Aqq17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Case •

[2022] FedCFamC2G 486

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AQQ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 486

File number(s): MLG 303 of 2017
Judgment of: JUDGE STREET
Date of judgment: 21 June 2022 
Catchwords: MIGRATION – Immigration Assessment Authority – reserved decision of a Judge of a differently constituted Court – where that Judge has resigned – where the Chief Judge of the Court made orders for the matter to be decided by this Court – where the matter is to be decided on the papers – whether a prior visa application was “new information” – whether the new information considered by the Authority was before the Minister at the time of the delegate’s decision – invalid protection visa application including statutory declaration found to be new information – new information material – applicant successful on Ground 2 and consequentially successful on Ground 1 – writ of  certiorari issued quashing the Authority’s decision – writ of mandamus issued, remitting the matter to the Authority  
Legislation: Migration Act 1958 (Cth) pt 7AA; ss 5A, 5H, 5J, 36(2)(a), 36(2)(aa), 46A, 54, 55, 56, 57, 65, 473B, 473DA, 473DB, 473DC, 473DD, 473DD(a), 473DE, 473FA(1)
Cases cited:

ABT17v Minister for Immigration and Border Protection [2020] 94 ALJR 928

AVQ15v Minister for Immigration and Border Protection [2018] FCAFC 133

AWL18v Minister for Home Affairs [2021] FCA 235

BDR18v Minister for Home Affairs [2020] FCA 212

Blatch v Archer (1774) 98 ER 969

CVV16 v Minister for Home Affairs [2019] FCA 1890

DFW16v Minister for Immigration and Border Protection [2018] FCA 746

DTK17v Minister for Immigration and Border Protection [2018] FCAFC 170

EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 506

MZZJOv Minister for Immigration and Border Protection [2014] FCAFC 80

Division: Division 2 General Federal Law
Number of paragraphs: 115
Date of last submission/s: 9 September 2021
Date of hearing: 10 September 2021, referred to this Court as constituted on 27 May 2022
Place: Sydney
Counsel for the Applicant: Mr J Murphy
Solicitor for the Applicant: Lander & Rodgers
Counsel for the First Respondent: Mr M Hosking
Solicitor for First Respondent: Australia Government Solicitor

ORDERS

MLG 303 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

AQQ17

Applicant
AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

21 JUNE 2022

THE COURT ORDERS THAT:

1.The name of the first respondent is changed to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.A writ in the nature of certiorari is issued, calling up the record of the Immigration Assessment Authority and quashing the decision made on 2 February 2017.

3.A writ in the nature of mandamus is issued, requiring the second respondent to determine the application for a Safe Haven Enterprise (Subclass 790) Visa under pt 7AA of the Migration Act 1958 (Cth) 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 STREET:

BACKGROUND

  1. This is an application for a Constitutional writ in respect of a decision of the Immigration Assessment Authority (“the Authority”) under pt 7AA of the Migration Act 1958 (Cth) (“the Act”) made on 2 February 2017, affirming a decision of a delegate of the first respondent (“the delegate”) not to grant the applicant a Safe Haven Enterprise (Subclass 790) Visa (“the Visa”).

  2. The applicant was found to be a citizen of Sri Lanka and a Tamil from Batticaloa, Eastern Province, who arrived in Australia as an unauthorised maritime arrival on 17 August 2012. On 24 July 2013, the applicant applied for a Protection Visa (“the Invalid Protection Visa”), which was found to be invalid because the applicant was an unauthorised maritime arrival within the meaning of s 5AA and s 46A of the Act. On 17 August 2015, the Minister lifted the s 46A bar to allow the applicant to apply for a Safe Haven Enterprise Visa. The applicant lodged a valid application for a Safe Haven Enterprise Visa on 16 November 2015.

  3. These proceedings were commenced on 16 February 2017 and were the subject of a hearing before a differently constituted Court on 10 September 2021. The Judge of that differently constituted Court resigned before delivering reasons and making orders in this matter. As a result, on 24 May 2022, the Chief Judge of this Court made orders for the matter to be determined on the papers by a Judge of the Court. The Chief Judge also ordered that the transcript of the hearing, dated 10 September 2021, be marked as an exhibit in that hearing, and that there to be liberty to apply to make further oral or written submissions within 14 days of receipt of the transcript.

  4. It is apparent from the Court file that the transcript was forwarded to the parties on 27 May 2022. This Court also wrote to the parties on 27 May 2022 by email and identified that, if a request was made for an oral hearing, this Court would list the matter on 15 June 2022.

  5. No written submissions were provided to the Court following the order made on 24 May 2022, nor was there any application for an oral hearing. Accordingly, this Court has proceeded to determine the matter on the papers.

    THE EVIDENCE

  6. The transcript of the 10 September 2021 hearing is marked Exhibit A. The electronic copy of the court book is marked Exhibit B. The applicant’s tender bundle is marked Exhibit C. The statement of agreed facts is marked Exhibit D. It is apparent from the transcript that the applicant also wished to rely upon a notice disputing facts filed on 31 August 2021. Accordingly, that notice is marked Exhibit E. The affidavit of Josephine Marino dated 7 September 2021, together with its annexures is treated as having been read and admitted into evidence.

    GROUNDS OF APPLICATION

  7. The Grounds advanced in the further amended application, filed on 10 September 2021, are as follows:

    1.In circumstances where:

    a.the IAA relied on the invalid protection visa application that had not been referred to by the delegate;

    b.the IAA rejected aspects of the Applicant's claims that had been accepted by the delegate (who had an advantage over the IAA in that it was capable of assessing the Applicant's demeanour at an in-person interview); and/or

    c.the IAA relied on the 2017 DFAT report in contrast to the 2015 DFAT report that had been relied upon by the delegate (the 2017 DFAT report being relatively less favourable to the Applicant);

    the IAA unreasonably failed to exercise its powers, or to consider to exercise its powers, to get new information (s 473DC(3) of the Migration Act 1958 (Cth) (Act)) to invite the Applicant to give new information, or unreasonably performed its duty to conduct the review (s 473CC of the Act).

    Particulars of Ground 1, Circumstance (a):

    i.Before making his application for a Safe Haven Enterprise visa (SHEV) in 2015 the Applicant had made an invalid application for a protection visa in 2013.

    ii.The delegate in their reasons did not refer at all to the invalid protection visa application.

    iii.The IAA referred extensively to the invalid protection visa application and, in particular, perceived inconsistencies between the information in the invalid protection visa application and information given by the Applicant in support of the SHEV application.

    Particulars of Ground 1, Circumstance (b):

    iv.The delegate, having had the benefit of a face to face interview with the Applicant, accepted various claims of the Applicant, including that he and his father had been kidnapped by the Karuna Group (CB 261–2 [18]–[22]) and that his passport had been taken after a raid on his house (CB 232 [34]).

    v.The IAA, with only an audio recording of the delegate’s interview, rejected a number of claims that had been accepted by the delegate, including that he and his father had been kidnapped by the Karuna Group (CB 261–2 [18]–[22]) and that his passport had been taken after a raid on his house (CB 263 [27], [30]).

    Particulars of Ground 1, Circumstance (c):

    vi.In making their decision, the delegate relied upon information in a delegate had relied upon a Department of Foreign Affairs and Trade country report published on 18 December 2015 (2015 DFAT report).

    vii.In making its decision, the IAA relied upon a DFAT report published on 24 January 2017 (2017 DFAT report).

    2.In affirming the decision to refuse the SHEV, the IAA made extensive reference to the invalid protection visa application statutory declaration and in doing so erred jurisdictionally by:

    a.failing to comply with s 473DD(a) of the Act in that it considered the invalid protection visa application statutory declaration (which was ‘new information’) but did so without being satisfied that there were ‘exceptional circumstances to justify considering the new information’; and/or

    b.failing to comply with s 473DE of the Act in that it did not give the Applicant particulars and an explanation of, and an opportunity to comment on, the new information.

    Particulars of Ground 2(a):

    i.The invalid protection visa application statutory declaration was new information as the IAA considered it relevant to the review and it was not before the delegate.

    ii.The IAA did not for a state of satisfaction as to ‘exceptional circumstances to justify considering the new information’.

    Particulars of Ground 2(b):

    iii.The invalid protection visa application statutory declaration was new information as the IAA considered it relevant to the review and it was not before the delegate.

    iv.The invalid protection visa application statutory declaration was the reason, or part of the reason, for affirming the delegate’s decision.

    v.The IAA did not give the Applicant particulars and an explanation of, and an opportunity to comment on, the invalid protection visa application statutory declaration.

    3.The IAA failed to perform the statutory duty of conducting a review within the meaning of Part 7AA (in particular s 473CC(1)) because the IAA did not consider the Applicant’s substantial and clearly articulated claim to fear harm based on a cumulation of his previous mistreatment by authorities and associated groups in Sri Lanka (imputed political opinion) and his being a returnee from abroad (failed asylum seeker).

    Particulars

    i.The Applicant put forward his claims to fear relevant harm on a cumulative basis, in particular in respect of both his fear of harm based on imputed political opinion and based on being a returnee/failed asylum seeker.

    ii.The IAA did considered each of those claims discretely, but not cumulatively.

    4.The IAA failed to perform its statutory task in that it made unreasonable findings on the Applicant’s credit by:

    a.placing reliance on perceived inconsistencies between the Applicant’s written statements and his interview with the delegate; and/or

    b.placing reliance on perceived inconsistencies between the Applicant’s entry interview and subsequent information he provided to the Department.

    Particulars of Ground 4(a):

    i.In both his 2013 and 2015 statements, the Applicant began by explaining that those documents were ‘not exhaustive’, and contained only a ‘summary’ of his claims. In both statements, he explained that he would ‘provide further details’ in an interview with the delegate.

    ii.Nevertheless, the IAA effectively treated the statements as exhaustive, and made adverse credibility findings based upon the fact that, at the delegate interview, the Applicant:

    a)provided new details of his claim regarding his abduction by the Karuna Group provided at the delegate interview, including that one of the persons from the Karuna Group who kidnapped him was a friend from school;

    b)raised a ‘new claim’ at his delegate interview about his father being kidnapped by the Karuna Group;

    c)advised that someone went to his family home in around September or October 2015 and asked for the Applicant’s phone number; and

    d)claimed that his passport had been taken by the SLA in 2011.

    Particulars of Ground 4(b):

    iii.The Applicant participated in an entry interview.

    iv.The Applicant explained, and the delegate accepted, that he had omitted things from his entry interview because he was ‘scared’ and ‘nervous’. He had also indicated in writing that he was told in the entry interview ‘to give short and simple answers’.

    v.Nevertheless, the IAA made adverse credibility findings against the Applicant based upon his failure to mention the following matters in his entry interview:

    a)being abducted by the Karuna Group in 2007;

    b)having to move around to avoid detention in 2010-2011;

    c)having his passport taken away after a raid of his family's house.

    THE STATEMENT OF AGREED FACTS

  8. A statement of agreed facts was filed on 9 September 2021 and it agreed as follows:

    Pursuant to s 191 of the Evidence Act 1995 (Cth), the parties agree the following facts for the purposes of the trial of the proceeding:

    1.An audit trail record on the Total Records Integrated Management (TRIM) database that shows that a document was “viewed” by a user does not show what page or pages of the document were previewed (or otherwise viewed) by the user.

    2.An audit trail record on the TRIM database that shows that a document was “viewed” by a user at a particular time does not show the duration of time the user previewed (or otherwise viewed) the document.

    3.An audit trail record on the TRIM database that shows that a document was “extracted” by a user does not show what the user did with the document after saving it as a document outside of the TRIM database.

    THE AUTHORITY’S DECISION

  9. On 2 September 2016, the delegate notified the applicant of the refusal of the application for the Visa, which was lodged on 19 November 2015. In the hearing transcript, it was conceded that the delegate’s decision was recorded as being made at 10:49am on 2 September 2016, as identified in annexure JM-4 of Josephine Marino’s affidavit, dated 7 September 2021.

  10. On 17 August 2012, the applicant arrived in Australia. On 8 September 2016, the Authority wrote to the applicant, explaining that the application for the Visa had been referred to the Authority for review. The letter provided an attached fact sheet and Practice Direction, giving the applicant an opportunity to put on new information and submissions.

  11. No submissions were made by the applicant to the Authority, nor was there any new information provided. On 2 February 2017, the Authority delivered its decision, affirming the delegate’s refusal to grant the applicant’s Visa.

  12. In its reasons, the Authority identified the applicant to be a Tamil from Batticaloa in the Eastern Province Sri Lanka. The Authority identified the background to the Visa application. The Authority identified having regard to the material referred by the Secretary under s 473B of the Act. The Authority identified that it was satisfied that there were exceptional circumstances to justify considering new information, being the most recent Department of Foreign Affairs and Trade (“DFAT”) country report for Sri Lanka, which was published on 24 January 2017.

  13. The Authority summarised the applicant’s claims and took into account the applicant’s Invalid Protection Visa statement in making adverse credibility findings. The Authority found that the applicant does not have a well-founded fear of prosecution within the meaning of s 5J of the Act.

  14. The Authority found that the applicant does not meet the requirements of refugee in s 5H(1) of the Act. The Authority found that the applicant does not meet the criteria in s 36(2)(a) of the Act and does not meet the requirements of complimentary protection in s 36(2)(aa) of the Act.

    THE SUBMISSIONS AND TRANSCRIPT

  15. The Court also has an outline of submissions filed on 27 August 2021 on behalf of the applicant, and an outline of submissions filed on 7 September 2021 by the first respondent which have been taken into account in respect of the 4 Grounds.

  16. The transcript identifies the recent amendment made which was the subject of the further amended application, identified by double underlining.

  17. The oral submissions on behalf of the applicant identified that Ground 1, broadly speaking, complains of the failure of the Authority to invite the applicant to provide new information. The transcript makes apparent that the applicant was complaining of a failure to consider the exercise of the power in this case. There are two grounds upon which the applicant orally submitted that the inference should be drawn that there was a failure to consider.

  18. Attention was drawn to how the Authority turned to the question of the information before it, and the new information in paragraphs 2 and 3 of its reasons. In that regard, the Authority was identifying new information in respect of a DFAT report. It was submitted that the failure to advert to a potential other exercise of power, namely, inviting the applicant to an interview or to provide specific information, supports the inference that there was a failure to consider. Counsel for the applicant adopted the proposition that the specific paragraphs in the report that the Authority referred to were exhaustive of the consideration.

  19. The second aspect upon which the applicant relied as to there being a failure to consider the exercise of the statutory power was the significance and gravity of the circumstances, which the applicant contended would weigh in favour of the exercise of the power, or at least a consideration of that exercise. In that regard, the applicant identified that the Authority was proposing to rely on information that did not form part of the particular Visa application in a formal sense, had not been referred to by the delegate in his reasons, had not been referred to by the applicant in his submissions before the delegate, and was almost four years old.

  20. It was also orally submitted that the failure to consider, if made out, was sufficient to establish a jurisdictional error. It was submitted that this Court is bound by the decision of Barker J in DFW16v Minister for Immigration and Border Protection [2018] FCA 746 (“DFW16”). The applicant contended that the non-exercise of the power was unreasonable because of three different circumstances, the most weighty of which were contended to be Ground 1, paragraph (a) and paragraph (b).

  21. The oral submissions made it apparent that, in relation to Ground 1, the applicant was contending both a failure to consider and, if there was consideration, that it was unreasonable in the circumstances, particularly in light of Grounds 1(a) and 1(b). The crux of the case was suggested to be that the Authority took into account the Invalid Protection Visa application, which the delegate had not considered.

  22. The applicant submitted that the first respondent’s submission in answer to the proposition that the non-exercise was not unreasonable was to refer to the applicant making no submissions to the Authority. The applicant identified that this misunderstood what legal reasonableness required. In particular, reference was made to the anterior issue in the judgment of Barker J in DFW16 at [61], and that the factsheet provided is not a document which tells the referred applicant that any earlier applications will be considered in the course of the Authority’s review.

  1. The applicant then responded to the general proposition advanced on behalf of the first respondent; that the Authority generally regarded the Invalid Protection Visa statement as being consistent with the Visa statement, or made findings favourable to the applicant despite inconsistencies between the Invalid Protection Visa statement and other evidence. The applicant referred to paragraph 15 of the Authority’s reasons, which referred to some concerns about the applicant’s inconsistent evidence surrounding events. The applicant submitted that those “concerns” were, it appears, only partially resolved in the applicant’s favour, and that the complaint was not about what went in the applicant’s favour but what went against the applicant. The proposition was adopted that the applicant ought to have been given the opportunity to respond to those matters, so that the Authority could have regard to what he had to say about those matters that were found against him.

  2. The applicant also relied upon the Authority’s rejection of the applicant’s evidence regarding the Karuna Group abduction. It was based on inconsistencies, not just between the Visa interview and the Visa statement, but also between the Visa interview and the Invalid Protection Visa statement, which appears in paragraph 18 of the Authority’s reasons.  Relevantly, in that regard, the Authority said in the first sentence:

    I find the applicant’s oral evidence in relation to his abduction by the Karuna Group to be unconvincing and largely inconsistent with the information provided in his SHEV and PV statements.

  3. Mr Hosking, of Counsel on behalf of the first respondent, informed the Court orally that the first respondent accepts that, with respect to each of the Grounds put, if there was an error, it was material.

  4. Counsel for the applicant then referred to Ground 1(b) in respect of the non-exercise of the power being unreasonable in the context of the Authority rejecting claims which the delegate had accepted. In that regard, reference was made to the decision of the learned Bromberg J in ABT17v Minister for Immigration and Border Protection [2020] 94 ALJR 928 (“ABT17”) at [25], which refers to the applicant bearing the onus to satisfy the Court that the Authority failed to consider the exercise of s 473DC of the Act, and that the failure was material to the decision.

  5. Attention was drawn to paragraph 39 of the first respondent’s submissions and the limits in relation to the exercise of the statutory power. The question to be addressed was whether it was legally unreasonable for the Authority to make its decision without exercising its power under s 473DC of the Act to get new information from the applicant. Reference was also made to paragraph 39 of the first respondent’s written submissions, which picked up a passage from the decision in ABT17. It identified that the Authority will act unreasonably if it does not invite the applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview, which the delegate accepted in making a referred decision, wholly or substantially on the basis of the Authority’s own assessment of the manner in which that account was given.

  6. The applicant submitted that a number of features of the Authority’s reasoning could lead the Court to characterise it as substantially based on an assessment of the manner in which the applicant’s account was given. Reference was made to the different assessment of inconsistencies rather than the manner in which the evidence was given, as advanced in the first respondent’s submissions. Counsel for the applicant referred to the proposition that it was not just the inconsistencies found in the Authority’s different treatment of the applicant’s evidence. In particular, Counsel for the applicant focused upon paragraphs 18 and 22 of the Authority’s reasons, and the reference by the Authority to the applicant’s evidence being unconvincing.

  7. The transcript records that the applicant adopted the proposition that the language of the Authority’s decision leads to the conclusion that the Authority was concerned with the manner of the applicant’s evidence. Reference was also made by Counsel for the applicant to the passage in paragraph 22 of the Authority’s reasons; that the applicant was not recalling a genuine personal experience. It was submitted that this is the sort of impressionistic, evaluative type credibility assessment going to the manner of someone giving evidence. The applicant also pointed out in oral submissions the overlap of the word “unconvincing” in the decision in ABT17 in the High Court of Australia.

  8. The third matter in Ground 1(c) was identified in the transcript as part of the circumstances to be assessed in respect of legal unreasonableness and considering the totality of the statutory decision in the context of the statutory framework. It was submitted that the circumstances in this case are ones where it was legally unreasonable to take into account the updated DFAT report, and reference was made to paragraph 32 of the applicant’s written submissions. Attention was drawn to the ease with which the applicant could have responded, if invited to do so, to the changed country information.

  9. The oral submissions then turned to Ground 2, which was identified at its crux as being whether or not the Invalid Protection Visa application was new information. It was identified that the first respondent had accepted that, if it was new information, then there is a jurisdictional error.

  10. It was submitted that the critical issue was whether or not this information was before the first respondent when the delegate made the decision. Reference was made to what is meant by “before the Minister when the Minister made the decision” and whether the facts of this case fall within that legal concept. It was accepted by both parties that the words “before the Minister” does not mean in the Minister’s control.

  11. Reference was made to the decision of the learned Besanko J in AWL18v Minister for Home Affairs [2021] FCA 235 (“AWL18”) and in particular at [33] in which it was found that both interviews were physically before the Minister’s delegate and that the delegate did have regard to the documents. Reference was also made to the decision of the Full Court in DTK17v Minister for Immigration and Border Protection [2018] FCAFC 170 and in particular at [38].

  12. The applicant maintained that the delegate did not have regard to the Invalid Protection Visa information and, therefore, it was not before the Minister. Reference was also made to the decision of the learned Lee J in BDR18v Minister for Home Affairs [2020] FCA 212 (“BDR18”) which held that determining whether as a matter of fact the document was before the delegate “when the delegate made the decision” is to be determined as a matter of fact and degree.

  13. Emphasis was placed on paragraph 36 of the written submissions on behalf of the applicant, which specifically referred to the fact that the delegate made no reference to the fact of the Invalid Protection Visa application. The submissions also referred to the fact that the applicant’s migration history omitted any reference to the Invalid Protection Visa application, and made reference only to the Visa application.

  14. Secondly, the applicant pointed out, in the written submissions, that the delegate made no reference to the contents of the Invalid Protection Visa application. The applicant advanced the submission that a failure to refer to a significant piece of evidence will normally support an inference in the absence of explanation, and that there was none here.

  15. Submissions were then advanced in relation to the affidavit evidence of Ms Marino, which makes it clear that the Invalid Protection Visa statement was included in a 78 page electronic document that might be called a bundle of documents, or a single file, and that the Invalid Protection Visa statement appeared at pages 48 to 50 of that electronic document. It was identified that this distinguished the case of AWL18, where there were individual Total Records Integrated Management (“TRIM”) numbers attributed to particular documents and circumstances where those individual TRIM numbers have been viewed. Counsel for the applicant accepted that the onus lay upon the applicant and made reference to the particular Invalid Protection Visa statement being buried in a much larger collection of documents on an electronic file.

  16. Secondly, the applicant sought to rely upon the notice of dispute in the context of page 227 of the court book, where the delegate recorded their understanding of the material that was before the case officer. The first entry under the heading “Material Before the Case Officer” at “A” is “department file CLF2015/42173 relating to the applicant”. It was identified that CLF2015/42173 is a different document to the 78 page departmental file CLD2013/10550215. It was submitted that this description supported the proposition that the document was not part of the designated file. It was pointed out that the first respondent has not put on evidence that this document CLD2013/10550215 was in the departmental file CLF2015/42173 as at 2 September of the relevant year. The notice of dispute records the first respondent disputing that, as at 2 September 2016, the departmental file CLF2015/42173 did not contain the applicant’s statutory declaration, dated 24 July 2013.

  17. Reference was made to the proposition that evidence is to be treated and weighed in accordance with the ability of the various parties to put forward evidence, and reference was made to the principles in Blatch v Archer (1774) 98 ER 969. Reference was made to the evidence that it appeared the delegate had viewed the 78 page document on five occasions and had extracted the document on one occasion. Reference was made in the submissions to the first of the views being seven months before the date of the delegate’s decision, and the following view occurring six and five months before the date of the delegate’s decision. It was submitted that they were not within the temporal concept required in respect of the concept of being before the Minister at the date of the decision.

  18. Reference was made to accepting that it needs to be dealt with on a case-by-case basis, and that Lee J in BDR18 said that three months was within that temporal concept. The applicant identified that the extraction of the document on the date that the decision was made and the subsequent viewing of the decision weighed against the complete absence of any reference to it, and it does not detract from the inference that the particular Invalid Protection Visa statement contained within that much larger document was not regarded by the delegate.

  19. Reference was then made to paragraph 20 of the delegate’s decision, where the delegate identified using the systems to verify the information before the delegate in regard to the applicant’s identity, being the Integrated Client Service Environment (“ICSC”) and TRIM. The applicant submitted that that provides an inference as to what was done on 2 September 2016 as a logging in exercise in respect of the department’s database concerning the applicant’s identity. The applicant submitted that it was likely that the delegate did not have regard to the material in respect of the viewing that occurred on 2 September 2016.

  20. Reference was also made orally on behalf of the applicant as to the account of the applicant in the statutory declaration sworn and affirmed being a significant matter that one would think, if regard was had to it, would be referred to in the reasons. It was orally submitted that the extraction and viewing on 2 September 2016 was a mere identity verification.

  21. The applicant also relied upon something else that occurred on 2 September 2016. That was the referring of the matter to the Authority, which could only be done after the delegate had made the decision. It was identified that the delegate’s decision was recorded as being made at 10:49 am on 2 September 2016, and that the two interactions which occurred at 11:00 am and 11:34 am were accepted by the first respondent as having occurred after the delegate’s decision.

  22. The applicant then turned to Ground 3 and whether the Authority had failed to conduct a review within the meaning of pt 7AA of the Act, because it did not consider the applicant’s substantial and clearly articulated claim to fear harm on a cumulation of his previous mistreatment by the authorities and associated groups in Sri Lanka, imputed political opinion and his return from abroad as a failed asylum seeker. Reference was made to the first respondent’s written submissions that the Ground should be rejected because the Authority dealt with the claim by rejecting the factual premise on which it depended.

  23. The applicant submitted that the premise was not, in fact, rejected. Secondly, it was submitted by the applicant that the claim was left undealt with. It was identified that the only premise of the applicant’s claim that had been rejected was that he had been previously detained by the Criminal Investigation Department (“CID”) authorities. The premise of his claim that he had been of sufficient interest to be detained for a considerable period of time was submitted not to have been rejected and this needed to be considered as a cumulative claim in the context of the applicant being a returnee. It was submitted that the applicant, as a returnee or failed asylum seeker, could be exposed to a reassessment of the Sri Lankan authorities’ interest in him. The applicant advanced an analogy of circumstances in which suspicions could be revived.

  24. The second submission advanced orally in relation to Ground 3 was that one would have expected some consideration of whether the fact of returning to Sri Lanka elevated the risk, and how this would have played out in the particular case. Reference was made to the applicant’s own evidence about the Sri Lankan authorities’ increased concern about people who come back and the matters he put in writing at pages 95 to 100, 27 and 84 of the court book. The applicant adopted the proposition orally that one would have expected that, had there been consideration, it would be reflected in the Authority’s reasons.

  25. The applicant then turned to Ground 4 as to alleged unreasonable findings on the applicant’s credit. The applicant accepted that the relevant principles were appropriately summarised in paragraph 62 of the respondent’s written submissions. Reference was made in the context of those principles to the applicant’s submissions in paragraphs 51 and 55. The proposition advanced was the caution in the context of written statements, which were expressly referenced as being non-exhaustive, and the caution to be exercised in drawing adverse credibility findings from omissions from entry interviews. It was submitted that the reasoning flowing from the entry interview proceeded on an irrational assumption that expected completeness or comprehensiveness of the entry interviews.

  26. Mr Hosking, of Counsel on behalf of the first respondent, identified orally his response to Ground 1, contending that the applicant had not discharged the burden of proof. He contended that the Authority, in fact, failed to consider exercising the power under s 473DC of the Act to get new information. Secondly, he submitted that, even if there was a failure to consider exercising the same, it has not been shown to be unreasonable for the Authority not to consider to do so.

  27. The first respondent took the Court to the authorities identified in the written submissions, emphasising the fact that the applicant bears the onus of establishing jurisdictional error and that, according to the applicant, it is the applicant who bears the onus of establishing the facts necessary to show alleged jurisdictional error. Mr Hosking submitted that this included the fact that the Authority did not consider exercising the power. Mr Hosking relied on the proposition that there was no obligation to provide reasons in relation to procedural discretions and powers along the way to the making of the decision.

  28. Counsel for the first respondent drew attention to the authorities, and noted that a failure or omission should not be lightly drawn in respect of the Authority. It was submitted that the express reference to the DFAT report in the context of ss 473DC and 473DD of the Act did not support an inference that the Authority did not consider getting other information. The  first respondent submitted that there was an evident and intelligible justification for not exercising the power because it was submitted that there was no good reason to get new information and no good reason for the Authority to say anything on the record in that regard. In substance, it was adopted by Counsel for the first respondent that, if the matters were not important, there is no unreasonableness.

  29. As to whether there was an evident and intelligible justification for the Authority not exercising the powers, it was submitted that it was necessary to have regard not only to the factual circumstances of the case as they appeared before the Authority, but also the statutory scheme.

  30. The first respondent’s Counsel then took the Court to the provisions of pt 7AA in their bundle of authorities, including ss 473DA and 473DB of the Act, making it clear that it is subject to pt 7AA, as well as the provisions of ss 473DC(2) and 473DE of the Act, concerning the obligation to put new information to the referred applicant. Reference was also made to s 473DA of the Act.

  31. The Court was then orally taken to the authorities as to the words “information not encompassing subjective appraisals, thought processes, determinations” and “does not extend to gaps, defects, lack of detail or specificity in evidence”. Attention was also drawn to the passage that the word “information” is related to the existence of evidentiary material and documentation, not the existence of doubts, inconsistencies or the absence of evidence. The oral submissions identified no obligation to put inconsistencies to the applicant for comment.

  32. Attention was drawn to other authorities in relation to the scheme under pt 7AA of the Act. It was accepted that the exercise of the power could give rise to new information in the context of this case. Attention was drawn to the absence of an obligation to put country information to the applicant for comment under s 473DE(3)(a) of the Act.

  33. The first respondent submitted orally that it was not unreasonable for the Authority not to get the new information. The first respondent drew attention to the fact that the delegate expressed significant concerns about credibility, in respect of the claims accepted about the Karuna Group, and had rejected parts of the applicant’s claim, which was submitted to be in answer to the applicant not being on notice of the intention to rely on the Invalid Protection Visa application. It was submitted that the failure to put on submissions was a relevant matter to take into account in determining whether it was legally unreasonable for the Authority not to seek information.

  34. It was submitted that the Authority, taking a different view in relation to credit to that of the delegate and rejecting claims and identifying inconsistencies, does not necessarily require the Authority to get new information. It was submitted that the reference to “unconvincing” in the Authority’s reasons was not relying upon manner or demeanour. It was submitted that neither the reference to “implausibility” nor the reference to “unconvincing” are based on manner or demeanour.

  35. Reference was made to the decision of the learned Besanko J in AWL18 and, in particular, starting at [35] through to [38]: that there is no requirement that the delegate have regard to the documents. Reference was also made to the decision of the learned Mortimer J in CVV16 v Minister for Home Affairs [2019] FCA 1890 (“CVV16”), and the decision of the learned Mortimer J, with which Besanko J agreed in AWL18 at [39], where the reference was made to the decision of Besanko J from [40] through to [48]. The first respondent put that there was no requirement that the delegate have regard to the documents before they can be said to have been before the delegate or the Minister.

  1. The first respondent also submitted that this Court should not follow the decision of the learned Katzmann J in EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 506 (“EAI16”), but rather should follow the decision in AWL18 by the learned Besanko J, where it was said that the point was fully argued. It was also suggested that the observation by the learned Katzmann J in EAI16 was overturned. The reason Her Honour found that there was, in fact, no jurisdictional error was for different reasons. The first respondent orally identified accepting that the relevant question is one of fact and degree, and whether, in point of time, it was too remote in respect to s 473DC(1)(a) of the Act. 

  2. The first respondent identified that the material had been accessed on four occasions prior to the making of the delegate’s decision, being 9 February 2016, 1 March 2016 and again on 1 March 2016, and on 4 April 2016. It was submitted that this was sufficient to show the document was before the delegate, and that the delegate specifically accessed the document on multiple occasions. It was submitted that the document was physically before the delegate. The first respondent adopted the proposition that the nexus between how often and when is sufficient, informed by authority, to constitute the document having been before the Minister for the statutory purpose.

  3. The first respondent contended that the affidavit shows that the document was before the delegate. The first respondent put that there is no difference between printing out a document and viewing the document. The first respondent orally submitted that the document was on the file, with the relevant number. It was explained, in relation to the notice of dispute, that the fact had been proved in a different way. The first respondent confirmed that the Court should find from the affidavit filed that, as a matter of fact, the document was accessed on the relevant dates. It was submitted that the interactions with the document cannot be said to be so remote from the decision, so that the document was not before the delegate when the decision was made.

  4. Reference was then made to ss 54, 55, 56 and 57 of the Act, and the different ways in which information can come before a delegate. The first respondent submitted that it was not necessary to consider the claim cumulatively in relation to Ground 3. The first respondent submitted that the Court should conclude that the Authority considered the applicant’s claims cumulatively.

  5. Attention was drawn to the Authority having rejected the claim that the applicant would have been of interest upon return to Sri Lanka to the Sri Lankan authorities, the CID, the Karuna Group, or the Sri Lankan Army. It was submitted that this was the reason why there was no separate reference to a claim that would effectively depend on the Authority rejecting its own findings.

  6. Reference was also made to the findings of the Authority in paragraphs 41 and 50 of its reasons, and in particular, paragraph 39. The first respondent made reference to the applicant not being anything other than the ordinary illegal departee from Sri Lanka. It was advanced that this meant that the premise of the need for a cumulative assessment was undermined. However, it was submitted that there was a cumulative assessment at paragraph 41 of the Authority’s reasons.

  7. The first respondent then made submissions referrable to AVQ15v Minister for Immigration and Border Protection [2018] FCAFC 133, and in MZZJOv Minister for Immigration and Border Protection [2014] FCAFC 80. It was submitted that this was a not case where there was reliance solely on the fact that something had not been mentioned. It was submitted that the findings in respect of credit were not irrational, illogical or unreasonable.

  8. The applicant maintained the submission in relation to the need to have regard to the material, but accepted this involved rejecting the decision of the learned Besanko J in AWL18. The applicant also sought to distinguish ss 54 and 56 of the Act in the context of this application. 

  9. Reference was made to Ground 4, and the word “cumulative” having been used twice, but without any exposed path of reasoning, in paragraphs 41 and 50 of the Authority’s decision.  In relation to Ground 4, the applicant also referred to the country evidence that returnees and failed asylum seekers raised a concern, and that it was at that point that the cumulative claim becomes an issue.

    NEW INFORMATION AND FINDINGS ON GROUND 2

  10. The affidavit of Josephine Marino, dated 7 September 2021, identified a role as Acting Director of Protection Assessments Victoria, and having been employed in the Department of Home Affairs since November 2007. The affidavit identified routinely relying on electronic files held by the Department in relation to visa applications, and also searching those files. The affidavit referred to the departmental system, TRIM database, and that being the primary document management system. It is used to store documents the department creates and receives.

  11. Reference was made to each document being allocated a unique number when it is stored on the TRIM database. On 6 September 2021, the deponent identified that they accessed the documents stored in the TRIM database CLD2013/10550215. A copy of that document was annexed and marked JM-1. That document commenced with an IAAAS interview cover sheet, a date of referral, referring to the applicant’s particulars, and a form 956 dated 24 July 2017, followed by an acknowledgement purporting to bear the applicant’s signature, as well as that of the an interpreter and a migration agent. This was followed by a letter, dated 1 August 2013, identifying the applicant’s desire to submit a protection visa application, and referring to the formal documents attached.

  12. Reference was made to the applicant’s identity, and submissions were advanced in relation to the applicant’s claims, specifically referring to the applicant having been arrested by the CID in March 2007, while working in the role of a security guard. Reference was also made to the applicant being accused of having Liberation Tigers of Tamil Eelam (“LTTE”) links, being kept in solitary confinement for 10 days, and being beaten. The letter identified that the applicant was moved to a local police station, where he was detained for a further 19 to 20 days and beaten on a daily basis. The letter provided that the applicant then faced court on charges of providing information to the LTTE, and that the court released the applicant without charge. The letter stated that the applicant was transported to a local hospital, where he remained for five days because of injuries he allegedly sustained at the hands of the CID and the police.

  13. The applicant alleged that, 10 days after returning home, the Karuna Group abducted the applicant and questioned him about the incident with the CID and the police. The applicant alleged that they detained him for three days and tortured him.

  14. The applicant identified a decision to leave Sri Lanka and obtaining a working visa in Qatar, where he remained until late 2010. Upon returning to Sri Lanka, the applicant then encountered the same problems with the authorities. The applicant alleged that the authorities came looking for the applicant at his family home, and so he decided to go into hiding.

  15. The applicant identified three areas that he has spent time, and was said to be constantly moving to avoid detection. The applicant identified leaving Sri Lanka in August 2012 to seek protection in Australia. The applicant identified fearing that, should he be forced to return to Sri Lanka, he would be arrested and interrogated by authorities, and might be tortured and imprisoned. It was identified that the applicant fled Sri Lanka illegally and had applied for asylum in Australia, and it was submitted that these additional circumstances would heighten the risk of the applicant facing serious mistreatment on his return to Sri Lanka.

  16. It was identified that the applicant’s significant reasons for fearing persecution include: his Tamil ethnicity, his actual or imputed political opinion, including of being a perceived sympathiser or supporter of LTTE, or someone seen to hold separatist views or views supporting a renewal of hostilities against the Government of Sri Lanka, and the applicant’s membership of a particular social group, being that of failed asylum seekers.

  17. The letter addressed submissions in relation to persecution and whether the applicant’s fears were well-founded. The letter identified country information and identified submissions under the heading “Tamils from the Eastern Province”, and included a sub-heading of “Seeking Asylum in a Western Country/Returning as a Failed Asylum Seeker”.

  18. Reference was made to certain authorities, as well as the United Nations High Commissioner for Refugees (“UNHCR”) eligibility guidelines for assessing the international protection needs of asylum seekers from Sri Lanka. Submissions were advanced under complimentary protection, which again included country information. A conclusion attached to that letter was an 866B form completed in relation to the applicant. The form identified that the applicant was arrested in Qatar and deported back to Sri Lanka. There was also a 866C form which referred to an attachment and statutory declaration.

  19. The attachment detailed the applicant’s education and employment history, his family relatives, the countries to which the applicant had travelled, and where the applicant had lived. There was also a statutory declaration of 25 paragraphs sworn on 24 July 2013. The statutory declaration identified the applicant as being of Tamil ethnicity and being a Hindu, and having illegally left Sri Lanka by boat. The statutory declaration referred to an alleged arrest by the CID on 22 March 2007, being accused of being involved with the LTTE, being kept in solitary confinement for 10 days and being beaten repeatedly, and an unsuccessful attempt by the applicant to hang himself with his jeans.

  20. The statutory declaration referred to the applicant’s mother complaining to the Human Rights Commission of Sri Lanka. It also referred to the applicant being moved from a local police station and then being taken back to the CID office where he was beaten every day for a further 19 or 20 days. Reference was made to the applicant’s mother paying a bribe. At paragraph 10 of the statutory declaration, the applicant described being presented before the court, and the CID alleging that the applicant had a picture of the Telecom tower where he worked for the purpose of providing this to the LTTE. The applicant referred to having been released without charge, as the court could see that he was an employee from Telecom, which is why he had the photo of the tower on his phone.

  21. The applicant identified being transported to hospital, where he stayed for five days. The applicant identified that, after 10 days on returning home, the Karuna Group took him away in a white van, and that he was questioned about the incident with the CID, and that they tortured him and detained him for three days. The applicant alleged that he escaped from the Karuna Group and fled to Colombo. The applicant described his means of escape from the house that he had been detained in. The applicant stated that his uncle found him a job as a security guard in Colombo, and that the applicant was applying to any country that would give him a visa, and he ended up getting a visa in Qatar, where he worked as a plumber. The applicant stated that he left Sri Lanka in 2007 and did not return until late-2010.

  22. The applicant alleged that, three months after returning, he started having the same problems with the authorities. The applicant alleged that the authorities started looking for him, but luckily he was not home. The applicant alleged that he then decided not to return home and went into hiding, and identified three places where he spent time, and identified moving to avoid detection. The applicant alleged that Sri Lankan authorities took all of his important documents from his house, including his passport, birth certificate and school certificate, and that this inclined the applicant to the belief that they wanted to prevent him from leaving Sri Lanka.

  23. The applicant identified that he feared he would be arrested and interrogated, and that he would be tortured and imprisoned. The applicant alleged that his family had told him the authorities were still looking for him, and that they detained his father for two days to question him about the applicant’s whereabouts. The applicant identified that it was the Sri Lankan Army officials, police and CID that might harm him, and made reference to young Tamil men and locals being abducted and murdered.

  24. The applicant identified himself as a young male Tamil from an area that was largely under LTTE control, and that the government and security forces think that Tamil men from the applicant’s area always support the LTTE. The applicant identified that, if he returned to Sri Lanka, the officials would know that he had sought asylum in Australia, and that they would use that evidence as the applicant being anti-government. The applicant claimed that he would be put in jail, tortured and otherwise mistreated because he is a Tamil.

  25. There was also an interpreter’s certificate attached to the statutory declaration, and a form 80 document completed and signed by the applicant, dated 24 July 2013. There was also provided a consent to release information on the UNHCR form, and an authority to seek personal information in relation to effective prior protection, signed and dated 24 July 2013. A further statutory declaration by the applicant, dated 24 July 2013, was also provided as to the applicant not having been convicted of a crime or offence in any country. Finally, there was a form 815, dated 24 July 2013.

  26. The affidavit by Josephine Marino identified that the audit trails shows the document CLD2013/10550215. The affidavit also annexed a record in relation to the audit trail for this particular TRIM database record, which showed that it had been viewed on 9 February 2016, twice on 1 March 2016, and on 4 April 2016, and that there were two later entries for it being extracted and viewed on 2 September 2016.

  27. The affidavit explained that “view” meant that it was opened in a mode that did not allow the user to edit the document and was described as being previewed. The two occasions on 2 September 2016 are not advanced as a basis upon which it could be said that the particular TRIM database record was before the delegate, and it was conceded by the first respondent that those two entries of 2 September 2016 could not be relied upon to establish that fact.

  28. The affidavit identified a particular unique user ID in respect of the identified audit trail, in each case being the same person, and an extra record which identified that person was the person who made the decision, as the delegate, on 2 September 2016. The affidavit also identified that person was no longer employed by the department.

  29. It is in the context of the affidavit evidence that has been put on that the applicant placed weight on the notice of dispute, which merely purported to dispute that the department file, CLF2015/42173, did not contain the applicant’s statutory declaration, dated 24 July 2013, which was clearly part of the TRIM database record, CLD2013/10550215.

  30. No evidence was adduced by the first respondent, who is in a position to do so, that the departmental file expressly identified as being before the case officer on page 227 of the court book, being “A Department file CLF2015/42173 relating to the applicant”, contained any of the documents from CLD2013/10550215. More importantly, no evidence was adduced that it contained the Invalid Protection Visa application, which the Court takes to include the statutory declaration, dated 24 July 2013, comprising 25 paragraphs.

  31. Further, what can be gleaned from the affidavit filed on behalf of the first respondent is that it identifies no more than that the document was viewed on one occasion, seven months before the decision and on two occasions, six months before the decision, and on one occasion, five months before the decision.  In some circumstances, there may be other facts that can be drawn from the delegate’s decision that supports an inference that the relevant TRIM file was, in fact, before the Minister through the Minister’s delegate.

  32. However, this is a case where the delegate, in their reasons, identified, at the commencement, a particular file number. That file number was CLF2015/42173. That particular file number is not one in respect of which any evidence has been adduced that it includes, relevantly, the Invalid Protection Visa application or, more materially, the statutory declaration dated 24 July 2013 that was provided by the applicant in support of the same that has been used by the Authority.

  33. In that regard, the obvious inference to be drawn is that the only occasion when there was any extraction of CLD2013/10550215 was after the delegate’s decision on 2 September 2016, as identified as occurring at 11:00 am in the affidavit by Ms Marino. The Court finds that this extraction was for provision of the same to the Authority. That fact strongly supports the inference that there was no extraction of the TRIM database record CLD2013/10550215 that was included into the file number CLF2015/42173. The Court finds that TRIM database record CLD2013/10550215 was not included in file CLF2015/42173.

  34. There is nothing in the delegate’s reasons that identifies any fact that could be said to have been taken from the TRIM database record CLD2013/10550215. There is, however, a reference to having used two systems to verify the applicant’s claimed identity referred to in paragraph 20: ICSE and TRIM. The delegate accepted the applicant’s identity, identified his date of birth and found him to be a national of Sri Lanka.

  35. The reference to the protection visa interview by the delegate referred to in paragraph 8 is clearly the Visa interview that occurred on 12 February 2016. On the face of the delegate’s decision, there is no basis to find that the delegate had before him the Invalid Protection Visa application and statutory declaration of 24 July 2013, being part of the TRIM database record CLD2013/10550215.

  36. In these circumstances, where the delegate has specifically identified the information before them and identified a file that is different to CLD2013/10550215, the Court is satisfied that the Invalid Protection Visa application was not before the Minister at the time the decision was made. As a matter of fact and degree, the limited viewing without extract is consistent with nothing more than a possible access in relation to identity and is not a proper basis to find that the file not identified by the delegate was, in fact, before the delegate.

  37. In these circumstances, the applicant, accordingly, must succeed on Ground 2 because the Authority made a decision failing to comply with s 473DD(a) of the Act without being satisfied that there were exceptional circumstances to justify considering the new information, being the Invalid Protection Visa application, which includes the statutory declaration dated 24 July 2013. As alleged in Ground 2, there has also been a failure to comply with s 473DE of the Act, in that the applicant was not given an opportunity to comment on the new information.

  38. The first respondent has conceded that the new information was material. That concession was properly made. The only new information identified in paragraph 3 of the Authority’s decision concerned updated country information in respect of which the Authority was satisfied of the relevant criteria as to there being exceptional circumstances to justify considering this new information.

  39. No such consideration was given to the new information that comprised the TRIM database record number CLD2013/10550215, specifically, in respect of the Invalid Protection Visa application and the statutory declaration supporting the same. The reference in the Authority’s reasons at paragraph 13 to:

    In his earlier PV statement, the applicant provided a different account to that in his SHEV statement and SHEV interview.

    is clearly a reference to the earlier Invalid Protection Visa statutory declaration.

  1. The new information in relation to the Invalid Protection Visa application was again taken into account at paragraph 18 of the Authority’s reasons, where the Authority referred to the differing versions in the applicant’s Visa and Invalid Protection Visa statements. Paragraph 20 of the Authority’s reasons also identifies the Authority taking into account the new information, being the Invalid Protection Visa application and the reference to:

    I consider this to be inconsistent with his SHEV statement, PV statement and other oral evidence.

  2. It is clear that the document was taken into account in the context of the alleged unconvincing and inconsistent information. The Authority referred to the applicant’s evidence in paragraph 22 of its reasons, making adverse credit findings that the applicant was not recalling a genuine personal experience and that he came to the adverse attention of the Karuna Group or any other associated unidentified group, as claimed, and in rejecting the applicant’s associated claims that his family have since come to the adverse attention of the Karuna Group or any other group while he was still living in Sri Lanka or since his departure from Sri Lanka.

  3. Further reference to the Invalid Protection Visa application was made in paragraph 26 of the Authority’s reasons, in relation to the applicant providing a different account. In relation to this, the Authority referred to the applicant’s inconsistent evidence and did not accept that he was living in particular locations or other areas between 2010 and 2011, as claimed, and did not accept that, following the applicant’s return from Qatar, armed persons of a group went to the applicant’s family home in Batticaloa looking for him. These findings were obviously material to the Authority’s ultimate findings that the applicant did not have a well-founded fear of persecution and did not meet the requirements of s 5H(1) of the Act, and did not meet the criteria in s 36(2)(a), and did not meet the criteria in s 36(2)(aa) of the Act. As identified in the conclusion below, the applicant has succeed in establishing that the Invalid Protection Visa and, in particular, the supporting statutory declaration were new information, and that the jurisdictional error alleged in Ground 2 is made out.

    GROUNDS 1, 3 AND 4

  4. As to Ground 1, technically the applicant is entitled to succeed on this Ground because the Invalid Protection Visa application and the supporting statutory declaration were new information that required consideration under s 473DC and application of ss 473DD and 473DE of the Act, whereby it was legally unreasonable to fail to exercise the powers under s 473DC. Although the Court does not accept that that Invalid Protection Visa application including the supporting statutory declaration, were before the Minister at the time of the delegate’s decision, if that finding were to be rejected, this Court would have found that there was not any legally unreasonable exercise of statutory power as raised in Ground 1.

  5. The Court would, but for its finding on Ground 2, have found that the applicant had failed to discharge the onus of proving that the Authority failed to consider exercising its power to get new information. The Court would not have accepted that the consideration identified in respect of the new country information was exhaustive of the consideration given by the Authority. The Court would have found that the Authority is not required to give reasons for not getting new information, although it is apparent the Authority clearly considered the same in respect of the new country information. The Court would have found that this is not a case where, on a fair reading, the Authority made a decision on the basis of demeanour or manner of giving evidence. Rather the Authority identified inconsistencies and implausibility. The Court would have found, having regard to the most recent country information, the Authority did not require in this case any express consideration of the powers under s 473DC given the exclusion under s 473DE(3)(a) of the Act. The Court would have found that the Authority was not bound by the credit findings of the delegate and departing from those findings does not ordinarily require an express consideration of the exercise of the powers under s 473DC of the Act.

  6. The Court would have found, in light of the statutory regime in pt 7AA of the Act and in particular ss 473DB, 473DC (1) and 473FA(1), the invitation to the applicant to provide new information and submissions the absence of express reference to consideration of the exercise of the powers, cannot be said to lack and evident and intelligible justification. The Court would have found that reasoning of perceived inconsistencies in respect of information and the absence of reference to the same by the delegate, if in fact before the Minister, does not support any legal unreasonableness in respect of the absence of exercise of the powers under s 473DC(3) of the Act. The Court would have found that Authority did not receive submissions or new information from the applicant in circumstances where the delegate did express concerns about the credibility of the applicant’s kidnapping claim, and found that the applicant was not of adverse interest to the Sri Lankan authorities at the time of the delegate’s decision, and found that the applicant was not of adverse interest to the Karuna Group or other paramilitary groups. The Court would have found that, if the Invalid Protection Visa application was before the Minister, it was open to the Authority to rely upon inconsistencies between the Invalid Protection Visa statutory declaration and other evidence. The Court would have found that more recent country information falls within s 473DE(3)(a) of the Act and was the subject of a finding that there were exceptional circumstances to justify considering the same and it was appropriate for the Authority to have the most up-to-date country information. But for the finding made in Ground 2, the Court would have found that no jurisdictional error is made out by Ground 1.

  7. Ground 3 is contrary to the express terms of the Authority’s reasons. Both paragraphs 41 and 50 of the Authority’s reasons identify the Authority as having regard to the applicant’s circumstances individually and cumulatively. Further, contrary to the applicant’s submissions, the Authority rejected the factual premise upon which the applicant relies. The rejection subsumes the applicant’s claims as to the period of his detention and the reference to the CID. The Authority accepted that the applicant was detained and mistreated by the CID in 2007 on suspicion of LTTE involvement and was related in April 2007, and found that the applicant has not since come to the adverse attention of the Sri Lankan authorities. The Authority found that there was no evidence to indicate that the applicant is of interest to the CID, police, the STF, being a paramilitary wing of the police in connection with his 2007 arrest, or for any other reason. The Authority concluded that the applicant was not of ongoing interest to the Sri Lankan authorities due to actual or imputed links to the LTTE and that the applicant was not of interest to the SLA, STF Karuna Group or any paramilitary group.  The Authority did take into account that the applicant was returning as a failed asylum seeker who had departed illegally without a passport, given the reference to the same in the first sentence of paragraph 38, the reference to the applicant being an ordinary illegal departee in paragraph 39, and the reference to the profile of the applicant in paragraph 39 of the Authority’s reasons, as well as the reference to the applicant being a returning asylum seeker in paragraph 35.

  8. The Authority’s decision must not be read with a keen eye for error and, on a fair reading, the Authority considered the applicant’s claims as articulated both individually and cumulatively under the Refugees Convention and in relation to complementary protection. In these circumstances, it was not necessary for the Authority to make further specific findings about the applicant’s cumulative claims, as the Authority’s reasons read as a whole reveal the pathway to the adverse cumulative claims finding. No jurisdictional error is made out by Ground 3.

  9. Ground 4 seeks to make out unreasonable adverse credit findings. The specific findings challenged were the Authority’s rejection of the applicant’s claim that he and his father had been abducted by the Karuna Group, the Authority’s rejection of the applicant’s claim that he had moved abroad to avoid detention in 2010 and 2011, and the Authority’s rejection of the applicant’s claim that his passport was taken by the Sri Lankan Army in 2011.

  10. The Authority found that the information that the applicant gave about his abduction at the Visa interview was inconsistent with the information in both his Invalid Protection Visa statutory declaration and with the applicant’s Visa statement. The Authority found that aspects of the applicant’s claim, in particular, that members of the Karuna Group would risk their own safety by letting the applicant escape, were inherently implausible. The Authority took into account the absence of reference to the Karuna Group in his entry interview. The Authority found that the applicant gave inconsistent reasons for not mentioning the Karuna Group in his entry interview. The Authority found that aspects of the Karuna Group claim advanced in the Visa statement were inconsistent with evidence that the applicant gave at the entry interview about his movements. The Authority found that aspects of the Karuna Group Claim advanced in the Visa interview were inconsistent with the applicant’s passport and other aspects of his oral evidence about his movements. The Authority found that, although the applicant dealt with the detention of his father by the Karuna Group in the Visa statement, the applicant raised, for the first time in the Visa interview, a significant new claim that his father had been kidnapped by the Karuna Group. On the basis of those reasons, taken as a whole, it was open to the Authority to make the adverse credit findings rejecting the claim as to the abduction of the applicant and his father by the Karuna Group.

  11. In rejecting the applicant’s claim about moving around, the Authority found that the applicant’s claims at the Visa interview were inconsistent with the applicant’s account of his movements in the entry interview. The Authority found that the applicant’s claims in the Invalid Protection Visa statutory declaration differed from his claims at the Visa interview, and his account of his movements in the entry interview. Given the three different accounts, it was open to the Authority not to accept that the applicant had been moving around during 20101 and 2011 because he was in hiding.

  12. As to the rejection of the applicant’s claim that his passport was taken by the Sri Lankan Army, the Authority noted that the applicant had previously told the Department that his passport was at home. The Authority noted that the applicant was specifically questioned about the whereabouts of his passport at the entry interview and did not claim it was missing or had been taken by the Sri Lankan Army. The Authority noted that, in the Visa statement, the applicant claimed the passport was taken in 2010, whereas in the Visa interview, the applicant claimed that it happened in 2011.

  13. The adverse credit findings by the Authority were not based on omissions and the inconsistencies were identified by the Authority and cannot be said to be illogical, irrational or unreasonable. Nor were the adverse credit findings based on trivial or insignificant matters. The use of the entry interview does not render the identified inconsistencies as being of no weight and it was not only the entry interview upon which the Authority relied in its adverse credibility findings. Nor does the explanation of giving short or simple answers render use of the entry interview in the context of the whole of the Authority’s adverse credit findings legally unreasonable. The adverse credit findings were open to the Authority and were not findings to which no reasonable decision maker could so find. No jurisdictional error is made out by Ground 4.

    CONCLUSION

  14. In summary, the Court has rejected the first respondent’s submission that the Invalid Protection Visa application was not new information. The applicant has successfully proved that the Invalid Protection Visa application, including the statutory declaration dated 24 July 2013, was new information because it was not information “before the Minister” within s 473DC(1) of the Act when the Minister made the decision under s 65 of the Act. There was no issue but that the words “before the Minister” required the relevant information to be physically before the Minister and not the broader concept of being in the Minister’s control. The Invalid Protection Visa application and the supporting statutory declaration were new information that were not before the Minister at the delegate made the decision. It follows that this new information and specifically the statutory declaration was not considered by the delegate. 

  15. The first respondent did identify that whether the information was before the delegate is to be determined as a matter of fact and degree. The Court has made a finding of fact that the relevant TRIM file was not before the delegate, and that that particular TRIM file containing the Invalid Protection Visa application was not part of the departmental file referred to by the delegate. That fact alone is sufficient for the applicant to succeed, but the Court does make the further finding in relation to the limited views that were undertaken of the particular TRIM file, the high level reference by the delegate to the TRIM system referable only, on the face of the delegate’s decision, to identity, that as a matter of fact and degree, the Invalid Protection Visa application was not before the Minister at the time the delegate made the decision, within the meaning of s 65 of the Act. 

  16. The first respondent accepted that, if the Invalid Protection Visa application was found to be new information within the meaning of s 473DC of the Act, the Authority did not comply with s 473DD of the Act. The first respondent conceded that, on that ground, the failure was material.

  17. For the reasons that the Court has given, the Court finds that the Authority failed to comply with ss 473DD or 473DE of the Act in relation to the new information, being the Invalid Protection Visa application, including the statutory declaration.

  18. The Court finds that the failure to comply with the requirements of ss 473DD and 473DE of the Act in this case was clearly material. Accordingly, the applicant has established the jurisdictional error advanced in Ground 2. It follows also that, as a result of the finding made in respect of Ground 2, the applicant has also made out jurisdictional error in Ground 1 because it was legally unreasonable given the statutory scheme to take into account new information without both consideration and exercise of the powers under s 473DC of the Act.

  19. Accordingly, the Court orders that a writ in the nature of certiorari be issued, calling up the record of the Immigration Assessment Authority and quashing the decision made on 2 February 2017. The Court also orders that a writ in the nature of mandamus be issued, requiring the second respondent to determine the application for a Safe Haven Enterprise (Subclass 790) Visa under pt 7AA of the Migration Act 1958 (Cth) according to law.

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Street.

Associate:

Dated:       21 June 2022

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DFW16 v Minister for Immigration and Border Protection [2018] FCA 746
Awl18 v Minister for Home Affairs [2021] FCA 235
DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170