ALG19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 962
•27 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
ALG19 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 962
File number(s): ADG 48 of 2019 Judgment of: JUDGE LUCEV Date of judgment: 27 September 2024 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizen of Sri Lanka of Tamil ethnicity and Hindu religion – Safe Haven Enterprise visa - whether new information for the purposes of s 473DD of the Migration Act 1958 (Cth) to be considered – where Tamil diaspora claim – where photographic evidence of applicant’s alleged Tamil diaspora activities in Australia – relevance – probative value – whether test as to exceptional circumstances misconstrued – whether test as to what constitutes credible personal information misconstrued – whether material jurisdictional error – writs issued Legislation: Migration Act 1958 (Cth) ss 473DD, 474 and 476 Cases cited: APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411
ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196
AXS17 v Minister for Immigration and Border Protection [2018] FCCA 3063
BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; (2018) 159 ALD 417
CRM18 v Minister for Home Affairs [2018] FCCA 3312
CRM18 v Minister for Home Affairs [2019] FCA 665)
CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593; (2001) 76 ALJR 291; (2001) 185 ALR 394
Franklin v The Queen [2021] NSWCCA 260
IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; (2016) 90 ALJR 382; (2016) 330 ALR 382
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600
Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492; (2007) 82 ALJR 33; (2007) 239 ALR 610; (2007) A Crim R 386
Division: Division 2 General Federal Law Number of paragraphs: 48 Date of last submission/s: 12 June 2024 Date of hearing: 12 June 2024 Place: Perth Counsel for the Applicant: Mr S Kikkert Solicitor for the Applicant: Moya Migration Law Lawyers Counsel for the First Respondent: Mr A Chan Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 48 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ALG19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
27 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 10 January 2019.
2.A writ of mandamus issue requiring the Second Respondent to re-determine its review of the decision of the Delegate of the First Respondent made on 12 October 2016, and to determine it according to law.
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 LUCEV
INTRODUCTION
On 8 February 2019 the applicant, ALG19, applied for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively). The Authority Decision was to affirm a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, now the Minister for Home Affairs, Immigration and Multicultural Affairs, Cyber Security and the Arts (“Minister”) to refuse ALG19 a Safe Haven Enterprise (Subclass 790) visa (“SHE Visa”). The Authority Decision is in the Court Book (“CB”) at CB 337-355. At hearing the CB was marked as Exhibit 1.
Following the matter being docketed to the presently presiding judge in February 2023, a directions hearing on 27 March 2023, and consent orders on 29 August 2023, the Judicial Review Application was amended by an amended Judicial Review Application (“Amended Judicial Review Application”) filed on 4 September 2023. It is that Amended Judicial Review Application which is presently before the Court.
PREVIOUS JUDICIAL REVIEW APPLICATION
ALG19 (who then had the pseudonym AXS17) previously filed an application for judicial review (“Previous Judicial Review Application”) of an earlier decision of the Authority (“Previous Authority Decision”) which resulted in this Court (then styled the Federal Circuit Court) remitting the matter to the Authority for further determination according to law: AXS17 v Minister for Immigration and Border Protection [2018] FCCA 3063 (“AXS17”).
The first ground of review in AXS17 concerned the treatment by the Authority of a Tamil diaspora claim, and the Court held, AXS17 at [114]-[116] per Judge Brown, that:
In my assessment, the material sought to be relied upon by the applicant in this case, relating to his personal involvement in Tamil diaspora activities and his allegation of threats having been made against his father, were potentially relevant to his claim for protection. As such, it was incumbent upon the IAA to determine whether there [sic] exceptional circumstances raised which justified the formal consideration of the material in question.
In this context, although I am well aware of the risks of over-zealous scrutiny, I am of the view that the reviewer did not engage in the required degree of intellectual analysis of this material but rather rejected it because of concerns relating to its late tender and, in so doing, did not properly evaluate it as required as required [sic] by the first limb of section 473DD.
In my view, what is apparent from the decision record is that the evidence in question has been summarised rather than subject to any degree of intellectual analysis. Thus, I am satisfied that there has been a failure of jurisdiction. Accordingly, ground one of the amended appeal is made out.
AMENDED JUDICIAL REVIEW APPLICATION
A single ground of review
The Amended Judicial Review Application contains a single particularised ground of review as follows:
1. The Immigration Assessment Authority (the IAA) committed jurisdictional error in misconstruing the test as to exceptional circumstances and the test as to what constitutes credible personal information in relation to the Tamil diaspora claim for the purposes of s473DD of the Migration Act 1958.
Particulars
a. In finding that new information (the photographic evidence in relation to the Tamil diaspora claim) was rejected merely on the basis that the information had not been provided earlier, the IAA misconstrued the test in respect of exceptional circumstances: s473DD(a).
b. The IAA erred by applying the incorrect test at the filtering stage of the inquiry which infected its purported satisfaction of exceptional circumstances.
c. In turning its mind to the statutory requirement to consider new information pursuant to s 473DD, the IAA was further required to determine whether the new information was credible personal information (the anterior question): open to be or capable of being believed.
d. The IAA therefore further erred when it failed to exercise the statutory discretionary power in s473DD(a) on the correct basis: that the new information met the precondition in s473DD(b)(ii)
(Hereinafter the above particulars will be referred to as Particulars A, B, C and D respectively and the Particulars collectively.)
It is relevant to observe that the “new information” is “the photographic evidence in relation to the Tamil diaspora claim”: Particular A. This was confirmed by Counsel for ALG19 at hearing when Counsel referred to “the information, being the photos”: Transcript, p 12.
ALG19’s single ground of review cavils only with the consideration in the Authority Decision of a sur place claim by ALG19 to have engaged in post-conflict Tamil separatist activities by attending Tamil diaspora activities (“Tamil Diaspora Claim”), and whether the Authority should have considered specific photographic evidence which constituted new information. The Minister submitted that because the single ground of review was so limited it was unnecessary to set out in detail the entirety of ALG19’s claims for protection and how those claims were dealt with in the Authority Decision. As superficially attractive as that submission is it sits at odds with the task that the Authority was required to undertake and which this Court is judicially reviewing, the Authority’s task being one which may have required some consideration, albeit relatively limited, of the Authority’s exercise of powers under s 473DD of the Migration Act in the context of the review material which was already before the Authority and upon which the Authority was entitled to reflect and assess in determining whether to consider new information: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; (2020) 294 FCR 150; (2020) 171 ALD 477 (“BTW17”) at [72] per Mortimer and Jackson JJ. The Court will therefore set out the background to the matter, ALG19’s claims and a summary of the Authority Decision.
BACKGROUND AND CLAIMS
The background to this matter is as follows:
(a)ALG19 is a citizen of Sri Lanka of Tamil ethnicity and Hindu religion: CB 55;
(b)ALG19 arrived in Australia on 3 October 2012 as an unauthorised maritime arrival: CB 227;
(c)ALG19 applied for a SHE Visa on 19 January 2016: CB 15-63;
(d)the SHE Visa application was prepared with the assistance of a registered migration agent (“Agent”) who was representing ALG19, and it included a detailed statutory declaration (“Statutory Declaration”) made on 10 January 2016: CB 55-63, which set out ALG19’s protection claims. In summary those claims were as follows:
(i)he was a Sri Lankan Tamil of Hindu faith from the Eastern Province of Sri Lanka;
(ii)ALG19’s uncle was a longstanding senior cadre of the Liberation Tigers of Tamil Eelam (“LTTE”);
(iii)due to the civil war in Sri Lanka his family moved residence, but when the family returned to the original family residence, they found their home had been destroyed;
(iv)ALG19 later found three bags which contained weapons and money on the family’s land, and ALG19 and his father informed officials of the existence of the weapons;
(v)ALG19’s neighbours told Sri Lankan Army (“SLA”) officers that ALG19’s uncle was a senior LTTE cadre, and the SLA officers made ALG19 dig up the entire family property as the officers believed that there were more weapons on the family property;
(vi)the SLA frequently came to ALG19’s family property to harass ALG19 and his family;
(vii)ALG19 was detained several times and taken to an SLA camp, where he was beaten and tortured;
(viii)during the civil war ALG19 was employed as a bus conductor for the Sri Lankan Transport Board (“SLTB”) and was required to assist in the transportation of injured persons to internally displaced persons camps (“IDP Camps”);
(ix)on one occasion ALG19 and other bus conductors allowed 12 young children who were LTTE cadres and who were being transported to escape (“Young Cadres Escape”);
(x)when the Young Cadres Escape was discovered a senior SLA officer assaulted ALG19 and took his SLTB card and he was no longer allowed to work as a bus conductor;
(xi)with some difficulty ALG19 eventually got more work as a bus conductor;
(xii)on the bus route on which ALG19 regularly worked:
(A)he had many encounters with SLA soldiers; and
(B)on one occasion the senior SLA officer who assaulted him and took his SLTB card boarded the bus and glared at him;
(xiii)one night when he was sleeping on the bus at a bus stand Criminal Investigation Division (“CID”) officers boarded the bus and interrogated him about the Young Cadres Escape (“CID Bus Interrogation”), in relation to which ALG19 “denied having done such an act”, but the CID officers did not seem to accept ALG19’s response;
(xiv)after the CID Bus Interrogation it was difficult for ALG19 to continue his work as a bus conductor as the CID officers would get onto the bus at various places and cause trouble for him, including not paying fares, and on one occasion ALG19 was slapped when he asked for a fare to be paid;
(xv)on 15 February 2011 ALG19 was asked to stop working as a bus conductor by the bus depot manager who had “close connections” with the SLA, and although he “complained at the head office regarding my termination … my complaint was not accepted”;
(xvi)from May 2011 to May 2012 ALG19 served as President of the Rural Development Society (“RDS”) in his locality;
(xvii)ALG19 was the President of a local temple: CB 344 at [24];
(xviii)ALG19 was later approached by the Tamil National Alliance (“TNA”) party and asked if he could assist with provincial council elections, which he did by pasting posters, distributing flyers and attending and organising TNA meetings;
(xix)ALG19 was subsequently pressured to work for the Tamil Makkal Viduthalai Pulikal (“TMVP”) and they subsequently threatened to harm him if he did not support their party: CB 58;
(xx)TMVP members had gone in search of ALG19 and on one occasion in August 2012 they attempted to abduct him but he managed to escape;
(xxi)in October 2015 ALG19’s family told him that Tamil paramilitary group members had come in search of him; and
(xxii)ALG19 asserted that he was of adverse and ongoing interest to the SLA and CID because of the factors outlined above, and including and corroborated by his significant profile in his home area;
(e)on 11 May 2016 ALG19 attended an interview with the Delegate (“Delegate’s Interview”): CB 187;
(f)ALG19, through the Agent, provided further evidence and submissions to the Delegate on 13, 14 and 19 May 2016: CB 193-220;
(g)on 11 October 2016 the Delegate telephoned the Agent “to ensure … [the Agent] had been given sufficient opportunity to speak with … [ALG19] regarding issues raised in relation to … [ALG19]’s Protection visa claims and to respond to these”: CB 221, and in that telephone call, the Agent confirmed that he did not consider there were “any other matters to address”: CB 221;
(h)on 12 October 2016 the Delegate’s Decision was to refuse ALG19’s SHE Visa application: CB 227-246;
(i)on 17 October 2016 the Delegate’s Decision was referred to the Authority: CB 247-255;
(j)on 14 November 2016 the Agent emailed the Authority a submission dated 13 November 2016 (“November 2016 Submission”) which included new information: CB 261-265, and made submissions in respect of the Authority’s power to accept new information: CB 265;
(k)on 15 November 2016 the Agent re-sent the November 2016 Submission to the Authority attaching a bundle of information referred to in the November 2016 Submission: CB 267-284;
(l)in the November 2016 Submission ALG19 articulated a sur place claim to have engaged in post-conflict Tamil separatist activities by attending Tamil diaspora activities (“Tamil Diaspora Claim”) and provided photographic evidence purportedly of his speaking at a Hero’s Day function in South Australia in 2015: CB 261 and 282-284;
(m)three photographs of ALG19 (“Photographs”) were provided with the bundle accompanying the November 2016 Submission: CB 282-284;
(n)in the November 2016 Submissions ALG19 submitted that the activities which were the subject of the Tamil Diaspora Claim would lead to ALG19 being monitored, arrested, detained and tortured, and cited country information to that effect: CB 261-262;
(o)on 16 February 2017 the Previous Authority Decision affirmed the Delegate’s Decision: CB 295-316;
(p)on 2 November 2018 as a consequence of orders made in AXS17 the Previous Authority Decision was quashed and the matter remitted to the Authority for reconsideration: see [3]-[4] above and the order of the Court at CB 326; and
(q)on 10 January 2019 the Authority, differently constituted to that which made the Previous Authority Decision, published the Authority Decision which again affirmed the Delegate’s Decision: CB 337-351.
AUTHORITY DECISION
In the Authority Decision the claims, and the acceptance or otherwise of new information, in relation to the Tamil Diaspora Claim is dealt with in a single paragraph at CB 338-339 at [5] (“Paragraph [5]”) where the Authority said as follows:
The submission includes new information claiming that the applicant has participated in several Tamil diaspora activities in Australia and provides examples of these activities and attached a photograph purportedly to be of the applicant speaking at a Hero’s Day celebration function in South Australia in 2015. It claims that the Sri Lankan intelligence community closely monitors events of this nature and the applicant will be identified at the airport as someone who is of interest to the Sri Lankan authorities and taken away for interrogation and will be subjected to harassment, interrogation, torture and detention, which will subsequently lead to a life of constant monitoring and harassment, if not death. It further claims the applicant did not realise that his Tamil diaspora activities in Australia were important to his case and, as a result, he failed to mention this at his SHEV interview. It claims, as a lay person and someone without any knowledge of the process of applying for refugee status, it is plausible that he had no idea of the significance of his active role in Tamil diaspora activities abroad. I note, however, that the applicant was represented in the preparation of his SHEV application and he has not claimed that this representative did not explain the process for applying for protection or the relevance of his activities in Australia to his claims for protection. I have listened to the SHEV interview held in May 2016 and I consider that he was also given ample opportunity to raise any further claims during this interview. At the end of this interview, he said he had put forward all his claims for protection. I do not consider it plausible that the applicant would not have been aware of the importance of disclosing involving Tamil diaspora activities in Australia. I consider his failure to mention such Tamil diaspora activities detracts substantially from the credibility of these claims. Furthermore, I note the only evidence he has presented in support of these claims is a copy of a photograph of him with a microphone in front of a Tiger symbol. I consider this evidence to be very limited and lacking in probative value. I am not satisfied there are exceptional circumstances for considering any of this new information.
The Authority accepted that:
(a)ALG19’s uncle was a longstanding senior LTTE cadre who died in combat: CB 342 at [17];
(b)in 2006 bags containing weapons and money were unearthed on ALG19’s family property, and that subsequently ALG19 and his father told the nearby SLA camp and officers about the weapons and money and the SLA officers insisted that ALG19’s entire property be dug up as they believed there were more weapons stored there: CB 342 at [18];
(c)the SLA regularly came to ALG19’s home and harassed ALG19 and his family, and detained ALG19 several times at an SLA camp where he was beaten severely and tortured in an endeavour to extract information relating to buried weapons: CB 342 at [18];
(d)ALG19 was working as a bus conductor transferring injured persons from various places to IDP Camps and transporting captured young LTTE cadres: CB 342 at [20];
(e)ALG19 had a leadership role in the RDS, was President of a local temple, and campaigned for the TNA: CB 344 at [24]-[25]; and
(f)ALG19 was threatened by a senior member of the TMVP and was the victim of an attempted abduction: CB 344 at [26]-[27].
The Authority did not accept that:
(a)ALG19 experienced any further problems from the Sri Lankan authorities after 2007, or that he was subject to detentions and mistreatment up to 2011: CB 342 at [19];
(b)ALG19 faces a real chance of any harm because his uncle was a senior LTTE cadre or because he will be imputed to be an LTTE member: CB 342 at [19];
(c)ALG19 was involved in the Young Cadres Escape and targeted as a result, finding such a claim implausible: CB 343-344 at [20]-[21];
(d)ALG19 was physically assaulted: CB 343-344 at [21];
(e)ALG19 had his bus conductor’s card confiscated: CB 343-344 at [21];
(f)ALG19 had difficulty securing work: CB 343-344 at [21];
(g)ALG19 encountered the senior SLA officer again: CB 343-344 at [21];
(h)ALG19 was subject to the CID Bus Interrogation: CB 343-344 at [21];
(i)ALG19 stopped working as a conductor as a result of the Young Cadres Escape, noting that ALG19 did not claim he was asked to stop working because of the Young Cadres Escape, but rather that following the Young Cadres Escape the CID officers would cause him trouble and that he was eventually asked to stop working: CB 58 at [25]-[26] and 343-344 at [21];
(j)ALG19 held an imputed pro-LTTE profile or was of adverse interest to the Sri Lankan authorities because of the Young Cadres Escape claim: CB 344 at [20];
(k)in October 2015 Tamil paramilitary group members came to search for ALG19, nor that he was of interest to such groups: CB 346 at [30]; and
(l)ALG19 would be, of interest to the TMVP or other political groups due to his involvement in elections in 2012, or any future political activities upon his return: CB 346 at [33].
CONSIDERATION
Legislation
Section 473DD of the Migration Act provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
Submissions
ALG19’s submissions
ALG19 made submissions as follows:
(a)the Authority Decision misconstrues the test in respect of exceptional circumstances in s 473DD(a) of the Migration Act. Any rejection of new information, merely on the basis that it is found that there is an absence of exceptional circumstances surrounding the explanation as to why the new evidence has not been provided earlier, is not necessarily decisive of the issue of whether exceptional circumstances exist. This is the central aspect of the Authority’s jurisdiction: AXS17 at [80] per Judge Brown;
(b)the Authority rejected the new information concerning the Tamil Diaspora Claim merely on the basis that there was an absence of exceptional circumstances because the information had not been provided earlier and that there was ample opportunity to provide such information: Paragraph [5]. Given that that the precondition set out in s 473DD(a) of the Migration Act must always be met: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 92 ALJR 481; (2018) 353 ALR 600 (“M174/2016”) at [29] per Gageler, Keane and Nettle JJ, the Authority therefore fell into jurisdictional error in considering the first limb;
(c)the Authority misconstrued s 473DD(b)(ii) of the Migration Act by determining that ALG19’s failure to mention the Tamil Diaspora Claim activities “detracts from the credibility of these claims” rather than assessing whether the information on its face was credible personal information, capable of being believed: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (“CSR16”) at [42] per Bromberg J;
(d)the Authority purported to deal with the Tamil Diaspora Claim in unequivocal terms in one paragraph of its decision: Paragraph [5]. A fair reading of Paragraph [5] reveals that the primary focus, and finding, was to disbelieve and reject the claim without applying an intellectual analysis of the test as set out in s 473DD(b)(ii) of the Migration Act;
(e)the Authority’s narrow focus on the late submission of the new information was not decisive and as identified in AXS17 at [81]-[82] per Judge Brown, may render the considerations in s 473DD of the Migration Act otiose;
(f)in discharging the obligations set out in s 473DD of the Migration Act, there is little doubt that the new information was capable of passing through the filters of s 473DD (b)(i) or (ii) of the Migration Act: M174/2016 at [34] per Gageler, Keane and Nettle JJ, had the test been applied correctly. Given that the new information possessed the relevant characteristics in s 473DD(b)(ii) of the Migration Act, the Authority was required to discharge the duty in s 473DD(a) of the Migration Act in the cumulative fashion identified in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221; (2018) 159 ALD 417 (“BVZ16”) at [9] per White J;
(g)the Authority erred in failing to consider the new information on the basis that ALG19’s “failure to mention …detracts substantially from the credibility of these claims”: Paragraph [5], demonstrating that the Authority treated as definitive (at its highest), or unnecessarily narrowed its consideration to (at its lowest), the late submission of the Tamil Diaspora Claim. The Authority was required to determine whether there were any exceptional circumstances in the knowledge that s 473DD(b)(ii) of the Migration Act had been met: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494; (2020) 94 ALJR 1007; (2020) 384 ALR 196 (“AUS17”), and whilst decided after the Authority Decision, AUS17 assists in the proper construction of the task required by s 473DD(a) of the Migration Act, noting that there is some overlap and the factors in s 473DD(b) of the Migration Act may well inform the factors in s 473DD(a) of the Migration Act: BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170 at [23]-[27] per McKerracher, Colvin and Jackson JJ;
(h)for the Authority to depart from the primary requirement to conduct its review, without accepting or requesting new information: M174/2016 at [22] per Gageler, Keane and Nettle JJ, it needed to occur in the context of the review material already before it, bearing in mind its function of considering the SHE Visa application afresh and for itself. Assessing the proposed new material in this context assists the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established: BTW17 at [72] per Mortimer and Jackson JJ;
(i)a fair reading of Paragraph [5] does not reveal a contextual evaluation of the type identified by the plurality in BTW17. One further aspect of the Authority Decision points in this direction. In arriving at its ultimate conclusion to reject the Tamil Diaspora Claim, it turned briefly to consider a single photograph (“Single Photograph”) of the Photographs provided in support of the Tamil Diaspora Claim. Again, rather than conduct the contextual evaluation required by s 473DD(a) of the Migration Act, it purported to dismiss the Single Photograph from consideration because the Authority considered “this evidence to be very limited and lacking in probative value”: Paragaph [5];
(j)the Authority committed error by asking itself the wrong question by ignoring the fact that the new information possessed the relevant character and that it passed the filter in s 473DD(b)(ii) of the Migration Act. As a result the purported exercise of s 473DD(a) of the Migration Act occurred on an incorrect understanding of the law. It is evident that the Authority did not consider the Single Photograph in any context other than its probative value to the Tamil Diaspora Claim rather than in the context of whether the information was capable of being credible information for the purposes of s 473DD(b)(ii) of the Migration Act. The Single Photograph was new information that were capable of meeting s 473DD(b)(ii) of the Migration Act and should have been considered by the Authority when determining whether there were exceptional circumstances for the purposes of s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ, and therefore in reaching its ultimate conclusion as to what review material was to be considered in discharging its duty to review the SHE Visa application afresh and for itself; and
(k)had the Authority applied the correct test it may have found that it was entitled to consider the new information. The error was material because it was directly relevant to the Authority’s consideration of its assessment of risk: see particularly CB 346 at [36] and [38].
Minister’s submissions
The Minister’s submissions were specifically directed to each of the Particulars of ground 1 of the Amended Judicial Review Application and are set out hereunder:
Particular A - the BVZ16 argument
In relation to Particular A the Minister submitted that:
(a)in BVZ16 at [47] per White J the Federal Court described the error as follows:
The IAA member does seem to have reasoned that her rejection of the appellant’s explanation for not having disclosed the new information earlier was decisive of the requirement that the circumstances be exceptional. This seems to reflect an inappropriately narrow understanding of the reach of the term “exceptional circumstances”, as discussed earlier in these reasons.
(b)AXS17 cited by ALG19 refers to the same principle: that the Authority cannot find that there is an absence of exceptional circumstances “merely” because there is an absence of an explanation as to why the information was not provided earlier;
(c)the reason the Authority did not commit the BVZ16 error here is because it is self-evident at Paragraph [5] that, in addition to rejecting ALG19’s explanation for why he did not provide the new information earlier, the Authority also had regard to:
(i)the credibility of the claims;
(ii)the substance of the new information (that it comprised “a photograph” of his claimed activities) and its limited probative value; and
(iii)the structure of the Authority Decision reveals that in reasoning to its conclusion on exceptional circumstances it plainly had regard to its findings in the preceding sentences.
Particular B – whether the Authority applied the incorrect test
In relation to Particular B the Minister submitted that rather than being a standalone argument, Particular B seems to rely upon the other particulars in this ground, and that Particular B could therefore be put to one side.
Particular C – the CSR16 argument
In relation to Particular C the Minister submitted that:
(a)relying on CSR16 ALG19’s argues that the Authority failed to consider whether the new information was credible personal information, in the sense of being capable of being believed;
(b)Particular C appears to assert that the Authority’s finding that the failure to provide the new information earlier “detracts substantially from the credibility of these claims” was erroneous because what the Authority was required to do was consider, applying CSR16, whether the new information was capable of being believed;
(c)the difficulty with ALG19’s argument is that the Authority is not required to parrot the statutory language: CRM18 v Minister for Home Affairs [2018] FCCA 3312 at [18] per Judge Street (from which an appeal was dismissed: CRM18 v Minister for Home Affairs [2019] FCA 665); CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [112] per Besanko J. Neither is it required to engage in any formulaic consideration of s 473DD(b): APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 (“APH17”) at [79] per Markovic J. Rather, what is important is whether the Authority considered the substance of s 473DD(b)(ii) as to whether the information was credible personal information;
(d)in that regard the Authority plainly made a finding that the new information was not credible personal information given:
(i)the fact that ALG19 had been represented throughout the SHE Visa application process, it found that the lateness in raising the new claims “detracts substantially from the credibility of these claims”. To say that a claim’s credibility has been detracted substantially is another way of saying the claims are not credible;
(ii)the Authority clearly also factored in the fact that the only evidence ALG19 provided to corroborate his new claim was “a copy of a photograph of him with a microphone in front of a Tiger symbol”. It considered that evidence to be “very limited and lacking in probative value”. That assessment further reinforced the Authority’s conclusion that the new claim was not credible in the sense of capable of being believed. As a matter of common sense and logic, the lack of evidence to substantiate a claim will undermine that claim’s credibility; and
(iii)the Authority was otherwise plainly aware that the new information related to ALG19 personally, rather than a group of persons. However, once the new information was found to be not credible, it cannot then be found to be credible personal information; and
(e)it should be borne in mind that the principles in CSR16 arose from the fact that in that case, the Authority considered the ultimate truthfulness of the new information, which was too high a threshold for the test for credible personal information. In stark contrast, nothing in this matter suggests that the Authority was considering the ultimate truthfulness of the claim.
Particular D – the AUS17 argument
In relation to Particular D the Minister submitted that:
(a)relying on AUS17 ALG19’s argument is that the Authority failed to find that the new information met s 473DD(b)(ii) of the Migration Act in reaching its conclusion on exceptional circumstances;
(b)Particular D contends that the Authority failed to consider that the single photograph considered by the Authority met s 473DD(b)(ii) of the Migration Act before finding that it did not meet s 473DD(a) of the Migration Act in relation to exceptional circumstances;
(c)there is substantial overlap in relation to the applicable principles for Particulars D and C, but what is important is whether the Authority considered the substance of s 473DD(b)(ii) of the Migration Act
(d)when the Authority Decision is read fairly and as a whole, it is clear that it considered the Single Photograph against s 473DD(b) and (a) of the Migration Act, and complied with the principles in AUS17;
(e)ALG19’s argument asks the Court to read Paragraph [5] out of context. This is because it is apparent that ALG19’s argument proceeds on the basis that the separate parts of Paragraph [5] are independent of each other and are about distinct and different pieces of new information, such as the new Tamil Diaspora Claim in the November 2016 Submissions, and the Single Photograph. When construed properly, Paragraph [5] is meant to be read as a whole. What the Authority did was consider ALG19’s new Tamil Diaspora Claim and the Single Photograph together because they were about the same claim. Understood in that light, the Authority plainly did not only consider the lack of probative value in the Single Photograph when it found that there were no exceptional circumstances. Rather, it had also made findings that the Single Photograph was not credible personal information because its late provision was unsatisfactorily explained, especially given ALG19 was represented throughout the SHE Visa process. That finding was part of what led to the Authority’s conclusion that there were no exceptional circumstances;
(f)if the Authority had intended to consider each item of new information separately and make independent findings on s 473DD of the Migration Act in relation to each item, it would not have put all of its findings in one paragraph. Its concluding sentence at Paragraph [5] - “I am not satisfied there are exceptional circumstances for considering any of this new information” - also makes it clear that the entirety of Paragraph [5] was in relation to more than one piece of new information, and was intended to be considered together; and
(g)when Paragraph [5] is properly construed, none of the errors contended for by ALG19 can be made out. ALG19’s somewhat distinct assertion that the Single Photograph “possessed the relevant character that it passed the filter in s 473DD(b)(ii)” of the Migration Act or was “capable of meeting (b)(ii) and that should be considered when determining (a)” confuses the legal test of s 473DD(b) of the Migration Act and is beside the point. What the Authority is required to ask itself under s 473DD(b)(ii) of the Migration Act is whether it is satisfied that the information is credible personal information. It is apparent from the statutory language of s 473DD(b) of the Migration Act that it is a subjective test, and it was for the Authority and the Authority alone to ask itself the relevant question. ALG19’s argument appears to assert that there was some objective quality about the Single Photograph such that the Authority was wrong to say that it was not credible. But that cannot be the case. It gave numerous reasons as to why the new information about the Tamil Diaspora Claim was not credible. It applied the correct test and ALG19’s disagreement with it does not demonstrate any jurisdictional error.
Materiality of any error
In relation to materiality the Minister submitted that even if, contrary to the above submissions, the Court were to find that the Authority erred in its application of s 473DD of the Migration Act any error would be minute or technical and would not have realistically resulted in a different decision. ALG19 bears the onus of establishing materiality: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421; (2019) 93 ALJR 252 at [4] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
Law concerning s 473DD of the Migration Act
The High Court considered the nature of the procedural duties under s 473DD of the Migration Act in AUS17 and held that performance of the procedural duty in s 473DD of the Migration Act requires:
(a)the Authority:
(i)first, to assess new information against the criteria specified in ss 473DD(b)(i) and (ii) of the Migration Act; and
(ii)if satisfied that one or both criteria are met, to take the outcome of that assessment into account in its assessment of exceptional circumstances under s 473DD(a) of the Migration Act: AUS17 at [11]-[12] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J; and
(b)that if neither criterion under s 473DD(b) of the Migration Act is met, that the Authority is prohibited from considering the new information and that there is no need to assess that information against the criterion in s 473DD(a) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.
The Authority Decision pre-dated the judgment in AUS17. Unsurprisingly therefore the Authority did not express its findings precisely in accordance with AUS17. The Court notes, however, that no “formulaic consideration” of s 473DD of the Migration Act was required: APH17 at [79] per Markovic J; ARO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 847 (“ARO17”) at [64] per Wigney J.
In CSR16 at [41]-[42] per Bromberg J the Federal Court observed as follows:
41In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
42The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
Albeit in the context of whether an applicant had been afforded procedural fairness when the then Refugee Review Tribunal failed to inform the applicant of allegations contained in an unsolicited letter to which that Tribunal had access, but which it explicitly said it placed no weight upon, a unanimous High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88; (2005) 80 ALJR 228; (2005) 222 ALR 411 (“VEAL”) at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said as follows:
“Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision-maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
In BTW17 at [72]-[77] per Mortimer and Jackson JJ the plurality in the Full Court of the Federal Court said as follows:
72Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant — in all these circumstances the Authority is entitled to reflect on and assess the review material already before it — but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions — in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own — fresh — consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
74As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
75That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
76Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 [v Minister for Immigration and Border Protection [2018] FCA 474] is correct.
77Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 [v Minister for Immigration and Border Protection (2020) 273 FCR 170; [2020] FCAFC 24] at [23]–[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
The Tamil Diaspora Claim
The Tamil Diaspora Claim made by ALG19 is articulated in the November 2016 Submission, where the following appears at CB 261-262 under the heading “TAMIL DIASPORA ACTIVITIES: (NEW INFORMATION)”:
The applicant instructs us that he had participated in several Tamil diaspora activities in Australia. He instructs us that he had actively participated in the LTTE's Heroes days’ celebration and other activities carried out by the Tamil Diaspora communities in South Australia. We attach a photograph of the applicant speaking at a Tamil Diaspora activity at a Hero’s Day celebration function in South Australia, 2015. We respectfully submit that the Sri Lankan intelligence community closely monitors events of this nature. The applicant will be identified at the airport as someone who is of interest to the Sri Lankan authorities and taken away for interrogation and, as previously will be subjected to harassment, interrogation, torture and detention, which will subsequently lead to a life of constant monitoring and harassment, if not death. This information was not provided earlier for the consideration of the delegate. We submit that this information is credible personal information which was not previously known. The applicant did not realize that his Tamil diaspora activities in Australia were important to his case and as a result he failed to mention this at the SHEV interview. As a lay person and someone without any knowledge of the process of applying for a refugee's status it is plausible that he had no idea of the significance of his active role in Tamil Diaspora activities abroad. We respectfully urge the presiding reviewer to take into consideration this new information. We state that this is an exceptional circumstance especially when a person’s life is at risk. The delegate did not have any information before him to suggest that the applicant had ever been involved in any post -conflict Tamil separatism activities. Had this information been known by the delegate, it may have affected the consideration of the referred applicant’s claims. We respectfully request the presiding reviewer to consider this new information as set out in section 473DD of the Migration Act. On the new evidence put before the presiding reviewer we submit that the applicant faces a real chance of persecution if returned to Sri Lanka and as such has a well-founded fear.
The Photographs provided with the November 2016 Submission in support of the Tamil Diaspora Claim: CB 282-284, actually comprise not one photograph but rather three photographs of ALG19. The Photographs are described in the November 2016 Submission as being of ALG19 at a “Hero’s Day celebration function in South Australia, 2015”: CB 261.
ALG19 cited country information in support of the above quoted submission. In the November 2016 Submission at CB 262 extracts are quoted from a 2016 International Truth and Justice report entitled “Silenced: survivors of torture and sexual violence in 2015”: CB 238 at fn 40 and a 2016 UK Home Office report entitled “Sri Lanka: Tamil separatism”: CB 240 at fn 52, both of which were before the Delegate and cited in the Delegate’s Decision at the footnotes referred to immediately above, as well as referring to a not readily identifiable “DFAT report”, as follows:
Country Information: The International Truth and Justice Report Project (ITJP) - January 2016 reported that; “During interrogation by the Sri Lankan security forces several victims were falsely accused of working to restart LTTE or bringing the country into disrepute by talking about what happened in the war and its aftermath ....... . In some cases, the interrogators showed the victims print outs of photographs of themselves or people close to them attending recent Tamil diaspora commemorative events abroad.” In our case the applicant has participated in similar events as mentioned above. We respectfully submit that reading the ITJP's report it indicates that the Sri Lankan officials are monitoring these gatherings outside the country. This suggests there is a continuing interest in surveillance of diaspora events. UK Home Office - Country Information and Guidance Sri Lanka: Tamil Separatism (May 2016) “ ..... there are reports that security personnel continued to be responsible for the detention and abuse of civilians accused of LTTE connections in 2015 and intelligence services have continued to show detainees who have returned to Sri Lanka photographs of themselves attending Heroes' Day events and other commemorations abroad, suggesting that there is continuing surveillance of diaspora events.” The DFAT report also states; ‘In general DFAT assesses that Sri Lankan authorities may monitor any member of the Tamil diaspora returning to Sri Lanka, depending on their risk profile. In the current case the applicant is a young Tamil with a profile who has lived in Australia since 2012 and participated in Tamil Diaspora activities, it is very likely that he will be monitored and subsequently arrested, detained and tortured. The International Truth Project Sri Lanka (ITJP) supports this. It states that in its report “Silenced: survivors of torture and sexual violence in 2015’ at page 43, under the section “Important Information for Tamils Abroad Returning Home’ that the Tamils who return to Sri Lanka from abroad are under surveillance and there is still an extensive network of Tamil informers watching for people returning home. The intelligence services are likely to watch someone for a few days on return to the country before picking them up, so clearing the airport is no guarantee of future safety.” Furthermore, the same report states that “be aware that the Sri Lankan intelligence services are still monitoring diaspora events at home and abroad such as Hero’s day and Mullivaikkal Remembrance Day events, taking photographs and then showing them to detainees. This indicates that attending these events is a risk if you are intending to return home or have family living there” Additionally, country information suggests that there is routine surveillance of civil society activities in the North and the East.
The Authority Decision – the Tamil Diaspora Claim as new evidence
In the Authority Decision the claims and new information in relation to the Tamil Diaspora Claim were dealt with at Paragraph [5] which is set out in full at [9] above, but in relation to which it is helpful to again set out the final five sentences thereof which are as follows:
I do not consider it plausible that the applicant would not have been aware of the importance of disclosing involving Tamil diaspora activities in Australia. I consider his failure to mention such Tamil diaspora activities detracts substantially from the credibility of these claims. Furthermore, I note the only evidence he has presented in support of these claims is a copy of a photograph of him with a microphone in front of a Tiger symbol. I consider this evidence to be very limited and lacking in probative value. I am not satisfied there are exceptional circumstances for considering any of this new information.
The Authority Decision - how the Authority dealt with the Tamil Diaspora Claim
In order to determine how the Authority dealt with the Tamil Diaspora Claim it is necessary to consider the structure of Paragraph [5] and how it was that the Authority came to determine that it was not satisfied that there were not exceptional circumstances warranting consideration of the new information.
Paragraph [5] commences with the Authority setting out the new information in relation to the Tamil Diaspora Claim activities, which included:
(a)that ALG19 had participated in “several Tamil diaspora activities”;
(b)that ALG19 had provided “examples of those activities”; and
(c)that ALG19 had provided “a photograph” of ALG19 allegedly at a Hero’s Day function in South Australia in 2015.
The Authority then sets out ALG19’s claims about the consequences of his Tamil Diaspora Claim activities if he were to return to Sri Lanka.
The Authority goes on to refer to ALG19’s claim that the new information was not provided because ALG19 did not realise that his Tamil Diaspora Claim activities might have been significant for the purposes of his SHE Visa application, a claim which the Authority found not to be plausible, in particular because ALG19 had been represented and had had ample opportunity to raise the claims during the Delegate’s Interview. The Authority then finds that ALG19’s failure to mention the Tamil Diaspora Claim “activities detract substantially from the credibility of these claims”.
The Authority then moves on to discretely “note [that] the only evidence” in support of the Tamil Diaspora Claim is a copy of the Single Photograph which it finds to be “very limited and lacking in probative value”.
Analysis
It is convenient to analyse the issue by reference to the Particulars, dealing first with Particulars C and D together, and then Particulars A and B separately.
Particulars C and D
The Authority made a finding that the failure to mention the Tamil Diaspora Claim activities earlier “detracts substantially from the credibility of these claims”. The sole basis for that finding is the timing of the raising of the Tamil Diaspora Claim activities. There is no consideration or finding as to whether the Tamil Diaspora Claim “activities”, of which ALG19 had provided “examples” (so something more than the Single Photograph) was information which in its own terms was capable of being believed in the sense referred to in CSR16. There was also no finding that the information concerning the “activities” was “evidently not credible”: CSR16 at [42] per Bromberg J. This is important because it indicates that these considerations – whether information was in its own terms capable of being believed or whether it was evidently not credible – were not within the Authority’s contemplation when considering the Tamil Diaspora Claim “activities” and, likewise, were not within the Authority’s contemplation when considering the Single Photograph. There was no finding that the Single Photograph considered by the Authority was in its own terms capable of being believed or was evidently not credible.
When specifically considering the Single Photograph the Authority made no finding that the information constituted by the Single Photograph was not open to be or might be capable of being believed as a photograph of ALG19 speaking at a Hero’s Day function in South Australia in 2015). Rather, the Authority found that the Single Photograph (rather than the Photographs) was evidence that was very limited and lacking in probative value.
The mere fact that the Single Photograph is, of itself, incapable of proving that ALG19 spoke at a Hero’s Day function in South Australia in 2015 does not mean it lacks relevance: Franklin v The Queen [2021] NSWCCA 260 at [66]-[71] per McCallum JA, Beech-Jones and Hamill JJ. Albeit a case concerning admissibility of evidence in a criminal proceeding, Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593; (2001) 76 ALJR 291; (2001) 185 ALR 394 is of some assistance in terms of principle, where at [13]-[14] per Gleeson CJ it was said that:
The strength or weakness of evidence may depend in part upon the use that might be made of it. Mr Hill’s selection of three photographs, including one of the appellant, of itself could not support a positive conclusion that the woman he saw was the appellant. But the evidence did not stand alone. And even if it only showed that the woman he saw was consistent in appearance with the appellant, that was a material fact. Similarly, the cogency of the evidence of the acts of identification at the Southport courthouse depended in part upon what was sought to be made of it. As positive identification of the appellant, it was weak. In fact, the evidence of Ms Ogilvie and Mr James did not amount to positive identification. But as evidence that the appearance of the appellant was consistent with that of the wigged female seen near the bank at the time of the Biggera Waters robbery, it was of some probative value.
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury’s verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. … Evidence may show that an accused was near the scene of a crime. Such evidence, on its own, does not show that the accused committed the crime. That does not mean it is of no probative value; in the end, it will have to be considered together with all the other admissible evidence.
Setting to one side the fact that a Single Photograph rather than the Photographs was considered by the Authority, the finding that there was a lack of probative value in even the Single Photograph was not a finding which was reasonably open to be made by the Authority. A photograph claimed to be of ALG19 with a microphone in front of a “Tiger” symbol, and further claimed to be taken in the process of ALG19 making an address at a Hero’s Day function in South Australia in 2015 was plainly relevant to ALG19’s sur place claim. The Single Photograph is arguably relevant in the sense that it is possible that it may, or could, if accepted as new information, make it more probable that ALG19 was engaged in the Tamil Diaspora Claim activity of addressing a Hero’s Day function in South Australia in 2015: Washer v Western Australia [2007] HCA 48; (2007) 234 CLR 492; (2007) 82 ALJR 33; (2007) 239 ALR 610; (2007) A Crim R 386 at [5] (see also fn 4) per Gleeson CJ, Hayden and Crennan JJ.
The relevance of the Single Photograph is reinforced if considered, to the extent permissible, in the context of the review material already before the Authority: BTW17 at [72]-[73] per Mortimer and Jackson JJ. That review material relevantly included significant claims made by ALG19 and accepted by the Authority (see [10] above), including that:
(a)ALG19’s uncle was a longstanding senior LTTE cadre who died in combat;
(b)the SLA regularly came to ALG19’s home and harassed ALG19 and his family, and detained ALG19 several times at an SLA camp where he was beaten severely and tortured in an endeavour to extract information relating to buried weapons;
(c)ALG19 had campaigned for the TNA; and
(d)ALG19 was threatened by a senior member of the TMVP and was the victim of an attempted abduction,
and are claims which could be relevant to the sur place claims when considered in the context of ALG19’s alleged address at a Hero’s Day function in South Australia in 2015. Evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue and is therefore probative: IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300; (2016) 90 ALJR 382; (2016) 330 ALR 382 at [40] per French CJ, Kiefel, Bell and Keane JJ. In the circumstances the Authority erred in finding that the Single Photograph was lacking in probative value and failing to consider the Single Photograph as being arguably relevant and therefore arguably probative, and therefore that it was information which could or might be believed and which could therefore have passed the filter in s 473D(b)(ii) of the Migration Act.
There was, therefore, contrary to the requirements of s 473DD(b)(ii) of the Migration Act, a finding that exceptional circumstances did not exist, without proper consideration or assessment of the mandatory statutory criteria as to whether the new information, and specifically the Single Photograph, was credible personal information. In this respect the Authority Decision was affected by error.
It also follows from the foregoing that the Authority also erred in failing to exercise its statutory power in s 473DD(a) of the Migration Act on the correct basis in circumstances where there have been no proper determination as to whether the new information met the preconditions in s 473DD(b)(ii) of the Migration Act: AUS17 at [11] per Kiefel CJ, Gageler, Keane and Gordon JJ and [23] per Edelman J.
Particular A
Particular A proceeds on a misconception that the “new information” was rejected merely on the basis of the lateness of its submission to the Authority. The Authority rejected the Single Photograph for two reasons, first, because of its lateness and the effect of this on the credibility of claims made and, second, because the Single Photograph was evidence which was limited and lacking in probative value. The second reason has already been found, for reasons set out at [35]-[41] above to be in error, and as such it is not necessary to further consider Particular A.
Particular B
As submitted by the Minister Particular B seems to rely upon the other particulars in ground 1, and as such it is not necessary to further consider Particular B.
Materiality
For present purposes it suffices to observe that the Court may set aside a decision of the Authority upon judicial review if it is affected by material jurisdictional error: Migration Act, ss 474 and 476; MZAPC at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) at [15]-[16] per Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ the High Court said that:
15.What must be shown to demonstrate that an established error meets the threshold of materiality will depend upon the error. In some cases, it will be sufficient to show that there has been an error and that the outcome is consistent with the error having affected the decision. Where the error is a denial of procedural fairness arising from a failure to put the applicant on notice of a fact or issue, the court may readily be able to infer that, if fairly put on notice of that fact or issue, the applicant might have addressed it by way of further evidence or submissions, and that the decision-maker would have approached the applicant's further evidence or submissions with an open mind. In those cases, it is “no easy task” for the court to be satisfied that the loss of such an opportunity did not deprive the person of the possibility of a successful outcome. Importantly, a court called upon to determine whether the threshold has been met must be careful not to assume the function of the decision-maker: the point at which the line between judicial review and merits review is crossed may not always be clear, but the line must be maintained. This case affords an example.
16.In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
As to whether the errors found as set out at [40]-[41] above were material, and therefore constituted jurisdictional error, acceptance of the Single Photograph, or indeed the Photographs, as new information would have required the Authority to consider their content, and to do so in conjunction with other information already before the Authority. That other information would have included the information set out at [39] above, as well as the country information in relation to the monitoring of members of the Sri Lankan community in Australia by Sri Lankan intelligence and security officers. Consideration of that other information in conjunction with the Single Photograph (or the Photographs) gives rise to a realistic possibility that the assessment of the risk of harm to ALG19 if he were to be returned to Sri Lanka might have resulted in an Authority Decision which might have been different by reason of what might then be seen to be ALG19’s “role in post-conflict Tamil separatism”: see CB 347 at [36]. There was therefore a material jurisdictional error in the Authority Decision. The extent of ALG19’s role in any post-conflict Tamil separatism, if found, would of course remain a matter for the Authority, the extent of the role, and in particular whether it was “significant”, being relevant to the ultimate assessment of risk of harm: CB 347 at [36].
It follows that there was material jurisdictional error in relation to at least Particulars C and D of ground 1, and the Authority Decision is therefore affected by material jurisdictional error.
CONCLUSION AND ORDERS
The Court has concluded that the Authority Decision is affected by material jurisdictional error, and therefore writs of certiorari and mandamus ought to issue to quash the Authority Decision and remit the matter to the Authority for reconsideration according to law.
The Court will hear the parties as to costs.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 27 September 2024
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