FEDERAL COURT OF AUSTRALIA

EDS16 v Minister for Immigration and Border Protection [2019] FCA 1618

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal, as agreed or assessed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA) dismissing an application for judicial review of a decision of the Immigration Assessment Authority made on 9 December 2016: EDS16 v Minister for Immigration & Anor [2018] FCCA 2271. The Authority had affirmed a decision of the now-named Minister for Home Affairs to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV) under the Migration Act 1958 (Cth).

Statutory Scheme

2    The appellant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia on 8 November 2012 as an “unauthorised maritime arrival” as defined in s 5AA of the Act. As an unauthorised maritime arrival and an unlawful non-citizen, the appellant was unable to lodge a valid application for a visa while in Australia: s 46A(1) of the Act. On 28 August 2015 the Minister exercised the discretionary power under s 46A(2) of the Act to allow the appellant to lodge an application for a SHEV, which he did on 7 October 2015.

3    Section 36(2) of the Act relevantly provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

4    The word “refugee” is defined in s 5H of the Act relevantly as follows:

5H Meaning of refugee

(1)    For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

(a)    in a case where the person has a nationality-is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

…

5    In a written statement accompanying his application for the SHEV, the appellant claimed that shortly prior to his departure from Sri Lanka he had been interrogated, detained and tortured by members of the Criminal Investigation Division of the Sri Lankan military (CID). He claimed that between 2008 and 2010 he had been questioned and tortured at a place that will be referred to in these reasons as “the camp”. He claimed that he was a person suspected of having links to the Liberation Tigers of Tamil Eelam (LTTE). He claimed that, if returned to Sri Lanka, there was a real chance that he would be detained, interrogated, “disappeared” or killed by reason of his Tamil ethnicity and by reason of his being a suspected member of the LTTE and because he would return as a failed asylum seeker.

6    The appellant was interviewed by a delegate of the Minister on 13 April 2016. Following the interview, and before the delegate’s decision had been made, the appellant provided further submissions to the delegate, together with a psychologist’s report dated 21 April 2016. The psychologist expressed an opinion that the appellant was suffering from “a severe depressive condition and high levels of stress and anxiety” and that his symptoms were “indicative of post-traumatic stress syndrome”. The psychologist said that the appellant’s difficulty recalling times, dates and events with accuracy were “highly likely” to be attributable to the psychological stress and pressure the appellant continued to experience.

7    The delegate did not accept that the appellant was a person who was suspected of having any connections with the LTTE. In her decision record, the delegate made no reference to having received the psychologist’s report.

8    The delegate’s decision to refuse the visa was automatically referred to the Authority for review under s 473CA of the Act.

9    Section 473CB of the Act provides that the Secretary of the Department for Immigration must give to the Authority, inter alia, material provided by the referred applicant to the person making the decision before the decision was made and any other material in the Secretary’s possession or control considered by the Secretary to be relevant to the review.

10    Sections s 473DC and s 473DD of the Act provide:

473DC Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

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

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

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

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

Leave to raise a new argument

11    The amended notice of appeal, filed on 29 January 2019, contains a single ground of appeal, expressed as follows:

The learned primary Judge should have found that the IAA wrongly rejected new information provided by the Appellant as to his family’s links to the LTTE, and in particular that the IAA had erred in its application of section 473DD to this new information.

12    There are ten paragraphs particularising this ground. They will be traversed in the course of summarising the appellant’s arguments.

13    In the proceedings before the primary judge, the burden was on the appellant to show that the Authority’s decision was affected by jurisdictional error: s 474 of the Act; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ).

14    It is common ground that resolution of the ground of appeal would involve consideration of arguments that were not advanced before the primary judge. The appellant properly acknowledged that leave is required to introduce the arguments on this appeal. Leave to raise the arguments should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310. The principles guiding the exercise of the discretion to grant leave are stated in Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68, Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18] (Hill, O’Loughlin and Tamberlin JJ and VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). See also Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [19] – [20] (Griffiths and Perry JJ); SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [9] (Flick, Griffiths and Perry JJ); PXYJ v Minister for Home Affairs [2018] FCAFC 193 at [12] – [15] (Barker, Banks-Smith and Colvin JJ).

15    I have read the affidavit of the appellant, sworn 24 January 2019 with the exception of [8] and [9]. By that affidavit, the appellant asserts that he was represented by a solicitor on his application for judicial review. The appellant asserts he had neither met nor spoken to his solicitor prior to the hearing before the primary judge. The appellant further asserts that the solicitor had not provided advice about the grounds of review he intended to argue nor was the appellant advised of the potential to raise the argument which is now sought to be advanced.

16    As that evidence was not challenged, I will proceed on the basis that the appellant had not received advice about the argument and so had not personally made a “conscious decision” not to advance it in the proceedings below. The appellant was wholly dependent on the advice and advocacy of his solicitor: cf Lobban v Minister for Justice (2016) 244 FCR 76 at [66] – [68] and AAD16 v Minister for Immigration and Border Protection [2018] FCA 1433 at [27].

17    It is relevant to consider whether the appellant should be bound by any conscious decision of his former solicitor not to advance the argument. To that end, the Court was taken to written and oral submissions made by the appellant’s solicitor in the proceedings before the primary judge.

18    The application before the primary judge contained 15 grounds and asserted a right to add further grounds. The fourth ground of review was concerned with the Authority’s conclusion to reject certain information as new information, articulated as a failure to take into account relevant considerations.

19    The written submissions relied upon in the proceedings before the primary judge relevantly stated:

Even though the Applicant is encouraged to come forward with any new information which may be relevant, Section 473DD prohibits the consideration of any new information unless there are exceptional circumstances. Even though the High Court has indicated that a tribunal is required to consider any new information which may come to light, the IAA just ignores the High Court and ignores any new information which may come to light. What a disgrace.

In the interests of fairness, the IAA must take into account any new information which may come to light and take that information into account when making its decision. Instead of hiding behind Section 473DD, the IAA should have the intestinal fortitude to make a decision which can withstand the scrutiny of the Courts. Instead the independence and transparency of the IAA is completely compromised by Sections 473DA, 473DD and 473FA.

…

At paragraph 5 of the decision, the IAA refers to the new grounds raised by the Applicant is support of the application. The IAA however just ignores them? It would have been so easy for the IAA to have reference to the new information, yet it chooses to ignore the new information at paragraph 10 of the decision. The IAA has indicated that the information could have been provided to the Tribunal earlier yet the Applicant chose not to do so. In the interest of fairness, the IAA could have so easily found that there were exceptional circumstances, yet the IAA chose not to go down that path.

The IAA placed great emphasis on the fact that the Applicant had his opportunity to put forward the new information at an earlier point in time, yet he did not avail himself of such an opportunity. They [sic] IAA has adopted a hypocritical approach in that the IAA has acknowledged the report of the psychologist that this has impacted on his ability to recall certain items and further, his ability to make reference to such items. Yet the IAA refuses the let [sic] the actual claims into the discussion even though the new claims are highly relevant. Why did the IAA let the psychologist report in yet exclude the new claims of the applicant? Because the IAA never had any intent on dealing fairly or for that matter in a transparent and accountable manner. The IAA was right from the very start intent on refusing the visa. The IAA was biased, and a reasonable person in the street would conclude that the IAA was biased.

20    Quite apart from their undisciplined and polemic tone, these submissions disclose a concerning degree of ignorance on the solicitor’s part about the limits of the Authority’s powers. The assertion that the test was one of “fairness” is patently wrong. It could not assist the appellant for his solicitor to complain that the law as it applied to the appellant’s case was undesirable. The Authority was bound to comply with it.

21    I am satisfied that the explanation for the argument not being properly articulated in the Court below is that the solicitor misapprehended the meaning of critical provisions of the Act and that, accordingly, the appellant did not have competent representation. Having regard to the appellant’s status as a non-English speaking protection visa applicant who was wholly dependent on his solicitor in the proceedings below, the appellant should be granted leave to rely on the single ground of appeal contained in the amended notice of appeal filed on 29 January 2019.

the AUTHORITY’S DECISION

22    In its written reasons for decision, the Authority said that it had considered the material referred to it by the Secretary under s 473CB of the Act before noting that it had received two submissions from the appellant dated 26 September 2016 and 3 December 2016 (at [2]). To the extent that those submissions related to the claims the appellant had made before the delegate, the Authority considered them on the review (at [3]).

23    The submission dated 26 September 2016 annexed a further psychologist’s report dated 22 September 2016. The Authority was satisfied that the further report was an update of an earlier assessment of the appellant’s mental health and that it post-dated the delegate’s decision. It was satisfied that there were exceptional circumstances to justify consideration of the further report (at [4]).

24    The Authority identified that the submissions otherwise raised a number of new claims, which it summarised at [5] as follows:

•    In 2008, when he was detained in [the camp], he claims he was frequently taken and interrogated by the army. He claims to have been stripped naked and suffered intense psychological pressure and sexual violence.

•    In the submission, he also raises a claim that he has substantial family connections to the LTTE, and has detailed those family histories and connections.

•    He also claims that because his close relatives were a part of the Liberation Tigers of Tamil Eelam (LTTE), the government is watching his family closely. He claims that since he left Sri Lanka, the authorities have visited his parents and asked about where he is living now. He claims his parents have been saying that they do not know where he is, however the authorities have told them that they have information that he escaped to Australia. He does not know how they acquired that information.

25    Details in support of these claims were provided in a statement dated 30 September 2015.

26    The Authority concluded (and it is not disputed) that these claims constituted new information within the meaning of s 473DC of the Act. That is undoubtedly correct. The new information was to the effect that the appellant was not only a person with perceived links to the LTTE, but a person with actual links through his family members. The new information also gave content to the claimed events at the camp, particularly the circumstance that the appellant had suffered sexual abuse at the hands of the CID. That the appellant had previously disclosed to the delegate the fact that he had been detained in the camp as a displaced person and the fact that he had been interrogated and tortured there. The new information disclosed the type of harm that he had suffered and its psychological effects.

27    In his submissions to the Authority, the appellant provided an explanation as to why he had not disclosed the claims concerning his family links with the LTTE in his written application for the SHEV, or in an interview conducted upon his arrival in Australia or in other interviews concerning his application. The Authority summarised the explanations in the following terms (at [7]):

…  He claims that he feared a family connection to the LTTE and his scarring may have led the Australian government to send him back to Sri Lanka. He believed that the LTTE was a terrorist organisation and his family connection may have impacted his claims. He further claims that he saw a lot of Sinhalese people in the camp and he was afraid if they knew of his family connections he would be at risk in the detention centre. He also wanted to protect his family by preventing information from coming to the attention of the authorities back in Sri Lanka.

28    The appellant does not take issue with that summary on this appeal.

29    The Authority identified the opportunities the appellant had been given to provide truthful and complete evidence throughout the SHEV application process. It noted that the appellant had been advised at the commencement of his interview with the delegate that the personal information that he provided at the interview was protected by law and would not be made available to the authorities in Sri Lanka. The Authority said that the appellant had been reminded of the consequences that might follow if he gave false or misleading information and that he had been given the opportunity to correct any concerns in relation to his evidence. The Authority said that the appellant had elected to take an oath to the effect that the evidence that he gave at the interview would be true and complete in every respect. The Authority noted that the delegate told the appellant that if he did not provide information in relation to all of his protection claims he may not have another opportunity to make those claims. The Authority also noted that the appellant had sought to explain discrepancies in his evidence at the end of his interview with the delegate. The Authority noted that the appellant had a representative present during his interview with the delegate and that he had also provided a further written submission to the delegate after the interview was complete.

30    The Authority said that it had considered the appellant’s claims that he was fearful about disclosing the information concerning his family links with the LTTE. The Authority went on to say (at [9]):

…  In weighing his failure to raise these claims, I have also have regard to the medical evidence that the trauma he has experienced. I appreciate that an applicant for a protection visa may have concerns about the disclosure of sensitive claims, but I note that a number of steps were taken by the Department to advise the applicant of the importance of providing full and accurate claims and the protections in place in relation to his personal information. I note that he was represented throughout the application process, and has had a number of separate opportunities to provide evidence. In his post-interview submission in April 2016, he made no reference to claims relating to his family’s LTTE involvement or that his family is being closely watched by the authorities because of these connections, or that the authorities had visited his family asking about his whereabouts and told his parents they know he is in Australia. In terms of his time at the camp …, he did not claim to have been detained and interrogated frequently, or that he suffered sexual abuse during these interrogations. Looking to the totality of circumstances, I have significant concerns about the credibility of his evidence.

31    In its application of s 473DD of the Act, the Authority drew a distinction between the information that described the type of harm the appellant had experienced while detained in the camp and the remainder of the new information. I will refer to the remainder of the information as the “family links information”.

32    In respect of the family links information, the Authority said that it was not satisfied that the information was not, and could not have been, provided before the delegate’s decision was made. It was not satisfied that the family links information was credible personal information which was not previously known. Accordingly, the Authority said it was not satisfied that the conditions in s 473DD(b) were met. Considering all of the circumstances, the Authority said, it was not satisfied that there were exceptional circumstances to justify considering that information.

33    In relation to the information describing the type of harm the appellant had suffered in the camp, the Authority said that a number of additional considerations arose. The Authority said:

11.    The applicant has claimed that he has experienced difficulties talking about the torture and sexual violence he was subjected to, but has been working through these matters with his psychologist. The psychologist report concludes that the applicant’s psychological presentation is consistent with claims of past torture, including where sexual abuse is part of the torture, and this may have impacted on his ability to recall or discuss these claims. The applicant was interviewed at the arrival, screening and visa interviews by female officers. He claims he was ashamed to raise these claims.

12.    Given the advice provided in the psychological assessment, I am satisfied this information was not, and could not have been provided to the Minister before the decision was made. Further, in weighing all the circumstances, I am satisfied that there are exceptional circumstances to justify considering the new information and have assessed that information in the assessment below.

34    The Authority went on to accept the appellant’s claims to have been tortured at the camp, including his claim to have been sexually abused. Indeed, in relation to the claims that were before it, it appears that the Authority accepted that all of the events had occurred as the appellant had claimed.

35    Nonetheless, the Authority affirmed the delegate’s decision because, relevantly, it was not satisfied that the appellant was a refugee. The Authority said:

36.    The risks to Tamils in the past were closely linked to their suspected profile or connection to the LTTE. Beyond his ethnicity, religion, profile and residency in a former LTTE-controlled and conflict area, the applicant has not claimed to have had any LTTE involvement, whether directly or through his immediate family. I find that he has no such connections, and I do not accept he has any connections through his wider family.

…

49.    I find that if he returns to Sri Lanka, he would not be considered by the authorities to have an actual, imputed or suspected connection to the LTTE or any other profile that would put him at risk from the SLA, the CID or any other authorities. While I accept that there remain risks for those with such profiles, I am satisfied he would face no real chance of being harmed for reasons of any actual, imputed or suspected connection to the LTTE.

submissions

36    The appellant submits that the rejection of the new information concerning his family’s links with the LTTE was critical to the outcome of the Authority’s review. So much may be accepted.

37    The submissions concerning the application of s 473DD of the Act proceeded as follows:

(1)    the Authority erred in deciding that the family links information “could not have been” provided to the Minister’s delegate;

(2)    the Authority had failed to have regard to the “true nature of the Appellant’s psychological condition, and how it may have impacted on his willingness to reveal information as to the links provided”;

(3)    there was nothing in the Authority’s reasons to indicate that it had considered “with any care” the detailed diagnosis that had been given by the psychologist and the potential that the diagnosis might have influenced the appellant’s willingness to be forthcoming about the family links information;

(4)    the Authority failed to consider whether the post-interview submissions together with the psychological evidence constituted exceptional circumstances within the meaning of s 473DD(a) of the Act; and

(5)    the Authority’s rejection of the family links information was inconsistent with its acceptance of the appellant’s explanation for the late provision of information concerning the type of harm he had suffered while at the camp.

38    The appellant’s written submissions conclude (at [54]):

The Appellant’s apprehension, his fear, permeate throughout the Statement. There was ample for the [Authority] to consider that the late disclosure of the information was explainable due to his mental condition. The [Authority’s] dismissal of the particularised links fails to have any regard to this possibility.

DISPOSITION OF THE APPEAl

39    As the Full Court said in Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [102] (Kenny, Tracey and Griffiths JJ):

…  the requirements of paras (a) and (b) s 437DD are cumulative but may nevertheless overlap to some extent, with the effect that the IAA’s consideration of either or both of the limbs in para (b) may inform the IAA’s satisfaction under para (a) as to whether there are exceptional circumstances to justify considering the new information.

40    As a corollary, an error in the construction or application of s 473DD(b) may result in an error in the Authority’s determination as to whether “exceptional circumstances” exist. In all cases, it remains necessary that the Authority be satisfied as to the existence of all of the preconditions on the exercise of power: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [29] – [31] (Gageler, Keane and Nettle JJ); AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [13] (McKerracher, Murphy and Davies JJ); BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [26] (Gilmour J).

41    In applying s 473DD to the family links information, the Authority expressly stated (at [9]) that it had considered the psychological evidence and the trauma the appellant had suffered.

42    It is implicit in the Authority’s conclusions that it considered the psychological evidence sufficient to explain the appellant’s failure to disclose details of the sexually based torture he had suffered in the camp, but insufficient to explain his failure to disclose his family’s links to the LTTE at an earlier time. It was for that reason that the Authority concluded the information concerning the details of the sexual torture fulfilled the conditions in s 473DD but the family links information did not.

43    The conclusion that the family links information did not satisfy s 473DD was open to the Authority to make on the information before it. Two points should be made in this respect.

44    First, the Authority was not obliged to accept uncritically the appellant’s explanation that he had been too fearful to disclose the family links information to the delegate. In considering the explanation, the Authority was entitled to afford considerable weight to the circumstances that the appellant had been advised of the possible consequences of non-disclosure or incomplete disclosure, that he had been assured that the information he provided would not be divulged to the Sri Lankan authorities and that he had the benefit of representation throughout the visa application process and before the delegate.

45    Second, the psychologist’s reports were concerned with the psychological effects of the trauma the appellant had experienced. The two themes that emerge from the reports were the effect of the trauma on the appellant’s ability to recall information and the feelings of distress and shame associated with the experience of sexual torture, especially that inflicted by another male. However, the appellant had not relied upon a faulty memory or upon a sense of shame to explain why he had not disclosed the family links information at an earlier time. His explanation in relation to the family links information was a fear that the Sri Lankan authorities and others would discover it. The psychologist’s reports did not advert to that particular explanation nor did the psychologist seek to explain it in psychological terms.

46    There was no inconsistency in the approach of the Authority in its use of the psychologist’s reports. The Authority considered and accepted the psychologist’s reports to the extent that they explained omissions and inconsistencies in the evidence given by the appellant in his interview with the delegate. On the material before it, it was open to the Authority to conclude that the appellant’s explanation for not disclosing the family links information to the delegate should not be accepted and that there were no exceptional circumstances justifying the receipt of that class of the new information.

47    The Authority’s conclusion that the requirements of s 473DD were not met in relation to that class of information is not affected by jurisdictional error. It follows that the appeal should be dismissed.

Associate:

Dated:    1 October 2019