not, by so doing, commit jurisdictional error.

37    For these reasons then, the appeal must be dismissed.

Associate:

Dated:    18 June 2018

SCHEDULE OF PARTIES