FEDERAL COURT OF AUSTRALIA

AKU18 v Minister for Home Affairs [2019] FCA 267

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondents’ 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

BURLEY J:

1.    INTRODUCTION

1    The appellant is a citizen of Sri Lanka of Tamil ethnicity who arrived in Australia by boat as an unauthorised maritime arrival in October 2012. In December 2015, he made an application for an XE-790 Safe Haven Enterprise Visa (SHEV) claiming that he was a person to whom Australia owed protection obligations pursuant to ss 36(2)(a) or 36(2)(aa) Migration Act 1958 (Cth).

2    The application was considered and refused by a delegate of the Minister for Home Affairs (formerly Minister for Immigration and Border Protection). The decision is a “fast track reviewable decision” as defined in s 473BB of the Act. The Minister referred the delegate’s decision to the Independent Assessment Authority (IAA) for review. On 19 December 2016, the IAA affirmed the delegate’s decision (first IAA decision). The first IAA decision was quashed pursuant to consent orders made by the Federal Circuit Court of Australia (FCCA) on 9 June 2017, and the matter was then remitted to a differently constituted IAA for reconsideration.

3    The IAA issued a further decision on 10 January 2018 (IAA decision) in which it affirmed the decision of the delegate. The appellant applied to the FCCA for judicial review of the IAA decision, and on 7 June 2018 a judge of that Court made orders dismissing the application.

4    The appellant then appealed to this Court. The appeal was filed some 5 days out of time, and so leave to appeal was required. On 29 November 2018, I made orders by consent granting leave to appeal and granting the appellant leave to file an amended Notice of Appeal. There was some delay in the filing of the Notice, but ultimately, shortly before the hearing, an Amended Notice of Appeal was filed containing the following grounds (particulars excluded):

(1)    The IAA adopted an unduly narrow construction of s 437DD by confining its determination of the new information to whether or not the appellant provided an explanation in accordance with Practice Direction No. 1 and, in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s 473DD;

(2)    The IAA acted unreasonably in rejecting the appellant’s written request that the IAA exercise its discretion under s 473DC(3) and invite the appellant to comment in an interview or in writing on any finding to consider new information in exceptional circumstances;

(3)    The IAA erred when it was not satisfied, in the circumstances of the appellant’s age and health including his diabetes, high blood pressure, anxiety, kidney problems, and prior experiences of stress, a short period of custody, together with a short period of questioning, would amount to serious harm, or that the circumstances the appellant would face amounted to serious harm [52];

(4)    The IAA erred when it was not satisfied that, in the circumstances of the appellant’s age and health including his diabetes, high blood pressure, anxiety, kidney problems, and prior experiences of stress, that there is a real risk the appellant would experience significant harm on return due to his physical and mental health [64];

(5)    The IAA erred when it failed to properly consider or engage in the appellant’s claim that he, the appellant, would suffer serious harm upon return to Sri Lanka because of his vulnerability due to age, health and psychological state;

(6)    The findings as set out in (3) and (4) were unreasonable and/or irrational; and

(7)    At paragraph [8], the IAA considered s 473DD(b)(i) of the Act and was not satisfied it was met. The IAA did not however consider s 473DD(b)(ii) nor 473DD(a), which is contrary to the decision of White J in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221 at [37], which stated that the IAA was required to consider at least s 473DD(b)(ii). Accordingly the IAA committed jurisdictional error.

5    The appellant was represented on the appeal by Mr G Foster of counsel, who filed written submissions in advance of the hearing and (without objection) also relied on additional written submissions at the hearing. The Minister was represented by Mr J Kay Hoyle of counsel, who also filed written submissions in advance of the hearing.

2.    RELEVANT STATUTORY PROVISIONS

6    Grounds 1, 2 and 7 concern the several provisions within Part 7AA of the Act. Those most relevant are set out below:

473DA Exhaustive statement of natural justice hearing rule

(1)      This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)      To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

473DB Immigration Assessment Authority to review decisions on the papers

(1)      Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)      without accepting or requesting new information; and

(b)      without interviewing the referred applicant.

(2)      Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

Note:     Some decisions to refuse to grant a protection visa to fast track applicants are not reviewable by the Immigration Assessment Authority (see paragraphs (a) and (b) of the definition of fast track decision in subsection 5(1)).

Subdivision C—Additional information

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 Immigration Assessment 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 Immigration Assessment 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 Immigration Assessment Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Immigration Assessment Authority that, in relation to any new information given, or proposed to be given, to the Immigration Assessment 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.

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

    (i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

   (b)    is non-disclosable information; or

   (c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

3.    THE DECISION OF THE IAA

7    As summarised by the IAA, the appellant claimed to fear harm because he would be at risk of being harmed by the Sri Lankan authorities, including the army, the Special Task Force (STF) and the police, for imputed support of the Liberation Tigers of Tamil Eelam (LTTE) due to his ethnicity and his area of origin, his religion and involvement with the local community groups and Hindu temple, and his support for the Tamil National Alliance (TNA) in the 2012 Eastern Provincial Elections. The appellant also claimed to fear harm from members of the Tamil Makkal Viduthalai Pulikal (TMVP) and the Pillayan Group who may retaliate against him for failing to meet their extortion demands and refusing to support their election campaign in 2012.

8    The IAA summarised the detail of his claims as follows:

•    He is a male Hindu Tamil from [a] District in the Eastern Province of Sri Lanka.

•    During the civil conflict, he lived in an area that was controlled by the Sri Lanka army. Between 1983 and 1985 and 1990 and 1992, he was rounded up with other villagers by the army and members of the STF on numerous occasions. In 1984, he was abducted by the STF, beaten and interrogated about LTTE members and their activities.

•    The applicant resided in Saudi Arabia on a work visa between 1985 and 1990 and again for a second period from 1992 until 2003. Between 1990 and 1992, the applicant experienced fighting near his home. In 1991, he was arrested and interrogated by the STF during the course of the day.

•    In 1994, he returned to Sri Lanka to get married. Whenever he returned home from Saudi Arabia, the LTTE requested money from him which he paid.

•    In 2004 after the LTTE had split, [P] from the TMVP asked the applicant for money to develop their group or in the alternative to join them. He refused due to losses suffered in the tsunami in 2004.

•    From 2003, he volunteered with a number of community organisations, including a School Development Committee, Neighbourhood Watch, Rural Development Society (RDS) and as a treasurer and monitor for programs of an organisation (SOS) helping to provide school uniforms, tuition for children and meals. In 2009, he joined the People Organisation of Progress Evolution (POPE) and was responsible for collecting money for development activities. He continued working with POPE until 2011.

•    He is a practising Hindu and was a member of a Hindu temple management committee where he undertook the role of treasurer for a number of years.

•    After he started working with POPE, he came to the attention of the TMVP/Pillayan Group due to his role in collecting and distributing money. In about June 2009, he was approached by TVMP members to give them money which he refused to do. Soon after he was threatened by a member of the Pillayan Group.

•    Around November 2009, he was attacked by a person who hit him and beat him. He lost consciousness and sustained a wound to his head and an injury to his leg. He spent a number of days in hospital being treated. He believes he was attacked by a member of the TMVP as a nearby shopkeeper told him a known TMVP leader was in the area at the time. He did not attract any further attention from the TMVP/Pillayan members because he remained indoors.

•    He supported the TNA in the lead up to the 2012 Eastern Provincial Elections by organising gatherings at his home and providing dinner and refreshments to support meetings between the TNA with the Hindu temple management people.

•    In about July 2012, he was approached by three or four army officers to assist them to gain approval to build a Buddhist temple in his village. The temple proposal was not agreed to by the villagers and the army officers became angry with the applicant because they thought he had used his influence to stop the temple being built.

•    In August 2012, the TMVP asked the applicant to help them with the upcoming election for the Eastern Provincial Council in September 2012. They asked him to bring people as a protest to [his District] when the President was going to be there and to be a coordinator at the polling booths, but he refused to support them.

•    Shortly after the election, two unknown people came to the applicant’s shop and said words to the effect of, ‘It’s our party in government and we’ll see how you are going to bring up your children and find jobs for them’, in a threatening manner. He believed the people were from the TMVP and would have harmed him if he said anything back.

•    On about 26 September 2012, he departed Sri Lanka illegally and travelled by boat to Australia.

•    After he left Sri Lanka there were two separate visits to his house by people asking of his whereabouts.

•    The applicant’s representative has claimed the applicant is vulnerable due to his age, health and psychological state and would not be able to answer standard questioning by officials on his return to Sri Lanka.

•    The applicant’s representative has also claimed that the applicant would be imputed as an LTTE supporter due to his ethnicity, religious activities, community activities and support for the TNA.

9    The IAA had regard to the material given to it by the Secretary pursuant to s 473CB of the Act. The appellant sought to rely on new information and new claims that were not before the delegate, namely:

(1)    That members of the TMVP party are searching for him and questioning his daughters about him on a regular basis;

(2)    That the name of the man who hit him was called [C] and the friend who told him this was called [S]; and

(3)    He will be targeted by the Criminal Investigations Division (CID) for being a returned Hindu Tamil asylum seeker.

(I refer to these below, respectively, as the paragraph (1), (2) and (3) allegations)

10    The IAA was not satisfied that the information in the paragraph (2) allegation was credible personal information which may have affected the consideration of the appellant’s claims because, whilst the appellant was unable to provide this information to the delegate due to a memory lapse, it only consisted of given names and no other corroborating information about identity. Further, given that the information was not independently verifiable and, of itself, did not appear to add any weight to the appellant’s claims, the IAA was not satisfied that there were exceptional circumstances to justify consideration of the material (pursuant to s 473DD(a) of the Act).

11    In relation to the new claim set out in the paragraph (1) allegation, the IAA noted at [8] that the claim does not specify details such as when the questioning of his daughters occurred or under what circumstances, or when or how he became aware of these events. Nor had there been an explanation about why the information could not be given to the delegate before its decision was made. Accordingly, the IAA concluded that s 473DD(b)(i) of the Act was not met.

12    In respect of the new claim in the paragraph (3) allegation, the IAA noted at [7] that the appellant had informed the delegate that he was not making any claims in relation to the CID. The new claim had no bearing on the claims made by the appellant in his SHEV application or during his interviews with the department and the IAA considered that the appellant had given no indication as to how the claim was to be characterised, or provided any details in support of the claim. It was accordingly not satisfied that the requirements of s 473DD(b) had been met.

13    Furthermore, in relation to the new claims in both the paragraph (1) and (3) allegations, at [9], the IAA noted that the interview with the delegate took place several months before the delegate’s decision and went for more than 4 hours, the appellant was represented by a registered migration agent who lodged the SHEV application for him and attended the interview, and there was ample opportunity for him to advance such claims during or after the interview. Considering the appellant’s claims as a whole, the IAA was not satisfied that there were exceptional circumstances to justify the consideration of the material in accordance with s 473DD(a).

14    The decision of the IAA to refuse the new information reflected in the (1) and (3) allegations is the subject of grounds 1 and 7 of the appeal.

15    The IAA accepted new information about the medical condition of the appellant and also considered new information in the form of a 24 January 2017 report by the Department of Foreign Affairs and Trade pursuant to s 473DD of the Act.

16    The IAA declined a request by the appellant’s representative to be provided an opportunity to comment in an interview or in writing on new information where the IAA makes a finding that is different from the delegate’s findings and/or where the IAA makes a finding to consider new information, noting that Division 3 of Part 7AA, together with ss 473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. The refusal of the IAA to grant this request is the subject of ground 2 of the appeal.

17    The IAA proceeded to consider the claims advanced by the appellant. It summarised in detail the evidence that it was provided and referred to the record of interview between the delegate and the appellant, the written materials provided and submissions advanced on his behalf. It made various findings in relation to the conditions that the appellant may endure in the event that he arrives in Sri Lanka as a failed asylum seeker who left Sri Lanka illegally, which are the subject of grounds 3 – 6 of the appeal, which I address in more detail below. The IAA provided a summary of factual findings at [56]:

In sum, the applicant is a male Hindu Tamil from [B] District in the Eastern Province of Sri Lanka, aged 57 years, who was rounded up, questioned and on two occasions detained and mistreated by the STF during the civil conflict. He travelled between Sri Lanka and Saudi Arabia where he worked on three occasions between 1985 and 2003. When he returned to Sri Lanka from abroad he was approached by the LTTE/TMVP for money which he paid until suffered losses in the tsunami in 2004. No retaliatory action was taken against the applicant when he refused to make further payments. After his return from Saudi Arabia in 2003, he volunteered with a number of NGOs, community organisations and as the treasurer of the management committee for the local Hindu temple. He was considered a person of good standing and influence in his local area. In 2009, he was approached by members of the TMVP/Pillayan Group to give them money from POPE which he refused. No retaliatory action was taken against him at the time, but some months later he was accosted by people he could not identify and he suffered injuries to his leg. He continued to work for POPE until 2011 without apparent incident. In 2012, he was approached by army officers for support to build a Buddhist temple in his village and he referred the proposal for consideration to the Hindu temple management committee. The applicant did not experience any retaliation from the army officers when [the] proposal was ultimately voted down by the villagers and approval for building was denied by the local government officials. In the lead up to the 2012 Eastern Provincial elections, the applicant provided low-level support to members of the TNA through hosting dinners and providing refreshments for meetings. He was approached by the TMVP to join their party and represent them as a coordinator at the polling booth. No retaliatory action was taken against the applicant when he refused to participate. After the election outcome, two customers in his shop appeared aggrieved about the election outcome and spoke to him in an intimidating way. At no time following his return from Saudi Arabia in 2003 has the applicant been detained or harmed by the army, STF, police or members of paramilitary groups such as TMVP/Pillayan. On about 26 September 2012, he departed Sri Lanka illegally and travelled by boat to Australia where he sought asylum. Noting the applicant’s history and profile, and having regard to the country information about the political and security situation in Sri Lanka, including the impact of pro-Buddhist groups on Hindu communities in Sri Lanka, the reduced influence of paramilitary groups such as the TMVP and Pillayan, and the possible consequences for his illegal departure, I am not satisfied that he faces a real chance of serious harm now or in the reasonably foreseeable future.

18    The IAA concluded that the appellant does not meet the requirements of the definition of refugee, and does not meet the requirements of ss 36(2)(a) or s 36(2)(aa) of the Act.

4.    THE FCCA DECISION

19    The grounds in the application before the FCCA were as follows:

1.     The IAA adopted an unduly narrow construction of s437DD by confining its determination of the new information to whether or not the applicant provided an explanation in accordance with the Practice Direction No. 1 and in so doing, misconstrued its statutory task and constructively failed to exercise jurisdiction under s473DD.

Particulars

a.     At [8]-[9] the IAA reasoned that a failure to provide an explanation was determinative of the matters set out in s473DD. In doing so, it constructively failed to exercise jurisdiction under s473DD;

b.     In determining whether the new information as identified by the IAA could be considered by it, s473DD required the IAA to determine whether there were exceptional circumstances to justify its consideration of the new information as well as determining whether it is satisfied as to why the new information was not and could not have been provided to the Minister before the Minister made its decision, or that the new information was credible personal information which was not previously known, and had it been known, may have affected the consideration of the applicant's claims;

c.     S473DD(a) requires a consideration by the IAA of all relevant circumstances in determining whether there are exceptional circumstances that justify the consideration of the new information. The relevant circumstances include a consideration of the significance of the new information in the context of the applicant's claims and of its nature and probative value.

2.     The IAA acted unreasonably in rejecting the applicant's written request that the IAA exercise its discretion under s473DC(3) and invite the applicant to comment in an interview or in writing on any finding to consider new information in exceptional circumstances.

Particulars

a.     On 11 October 2017 the applicant sent a written request to the IAA to exercise its discretion under s473DC(3) when making a finding or findings to consider new information in exceptional circumstances;

b.     In [9] the IAA made findings that it was not satisfied that there were exceptional circumstances to justify considering that:

i.     Members of the TMVP party were searching for him in K and they were questioning his daughters about him on a regular basis; and

ii.     He will be targeted by the CID for being a returned Hindu Tamil asylum seeker.

c.     In [10] the IAA was satisfied that there were exceptional circumstances to justify considering the Summary of Psychological Assessment dated 2 February 2017 and a Summary of Treatment dated 28 June 2017 prepared by a counsellor from STARTTS and the further findings in [20] in particular that there was no information before me to indicate that the applicant's psychological state or his physical health prevented him from presenting his claims for protection and information to support those claims; and

d.     Given these findings the IAA acted unreasonably in not exercising its discretion under s473DC(3) as requested by the applicant and putting these findings to the applicant for comment.

20    In relation to ground 1, the primary judge considered that the IAA had adopted the correct approach to s 473DD of the Act and that, having regard to the reasons given, the exercise of power by the IAA under s 473DD was not legally unreasonable. No jurisdictional error was found to have been made out. The primary judge reached the same conclusion in relation to ground 2.

5.    THE APPEAL

21    Grounds 1, 2 and 7 of the appeal are the same, or fall within the scope of those grounds which were before the primary judge. They concern ss 473DC(3) and 473DD of the Act. Grounds 3 – 6 raise new grounds that concern the consideration by the IAA of the age and health of the appellant and whether he was at risk of serious or significant harm in respect of those matters upon return to Sri Lanka. Leave to advance grounds 3- 6 is required.

22    The principles for the grant of leave are well established. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. However, the Court may grant leave in respect of a point not taken below if it clearly has merit and there is no real prejudice to the respondent in permitting it to be argued. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46] – [48]. The Minister opposes the grant of leave in respect of grounds 3 – 6 on the basis that the grounds advanced are misconceived and represent, in effect, a disguised attempt at a merits review. He submits that the grounds have insufficient merit to warrant the grant of leave. Below, I consider the question of leave in conjunction with the substance of the point raised.

5.1    Grounds 1, 2 and 7

23    In ground 1, the appellant contends that the IAA adopted an unduly narrow construction of s 473DD by confining its determination of the “new information” to whether or not the appellant had provided an explanation in accordance with Practice Direction No. 1 and in so doing misconstrued its statutory task. In the particulars appended to this ground, the appellant contends first, that the IAA wrongly reasoned at [8] and [9] that a failure to provide an explanation for the new information was determinative of whether to permit the new information to be advanced. Secondly, that, in determining whether the new information could be considered, s 473DD required the IAA to determine whether there were exceptional circumstances as well as the matters in s 473DD(b)(i) and (ii). Section 473DD(a) requires a consideration of “all relevant circumstances” including consideration of the significance of the new information in the context of the claims and of its nature and probative value. The IAA is said to have failed in this regard.

24    In relation to ground 7, in oral submissions the appellant focussed attention on the paragraph (1) and (3) allegations, to which the IAA’s reasons at [8] and [9] relate. The appellant submits that the IAA erred in failing to take into account each of s 473DD(b)(i) and (ii) in the manner required by BVZ16 at [37].

25    In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 the Full Court (McKerracher, Murphy and Davies JJ) considered several recent decisions bearing upon s 473DD, including BVZ16. It summarised the effect of White J’s reasoning in that case as being that, whilst the requirements of sub-sections 473DD(a) and (b) are cumulative, they may nevertheless overlap and because sub-sections 473DD(b)(i) and (ii) involve different considerations, both considerations are potentially relevant in considering whether the circumstances are “exceptional” and meet the requirements of s 473DD(a). The Full Court said:

[13]    As a matter of construction, it is undoubtedly correct that s 473DD(a) and s 473DD(b) are cumulative requirements. Section 473DD(a) imposes the requirement that the Authority must not consider new information unless it is satisfied that there are exceptional circumstances to justify considering the new information. Section 473DD(b) imposes the 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 (s 473DD(b)(i)) or is new information that 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 (s 473DD(b)(ii)). “Exceptional circumstances” is not a defined term for the purposes of s 473DD(a) and the words are to be given their ordinary meaning. In ordinary meaning, circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: BVZ16; Plaintiff M174. In Plaintiff M174 the plurality (Gageler, Keane and Nettle JJ with whom Gordon and Edelman JJ each agreed in separate reasons) observed at [30] in relation to the requirement in s 473DD(a):

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”.

The quotation is from R v Kelly at [51], which was also cited in BVZ16 for the meaning “exceptional circumstances” in the context of s 473DD(a). There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor of its own which may be sufficient for “exceptional circumstances” to exist. In each case, whether there are exceptional circumstances must depend on the particular circumstances of the visa applicant’s case.

[14]    As the plurality in Plaintiff M174 made clear, what will amount to exceptional circumstances is inherently incapable of exhaustive statement. Each case will be different to every other case and must be treated on its merits and the matters for the Authority to take into consideration must necessarily vary from case to case. It is a misconception that the factors in s 473DD(b)(i) and (ii) of the Act must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist as s 473DD(b) does not codify what constitutes “exceptional circumstances”. Rather, s 473DD(b) sets out the further preconditions that must also be met before the Authority can consider the new information cumulatively upon the precondition set out in s 473DD(a): Plaintiff M174 at [31]. As BVZ16, BBS16 and CHF16 illustrate, in many cases consideration of the factors in ss 473DD(b)(i) and/or (ii) may assist the Authority in deciding whether or not it is satisfied that exceptional circumstances exist but whether those factors will have bearing upon that decision will depend on the particular case.

26    In its reasons the IAA states:

8.     The applicant’s new claim that he is being searched for by members of the TMVP and his daughters are being regularly questioned by them about him does not specify details such as when the questioning of his daughters has occurred or under what circumstances, or when or how he became aware of these events. The applicant has not provided any explanation about why the information could not have been given to the delegate before their decision was made. Accordingly, the applicant has not satisfied me that s.473DD(b)(i) is met.

9.     With respect to the applicant’s new claims outlined at paragraph 5 (a) and (c), I note that the applicant was assisted by a registered migration agent at the time of lodging his visa application. The same agent attended with the applicant at his visa interview and provided post-interview submissions to the delegate in support of the applicant’s claims for protection. I note that the visa interview occurred a number of months prior to the delegate’s decision and went for more than four hours. Having listened to the interview, I consider the applicant’s claims were discussed in a detailed manner with the applicant, affording multiple opportunities to raise further information, including at any point after the interview and prior to a decision being made. I consider the applicant has had adequate opportunity to present information in support of his claims. Considering the applicant’s case as a whole, including that the circumstances giving rise to the claims were in existence and within the applicant’s knowledge prior to the delegate’s decision, I am not satisfied there are exceptional circumstances to justify considering this new information.

27    It will be seen that paragraph [8] of the IAA’s decision is directed to the paragraph (1) allegation. The first sentence observes that the new information does not specify details such as when the questioning of the appellant’s daughters occurred or under what circumstances, or when or how he became aware of those events. Although it is not expressed directly in terms of consideration of s 473DD(b)(ii), that enquiry addresses its substance by being directed broadly to the probative significance of that allegation. In the second sentence, the IAA observes that there is a lack of information about why the information could not have been provided, and the third sentence makes clear that this observation is expressly directed towards information of the type required by s 473DD(b)(i).

28    Paragraph [9] of the reasons concerns each of the paragraph (1) and (3) allegations. It directs attention to the fact that the appellant was represented during his SHEV interview process and the same representative made submissions to the delegate. The IAA considered that the appellant had adequate opportunity to present information in support of his claims. It is after making these observations that the IAA concludes that no exceptional circumstances apply such that the new information should be admitted.

29    In my view, the approach taken by the IAA was in accordance with the principles set out in AQU17. Section 473DD(a) does not codify the definition of “exceptional circumstances”, although its terms may elucidate the enquiry. In the present case, the IAA broadly considered the factors set out in that provision and then adverted to the context of the conduct of the appellant before the delegate. The enquiry by the IAA was directed to consider what, if anything, took the circumstances of the appellant’s case out of the usual or ordinary course to justify consideration of the new information. In the exercise of its discretion, it formed the view that nothing did.

30    Furthermore, I do not accept the contention in ground 1 of the appeal that the IAA wrongly reasoned at [8] and [9] that a failure to provide an explanation for the new information was determinative of whether to permit the new information to be advanced. It self-evidently was not.

31    In my view, the contentions advanced in grounds 1 and 7 going to the alleged error on the part of IAA should be rejected. The learned primary judge was not wrong to reject them. Those grounds of appeal must be dismissed.

32    In ground 2, the appellant contends that the IAA acted unreasonably in rejecting his written request to exercise its discretion under s 473DC(3) to invite the appellant to comment on the finding not to consider the new information. In particulars appended to this ground, the appellant draws attention to the following facts; (a) that the appellant sent a written request to the IAA to exercise its discretion under s 473DC(3); (b) that in paragraph [9] of its reasons, the IAA declined to consider new information in the form of the paragraph (1) and (3) allegations; (c) that in paragraph [10] of its reasons, the IAA permitted new information to be adduced concerning the appellant’s health; and (d) that in paragraph [20] of its reasons, the IAA concluded that there was no information before it to indicate that the appellant’s psychological state or health prevented him from presenting his claims.

33    The essence of the case advanced by the appellant in submissions is that it was legally unreasonable for the IAA to deny him natural justice in the form of an opportunity to comment on the new information that the IAA permitted to be adduced.

34    The appellant’s submissions must be considered in the context of Part 7AA of the Act. The obligation on the IAA is to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant; s 473DB(1). By s 473DA, Division 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. It is in this context that the Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 (Reeves, Robertson and Rangiah JJ) found at [69] that consideration of the natural justice requirements of Part 7 of the Act is inapposite for cases considered under Part 7AA. As the Full Court noted at [75], there is no requirement in Pt 7AA, equivalent to s 425, which provides that the IAA must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising. Indeed, by s 473DB, the IAA must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.

35    This informs the correct approach to the determination of whether the exercise of the discretionary statutory power conferred by s 473DC(3) is unreasonable; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ).

36    In the present case, the IAA determined that the new information identified in the paragraph (1),(2) and (3) allegations should be refused for the reasons set out above in paragraphs [7]-[9] of the IAA’s reasons. The IAA applied the same reasoning to determine that medical information about the appellant should be received as new information, as well as the updated DFAT report of 24 January 2017. In paragraph [12] of its decision, the IAA notes the request by the appellant’s representative for an opportunity to comment in an interview or in writing on the new information. The IAA then referred to ss 473DA and 473DB of the Act and notes that they provide that Division 3 of Part 7AA, taken together with ss  473GA and s 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. The IAA observed that the terms of s 473DE were not applicable. After so referring to the statutory scheme, the IAA determined that the circumstances of the present application do not warrant an exercise of discretion in favour of permitting the interview that was sought. In my view, this was an intelligible explanation for the exercise of discretion adversely to the appellant. It was not unreasonable (in the sense that that term is used in the authorities; see Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; (2016) 240 FCR 158 at [62] and [64]-[65]) for the IAA to reach this conclusion. In this regard, the present situation is to be distinguished from that in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475. In that case, there was a failure on the part of the IAA to exercise discretionary power in circumstances where the IAA knew that it did not have, but the appellant was likely to have, information about his particular circumstances in terms of the impact upon him of relocation to Beirut. In the present case, the information about the appellant’s medical information was accepted as new information and received by the IAA.

37    Accordingly, the primary judge did not err in failing to find error on the part of the IAA in this respect. Ground 2 of the appeal must be dismissed.

5.2    Grounds 3, 4 and 5

38    In ground 3, the appellant contends that the IAA erred when it stated at paragraph [52] that it was not satisfied that the circumstances of his age and health, coupled with a short period of custody together with a short period of questioning, would amount to serious harm. In ground 4, the appellant contends that the IAA erred when it stated at paragraph [64] that it was not satisfied that the circumstances of his physical and mental health means that there is a real risk that the appellant would experience significant harm on his return.

39    Although not stated in the grounds of appeal, the submissions made on behalf of the appellant make plain that the basis upon which the errors identified in these grounds are said to amount to jurisdictional error is that the conclusions reached by the IAA are irrational, or not conclusions that a reasonable decision maker would make, or based on no evidence.

40    The appellant submits that the IAA ought to have been satisfied that the appellant would be likely to suffer serious harm if he is required to return to Sri Lanka. In this regard, the appellant relies in particular on the reasons given by the IAA at [40] – [52] of its decision. He first submits that the IAA accepted at [52] that he is aged 57, suffers from diabetes, high blood pressure and kidney problems and has previously experienced stress and anxiety (medical conditions). Earlier in its reasons at [41], the IAA accepted that given his previous experiences of being rounded up, detained and mistreated by the STF and subject to demands for money from the TMVP and Pillayan Groudp, he is concerned about his future treatment by the Sri Lankan authorities, including the army, STF, and others should he return. However, in determining at paragraph [41] that the security situation in Sri Lanka has improved and that there is not a real chance of harm to the appellant on return to Sri Lanka, the appellant submits that the IAA failed to take into account the medical reports in evidence and did not consider them in the context of this conclusion.

41    The appellant secondly submits that, whilst the IAA accepted at paragraph [44] that the appellant suffers the medical conditions, it erroneously derived from country information that the appellant would be able to access appropriate medical treatment or services upon his return, when in fact the country information relied upon does not address the accessibility of medical care for diabetes, anxiety, kidney problems and other conditions from which the appellant suffers.

42    The appellant thirdly submits that the IAA at paragraph [52] concludes that it is not satisfied that in the appellant’s circumstances a short period in custody together with a short period of questioning would amount to serious harm to the appellant. Although the IAA there listed the appellant’s medical conditions, the appellant submits that the IAA did not properly consider the question of whether, in light of those conditions, the appellant would suffer harm in the sense contemplated in s 5J(5)(c) of the Act having regard to the particular conditions identified in the evidence.

43    I consider that each of these submissions is based on a misconception of the reasoning of the IAA. In relation to the first, in paragraph [41] of its reasons, the IAA accepts that the appellant has previous experience of being rounded up and questioned and mistreated by the STF. It notes, however, that 2017 country information indicates that the position in Sri Lanka has improved and the previous refusals by the appellant to accede to demands for money from the TMVP/Pillayan Group were in 2004 and 2009, and resulted in no harm to him. It concludes that having regard to these matters there was not a real chance of harm to the appellant on his return to Sri Lanka on these bases. Accordingly, the medical condition of the appellant is irrelevant to the IAA’s assessment in paragraph [41]. The IAA did consider the medical conditions of the appellant in paragraph [44] of its reasons.

44    In relation to the second submission, in paragraph [44] of its reasons, the IAA accepted that the appellant has the medical conditions. It had regard to country information which indicates that health care is freely available to all people through the public health system, but facilities vary and some medicines or treatments may need to be purchased from private providers. It concludes that there is nothing in the county information and the appellant has not claimed that he would be denied or unable to access appropriate medical treatment. The choice and assessment of country information is a matter for the IAA; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [13] (Gray, Tamberlin, Lander JJ). It was not a conclusion that was unreasonable, irrational or based on no evidence.

45    In relation to the third submission, the IAA concludes at paragraph [52]:

I accept country information that the conditions of detention in Sri Lanka are poor and the applicant is aged 57 years, suffers from diabetes, high blood pressure and kidney problems and has previously experienced stress and anxiety. I note that the period of detention at a prison awaiting a Magistrate’s decision would be short and, on the information before me about the applicant’s health, I am not satisfied that in the applicant’s circumstances referred to above, a short period in custody, together with a short period of questioning would amount to serious harm. For these reasons and as he would have the opportunity to pay a fine by instalment, I am satisfied that the totality of the circumstances he would face on return would not amount to serious harm.

46    The appellant accepts that the IAA here accurately summarises his medical conditions. He contends, however, that it did not give proper consideration to those conditions in the context of the prospect of his detention upon return to Sri Lanka. I disagree. The IAA weighed its finding as to the medical condition of the appellant against the prospect that he would suffer harm within the meaning of s 5J of the Act. It noted (at paragraph [46]) recent country information that does not suggest that Tamils who have lived abroad face harm at Colombo airport or in their home villages on return simply due to their time spent out of Sri Lanka or for being a returned asylum seeker. As the appellant was not a person of interest, it did not consider that he would be targeted. It also noted (at paragraph [47]) that illegal departees may be liable for imprisonment and a fine, although penalties for such persons are almost always a fine. Those who depart without approval by boat may be considered to have committed an offence under the Immigrants and Emigrants Act 1949. They are processed and that processing may take several hours. The IAA noted that DFAT assesses that such persons are processed according to standard procedures regardless of ethnicity (at paragraph [48]). Having observed these matters, the IAA recorded that those who have been arrested can remain in custody at the CIDs airport office for up to 24 hours after arrival, and if a Magistrate is not available within this time, because it is a weekend or public holiday, may be held at a nearby prison, but in most cases those who plead guilty would be fined and free to go. Those who plead not guilty will be immediately granted bail and released on the basis of a surety. In either case, the IAA noted that the financial burden of either a fine or surety would not amount to economic hardship to the appellant. Having weighed these matters in the balance, the IAA reaches the conclusion expressed in paragraph [52], set out above.

47    The result is that the IAA balanced on the one hand its findings as to the appellant’s medical condition against the likelihood that the appellant would spend a short time in custody and the effect of such custody on the other. It concluded that such hardship as he suffered (or may suffer) would not amount to serious harm. This was a qualitative judgment of the type within the domain of the IAA and involved considering whether the appellant would suffer serious harm of the type contemplated by s 5J of the Act; Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 254 CLR 610 at [35] and [41]. In my view, it does not reflect reasoning that is unreasonable, irrational or based on an absence of evidence.

48    In ground 5, the appellant contends that the IAA erred when it failed to consider his claim that he would suffer harm upon his return to Sri Lanka given his age and health. He submits that the IAA merely parroted the 2017 DFAT report without seeking to consider the potential or likely outcome upon the appellant and his specific medical conditions were he to be returned to Sri Lanka.

49    This ground concerns an alleged failure on the part of the IAA actively to engage with the appellant’s claims that he would face serious or significant harm should he return to Sri Lanka. If a statute requires a decision-maker to consider a matter, the decision-maker must engage in an ‘active intellectual process’ directed at that claim or criteria: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 252 FCR 352 at [45], per Griffiths, White and Bromwich JJ.

50    One must be careful not to permit a ground based on a failure to consider a claim to slide into a merits review of the decision of the IAA; Carrascalao at [32]. The principle does not require the decision maker to refer in the reasons to every piece of evidence and every contention made. However, if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not consider it. That, in turn, may be relevant to whether the decision-maker engaged actively with the matter, bearing in mind that one does not read the decision below with the eye attuned to the perception of error; Carrascalao at [45].

51    Having regard to these matters, it is my view that the appellant has not demonstrated jurisdictional error. I have referred in relation to ground 4 to the particular matters to which the IAA paid regard in reaching its conclusions at paragraph [52] of its decision. It is plain that it considered the specific medical conditions of the appellant in the context of country information concerning his likely position upon return to Sri Lanka. This was not an evaluation lacking in an active engagement with the appellant’s claims.

6.    DISPOSITION

52    For the reasons set out above, I have formed the view that the appellant has failed to establish error on the part of the primary judge in respect of the matters raised in grounds 1, 2 and 7 of the appeal. I consider that the matters raised in grounds 3, 4 and 5, which were not argued before the primary judge, are not of sufficient merit to warrant the grant of leave to appeal. Accordingly, the appeal must be dismissed with costs.

Associate:

Dated:    4 March 2019