FEDERAL COURT OF AUSTRALIA

ECH17 v Minister for Immigration and Border Protection [2018] FCA 1222

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs as agreed or assessed.

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

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    The appellant is a Tamil man from Sri Lanka. He arrived in Australia on 13 October 2012 as an irregular maritime arrival. He applied for a Safe Haven Enterprise visa on 26 February 2016. On 25 November 2016, a delegate of the Minister for Immigration and Border Protection (the “Minister”), found that the appellant failed to meet the criteria for the grant of a visa pursuant to s 36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (Cth) (the “Act”). The matter was then referred to the Immigration Assessment Authority (the “Authority”), which affirmed the decision of the Minister on 21 August 2017. The appellant sought judicial review of this decision in the Federal Circuit Court of Australia. That application was dismissed on 28 February 2018. The appellant now appeals that decision to this Court.

The Ground of Appeal

2    It is unnecessary for me to set out the appellant’s history or the circumstances of his application for a visa. That is because the only ground relied upon in the appellant’s notice of appeal concerned the application of s 473DD of the Act. That ground was in these terms:

His Honour erred when he did not find that the [Immigration Assessment Authority] did not misconstrue its statutory duty by adopting an unduly narrow construction of [s 473DD] of the Migration Act.

3    Section 473DD of the Act relevantly provides:

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.

4    In essence, the appellant submitted that the Authority wrongly refused to consider “new information” relating to his application for a visa. The new information was described by the Authority at [5] and [7] of its reasons for decision as follows:

5. …

•    The applicant would continue to be politically active or wish to exercise his cultural rights as a Tamil in Sri Lanka, and would like (sic) face significant harm as a result.

•    The applicant may be inclined to be more politically active if he were able to exercise such rights without fear of significant harm in Sri Lanka.

…

7. …

•    United Nations, “Concluding observations on the fifth periodic report of Sri Lanka CAT/C/LKA/CO/5”, 27 January 2017, CISEDB50AD413.

•    Nick Cumming-Bruce, “Torture is ‘Common Practice’ in Sri Lanka, U.N. Panel Finds’, 7 December 2016.

•    The Tamil Guardian, “Mullaitivu court serves stay order banning Mullivaikkaal commemoration”, 17 May 2017.

•    The Tamil Guardian, “Mullivaikkaal remembrance organisers summoned by Sri Lankan police for questioning”, 16 May 2017.

•    The Tamil Guardian, [“Military] harasses civil society working on Mullivaikkaal commemoration efforts”, 8 May 2017.

•    Taylor Dibbert, “US must not ignore Sri Lanka’s human rights violations”, 16 May 2017.

•    Amnesty International, “Only Justice Can Heal Our Wounds”: Listening to the Demands of Families of the Disappeared in Sri Lanka”, 8 May 2017.

•    Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report: Sri Lanka”, 24 January 2017, CISEDB50AD105.

5    The Authority declined to admit this new information for the reasons it gave at [6] and [8] as follows:

6.    These claims were not made to the delegate and I consider them to be new information. The information adds to the basis on which the applicant’s claims were initially made before the delegate. The applicant has not previously claimed that he was politically active in Sri Lanka or that he wanted to be more politically active or seek to exercise undefined cultural rights on return. The representative provided no explanation as to why these claims were not provided to the delegate; rather it appears the claims have been constructed after a consideration of the judgement referred to in the submission, BBS16 v Minister for Immigration & Anor [2017] FCCA 4 (1 February 2017). At the protection visa interview, the applicant was given an opportunity to provide details of the events he claimed to be involved in. The applicant was asked specific questions about each of his claims and the delegate clearly outlined to the applicant the aspects of his claims that he had concerns about and gave him an opportunity to respond. The applicant provided his responses. The applicant was asked at the end of the protection visa interview whether he had anything else to add and whether he had put forward all his claims for protection. The applicant was represented at the protection visa interview and a post-interview submission was received from the same representative. I am satisfied the applicant had an opportunity to present his claims to the delegate. Having regard to all the circumstances, I am not satisfied that there are exceptional circumstances to justify the consideration of this new information.

…

8.     This information was not before the delegate. It is new information. The first submission contends that the first two documents should be considered as it is credible personal information that relates personally to the applicant if he is forced to return and had it been known it would have affected the consideration of the applicant’s claims. I do not agree. The first two documents are general country information and they do not relate personally to the applicant. All the documents post-date the delegate’s decision. I am satisfied the documents could not have been provided to the Minister before the delegate made her decision. Having regard to all the circumstances, I am satisfied that there are exceptional circumstances to justify the consideration of this new information.

It appears to be common ground that the last sentence mistakenly omitted the word “not” before the word “satisfied”. This was, I infer, a typographical error.

6    The primary judge decided that the Authority had correctly excluded this new information. His Honour said (at [9] below):

The Authority made reference to what occurred at the protection visa interview and the applicant being given an opportunity to provide details of the events he claimed to be involved in. The Authority referred to the applicant being asked specific questions about each of his claims and that the delegate clearly outlined to the applicant the aspects of his claims that he had concern about and gave him an opportunity to respond. The Authority noted that the applicant provided responses and that the applicant was asked at the end of the protection visa interview whether he had anything else to add or whether he had put forward all his claims for protection. The Authority noted that the applicant was represented at the protection visa interview and that a post-interview submission was received from the same representative.

Disposition

7    The appellant represented himself both before me and before the primary judge. In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111, the Full Court of this Court reviewed the authorities concerning the application of s 473DD and in particular, the earlier decision of White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221. At [8] of the reasons, McKerracher, Murphy and Davies JJ relevantly expressed the principle which is decisive of this appeal in the following terms:

In BBS16 [[2017] FCAFC 176] the Full Court agreed with White J that the phrase “exceptional circumstances” is to be given a broad meaning along the lines of circumstances that are unusual or out of the ordinary and, the Court stated, this “necessarily requires that consideration be given to all the relevant circumstances in determining whether there are ‘exceptional circumstances’”. The Full Court rejected the Minister’s contention that White J had misconstrued or misapplied the term “exceptional circumstances” in s 473DD(a), holding that the Authority’s consideration of either or both of the limbs in sub-para (b) may inform the Authority’s satisfaction under sub-para (a) as to whether there are exceptional circumstances to justify considering the new information. The Full Court held that the Authority, in that case, had made a similar error to that which was identified in BVZ16 because the Authority’s lack of satisfaction that there were exceptional circumstances to justify considering the new information was based only on the Authority’s finding that the visa applicant had not provided any explanation as to why the new information could not have been provided earlier. The Authority did not address other matters potentially relevant to whether the issue of “exceptional circumstances”, which included material which explained why the visa applicant had not previously disclosed the new information.

The foregoing passage is authority for the proposition that the Authority will err if it considers whether there are exceptional circumstances “based only” on a finding that an applicant had not provided any explanation as to why the “new information” could not have been provided earlier.

8    Earlier at [7], the Court explained the meaning of the phrase “exceptional circumstances” in the following terms:

…“exceptional circumstances” will be those that are out of the ordinary course and which justify the new information being considered even though the information was not provided to the Minister at the time of the s 65 decision.

I am bound by the decisions in AQU17 and by the decision of the Full Court in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 and also by the decision in BVZ16. The question for determination here is whether the Authority erred because its reasons show it found that there were no “exceptional circumstances” for the purpose of s 473DD(a) of the Act only because of the appellant’s failure to give a satisfactory explanation for why the new information had not been previously disclosed. For that purpose, I am mindful of the need not to construe the reasons minutely and with an eye keenly attuned for error: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.

9    In his written submissions, the Minister submitted that the Authority had not confined the application of s 473DD(a) to an examination of why the new information had not been previously disclosed. At [10] and [22], the Minister’s written submissions provided:

10.    Relevantly, the Authority noted that the appellant in his second set of submissions purported to raise two new claims that had not been advanced before the delegate, relating to the appellant’s political activity and his wish to exercise cultural rights as a Tamil in Sri Lanka: [5]; AB 241. The Authority considered the new claims to be new information: [6]; AB 241. The Authority was not satisfied that there were exceptional circumstances to justify considering the new information under s.473DD(a) having regard to the following circumstances:

(a)    The new information added to the basis on which the appellant’s claims were initially made before the delegate;

(b)    The appellant had not previously claimed that he wanted to be more politically active or seek to exercise undefined cultural rights on return to Sri Lanka;

(c)    No explanation was provided as to why the new claims were not provided to the delegate;

(d)    The claims rather appeared to have been constructed after a consideration of the Federal Circuit Court’s decision in BBS16 v Minister for Immigration & Anor [2017] FCCA 4;

(e)    The appellant was given an opportunity at the [Safe Haven Enterprise visa (“SHEV”)] interview to provide details of the events he claimed to be involved in and was asked specific questions about each of his claims and given an opportunity to respond to concerns raised;

(f)    The appellant was asked at the end of the SHEV interview whether he had anything else to add and whether he had put forward all of his claims for protection;

(g)    The appellant was represented at the SHEV interview and made a post-interview submission; and

(h)    The Authority was satisfied that the appellant had an opportunity to present his claims to the delegate.

…

22.    Addressing the first contention, it is simply incorrect to assert, as the appellant does, that the Authority at [6]; AB 241 reasoned that a failure to provide an explanation as to why his new claims (summarised by the Authority at [5]; AB 241) were not provided to the delegate was determinative of the matters set out in s.473DD. To the contrary, the Authority at [6] identified relevant circumstances (detailed above at paragraph [10]) and it expressly relied upon those matters in its conclusion that having regard to ‘all the circumstances’ it was not satisfied that exceptional circumstances existed to justify consideration of the new information. Read fairly, the Authority’s consideration of the relevant circumstances was not as limited as contended by the appellant. The Authority, accordingly, did not treat as ‘decisive’ any singular factor that might point to the Authority having misconstrued s.473DD(a): cf BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.

10    I am satisfied that the Authority did not confine itself in the way suggested in relation to the new information described at [7] of its reasons for decision, being country information. The Authority identified that this new information was not personal to the appellant as it was general country information. It therefore had regard to matters which went beyond the historical reasons for non-disclosure.

11    I have more difficulty with the new information described at [5] of the reasons for decision of the Authority. On one reading of [6], it might be thought that the Authority considered whether there existed exceptional circumstances by an examination only of the reasons for non-disclosure. In particular, the conclusion in the second-last sentence of that paragraph, that the appellant had been given an opportunity to present his claim to the Minister, ostensibly appears to reveal the same error as that identified by White J in BVZ16 and by the Full Federal Court in BBS16. It is instructive to consider the reasons given by the Authority in the latter case. These were set out at [74] of that decision as follows:

This new information was summarised by the [Immigration Assessment Authority (the “IAA”)] in [8] of its reasons for decision. In [9] the information was described by the IAA as being “new information” because it was not before the delegate. It is desirable to set out in full [9] of the IAA’s reasons for decision. A central issue is whether, on a proper and fair reading of that paragraph, the IAA reasoned that there were no exceptional circumstances simply because the first respondent had not explained his delay in providing the information, in which case the matter would be on all fours with BVZ16, or whether the IAA took into account other relevant circumstances in concluding that it was not satisfied that there were exceptional circumstances:

This information was not before the delegate at the time of the s 65 decision, and is ‘new information’. The applicant was interviewed by a delegate of the Minister on 29 September 2015. At the beginning of the protection visa interview the applicant confirmed there was nothing in his application form which was false or misleading. He also stated, ‘I do not have anything more or less to add.’ He also made an affirmation confirming all his claims for protection were true. At the end of the protection visa interview the applicant was asked if he had put forward all his claims for protection to which he responded, ‘yes’. He was also asked if there was anything else he wanted to tell the delegate, to which he responded, ‘no’. During the protection visa interview, the applicant was also put on notice in regard to raising all claims for protection to the delegate. He was given information in the protection visa interview in respect to the limitations of providing new information if his protection visa application was refused and referred to the IAA for review. On the evidence before me the applicant has not mentioned his membership of association to [Arab Front for Liberation of Ahwazi Province (“AFLA”)] or any other political organisation. The applicant has never claimed to have participated in any political protects either in Iran or Australia. The applicant’s claims of joining AFLA, playing for a [football] team in Sydney, his parents being questioned as a result of his involvement with the [football] team and participating in political rallies are all stated to have occurred prior the delegate’s decisions being made on 17 February 2016. The applicant has not provided any explanation as to why the information could not have been provided earlier. I am not satisfied there are exceptional circumstances to justify considering the new information provided by the applicant.

At [111] of the decision of Full Federal Court, their Honours applied the principle to that passage as follows:

Fairly read (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259), we consider that the IAA’s conclusion that it was not satisfied that there were exceptional circumstances to justify considering this new information was based on the IAA’s finding that the first respondent had not provided any explanation as to why the information could not have been provided earlier. All the matters which are set out earlier in [9] (and also in [8]) provide the foundation for that conclusion. Thus the IAA described the numerous opportunities which the first respondent had earlier in the process to provide the information, his knowledge about the limitations of providing new information and the fact that he had not previously raised any of the new information notwithstanding that it related to events which occurred prior to the delegate’s decision on 17 February 2016. In addition, it is notable that the IAA made no reference at all to the material which explained why the first respondent had not previously disclosed his affiliation with AFLA, notwithstanding that this was a relevant matter to be taken into account in assessing whether there were exceptional circumstances for the purposes of s 473DD.

12    In my view, arguably the same course of reasoning applies here. However, the reference in [6] of the reasons given by the Authority to the claim being constructed after a consideration of the judgment given at first instance in BBS16 puts this matter into a different class of case.

13    The sentence shows that the Authority did not confine itself only to the reasons as to why the appellant had failed to make earlier disclosure. Rather, it addressed an additional matter going to the probative quality of the new claim. It follows that the history of non-disclosure of the new information cannot be seen to be decisive in the sense that it was in BVZ16. The inquiry undertaken by the Authority here was broader than that. The contention that it had approached s 473DD(a) too narrowly is accordingly rejected.

14    I should add that the use of the incantation at the start of the last sentence of [6], namely, “having regard to all the circumstances” would not have otherwise saved the decision below from curial intervention. Such a generalised statement is not a sufficient explanation for how a particular decision has been reached. I am otherwise not satisfied that the failure to expressly advert to the sub-para (b) matters in s 473DD is indicative of legal error. The tests in s 473DD are cumulative so that if the Authority is not satisfied that “exceptional circumstances” exist, it is not obliged to go on and expressly consider sub-para (b). Having said that, as AQU17 makes clear at [14], in a given case, the sub-para (b) factors may weigh upon an application of sub-para (a) of s 473DD.

15     For these reasons, the appeal must be dismissed with costs as agreed or as assessed.

Associate:

Dated:    7 September 2018