Auo17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FedCFamC2G 31

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

AUO17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 31

File number(s):	MLG 368 of 2017
Judgment of:	JUDGE EGAN
Date of judgment:	10 September 2021
Catchwords:	MIGRATION – Application for Safe Haven Enterprise Visa – whether Authority had failed to first consider each limb of s. 473DD(b) before considering whether exceptional circumstances existed for its consideration of new information – failure by Authority to perform a mandatory statutory obligation which led to error – error was material – jurisdictional error established – application granted.
Legislation:	Migration Act 1958 (Cth) ss 5H(1), 5J, 473CB, 473DD(a), 473DD(b)(i)(ii),
Cases cited:	AUS17 v Minister for Immigration (2020) 94 ALJR 1007. CSR16 v Minister for Immigration and Border Protection [2018] FCA 474. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159. Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.
Division:	Division 2 General Federal Law
Number of paragraphs:	31
Date of last submission/s:	26 August 2021
Date of hearing:	26 August 2021
Place:	Brisbane
Counsel for the Applicant:	Mr A. McBeth
Solicitor for the Applicant:	Wimal & Associates
Counsel for the First Respondent:	Mr J. Barrington
Solicitor for the First Respondent:	Mills Oakley Lawyers
Second Applicant:	Submitting appearance save as to costs

ORDERS

MLG 368 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

AUO17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	10 SEPTEMBER 2021

IT IS ORDERED THAT:

1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.The Amended Application for Review filed on 29 July 2021 be granted.

3.The decision of the Immigration Assessment Authority made on 30 January 2017 be quashed.

4.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicant’s application for review of the First Respondent’s decision, and that the matter be remitted to the Immigration Assessment for rehearing.

5.For the purpose of the Immigration Assessment Authority again determining the Applicant’s application, that it be constituted by a different member than the member who handed down the decision on 30 January 2017.

6.The First Respondent pay the Applicant’s costs of and incidental to the application for review fixed in the amount of $7, 853.00

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review 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 EGAN:

Introduction

1. The applicant is a male Tamil citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival on 14 October 2012.

2. On 10 December 2015, the applicant was invited to apply for a Temporary Protection (Subclass 785) Visa or a Safe Haven Enterprise (Subclass 790) Visa (SHEV).

3. On 4 February 2016, the applicant lodged an application for a SHEV.

4. On 22 September 2016, a delegate of the Minister refused to grant the visa. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review of the decision of the delegate. On 10 October 2016, the applicant’s representative provided submissions to the Authority in response to the decision of the delegate. On 30 January 2017, the Authority affirmed the decision of the delegate.

5. On 23 February 2017, the applicant’s lawyers filed an Originating Application for Review of the decision of the Authority.

6. At [2] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

7. At [21] of its reasons, the Authority recorded the applicant’s claims as follows:

   ·     “He was born on 10 January 1989 in [name of place omitted], Northern Province and is a Tamil Hindu and a citizen of Sri Lanka.

   ·     Between 1987 and 1990, the Indian Peace Keeping Force (IPKF) were resident in the north of Sri Lanka and during this period his family were in constant fear of being branded as a supporter of a particular rebel group as the LTTE was being pursued by the IPKF and the Eelam People's Revolutionary Liberation Front (EPRLF). During this time the IPKF forced them and others to support the EPRLF and as a result the LTTE threatened to kill his family if they did.

   ·     Between 2007 and 2009 he was forced to work for the LTTE digging bunkers and fixing their cars.

   ·     His cousin was a LTTE member and died in 2007.

   ·     At the end of the civil war he was placed in a camp from 20 May 2009 until release on 10 May 2010. At the camp he was interrogated and asked questions about his family and if they, and him, were involved with the LTTE.

   ·     In March 2012 he was detained by the Sri Lankan army and taken to their camp. He was beaten and badly treated and accused of telling lies and was forced to admit that he was with the LTTE which he denied and was accused of lying and told he was a “tiger”. He gave information about his siblings. He was detained for two days and then released with a warning not to tell anyone what happened and, if he did, he would be taken in again and not released. His parents were concerned as he was young and very vulnerable.

   ·     One week later, he was going to his farm when the army came in a vehicle and stopped him and asked him where he was going. He told them he was going to work and they demanded that he get in their truck. Once inside the truck, he was set upon by the officers inside and beaten for 60km. After they finished beating him, they pushed him out of the vehicle and he was forced to walk about 6km to the farm.

   ·     He feared being arrested and killed. As a Tamil living in a former LTTE - controlled area he decided to leave the country.

   ·     Since his departure the Sri Lankan authorities have approached his mother at his home in January 2016 and again on 10 June 2016 seeking his whereabouts.

   ·     He fears persecution on return to Sri Lanka because is he a male Tamil and because of his brother’s membership and links to the LTTE and will be imputed to be a LTTE supporter by the government forces and Tamil militant groups who are very active in his area.

   (name of place omitted)

8. At [22] and [23] of its reasons, the Authority respectively duly recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.

   Grounds of Review

9. At the hearing before the Court, the applicant relied upon three grounds of review as set out in an Amended Application for Review filed on 29 July 2021. Such grounds were as follows:

   “1. The IAA failed to consider an integer of the applicant’s claim, namely his claim to have an imputed political opinion in part because of his cousin’s known membership of the LTTE, or alternatively, his claim to have been involved with the LTTE as a welder and having repaired their vehicles.

   …

   3. The exercise of discretion by the IAA in determining whether to consider new information submitted by the applicant pursuant to s473DD of the Migration Act was based on an incorrect understanding of s 473DD, or alternatively, was unreasonable.

   Particulars

   (a) At [7] and/or [11] and/or [19] of its decision record, the IAA erred in failing to consider first whether the criteria in s 473DD(b) were met and taking that assessment into account before considering whether there were exceptional circumstances under s 473DD(a).

   (b) Further and alternatively, the IAA's assertion that the applicant had not raised any objection to the quality of interpreters during his protection visa interview relied on an unduly narrow interpretation of 'exceptional circumstances' under s 473DD(a), or alternatively, was an unreasonable basis for rejecting his new information regarding concerns about the quality of the interpretation impeding his capacity to be heard.

   (c) Further and alternatively, the IAA's assertion at [19] that there was already recent information on a given topic before it relied on an unduly narrow interpretation of 'exceptional circumstances' under s 473DD(a), or alternatively, was an unreasonable basis for refusing to consider the United Kingdom Home Office Country Information and Guidance on Tamil Separatism dated August 2016 that had been provided by the applicant.

   4. The IAA unreasonably failed to exercise, or consider exercising, its discretion under s 473DC of the Migration Act to obtain the most recent available country information report from the Department of Foreign Affairs and Trade (‘DFAT’), and furthermore, constructively failed to exercise its jurisdiction by relying on country information that had been superseded.

   (a) The IAA relied extensively on the December 2015 DFAT country information report on Sri Lanka.

   (b) By the time of the IAA' s decision, a newer DFAT country information report on Sri Lanka, dated 24 January 2017, had been published and was available to the IAA.

   (c) The 2017 DFAT report expressly replaced the December 2015 DFAT report.

   (d) The failure of the IAA to obtain, or consider obtaining, the most recent DFAT report was unreasonable.”

10. Turning first to Ground 3 of the Amended Application, it was claimed that the Authority proceeded on an incorrect understanding of what was required for the purpose of an assessment by the Authority of new information under s. 473DD of the Act, or alternatively, that the way in which the Authority had considered s. 473DD in that respect was legally unreasonable.

11. Section 473DD of the Act relevantly provided as follows:

    “473DD Considering new information in exceptional circumstances

    For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

    (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

    (b)  the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

    (i)  was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

    (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”

12. Reliance was placed by the applicant upon AUS17 v Minister for Immigration (2020) 94 ALJR 1007, where at [9] – [12] it was said by Kiefel CJ, Gageler, Keane and Gordon JJ as follows:

    “[9] Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i)15. Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.

    [10] Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

    [11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

    [12] The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).”

    (footnotes omitted)

13. It was submitted on behalf of the applicant that in respect of three (3) items of new information identified by the Authority in the material provided to it by the applicant, the Authority erred in that it only made findings under s. 473DD(a) of the Act, rather than first considering whether both limbs of s. 473DD(b) had been met.

14. The paragraphs of the reasons identified by the applicant as being those in respect of which the Authority erred were respectively numbered [7], [11] and [19]. Paragraph [7] of the reasons of the Authority relevantly provided as follows:

    “[7] The applicant claims that the interpreters “used” did not interpret properly and tended to be Tamil Malays or Tamils who had been born in Australia and therefore did not have a proper understanding of his Tamil due to varying Tamil dialects and at times he could not understand what they were saying. I consider this to be new information. Once again, it is unclear whether the applicant is referring to the interpreter used during his arrival interview and/or his protection visa interview. Nonetheless, on both occasions he was asked whether he understood the interpreter and he replied that he did. During the protection visa interview he was advised at the beginning of the interview by the delegate that if he did not understand the interpreter, or thinks that they do not understand him, he should let her know. He also confirmed that he had no objection to using that interpreter. Given he was given sufficient opportunity to raise any concerns about the interpreters used during his protection visa interview and he did not do so and confirmed that he understood the interpreters during both interviews, I am not satisfied there are exceptional circumstances for considering this information.”

15. In paragraph [7] of its reasons, the Authority recorded that the applicant had asserted that there had been misinterpretation at the time of the protection visa interview, and that such misinterpretation was only able to be discovered at a time after the handing down of the delegate’s decision. The Authority accepted the claim as being new information. The applicant’s submissions on that point were as follows: [1]

    “[25] In relation to the finding at [7], both limbs of s 473DD(b) would have been satisfied if the IAA had turned its mind to the test (recalling that only one of the two alternative criteria in s 473DD(b) need be satisfied).

    [26] As to s 473DD(b)(i), the applicant could not possibly have known that there had been a misunderstanding with the interpreter until after the delegate’s decision, because he did not understand English and could not possibly know whether the delegate’s questions or statements had been correctly translated into Tamil or whether his answers or evidence in Tamil had been accurately translated into English for the delegate. Only after the delegate’s decision record had been published would it have been apparent that what the applicant thought was being said and what the delegate thought was being said were incongruent.

    [27] As to s 473DD(b)(ii), the information about the misunderstanding of the interpreter was not known to the delegate at the time of the decision, and had it been known, it could plainly have affected the delegate’s assessment of the applicant’s evidence. The information is further clearly credible personal information, being information that was about the applicant personally and that was capable of being believed.

    [28] Following the High Court authority in AUS17, the IAA was obliged to consider those matters first, then take them into account in assessing whether there were exceptional circumstances under s 473DD(a) of the Act to consider the new information. It failed to do so.”

    (footnotes omitted)

    [1]           Paragraphs 25 – 28 of Applicant’s submissions filed on 29 July 2021.

16. The Authority did address the question as to whether the applicant had understood that he had the right to advise the delegate during the protection interview that he did not understand the interpreter, or thought that the interpreter did not understand him, at any time during the course of the interview. Be that as it may, that was a different consideration to the considerations as set out in s. 473DD(b)(i) and (ii) of the Act which were required to be first considered. Nowhere in [7] of the reasons of the Authority was it apparent that the Authority considered other than s. 473DD(a) of the Act. It could not reasonably be inferred that any of the language used in [7] of the reasons of the Authority, or otherwise in its reasons, indicated any such consideration of the (b)(i) or (b)(ii) criterion.

17. Paragraph [11] of the reasons of the Authority relevantly provided as follows:

    “[11] The applicant claims that he did not understand the delegate’s question about the information he gave to the Sri Lankan authorities about his brother and sister and that the interpreter did not help with his understanding of this question. I consider this to be new information. In her decision the delegate noted that she questioned the applicant about the information he provided to the army about his brother and sister but he did not provide a response. I have listened to the recording of the protection visa interview and I note that the delegate asked the applicant twice about information he gave to the army officers about his brother and sister. His first response indicates he may not have understood the question. However the delegate asked the question again and the applicant responded that he did not remember.”

1. In paragraph [11], the Authority recorded that the applicant claimed that he did not understand the delegate’s question about information he claimed he gave to the Sri Lankan authorities about his brother and sister, and the further claim that the interpreter had not helped with his understanding of such question. Such claims were accepted by the Authority as being new information.

2. What was required for the purpose of a determination as to whether new information was credible personal information or not was the undertaking of an assessment as to whether such information was capable of being believed or not. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [40] – [43], it was held as follows: [2]

   [2]           Per Bromberg J in CSR 16 v Minister for Immigration and Border Protection.  

   “[40] An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:

   The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].

   [41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

   [42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not.  In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed.  It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

   [43]The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).”

3. CSR16 was approved by the Full Court of the Federal Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [37].

4. Nowhere in [11] of the reasons of the Authority was it apparent that the Authority had considered either limb of s. 473DD(b) of the Act. There was otherwise nothing recorded in the reasons of the Authority which would have enabled the Court to infer that the Authority had done so. The Authority was required to intellectually engage with the issues which arose for consideration under the (b)(i) and (ii) criterion, but it failed to do so.

5. Paragraph [19] of the reasons of the Authority was as follows:

   “[19] The applicant has also cited information from the United Kingdom Home Office Country Information and Guidance on Tamil Separatism dated August 2016. This report was not before the delegate and I consider it to be new information. The applicant refers to information in the report which indicates continued reports of abductions, torture and police use of excessive force against Tamils perceived to support the LTTE. There is already recent information before me in regards to this and, therefore, I am not satisfied there are exceptional circumstances for considering this information.”

6. The Authority accepted that the United Kingdom Home Office Country Information Report on Sri Lanka dated August 2016 was new information. Such report pre-dated the decision of the delegate handed down on 22 September 2016, [3] and was unlikely to constitute credible personal information concerning the applicant as opposed to general findings about conditions in Sri Lanka which might have impacted upon the applicant had he been returned to the country. As such, neither limb of s. 473DD(b)(i) or (ii) of the Act would have been engaged. In such circumstances, the Court finds that it was of no moment that the Authority failed to consider either limb of s. 473DD(b). It was not material to the possible success of the applicant’s claims. The Authority was otherwise entitled to have regard to such country information as was before it, and to prefer one such collection of information over another.

   [3]           Court Book (CB) p 482.

7. It was properly conceded by Counsel for the first respondent that the Authority had not made any specific reference to either limb of s. 473DD(b) in its reasons.

8. The Court finds that the Authority erred by failing to first consider each of the two limbs of s. 473DD(b) prior to making a finding that exceptional circumstances for consideration of the new information in paragraphs [7] and [11] of the Authority’s reasons did not exist.

9. The Court further finds that such error on the part of the Authority was material, in that had the Authority fulfilled its mandatory statutory obligation to first assess the s. 473DD(b) criteria, it could realistically have resulted in the Authority arriving at a different decision. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:

   “[45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

   [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”

10. The errors of the Authority as found by the Court were jurisdictional in nature. 

11. In the light of the Court’s findings, it is unnecessary to deal with the issues raised in Grounds 1 and 4 of the Amended Application for Review.

12. The decision of the Authority made on 30 January 2017 is quashed.

13. The applicant’s application for review of the first respondent’s decision is remitted to the Authority for re-hearing, according to law, and for the purpose of the Authority again determining such application, it is ordered that it be differently constituted.

14. The Court will hear the parties as to costs.  

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       10 September 2021