ACM18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 1245
•26 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ACM18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 1245
File number(s): MLG 52 of 2018 Judgment of: JUDGE FORBES Date of judgment: 26 November 2024 Catchwords: MIGRATION – protection – judicial review of decision of Immigration Assessment Authority to refuse a Safe Haven Enterprise Visa – where applicant sought to raise new information at the review – whether the new information was credible personal information – whether new information capable of being believed – where Authority obtained and relied on other new information to assess merit of the applicant’s information – misapplication of s 473DD conceded by Minister – whether error material – whether realistic possibility of a different outcome - applicant entitled to relief Legislation: Migration Act 1958 (Cth) s 36, 65, 473DC, 473DD Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196
BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074
DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Plaintiff M174/2016 v Minister for Immigration andBorder Protection (2018) 264 CLR 217
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590
Division: Division 2 General Federal Law Number of paragraphs: 76 Date of hearing: 14 March 2024 Place: Melbourne Counsel for the Applicant: Mr Sharify Solicitor for the Applicant: Carina Ford Immigration Counsel for the Respondents: Mr Yuile Solicitor for the Respondents: Clayton Utz ORDERS
MLG 52 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACM18
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
26 NOVEMBER 2024
THE COURT ORDERS THAT:
1.A writ in the nature of certiorari be issued quashing the decision of the Second Respondent (the Authority) made on 15 December 2017 in matter no. IAA17/02603.
2.A writ of mandamus be issued directing the Administrative Review Tribunal to hear and determine the matter according to law.
3.The First Respondent pay the Applicant’s costs calculated in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
On 15 December 2017 the Immigration Assessment Authority (the Authority or the IAA) affirmed a decision of the Minister’s delegate not to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). By his amended application to this Court dated 15 February 2024, the applicant seeks judicial review of the Authority’s decision.
The applicant is a Sri Lankan national who expresses fear of harm from government authorities should he return to Sri Lanka for numerous reasons including on the ground of his actual or imputed political opinion as a former serving member of the Liberation Tigers of Tamil Eelam (LTTE).
In reaching its decision to uphold the visa refusal, the Authority accepted that the applicant was involved with the LTTE. However, the Authority determined that it could not consider new information provided by the applicant, namely his claim that he was a cook and personal assistant to Velupillai Prabhakaran, the LTTE leader, as the Authority was not satisfied that it was “credible personal information”.
In the judicial review proceeding the applicant elected to press a single ground of review, asserting that the Authority had incorrectly applied s 473DD of the Act by failing to apply the definition of “credible” to the new information. By reason of the error the applicant contends that the Authority incorrectly failed to consider the new information which denied him the realistic chance of a different outcome on the review.
The applicant chose to abandon an alternative ground which alleged that the Authority made an irrational finding in rejecting one of his claims for protection.
This is a case about the materiality of an admitted error.
As discussed in the reasons which follow, the Minister concedes that the Authority erred in its assessment of whether the new information was “credible” in the sense of “capable of being believed”. The Minister accepts that the Authority’s approach to the relevant new information was an error of the type described in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 294 FCR 150.
Notwithstanding the concession, the Minister argued that the error was not material and therefore not jurisdictional.
In my view the admitted error was jurisdictional. I am satisfied that if the Authority had assessed the new information according to law, there is a realistic possibility that the Authority may have come to a different conclusion about the applicant’s LTTE profile and therefore may have reached a different conclusion on his claims for protection.
The applicant is entitled to the relief he seeks in the amended application.
BACKGROUND
The applicant entered Australia as an irregular maritime arrival on 8 September 2012. On 3 February 2016 he made an application for a Safe Haven Enterprise Visa (the visa).
It is not presently necessary to record the full suite of claims the applicant made in support of his application for the protection visa. Suffice to say, he gave a history of involvement with the LTTE, including having been captured and detained by the organisation and required to undertake forced physical training. He denied that he was ever a member of the LTTE but claimed that as a single male who lived in an LTTE controlled area and having illegally departed the country, he believes that he remains under suspicion for his involvement with the LTTE and may be at risk of interrogation, inhumane treatment, torture or disappearance if he were to return.
On 3 May 2017 a delegate of the Minister refused the visa application. In a long and comprehensive set of reasons, the delegate concluded that the applicant did not face a real chance of serious harm for reasons of his race, imputed political opinion, due to living in an area formally controlled by the LTTE, due to being a Tamil with mental health issues or for being a failed asylum seeker who departed Sri Lanka illegally. The delegate found that the applicant did not meet the criteria for protection as a refugee under s 36(2)(a) of the Act, nor was he found to be a person in respect of whom Australia owed protection obligations under the complementary protection criteria in s 36(2)(aa).
Notwithstanding the delegate’s refusal of the visa, the delegate did accept that the applicant had:
(a)received basic LTTE training in a jungle camp at the end of 2008;
(b)several members of his family killed in shelling in March 2009;
(c)been detained in rehabilitation camps from May 2009 to October 2010;
(d)experienced interrogation and physical harm during detention; and
(e)reported to authorities intermittently after his release in October 2010.
IAA review
On 8 May 2017 the visa application was referred to the Authority for review pursuant to the fast track review process prescribed in Part 7AA of the Act.
The Authority corresponded with the applicant and informed him that it had received all documents the Department considered relevant to his case. The Authority informed the applicant that it would proceed to determine his application on the basis of the information received from the Department, unless the Authority decided to consider “new information”.
A fact sheet and Practice Direction[1] provided to the applicant by the Authority each explained how written submissions could be provided to the Authority and the limited circumstances in which new information could be considered. The applicant was put on notice that any written submission should be concise and should address only why the applicant disagreed with the decision of the Department and any claim or matter which the applicant believes was overlooked. The fact sheet reinforced that any new information (i.e. information that was not before the Department) could only be considered in the circumstances set out in s 473DD and that exceptional circumstances would be required.
[1] CB 330-334
On 29 May 2017, the applicant’s representatives provided a written submission to the Authority, which attached a further written statement from the applicant explaining why he did not agree with the delegate’s decision. In that statement[2], the applicant provided new information which recanted his earlier denials of involvement with the LTTE and claimed that he had been a cook and personal assistant to Velupillai Prabhakaran, the LTTE leader (the cook claim). Relevantly, the applicant’s statement asserted, inter alia:
[2] CB 379-380
Involvement with the LTTE
I had substantial involvement with the LTTE but when I arrived in this country, I was specifically warned by others that if I do say about my full involvement and deep participation with the LTTE, I would be in prison here for a long period of time because of the law that prohibits LTTE. Also I was warned that ASIO will detain me. Now I have decided, considering my current plight that I may be sent back, I fully disclose my being very involved with the LTTE. This is absolutely true.
I must confess that I was very close to the LTTE leader Mr. Prabhakaran. My initial involvement started in 2004. I joined the LTTE movement and went through training. I was stationed at Frontline Security in the Manalaatru area. During that period there was a temporary peace deal without war and therefore, at that time I did not participate in the battle. In the year 2005, I was taken in to be in the Security Section of the LTTE leader Mr. Prabhakaran. As I was good in cooking, I was taken in to the section which was doing the cooking for Mr. Prabhakaran and his immediate security forces. I did this until the end of 2008. Apart from the cooking, I was also involved in the security section and also worked as a personal assistant to him. In 2009, when the war intensified, I got involved in the Defence of the village people. In 2009, February, there was a confrontation between the LTTE and the government forces, during which I got injured.
Thereafter I was admitted to the Puthumaathalan hospital for treatment. When the injury somewhat healed, I still continued to be in the Mullivaikal area along with the LTTE group to protect the people. Once the war came to an end, we surrendered and the Sri Lankan government forces decided to capture us. I was detained in the Vavuniya Omanthai and also Velikanthai Detention Camp administered by the Sri Lankan government forces. I was released after nearly a year and a half. After my release too, the Criminal Investigation Department (CID) continued to call me for frequent investigation. It was a continuous threat and harassment. I was required to sign at the Atchuveli Army Camp on a regular basis. I could not go through this fear, anxiety and frequent threat anymore and thus I had to decide to flee from the country.
In 2012, I sought protection in Australia coming by boat. As you would understand, it was very difficult to fully explain this involvement because of sheer fear of getting into more and more problems by declaring the whole story. I also learnt that there were lots of people who declared of their involvement with the LTTE were immediately sent back or were kept for a longer period of time in the Australian Detention. It is because of this fear, I did not disclose my full story.
Please pardon me for this and give me safety and protection in this country. As you would understand, if I do go back, I would have no chance but to be arrested, detained and even killed by the Sri Lankan army.
All this information regarding the applicant’s alleged involvement with the LTTE was new. It was the first time that the applicant had raised a claim that he had voluntarily joined the LTTE and that he remained a member until the end of the civil war.
Section 473DC of the Act defines “new information” as any documents or 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.
It is conceded by the Minister that the information regarding the applicant’s involvement with the LTTE was new information for the purposes of the statutory scheme.
Nonetheless, section 473DD provides that the Authority must not consider new information unless:
(a) there are exceptional circumstances; and
(b)[…] the new information:
(i) was not and could not have been provided to the delegate; or
(ii)the new information is credible personal information which was not previously known, and had it been known may have affected consideration of the applicant’s claims by the delegate.
(emphasis added)
In determining whether there are exceptional circumstances to justify the consideration of new information under s 473DD(a), the Authority is required as a first step to consider the alternative criteria in s 473DD(b). That construction of s 473DD is now well settled[3] and it is not contested in these proceedings.
[3] AUS17 v Minister for Immigration and Border Protection (2020) 384 ALR 196 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ
After receiving the new information from the applicant in the form of his statement, the Authority requested further information from him to assist in determining whether the tests for the consideration of new information under s 473DD were met. The applicant was also invited to attend an interview before the Authority to discuss “Information about your recent claim that you voluntarily joined the LTTE in 2004 and in 2005 you are taken in to the Security Section of the LTTE leader Prabhakaran where your role was cook and personal assistant to Prabhakaran”[4].
[4] CB 467
In preparation for its interview with the applicant and his representatives, the Authority obtained and decided to consider a biographical essay by the author D.B.S Jeyaraj dated 21 November 2014 which traversed the “Life and Times of Tiger Supremo Veluppillai Prabhakaran” (the Prabhakaran article). This lengthy article was obtained by the Authority of its own volition and was, undoubtedly, also “new information” pursuant to s 473DC(1) of the Act. In other words, the Authority procured new information for itself to assist in the determination of whether the new information sought to be relied upon by the applicant met the threshold for consideration under s 473DD.
The Prabhakaran article included information which detailed aspects of the LTTE leader’s lifestyle including his fondness for cooking and his dietary preferences. Relevant paragraphs of the essay include the following observations:
“Prabhakaran was also a “puritan” in many ways. He neither drank nor smoked and even advocated sexual abstinence for all in the early days of the movement. Order and cleanliness was almost an obsession. He was a stickler for discipline. He was always neatly dressed preferring “bush shirts” and short-sleeved shirts. The bush shirt was helpful as it covered hidden firearms. It is said that even during the early stages of militancy when there was an acute shortage of funds, Prabhakaran would wash and iron his few clothes regularly and always maintain a dapper appearance.
He was a good cook and also fond of good food. He relished Chinese cuisine. Prabhakaran was also fond of Pittu, coconut sambal and Fried shrimp. He also liked Iguana and tortoise flesh. He liked fruits and natural bee’s honey. Usually LTTE cadres under punishment are assigned duties in the kitchen. Prabhakaran would encourage cadres to cook saying “only a good cook can be a good guerilla”. He would often cook or help out in the kitchen when at home. A close relative who visited him once was flummoxed to see the feared guerilla leader busily scraping coconuts in the kitchen.”
IAA Decision
On 15 December 2017 the IAA affirmed the delegate’s decision not to grant the applicant a protection visa and published its reasons for doing so.
At paragraphs [10]-[16][5] of its reasons, the Authority set out a summary of its exchanges with the applicant during interview and its findings about the new information on which the applicant hoped to rely. The Authority found that it was not satisfied that the new information about the applicant’s role in the LTTE as cook to Prabhakaran was credible personal information. The Authority’s pathway of reasoning is instructive:
[10]At the IAA interview the applicant stated that he had not previously provided the information to the Department because he had been told before his arrival in Australia that if he disclosed he was a member of the ‘movement’ (LTTE) he would be deported by ASIO and as he feared returning to Sri Lanka he believed he could not disclose his membership. He did not talk about it for four years, but now that his application has been rejected by the Department he believes he has to disclose the information. In addition, he believes his psychological condition (PTSD) has meant that it has been very difficult to disclose the information.
[11]Although I accept that applicants arriving by boat from Sri Lanka were told by other unauthorised maritime arrivals (UMAs) from Sri Lanka they should not disclose their involvement with the LTTE to the Australian authorities, I am not satisfied that over the course of the four years from his arrival to his SHEV interview with the delegate in August 2016 that he could not provide the information to the Department or in the additional nine months before the delegate made his decision. The applicant was represented at his interview and his representative made submissions following the interview. Whilst I accept that the applicant was receiving counselling for PTSD in 2015 it was not until the counselling session after the decision in May 2017 that he decided “to tell the truth”.
[12]I then gave consideration to whether the new information was credible personal information. In order to determine whether the applicant’s evidence was credible about being a cook and personal assistant to Prabakharan I obtained new information about Prabakharan, specifically his food preferences and information about the discovery of Prabakharan’s personal files which included lists of his military personnel. I consider there are exceptional reasons to consider this new information in order to assess whether the applicant’s claims to have been Prabakharan’s cook and personal assistant is credible personal information.
[13]At the 2017 IAA interview the applicant stated that he was recruited to the LTTE in 2004 and underwent training for about two months. His previous evidence was that he had been forcibly taken by the LTTE for training for a period of two weeks at the end of 2008. At the IAA interview he stated that LTTE members frequently spoke to students on their way to their studies using propaganda to try to get them to join the movement and after one of these occasions he decided to join. He was not ‘forcibly’ recruited. None of his other family members were members of the LTTE. After his two months training he decided to do cooking classes as cooking interested him as a profession. He was then assigned to the Frontline Security regiment to cook for the LTTE leader Prabhakaran. He and 3 or 4 other ‘boys’ cooked for him and all his staff. He did this for four years from 2004 until 2008 when he was injured in shelling.
[14]I asked the applicant several questions about Prabhakaran’s food preferences, dietary requirements and cooking instructions. The applicant stated he ate the same as everyone else – usually rice and curry. After repeated questioning he stated he was instructed not to cook oily food due to Prabhakaran’s cholesterol concerns and the only food preference the applicant could suggest was meat and pork. I put information to the applicant from a biographical essay by D.B.S. Jeyaraj published in November 2014, which stated that Prabhakaran ‘was a good cook himself and fond of good food. He relished Chinese cuisine and was also fond of pittu, coconut sambal and fried shrimp. He also liked iguana and tortoise flesh. Usually LTTE cadres under punishment were assigned kitchen duties. He would encourage cadres to cook saying “only a good cook can be a good guerrilla”’. The applicant responded stating that he was instructed to use a cook book translated from Indian, he had mentioned Prabhakaran ate pittu and any LTTE cadre under punishment did not cook in the Frontline security unit. He could not remember what Prabhakaran said about good cooks. I put to the applicant that despite being asked several times he had not identified any of the food that Prabhakaran was known to prefer even though he claimed to have cooked for him for four years.
[15]The applicant also claimed at the interview that he was Prabhakaran’s personal assistant. When asked what he meant by this he said he washed his clothes and kept the compound clean. I put to him that after Prabhakaran’s death there was a report in July 2009 that his personal files had been found buried in several locations. These files included military personnel details. If the applicant had been a personal assistant and cook to Prabhakaran for four years it would seem likely that his name would be in those files. The applicant stated that he was only known by his nom de guerre, which was “Puliveeran” and the shortened form - ‘Puli’. I put to him that if the Sri Lankan Army (SLA) had known he had been cook and personal assistant to Prabhakaran this would explain why he was kept in a rehabilitation or detention camp for 18 months. The applicant insisted that they did not know and he never told them. When asked why he thought he was detained so long he said everyone was detained. When put to him that it was not the case that every Tamil person was detained he referred to being single and being detained for questioning about what he knew about the movement.
[16]On balance, I am satisfied that the applicant’s evidence that he voluntarily joined the LTTE is credible. However, having regard to the applicant’s paucity of knowledge about Prabhakaran’s food preferences, I am not satisfied that the new information about his role in the LTTE from 2004 to 2008 as cook to Prabhakaran is credible personal information. I accept that he was a combatant towards the end of the civil war with the LTTE and that he was kept in detention in rehabilitation camps for a period of 18 months after he surrendered to the Sri Lankan Army (SLA). I therefore find there are exceptional circumstances for considering the new information that the applicant was a member of the LTTE, although not in the role of cook and personal assistant to Prabhakaran for a period of four years.
[5] CB 485-486
JUDICIAL REVIEW
On 9 January 2018 the applicant applied for judicial review of the IAA’s decision in this Court. Prior to the hearing both parties filed submissions and the Minister filed a court book. On 13 March 2024, the applicant also filed an affidavit attaching the article which the IAA had obtained and was before the IAA when making its decision.
The parties appeared before me on 14 March 2024. Mr Sharify of counsel appeared for the applicant and Mr Yuile of counsel appeared for the Minister.
As a preliminary matter, Mr Sharify informed the Court that a ground of review, relating to irrationality, would not be pressed. Therefore, the applicant relied on a single ground, that:
1.The Authority applied the incorrect test under s 473DD of the Act by failing to apply the definition of “credible” as information that was capable of being believed.
PARTICULARS
(a)The Applicant claimed to be a cook for LTTE leader Prabhakaran (Prabhakaran Claim).
(b)The Authority refused to consider the new information based on information in an unsourced internet article, claiming Prabhakaran’s dietary preferences were not correctly identified by the Applicant.
Mr Sharify informed the court that the parties had agreed that the Court should receive into evidence the article entitled “Life and Times of Tiger Supremo Veluppillai Prabhakaran” by DBS Jeyaraj dated 21 November 2014. It was accepted that a copy of the article was before the IAA and it was agreed that a copy of the article had not been provided to the applicant.
By reason of the parties’ agreement for the article to be received into evidence, Mr Sharify informed the Court that the applicant did not intend to rely on his affidavit sworn 13 March 2024.
Applicant’s submissions
The applicant relied on his written submissions and counsel developed those at the hearing.
The applicant reiterated that as part of the Authority’s review he had provided new information whereby he claimed that he had been a cook and personal assistant to the LTTE leader Prabhakaran (cook claim). The applicant says he was interviewed by the Authority and asked questions about his claim to have been a cook. A number of questions put to him were derived from information contained in the article about Prabhakaran’s food preferences and dietary habits. Based on the applicant’s responses to this questioning, the Authority concluded that the applicant had a paucity of knowledge about Prabhakaran’s food preferences and was not satisfied that the new information about his role in the LTTE as a cook to Prabhakaran was credible personal information[6].
[6] CB 487 at [16]
It is common ground that in determining whether to consider that new information under s 473DD of the Act, the Authority relied on the Prabhakaran article which was itself new information. The applicant submits that resulted in error.
The applicant contends that the Authority incorrectly applied s 473DD(b)(ii). The applicant submits that the Authority failed to correctly apply the test of what constitutes credible personal information and prematurely dismissed the “cook claim” by improperly relying on other new information (being the article) that was not properly before it.
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16), Bromberg J stated that properly understood, what constituted “credible” for the purposes of s 473DD(b)(ii) was whether the information provided by the applicant was capable of being believed[7]. His Honour observed that the decision whether to consider new information was anterior to the “deliberative stage” of decision-making. At the anterior stage, s 473DD did not require the Authority to determine whether the proposed new information would actually impact its decision, rather the enquiry was whether it could do so.
[7] CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, per Bromberg J at [42]
This is to be distinguished from the deliberative stage of decision-making where the Authority may substantively consider the new information admitted under s 473DD, along with all other information before it, in reaching findings of fact necessary to determine whether to affirm or remit the decision to refuse the grant of a visa.
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (BTW17) a majority of the Full Court endorsed the approach taken by Bromberg J in CSR16 and found that the Authority could not undertake a “substantively evaluative process” at the anterior phase of decision-making. The decision on whether new information is admitted involves a different assessment and is to be undertaken before the substantive review.
The Minister accepts that the approach taken to the new information was an error as described in BTW17. The Minister accepts that the IAA went beyond an assessment of whether the relevant new information was “credible” in the sense of “capable of being believed”.
Given that concession, the relevant issue is whether the error is material and therefore jurisdictional.
On the question of materiality, the applicant submits that a substantive reason for the Authority’s rejection of his visa application was its finding that the applicant was not a high-profile LTTE member and had not been identified as such by Sri Lankan authorities.
The Authority found that the applicant had been affiliated with the LTTE at least towards the end of the Civil War in Sri Lanka and that he had spent 18 months in rehabilitation camps from May 2009 to October 2010 on suspicion of being affiliated with the LTTE. The Authority accepted that the applicant will be of interest to the Sri Lankan authorities on his return and that their standard investigation will reveal his history[8]. The Authority also found that there is a real chance that the applicant will be monitored on return to his home village as a result of his former detention and illegal departure. Notwithstanding these findings, the Authority found that the applicant had never admitted to the authorities that he had a role in the LTTE and it is likely that the authorities have never suspected or perceived him to be anything other than affiliated with or being a low-profile LTTE-cadre. It is predominantly because of this “low-profile” finding that the Authority concluded that there was only a remote chance that the applicant will be detained for more than a few days or that the applicant would suffer serious harm on return to Sri Lanka.
[8] IAA’s reasons at [35], [47]
The applicant’s case is that if the Authority had followed the correct procedure and properly applied the test to determine the admissibility of the new information (i.e. the applicant’s claim of being a cook for Prabhakaran for 4 years) then both the claim and the article would have been received as new information and a different decision-making course would have been followed with the possibility of a different outcome.
The applicant submits that it is not necessary to speculate about how his claims for protection might finally have been determined. Rather, to establish jurisdictional error it is necessary only to demonstrate that the decision-making process miscarried and that a different course would have given rise to the possibility of a different outcome.
For example, had the Authority admitted the new “cook information” at the anterior stage, its assessment of that claim by reference to the article may have taken a different form. The Authority might have put the applicant or his representatives on notice about the content of the article and/or provided a copy of it to him for response. The applicant may have been afforded and taken the opportunity to provide more fulsome and detailed responses or to perhaps raise issues about the quality and accuracy of the article and the views expressed by its author.
The applicant submits that the error is plainly material because acceptance of the “cook claim” would or might have fundamentally altered the Authority’s overall assessment of the applicant as a low-profile LTTE cadre. The applicant’s claim was that he was a cook and assistant to the LTTE leader for a period of 4 years, a claim which should mark him as a close associate. If that claim were true and were to be discovered by the Sri Lankan authorities, even if presently not known to them, the applicant would not be regarded as low-profile and he would likely face an elevated risk of harm.
Minister’s submissions
The Minister contends that the Authority’s error was not material for two alternative reasons.
First, the Minister submits that the relevant new information (i.e. the cook claim) could not in the context of the applicant’s claims overall, have made any difference to the outcome of the applicant’s case even if it had been accepted.
Secondly, the Minister contends that the consideration the IAA gave to the cook claim was no different to the consideration it would have given that information if it had been accepted as new information. The outcome of that consideration, and the claim as a result, would have been the same.
The Minister submits that in order to demonstrate materiality of any error, the applicant must make good that there would have been a different procedure and the possibility of a different result.
The Minister reminded the court that the fast-track procedure under Part 7AA of the Act involves limited review. It is ordinarily undertaken as an on-the-papers review of the material referred to the Authority by the Department. There is very limited scope for the receipt of “new information”.
The Minister submitted that s 473DE did not apply and that there was no obligation on the Authority to have put the Prabhakaran article to the applicant in its entirety. The Minister submitted that the article was of limited scope and only had relevance for the purpose of assessing the credibility of the applicant’s “cook claim”. It is submitted that the article had no other relevance to the applicant’s claims for protection and no utility in consideration of his claims generally. The Minister submitted that an article of such limited compass was not one which was of such significance that it “would” as distinct from “might” be a reason or part of the reason for refusing the grant of the visa[9].
[9] Cf. Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [9]
Based on the finding that the applicant had never admitted his role with the LTTE to the Sri Lankan authorities, the Minister submits that nothing in the Authority’s analysis would have been altered by the addition of the cook claim. The premise of the IAA’s analysis – that the applicant was known or assumed to be a person affiliated or a low-level cadre, even though he had in fact been more – would have been the same. It is submitted that non-acceptance of the Prabhakaran Claim as new information was not material, because it would not in context have altered anything about the assessment of the claim for protection.
In relation to the second reason why the Minister contends that the error is immaterial, the Minister submits at [24] of its written outline that:
“It is difficult to imagine a review of a factual claim that more closely resembles final consideration than that in the present case. The IAA, on receipt of the new information, found relevant information of its own volition to assist it in assessing the facts and in interviewing the applicant. The IAA then invited the applicant to an interview, at which it discussed the applicant’s new claims with him in some detail. As a part of that discussion, the IAA asked the applicant questions and put to him potential difficulties with his evidence that, in part, drew upon the information that the IAA had found for itself. The IAA was, ultimately, unpersuaded by the applicant that the Prabhakaran Claim was credible.”
The Minister submits that unusually for a Part 7AA fast track review case, the Authority had the benefit of seeing the applicant in person and the ability to ask him questions about his new claims for itself. The applicant was also afforded the opportunity to explain his claims and to answer the Authority’s concerns. The Minister submits that the IAA also had the benefit of the article which was discussed with the applicant at interview. The Authority considered all of that information and it was open to reject the new claims as not credible. In the circumstances, the Minister submits that there is no realistic possibility of a different outcome even if the “cook claim” had been received for consideration as new information.
In making this submission the Minister relied upon ABH18 v Minister for Home Affairs [2020] FCA 620 where her Honour Justice Charlesworth said at [45][10]:
“If the new information satisfied the requirements of s 473DD of the Act, the appellant was entitled to have that material assessed against the whole of the material before the Authority. The obligation to consider the information would have included an obligation to make a finding as to whether or not the claimed recent events had in fact occurred in light of all of the circumstances of the appellant’s case. That is substantially what the Authority did, albeit purportedly under the procedural framework of s 473DD. In the unusual circumstances of the appellant’s case, the Authority did give substantive consideration to the information of the kind it would have been obliged to give, had it not determined that it was precluded by s 473DD from doing so.”
[10] See also DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857, [116] (Rangiah J), and BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272, [154] (Murphy J)
The Minister rejects the applicant’s complaint that he did not have the opportunity to squarely respond to the Prabhakaran article because it was not shown to him as new information. The Minister points to the decision record which reveals that the Authority questioned the applicant about the incidents of his alleged role as a cook, and sought to elicit evidence regarding the LTTE leader’s food preferences, dietary requirements and cooking instructions. These questions were directed to assessing the veracity of the cook claim and the Authority considered the applicant’s responses as far from satisfactory. The Minister asks, rhetorically, “what more could the Authority have done on a final basis”.
The Authority rejected the new evidence, albeit in error. However, the Minister’s short point is that the Authority gave substantive consideration to the cook claim and that nothing different could have occurred even if it had been accepted as credible personal information and considered as such. It is submitted that the conceded error was not material.
Legal framework
The decision of the Authority was made according to the fast track review process in Part 7AA of the Act. As observed by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]:
“[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority [...] is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.”
The practical role of the Authority under Part 7AA was helpfully explained by Judge Kelly in CUZ17 v Minister for Immigration & Anor [2019] FCCA 3074 at [24] - [25] where his Honour stated:
“[24] In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review. Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority; requires that the Authority should ordinarily conduct its review on the papers; provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed; and authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.
[25] In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant. The Authority may, but is under no duty to, get any documents or information that was not before the delegate. Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.” (emphasis added, citations omitted)
Part 7AA emphasises that there is no duty to conduct a hearing or request new information from the applicant[11]. Relevantly, section 473DC provides as follows:
[11] See ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439
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.
CONSIDERATION
The Authority failed to consider whether the applicant’s cook claim was credible new information, in the sense of being information which was “capable of being believed”. The IAA conflated the task of assessing the credibility of the information with the substantive task of deliberating on the claim for protection itself.
In all the circumstances of this case, I am satisfied that the error was material.
For an error to be material, and thus jurisdictional, there must be a realistic possibility that the decision in fact made could have been different had the breach of the statutory condition not occurred. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact. The applicant bears the onus of proof of establishing the counterfactual and the materiality[12].
[12] See MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
It is common ground that the Authority’s findings regarding the risk of harm to the applicant are premised on its finding that the applicant would not be considered by the Sri Lankan authorities as more than a low-profile LTTE cadre. Based on what the Sri Lankan authorities are presumed to currently know of the applicant’s history, that “low-profile” assumption forms the basis of the Authority’s conclusions that the applicant will face a remote risk of harm notwithstanding that he will be interrogated on return and monitored for some time.
In my view, the possibility of a different finding in relation to the “cook claim” (given the nature of that claim and the possibility that it will impute a direct close association between the applicant and the LTTE leader) gives rise to the possibility that the Authority might have formed a different view of the profile of the applicant for the purposes of assessing his claim for protection. Those possibilities in the decision-making process are realistic and not far-fetched.
There is some force in the Minister’s submission that the “cook claim” did receive substantive consideration and assessment, notwithstanding the error. The Minister argued that the consideration that the Authority gave to the claim was no different to the consideration it would have given that information if it had been accepted as new information under s 473DD.
However, the probability that the outcome for the applicant might have been the same does not displace the realistic possibility that it might not. In my view, the materiality of the error lies in the possibility that had the correct approach been followed by the Authority, and the cook claim and Prabhakaran article received as new information, the assessment of the claim might have followed a different pathway of decision-making and might have led to a different outcome on the application. The possibility that the Authority might have come to a different conclusion on the credibility of the “cook claim” inexorably leads to the possibility that the Authority might have formed a different assessment regarding the applicant’s overall risk profile. These possibilities are sufficient for the error to be regarded as material.
I do not accept the Minister’s submission that there is no reason to believe that the applicant’s low-profile would change, even if the Authority had accepted the claim that the applicant had been a cook. The Minister submits that the assessment of the applicant has been based on what the Sri Lankan authorities currently know and what they are likely to learn on interrogation of the applicant on his return. The Minister says that the applicant has never admitted to his involvement with the LTTE and that he could be expected to maintain his denials. For that reason, the Minister submits that there is no reason to believe that the applicant will face any greater risk than that currently assessed by the Authority.
I do not accept the Minister’s submission that nothing would have been altered by the addition of the “cook claim” given the applicant’s claim that he had never admitted his role as a cook to anyone. The applicant’s silence about that role does not mean that his fear of persecution and harm arising from that role could not be real.
The Minister’s submission in my view does not acknowledge the possibility that, if true, the applicant’s close association with the LTTE leader might be discovered, even if not now known. Whether through interrogation or otherwise, if the applicant’s claim does emerge there is a real possibility that the applicant will be perceived in an entirely different light by the Sri Lankan authorities. Of course, these are matters of speculation, but it is sufficient that there is a realistic possibility that the Authority might have formed a different view about the applicant’s risk profile had it not erred in its consideration of the new information.
DISPOSITION
For the reasons set out in this judgment I am persuaded that the Immigration Assessment Authority misapplied the test in s 473DD of the Act in its decision dated 15 December 2017 and that the error was jurisdictional.
The decision of the IAA will be quashed and the matter remitted to the Administrative Review Tribunal to be heard and determined according to law.
I will hear the parties on costs.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 26 November 2024
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