Federal Court of Australia

DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 530

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is Sri Lankan. He arrived in Australia on 4 November 2012 as an “unauthorised maritime arrival” (within the meaning given to that phrase by the Migration Act 1958 (Cth)—hereafter, the “Act”). On 14 December 2016, he made an application under the Act for a safe haven enterprise visa (or “SHEV”—hereafter, the “Visa Application”). On 2 November 2017, a delegate of the first respondent (the “Minister”—or, more accurately, a delegate of the Minister for Immigration and Border Protection, as the relevant department—hereafter, the “Department”—was then known) refused that application (the “Delegate’s Decision”).

2    Thereafter, the Visa Application traversed a somewhat convoluted path. It was referred for review by the second respondent (hereafter, the “IAA”), which affirmed the Delegate’s Decision. Ultimately, that affirmation was set aside by this court and the matter (to which I shall hereafter refer as the “Merits Review Referral”) came back for further hearing before the IAA.

3    On 19 October 2022, the IAA affirmed the Delegate’s Decision (the “IAA Decision”).

4    On 16 March 2023, the appellant applied to the Federal Circuit and Family Court of Australia, div 2 (hereafter, the “FCFCOA”) for judicial review of the IAA Decision. On 29 June 2023, the FCFCOA dismissed that application (the “Judicial Review Application”) with costs and published reasons for doing so: DSC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 559 (the “Primary Judgment”; Judge Riley).

5    By notice of appeal dated 26 July 2023, the appellant appeals from the entirety of that judgment and seeks, in lieu thereof, relief in the nature of certiorari to quash the IAA Decision, mandamus to direct the IAA to redetermine the Merits Review Referral according to law, and costs.

6    For the reasons that follow, neither of the two grounds advanced to that end is made good and the appeal should (and will) be dismissed. The appellant should pay the Minister’s costs of the appeal.

The appellant’s claims to protection

7    In support of his Visa Application, the appellant made a number of claims, including that:

(1)    he had fled Sri Lanka in late 2012 owing to his fears of persecution by the Sri Lankan army (the “SLA”) and other agencies of the Sri Lankan government—in particular, he claimed that he had some problems with “Grease Men”, which meant that he was unable freely to venture outside;

(2)    if he were to return to Sri Lanka, the SLA and other agencies would harm him because he is a Tamil, and because they think that he and his wife are supporters of the Liberation Tigers of Tamil Eelam (the “LTTE”);

(3)    he and his wife are discriminated against because they are “gypsies” or “wanderers”, and are considered to be of a lower class;

(4)    he and his wife were subjected to continued harassment due to his wife’s prior membership of the LTTE;

(5)    when he was 23, he was taken by the SLA and detained for an entire day, during which time he was severely beaten;

(6)    he and his wife had gone into hiding in Batulawa, and then fled to India on account of his wife being threatened that, unless she re-joined the LTTE, the LTTE would take one of her and the appellant’s sons;

(7)    while in India, he and his family were homeless and living on the streets;

(8)    due to difficulties in India, he and his family returned to Sri Lanka in 1995, from which time they pretended not to be Tamil;

(9)    in 1997, he and his family sought to escape to Polonnaruwa on foot by pretending to be gypsies and not Tamils, during which he “walked amongst bodies of dead Tamils”;

(10)    while in Polonnaruwa, he witnessed the SLA burning Tamils “using tyres”; and

(11)    he and his family continued to be harassed because of his wife’s cultural background and perceived involvement with the LTTE.

8    On the day after the Delegate’s Decision was made, the appellant submitted to the Department a statutory declaration containing further assertions. By that document (the “Statutory Declaration”), the appellant asserted that, in 2011, his son was arrested and charged with the murder of his (the son’s) wife, following which he (the son) was held in prison for eight months. He was released after the appellant paid 40 lakhs; and upon the condition that he report to authorities once per month.

9    Instead, so the Statutory Declaration continued, the appellant and his son fled Sri Lanka. As a consequence, arrest warrants were issued for the appellant, the appellant’s wife and their son. The appellant stated that he did not initially disclose that to the Department because he feared that it “would immediately deport me if [it] knew of the arrest warrant”, and because he felt very anxious during the interview and did not know if he could trust the Department. He stated that, if forced to return to Sri Lanka, there would be a very high chance that he would be imprisoned without bail because he had fled Sri Lanka by boat and because of the arrest warrant that had been issued for him. Further, he explained that he would likely be detained for an indefinite amount of time, or at least kept in a prison for many months because of his previous dealings with Sri Lankan police. He said that there was a high risk that he would face serious harm at the hands of prison officers and authorities. He was of that view because of the previous persecution to which he had been subjected in Sri Lanka. For all of those reasons, he maintained that he continued to fear harm in Sri Lanka.

10    At some point prior to the initial review by the IAA (above, [2]), the appellant provided to the IAA a document “that looked to be the back pages of [his] Sri Lankan passport with some hand writing on it” which included the text sequences “B3409/11” and “0728622912”. That material would later assume some significance before the IAA.

The statutory framework

11    Section 36 of the Act identifies the criteria upon satisfaction of which the grant of a protection visa—including a SHEV—is conditioned. Relevantly, it provides as follows:

36 Protection visas—criteria provided for by this Act

…

(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; …

…

(2A)    A non‑citizen will suffer significant harm if:

(a)    the non‑citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non‑citizen; or

(c)    the non‑citizen will be subjected to torture; or

(d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non‑citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)    it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)    the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…

12    “Refugee” is a term defined by s 5H of the Act:

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

(b)    in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

…

13    Section 5J of the Act defines what is meant by “well-founded fear of persecution”:

5J Meaning of well-founded fear of persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)    the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)    there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)    the real chance of persecution relates to all areas of a receiving country.

Note: For membership of a particular social group, see sections 5K and 5L.

(2)    A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note: For effective protection measures, see section 5LA.

(3)    A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)    conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)    conceal an innate or immutable characteristic of the person; or

(c)    without limiting paragraph (a) or (b), require the person to do any of the following:

(i)    alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)    conceal his or her true race, ethnicity, nationality or country of origin;

(iii)    alter his or her political beliefs or conceal his or her true political beliefs;

(iv)    conceal a physical, psychological or intellectual disability;

(v)    enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)    alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)    If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)    that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)    the persecution must involve serious harm to the person; and

(c)    the persecution must involve systematic and discriminatory conduct.

(5)    Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill-treatment of the person;

(d)    significant economic hardship that threatens the person’s capacity to subsist;

(e)    denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)    In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

14    Section 5(1) of the Act defines “cruel or inhuman treatment or punishment”, “degrading treatment or punishment”, “fast track applicant” and “fast track decision”:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant

…

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; …

…

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

(a)    because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

(b)    relying on:

(i)    subsection 5H(2); or

(ii)    subsection 36(1B) or (1C); or

(iii)    paragraph 36(2C)(a) or (b).

Note:    Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

15    Part 7AA of the Act establishes a framework for the review of fast track decisions. That review process relevantly provides for:

(1)    the automatic referral of fast track reviewable decisions to the IAA (the Act, s 473CA);

(2)    the provision of certain materials to the IAA for the purposes of that review (the Act, ss 473CB and 473DB);

(3)    limitations upon the extent to which the IAA may, for the purposes of its review, acquire or consider “new information” (the Act, ss 473DC and 473DD); and

(4)    the conferral upon the IAA of an obligation either to affirm or remit for reconsideration fast track reviewable decisions (s 473CC).

16    Sections 473DC and 473DD of the Act loom large in this appeal. They relevantly 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.

The IAA Decision

17    On 18 August 2022, the appellant’s representative sent an email to the IAA (hereafter, the “August 2022 Submissions”), to which were attached four documents.

18    The first attachment comprised of a statement by the appellant dated 17 August 2022, which attested that:

(1)    he still feared harm in Sri Lanka for the reasons outlined above;

(2)    in relation to the numbers on his passport:

(a)    he did not know why the number “B3409/11” was handwritten in his Sri Lankan passport but it might be to alert embassies overseas and immigration officials in Sri Lanka to criminal charges;

(b)    the number appears together with a 10-digit Sri Lankan mobile phone number, which were not introduced in Sri Lanka until the early 2000s; and

(c)    he infers that he must have given his old Emergency Certificate to the Passport Office when he applied for the passport, and that the numbers were a court number and his phone number which had been written on both the Emergency Certificate and the passport; and

(3)    if he were forced to return to Sri Lanka, the appellant would be discriminated against, harassed, monitored, detained, beaten or killed because:

(a)    his wife had previously been a member of the LTTE;

(b)    his son had been charged with the murder of his (the son’s) wife, and because the resultant arrest warrants would result in the appellant’s being imprisoned without bail;

(c)    when he was last in Sri Lanka, relatives of his son’s late wife sent agents to attack him;

(d)    people of Tamil and Telugu ethnicity are routinely discriminated against in Sri Lanka;

(e)    he is a Pentecostal Christian;

(f)    he is a person of interest to—and will be pursued by—Sri Lankan authorities;

(g)    the Sri Lankan authorities will not protect him and, indeed, will be “against [him]” due to his ethnicity, his religion, his wife’s involvement with the LTTE and his son’s criminal charges; and

(h)    he would be tracked and located by the Sri Lankan authorities due to the requirement to be registered with authorities to rent or own a property.

19    Additionally, the appellant made some representations in the first attachment to the state of his mental health. He explained that:

(a)    he has increasingly struggled with his mental health;

(b)    he has severe anxiety in relation to his family’s situation;

(c)    he is unable to take prescribed medication due to it causing extreme drowsiness;

(d)    there are limited mental health services in Sri Lanka, which he would not be able to access;

(e)    due to his LTTE links, his ethnicity, his religion and his “low caste”, it would be especially difficult for him to access the support that he needs;

(f)    there is a lot of stigma around mental illness in Sri Lanka, including that it is attributed to a curse or “black magic”;

(g)    his mental health challenges have already driven him to a point where he has considered suicide; and

(h)    without adequate support, his poor mental health would worsen to the point that he is driven to suicide.

20    The second attachment contained submissions authored by the appellant’s legal representative. It was there submitted that the appellant has a well-founded fear of persecution in Sri Lanka and that there was a real risk that he would face significant harm.

21    The third attachment contained an information report on Sri Lanka dated 23 December 2021 and authored by the Department of Foreign Affairs and Trade.

22    The fourth attachment contained an internet post titled “Sri Lanka’s economy has ‘completely collapsed,’ Prime Minister says”.

23    En route to affirming the Delegate’s Decision, the IAA concluded that the appellant did not meet the definition of “refugee” in s 5H(1) of the Act because he did not have a well-founded fear of persecution in Sri Lanka. The IAA came so to conclude for a number of reasons, namely:

(1)    the IAA was not satisfied that people of the appellant’s cultural background faced treatment that amounted to persecution;

(2)    available country information indicated that “Grease Men” were no longer an issue in Sri Lanka such that the appellant could be said to face a real chance of harm if he returned there;

(3)    the IAA was not persuaded of the appellant’s family’s purported LTTE connections, and was not satisfied that there was a real chance that the appellant would, in any event, face any issues as a consequence of any such connections;

(4)    the IAA was not satisfied as to the credibility of the appellant’s claims about the death of his son’s wife, and did not accept the appellant’s claim that he was the subject of an arrest warrant;

(5)    the IAA was not satisfied that there was a real chance that the appellant would face social discrimination or other serious harm due to his religion;

(6)    the IAA was not satisfied that, if he were to return to Sri Lanka, the appellant was at real risk of detention, torture or harassment on account of his Tamil ethnicity;

(7)    while the IAA accepted that the appellant may, on account of his departure from Sri Lanka, be charged under the Sri Lankan Immigration and Emigration Act, the IAA was “unaware of a prison sentence being given for illegal departure by itself”;

(8)    the IAA concluded that all returnees to Sri Lanka are treated according to standard procedures, regardless of ethnicity or religion, and the appellant would not be identified as a person of interest;

(9)    the IAA was satisfied that the appellant would not face any harm on account of his having sought asylum in Australia; and

(10)    the IAA was satisfied that returnees face a low risk of societal discrimination in Sri Lanka.

24    On those bases, the IAA was drawn to the following conclusion concerning the appellant’s status as a “refugee” under the Act, namely:

On the information before me, I am not satisfied that the [appellant] faces a real chance of persecution for reasons of his Telugu cultural background, his Tamil ethnicity, his religion, as a Tamil who at times resided in LTTE controlled area during the war or imputed past LTTE connections. I also note that the [appellant] has not claimed to have engaged in activities in Australia that would be of concern to the Sri Lankan authorities or place him at a real risk of any adverse attention if returned to Sri Lanka.

…

I am not satisfied that there is a real chance that the [appellant] would face a real chance of persecution in the reasonably foreseeable future for any of the claimed reasons or arising on the material before me.

25    As to the appellant’s entitlement to complementary protection under s 36(2)(aa), the IAA concluded that there were not substantial grounds for believing that there was a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of his being returned to Sri Lanka. That was said to be so for three reasons.

26    First, the IAA was not satisfied there was a real risk that the appellant would be identified as a person of interest to Sri Lankan authorities.

27    Second, while the IAA considered it likely that the appellant would be charged under the Sri Lankan Immigration and Emigration Act, and that the current economic situation in Sri Lanka may have some adverse impact on his ability to re-establish himself, the IAA was not satisfied that:

(1)    there would have been an intention to inflict pain or suffering that could reasonably be regarded as cruel and inhuman in nature;

(2)    there would have been an intention to inflict severe pain or suffering; or

(3)    there would have been an intention to cause extreme humiliation.

As a result, the IAA was not satisfied that the appellant would have faced cruel or inhumane treatment or punishment, or degrading treatment or punishment.

28    Third, the IAA was not satisfied the appellant would have faced a real risk of being arbitrarily deprived of life, being subjected to the death penalty, or tortured.

29    The IAA concluded as to its complementary protection assessment:

Having regard to my findings and reasoning above I am also satisfied that the [appellant] does not face a real risk of significant harm.

…

There are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the [appellant] will suffer significant harm.

30    The IAA did not refer to the appellant’s mental health in the conclusions outlined above. That was because the IAA refused to consider what the appellant had submitted about his mental health on the basis that it was “new information” that did not meet the requirements of s 473DD. To that end, the IAA reasoned as follows, namely:

In his statement, the [appellant] claims that he has increasingly struggled with his mental health. He says he has severe anxiety, largely in relation to his family’s situation and that while he was prescribed medication, he stopped taking it as it caused him extreme drowsiness. The [appellant] claims that there are limited mental health services in Sri Lanka and that there is stigma around mental health. It would be difficult for him to access the support he needs which would result in worsening of his mental health. The [appellant] further claims that he has experienced strong feelings of hopelessness and guilt around his family’s circumstances leading him to consider ending his life and that he fears that without access to treatment he will commit suicide in Sri Lanka. These claims or any reference to the [appellant] having suffered from mental health conditions were not raised before the delegate and are new information. The [appellant] has not provided any details of when his mental health issues arose or deteriorated, nor has he provided any reports from health providers detailing his condition or treatment plan. The [appellant] also has not referred to any independent information supporting his claims that he will not be able to access the required treatment if returned to Sri Lanka. If the new information relates to recent health issues and could not have been provided to the delegate, given the limited details about the [appellant]’s claimed mental health condition and lack of any medical reports outlining his diagnoses, medication, current or future treatment requirements, I am not satisfied that the [appellant]’s assertions without any supporting evidence is credible information. In addition, the information provided is lacking in any meaningful detail to allow assessment of the [appellant]’s future treatment requirement or whether he will be able to access treatment if returned to Sri Lanka. I am not satisfied that the requirements under s.473DD (b) or (a) are met.

The FCFCOA Review and the present appeal

31    The appellant’s Judicial Review Application proceeded upon five grounds, two of which feature in what is now pressed before this court. As has been noted, the FCFCOA dismissed that application with costs.

32    By notice dated 26 July 2023, the appellant charges the learned primary judge with having erred in two respects. They are mirrored by the two grounds of appeal that are recorded in his notice, namely that:

1.    The Primary Judge erred in not finding that the Immigration Assessment Authority (the Authority) erred by constructively failing to exercise its jurisdiction, and/or acting unreasonably or illogically, by failing to consider relevant information in determining whether s 473DD was satisfied

Particulars

a.    The Appellant provided the Authority new information about his mental health in his statement of 17 August 2022 (the new mental health information).

b.    The Authority determined that neither s 473DD(b) nor s 473DD(a) was met in relation to the new mental health information and so did not consider it when performing its review.

c.    The Authority had information before it which was relevant to its assessment of whether the new mental health information satisfied s 473DD, including:

i.    information relevant to the timing and causes of the Appellant’s claimed deterioration in mental health; and

ii.    country information regarding the availability and adequacy of mental health treatment in Sri Lanka.

d.    The material was relevant to its assessment of each of ss 473DD(b)(i) and (ii) and s 473DD(a).

e.    The Authority failed to take the information into account in determining whether s 473DD was met.

f.    The Authority thereby constructively failed to exercise its jurisdiction and/or acted unreasonably or illogically.

2.    The Primary Judge erred in not finding that the Authority erred by asking itself a wrong question or imposing a wrong threshold in assessing whether the new mental health information was ‘credible’ under s 473DD(b)(ii).

Particulars

a.    In assessing whether the new mental health information satisfied s 473DD(b)(ii), the Authority was required to consider whether it was ‘credible’.

b.    This only required that the Authority be satisfied the new information was ‘capable of being believed’.

c.    The Authority erroneously imposed a higher bar for assessing whether the new mental health information was credible.

33    It is convenient to adopt the nomenclature used by the appellant and refer, hereafter, to the information outlined above (at [19]) as the “New Mental Health Information”.

34    The two grounds pressed in this appeal (above, [28]) were analogues of grounds two and four respectively of the appellant’s Judicial Review Application.

35    In respect of ground one (ground two before the FCFCOA), the learned primary judge held (Primary Judgment, [31]-[32]):

31    The DFAT report indicates that mental health support services in Sri Lanka are limited. However, as mentioned above, the Authority’s point was that the [appellant] had not supported his claims with independent expert evidence that he would need any mental health treatment if he were to return to Sri Lanka. It was therefore unnecessary for the Authority to consider whether mental health treatment would be available to the [appellant] in Sri Lanka.

32    Ground 2 is not made out.

36    In respect of ground two (ground four before the FCFCOA), her Honour held (Primary Judgment, [39]-[40]):

39    I do not accept that the Authority set the bar too high in the present case. The Authority, in effect, said that the [appellant]’s claims regarding his poor mental health were not capable of being believed because they were bare assertions from himself, rather than being supported by independent expert evidence. That conclusion was open to the Authority.

40    Ground 4 is not made out.

37    It is not necessary to set out in full the reasoning processes that the FCFCOA engaged. If, as the appellant submits, the IAA Decision was attended by jurisdictional error as is alleged, then it will follow that the learned primary judge will have erred in concluding otherwise and the appeal should be allowed. Conversely, if no such jurisdictional error is to be found, then the learned primary judge will have been correct to say so and the appeal should be dismissed. Either way, the court’s focus must fix upon the IAA Decision.

38    It is convenient to address each of the appellant’s grounds of appeal in turn.

Ground one

39    It is necessary, at this juncture, to make some observations about the trajectory of the Merits Review Referral. In November 2017, the IAA affirmed the Delegate’s Decision. That affirmation was later set aside and the matter was sent back to the IAA.

40    Initially, an issue arose before the IAA as to whether the Statutory Declaration should be received as “new information”. On that score, the appellant’s migration agent had made the following submission:

It is submitted that in this instance there are exceptional circumstances to justify considering the new information for the purposes of s 473DD(a), including (but not limited to) the following that individually and cumulatively meet that threshold:

…

2.    In relation to all the enclosed information, other circumstances are that:

a.    The [appellant]'s mental health has been declining due to the stress of living with ongoing uncertainty related to his own application as well as his son's application and the separation from his wife in Sri Lanka.

…

e.    The serious hardship suffered while in the processing system including the ongoing uncertainty, periods of denial of access to health care and the right to work.

41    The appellant submits that this information was not, but ought to have been, taken into account in the IAA Decision when deciding if the requirements of s 473DD of the Act were met. Furthermore, the submission continues, the IAA should have considered that:

(1)    at some point in 2019, the appellant was removed into immigration detention;

(2)    the appellant’s legal representatives had written to the IAA on 9 August 2022 (prior to the IAA Decision) stating, among other things, that the appellant’s “mental health had deteriorated significantly”;

(3)    the appellant had noted that he had “increasingly struggled” with his mental health, which indicated ongoing deterioration; and

(4)    the country information supplied by the appellant outlined the limited availability and adequacy of mental health treatment in Sri Lanka.

42    The appellant submits that the worsening state of his mental health—as reflected in those observations—was a circumstance that was relevant to the IAA’s assessment as to whether there were exceptional circumstances to justify consideration of the New Mental Health Information, or whether the New Mental Health Information was credible personal information.

43    In oral submissions in the appeal, counsel for the appellant argued that mental health concerns present along a spectrum and that, for the purposes of making assessments under s 473DD of the Act, it is not only the point at which mental health concerns arise that is relevant; rather, deteriorations in mental health may also qualify as material changes that suffice to enliven the gateway for which s 473DD provides. Counsel also argued that, because the appellant had made claims about his own mental health circumstances, and also made claims about the adequacy of mental health services in Sri Lanka, the IAA was required to apply section s 473DD and engage with those points.

44    The Minister observes that none of the materials before the IAA made clear the date when the appellant was taken into immigration detention, nor when his mental health issues began to deteriorate. That being so, it is said that it was open to the primary judge to conclude that the IAA was not in error in finding that the appellant had not provided details of when his mental health issues arose or deteriorated.

45    Counsel for the Minister submitted that what the IAA here did was to consider the evidence before it “as a whole”. Specifically, it was said that the IAA had considered broad assertions that the appellant made about his mental health; but concluded, generally (and in respect of all points in time), that the information advanced did not meet the criteria set out in s 473DD of the Act.

46    In relation to the country information supplied by the appellant, the respondent argues that it was not necessary for the IAA to consider that information in circumstances where it had found that the appellant had not supported his claims about his mental health with independent expert evidence. Counsel for the appellant says that, once the IAA was alive to a potential mental health issue, the country information was relevant and ought to have been considered for the purposes of assessing its receipt under s 473DD of the Act.

47    The appellant further submits that the IAA’s failure to take account of relevant information (above, [40]-[42]) in considering whether the New Mental Health Information should be considered under s 473DD of the Act was unreasonable, irrational or illogical.

48    In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 (French, Sackville and Hely JJ), the Full Court said (at 604-605 [47]):

The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.

49    In this case, it is apparent from what is set out above (at [30]) that the IAA was alive to the appellant’s claims about his mental health. It expressly referred to his overall and specific conditions, as well as their alleged causes and that the appellant had claimed to have been prescribed medication to address them. It also recorded the appellant’s stated fears as to how his condition might manifest under Sri Lanka’s limited mental health services, and that he alleged that his mental health issues had “deteriorated”.

50    For present purposes (and as counsel for the appellant submitted), let it be assumed that mental health concerns are properly to be understood as presenting on a spectrum; and that deteriorations in a visa applicant’s mental health ought to be considered for the purposes of assessing whether new information should be considered under s 473DD of the Act. It is evident upon reading the IAA Decision that the IAA read, identified, understood and evaluated the representations that the appellant made about his mental health: Plaintiff M1/2021 v Minister for Home Affairs (2022) (2022) 275 CLR 582, 604 [36] (Kiefel CJ, Keane, Gordon and Steward JJ; Gageler J agreeing with the outcome; Edelman and Gleeson JJ dissenting but not on that point).

51    It is not a matter of significance that there might have been other information available on the record with which the IAA was presented that went to equivalent matters but to which no express reference was made in the IAA Decision. The question that arises presently is whether, in assessing whether the New Mental Health Information should be considered under s 473DD of the Act, the IAA brought to bear upon its assessment the matters of substance that were apt to inform it. Here, it could not fairly be inferred that the IAA failed to do so in any relevant regard. Respectfully, the appellant’s contention to the contrary turns upon a strict and artificial parsing of the material that was before the IAA; and an unrealistic contorting of what the IAA should be understood to have considered (or not considered) en route to its conclusion.

52    It follows that I do not accept that, by proceeding to exclude the New Mental Health Information as it did, the IAA should be understood to have failed constructively to exercise any jurisdiction conferred upon it.

53    That leaves for consideration the appellant’s allied contentions that the IAA’s conclusion was attended by legal unreasonableness, illogicality or irrationality. They can swiftly be addressed. The appellant’s complaints focus upon the IAA’s observations that he had “not provided any details of when his mental health issues arose or deteriorated” and had not “referred to any independent information supporting his claims that he will not be able to access the required treatment”.

54    Neither of those observations bespeaks any want of reasonableness, logic or rationality sufficient to amount to jurisdictional error. Read fairly and as a whole, the IAA Decision proceeded on the basis that the appellant had offered nothing beyond recent and bald assertions as to the state of his mental health. The IAA was entitled so to proceed.

55    The appellant offered nothing in the way of medical or expert evidence to substantiate his assertions. In the absence of any such material, it was open to the IAA to characterise his assertions as it did. No particulars of his condition were available so as to inform any assessment as to how or when it began or deteriorated; nor to assist in understanding how conditions in Sri Lanka might impact upon the appellant. In those senses, the observations to which the IAA was drawn were unremarkable.

56    It follows, then, that the IAA Decision cannot be impugned as a product of jurisdictional error in any of the senses advanced by the appellant. Respectfully, the learned primary judge was correct so to conclude and the first ground of appeal from her Honour’s judgment should fail.

Ground two

57    By his second appeal ground, the appellant submits that the IAA improperly expanded its enquiry by considering whether his mental health contentions should be accepted, rather than focusing on whether they were “capable of being believed”. In considering whether the information was properly to be considered as new information pursuant to s 473DD of the Act, the IAA was obliged to focus only upon whether it was “credible”; not whether it was accepted.

58    In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (hereafter, “CSR16”), Bromberg J considered the meaning of the word “credible” in s 473DD(b)(ii) of the Act. His Honour observed (at [41]-[43]):

41    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

43    The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

59    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159, Mortimer and Jackson JJ (Besanko J refraining from deciding the point) held (at [75]-[77]):

75    That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.

76    Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.

77    Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. 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). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).

60    Counsel for the appellant submitted that what was called for by the IAA was to make an assessment as to whether there was some prospect of the New Mental Health Information being accepted. In this case, the IAA found that, in circumstances where the appellant had not provided any details or reports concerning his alleged condition, nor referred to any independent information to support his claims that he would be unable to access treatment in Sri Lanka, it could not be satisfied that the assertions bespoke credible information for the purposes of s 473DD(b)(ii) of the Act. That is, there was no prospect of the New Mental Health Information, in those circumstances, of being accepted. Unlike in CSR16, the IAA here did not engage in a deliberative analysis, nor decide whether the appellant’s assertions were believed; it simply decided that what had been advanced was not then capable of being believed.

61    So understood, the IAA engaged in the very filtering process of which Bromberg J spoke in CSR16. It did not impermissibly stray into an assessment of the veracity of the New Mental Health Information; rather, it merely assessed the information as not “credible” for the purposes of s 473DD(b)(ii) of the Act.

62    It follows that I do not accept that, in assessing whether the New Mental Health Information might qualify as new information to be considered under s 473DD of the Act, the IAA misunderstood the nature of the assessment that it was to form. The assessment that the IAA made about that information cannot be impugned as the appellant seeks to impugn it; and, respectfully, the learned primary judge was correct so to conclude. The appellant’s second ground of appeal must fail.

Disposition

63    Neither of the appellant’s grounds of appeal is made good. Despite the efforts to which the parties went in addressing the question of materiality (for which I record the court’s gratitude), it is unnecessary that I should say anything on that front. The Primary Judgment was not attended by error as alleged, and the appeal should and will be dismissed. There is no reason why the usual order for costs ought not to be made.

Associate:

Dated:    23 May 2024