AOZ18 v Minister for Home Affairs
[2025] FedCFamC2G 89
•31 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
AOZ18 v Minister for Home Affairs [2025] FedCFamC2G 89
File number: MLG 321 of 2018 Judgment of: JUDGE CHAMPION Date of judgment: 31 January 2025 Catchwords: MIGRATION – Protection Visa – Where the Authority did not fail to consider a claim as to whether the First Applicant’s husband was suspected of involvement in the LTTE – Where the Authority’s assessment of a letter from the First Applicant’s husband complied with s. 473DD and was not unreasonable in the legal sense – Where the Authority did not misconstrue its statutory task by imposing an onus of proof on the Applicants – Where the Secretary did not comply with a duty under s. 473CB(1)(c) to give relevant information from an invalid visa application to the Authority but the failure was not material to the result – Where the Authority made an assessment of “new information” as to an ICRC Detention Attestation under s. 473DD(b)(ii) of the Act and its conclusion was not unreasonable in the legal sense – Application dismissed Legislation: Migration Act 1958 (Cth) ss. 5J, 36, 46A, 47, 473CB, 473DD Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82; [2019] FCAFC 222
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 37
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 6; [2019] FCAFC 61
CSR16 v Minister for Immigration [2018] FCA 474
DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220
DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044
FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57
Htun v Minister for Immigration & Multicultural Affairs (2001) 233 FCR 13
Iyer v Minister for Immigration and Affairs [2000] FCA 1788
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12,
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration And Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562
SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452; [2015] FCAFC 12
Wills v Chief Executive Officer of Australian Skills Quality Authority (2022) 289 FCR 175
Division: Division 2 General Federal Law Number of paragraphs: 108 Date of last submissions: 11 September 2024 Date of hearing: 11 September 2024 Place: Melbourne Counsel for the Applicants: Mr Kenneally Solicitor for the Applicants: MP Migration Law Counsel for the Respondents: Ms Martyn Solicitor for the Respondents: Mills Oakley ORDERS
MLG 321 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AOZ18
First Applicant
APA18
Second Applicant
APB18
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
31 JANUARY 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $8,371.30.
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 CHAMPION:
INTRODUCTION
The three Applicants are a family unit: a Tamil woman from Sri Lanka (the First Applicant), her niece (the Second Applicant) and the First’s Applicant’s son (the Third Applicant).
The Applicants have brought an application for judicial review of a decision of the Immigration Assessment Authority not to grant the Applicants protection visas.
Broadly speaking, the claims of all three Applicants rest on the claims of the First Applicant. The First Applicant’s own claims have their origin in her husband’s narrative of his alleged implication in a plot to bomb Colombo airport and wider involvement with the Liberation Tigers of Tamil Eelam (LTTE) and him then fleeing from Sri Lanka in 2007. After her husband fled Sri Lanka, the First Applicant claimed that she was in hiding between 2007 and 2012. She claimed that in 2012 she was kidnapped and was assaulted by her kidnappers. She then escaped. She claimed that her brother-in-law had been killed and a niece “went missing and was later found dead”. The Applicants claimed that the Sri Lankan authorities maintained an interest in them after they had left Sri Lanka.
In this introduction, it is suffice to say that the Authority concluded at [77] of its Reasons that:
I have found the applicants’ claims regarding the husband of Applicant 1 not credible and that as a result, Applicant 1 and by extension, Applicants 2 and 3 are not persons of interest to the Sri Lankan authorities. On the factual findings and country information set out above, I am not satisfied there is a real risk of the applicants facing significant harm in relation to those claims, now or in the reasonably foreseeable future.
The Authority affirmed the decision not to grant the referred applicants protection visas.
There are six grounds of review (Grounds 1–6). I have found that none of the grounds is made out. My reasons follow.
GROUND 1: DID THE AUTHORITY FAIL TO CONSIDER THE FIRST APPLICANT’S CLAIM THAT HER HUSBAND WAS SUSPECTED OF INVOLVEMENT IN THE LTTE?
The Applicant’s written submissions as to Ground 1 commenced as follows:
The Applicant claimed her husband was accused of planning a terrorist attack on the airport. However, the Applicant also claimed that her husband was suspected of LTTE involvement. The IAA needed to consider and reject both claims. The IAA did not. It only rejected the claim the Applicant’s husband had been accused of the attack on the airport.
The Authority squarely rejected the First Applicant’s claim that her Husband had been accused of planning an attack on Colombo airport. The Applicant does not allege error as to this issue. The Authority said at [35]:
I am not satisfied that Applicant l’s husband, CM, was arrested and detained on charges related to a plot to bomb Colombo airport, or that he was subsequently bailed on terrorism related charges.
The alleged error is that the Authority failed also to consider a separate claim of the First Applicant’s suspected LTTE involvement beyond his implication in a plot to bomb Colombo airport.
The decision-maker had to consider all claims and “their component integers” (Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 13, [42]). If the “decision-maker ignored, overlooked or misunderstood …. a substantial and clearly articulated argument … or misunderstood the case being made … that may give rise to jurisdictional error” (Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 at [27]).
The Authority had the requisite level of engagement with any claim as to the First Applicant’s husband’s suspected LTTE involvement separate from his implication in a plot to bomb Colombo airport.
Whether the Authority engaged with the claim to the requisite degree must be assessed by reference to the level of detail of the Applicants’ claims. The required level of engagement will “vary …according to the length, clarity and degree of relevance of the representations (Plaintiff M1, [25]). The Applicants provided very few details of the First Applicant’s husband’s claim of involvement with the LTTE. Indeed, they expressly disavowed any personal knowledge of the nature or scope of his involvement with the LTTE.
The First Applicant declared in a statutory declaration that her husband had never shared the nature of his involvement with the LTTE with her:
11. My husband told me that the Sri Lankan police and Sri Lankan army asked him to admit that he was part of the L.T.T.E and that they would deal with him once he admitted this. I think that he was forced to sign a declaration that he did work with the L.T.T.E.
12. I knew that my husband was sympathetic to the L.T.T.E because we used to have discussions about them and he would support them. As I was from Colombo I was not supportive of them and neither was my extended family.
13. I am not aware that my husband was every part of the L.T.T.E as he never shared this with me. My husband confided in his friend Rajah. Rajah helped my husband by hiring a lawyer for him.
14. About 15 days after my husband was move[d] to Negombo jail he went to court. I do not know what he was formally charged with as the lawyer did not tell me. Rajah told me that there was a rumour that the government has accused my husband of plotting with Chandima to do something to the airport in Colombo.
[Emphasis added]
The Second Applicant (the First Applicant’s niece) also did not have any information about the nature of the First Applicant’s husband’s LTTE involvement. She said in her entry interview:
Do you know anything about your Uncle's suspected involvement will with the LTTE? I never saw him connected with them, so I don't know
[Emphasis added]
Because the Applicants disavowed any personal knowledge of the nature of the First Applicant’s husband’s involvement with the LTTE there was very limited material with which the Authority could engage.
To the extent there was material, the Authority engaged with it. The Authority expressly adverted in its reasons to the claim that the First Applicant’s husband was suspected of involvement in the LTTE beyond the claim that he was implicated in a plot to bomb Colombo airport. The Authority wrote at [22]:
In summary, the applicants’ claims of past harm rest on Applicant 1’s husband’s suspected involvement in the LTTE, his arrest and detention in 2006 and subsequent disappearance in 2007.
There was a claim that the First Applicant’s husband was “cagey” when speaking on the phone in front of her, inferentially because he was discussing LTTE matters. The Authority engaged with this claim when it said it was satisfied that the fact the First Applicant’s husband stopped talking on the phone in her earshot was because of a “personal relationship” and unrelated to the claims for protection (Authority’s reasons, [36]).
Further, some of the Authority’s conclusions were premised on the fact that it had considered the First Applicant’s husband’s suspected involvement with the LTTE more broadly than an involvement in a suspected plot to bomb Colombo airport. The Authority did not accept that the First Applicant’s husband was a person of interest at the time he disappeared and that the Sri Lankan authorities came to their home looking for him (Reasons, [38]). It said that because it did not accept claims about the First Applicant’ husband it was “satisfied that the applicants have no relevant connection to the LTTE which would place them at risk of harm if returned to Sri Lanka” (Reasons, [66]). It was “satisfied that the applicants have no relevant connection to the LTTE which would place them at risk of harm if returned to Sri Lanka” (Reasons, [66]).
The reasons set out above are properly characterised as an engagement with a claim about the First Applicant’s husband’s engagement with the LTTE more broadly than involvement with a suspected plot to bomb Colombo airport.
I ought to adopt a commonsense and realistic approach to the Authority’s reasons. The Applicants have not identified any material fact as to the scope or nature of the Applicant’s involvement with the LTTE separate from the Colombo airport plot as to which the Authority failed to bring its mind to bear.
An unresolved claim?
The Applicant submitted that it was open to the Authority to find that the Applicants’ claims about the First Applicant’s Husband being involved in a “terrorist bomb plot may have been an embellishment, but it could still be plausible that her husband was suspected of LTTE involvement.” (Applicant’s Submissions, [28]). The Applicants referred me to SZTQP v Minister for Immigration and Border Protection (2015) 232 FCR 452; [2015] FCAFC 121 at [56], where a claim being “unresolved” led to a conclusion of jurisdictional error. The claim that the First Applicant’s Husband was suspected of LTTE involvement was not unresolved. As far as the Applicants squarely raised claims about the First Applicant’ husband’s involvement with the LTTE, the central pillar of which was involvement in the suspected plot as to Colombo airport, the Authority resolved those claims against the Applicants.
Ground 1 has not been made out.
GROUND 2: WAS THE AUTHORITY’S ASSESSMENT OF A1’S HUSBAND LETTER IRRATIONAL, ILLOGICAL OR UNREASONABLE?
In a Part 7AA review “the primary rule” or “default position” is that the Authority reviews a decision by considering review material provided to it without accepting or requesting “new information” (BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658, [44]).
The Applicants sought that the Authority consider (relevantly) two pieces of “new information” which the Applicants had not provided to the delegate. The Applicants’ provision of new information to the Authority engaged s. 473DD of the Act, the heading of which is “considering new information in exceptional circumstances”. The new information had to be assessed against the criteria in s. 473DD(b) including as to whether it was “credible personal information” before an assessment as to whether the Authority was satisfied that there were exceptional circumstances to justify considering the new information under s. 473DD(a) as the High Court plurality explained in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37.
The first piece of “new information” relevant to Ground 2 was a letter that the First Applicant’s husband had apparently signed 7 October 2017 which set out that he had had no “contact with his family for the last ten years” and was “residing in France with Refugee Status.” Taken at face value, the First Applicant’s husband’s refugee status in France appeared at least to raise the possibility that in France his narrative about what had happened to him in Sri Lanka was treated as credible. The First Applicant’s Husband wrote in that letter (among other matters):
…
Due to fear that my life would be endangered, I fled the Country at the beginning of year 2007. Initially I did not communicate with my family due to fear that my family would face problems because of me. Later, after some months, when I tried to communicate with them, I came to know that my family has moved out due to my problem. I did not have any contact with my family for the last ten years. Now, as I come to know that my wife [name omitted], my son [name omitted] and foster child [name omitted] have sought refuge in Australia. I have established contact with them.
Currently I am residing in France with Refugee Status. I herewith enclose all relevant documents in support of this.
…
By Ground 2 the Applicants impugn the Authority’s reasons as to how it dealt with this “new information” on the basis that its conclusions as to this letter were unreasonable in the legal sense. The Applicants contend that the reasoning process was affected by “specific error” in that the Authority made two mutually irreconcilable findings (see, e.g., Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, [83]).
As to the first finding, at [14] the Authority found the letter was credible personal information:
Applicant 1 states she has only just come to know about her husband’s residence in France; while his letter is undated, I am willing to accept that the letter from CM and the letter from Applicant 1 could not have been provided to the delegate before the date of the decision. In considering whether the letters are credible personal information, I accept that CM is the author of the letter sent on 9 October 2017. I also accept that the information in his letter is, on its face, information which relates to the applicants personally and is relevant to their claims. Whether or not the contents of his letter do, in fact, support the applicants’ claims is a separate matter which I consider in detail below. For these purposes, I accept that both Applicant 1’s letter and […A1 Husband’s] letter and supporting information (French residence permit and translation and French driver’s licence) are credible personal information and that exceptional circumstances exist which justify my considering the new information.
[Emphasis added]
The Authority’s second finding is set out at [32] and [34] of its reasons.
At [32] of its reasons, the Authority noted that the letter was a “translation of a Tamil letter” and that no original has been provided, no certified copy had been provided and the English language translation appeared to have been signed by the First Applicant’s husband. The Authority said: “Given these matters, I have serious doubts about the authenticity of the letter.”
At [34] the Authority said:
Given my doubts about the authenticity of the letter, I do not consider it reliable and am unable to place much weight on the letter from Applicant 1’s husband.
The Applicant contended that the Authority’s findings as to the Husband’s letter at [14], where its (first) finding was that it accepted that the husband authored the letter and its (second) finding at [32] and [34], where it doubted the authenticity of the letter were mutually irreconcilable and inconsistent. As a result, the Applicant contends that the making of two inconsistent findings was unreasonable in the legal sense.
I do not accept that the Authority’s findings are mutually inconsistent and irreconcilable because the Authority’s approach was shaped by the statutory context of s. 473DD. In CSR16 v Minister for Immigration [2018] FCA 474, [42] Bromberg J explained s. 473DD(b)(ii) as follows:
The criterion 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.
[Emphasis added]
In CSR16 Bromberg J delineated two stages of analysis. First, the Authority must make the evaluation of the “new information” against the s. 473DD(b)(ii) criterion which is “designed to separate information worthy of consideration at the deliberative stage from that which is not.” As noted, Bromberg J deployed the metaphor of a “filtering mechanism”(CSR16, [42]). Once the information has the character of being credible personal information capable of being believed, it will pass through the “filtering mechanism” or procedural stage to the “deliberative stage” (CSR16, [41]). Bromberg J observed at [41] that:
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 correct reading of the Authority’s reasons is that at [14] of its reasons the Authority assessed the “new information” against the s. 473DD(b)(ii) criterion and decided that it was new information capable of being believed and ought to pass through the “filtering mechanism”.
At [32] and [34] of its reasons, the Authority was engaged “at the deliberative stage of its review”. At the deliberative stage it was concerned not with whether the information was capable of being believed but whether the Authority thought it was true. At the “deliberative stage,” the Authority doubted the authenticity of the Husband letter and determined it was unable to place much weight upon it. The two apparently irreconcilable findings can be reconciled on the basis that while the information was capable of being believed the Authority, having deliberated upon it, did not actually believe it.
Once the reasons are understood in their proper statutory context Ground 2 cannot be sustained.
GROUND 3: DID THE AUTHORITY “MISCONSTRUE ITS STATUTORY TASK”?
By Ground 3 the Applicant contends that the Authority misconstrued its statutory task in failing correctly to apply the real chance test under s. 5J of the Act and/or the real risk test under s. 36(2)(aa).
As a matter of principle, it is accurate to say that the Applicants did not carry an onus of proof as sometimes a moving party will in a court (McDonald v Director-General of Social Security (1984) 1 FCR 354). As Mason CJ said in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 37h at 389, “If an applicant establishes that there is a real chance of persecution, then his fear … is well-founded notwithstanding that there is a less than 50% chance of persecution occurring”.
Because the Authority is engaged in a prospective evaluation of whether it is satisfied that the Applicants faced a “real chance” of serious harm if they were to return to Sri Lanka, if the Authority’s finding at [34], properly understood, was a finding that merely because it had “doubts” about the authenticity of the Husband’s letter, it was “unable to place much weight” on it, that may, in error, having imposed too high an onus of proof of the Applicants to prove each factual element of their claims.
Once it is accepted that s. 473DD shaped the way in which the Authority dealt with the husband’s letter, I read the reasons at [32] and [34] as the Authority’s statement that it did not believe that the letter was authentic. The Applicants do not allege that factual finding was not open. The Authority did not place weight on the First Applicant’s husband’ letter (Reasons, [34]) because it did not believe it. The Authority made, as it was entitled to do, various factual findings (including relevantly here, as to the letter) before moving to the ultimate issue of whether it was satisfied that the Applicants were persons to whom Australia owed protection obligations.
The Applicants have not proved that the Authority misconstrued its statutory task or misunderstood the real chance test under s. 5J or the real risk test under s. 36(2)(aa).
Ground 3 has not been made out.
GROUND 4: WAS THE AUTHORITY UNABLE TO EXERCISE ITS JURSIDICTION BECAUSE THE SECRETARY DID NOT COMPLY WITH ITS DUTY UNDER S.473CB(1)(C) OF THE ACT?
As I have noted, the First Applicant’s husband had left Sri Lanka in 2007. The Applicants had left Sri Lanka in July 2012. In September 2013 the Applicants had made a visa application which was an invalid visa application because the bar in s. 46A(1) of the Act lowered against them because they were unauthorised maritime arrivals. In due course, the bar was lifted and the Applicants made a valid visa application which was the subject of the Authority’s decision and is now before me for judicial review. The documents which comprised the earlier invalid visa application retain a significance in the judicial review application because the Secretary did not provide the material which comprised the invalid visa application to the Authority for its review of the subsequent valid visa application.
The Applicants’ previous invalid visa application together with its supporting documents comprised some 179 pages. The previous invalid visa application became evidence before me (Ex. A3). Within those 179 pages, the Applicants focused on a particular newspaper article dated 10 May 2009 which reported that that the First Applicant’s niece had apparently been killed and her body found in a well. The newspaper article also recorded that with reference to the First Applicant that “two years ago her [brother-in-law] was frogmarched out of the same home by a group of gunmen and has never been heard of since and is presumed dead” (p. 46 of 179).
Documents may be relevant even if they form part of an invalid visa application if relevant
It was common ground that s. 47(3) of the Act which provides that “the Minister is not to consider an application that is not a valid application” (which was the subject matter of some consideration by Bromwich J in DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220 at [22]–[23]) did not prevent the documents which comprised the invalid visa application forming part of the material the Secretary gave to the Authority for its review.
The Secretary’s duty to give relevant material to the Authority
Ground 4 is that the decision is affected by jurisdictional error because the Secretary of the Department failed to comply with his or her duty to provide material to the Authority under s. 473CB(1)(c).
Section 473CB(1)(c) provides that the Secretary “must give” to the Authority in addition to a statement of the delegate’s decision and material the referred applicants had provided to the Department:
…
(c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review
The Applicants submitted that because the Secretary failed to give the material that comprised the invalid visa application — in particular, the newspaper article — to the Authority, the Secretary contravened the duty under s. 473CB(1)(c). The Applicants contend that because the Secretary failed to comply with the anterior obligation to give relevant information to the Authority that had the consequence that the Authority failed to carry out the review required by Part 7AA (AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82; [2019] FCAFC 222, [6]). As Thawley J put in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41]: “It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process” (my emphasis).
The invalid visa application was in the Secretary’s possession or control
On 29 May 2015 the Department had written to the Applicants to notify them that the visa application was invalid. In part the letter read:
as you entered Australia as an illegal maritime arrival (IMA) you were prevented by the application bar in section 46A(1) of the Migration Act 1958 (the Act), from lodging a valid application for any visa while in Australia. We have returned a copy of that application form to you with this letter.
I find, as a matter of fact, that even though the department returned the Applicants’ invalid visa application to them, the department retained a copy of the newspaper article after 29 May 2015 in its possession. So much follows from the fact that it provided a copy — and all the documents that comprised the invalid visa application — in this Court in answer to a Notice to Produce served on it in the proceeding before me.
I also find that the Secretary did not provide the newspaper article to the Authority.
There were no reasons for the Secretary’s (assumed) decision that the newspaper article was not relevant and therefore not given to the Authority under s. 473CB(1)(c).
What is my analysis?
In CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 6; [2019] FCAFC 61 at [2] Reeves J identified two key issues which provides a useful lens for considering the issue under Ground 4 in this case.
The first issue, with reference to s. 473CB(1)(c), concerned the Secretary’s obligation to assess the relevance of material at the point in time at which the delegate’s decision was referred to the Authority (CQR17, Reeves J, [2]). Reeves J identified the issue as whether the Secretary breached his or her obligation under s. 473CB(1)(c) by not considering the relevance of the documents not provided to the Authority or, if the documents were considered, whether he or she acted unreasonably in concluding that they were not relevant to the Authority’s review (CQR17, [2]). It was common ground that the Secretary’s view as to whether material to be given to the Authority is relevant must be reasonable (CQR17, [28]).
I have returned to the second issue Reeves J identified in CQR17 below.
As in CQR17 (see Jagot J at [33] of CQR17) in this case I have no evidence as to what the Secretary did or did not do in any consideration as to whether the supporting documents to the invalid visa application were relevant and no reasons as to the Secretary’s decision not to give the documents to the Authority. There was no evidence before me of what the Secretary did or did not do to locate material relevant to the review before it gave material to the Authority.
There was no evidence of reasonable searches
In AUF18 the Court said that s. 473CB(1)(c) contains an implicit duty that the Secretary will take reasonable steps to identify potentially relevant documents (AUF18, [6]; [70]). In AUF18, the court referred to the fact that the Secretary could have performed but did not perform a search of the department’s electronic database.
There was no evidence of any reasonable searches the department conducted for the newspaper article. It was within the peculiar power of the Minister to identify what reasonable steps it took to locate relevant documents. It called no evidence.
One basis for the Minister’s submission that the obligation of reasonable steps did not extend to searching documents (which comprised the earlier invalid visa application), was that it was open to the Applicants — if they wished to rely upon the newspaper article — to provide it as a supporting document to a later valid visa application. Before me, the Minister submitted that the obligation of reasonable searches did not extend to an assessment of supporting documents which had in any event been returned to the Applicants on 29 May 2015 (T59:L41–42). The Applicants did not apparently include the newspaper article in their later valid protection visa application made on 27 August 2015.
Whatever documents the Applicants provided in their valid visa application is not an answer to the independent statutory obligation imposed on the Secretary under s. 473CB(1)(c).
The Minister submitted that the proposed relevant searches were outside the scope of what was reasonable because the Applicants’ position required “that the Secretary would be required to sift through the invalid application and conduct a comparative analysis between the earlier, invalid application and the later valid application” (T62:L23–25). I do not accept this submission. In AUF18 the court had some evidence as to what searches might be required. In AUF18, it was not suggested that any search “would have been difficult or particularly time-consuming”. In this case, there was no evidence to support a conclusion that any searches to locate the documents which comprised the invalid visa application would have been unreasonably difficult or time-consuming. The documents were not voluminous. The production of the documents — without objection — in this Court in answer to the Notice to Produce weighs against any conclusion that the proposed searches were outside the ambit of reasonable searches.
I do not accept that Ground 4 fails because the searching out of these documents was outside the scope of reasonable searches.
Was it legally unreasonable for the Secretary to make the (assumed) decision that the documents in the invalid visa application were not relevant?
In CQR17 Jagot J said at [34] the issue of whether the Secretary considered the documents:
tends to collapse into the other question the appellant posed – was it legally unreasonable for the Secretary to have concluded that the documents were not relevant?
In CQR17 at [38], Her Honour posed the relevant question as whether there was a “lack of an intelligible justification for the (assumed) decision that the document was not relevant”.
As I have noted, the Applicants particularly focused on the relevance of a newspaper article dated 10 May 2009 which corroborated the First Applicant’s claims that her niece was kidnapped and that her brother-in-law had been taken and killed two years earlier.
The Minister submitted that the intelligible justification for the Secretary’s assumed decision that the document was not relevant was that the Applicants had not included it in the later valid application.
I do not accept that that the Applicants’ non-inclusion of the document in the later valid visa application provides an intelligible foundation for the Secretary’s (assumed) decision that the document was not relevant. Whatever the Applicants did, there had to be an intelligible foundation for the Secretary’s decision not to give the documents to the Authority.
Noting as Jagot J did in CQR17 at [39], the test is “not whether I consider the document might have been or was relevant to the review… the test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review”. I cannot propose a “chain of reasoning” (CQR17 at [39]) for an evident and intelligible justification for the (assumed) decision that the document — the newspaper article — was not relevant to the review.
The delegate had dealt with this aspect of the First Applicant’s claims as follows:
Husband’s family member’s targeted
The applicant claims that in 2007 her husband’s brother was abducted and killed. At the PV interview the applicant said a demand for ransom was made and that she believes he was subsequently killed, although the body was not found.
The applicant claims that in 2009 her husband’s niece was killed. At the PV interview she was unable to provide much detail regarding this. It was noted that this occurred several years after her husband’s arrest and in Batticaloa during the conflict. It was noted that this appeared far more likely to be related to the conditions in Batticaloa or her own father’s circumstances. The applicant submitted that there had been a long gap but that anything could happen in Sri Lanka and that the authorities had been after her for a long time.
Whilst the applicant has not provided evidence to support this claim, I am prepared to accept that her husband’s brother and niece died between 2007 and 2009. I consider the claim to be plausible as both incidents occurred during the time of the Sri Lankan civil conflict. However there is no evidence to suggest that this was in any way related to her husband’s own circumstances and I am not satisfied that there is any link between these two claims.
The newspaper article corroborated the First Applicant’s claims that her husband’s family members had been targeted. Material is relevant if it crosses the low threshold that it is “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding” (ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34, [6]).
There was no evident and intelligible justification for the Secretary’s (assumed) decision that the newspaper article was not relevant to the Authority’s review.
Was there a realistic possibility that the Authority’s decision could have been different if it had taken the document into account?
In CQR17 at [3] Reeves J said the second issue was one of materiality. His Honour said it:
assumes a breach of s 473CB(1)(c) by the Secretary with respect to those documents and posits the question “whether there is a realistic possibility that the [IAA’s] decision could have been different if it had taken [them] into account”
As to materiality, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12, the High Court said at [9]:
there are two questions: has an error occurred; and, if so, was that error material.
At [16] of LPDT the High Court said:
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).
The Authority’s reasons as to the First Applicant’s claim about her niece’s death appear at [51]–[52] of its Reasons:
51. … Nonetheless, I am prepared to accept as plausible that SC [the First Applicant’s brother-in-law] was kidnapped and murdered a couple of months after Applicant 1’s husband disappeared, that is, in early 2007.
…
52.I have some difficulty with Applicant 1’s claims regarding the death of SC’s daughter in 2009. In her entry interview, after referring to SC’s death, she stated her nephew was shot dead in 2009. In her later evidence, including both the 2013 and 2015 statements, there is no mention of her nephew having been shot in 2009. Instead, she makes the claim that SC’s 8 year old daughter, TS, went missing and was later found dead. In her 2013 statement she said she thinks TS’s death was because of her husband and what he was planning to do at the airport and in response to the delegate’s questioning at her SHEV interview, agreed that considerable time had elapsed between her husband’s disappearance and TS’s death but that there could be a connection. For the reasons set out above, I do not accept that her husband was involved in an airport plot or that he was, at any stage, wanted by the authorities and I consider this claim an embellishment designed to bolster her protection claims. Given that in her entry interview she did not refer at all to the death of TS but only that of a nephew, I have some doubts about the claim regarding TS’s death. However, even if I accept that TS died in 2009, I am not satisfied that her death was in any way connected with the applicant’s husband or that it has any significance for, or relevance to, Applicant 1’s claims for protection or that of the other applicants.
[Emphasis added]
The Applicants submitted that “in terms of materiality, the applicant simply argues it could have changed how the authority viewed her credit” (T15:L37–38). The Applicants emphasised that their case was that the Authority ought to have had this newspaper article “from the beginning” (T32:L38). At the end of its review the Authority had come to disbelieve the Applicants but had the Authority had the newspaper article “from the beginning” it may have, so the Applicants submitted, affected its overall assessment of the Applicants’ credibility. As Lee J observed in a passage in SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]–[45] in a discussion as to how an erroneous credibility finding as to a particular issue can have a ripple effect and infect an overall credibility conclusion "it is not realistic to put the various aspect of the appellant’s evidence into hermetically sealed boxes”. Credibility findings are not linear. An assessment of credibility is “necessarily […] impressionistic […] [and] takes into account all the evidence.”
Even noting Lee J’s observations in SZTFQ, the Applicants have not proved that there was a realistic possibility that the outcome could have been different had the Secretary given the newspaper article to the Authority.
As to the family deaths, the Authority found in favour of the Applicants even without the newspaper article
There was not a realistic possibility that the outcome could have been different chiefly because the Authority accepted in any event the Applicants’ contention that the First Applicant’s brother-in-law and niece were dead as the Applicants contended and as the newspaper article corroborated. Ultimately the Authority ultimately found in the Applicants’ favour as to this issue even without the newspaper article. As counsel for the Minister put it, the newspaper article reinforced the Authority’s decision as made (T87:L40–45). I accept that its finding was not made unreservedly: it had its “doubts” [Reasons, [52], above]. The Applicants however do not contend that the Authority’s credibility finding as to this issue (the death of the family members) was erroneous, indeed they assert that the finding was correct. Their concern is only that the Authority did not make the finding about the niece’s death unreservedly but had some doubts. Even accepting the premise of the tragic family deaths, the Authority was still not satisfied that the deaths were “connected with the [first] applicant’s husband.”
There were other independent concerns as to the Applicants’ credibility
Further, even if the Secretary had given the newspaper article to the Authority, the Authority had a number of other independent concerns about the Applicants’ credibility.
In DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 Beach J had recognised at [55] that there was a “material risk” that an erroneous credibility finding as to one issue meant there was “contamination of other factual findings on other matters”.
Deploying the analysis Beach J adopted in DTN16, as I have set out above, the first reason that there is no material error as to Ground 4 is that the Applicants do not contend that there was an erroneous credibility finding as to the issue of the family deaths.
The second issue is that Beach J contrasted a case of cross-contamination with a case in which there was a “disjunction of facts” and other facts not affected by the error supported the decision: that is, there are independent reasons which support the adverse credibility finding in any event. Beach J said that it “all depends upon the context and circumstances”: DTN16, [50].
In this case, the Authority noted that it had “significant concerns about the applicant’s credibility” (Reasons, [22]). There were several issues. One issue was a series of anomalies in a bail notice. In its Reasons at [26] the Authority noted (among other matters) a date anomaly in the bail notice that:
the notice indicates that Applicant 1 is ordered to appear before the court on 2 February 2007 in regard to her husband not having appeared before the court as required. However, it is signed on 18 October 2000 some six years before her husband’s arrest and detention.
As to the death of the First Applicant’s brother-in-law and niece, the Authority was prepared to proceed on the basis that they had died. Even though it was prepared to proceed on that basis, ultimately it found against the Applicants on their protections claims, because there were other independent claims as to which it simply did not believe the Applicants. The bail notice is one example. As to these other issues there was a “disjunction of facts” between them and the death of the First Applicant’s brother-in-law and niece. As a result, even if the Authority had the newspaper article, given other independent credibility findings adverse to the Applicants, there was no realistic possibility that the result could have been different.
Ground 4 has not been made out.
GROUND 5: DID THE AUTHORITY FAIL TO COMPLETE ITS STATUTORY TASK UNDER S. 473DD(B)(II) OF THE ACT ?
The second piece of “new information” that the Applicants provided to the Authority but which they had not provided to the delegate was a “Detention Attestation” of the International Committee of the Red Cross (ICRC) dated 18 August 2006. In November 2017, the Applicants, who were then self-represented, provided the Detention Attestation to the Authority under cover of an email. The email attached the Detention Attestation without any explanation. On its face, the ICRC “Detention Attestation” recorded that the First Applicant’s husband had been detained in Negombo Prison, Colombo, that ICRC delegates had visited him on 29 June 2006 and according to him he had been released on 16 August 2006. The document was apparently endorsed in Colombo on 18 August 2006 .
The Authority’s approach to the Detention Attestation underpins the alleged errors in Grounds 5 and 6.
The Applicants submit that the Authority did not complete a mandatory part of its statutory task because it made no express finding as to whether the Detention Attestation was “credible personal information” under s. 473DD(b)(ii) (Ground 5). Alternatively, if the reasons are properly characterised on the basis that the Authority did assess that the Detention Attestation was not “credible personal information” under s. 473DD(b)(ii) its conclusion was unreasonable in the legal sense (Ground 6).
Because the Detention Attestation had not been before the delegate, the Authority had to consider whether the “new 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 claim” under s. 473DD(b)(ii).
In their written outline the Applicants submitted at [48]–[49] that:
48.…The IAA speculated the document may have been in the Applicant’s husband’s possession but made no express finding as to whether the document was credible or capable of belief.
49. The inference can be drawn that the IAA – having not been given any explanation as to why s 473DD(b)(ii) was not satisfied – did not assess the material against that criterion. The IAA made no finding as to whether the document was capable of belief or could have affected consideration of the delegate’s claims.
With reference to the Detention Attestation, the Authority at [15] of its Reasons said:
15. On 13 November 2017 a further email was sent to the IAA attaching a ‘Detention Attestation’ on ICRC letterhead (the Attestation). The Attestation was not before the delegate and is new information. The date of the document indicates that it was endorsed on 18 August 2006. No explanation has been provided as to why the information could not have been given to the Department before the decision was made or why the information is credible personal information which was not previously known and had it been known, may have affected consideration of the applicants’ claims. The Attestation is said to relate to CM’s detention in 2006. However, if the Attestation was in the possession of CM, no explanation has been provided as to why it was not provided with the material provided to the IAA a month earlier. I am not satisfied that exceptional circumstances exist to justify considering the Attestation.
[Emphasis added]
If the Authority failed to make an assessment of whether the information was credible personal information in accordance with s. 473DD(b)(ii) the non-performance of the procedural duty could be accurately characterised “as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s. 473DD(a)” (AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37, [12]). In AUS17 the plurality said at [8]:
The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of "credible personal information", that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.
Whether the Authority complied with its obligation to assess the information against the criterion in 473DD(b)(ii) must be addressed as a matter of substance (BTK19, [56]) and no “formulaic consideration” was required (FGI18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57, [28]).
The Applicants submitted that the Authority’s reasons at [15] were insufficient because even if the Applicants provided no explanation as to why the information was credible information the Authority had to assess for itself whether the information was credible personal information.
The Authority’s reasons at [15] disclose that it made an assessment of the new information comprised of the ICRC Detention Attestation as the statute required. As the plurality in AUS17 had said at [8], it was for the Applicants to satisfy the Authority that the new information met the “tripartite description” in s. 473DD(b)(ii), The first of the three parts of the “tripartite description” was that the new information was “credible personal information”. In circumstances in which the Applicants had provided the ICRC Detention attestation with no explanation at all they had not satisfied the Authority that the information was “credible personal information.” Reasons of an administrative decision-maker should not be combed through “with a finely attuned antenna for error” and a “commonsense and realistic approach should be taken to understanding the reasons as a whole to see what it was that the [decision-maker] was saying” (Fang Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1044, [14]–[15], approved in Wills v Chief Executive Officer of Australian Skills Quality Authority (2022) 289 FCR 175, [141]). There is no error if it can be inferred from the Authority’s reasons that the relevant assessment against the s. 473DD criteria occurred.
At [15] of its reasons as to the ICRC Detention Attestation document, it expressly identified the relevant statutory criterion as to whether the new information was “credible personal information”. Considered in a commonsense way its reasons disclose that the Applicants had not satisfied it that the new information in the Detention Attestation was credible information because they provided no explanation to it.
Ground 5 has not been made out.
GROUND 6:WAS THE AUTHORITY’S CONCLUSION THAT S. 473DD(B)(II) WAS NOT SATISFIED IN RELATION TO THE ICRC DETENTION ATTESTATION CERTIFICATE LEGALLY UNREASONABLE?
Amendment
In the course of oral argument, I permitted the Applicants further to amend their application to include a new Ground 6.
I permitted the amendment by reasoning by analogy to when leave may be granted for a new ground on appeal for a ground not argued below. The relevant discrimen as to whether leave to amend should or should not be granted is the interests of justice. In granting leave to argue a new ground on appeal not argued below in Iyer v Minister for Immigration and Affairs [2000] FCA 1788 a Federal Court Full Court said at [22]:
This is not a case where the new grounds might have been met by calling evidence at the hearing or might have resulted in the case of the respondent being differently conducted. Accordingly, a consideration whether leave should be granted depends upon whether it is expedient and in the interests of justice to allow the grounds to be argued. We recognise that there is a particular sensitivity in refugee cases where an adverse decision may have very serious consequences for an applicant.
The Minister neither consented to, nor opposed, the application to amend. There is no relevant prejudice to the Minister. Jurisdictional error is either disclosed (or not) on the face of the Authority’s reasons. Ground 6 , if correct, is not amenable to being answered by the calling of further evidence. As the Full Court said in Iyer, the serious consequences for the Applicants of an adverse decision in a case about Australia’s protection obligations weighed significantly in favour of granting permission to amend.
Ground 6
Ground 6 was that if the correct characterisation of the Authority’s reasons at [15] was that it had assessed the Detention Attestation against the s. 473DD(b)(ii) criterion (as I have concluded it did as to Ground 5 above), its conclusion was unreasonable in the legal sense. One way in which it was argued that it was unreasonable in the legal sense is that it was based on irrational or illogical reasoning.
As Allsop CJ said in Minister for Immigration And Border Protection v Stretton(2016) 237 FCR 1; [2016] FCAFC 11 at [10], although the concept of legal unreasonableness is not amenable to “rigidly-defined categorisation” one way in which a decision may be characterised as legally unreasonable is if it lacks an “evident and intelligible justification” or if it is “plainly unjust, arbitrary having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power” (Stretton, [11]).
In its reasons at [15], the Authority noted that the Applicants had provided “no explanation” as to why the Detention Attestation was credible personal information.
On its face, it was open to the Authority to conclude that the new information was capable of being believed — and passing through what Bromberg J had described as a filtering mechanism in CSR16 — even if the Applicants provided it to the Authority without explanation. Perry J had described this as a “low bar” in BTK19. The provenance of the information was from the ICRC, a respected, independent international organisation. Its ICRC provenance made it “credible.” On its face the ICRC attested that its representatives had visited the First Applicant’s husband in a Colombo jail in the relevant timeframe. Its subject matter, the First Applicant’s husband, made it “personal.” Even though the Applicants provided no explanation as to why the information was “credible personal information,” within the scope of s. 4743DD(b)(ii), it may have been open to the Authority to conclude that the document required no explanation as to why it was “credible personal information”. The document spoke for itself.
Ground 2 above was also a legal unreasonableness ground. As Jagot J said in a different context in CQR17 at [39], the test is not whether I consider the new information was “credible personal information” but whether there was an evident and intelligible justification for the Authority’s conclusion that the referred Applicants had not satisfied it that the new information was credible personal information.
The evident and intelligible justification for the Authority’s conclusion that it was not satisfied that the Detention Attestation was credible information was that the Applicants — within whose peculiar knowledge information about the Detention Attestation lay — did not provide any explanation as to why it was credible information. The Applicants did not explain why it was provided to the Authority and not to the delegate. The Applicants did not explain whether what appeared on the face of the document was what they contended it in fact established. It was for the Applicants to satisfy the Authority of these matters. The Applicants’ absence of an explanation — to which the Authority expressly referred in its reasons — afforded the evident and intelligible justification for the conclusion that the Authority reached even if a contrary conclusion may also have been available to the Authority.
Ground 6 has not been made out.
WHAT IS MY CONCLUSION?
I will dismiss the application. I will order that the Applicants pay the First Respondent’s costs fixed in the amount of $8,371.30.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 31 January 2025
0
26
1