Federal Court of Australia

DQS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 675

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1    On 22 August 2019, the Immigration Assessment Authority (‘IAA’) affirmed an earlier decision in which the IAA had affirmed a decision of the delegate of the first respondent to refuse to grant the appellant a Safe Haven Enterprise (subclass 790) visa. In conducting the review, the IAA considered whether it could have regard to ‘new information’ which the appellant had provided to it on 25 November 2016 and 18 August 2019.

2    In relation to the material provided on 25 November 2016, which included submissions and attached country information, the IAA:

(a)    found that parts of the material by way of submissions referred to, and made arguments in relation to, the delegate’s decision, and to that extent the material was not ‘new information’: at [6]); and

(b)    found that the submissions referred to country information that was not before the delegate and was therefore ‘new information’: at [7]).

The relevant country information is identified in footnote 1 to [7] of the IAA’s decision. In relation to this new information, the IAA found that the Appellant had not satisfied it as to the matters in s 473DD(b) of the Migration Act 1958 (Cth) (‘Act’), and that it was not satisfied that exceptional circumstances existed to justify considering the new information as required by s 473DD(a): at [8].

3    In relation to the material provided on 18 August 2019, the IAA noted that the Appellant had provided a letter and attachments, and on 21 August 2019, had provided translations of the attachments. The attachments related to the Appellant’s cousin who, according to the letter, was taken by force to join the Liberation Tigers of Tamil Eelam (‘LTTE’), and was captured at the end of the war and had disappeared. The IAA noted that none of this information was before the delegate, and therefore it was ‘new information’.

4    It is then useful to set out [8]-[10] and [12] of the IAA’s reasons:

[8]    The new information all pre-dates the delegate’s decision. I do not accept the applicant’s submissions as to being unrepresented or illiterate. I am not satisfied that he was unable to participate in the preparation of the SHEV application or the interview. I also note the SHEV application was accompanied by a submission that referred to a wide range of country information. I am not satisfied that the new information could not have been provided to the Minister before the delegate made the decision. The United Nations report and one of the media reports contain general, and not personal, information. The other media report (CX302999) refers to individuals who claim to have been interrogated and tortured on return to Sri Lanka. The report does not identify the individuals’ profiles, past history, or locations. One victim is described as having been a member of the LTTE but there is no other detail of the length or type of alleged membership, or why he was chosen for arrest and torture. The applicant does not claim to have any relationship with the individuals beyond the general profiles of Tamil and former member of the LTTE. I also note that the article is seven years old and there is more recent information before me, including information sourced from a variety of sources including non-government organisations. I am not satisfied that this media report is credible personal information that may have affected the consideration of the applicant’s claims had it been known. Having regard to all of the above, the applicant has not satisfied me as to the matters in s.473DD(b). Further, and particularly as there is more recent information before me including information provided by government and non-government sources, I am not satisfied that there are exceptional circumstances to justify considering this new information.

[9]    On 18 August 2019, the applicant, through his agent, provided a letter and attachments to the IAA. On 21 August 2019, the applicant provided translations of these attachments. The attachments relate to the applicant’s cousin who, according to the letter, was also taken by force to join the LTTE and was captured at the end of the war. The applicant states that this cousin came forward and disclosed his recruitment to the authorities and this was the last that the family saw of him. The applicant states that he believed his cousin was being detained and was not aware that he had in fact disappeared at the time of the interview. The letter states that the applicant produced these documents after the agent asked for proof that anyone that the applicant knew had come forward and suffered harm as a result. None of this information was before the delegate and I am satisfied that it is new information.

[10]    The documents do not identify the cousin’s profile with the LTTE or the reason(s) for his detention beyond stating that he had surrendered to the Sri Lankan Army (SLA) on 18 May 2009, which I note was at the immediate end of the civil conflict. The applicant asserts that the cousin was a forced LTTE recruit but there is no other evidence of the cousin’s status or involvement with the LTTE. The applicant has not claimed at any time that he was ever questioned about any family members other than his father, or that he fears harm because of any association with any family members other than his father. There is nothing in the provided documents to indicate that the cousin has been, or will be, linked to the applicant in any way. Even accepting that the applicant’s cousin was detained and disappeared at the end of the war and is still missing, the documents now provided do not support the assertion that the authorities are now detaining or otherwise harming persons who did not disclose a previous, brief and coerced involvement with the LTTE. There is other information before me which refers to the risks faced by returning asylum-seekers, including those who were, or are imputed to have been, involved with the LTTE. Having regard to all of these factors, the applicant has not satisfied me that this new information is credible personal information which, had it been known, may have affected the consideration of the applicant’s claims. I am not satisfied that there are exceptional circumstances to justify considering this new information.

[…]

[12]    Since the date of the delegate’s decision, the Australian Department of Foreign Affairs and Trade (DFAT) has published a new country information report about Sri Lanka. [Department of Foreign Affairs and Trade (DFAT), “DFAT Country Information Report – Sri Lanka”, 23 May 2018, CIS7B839411064] I have obtained this report. This report, which was prepared for the purpose of assisting decision makers considering protection claims in Australia, was published after the delegate’s decision and the delegate (and the previous IAA) relied on an earlier version of the report. Relevantly, the 2018 report contains information on the current situation for Sri Lankan Tamils who are suspected of being associated with the LTTE and returning asylum-seekers who left Sri Lanka illegally. This information and the assessments made by DFAT are more current than the information that was before the delegate. Having regard to all of the above, I am satisfied that there are exceptional circumstances to justify considering this report.

5    The IAA found that the Appellant had not satisfied it that the new information was “credible personal information which, had it been known, may have affected the consideration of the applicant’s claims” (as per s 473DD(b)(ii)), and the IAA was not satisfied that there were exceptional circumstances to justify considering this new information (as per s 473DD(a)).

6    On 24 September 2019, the Appellant applied to the Federal Circuit Court for judicial review of the IAA’s decision of 22 August 2019.

7    The application was heard on 18 June 2020 and on 21 July 2020 a primary judge of the Federal Circuit Court delivered a judgment dismissing the application (DQS19 v Minister for Immigration [2020] FCCA 1638).

8    Other relevant factual background information is set out in the reasons of the primary judge at [3]-[14] which the appellant accepts as a correct recitation of the factual background.

9    On 15 August 2020, the Appellant filed an appeal with this Court. The grounds of appeal are:

Ground 1

The primary Judge erred in not finding that the decision of the [IAA] was vitiated by jurisdictional error in that the conclusion that there were not exceptional circumstances to justify consideration of the new information referred to in its’ reasons at [9] – [10] was legally unreasonable.

Ground 2

The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the IAA misapplied s 473DD(b) of the Migration Act 1958 (Cth), erroneously requiring both sub-paragraphs of s 473DD(b) to be satisfied, alternatively failing to consider whether s 473DD(b)(i) was satisfied, thereby resulting in a misconception of what the statutory power it was exercising entailed.

Ground 3

The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the [IAA] misapplied s 473DD(a) of the Migration Act 1958 (Cth), by failing to consider whether that section was satisfied on the basis that the ‘new information’ fell within either s 473DD(b)(i) or (ii) and that combined with the timing of the receipt of the information sufficiently constituted exceptional circumstances and instead erroneously relying on its findings in respect of s 473DD(b)(ii) to conclude that exceptional circumstances do not exist.

Ground 4

The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the [IAA] misconstrued or misapplied the words ‘credible personal information’ in s 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a misconception of what the statutory power it was exercising entailed.

Ground 5

The primary Judge erred in not finding that the decision of the [IAA] was vitiated by a constructive failure to exercise jurisdiction in that the [IAA] misconstrued or misapplied the words ‘may have affected the consideration of the referred applicant’s claims’ in s 473DD(b)(ii) of the Migration Act 1958 (Cth), resulting in a misconception of what the statutory power it was exercising entailed, alternatively the conclusion was legally unreasonable.

10    The appellant no longer presses Ground 1.

DISCUSSION

11    At the outset I observe that it is the appellant who is required to establish material error to obtain relief: see Minister for Immigration and Citizenship v SZMTA (2019) 264 CLR 421 (‘SZMTA’) at [4], [46]-[47] (Bell, Gageler and Keane JJ). In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, the plurality observed that “jurisdictional error is an expression not simply of the existence of error but of the gravity of that error” (at [25]).

12    In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (19 May 2021), the majority of the High Court of Australia (Kiefel CJ, Gageler, Keane and Gleeson JJ) endorsed the approach of the High Court in SZMTA (at [2]-[4]).

13    The relevant statutory provisions are adequately described in the reasons of the primary judge and need no rehearsal here.

Grounds 2 and 3

14    In relation to Grounds 2 and 3, the first respondent accepts that the following conclusions of the primary judge are now inconsistent with the law as stated in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196 (‘AUS17’) (which was delivered subsequent to the primary judge’s decision):

(a)    that the IAA did not need to expressly refer to s 473DD(b)(i) in its reasons, as the conclusion in relation to s 473DD(a) was sufficient to prohibit the IAA from considering the new information (at [55]); and

(b)    that any purported failure by the IAA to explicitly consider s 473DD(b)(i) would not be material in any case, as the IAA’s conclusion that it was not satisfied that the requirement in s 473DD(a) was met was sufficient to prohibit the IAA from considering the new information (at [56]).

15    In AUS17, the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) held:

[11]     Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and (ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and (ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

[12]     ….[T]he Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a).

16    Whilst the above conclusions in the primary judge’s decision are now inconsistent with the law as stated in AUS17, the first respondent nonetheless submits that no jurisdictional error arises in the IAA’s decision in the present case.

17    It is convenient to address the way the primary judge looked at the issue. The primary judge accepted (at [51]) that the IAA did not make any explicit reference to s 473DD(b)(i) of the Act. However, the primary judge ultimately concluded (at [56]) that any failure to mention or refer to s 473DD(b)(i) was not material. The reason advanced by the primary judge for the error not being material (at [55]) was that s 473DD(a) and (b) were cumulative. It follows that the reasoning of the primary judge was that, since the IAA was not satisfied that the appellant could satisfy s 473DD(a), any failure to consider s 473DD(b)(i) was immaterial.

18    However, in AUS17, the High Court held that s 473DD requires the IAA to assess new information against the criteria in both ss 473DD(b)(i) and 473DD(b)(ii), and then, providing that at least one of those criteria are met, take that assessment into account in its consideration of whether there are exceptional circumstances under s 473DD(a), before concluding that it is prohibited from considering the new information.

19    It is submitted by the appellant that, in order to satisfy s 473DD(b)(i), the appellant only needed to demonstrate that the information “was not, and could not have been, provided to the Minister before the Minister made the decision”. There were no express findings by the IAA in this regard.

20    In oral submissions, counsel for the appellant referred to a number of matters that needed to be taken into account, and made reference to the context in which [9] and [10] of the IAA’s reasons were to be read, being [8] and [12] of the IAA’s reasons as set out above. Counsel referred to the fact that the new information needed to be unpacked, or separately identified, and then weighed up in the balance of a proper consideration of s 473DD(b)(i). I need not delay on this analysis, as it seems to me that the consideration of s 472DD(b)(i) is just whether the information relatively was not and could not have been relevantly provided. This analysis the IAA undertook in my view.

21    Looking at the reasons of the primary judge, the appellant contends that it was in error for the primary judge not to infer that the absence of an express reference to s 473DD(b)(i) meant that the IAA failed to consider that sub-section. I will set out this argument in more detail.

22    In the IAA’s reasons, the ‘new information’ that the appellant sought to have the IAA take into account is summarised at [9]-[10] (see above). The appellant submits that any consideration by the IAA at [9] is limited to determining that the information is ‘new information’, there being no further consideration of when the appellant obtained the information (for instance, the appellant’s contention that he was not aware that his cousin had disappeared prior to the interview and obtained documents to support that contention only thereafter) so to support a conclusion that s 473DD(b)(i) was considered.

23    The appellant then submits that, having not considered s 473DD(b)(i) expressly, or apparently having attached any weight to or engaging intellectually with the appellant’s contention that the information had only recently come to hand, other than to recognise that the information was ‘new information’, the IAA failed to undertake its task in the manner required by law as identified in AUS17.

24    The appellant accepts the burden to show that any such failure was material. The appellant contends the alleged failure may have realistically borne on the consideration of the application on review, including the determination that the IAA was not satisfied there were exceptional circumstances to justify considering the new information for the purpose of s 473DD(a). For example, part of the complaint that the IAA had in relation to the information was that there was nothing in the provided documents to indicate that the cousin has been, or will be, linked to the Appellant in any way (see [10] of the IAA’s reasons). It is argued by the appellant that, had the IAA taken into account the fact that the information had only been recently obtained by the Appellant as part of the s 473DD(b)(i) analysis, then the IAA may have been satisfied that there were exceptional circumstances justifying consideration of the information. Having reached that view, on the actual review proper, the IAA may also have resolved to exercise power pursuant to s 473DC(3) of the Act to invite the appellant to give new information about his cousin or otherwise address the IAA’s concerns. In addition it is argued that, had the IAA taken into account that the information had only recently come to hand and might therefore have satisfied s 473DD(b)(i), the IAA may have been less critical than it was in undertaking the s 473DD(a) analysis.

25    It is also submitted that, having erred in the manner it determined the s 473DD(a) question (by not considering s 473DD(b)(i)), it could not be said that the question of when the material came into the possession of the appellant was irrelevant to the IAA’s consideration of whether exceptional circumstances existed to warrant consideration of the material. It is contended by the appellant that the fact that s 473DD(b)(i) was satisfied might have been sufficient to establish exceptional circumstances for the purpose of s 473DD(a) and that, by focusing only on the probity of the information, the IAA adopted an unduly narrow view of the term “exceptional circumstances”.

26    On a fair reading of [8]-[10] and [12] of the IAA’s reasons, I do not consider the IAA only considered whether the requirements of s 473DD(b)(ii) (and not s 473DD(b)(i)) were satisfied. In this regard, I agree with the primary judge’s conclusion at [43]-[44]. The primary judge noted (at [43]-[44]) that the IAA discussed a broad range of matters that were relevant to its consideration of the matters in s 473DD (including matters that were relevant to the matters in s 473DD(b)(i)), and found the fact that the IAA referred to its non-satisfaction in relation to s 473DD(b)(ii) before referring to s 473DD(a) was not sufficient for a conclusion to be drawn that the discussion was limited only to a consideration of s 473DD(b)(ii).

27    Whilst there was no express reference to s 473DD(b)(i) in the IAA’s decision, like the primary judge (see [51]-[52] of the primary judge’s reasons), I do not infer that there was a failure to consider.

28    In the present case, the IAA’s discussion (at [9] of its reasons) of the fact the new information was provided late, and the reasons why the new information was not provided to the delegate before the decision was made, was relevant to the consideration of the factors in s 473DD(b)(i). Further, the IAA’s discussion (at [10] of its reasons) of the appellant’s failure to raise the issues at an earlier stage was also relevant to the consideration of the factors in s 473DD(b)(i). These matters support an inference that the IAA considered the factors in s 473DD(b)(i) in the present case, and so error of the kind identified in AUS17 does not arise.

29    Further, even if this was not the case, any error as alleged by the appellant was not material to the ultimate decision of the IAA.

30    In the present case, as is apparent at [10] of its reasons, the IAA specifically discussed matters that go directly to the issue of whether the new information, if it were accepted, may have affected the consideration of the appellant’s claims. In doing so, the IAA referred to the following matters:

(a)    the absence of any information in the new information as to the cousin’s profile with the LTTE, or his status or involvement with the LTTE, or the reasons for his detention beyond stating he had surrendered at the end of the civil conflict;

(b)    the fact the appellant had not claimed previously that he was questioned about any family member’s involvement with the LTTE other than his father; and

(c)    the fact there was nothing before the IAA to indicate that the cousin had been, or would be, linked to the appellant in any way.

31    The IAA further noted (at [10]) that, even accepting the appellant’s cousin was detained and had disappeared, the new information did not support the assertion that the authorities were presently detaining or otherwise harming persons who did not disclose a previous, brief and coerced involvement with the LTTE. The IAA referred to the fact that it had other information before it which referred to the risks presently faced by returning asylum seekers, including those who were or are imputed to have been involved with the LTTE. This other information included country information in the form of an updated Department of Foreign Affairs and Trade report.

32    As the first respondent points out, the IAA in its reasons later went on to consider the appellant’s claims and accepted that the appellant (and his father) had been forcibly recruited to the LTTE (at [19], [21], [30]). The IAA also accepted that the appellant had been questioned at the end of the civil conflict, had been taken to an army camp for half a day and had been subject to some ongoing harassed (at [25]-[28]). However, the IAA concluded that the appellant’s claims and history did not indicate any ongoing interest in, or suspicion of, the appellant by the Sri Lankan authorities (at [29]). Based on its review of the country information, the IAA concluded that it was not satisfied that the appellant faced more than a remote chance of coming to the adverse attention of authorities in relation to his previous LTTE involvement or for any failure to declare that involvement (at [30], [31], [33]).

33    Therefore, even if the IAA had erred in its consideration of s 473DD, that error was not material and therefore jurisdictional error does not arise. Based on the IAA’s discussion, and in particular the discussion of the relevance of the new information to the assessment of the appellant’s claims, the appellant has not discharged his burden of establishing that the new information involves a realistic possibility that the IAA could have made a different decision on his claims.

Ground 4 and 5

34    Grounds 4 and 5 relates to the contention that the IAA impermissibly engaged in the deliberative process at the stage of considering whether to admit new information. The appellant submits that the IAA engaged in an impermissibly enlarged assessment of probity or weight as part of determining whether, with reference to the requirements in s 473DD(b)(ii) of the Act:

(a)    the information was “credible personal information”; and

(b)    whether it would, as opposed to “may”, impact upon the appellant’s case before the IAA.

35    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (23 September 2020) the plurality (Mortimer and Jackson JJ) held (at [77]):

…Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii).

36    It is contended by the appellant that, by engaging in this probity or weight analysis, it meant that, practically, the IAA was not considering whether the information may have affected the IAA’s consideration of the appellant’s claims, but whether the information would have any effect on the appellant’s claim. Similarly, it is said that the IAA was also not considering whether the information was “credible”, in the sense of capable of being believed, but was instead considering whether the new information would affect the review.

37    In my view, the IAA’s findings in relation to s 473DD(b)(ii) do not give rise to jurisdictional error. This is not a case where the IAA has imposed a higher standard of satisfaction than the criteria in s 473DD(b)(ii) requires, unlike the error identified in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 which was the intellectual step of deliberating on and forming a concluded view about a referred applicant’s claims at a preliminary stage.

38    The IAA did not form a concluded view about the appellant’s claims when applying s 473DD(b)(ii), nor did it engage in any intensive or final analysis of the probative value of the new information. The IAA’s reasons do not reveal that it interpreted “credible” in s 473DD(b)(ii) as requiring anything more than “capable of being accepted… as truthful”, as the primary judge found at [58] of his reasons.

39    Further, again as found by the primary judge (at [59]), the IAA did not explicitly express concerns about the credibility of the new information and did not make any express finding that the new information was not true. Rather, the IAA noted the information was provided late in the application process and discussed the reasons given by the appellant for not raising the information earlier, as well as referring to deficiencies in the new information including the fact that the new information did not provide information as to the appellant’s cousin’s profile, status or involvement in the LTTE (see [10] of the IAA’s reasons).

40    The IAA’s finding that the information was not “credible personal information which, had it been known, may have affected the consideration of the [appellant’s] claims” does not rest on a conclusion as to credibility. The text of the IAA’s decision does not support such a conclusion. To recap, the IAA relevantly found ([10]):

…the applicant has not satisfied me that this new information is credible personal information which, had it been known, may have affected the consideration of the applicant’s claims…

41    The language used by the IAA at [10] is a direct reflection of the terms of s 473DD(b)(ii) of the Act. The IAA does not state the test incorrectly, or refer to any alternative test requiring that the new information “would” result in a different decision.

42    The matters discussed by the IAA at [9]-[10] were not only relevant to whether the new information was capable of being believed, but also to whether, had the information been known to the decision-maker, it may have affected the consideration of the appellant’s claims. In this regard, the IAA’s observations in [10] were directly relevant to the probative value of the new information in the sense of whether it may have affected consideration of the claims. It can be inferred that the IAA was saying that, without details concerning the cousin’s profile, status or involvement with the LTTE, the information was of little probative value to the assessment, having regard to the available country information, of the treatment the appellant may receive on return to Sri Lanka. In my view, there is no basis to infer that the IAA misunderstood the second part of the test in s 473DD(b)(ii).

43    As found by the primary judge, there is no basis to find that the IAA misunderstood or applied a higher threshold that was required under s 473DD(b)(ii), or otherwise misunderstood the test to be applied.

DISPOSITION

44    The appeal is dismissed with costs.

Associate:

Dated:    24 June 2021