Federal Court of Australia

CTP20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1401

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J

1    The appellant appeals against a judgment of the Federal Circuit Court of Australia delivered on 29 November 2019. The primary judge dismissed the appellant’s application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the Authority).

2    The Authority had affirmed the decision of a delegate of the first respondent (the Minister) to refuse to grant the appellant a Safe Haven Enterprise Visa (SHEV).

3    The grounds of the notice of appeal are that:

(1)    The primary judge erred in finding that the approach adopted by the Authority was to consider whether new information was such that it was not only credible, but also whether it could have affected the consideration of the applicant's claims.

(2)    The primary judge erred in failing to find that the decision of the Authority was affected by jurisdictional error on the ground that the Authority misconstrued or misapplied s 473DD of the Migration Act 1958 in deciding not to consider the applicant's statutory declaration dated 4 February 2019.

4    I will describe the background and the decisions of the Authority and the primary judge before considering the merits of the appeal.

Background

5    The appellant is a Sri Lankan citizen of Tamil ethnicity who arrived in Australia by boat on 14 November 2012. He applied for a SHEV on 22 March 2017 and attended an interview before the Minister’s delegate on 26 September 2018.

6    The appellant claimed that he fled Sri Lanka due to fear of persecution because of his Tamil ethnicity, and as a person who previously supported and worked for the Liberation Tigers of Tamil Eelam (LTTE).

7    On 6 November 2018, the delegate refused to grant the appellant a SHEV. The decision was then referred to the Authority for review.

8    On 4 February 2019, the appellant provided the Authority with a statutory declaration containing new information. He stated that in Sri Lanka he had worked with another man doing various tasks for the LTTE, and that the man had attended the same college as his wife. The appellant stated that in August 2018, his wife, who still lives in Sri Lanka, informed him that the man had been arrested and taken to the “Fourth Floor”, which is the Colombo headquarters of the Criminal Investigation Department (CID) of the Sri Lankan Police. The appellant stated that, “It is well known and reported that people who are detained there are severely tortured and sexually abused”.

9    The appellant further stated that around November or December 2018, his wife told him that the man had been released from detention, and was required to travel to Colombo every month to report to the authorities. He stated that his wife found out this information from the man’s sister, and told him that it could be found on Facebook, although the appellant was unable to find it. The appellant stated that he believes the man, “could be disappeared or subjected to further mistreatment by the authorities”. The appellant claimed that as he worked with the man doing similar tasks for the LTTE, he was concerned he would be subjected to the same treatment if he were returned to Sri Lanka.

10    The appellant stated in his statutory declaration that he forgot to mention this information during his interview with the Minister’s delegate because he, “felt very stressed before and during the interview”. The appellant said that he felt stressed because he has mental health issues, such as depression and alcohol dependency, and because he only found out about the interview around two days beforehand.

11    On 1 March 2019, the Authority decided to affirm the delegate’s decision. The Authority found that it was not permitted to consider the statutory declaration pursuant to s 473DD of the Migration Act 1958 (Cth) (the Act), giving the following reasons:

18.    I do not accept the information could not have been provided before the delegate's decision. The information about [name redacted]'s arrest and detention was known to the applicant prior to the interview. Also the applicant stated his wife told him about [name redacted]'s release in November or December. He claimed his wife gave him the information that [name redacted] had been released after his interview. However, the applicant has not suggested that he did not know about [name redacted]'s release before the decision was made.

19.    Even if stressed and with his health issues, I do not accept that he could not have provided the information to the delegate before the decision was made. Even if he had only 2 days' notice of the interview, I do not accept he could not have provided the information at interview or prior to the decision. The applicant was asked if there was anything he wanted to add or change at the outset of the interview. Further, he was reminded a number of times to provide information after the interview if he had forgotten anything. Further, it was evident at the outset of the interview that he engaged with the delegate about the application process, challenged why it was the fast track process and the requirement that he may not be able to provide new or further information at the IAA stage. I consider the applicant was well aware of the need to provide all information. I consider also it was evident that he did not take a passive role in the interview as evidenced by his questions and challenges to the application process at the outset. He presented as confident and capable of questioning the process, asking questions and presenting his case. I do not accept he did not understand the application process. Further, it is not credible that he would forget such information, particularly the claim that his friend had been taken to the Fourth Floor. Further at interview, there was a lot of discussion about his wife, including when he last spoke to her, so I find it difficult to believe that would not have prompted him to remember such a conversation with his wife. Further at the end of the interview the applicant was informed on a number of occasions that if he remembered anything else or wanted to add anything to inform the delegate and he was given her contact details. Further, it was evident he was in contact with the case manager after the interview about other issues and did not provide information to the delegate. Further, the applicant had not raised that he had a friend who also did the same LTTE work as he did in his statement or interview. I consider this, as well as the lateness of the claim leads me to doubt its genuineness. Further, it is odd that this kind of information would be shared on Facebook, and if it was, that the applicant could not find the information on Facebook himself. Further, the statutory declaration provided little information about [name redacted]'s circumstances, but rather unsourced general assertions about people disappearing or being detained. I am not satisfied there are exceptional circumstances to consider the information.

12    The appellant filed an application for review of the decision of the Authority in the Federal Circuit Court on 10 March 2019, and an amended application on 25 June 2019. The amended grounds of review were relevantly, that the Authority “misconstrued or misapplied s 473DD of the Migration Act 1958 in deciding not to consider the applicant’s statutory declaration dated 4 February 2019”.

13    The primary judge dismissed the application, finding relevantly:

[27]    At [16]–[20] inclusive of the Authority’s reasons, the Authority specifically addressed issues relating to the credibility and probative value of the applicant’s claims as set out in the 4 February 2019 statutory declaration. The Authority considered the new claim did not satisfy the s.473DD criteria for it to be considered new information, because it was not considered to be credible personal information. That finding was itself a reason for the Authority rejecting consideration of it…

[28]     Further, it was open for the Authority to have made adverse credibility findings based upon the late making of claims in circumstances where, had the claims been true, it would have been reasonably expected that such claims would have been made at a much earlier time….

[29]    The Authority was entitled to come to its own conclusion as to the truth or otherwise of the new information contained in the applicant’s 4 February 2019 statutory declaration. The Full Court confirmed that the decision-maker was entitled to do so in DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]…

[30]    The argument advanced otherwise on behalf of the applicant was that the Authority had misconstrued or misapplied s 473DD(b)(ii) of the Act. However, the approach adopted by the Authority was to consider whether the new information was such that it was not only credible, but also whether it could have affected the consideration of the applicant’s claims. It did so in a reasoned and considered manner having evaluated both why the information had not earlier been brought forward, as well as the significance placed on such information by the applicant. Those matters were considered by the Full Court of the Federal Court in DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33 at [31]–[34] inclusive, per Tracey, Murphy and Kerr JJ…

[31]    The principles applicable to the duties of a decision-maker were set out by Thawley J in DKF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1963 at [11]–[13] inclusive…

[32]    The findings of the Authority were clearly open to it.

14    His Honour concluded that no jurisdictional error had been established on the part of the Authority.

Legislation

15    The relevant provisions are ss 473DC and 473DD of the Act.

16    Section 473DC(1) of the Act provides as follows:

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.

17    Section 473DD of the Act provides as follows:

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.

18    Pursuant to s 473DC(1), the information contained in the appellant’s statutory declaration was “new information”. Under s 473DD, the Authority was forbidden from considering the statutory declaration unless it was satisfied that the preconditions in subsections (a) and (b) were met.

Consideration

19    The two grounds of review are interrelated. The first ground contends that the primary judge erred in concluding that the Authority had considered and made findings about whether the new information fell under s 473DD(b)(ii). The second ground contends that the Authority’s failure to consider whether the new information fell under s 473DD(b)(ii) leads to an inference that the Authority adopted an overly narrow view of the meaning of the phrase “exceptional circumstances” in s 473DD(a), and that this misconstruction or misapplication of para (a) amounted to jurisdictional error.

20    The appellant submits that the Authority was required to take into account the matters in para (b) when deciding whether there were “exceptional circumstances” pursuant to para (a). In particular, it is submitted that para (b)(ii) required the Authority to determine whether it accepted the truthfulness of the new information, and whether the new information may have affected consideration of the appellant’s claims. It is submitted that the Authority misconstrued or misapplied para (a) by failing to consider, and make findings on, whether the new information fell under subsection (b)(ii).

21    The Minister submits that “the requirements of s 473DD(a) and (b) are separate and there is no requirement that a judgment formed in respect of whether “exceptional circumstances” exists be undertaken having regard to the matters in s 473DD(b)”.

22    As a matter of construction, ss 473DD(a) and (b) are cumulative requirements: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [31]. Further, the two conditions in ss 473DD(b)(i) and (ii) are expressed as alternatives: Plaintiff M174/2016 at [31].

23    The Authority must be satisfied that there are “exceptional circumstances” before the Authority can consider new information. What will amount to exceptional circumstances is “inherently incapable of exhaustive statement”: Plaintiff M174/2016 at [30]. For a circumstance to be exceptional, it “need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”: R v Kelly [2000] 1 QB 198 at 208, quoted in Plaintiff M174/2016 at [30].

24    In determining whether there are exceptional circumstances under s 473DD(a), the Authority must consider “all the relevant circumstances”: BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [41]; AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [7]–[8]. That is because, “even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional”: BVZ16 at [41].

25    An assessment of all the relevant circumstances in determining whether there are exceptional circumstances may include a consideration of whether the new information is credible personal information which had not previously been known (see s 473DD(b)(ii)). Thus, whilst the requirements of paras (a) and (b) are cumulative, they may overlap, such that the Authority may be assisted by a consideration of the factors in para (b), “in deciding whether or not it is satisfied that exceptional circumstances exist”: AQU17 at [14]; BVZ16 at [9]; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [102]; Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at [51]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [91]; CVV16 v Minister for Home Affairs [2019] FCA 1890 at [25]. However, that does not mean that the matters in para (b) must be considered by the Authority in all cases when determining whether there are exceptional circumstances: AGK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 668 at [32]; AQU17 at [14]; CVV16 at [24]; CAQ17 at [91] and [122].

26    Rather, the extent to which the Authority must consider the matters in para (b) when determining whether exceptional circumstances exist pursuant to para (a) will depend on the circumstances of the particular case: AQU17 at [14]; CAQ17 at [86]. In CAQ17, Derrington and Steward JJ held at [90]:

However, seeking to ascertain what factors must be considered in reaching the state of satisfaction or non-satisfaction for the purposes of s 473DD(a) may be the wrong approach. As the overall question for the authority involves a factually idiosyncratic analysis where the facts and circumstances which might support or deny the existence of exceptional circumstances will vary from case to case, it may simply be that it is not possible to identify, as a matter of statutory construction, what are or are not matters or factors which must be considered. In the reaching of the relevant state of mind, perhaps the real question is whether the Authority has asked itself the correct question and applied the correct test, being whether there are exceptional circumstances to justify the consideration of the “new information” despite it not having been before the Minister when the initial decision was made. If the Authority has failed to consider significant matters factually relevant to the question of whether exceptional circumstances existed, it is likely that an inference arises that it either asked itself the wrong question or failed to apply the correct test. In that way it is not that the legislation mandates consideration of particular facts or types of fact, but that it requires the Authority to consider the factual matrix of the circumstances of the application before it and apply the prescribed statutory test. Those circumstances will dictate those factors which are obviously relevant factors and those which are obviously irrelevant.

27    The appellant submits that the new information “fell naturally under limb (b)(ii)”, and that as a result it “could therefore be expected” that the new information “would have been considered by the Authority in reaching its satisfaction as to “exceptional circumstances” under limb (a)”. However, the authorities discussed above establish that whether the matters in para (b) should be considered in the context of para (a) will depend on the circumstances of the particular case.

28    While the Authority did not make a finding in express terms in respect of the s 473DD(b)(ii) requirements, it is clear that the Authority considered that the credibility of the new information formed part of the relevant circumstances when determining whether exceptional circumstances existed.

29    The appellant submits that the Authority’s expression of mere doubt as to the genuineness of the information was not a finding as to its truthfulness and credibility, such that it failed to consider the matters in para (b)(ii). However, the Authority’s reasons should not be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. Further, the Authority is not required to set out reasons for its determination of the issues arising under s 473DD: CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [25]–[30]; CAQ17 at [119]. As the Authority in fact provided reasons regarding its decision under s 473DD, the Court is entitled to draw inferences from them: BLR17 v Minister for Immigration and Border Protection [2019] FCA 2167 at [63]. However, the Authority is not obliged to articulate its reasoning in any great detail: AGK17 at [41]; DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22]; Minister for Immigration and Border Protection v AUS17 [2019] FCA 1686 at [25].

30    In its reasons, the Authority referred to the fact that the appellant was fully aware of the new information prior to the interview with the delegate and the making of the decision, and was aware of the requirement to provide such information prior to the making of the delegate’s decision. It was also noted that the appellant was prompted a number of times throughout the interview with the delegate to provide any further information. The Authority considered that it was not credible that the appellant would forget such information, particularly given that there was a lot of discussion in the interview about his wife, who had told him about the new information.

31    The Authority also noted that the appellant had not raised that he had a “friend who also did the same LTTE work as he did in his statement or interview”, and stated that “this, as well as the lateness of the claim” led it to doubt the genuineness of the new information.

32    The Authority further considered that it was “odd” that this kind of information would be shared on Facebook, and if it were, that the appellant could not find it on Facebook. The Authority also referred to the fact that the appellant’s statutory declaration provided little information about the circumstances of the man who worked with him for the LTTE, but rather provided “unsourced general assertions about people disappearing or being detained”.

33    In some cases, error has been found because the Authority had not considered the truthfulness or credibility of the new information at all when assessing whether exceptional circumstances existed: BVZ16 at [35]; CQW17 at [51]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [44]. However, this is not such a case. The Authority considered all the relevant circumstances, including factors which indicated that the new information was not credible, and ultimately concluded that there were not exceptional circumstances. It is apparent from its reasons that the Authority not only considered the credibility of the new information as part of its consideration of the relevant circumstances, but decided that it was not credible. However, the Authority was not required to make such a finding: cf AQU17 at [16].

34    To the extent that the first ground also alleges that the Authority erred by failing to consider whether the new information “may have affected the consideration of the referred applicant’s claims” within s 473DD(b)(ii), the ground cannot succeed. Once the Authority rejected the credibility of the new information, it was not capable of affecting consideration of the appellant’s claims in any manner favourable for those claims.

35    Therefore, the Authority did not misconstrue or misapply s 473DD in failing to consider and make findings under para (b)(ii), and no jurisdictional error arises. The primary judge did not err in finding that the Authority’s decision was not affected by jurisdictional error.

36    The appeal is dismissed with costs.

Associate:    

Dated:    30 September 2020