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‘Credible’ personal information in s 473DD requires assessment only as to whether it could be true, not is actually true

The two limbs of s 473DD(b) are expressed as alternatives: CSR16 v Minister [2018] FCA 474 at [37]. Justice Bromberg there went on to conclude that “all that the ‘credible’ element of 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)”: [2018] FCA 474 at [41]. “It is only at the deliberative stage of its review”, said his Honour, “that the Authority will be required to determine whether or not the ‘new information’ is true”.

Unreasonableness and being a ‘reformed homosexual man’ or ‘genuinely bisexual’

A particularly egregious example of unreasonableness is Abboud v Minister [2018] FCA 185  in which the Tribunal made arbitrary assumptions as to how a gay person ought to behave.  The Tribunal has now on several occasions rejected persecution claims on the basis of sexuality through means of suggesting the applicant is involved in a gay ‘conspiracy theory’.  Patently, such approach is unreasonable, irrational or demonstrative of failing to engage with the material before it. The entire Abboud decision is worth reading in order to expose the audacity of the Tribunal’s reasoning, but see especially [23]-[26].

 

Credibility and allegedly ‘inconsistent’ evidence

Frequently a decision-maker will leap to a conclusion that an applicant has been ‘inconsistent’ in his or her account.  Frequently also, a decision-maker will bandy this label of ‘inconsistency’ incorrectly.

Often, in truth something may not be ‘inconsistent’. For example, the omission of making a particular claim at interview 1 does not mean it is an ‘inconsistency’ if raised in interview 2: see AVQ15 v Minister [2018] FCAFC 133 at [27].

Also, just because there is an ‘inconsistency’ (assuming that word is used correctly), it does not follow that a credibility issue emerges. For example, a minor inconsistency cannot be transformed into a reason to disregard the whole of an applicant’s claims: see AVQ15 v Minister [2018] FCAFC 133 at [28]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [78].

Further, special attention needs to be given to the circumstances in which an applicant is giving evidence, before leaping to a conclusion of ‘inconsistency’ (or for that matter, adverse credit).  Thus, if an applicant warns that he or she is only giving a ‘summary’ which is ‘not an exhaustive statement’ and will be giving more detail at a later stage, a failure to appreciate that qualification may create a jurisdictional error: see AVQ15 v Minister [2018] FCAFC 133 at [28], [30], [33], [41].

Representations in character cancellations are matters which must be considered

The proposition that representations in relation to a s 501 cancellation attempt are not ‘mandatory relevant considerations’ is highly doubtful if not at least reductionist. See the discussion in Viane v Minister [2018] FCAFC 116 per Rangiah J [23]-[30] and Colvin J at [67]-[77].  What matters is whether the relevant aspect which was not considered could amount to a ‘representation’, in which case it must be considered.

See also Hay v Minister [2018] FCAFC 149 per Colvin J.

Failure of Secretary to provide to IAA relevant documents

In AKK17 v Minister for Immigration (2017) 327 FLR 343 at [59]-[60] it was suggested that this might be an error depending on the nature of the document which the Secretary does not provide, notwithstanding the Secretary’s obligation under s 473CB(1)(b) to do so in respect of all documents before the delegate which were provided by the applicant.

Although inconsistent with the imperative language in s 473CB(1), it would appear that this decision is consistent with the requirement that an error have done kind of materiality in order for it to be a jurisdictional error (see eg Hossain v Minister for Immigration (2018) 92 ALJR 780).

‘Exceptional circumstances’ and s 473DD of the Migration Act

BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221; [2017] FCA 958

  • ‘exceptional circumstances’ means out of the ordinary, etc.
  • Not possible to be prescriptive about the content of the term
  • In determining ‘exceptional circumstances’, there is an overlap with the matters in s 473DD(b); both (i) and (ii) go towards the existence of ‘exceptional circumstances’: [8]
  • While s 473DD(b)(i) and (ii) are not ‘mandatory relevant considerations’ when assessing whether there are ‘exceptional circumstances’, the lack of reference to them and/or confining the consideration to other matters may demonstrate an incorrectly narrow understanding: [45]-[47]
  • It is wrong to reason:

[7] The new information relates to material which was squarely an issue at the SHEV Interview on 4 December 2015.  The substance of his protection claim rests on his claims that he has repeatedly been accused of, and interrogated about, LTTE membership and support and he has provided details of various other incidents in which he claims he was detained and interrogated about this.  He was specifically asked about incidents of detention and torture during the SHEV Interview and he responded with descriptions of those incidents.  Given these factors, and the fact that he was represented and had been residing in Australia for three years by the time he was questioned by the delegate, I do not accept his explanation that the was afraid he would be suspected of being returned on account of being perceived as an LTTE member.

[8] The applicant also claims he was previously too embarrassed to disclose the incident to either the delegate or his representative.  While I accept if these events occurred it would be natural for the applicant to experience feelings of embarrassment and shame and that that may impede his willingness to recall and discuss the details, I do not consider this as an explanation as to why he previously made no mention of being detained for two days in July 2012.  I consider he need not have provided intimate details about the torture to make the delegate aware that he had been detained and interrogated as recently as one month before he left Sri Lanka.  Given he disclosed various other similar incidents with basic detail I do not accept he would not have mentioned that the event occurred, even if he did not wish to discuss the finer details.

[9] I do not accept there are exceptional circumstances to justify considering the information.

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176

  • BVZ16 is correct: [102]
  • In particular, the IAA demonstrates a wrongly narrow understanding of ‘exceptional circumstances’  if it only considers only whether an explanation for why the ‘new information’ was not provided earlier: [111]-[112]
  • Thus, (on nothing more than an application of BVZ16) it is incorrect to reason:

This information was not before the delegate at the time of the s 65 decision, and is ‘new information’.  The applicant was interviewed by a delegate of the Minister on 29 September 2015.  At the beginning of the protection visa interview the applicant confirmed there was nothing in his application form which was false or misleading.  He also stated, ‘I do not have anything more or less to add.’  He also made an affirmation confirming all his claims for protection were true.  At the end of the protection visa interview the applicant was asked if he had put forward all his claims for protection to which he responded, ‘yes’.  He was also asked if there was anything else he wanted to tell the delegate, to which he responded, ‘no’.  During the protection visa interview, the applicant was also put on notice in regard to raising all claims for protection to the delegate.  He was given information in the protection visa interview in respect to the limitations of providing new information if his protection visa application was refused and referred to the IAA for review.  On the evidence before me the applicant has not mentioned his membership of association to AFLA or any other political organisation.  The applicant has never claimed to have participated in any political protects either in Iran or Australia.  The applicant’s claims of joining AFLA, playing for a [football] team in Sydney, his parents being questioned as a result of his involvement with the [football] team and participating in political rallies are all stated to have occurred prior the delegate’s decisions being made on 17 February 2016.  The applicant has not provided any explanation as to why the information could not have been provided earlier.  I am not satisfied there are exceptional circumstances to justify considering the new information provided by the applicant.

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192

  • The IAA errs in construing ‘exceptional circumstances’ if it does not “address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims”: [44]
  • Thus, it is incorrect to reason:

The applicant was interviewed in relation to his claims for protection on 28 October 2015 with a registered migration agent present. During this interview the applicant was provided the opportunity to present all his claims for protection. At the end of the interview the delegate provided the applicant an opportunity to submit any further detail to his claims for protection. The delegate also provided the applicant’s representative an opportunity to provide a written submission which was submitted to the delegate on 11 November 2015. During the interview the applicant was explained (sic) the importance of providing all his claims for protection as early as possible. The applicant was also represented by a registered migration agent who was provided through the Department’s Primary Application Information Service (PAIS). A decision was made on 9 June 2016. This new information relates to events which occurred prior to the primary decision being made. I am not satisfied there are exceptional circumstances to justify considering the new information.

  • It may that a proper construction of s 473DD means it is possible for there to be ‘exceptional circumstances’ even if neither of s 473DD(b)(i) or (ii) are made out: [46]

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

  • This decision is difficult to reconcile with the other authorities. At [17] the Court effectively concludes that the IAA only needs to take into account what is expressly put before it by the applicant in determining whether there are ‘exceptional circumstances’. Also implicit in the Court’s reasoning is that it will never be enough to argue that the rejected new information may have potentially have caused a different assessment of the other matters before the delegate–but this is surely inconsistent with BVZ16, BBS16 and s 473DD(b)(ii).

Inferring Minister’s assertion he has had ‘regard to’ material was just ‘mere verbal formulae’

In Carrascalao v Minister [2014] FCAFC 107 the Court inferred that the Minister did not actually consider the material he was obliged to, before making his formulaic decision. The judgment discusses two cases in which the evidence showed that the Minister had at most about half an hour to consider hundreds of pages of material, which of course, he would not have done in that time.

The error was failing to give proper, genuine and realistic consideration to the merits of the cases. The Full Court explained:

129. … 43 minutes represents an insufficient time for the Minister to have engaged in the active intellectual process which the law required of him in respect of both the cases which were before him.

The Minister was also the subject of a Jones v Dunkel inference arising from the failure of one of the central characters, his Chief of Staff, to give any evidence:

130. Seventhly, the inferences which we have drawn from the material above in concluding that the Minister did not engage in the requisite active intellectual process, is reinforced by the fact that neither he nor his Chief of Staff gave evidence. Accordingly, we would apply the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298 which, we note, was also applied in the particular circumstances in the Douglas case at 61-62 and in other judicial review cases referred to therein. As the Full Court observed in the Douglas case at 62:

The application of the rule requires… that there be inferences available from the evidence which favour the other party. The failure of the Minister to call evidence does not provide positive evidence that he did not consider the representation but, unexplained, it leaves the Court in a position where opposing inferences can be more confidently drawn because they stand uncontradicted by the person who could say something about the true state of the facts: Jones v Dunkel at 308. The question then is what inferences were open on the evidence.

131. In considering whether the rule of evidence in Jones v Dunkel applies here, we have taken into account the multiple statements made by the Minister in his statement of reasons to the effect that he had considered, noted, accepted, recognised or had regard to various matters, as well as the concluding statement which appears in both statements of reasons that the Minister had “given full consideration to all of the information before me in this case” (emphasis added). The Minister may subjectively have believed these matters, including his claim to have given full consideration to all the information before him in both cases but, for the reasons set out above, we do not consider that his subjective belief is determinative when, for the reasons given above, the Minister did not have sufficient time to engage in the active intellectual process required by law before deciding to cancel the two visas.

 

 

Documents covered by invalid s 438 certificates might demonstrate denial of procedural fairness or apprehended bias

MZAFZ is not dead yet. In Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194  at [86] the Full Court confirmed the possibility that an applicant might want to (and be entitled to) demand production of documents covered by an invalid s 438 certificate, because those documents might show denial of procedural fairness or apprehended bias.

‘Exceptional circumstances’ is not limited to whether the applicant could have provided the information earlier

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 concerned the IAA’s exclusion of information on the sole basis that the applicant could have but did not provide it to the delegate. White J said at [46]-[47] this was an unduly narrow interpretation of ‘exceptional circumstances’.

His Honour stated:

[41] Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. 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…

[43] … exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances. (emphasis added)

His Honour also observed at [34]-[35] that the requirements in s 473DD(a) and (b) overlap, so that even though they are cumulative, the fact that information could have been provided to the delegate earlier but was not cannot be decisive. Thus, information that could have been provided earlier but was not (s 473DD(b)(i)) might nonetheless be personal information that had it been known, would have affected the decision (s 473DD(b)(ii)), and in light of that significance (or otherwise), there was an ‘exceptional’ circumstance (s 473DD(a)).

His Honour’s reasoning was endorsed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[112].

The Full Court left open the possibility that the IAA failing to consider a particular piece of information in deciding whether there were ‘exceptional circumstances’ may constitute jurisdictional error: [114].

Failure of judge to give adequate reasons

This can be a failure to exercise jurisdiction. See COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [31]-[56] and DAO16 v Minister for Immigration and Border Proteciton [2018] FCAFC 2.

In COZ16, after setting out the principles, Griffiths J said:

[47] In my respectful view, for the following reasons there has been a constructive failure to exercise jurisdiction in this case.  First, the brevity of the primary judge’s substantive reasoning for rejecting the two grounds of judicial review has already been noted.  The primary judge explained in six short sentences in [50] and [51] as to why ground 1 was rejected (see [15] above).  The primary judge’s reasons for rejecting ground 2 are set out in [53] of his Honour’s reasons for judgment.  In both instances, the primary judge’s reasons amount to little more than assertions or conclusions.  In particular, in respect of ground 1, the primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE.  His Honour said that this matter had been expressly taken into account in the IAA’s reasons “as summarised above”.  No specific cross-reference was given to any particular part of the IAA’s reasons for decision which the primary judge considered supported his conclusions.  In particular, no specific cross-reference is given for his Honour’s conclusions that:

(a)          the IAA took into account the appellant’s siblings’ suspected links to the LTTE; and

(b)          there was no failure by the IAA to consider the familial connection of the appellant to his siblings.

[48] These difficulties are not overcome by the fact that in [37] of the IAA’s reasons for decision it stated that it had considered the appellant’s circumstances “in their totality”.  It seems, however, that the primary judge viewed this statement as determinative (see [51] of his Honour’s reasons).  Whether in fact the IAA considered the appellant’s circumstances in their totality fell to be determined not by a mere assertion to that effect by the IAA, but by a careful objective analysis of the IAA’s reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant.  The primary judge conducted no such analysis or evaluation and simply accepted and acted upon the IAA’s bald assertion. 

[49] Similar difficulties are presented by the inadequacy of the primary judge’s reasons for rejecting ground 2.  In [52] of his Honour’s reasons for judgment, the primary judge referred to the IAA’s identification of the appellant’s mother as a person who had complained to the HRC, yet she and other members of her family continued to reside in Sri Lanka in the absence of any harm during the period since the appellant left Sri Lanka.  His Honour then said at [53] that the IAA’s adverse reasoning “was open on the material and cannot be said to lack an evident and intelligible justification”.  As the Full Court observed in DAO16 at [48], to simply state that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion.

[50] As to the appellant’s complaint that the IAA failed to give adequate reasons as to why he was not at risk, the primary judge referred at [53] to the significance which the IAA attached to the appellant’s release and its finding that he suffered no harm from the interrogations.  Reference was also made to the IAA’s findings that neither the mother nor other members of the appellant’s family been harmed since he left Sri Lanka.  What is missing from the primary judge’s reasons, however, is any attempt to address the appellant’s reliance on the Guidelines, or the significance of his uncontested evidence that his siblings were still missing. 

[51] Nor does the primary judge adequately explain why he did not accept the significance in the appellant’s case of his claim that he had been threatened in August 2012 with the same fate if he were to continue to complain to the authorities about their disappearance.  This threat, which the IAA found had been made, arguably put the appellant in a different position from his mother.  It is possible that the primary judge had this claim in mind in [53] of his reasons for judgment and the reference there to the appellant having “suffered no harm in relation to the interrogations that then subsequently took place…”.  But it is far from clear that this is what his Honour had in mind, bearing in mind that the appellant’s complaint was not that he had suffered harm in relation to the August 2012 interrogation, but rather that he was threatened with harm on that occasion if he persisted with his complaints concerning his siblings’ disappearance.  This ambiguity further exposes the inadequacy of the primary judge’s reasons. 

[52] These matters were relied upon by the appellant before the IAA.  They were also prominent in his judicial review challenge before the FCCA.  In my respectful view, the matters had to be directly addressed by the primary judge, but they were not.  Both the appellant and any reader of his Honour’s reasons for judgment is left to speculate as to why these matters were not viewed to be relevant and significant, and arguably provided some support for the appellant’s judicial review challenge. 

[53] Secondly, and related to the first matter, the primary judge never grappled directly with important elements of the appellant’s primary claim.  That claim was that the IAA fell into jurisdictional error in failing to consider the risk to the appellant by virtue of his imputed links to the LTTE by reason of his family association with the two missing siblings.  At the forefront of this claim the appellant relied on three paragraphs in the Guidelines which identified “risk profiles”, in particular sub-paragraph 6.  The primary judge made no reference at all to the Guidelines.  Nor did he explain why the appellant’s reliance on them was misconceived.

[54] It may well be that there is an adequate explanation as to why the Guidelines did not apply.  But, if that is so, it is not evident from a fair reading of the primary judge’s reasons for judgment.  The appellant (and, indeed, any other reader of the reasons) is simply left to speculate as to why relevant parts of the Guidelines, which the appellant squarely raised before both the IAA and the primary judge, did not indicate that he had a risk profile.  The primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE and also that it did not fail to consider the familial connection.  But, as noted above, the primary judge made no express cross-reference to any part of the IAA’s reasons for decision to underpin these assertions.  One rhetorically asks whether his Honour had in mind the IAA’s reasons at [10] and/or [13] of its reasons for decision.  If so, a related question arises as to how these paragraphs provide an adequate response to the appellant’s claims.  It was an important part of his case that, in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two siblings remained missing and that he was threatened with the same fate if he continued to complain about their disappearance.

[55] It goes without saying that these ambiguities and shortcomings in the primary judge’s reasons for judgment are not resolved by reference to what was said in the transcript.  Reasons for judgment should speak for themselves.  They are directed not only to the parties but to the community at large who will not have easy access to the transcript.

[56] It is proper to acknowledge that the FCCA’s migration jurisdiction is a high volume and challenging jurisdiction.  Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided.  Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties’ respective cases.  Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party’s case.  It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court’s reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.