Ajg17 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs
[2021] FCCA 1079
•20 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AJG17 v Minister for Immigration Citizenship Migrant Services and Multicultural Affairs [2021] FCCA 1079
File number(s): MLG 189 of 2017 Judgment of: JUDGE A KELLY Date of judgment: 20 May 2021 Catchwords: MIGRATION – Safe Haven Enterprise (subclass 790) visa (subclass 790) – judicial review of decision of Immigration Assessment Authority – where applicant declared he could not return to Sri Lanka and sought protection in Australia –where matter referred to Authority for fast track review – where applicant sought to have Authority consider new information and new claim – where Authority declined to consider new information – whether Authority should proceed to consider the new information presented by the applicant – whether Authority failed to consider the applicant’s claims on a cumulative basis – whether new information upon which the applicant had sought to rely could have made a difference to the outcome of a de novo fast track review – whether Authority would have been satisfied there were exceptional circumstances which would justify considering new information – error conceded in failure to consider information via par 473DD(b)(ii) – whether error material – applicable principles – suggested errors objectively not significant – application dismissed Legislation: Migration Act 1958 (Cth) ss 65, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF Cases cited: AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (2020) 384 ALR 196; 94 ALJR 1007
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170
BKR16 v Minister for Immigration and Border Protection [2019] FCA 708;
BXT17 v Minister for Home Affairs [2021] FCAFC 9
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140
CRU18 v Minister for Home Affairs [2020] FCAFC 129
EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796
FDQ18 v Minister for Immigration and Border Protection [2020] FCA 1735
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401;
Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478
Minister for Home Affairs v DUA16 [2020] HCA 46 (2020) 95 ALR 54
Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 (2018) 162 ALD 427; 264 FCR 249
Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188;
Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1
Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82
SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421
Number of paragraphs: 106 Date of hearing: 5 May 2021 Place: Melbourne Solicitor for the Applicant: Mr Bandara Counsel for the Respondents: Mr Solomon-Bridge ORDERS
MLG 189 of 2017 BETWEEN: AJG17
Applicant
AND: MINISTER FOR IMMIGRATION CITIZENSHIP MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
20 May 2021
THE COURT ORDERS THAT:
1.Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The amended application filed on 16 April 2021 be dismissed.
4.The applicant pay the costs of the first respondent as agreed or assessed.
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction
By his amended application dated 16 April 2021, the applicant seeks prerogative relief in relation to a decision of the Immigration Assessment Authority (Authority) made on 10 January 2017 to affirm the decision of a delegate of the first respondent (Minister) refusing an application for a Safe Haven Enterprise (subclass 790) visa (visa) pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
The application should be dismissed. Contrary to the applicant’s submissions, the Authority did consider the applicant’s claims both individually and cumulatively. Further, while the Minister properly conceded there had been a failure by the Authority to consider both limbs of s 473DD(b) of the Act, I am not satisfied the applicant has discharged the burden of demonstrating that a failure to consider the subject information through the lens of par 473DD(b)(ii) of the Act would have made a difference in performing the procedural duty when assessing such information as was before it in making a decision whether it may proceed to ‘consider’ it. Nor am I satisfied that the items of ‘new’ information upon which the applicant had sought to rely could have made a difference to the outcome of the de novo fast track review.
Background
The background to the application is common ground and taken from the parties submissions.
On 10 September 2012, the applicant, a male Sri Lankan citizen of Tamil ethnicity, arrived in Australia without a valid visa.
In November 2013, the applicant made an invalid application for a protection visa.
By statutory declarations made on 12 November 2013 and 22 December 2015, the applicant declared he could not return to Sri Lanka and sought protection in Australia. The applicant’s claims principally related to his suggested association with the Liberation Tigers of Tamil Ealam (LTTE), his brother-in-law’s connection to the LTTE, instances of physical abuse by Sri Lankan authorities, and difficulties he had confronted with the Sri Lankan Navy concerning his fishing activities.
On 11 January 2016, the applicant applied for the visa.
On 29 August 2016, a delegate of the Minister made a decision to refuse the application.
The decisional record of the delegate was comprehensive. Relevantly to this application, the delegate found that the chance of the applicant being imputed with an LTTE connection based upon his Tamil ethnicity to be highly unlikely, doing so having regard to the absence of a political profile. The delegate examined in detail the applicant’s claim respecting his involvement in disputes between fishermen and naval authorities and between Tamils and Muslims. The delegate accepted that the applicant was one of the local Tamil fishermen who had attempted to stand up to action taken by the Navy in refusing to allow them to fish in certain waters, forcing them to move elsewhere; however, the applicant was found not to be a person of particular interest arising from such disputes and recognised that the applicant had been able to continue fishing albeit not in the ‘disputed waters’. The delegate had regard to detailed country information respecting the nature of fishing disputes, concluding that the situation had improved including by a reduction in the extent of the naval/military presence and the easing of restrictions that had been in place immediately post-war.
The delegate, having accepted that the applicant had been beaten, considered there was no information that indicated he would suffer serious economic hardship or a denial of a capacity to earn a livelihood which would threaten his capacity to subsist.
The matter was referred to the Authority for fast track review.
On 30 August 2016, the Authority sent the applicant a letter, which enclosed a document addressing Frequently Asked Questions together with a Practice Direction. That material advised the applicant of the Authority’s limitations in dealing with any new information he may wish to supply, and the limitations in holding further interviews on fast track review.
On 20 September 2016, the applicant’s representative sent to the Authority an email requesting that it give consideration in the review to the attached: further statutory declaration made by the applicant (which raised a new claim, to the effect that the applicant had sold his fishing equipment prior to departing Sri Lanka); two affidavits from fishermen (in markedly similar form); a letter from a Member of Parliament, and; certain media articles.
On 10 January 2017, the Authority affirmed the delegate’s decision. As relevant to the grounds of review, the Authority found it could not consider the ‘new’ information.
Procedural History
On 30 January 2017, the applicant’s lawyer filed an application seeking judicial review of the decision of the Authority. The application contained nineteen omnibus and unparticularised grounds of review which, in the event, were not pressed. On the same date, the applicant filed an affidavit to which he exhibited a copy of the decision but adduced no further evidence.
On 15 February 2017, a response was filed on behalf of the Minister seeking dismissal of the application on the basis that the Authority’s decision was not affected by jurisdictional error.
The proceeding has been the subject of directions on two occasions. First, on 1 August 2017, orders were made that the proceeding be listed for final hearing and directions given affording the applicant opportunities to file and serve an amended and particularised application together with any further evidence and submissions. In the event, while none of those opportunities were taken at that time, the proceeding was listed for final hearing on 5 May 2021. Secondly, on 16 April 2021, an order was made permitting the applicant to file an amended application, any further affidavits and submissions.
On that date, the applicant filed an amended application together with submissions but did not file any further evidence. By his amended application, the applicant abandoned the original grounds of review and advanced two grounds of review.
As the matter progressed before me, the applicant’s submissions did not completely align with those contained in his amended application. As events evolved, counsel for the Minister addressed the issues as they arose and the matter was able to proceed without undue delay.
Ground 1 – cumulative assessment
Ground 1 of the amended application reads:
Having contemplated that the Applicant faced a real chance of serious harm if he were to return to Sri Lanka and having found that such harm came from Sri Lankan Government forces. Having found that the Applicant as a Tamil, there is a real chance that on his return he is at risk of abuse and mistreatment, notwithstanding DFAT advice about the improvement of the situation and thereby Immigration Assessment Authority fell into jurisdictional error.
The first ground of review was not further refined by any particulars and was liable to be rejected on that account as failing to demonstrate jurisdictional error.
Written submissions filed on behalf of the applicant were largely repetitive of the contention set out in Ground 1. Upon listening to the oral submissions of the solicitor-advocate for the applicant, I confirmed that he had read and considered the written submissions filed on behalf of the Minister. The applicant adhered to the position that the Authority had made findings, including by reference to Department of Foreign Affairs and Trade (DFAT) information, favourable to the contention that he faced a real chance of serious harm in Sri Lanka and, as was said, the Authority had thereby committed jurisdictional error in affirming the delegate’s decision. In addition, by oral submissions it was put that the Authority had also failed to undertake a cumulative assessment of the totality of the applicant’s material and claims.
Counsel for the Minister identified how the Authority had not made findings to the effect contended for by the applicant and further, how the Reasons demonstrated that the applicant’s claims had been considered both individually and cumulatively. I accept those submissions.
Resolution
The applicable principles respecting the statutory framework under Pt 7AA of the Act and those informing the manner in which the Authority is to discharge its core function of review were not in dispute. It is unnecessary to address those issues in detail in relation to Ground 1.
Contrary to the applicant’s generalised complaint, I am satisfied that the Authority gave detailed consideration to the applicant’s claims and to the referred material. In doing so, it clearly recognised, and considered certain information that may have been favourable to acceptance of some, or some part, of the applicant’s claims. But the contention underlying Ground 1 appeared to be that the preponderance of positive findings (as distilled by the terms in which Ground 1 had been framed), ought to have outweighed the negative findings and other material, including DFAT and other country information, and so resulted in a decision to remit the application for reconsideration: Act, s 473CC(2)(b).
Putting to one side that the weight to be attached to particular evidence was a matter within the exclusive province of the Authority and that this court has no jurisdiction to engage in merits review, it is appropriate to adopt the summary of findings in the Reasons as identified in the submissions filed on behalf of the Minister and as confirmed in the course of oral submissions:
(a)the applicant was stopped from fishing in the fishing grounds by the Sri Lankan Navy, but had exaggerated what happened as a consequence: [10];
(b)the applicant had fabricated several aspects of his claims: [17];
(c)the applicant would not be targeted by the Sri Lankan authorities for the reasons he had advanced: [17];
(d)the “Sri Lankan authorities did not take any steps against the applicant after initially questioning him about his brother-in-law in 2009”: [21];
(e)the fact the applicant remained in Sri Lanka for another three years, “indicates the Sri Lankan authorities did not suspect the applicant had any material connection to the LTTE”: [21];
(f)although the applicant had been assaulted in 1994 and in 2004 ([26]), DFAT reports “indicate that the overall situation for Tamils in Sri Lanka has improved since the end of the Sri Lankan civil war in 2009”: [28];
(g)DFAT and the most recent UNHCR guidelines “assess that Tamil civilians who live in former LTTE areas in the North and East, including Tamils that provided low level support to the LTTE or who had family members that are former members of the LTTE, may be monitored by Sri Lankan authorities, but are at a low risk of being detained or prosecuted”: [28];
(h)the Applicant had further exaggerated his claims regarding discrimination and harassment of Tamils: [29];
(i)the Authority was not satisfied that the matters claimed by the applicant (i.e. including being harmed in 1994 or 2004, having a name similar to an LTTE leader, having a hand injury, living in the Northern province, being Tamil, being a fisherman, having a fishing dispute with the Sri Lankan Navy, having a business with his brother-in-law, his brother-in-law being detained and rehabilitated, his applying for asylum, and/or his departing Sri Lanka illegally), individually or cumulatively, would “give the applicant a profile [such] that the Sri Lankan authorities would target the applicant for harm on suspicion of being connected to the LTTE”: [29];
(j)“credible information” before the Authority did not suggest the applicant had a profile of having substantial links to the LTTE or outstanding warrants and so did not have a profile such as those returnees who had been harmed: [32];
(k)the applicant had “no identification concerns, or criminal or security records in Sri Lanka that would raise the concern” on return to a Sri Lankan airport: [35].
As that summary of the reasoning indicates, and as confirmed by an examination of the Reasons, findings made by the Authority were not favourable to the applicant. Upon its findings, a conclusion that the applicant did not face a real chance of harm was well open. Further, insofar as the applicant sought to impugn the reasoning by reference to the Authority’s reliance on particular information in preference to other information it is clear that this was a matter for the administrative decision-maker: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, [11]; EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796, [53] (EGY18). Finally, I accept the submission on behalf of the Minister that the Authority dealt with each of: (a) his claims based on his LTTE associations: [21]-[22], [29]-[30]; (b) claims based on naval harassment and threat to his livelihood as a fisherman: [16]-[19]; (c) his claims arising from past dealings with the authorities: [29].
For those reasons, Ground 1 should be rejected. However, in light of the oral submissions made on behalf of the applicant respecting this ground it is necessary to say something further.
In discharging its core function of a de novo review, the Authority is generally required to evaluate the merit of an applicant’s claims, both individually and cumulatively. That is because the obligation of an administrative decision-maker is to look at the totality of a case and to stand back and assess the entirety of the material. Thus, a failure to consider the claims both individually and cumulatively may constitute jurisdictional error: Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401, [11]-[12]; Khan v Minister for Immigration & MulticulturalAffairs [2000] FCA 1478, [31]. It is unnecessary, in the present case, to examine those further principles where a decision-maker may be relieved of an obligation to undertake a cumulative assessment in circumstances where the individual claims have been rejected: Minister for Immigration and Border Protection v DDK16 [2017] FCAFC 188, [33]-[35]; BKR16 v Minister for Immigration and Border Protection [2019] FCA 708, [27]; FDQ18 v Minister for Immigration and Border Protection [2020] FCA 1735, [76].
Further, since the reasons of the decision-maker are to be read fairly and with an eye that is not keenly attuned to error, on judicial review the court is entitled to have regard to both the structure and content of the reasons as a whole: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
The reasons of the Authority also disclose a considered and comprehensive approach both to the analysis of the facts and applicable principles respecting the question whether the applicant satisfied the criteria for a protection visa. Furthermore, those reasons are structured in a manner which demonstrate that the issues were addressed in a considered and methodical, as distinct from a mechanistic or formulaic, manner. I also consider that the reasons demonstrate persuasively that the Authority undertook a holistic evaluation of the entirety of the material before it and thereby had regard to the claims both individually and cumulatively: see, e.g., [29], [41], [44], [49] and [52].
I am not satisfied that the Authority failed to consider the claims on a cumulative basis.
Ground 1 is rejected.
Ground 2 – new information
Ground 2 of the amended application reads:
The Immigration Assessment Authority erred in law and thereby fell into jurisdictional error when it did not consider the relevant new information /and or evidence as required by s.473 DD.
Particulars
The Applicant was able to provide the new evidence and had requested to do so but the Authority refused based on their discretionary powers. The Applicant’s evidence carried weight as personal and credible information and should have been considered notwithstanding the timing of the evidence. Furthermore, the two friends who were able to give evidence had just contacted the Applicant and were not able to provide evidence prior to the review.
Submissions
In contrast with the approach that had been taken in relation to Ground 1, the applicant’s written submissions did not distinctly address Ground 2, instead moving to a broad contention that the ‘new’ information had been material and so, as was said, should have been considered. Such oral submissions as were advanced on behalf of the applicant in relation to Ground 2 also asserted error without explaining precisely why that contention should be accepted. Contextually, the submission made to the Authority did not proffer any explanation as to why the Authority should have been satisfied of exceptional circumstances as might justify consideration of the new information. Nor did the submission to the Authority seek to address either limb of par 473DD(b)(i) or (ii) of the Act. In all the circumstances, I have re-examined the materials in the court book as bearing on this ground.
Commendably, Mr Solomon-Bridge for the Minister articulated Ground 2 as potentially expressing a twofold claim of jurisdictional error based upon a failure properly to consider whether it should have been satisfied of exceptional circumstances as would justify it in considering ‘new’ information, contrary to s 473DD of the Act; further, a failure in the exercise of the discretionary power conferred by s 473DC(1) of the Act to ‘get’ new information despite a request to be gleaned from the applicant’s statutory declaration to interview two witnesses who, hitherto had not been prepared to come forward or give evidence.
Resolution
It was conceded that the Authority had erred in the discharge of its procedural duty under s 473DD(b) of the Act when deciding whether it had been satisfied by the applicant there were exceptional circumstances as might justify consideration by it on a de novo fast track review of ‘new’ information that was sought to be placed before it. This concession had an impact upon all but the final complaint raised by the applicant for judicial review. On analysis, the final complaint arose under s 473DC of the Act and concerned whether there had been a failure to ‘get’ information for the purposes of the review by interviewing two new witnesses.
Although the scope of the issue arising on judicial review was to be substantially narrowed, it is still of some importance to bear in mind the statutory framework within which judicial review is being sought. That framework is provided by Pt 7AA of the Act which creates a system for a fast track review process respecting certain protection visa applications. By the combined operation of ss 473CA and 473CC of the Act, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fast track reviewable decision. Section 473CB of the Act identifies the material that must be provided to the Authority and includes the delegate’s decisional record: Act, s 473CB(1)(a).
In contrast with a review under Pt 5 or Pt 7 of the Act, Pt 7AA provides a fast track scheme being a mechanism of limited merits review: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23] (BYA17).
Division 3 of Part 7AA regulates the Conduct of review of a Part 7AA-reviewable decision and is arranged in three sub-divisions which: provide a statement of the natural justice requirements for the conduct of review; require that ordinarily a fast track review is to be conducted on the papers, and; regulate the use of any additional information. In summary, Div 3: provides an exhaustive statement of the natural justice hearing rule in a review conducted by the Authority (s 473DA); requires that the Authority should ordinarily conduct its review on the papers, (s 473DB); provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed, (s 473DC-DE) and; authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information, (s 473DF): BYA17, [2019] FCAFC 44, [31].
Sub-division C concerns the subject, Additional information, and comprises ss 473DC-473DF. By sub-div C, four matters are addressed: the conferral of power to ‘get’ new information; a confined power to ‘consider’ new information; an obligation to ‘give’ new information to an applicant, and; the issuing of an ‘invitation’ to give new information: Act, ss 473DC-473DF.
In general, the Authority’s overriding duty to conduct a fast track review is conditioned by a procedural duty to do so upon a consideration of the review material supplied to it by the Secretary. The only qualifications upon the performance of that procedural duty arise from the powers which are conferred by ss 473DC and 473DD respectively to ‘get’ and/or ‘consider’ new information. The proper performance of the procedural duty, as qualified by those powers, exhausts the requirements of natural justice in the conduct of a fast track review under Pt 7AA.
For the purposes of a fast track review, Pt 7AA provides separately for, and draws a distinction between, the discretionary powers conferred on the Authority to ‘get’ on the one hand, and to ‘consider’ on the other, information which answers the description of being ‘new’ information. The Authority is conferred with power, but is under no duty to ‘get’ any new documents or information that was not before the delegate: Act, ss 473DC(1)-(2). The Authority is also conferred power to invite a person to give new information in writing or at an interview: Act, s 473DC(3). The twofold criteria which may constrain the Authority from ‘getting’ new information is that it was not before the original decision-maker and that the Authority considers may be relevant: Act, pars 473DC(1)(a)-(b).
Further, in exceptional circumstances, s 473DD of the Act confers power to ‘consider’ new information. Given the course taken in the hearing of the application for judicial review, it is unnecessary to set out s 473DD. Suffice to say that s 473DD, which is expressed in imperative terms, proscribes the Authority from considering any new information unless the requirements of the section are met. If information is not ‘new’, the power conferred by s 473DD is not engaged.
For the purposes of Pt 7AA, the phrase ‘new information’ means, subject to that Part, any document or information of an evidentiary nature that was not before the Minister when the decision was made under s 65 to refuse the application and which the Authority considers may be relevant: Act, s 473DC(1); AUS17 v Minister for Immigration and Border Protection [2020] HCA 37, [3] (AUS17); Minister for Home Affairs v DUA16 [2020] HCA 46, [25] (DUA16); AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407, [2021] FCA 407, [33], [37]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [21].
The question whether there has been a failure to consider a matter required for the purposes of deciding whether a discretionary power conferred by the Act will turn upon consideration of the decision-maker’s reasons, read in light of the particular statutory context. Having regard to that reasoning, considered in the relevant statutory context, an inference may be available from the absence of any reference in the reasons to a particular matter that such matter had not been considered or was not considered to be material. Here, the specific context arises from the requirements of pars 473DD(a) and 473DD(b)(i)-(ii) of the Act. While the burden of demonstrating jurisdictional error lies upon the applicant, if it depends upon an inference that a matter had not been considered, such an inference may also be displaced: compare, e.g. (by analogy), EGY18 [2020] FCA 796, [45]-[51] (Perry J).
Section 473DD operates in the context of s 473DB which confers power to ‘get’ new information. And the power to ‘consider’ new information is not available unless the criteria to do so are met. The nature and scope of this power was recently considered by the High Court in AUS17. Properly construed, s 473DD imposes a procedural duty to assess such ‘new’ information as is before it in making a decision whether it may proceed to ‘consider’ it. In AUS17, the plurality held at [6]:
. . . s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
The reasoning in AUS17 has been characterised as mandating the way in which the assessment of ‘new’ information is to be undertaken pursuant to s 473DD: BXT17 v Minister for Home Affairs [2021] FCAFC 9, [137] (BXT17). In BXT17, a Full Court stated at [139]:
While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister’s term, “structure” its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a).
The Full Court found at [142], that the Authority had fallen into error in its consideration under s 473DD because it had failed to consider the criterion in par 473DD(b)(ii) before turning to par 473DD(a). In light of the concession made, it is unnecessary to address this issue further.
Notwithstanding that AUS17 had not been decided at the time of the Authority’s decision not to accept the ‘new’ information which the applicant had sought to place before it on fast track review, the Minister conceded that there had been a failure to perform properly the procedural duty cast on it by s 473DD in that, the Reasons supported an inference par 473DD(b)(ii) had not been considered for the purpose of addressing whether it had been satisfied by the applicant there were exceptional circumstances as would justify consideration of the further information upon which reliance was sought to be placed for the purposes of a de novo fast track review.
The concession having been made, the ambit of Ground 2 was significantly reduced.
Materiality
The question whether relief ought to be granted on the basis advanced by Ground 2 turned largely upon whether the error in the performance of that procedural duty had been material to the decision such that the decision was tainted by jurisdictional error. Several features of the case should be noted. First, in this court the applicant’s substantive complaint concerned the Authority’s alleged failure to obtain information from two witnesses whom, it was submitted, had been unwilling to provide any written statement but had indicated their preparedness to give oral evidence. Secondly, no evidence was adduced before the court and, more importantly, the Authority, identifying that the two witnesses had been unwilling to provide a written statement but were now willing to offer oral testimony; that is, the Authority was not informed of this issue by any means. Thirdly, despite the content of the Practice Direction and guide of Frequently Asked Questions, the applicant (who was represented) made no submission informing the Authority of the basis upon which it was being suggested that it should be satisfied there were exceptional circumstances which justified the Authority in including in the material for consideration on fast track review. Fourthly, the decision, the subject of the application for judicial review, was delivered before the recent decision of the High Court in AUS17. Fifthly, although the applicant’s submission had foreshadowed further material was to be supplied, this did not occur and the Authority, having waited three months, concluded it was appropriate to proceed to a decision: Act, s473DB(2). Sixthly, ss 5AAA, 473DB and 473DD(b)(i) of the Act cast responsibility on an applicant to specify all of the particulars of his or her claim to be a person entitled to protection and to provide sufficient evidence to establish such claim[s]. Seventhly, in that statutory context, par 473DD(b)(ii) must be understood as allowing for “a very limited second opportunity to provide evidence that might previously been provided”: AUS17, [2020] HCA 37, [9].
Once it is established that the Authority had been in error in the performance of its procedural duty to determine whether to include the new information in its consideration of the matter on a fast track review, it remains a separate question whether the significance of the error, the quality of the decision or the process by which it was arrived at indicates that the conduct of the Authority (whether by act or omission) is properly characterised as being affected by jurisdictional error. One means by which this question is to be considered is whether the error was material, in the requisite sense, to the fast track process or decision.
Jurisdictional error, in the sense relevant to the availability of relief on judicial review “consists of a material breach of an express or implied condition of the valid exercise of decision-making power conferred by the Act”: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, [29]-[31] (Hossain); see also SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421, [2]-[4], [45] (SZMTA); CRU18 v Minister for Home Affairs [2020] FCAFC 129; 277 FCR 493, [37]; BXT17, [2021] FCAFC 9, [143]-[144]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC).
The question of principle respecting materiality and the related onus of proof has been vexing.
On judicial review, the applicant as moving party bears the onus of proof in establishing jurisdictional error, a burden which does not shift to the Minister: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594, [67]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [24].
Nearly two decades ago, in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [36]-[38], Gleeson CJ identified as a fundamental problem that a visa applicant had failed to demonstrate that any practical injustice flowed from an asserted failure to accord procedural fairness by a decision-maker. While the issue being addressed was not framed in terms of materiality or onus, the reasoning of the Chief Justice proceeded on the basis that the applicant had failed, and indeed had not made any attempt, to establish the basis for the complaint and emphasised that “the concern of the law is to avoid practical injustice.” Stated in other terms, the concern on judicial review is the avoidance of practical injustice and that on review it is for the applicant to demonstrate injustice of that kind.
In Hossain, the plurality drew attention at [28] to the need to consider the consequences of breach of a statutory condition of administrative decision-making “in the real world” and held at [31]: “Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.” Further, as Edelman J stated at [78], “[the assessment of whether a person was deprived] of the possibility of a successful outcome, does not take place in a universe of hypothetical facts … [rather] the materiality of an error is assessed against the existing facts before the Tribunal.” However, Hossain did “not elaborate on the content of materiality” or “examine the onus of proof of materiality in an application for judicial review”: MZAPC, [2021] HCA 17, [24]. In MZAPC, attention was drawn to the qualification upon the requirement that ‘ordinarily’ the breach of a condition could not be material unless the breach could have resulted in a different result as incorporating a threshold of materiality of the error that has been identified: [1], [31]-[34].
In SZMTA at [45], Bell, Gageler and Keane JJ held that materiality was essential to the existence of jurisdictional error. The plurality stated that error would be material “only if compliance could realistically have resulted in a different decision”. Although that appeal arose under Pt 7, not Pt 7AA, of the Act, the principle stated applies equally here. Further, as will appear, in MZAPC at [3], [23]-[24], the Court, by a 4:3 majority refused to reopen SZMTA. By contrast, the minority considered the test should be restated: [84], [84], [105]-[106], [136].
In SZMTA, the plurality emphasised that the dispositive question was whether “there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account” and further cautioned that “[t]he court must be careful not to intrude into the fact-finding function of the tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the tribunal’s failure to take it into account could not realistically have affected the result”: [48]-[49].
In cautioning of the approach to be taken in an assessment whether an error was material in the requisite sense, the plurality cited Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82, [104] (Ex parte Aala). In Ex parte Aala at [104], McHugh J, speaking of the consequences on judicial review of a proven breach of natural justice, stated that the decision was not automatically invalidated by such breach. While His Honour recognised the well-settled approach to the grant or refusal of relief for jurisdictional error that has been established, equally it was recognised that the proven breach had no bearing on the outcome. Upon an analysis of the reasons and with due consideration of the history, McHugh J agreed that “the best conclusion is that the Tribunal would have found that the prosecutor did not have a well-founded fear of persecution even if it had had the four statements before it.”
McHugh J’s reasoning is instructive. In MZAPC, the plurality at [58] said of Ex parte Aala that “[d]espite differences in emphasis and expression, the reasoning of all members of the Court in Aala to the result in that case was ultimately not inconsistent with the prosecutor having borne the onus of establishing that compliance with procedural fairness could realistically have resulted in a different decision.”: see also at [55], [197].
In Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51]-[52], McKerracher, Murphy and Davies JJ, accepted that, in principle, considerations including the circumstances of the case, the nature and cogency of the material and the place of the material in the assessment of the claims were all relevant to an evaluation of whether any demonstrated error was jurisdictional in nature.
As the concern on judicial review is essentially one of practical injustice, “the significance of the failure” will be a useful way of evaluating whether the breach of condition was material. Moreover, the “inquiry is backward looking and concerns what the decision-maker did in the particular case”: BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 170 at [87]-[88].
As the consequences of breach of a condition in decision-making fall to be considered in the statutory context in which it occurs and is to be evaluated on the basis of the facts then before the decision-maker (not upon a universe of hypothetical facts), the materiality of the established failure, is to be determined upon whether, had there been compliance, there was an objective possibility, a different decision could have resulted: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at [47]; MZAPC, [2021] HCA 17, [37].
In BXT17, the Full Court found that the error in failing to consider par 473DD(b)(ii) had not been material, doing so in circumstances where: (1) no submissions having been made as to materiality, the applicant had not discharged the burden of proof in establishing jurisdictional error: [145]; (2) it was not satisfied the new information could have denied the applicant of the possibility of a different outcome. It reached that conclusion since the Authority had in fact considered the substance of the new information before it and found (despite an assertion by the applicant’s agent to the contrary), that had the Authority actually turned its mind to the requirements of par 473DD(b)(ii) of the Act, it would have reached the same conclusion respecting an assessment whether the information was “credible personal information [etc]” and may have affected consideration of the applicant’s claims on de novo review: [146].
The reasoning in CNY17 was endorsed in MZAPC where the plurality at [38]-[39] addressed the question of onus and fixed upon the distinction between the proof of historical facts and the question of reasonable conjecture whether the failure could have realistically resulted in a different decision. Kiefel CJ, Gageler, Keane and Gleeson JJA stated at [38]:
Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities (Citations omitted)
In identifying the scope and content of the onus of what an applicant on judicial review did, and did not, have to prove on the balance of probabilities, their Honours stated at [39]:
Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition. (Citations omitted)
The plurality further held at [41] and [60], that the onus did not shift to the Minister to disprove materiality. Contextually, their Honours identified that the actual decision-maker was prevented from taking an active part on judicial review view: [40].
In a comprehensive dissent, Gordon and Steward JJ, with whom Edelman J agreed at [154]-[155], held that if jurisdictional error was established it was for the respondent, not applicant, to establish that the error was immaterial: [86]. The substantive basis for this conclusion was that “the balance of the relationship between the individual and the State is best protected by the State having to show why a departure from the legal constraints on the exercise of public power was immaterial to the outcome”: [106]. Gordon and Steward JJ considered that the relevant principles should be restated in terms that “Non‑compliance with an express or implied condition of an exercise of power will result in a decision exceeding the limits of the decision‑making authority conferred by statute unless compliance with the condition could not have made a difference to the decision that was made in the circumstances in which the decision was made”: [84]. Upon this restatement their Honours considered at [101] that:
The nature of the error has to be worked out in each case concerning a specific decision under a particular statute. In most cases, an error will only be jurisdictional (that is, will only exceed the jurisdiction conferred on the decision‑maker by statute) if the error was ‘material’ to the decision, in the sense that there has been an error relevant to the actual course of the decision‑making and the decision‑maker has not shown that the error could not have made a difference to the outcome actually reached. Recognising a criterion of materiality before an error is treated as jurisdictional is a mechanism for drawing a line between those cases where a supervising court has jurisdiction to remedy an error made by an administrative decision-maker and those cases where it does not. (Citations omitted)
Gordon and Steward JJ located the issue of materiality in these terms at [105]:
Here the applicant identifies departure from a condition of the exercise of public power. The restated rule acknowledges that the decision is invalid and of no effect only if the departure was ‘material’. The requirement of materiality ‘assumes the existence of the general or primary grounds from which the [applicant's] ... right arises but denies the right ... in [the] particular case by reason of additional or special facts.” (Citations omitted)
Edelman J, who considered SZMTA was susceptible to scrutiny, concluded at [197]-[198]:
Although the decision in Stead concerned an application for a new civil trial, it has been relied upon in hundreds of applications where an applicant for judicial review sought a new hearing on the basis of a decision‑maker’s failure to comply with an express or implied statutory condition. The approach taken in Stead was expressly adopted by all members of this Court in Re Refugee Review Tribunal; Ex parte Aala. In that case, the issues for decision were clearly separated into two distinct questions. First, had there been a denial of procedural fairness? Secondly, was the breach material? All members of the Court concluded that there had been a denial of procedural fairness. And, although McHugh J concluded that the breach was not material, all members of the Court understood Stead to have imposed the onus of proof upon the party asserting that the non‑compliance was immaterial. Hence, the various judgments expressed the approach to materiality in terms of: whether it could ‘be concluded’ that the breach made no difference to the result (Gleeson CJ); whether the court had ‘satisf[ied] itself’ that the breach made no difference to the result (McHugh J); whether the "victim of the breach", who is ‘ordinarily entitled to relief’, is to be denied that relief because the court had been ‘convince[d]’ that the breach made no difference (Kirby J); or whether the court can positively ‘say that a different result would not have been reached’ (Callinan J). Although Gaudron and Gummow JJ, with whom Hayne J agreed on this point, did not expressly decide whether the condition on the statutory power requiring procedural fairness was one which denied jurisdictional error for a trivial breach or whether the triviality of breach led to refusal of relief as a matter of discretion, the onus of proof in either case would have been the same. The onus of proof for the exercise of a discretion to refuse relief is upon the party so asserting.
Against all of these authorities stands a single sentence in a joint judgment of three members of this Court in SZMTA, making a point which was not necessary for the decision and was not argued, meaning that the point cannot be authority: “There is also no dispute between the parties that it is the applicant for judicial review of the decision of the Tribunal who bears the onus of proving that a jurisdictional error has occurred.” That common assumption in SZMTA was incorrect. (Citations omitted)
Gordon and Steward JJ evidently agreed in that conclusion: [88]; cf [3]. While the plurality cavilled at the description of the test in SZMTA as being convoluted and difficult to apply, the minority considered that a restated test was both principled and practical: [21], cf [203].
Overview
From the authorities considered above, the following may be said. First, assessing materiality begins in the statutory context in which it arises: MZAPC, [30]-[32], [136], [139], [166]. Relevantly, in this case, that context is Pt 7AA and the performance of the procedural duty under s 473DD of deciding whether the review applicant had satisfied the Authority that there were exceptional circumstances as to justify the new information being considered. Further, Pt 7AA ordinarily requires that the de novo review be undertaken “on the papers”, and, in general, without accepting or requesting new information or interviewing the referred applicant and subject to the qualifications posed by ss 473DC and 473DD of the Act.
Secondly, where error has been identified in an administrative decision, or the process by which it was made, the fundamental concern upon judicial review is whether such error entailed practical injustice. It is the significance of the failure in the particular case that is to be considered. As Ex parte Aala and CNY17 illustrate, it is of fundamental importance to place an evaluation of the subject information in the proper context; that is, to recognise what was before the decision-maker, both in terms of claims and evidence. It is in this context, and not in some other hypothetical universe, that the court is concerned to evaluate whether any practical injustice was occasioned by the error. Within that environment, the nature and cogency of the material and its place in the claims being made will inform an evaluation of whether the error was of sufficient significance to support a conclusion of jurisdictional error.
Thirdly, the question to be considered is whether, on the facts existing before the decision-maker, objectively, compliance with the condition that has been breached could realistically have resulted in a different decision. The assessment is to be made in a ‘backward looking’ manner which examines the material that was before the decision-maker. The court is entitled, both to consider what was, and what was not, before the decision-maker including submissions. Here, an error will not be jurisdictional unless it is concluded that, had there been compliance, the information could realistically have resulted in a different decision upon performance of the Authority’s duty to consider the criterion in s 473DD(b)(ii) and be satisfied exceptional circumstances were shown as to justify inclusion of any ‘new’ information upon review.
Fourthly, if information, evidence or material is objectively of marginal significance, the court may properly conclude that the failure to address it had no material effect on the decision making process. For that reason also, the court is entitled to consider the nature and cogency of the material, together with its place in an assessment of the claims, in deciding whether the error is of such significance as to be regarded as jurisdictional in nature.
Fifthly, on judicial review, the applicant as moving party bears the onus of proof in establishing jurisdictional error, a burden which does not shift to the Minister. Jurisdictional error is not established unless the applicant discharges the burden of proving that identified error was material in the requisite sense.
Sixthly, an applicant bears the onus of proving on the balance of probabilities all the historical facts necessary to provide a sufficient foundation for the conclusion, as a matter of inference, or, reasonable conjecture, that had the requisite statutory condition been observed by the decision-maker, there could realistically been a different decision. As MZAPC holds, it is only the historical facts that are to be established and accordingly, the onus does not entail a burden of proving “that a different decision would have been made had there been compliance with the condition that was breached.”
Consideration
I have identified the statutory context in which the question of materiality is to be considered. Had the Authority complied with the procedural duty to engage with par 473DD(b)(ii), it would have considered whether the applicant had persuaded it that his case was one in which he ought to have been allowed an opportunity to provide evidence that might previously been provided for the purposes of a de novo fast track review. The present is not a case in which the material was in fact overlooked. To the contrary, it had been addressed. The conceded error lay in the quite different failure to evaluate the material by reference to the criterion posed by par 473DD(b)(ii). As is accepted, this criterion may afford a very limited second opportunity to place further material before the Authority. Whether or not it was of marginal significance is considered below. However, I am not satisfied that the applicant has discharged the onus of proof in establishing to the requisite standard the historical facts necessary to support an inference (or reasonable conjecture), that had the ‘new’ information been considered for the distinct purposes of par 473DD(b)(ii), the Authority would have reached any different decision upon whether he had satisfied it that such information was “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.” Nor am I satisfied that the applicant has discharged that onus upon the further question whether the Authority would have been satisfied “there were exceptional circumstances as might justify considering the new information”, whether such information was viewed individually or cumulatively for the purposes of a fast track review.
Upon that basis, the applicant has not demonstrated that the error in failing to consider such new information through the lens of par 473DD(b)(ii), or otherwise, could have had any bearing on the outcome of his request that it be considered. In light of the Reasons and history, and having regard to the particular statutory context, the Authority would have properly concluded it was proscribed from considering any such information and required to discharge its core function of review conformably with the scheme of Pt 7AA.
It is convenient to address each of the items of information (or complaint) in turn.
New claim concerning fishing equipment
This claim emerged from a statutory declaration made by the applicant on 20 September 2016 which, over 15 paragraphs, asked the Authority to look into his application. Relevantly, at [11], the applicant brought to the attention of the Authority that before coming to Australia he had “sold my vessels, engine and nets. I have nothing to go back to [in] Sri Lanka. Even if I am able to start with a small boat, my life is in great danger.”
On behalf of the Minister it was correctly submitted that the statutory declaration at [11], articulated a claim which might be understood as a well-founded claim of persecution constituting “serious harm” arising from significant economic hardship that threatened the applicant’s capacity to subsist: Act, ss 5J(1)(a), (4)(b), 5(d).
In its Reasons, the Authority addressed the information which was before it at [3]-[5] and stated that it had paid regard to the review material supplied to it by the Secretary together with a submission by the applicant’s agent and attached documents. Paragraph [4] of the Reasons at (a) to (f) considered each item of information before it. Further, at [5] the Authority recognised that the applicant’s agent had made a submission indicating that further information would be supplied but that in light of the passage of three months since receipt of that submission it had decided to proceed with its de novo review of the fast track referral.
Insofar as the applicant’s statutory declaration repeated matter that had been before the delegate, the Authority treated it as not being new information and paid regard to it. However insofar as it raised the new claim at [11] (quoted above), the Authority identified the information, what it said, noted it had not been provided to the delegate and treated it as being new information. The Authority, after referring to the Practice Direction, observed that no explanation had been provided articulating why there were exceptional circumstances as might justify consideration of it. Not being so satisfied the Authority declined to consider it.
The Reasons of the Authority confirm that it addressed in detail the claim respecting the impact upon the applicant of the naval restrictions on offshore fishing: [9]-[19]. It is convenient to note that the Authority identified a number of documents that were provided in support of the applicant’s claim including from a Member of Parliament, a priest and a lawyer. The Authority referred to DFAT information which addressed the prevalence of fraudulent documents: [13]. It identified difficulty in accepting certain aspects of the applicant’s evidence, rejecting parts of his evidence and found that other parts had been exaggerated: [14]-[19]
Further, in the context of evaluating whether the applicant had a well-founded fear of harm which constituted economic hardship (as defined), the Authority stated at [18]:
While I accept the applicant has suffered discrimination in the past from the Sri Lankan authorities providing benefit to Singhalese fishermen and I accept the applicant can no longer fish the fishing grounds, I do not consider the harm arising from that discrimination to the applicant is so serious as to be serious harm when having regard to the nonexclusive instances of serious harm s.5J(5). In particular, while I accept the applicant has suffered some economic hardship from being unable to fish the fishing grounds or damage to his nets, I am not satisfied the applicant will suffer economic hardship that will threaten his capacity to subsist. The evidence before me is the applicant did work after the issue of the second letter [which was claimed to be a trigger for the Navy damaging his nets and requiring pre-approval to fish at the fishing grounds] – as a diesel mechanic and fishing from the shore. The evidence before me too is the applicant's siblings and other relatives continue to work as fishermen in his hometown, albeit, not in the fishing grounds. On the evidence I have accepted as credible, the applicant was but one of several fisherman prevented from fishing at the fishing grounds, I do not accept the applicant's past dispute with the Sri Lankan navy in 2011 will give the applicant a profile which would cause the Sri Lankan authorities to target him for harm in 2017. I also do not accept the applicant will be unable to find work as a fisherman, albeit the work may be not as economically beneficial as fishing at the fishing grounds. I do not accept the applicant will stand up for his rights, because I consider he will be able to work as a fisherman.
I agree in the submission of counsel for the Minister that, in light of the finding by the Authority that the applicant did not suffer economic hardship to the degree required to reach persecutory harm from having been unable to fish in the fishing grounds, the new claim concerning the applicant’s having sold his equipment would have taken the matter no further.
Objectively, on the Authority’s findings and in light of his history, the applicant was still able to make a living by working as a diesel mechanic, and fishing from the shore. The evidence contained in the applicant’s statutory declaration did not assert that he could not subsist from his work. To the contrary, on his own evidence, the declaration expressly acknowledged that he could, and might, repurchase another small boat on return. And his evidence to the delegate (which comprised part of the review material) was that he “no longer used a boat but fished by wading waist deep into water” [CB 121].
As the Reasons make plain, the new claim was considered expressly. Notwithstanding the concession, properly made as to error, I am not satisfied that the new claim could have made any difference, had it been evaluated by the Authority through the prism of par 473DD(b)(ii) before returning to s 473DD(a).
Two affidavits of the fishermen (and identity cards)
The two affidavits supplied to the Authority were in relatively common form and identified the need for fishermen to obtain from the Navy permits to fish and that they were prevented from engaging in “distant fishing”.
In each affidavit, the deponent stated in the final paragraph: “Although war was ended indirect threatening and abduction are being occurred in our District” (errors in originals).
I agree in the submission that neither of the affidavits was capable, for the purposes of par 473DD(b)(ii), of meeting or answering the description of credible personal information (as defined) and so, had the Authority turned its mind whether par 473DD(b)(ii) was engaged, it would have found that the criterion it contained was not satisfied. Moreover, as the text of those affidavits confirm, the deponents variously: (a) acknowledged that the war had ended; (b) made the most generalised reference to indirect threatening conduct; (c) also referred to the occurrence of wholly unparticularised incident[s] of abduction. Finally, insofar as the affidavits contained reference to difficulties with “distant fishing”, the evaluation undertaken by the Authority as to whether the applicant had a well-founded fear of serious harm arising from significant economic hardship that would threaten his capacity to subsist, proceeded upon a premise at [17] that the applicant would not be able to engage in such activity. Acceptance of the affidavits could not have taken the issue any further.
Further letter of support (another MP)
A Member of Parliament had furnished a letter as to the ill-treatment of the applicant as a fishermen and detailed the circumstances of the applicant, the effect on his livelihood and his dealings with Navy personnel. As noted, the Authority considered economic impact in detail and did so on the basis that it had accepted the applicant would be unable to fish offshore but that, conformably with his evidence, he would continue to work as a fishermen.
To have included this, a second letter of support from a Member of Parliament, could have made no difference to the question whether it had been satisfied of exceptional circumstances as would justify it being included in the material to be considered on review. More particularly, I agree in the submission that as the letter was from another Member of Parliament it seems very likely the Authority would have treated it in very much the same way as the first such letter had been considered.
Media articles
The applicant’s statutory declaration at [7]-[8] recounted an incident in February 2016 where two other Tamil fishermen from a neighbouring village had been stopped for illegal fishing and attacked by the Navy.
Allied to this evidence, a series of media articles were supplied which referred to this incident. Relevantly, the articles detailed the consequences being experienced by fishermen who had been caught fishing illegally. It was no part of the applicant’s case that his pursuit of fishing upon return to Sri Lanka would have been conducted illegally. As was observed it is of no little relevance that the requirements of s 5J(3) of the Act, which remove from the definition of well-founded fear of persecution, conduct where a person could take reasonable steps to modify his or her behaviour, would have applied particularly in the circumstances of the case given the applicant’s declaration that he could buy another fishing boat. One would have expected detailed evidence to have been put forward as justifying why (if it was said to be the case), the applicant intended to pursue illegal fishing, could not subsist otherwise and could not have taken steps to modify such behaviour. That case was not being made.
Again, as with each item of evidence that was put in issue, the Authority expressly considered the information that it contained. The only error arose from consideration of that information through the lens provided by par 473DD(b)(ii). Stated in other terms, it cannot be said that the material was not considered at all in the evaluation whether the applicant had satisfied it that exceptional circumstances were shown as would justify the inclusion of this information.
Viewed objectively, the nature of the material detailed in these articles served to confirm matters which had been largely accepted by the Authority but in circumstances where the topic which they addressed, illegal offshore fishing, was not relevant to the basis on which the claim to a well-founded fear of persecution was made. Nor was it relevant to whether the applicant met the statutory definition for significant economic hardship which threatened his capacity for subsistence. For each of those reasons, I do not accept that the applicant had been denied the possibility of a successful outcome by the rejection of these media articles.
Failure to interview
Mr Solomon-Bridge of counsel for the Minister drew attention to a request that lay within the applicant’s statutory declaration at [8] in which he stated “When I asked for evidence from them, they are very reluctant to provide anything against the Navy. However, if I am given the opportunity, I can only arrange for them to be spoken to (with no written statements) over the phone as evidence to the attack.” It was properly submitted that this evidence may be construed as a request by the applicant for the interview of the two witnesses.
In contrast with the statutory declaration, nowhere in Ground 2 was an express contention made that the Authority had erred in failing to consider whether to exercise the statutory powers conferred by s 473DC(1) or (3) to ‘get’ new information from these witnesses or to interview them. Yet the particulars to this ground alluded to the applicant’s suggested ability to provide new evidence and referred to his request that the Authority should do so. The particulars also complained that the Authority had refused such request “based on their discretionary powers.”
As noted above, the applicant made no express submission to the Authority explaining why there were exceptional circumstances as might justify the inclusion in consideration of any evidence. Nor did the ‘submission’ contain an express request that the Authority should get information from these witnesses or interview them. The ‘submission’ was an email attaching documents, each of which was considered by the Authority. Apart from the text of the declaration at [83] above, the Authority had not been told at any time of any difficulty as to why witnesses had been unable or unwilling to step forward and give evidence beforehand.
There is no “general obligation upon the Authority to get new information”: DUA16 (2020) 95 ALR 54, [27]. Accordingly, the complaint respecting an apparent failure to exercise the powers conferred by s 473DC of the Act lay outside the boundaries of the error conceded in respect of the discharge of the procedural duty under s 473DD. Further, I agree that the applicant’s complaint must, in the end, relate to an alleged legally unreasonable failure to interview the new witnesses. No submissions were made as to this and I do not accept that the high threshold that is posed in relation to legal unreasonableness is met in this application.
More specifically, in light of the failure to inform the Authority of the supposed difficulties in being able to adduce evidence from the fishermen, it cannot be said that the Authority had acted in a manner that was legally unreasonable in failing to exercise the powers to get information from, or to interview, them on a basis of which it had never been informed.
Finally, for the reasons identified in relation to several other items of information,
I do not accept that it could have made any difference to the outcome of the de novo hearing on review had the fishermen been interviewed. On the face of the applicant’s statutory declaration, their evidence was directed to the dangers faced by offshore fishermen who were engaged in illegal fishing. It is clear that the applicant’s claims to a well-founded fear of persecution, whether on the basis of significant economic hardship, or otherwise, were not framed by reference to an intention to fish illegally upon return to Sri Lanka.
Conclusion
For the reasons above, the application should be dismissed.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A kelly. Associate:
Dated: 20 May 2021
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