AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FCAFC 90
•9 June 2023
FEDERAL COURT OF AUSTRALIA
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90
Appeal from: Application for extension of time:
AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 127; and
BTT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 126
File numbers: WAD 63 of 2022
WAD 64 of 2022Judgment of: BANKS-SMITH, JACKSON AND FEUTRILL JJ Date of judgment: 9 June 2023 Catchwords: MIGRATION - appeal from orders of Federal Circuit and Family Court of Australia (Division 2) dismissing review applications from decision of the Immigration Assessment Authority - where Authority affirmed decision of the delegate of the Minister to refuse protection visas - assessment of new information pursuant to s 473DD of the Migration Act 1958 (Cth) - Authority assessed credibility of new information having regard to findings made on review material - whether Authority should have determined whether information meets criteria of s 473DD before making findings on the review - materiality - appeal allowed Legislation: Migration Act 1958 (Cth) ss 5, 5(1), 5H, 5J, 35A, 35A(3), 65, 473BA, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DB(2), 473DC, 473DD, 473DD(a), 473DD(b), 473DD(b)(i), 473DD(b)(ii), 473DE, 473DF, 473EA(1), 473EA(2), 473EA(3), 473EB, 437EC, 473FA(2), 473GA, 473GB, 473HB, 474; Pt 7AA Cases cited: ABH18 v Minister for Home Affairs [2020] FCA 620
ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439
AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317
BTT16 v Minister for Home Affairs [2019] FCA 251
BTT16 v Minister for Immigration and Border Protection [2018] FCCA 1125
BTT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2134
BVD17 v Minister for Immigration and Border Protection [2019] HCA [34]; (2019) 268 CLR 29
BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087
CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177
DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260
EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123
Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111
Minister for Immigration and Border Protection v CED16 [2020] HCA 24; (2020) 380 ALR 216
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58; (2021) 285 FCR 381
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 827
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 185 Date of hearing: 19 August 2022 Counsel for the Applicants: Mr HW Glenister Solicitor for the Applicants: William Gerard Legal Counsel for the First Respondent: Mr BD Kaplan Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
WAD 63 of 2022 BETWEEN: AZT22
Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BANKS-SMITH, JACKSON AND FEUTRILL JJ
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.The time for filing a notice of appeal is extended to 4 April 2022.
2.The appeal is allowed.
3.The order of the Federal Circuit and Family Court of Australia (Division 2) made 2 March 2022 is set aside and in lieu it is ordered that:
(a)the application is allowed;
(b)the decision of the Immigration Assessment Authority made 1 October 2020 is set aside;
(c)the matter is remitted to the Authority for determination according to law; and
(d)the first respondent must pay the applicant's costs of the proceeding in the Federal Circuit and Family Court of Australia (Division 2), to be assessed if not agreed.
4.The first respondent must pay the appellant's costs of the appeal, to be assessed together with the costs of appeal WAD 64 of 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
ORDERS
WAD 64 of 2022 BETWEEN: BIR22
First Appellant
BIS22
Second Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
BANKS-SMITH, JACKSON AND FEUTRILL JJ
DATE OF ORDER:
9 JUNE 2023
THE COURT ORDERS THAT:
1.The time for filing a notice of appeal is extended to 4 April 2022.
2.The appeal is allowed.
3.The order of the Federal Circuit and Family Court of Australia (Division 2) made 2 March 2022 is set aside and in lieu it is ordered that:
(a)the application is allowed;
(b)the decision of the Immigration Assessment Authority made 1 October 2020 is set aside;
(c)the matter is remitted to the Authority for determination according to law; and
(d)the first respondent must pay the applicants' costs of the proceeding in the Federal Circuit and Family Court of Australia (Division 2), to be assessed if not agreed.
4.The first respondent must pay the appellants' costs of the appeal, to be assessed together with the costs of appeal WAD 63 of 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH AND JACKSON JJ:
The issue in these related appeals is whether the Immigration Assessment Authority erred in the manner in which it dealt with evidence about a serious sexual assault allegedly suffered by the appellant AZT22, evidence that was first raised by her on the third review by the Authority of a delegate's visa refusal decision. The Authority refused to admit this new information for the purpose of its review.
We have had the advantage of reading Feutrill J's reason in draft, and accordingly it is not necessary to detail the history of the Authority's reviews, the review applications to the (then) Federal Circuit Court of Australia and to the Federal Circuit and Family Court of Australia (Division 2) (FCFCOA) or the statutory scheme of Part 7AA of the Migration Act 1958 (Cth). We agree with his Honour that extensions of time to appeal should be granted. We have, however, come to a different view to his Honour as to the outcome of these appeals.
The appeals concern the respective reasons given by the Authority on 1 October 2020 (on the third review) for affirming the decisions of a delegate of the Minister made on 24 May 2016 to refuse to grant protection visas. AZT22 is the wife of BIR22 and the mother of BIS22. Only AZT22 referred to the sexual assault as part of her claim. It was not relied upon by BIR22 or BIS22 and it was said at the time of the review that AZT22 had chosen not to disclose the assault to them.
The Authority published separate reasons for the review relating to AZT22 and the review relating to BIR22 and BIS22. The primary judge also published separate reasons. We will deal with both appeals in these reasons. As explained by Feutrill J, the appeals to this Court are interdependent. It was accepted that if the appeal in AZT22 is allowed or dismissed, then it would follow that the appeal in BIR22 and BIS22 would similarly be allowed or dismissed. For that reason, we focus on AZT22's appeal, before addressing the appeal brought by BIR22 and BIS22.
The protection claim
AZT22 sought protection on the basis that she fears that if she is returned to Sri Lanka she will be harmed or killed by the Sri Lankan authorities due to her Tamil ethnicity; her profile as a woman or a Tamil woman; past events involving her and her husband and their profiles; her religion (Christian); the 2014 'data breach'; her illegal departure from Sri Lanka; and her profile as a failed asylum seeker.
Some of these bases for protection are not relevant on this appeal. As to those which are of some relevance, the Authority did not accept that AZT22 or BIR22 were persons of adverse interest to the Sri Lankan Army (SLA), the police, the Criminal Investigation Department or the Sri Lankan security services between 2010 and 2012. The Authority was not satisfied that AZT22 faces a real chance of harm in Sri Lanka due to past events or faces a real chance of sexual violence or will be otherwise harmed as a woman or a Tamil woman.
Review material and new information - statutory framework
The Authority commenced its reasons by referring to the review material provided by the Secretary under s 473CB of the Migration Act. Acknowledging that it was the third review of the delegate's decision, the Authority referred to new information that had been provided progressively at each review: 'June 2016 submissions and new information'; 'May 2019 new information and correspondence'; and 'August/September 2020 submissions and new information'.
Relevantly for this appeal, the Authority summarised the new information that AZT22 provided on the third review as follows (para 22):
A.In or around 2012, while her husband was in hiding, she was raped by one or more Sinhalese men;
B.The assault resulted in lasting physical damage and she suffers from recurrent pain for which she takes strong painkillers. She also had an operation in Australia because of the pain. She feels as though her memory has been impacted by the assault;
C.Aside from the applicants' representative, she has not told anyone of the assault, including her male Tamil doctor (in Australia) who she has not been able to tell why she suffers symptoms…
Section 473DB sets out the primary requirement that the Authority is to conduct a review by considering the review material provided by the Secretary without accepting or requesting new information, and without conducting an interview. Exceptions to that requirement are provided by s 473DC, s 473DD and s 473DE.
This proceeding hinges on the exception under s 473DD. It provides:
473(DD) - 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.
As a matter of construction, s 473DD has the effect that in addition to considering the review material provided by the Secretary, the Authority is to consider other new information that has met the criteria of s 473DD, and there is no discretion not to consider it. In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494, Kiefel CJ, Gageler, Keane and Gordon JJ held (at [6]):
Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met.
Authority's conclusion on s 473DD criteria
In this case, the Authority said in relation to the new information about the sexual assault that it was not satisfied that there were exceptional circumstances to justify considering it, and that it was not satisfied that the information was credible. It affirmed the decision of the delegate.
The primary judge dismissed an application for review of the Authority's decision.
Appeal grounds
AZT22 contended by ground 1 that the primary judge erred by finding that the Authority was not required to determine the scope of the materials that it was required to consider before commencing its review of her protection claim.
In summary AZT22 submitted that the Authority was bound to determine whether the information about the sexual assault was credible personal information so as to meet the criteria for receipt under s 473DD, before proceeding to conduct its review. She submitted that the Authority erred by conducting the review and then relying on its findings on its review in determining that the claim about the sexual assault was not credible personal information. On the other hand, the Minister submitted that the Authority may have regard to the other review material and make findings in relation to it for the purpose of determining whether new information meets the criteria. We will return to these matters.
The primary judge also found that if she were wrong on this point, then the error by the Authority was not material. AZT22 puts materiality in issue by ground 2, contending that had the Authority properly assessed the new information before embarking on the determinative review, then the Authority would have been empowered to consider that new information when conducting the review.
Principles - the Authority's task under s 473DD
The nature of the task to be undertaken in assessing whether information is credible under s 473DD(b)(ii) was addressed in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (Bromberg J) and by a three member bench in Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs vBTW17 [2020] FCAFC 159 (Besanko, Mortimer and Jackson JJ).
Two members of the Full Court in BTW17 (Mortimer and Jackson JJ) considered that CSR16 had been correctly decided (Besanko J preferred not to decide the appeal on that ground). Both CSR16 and BTW17 have been followed on a number of occasions and they reflect the law on the question of the correct approach to s 473DD(b)(ii). For example, they were cited with approval in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58; (2021) 285 FCR 381 at [87] (Kerr and Mortimer JJ, Allsop CJ agreeing).
In CSR16 Bromberg J said that 'credible' in s 473DD(b)(ii) means 'capable of being believed'. It is not a condition of engagement with s 473DD(b)(ii) that the information be 'true'. His Honour said at [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.
This is not to suggest that the procedural stage of assessing whether new information is credible is to be undertaken divorced from the overall deliberative review process. However, it is not open to the Authority to embark on making a fresh decision using material which might ultimately be excluded. Accordingly, the filter process provided by s 473DD(b)(ii) must be undertaken as a preliminary step.
So much was explained by Mortimer and Jackson JJ in BTW17. Having first referred to the High Court's description of the Authority's task under s 473DD(b) in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [29], their Honours said at [68]‑[69]:
Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a 'precondition'. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can 'consider new information that is given to it' by a referred applicant. It is thus part of the Authority's preliminary decision‑making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17],
to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
As the plurality observed at [32], the precondition in s 473DD(b)(i) needs '[n]o explication'. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.
That does not mean the preliminary task is to be undertaken without any regard to the review material provided by the Secretary. As was further explained in BTW17 at [72]:
Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to 'get' new information of its own motion, or whether to accept 'new information' proffered to it by a visa applicant - in all these circumstances the Authority is entitled to reflect on and assess the review material already before it - but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions - in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
(emphasis added)
The challenge that might be faced if s 473DD required an assessment of whether new information is 'true' as against 'credible' was explained as follows at [76]:
Particularly in a scheme premised on a review 'on the papers', there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant's explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were 'true'). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what 'new information' is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
The approach in BTW17 is consistent with the reasons of the High Court in AUS17 that we have extracted above. If the Authority considers that the relevant conditions in s 473DD are satisfied, the Authority must consider the new information, along with the review material provided by the Secretary, for the purposes of determining the fresh review of the visa refusal decision. It cannot properly discharge that duty if it has already made firm findings about the protection claims before it has decided whether to accept the new information.
The error put against the Authority in AZT22's appeal is not the same as the error identified in CSR16 and BTW17. AZT22 does not contend that the Authority determined that the new information here was not true, rather than not credible. Nevertheless, it will be seen that at the heart of the present appeals is whether the Authority approached its task in the manner described in BTW17.
The Authority's reasons
Initial assessment of new information
The Authority, under the heading 'Information before the IAA', commenced its reasons by referring to the June 2016 submissions and new information. These included reference to four new events and twenty items of information. It came to a conclusion as to each item, and none was admitted under s 473DD(b) for the purpose of the review.
Similarly, it turned to the 'May 2019 new information and correspondence'. It determined there were no exceptional circumstances to justify its receipt under s 473DD(b).
It then turned to the 'August/September 2020 submissions and new information'. As to this, it proceeded to address a category of new information (AZT22 sharing 'her husband's belief in the need for a separate Tamil homeland'), and accepted that it was credible that AZT22 shared her husband's views and that there were also exceptional circumstances for considering it with respect to her review. However, in this part of its reasons the Authority did not include any decision as to the new information about the sexual assault. It did refer to this new information, saying only that 'for reasons outlined later in this decision' it was not satisfied that s 473DD was met.
In short, the only new information which the Authority did not assess in this part of its reasons against the s 473DD criteria was that relating to the sexual assault.
Refugee assessment
The Authority then moved to the deliberative section of its review, under the heading 'Wife applicant's claims for protection'. It turned, under the heading 'Refugee assessment', to whether there was a 'well-founded fear of persecution' within the meaning of s 5H(1) and s 5J of the Migration Act.
It is in this part of the reasons that the new information as to the sexual assault claim is addressed. We do not suggest that its placement within the part of the detailed reasons that relate to the refugee assessment of itself indicates a failure on the part of the Authority to properly undertake the filtering task required by s 473DD. However, because the Authority's comments about the new information are subsumed within this part of its reasons, it is necessary to direct close attention to what task the Authority was undertaking and what use it purported to make of the new information.
The Authority addressed relevantly 'Events in Sri Lanka'. It observed that AZT22's written claims and evidence about events in Sri Lanka were initially set out in a statutory declaration dated 11 August 2015. She claimed that she lived under the threat of sexual violence in Sri Lanka and primarily feared harm from the Sri Lankan authorities due to her husband's and late husband's past experiences, their profiles, and her Tamil ethnicity. She outlined several incidents involving her, her family, and others known to her between 1989 and 2012.
Certain evidence about the harassment of women and sexual violence was accepted, the Authority noting that evidence of such violence during the civil war was well documented in country information. The Authority accepted evidence about an attack on a bus that involved AZT22's mother and sister. It accepted evidence that her first husband was detained in 2003 or 2004, and died in around 2004 or 2005.
AZT22 also referred to an incident after her first husband died, when she lived at her mother's house. One night there was a knock on the door and she noticed men in army uniforms trying to get into the house. Although they were unable to do so, she considered it a terrifying incident because the SLA used rape as a weapon against Tamil people. She referred to other incidents when she felt unsafe following attempts to break into her house - she eventually left her house and slept with friends. The Authority accepted these events occurred, as country information acknowledged that such incidents involving the treatment of women occurred at that time.
The Authority then recorded its conclusion on this aspect of the claim (at para 51):
I have accepted the wife applicant's evidence to the delegate about her, her family, and people known to her, about their experiences as Tamils and/or as Tamil women. I accept these experiences would have been terrifying for the wife applicant and that she lived in fear. However, on the information, I am not satisfied she faces a real chance of harm in Sri Lanka due to these past events now, or in the reasonably foreseeable future. I have considered later in this decision whether the wife applicant faces a real chance of harm due to her ethnicity and/or gender on return to Sri Lanka.
Because AZT22 claimed to fear harm from the Sri Lankan authorities due to her current husband's past experience and profile, the Authority turned to address those matters. It accepted claims made by her current husband (BIR22) that he was arrested, detained and mistreated in a military camp in 1990, noting that country information indicated that many Tamils were reportedly mistreated by security forces at this time. The Authority did not accept that BIR22 was of ongoing interest to the Sri Lankan authorities at the time of his release.
The Authority also accepted BIR22's evidence that after the death of his parents in 1996 he carried on the family jewellery business, and had to pay taxes to stay in business. These claims were accepted having regard to country information that suggested that the Liberation Tigers of Tamil Eelam targeted Tamils for extortion.
However, the Authority rejected BIR22's claim that his shop was robbed or burned down in 2000, noting an inconsistency in his evidence about the alleged event in his statement and his interview. Noting that country information referred to intimidation and extortion against Tamil civilians, it accepted more generally that BIR22 was harassed and threatened, and asked to pay money to groups such as the Karuna group and the Eelam People's Democratic Party
It is the claims about events during a later period of time, however, between 2010 and 2012, which caused the Authority to question the evidence of both BIR22 and AZT22. BIR22 recounted two attacks in 2010 that involved variously a robbery and kidnapping by soldiers. The Authority said it considered BIR22's evidence about events in 2010 to be inconsistent and vague. It was not satisfied as to these claims. It also found that 'the wife applicant's evidence in her TPV interview that the purported kidnapping occurred in December 2012 [was] not supportive of the applicant's evidence'.
BIR22 claimed in his visa statement that in 2012 he and his family moved to another town and opened a restaurant. He was targeted by armed groups and was forced to go into hiding for three days. When he returned, armed men came to the restaurant and threatened to shoot his wife and child. He decided to leave Sri Lanka as a result. AZT22's evidence in her visa statement was that her husband went into hiding after being beaten, and when he returned from hiding, men came to the restaurant and threatened to kill her and the child.
According to the Authority, inconsistent evidence was given by BIR22 in his visa interview, in that he claimed he went into hiding 'due to pressure' from fear and that the armed persons came to his house while he was away and when he returned. AZT22 in her visa interview said that she was threatened while her husband was in hiding for three days, and told she would be killed unless he came out of hiding.
In written submissions after the visa interviews, the appellants' former representative reiterated that the evidence of BIR22 and AZT22 was that BIR22 was attacked prior to going into hiding.
As to the events of 2012, the Authority relevantly concluded (at para 75):
Having considered the evidence in its entirety, I am not satisfied that the applicant or his family came to the adverse attention of the Sri Lankan security services, or any other person or group, in 2012 as claimed. In particular, I consider the wife applicant's and her husband's apparent differing evidence as to when the events of 2012 occurred significant which leads me to conclude they were not recalling a genuine personal experience. I find it difficult to reconcile the applicant's oral evidence about the order of events and the period he was in hiding with his written claims. Also, the applicant made no mention in the TPV interview of his wife being approached and that she and the child were threatened with death, as per his written claims, despite being asked by the delegate to provide details as to what occurred. Further, the wife applicant's oral evidence that she was threatened while the applicant was in hiding bore little resemblance to her written claims or the applicant's written evidence that this occurred after he returned from hiding. … Moreover, in contrast to other aspects of their evidence, I considered both the wife applicant's and her husband's oral evidence in respect of these purported events to be at times incoherent and lacking in detail which further leads me to doubt they were recalling a personal experience. I am not satisfied the applicant was in hiding in 2012.
We interpose at this point to note a recurring issue in the reasons. The Authority appears to have copied and inserted in these reasons identical passages from the separate reasons relating to BIR22 and BIS22, without editing to ensure that references in AZT22's review decision to the 'applicant' correctly identify her, rather than her husband. It is necessary to read some of these passages (such as that immediately above) conscious that 'applicant' is to be read as a reference to the husband (BIR22), rather than the wife (AZT22). Such confusion does not assist in clearly identifying the manner in which the Authority has reasoned in these appeals.
To return to the substantive reasons, at para 77, and referring to the conclusions at para 75, the Authority said:
In coming to these conclusions, I have given consideration to the wife applicant's evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative.
The Authority then set out the new information (at para 78), including the following information from AZT22's August 2020 statement:
•While her husband was in hiding an older woman she called 'Amma' (not her real name) helped her run the restaurant;
•While Amma and her son were asleep, she heard a knock on the back door of the house. She assumed it was her husband returning home so she opened it. It did not occur to her anyone else would be knocking on the back door of the house;
•She was met by three Sinhalese men wearing black uniforms, who turned out the light before she could see them properly or take in what was happening;
•The men took Amma to the other side of the room. The wife applicant then passed out and has no memory of what happened to her;
•The wife applicant awoke and was bleeding from her vagina. Amma told her that she had removed a white vest from her mouth which had been placed there to stop her screams, that Amma also had a cloth placed in her mouth and was tied up, and that Amma was warned if she made any noise that the wife applicant and her son would be shot;
•Amma warned the wife applicant not to tell anyone what happened otherwise the authorities would shoot her. Amma also warned her about stigma she would face from the community. The wife applicant agreed it was best to keep quiet;
•The wife applicant got a message to her husband and he returned the following night.
•She was scared he would judge her too and decided to keep what had happened to herself;
•Her husband could see she was unwell and offered to take her to the hospital. However, she told him there was a problem with her period and got him to take her to a private clinic to get medication instead;
•Following the assault, she became distressed passing through a checkpoint when the officers unzipped their pants showing their penises;
•The assault has resulted in lasting physical damage and she suffers from recurrent pain for which she takes strong painkillers. She has flashbacks and cannot sleep. She also had an operation in Australia because of the pain;
•Aside from the applicants' representative, the wife applicant has not told anyone of the assault, including her male Tamil doctor (in Australia) who she has not been able to tell why she suffers symptoms.
Over the course of the next seven paragraphs, the Authority addressed the reasons given by AZT22 as to why the new information was not provided earlier, referring to previous opportunities when it may have been open to AZT22 to disclose it. The Authority set out in some detail the known difficulties women may endure in putting forward claims of such a deeply personal nature, particularly having regard to cultural and social experiences such as shame and the fear of further harm. The Authority also acknowledged that the country information indicated that events such as those described by AZT22 were widespread at the relevant time.
The Authority was not satisfied as to the reasons put forward on behalf of AZT22 as to why the event was not disclosed earlier.
The Authority continued (at paras 86‑87):
In respect of the new claims themselves, as noted above, I considered the problems with the wife applicant's and her husband's evidence about the events of 2012 so significant that I was not satisfied her husband was ever in hiding, which significantly undermines the credibility of the new information. Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information. In particular, the wife applicant's claim that she opened the door assuming it was her husband returning home and that it didn't occur to her that anyone else would be knocking on the back door of the house. I simply don't find this credible in circumstances where both she and her husband claimed that, at the relevant time, the situation was so dangerous that the applicant was forced to leave their restaurant/home and go into hiding. This leads me to further doubt the credibility of the new information.
The new claims are not inconsistent with the country information before me. However, when I consider the difficulties with the evidence about the events of 2012 (when the assault is said to have occurred), that the claims are being advanced for the first time over four years since the delegate's decision and following two previous IAA reviews, the differing reasons advanced as to why it was not provided earlier, the fact the wife applicant was represented by a female representative throughout the TPV process, that she advanced claims before the Minister in respect of her fear of sexual violence, that the female delegate did touch on gender in the TPV interview, that the wife applicant specifically advised in the TPV interview that she had never faced harm personally, and that I am satisfied she was well aware of the importance of raising all claims and evidence prior to the delegate's decision, I am not satisfied the new information about the sexual assault is credible. I am not satisfied the new information was not put forward earlier due to the wife applicant believing that she didn't need to because she thought her husband's experiences/claims would be sufficient, due to her English language skills, due to her lack of understanding of the TPV process, due to shame, stigma, psychological or cultural factors, due to the actions (or inactions) of the delegate or her former representative, due to being assisted by a male interpreter, due to the data breach, due to her 'PAIS' status, or for any other reason. I am not satisfied that exceptional circumstances exist to justify considering the new information.
Although there is no reference to s 473DD in this part of the reasons, the statements (in paras 86‑87) to the effect that the Authority is not satisfied that the new information is credible or that there are exceptional circumstances employ the language of s 473DD. It is apparent that in these paragraphs the Authority purported to provide its conclusion as to whether the new information was to be received under s 473DD, and rejected it.
The Authority then returned to other matters before concluding that it was not satisfied that AZT22 or BIR22 were persons of adverse interest to any group such as the Sri Lankan security services between 2010 and 2012, or when they left the country in 2012, or that AZT22 faces a real chance of harm in Sri Lanka should she be returned.
Did the Authority act consistently with the regime explained in BTW17?
The approach of the Authority is problematic in a number of ways.
First, we have referred above to the transposition of reasons from the appeal in BIR22 and BIS22 to the reasons relating to AZT22 without editing, which indicates insufficient attention was given to finalising the reasons in the AZT22 appeal. We have also referred above to the placement of the Authority's purported decision under s 473DD as to the sexual assault information in the part of its reasons that otherwise deals with the conceptually distinct deliberative review stage. Whilst not determinative in this appeal, such an approach tends to invite doubt and confusion. As the statutory framework requires two conceptually different tasks to be undertaken, an approach that intertwines those tasks or otherwise confuses them is to be avoided.
Second, and the matter upon which we consider ground 1 of the appeal turns, is the following passage (at para 86, extracted in full at [49] above):
In respect of the new claims themselves, as noted above, I considered the problems with the wife applicant's and her husband's evidence about the events of 2012 so significant that I was not satisfied her husband was ever in hiding, which significantly undermines the credibility of the new information. Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information…This leads me to further doubt the credibility of the new information.
(emphasis added)
Here the Authority has brought to bear the finding it has made based on the 'problematic evidence' about the husband being in hiding in 2012, a finding made at the deliberative stage of the review, in assessing whether the new information, information that might have been relevant to that finding, is credible. It has, as recorded in para 86, already determined in its reasons that it is not satisfied that the husband was ever in hiding. In our view, this statement reveals error on the part of the Authority. It has failed to undertake the task required of it by s 473DD as explained in CSR16 and BTW17.
The error is revealed again in para 87, where 'the difficulties with the evidence about the events in 2012' (as to which a finding has been made) are deployed in support of the assessment that the new information is not credible.
In reaching this view, we have not overlooked para 77, and the Authority's statement that:
In coming to these conclusions, I have given consideration to the wife applicant's evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative.
The conclusions referred to are those set out in para 75 ([43] above) to the effect that the Authority was not satisfied that BIR22 or his family came to the adverse attention of the Sri Lankan security services, or any other person or group, and it was not satisfied that BIR22 was in hiding in 2012. It might thus be said that the Authority did not think that the new information was relevant to its findings about the events of 2012, so it made no error in arriving at those findings before deciding whether to receive the new information.
The difficulty with this is that it is unclear what the Authority meant in stating that it did not find AZT22's new information about the sexual assault 'particularly corroborative'. Was it corroborative in some respects but not others? Was it a little corroborative? Or not at all? And if not, why not? Was it because the Authority thought that the new information was not logically capable of corroborating the evidence about the events of 2012, even if it had been believed? Or was the new information simply not believed? Only if the Authority had determined that the new information was not corroborative because it was not relevant to the events of 2012 would it be defensible to reach conclusions about those events before deciding whether to receive the new information (and even then a question about illogicality might arise).
Alternatively, if the passage is to be understood as meaning that the new information was only corroborative in some respects, or only a little corroborative, then it might then be said that the Authority has used material that in the end was not admitted, the course warned against in BTW17 at [76], [78]. Or if it was intended to say that the information was not at all corroborative, an inconsistency arises. This passage in para 77 and the passage we have highlighted above in para 86 cannot be read consistently. It is apparent from para 86 that the Authority assessed the credibility of the new information from the perspective that it had found that the husband was not in hiding in 2012. So much is clear without speculation. The passage in para 77 is not tolerably clear and is open to a number of interpretations.
It might be said that on an application of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 the reasons, and in particular para 77, should be read generously in favour of the Authority. However, we are troubled by resort to this principle in circumstances where a real straining of reasons and an element of speculation is required.
Therefore, we consider that the Authority erred by making findings for the purposes of its review before it identified the scope of the materials to be considered in the review by determining under s 473DD whether to receive the new information.
Although raised as a ground of appeal, we also express some concern as to the detailed assessment of the new information set out in the reasons. This level of detail, which, taken with the location in the reasons of that assessment, suggests that as a matter of substance the Authority in fact went too far, venturing down the path of undertaking a consideration of the new information that is for all intents and purposes indistinguishable from its fresh review, a course warned against in BTW17 at [73]. Mere use of the language of s 473DD in this part of the reasons does not define the nature of the task undertaken.
In fairness to the Authority, its reasons were published before the guidance provided by CSR16 and BTW17. As already noted, the Authority also seems to have complicated its task by using reasons prepared in the BIR22 and BIS22 reviews as its draft reasons in AZT22's review (at least in part), and by then slotting into those reasons paragraphs that address the new information. This approach may have been well-intentioned, with a view to efficiency, but in the end it has highlighted the need to properly distinguish the distinct conceptual tasks the Authority was required to undertake on its review of the visa refusal decision.
For completeness, we observe that the distinction between these conceptual tasks does not mean that an Authority is not to have regard to or form views about review material provided by the Secretary for the purpose of assessing whether there are exceptional circumstances and whether the new information is credible within the meaning of s 473DD. So much is apparent from BTW17 at [72], which we have included at [22] above.
In this context we also note some examples of scenarios where, the Minister submits, it can be appropriate to have regard to the review material for the purpose of making a determination under s 473DD. For example:
(1)In DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; (2021) 273 CLR 177 it was held that where an applicant's testimony at a protection visa interview was incorrectly translated, correctly translated testimony given to the Authority might well meet the conditions in s 473DD as being credible personal information with exceptional circumstances to justify its receipt. The Minister submitted here that on AZT22's suggested construction of Part 7AA, the Authority would be prevented from making findings about the correctness of the original translation. But that does not follow. Plainly, if it was necessary for the Authority, in determining whether to receive a new translation, to have regard to the original translation in the review material, and to find whether it was correct, it could do so. What it could not do would be to use the allegedly incorrect translation to make findings about the merits of the applicant's protection claims, and then use those findings as part of the basis for deciding not to receive the new information. That is the appropriate analogy to what the Authority has done here.
(2)Another hypothetical example the Minister gave was where the review material suggests that the applicant was in country A at the time an alleged event occurred, and yet new information proffered by them suggests that they were in country B. As the Minister says, assessment of the credibility of the new information could not properly be conducted unless the Authority formed a view about the veracity of the review material which placed the applicant in country A. But the example is not to the point; on that scenario, the Authority would be correctly assessing the review material for the purpose of making a determination under s 473DD. Again, a closer analogy to the present case would be where the Authority embarks on its substantive review, finds on the basis of the review material that the applicant was in country A at the relevant time and so could not have suffered persecution in country B, and then uses that finding to determine that the new information placing the applicant in country B should not be received as part of the review.
For completeness, we note that the Minister referred to DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 as an example where, it was submitted, the Authority had made credibility findings about the appellant as part of its review and deployed those in deciding not to take into account under s 473DD part of a psychiatrist's report that concluded that the appellant's claims were credible. We do not consider this decision helpful to the matters in issue. The decision turned on the Authority's view that part of a report that contained the psychiatrist's opinion of the appellant's credibility did not carry more weight than the Authority's own assessment of credibility, a view the Full Court concluded was open in the circumstances of the case: at [37]‑[38]. The Authority gave reasons for rejecting that part of the psychiatrist's report. It preceded its conclusion in its reasons by referring to particular matters it found internally inconsistent in the materials that 'seriously undermined' the appellant's claims. The Authority also referred to other findings it made on credibility 'as will be discussed below'. Neither the location of nor use of any such conclusions as a step in deciding to reject the psychiatrist's opinion were the subject of the appeal. DYS16 preceded both CSR16 and BTW17 and was not concerned with the issues that we have discussed that were addressed by those authorities.
Primary judge's decision
In his Honour's reasons, Feutrill J sets out parts of the primary judge's reasons. It follows from our reasons that we do not agree with some of the conclusions reached by the primary judge.
In particular, we refer to the primary judge's statement (at [45] of the FCFCOA reasons) that there is nothing in the authorities that requires the scope of the review material to be finally determined before there is any consideration of any of a referred applicant's substantive claims, and the example proposed of where new information 'could not impact the Authority's assessment of the particular claims the subject of the substantive finding'. One wonders how the example of new information that 'could not impact an assessment' would pass the relevance test found in the definition of 'new information' in s 473DC(1), but putting that to the side, and following BTW17, it seems to us that a scenario where the review consideration could properly proceed before the Authority has resolved the application of s 473DD to new information is unlikely and would be rare. It is to be remembered that the Authority is empowered to conduct a review by considering the review material (s 473DB(1)) and by considering new information that has met the s 473DD criteria, and that there is no discretion to then exclude such new information: AUS17. Until the scope of the material that the Authority is authorised to consider for the review is determined, there remains a risk that the Authority will err in its consideration, either by failing to have regard to new information or by wrongly deploying or otherwise having regard to it.
In any event, the primary judge in the case of AZT22 considered that the new information 'was not new information that had the potential to impact on the Authority's assessment of the claims about events in 2012' (at [49]), relying on the phrase in para 77 to the effect that the new information was '[not] particularly corroborative'. We respectfully disagree that para 77 is to be read in that manner or only in that manner, for the reasons we have given. Further, it is difficult to accept her Honour's statement as a matter of logic. If the information that AZT22 had been raped in her husband's absence had been taken into consideration, it surely could have affected the findings about that alleged absence, had it been accepted as true.
The primary judge referred to paras 79-87 of the Authority's reasons, identifying them as the section of the reasons where s 473DD is addressed, but does not properly take into account that the Authority has by this point already made certain findings (for example at para 75) and has relied on them. The Authority is not merely reflecting on and assessing the review material already before it for the purpose of deciding whether to consider the new material on the review, a course that is endorsed by BTW17 at [72]. Rather, it confirms in these reasons that it has made findings on its review and it then relies upon them in addressing the credibility of the new material, as our reasons with respect to para 86 indicate (at [55] above).
We do not consider this approach is consistent with that required by the statutory provisions as explained in BTW17.
The primary judge also determined that if she were wrong, then the error was not material because there was no realistic possibility of a different outcome for AZT22. Her Honour reasoned that even if the Authority had assessed the new information against the s 473DD criteria and decided to consider it, and had then proceeded to consider the claims about 2012 on review, the outcome would have been no different, because the Authority concluded that the new information did not corroborate the events of 2012.
This approach to materiality forms the basis of ground 2 of the appeal.
Materiality
AZT22 contends that if ground 1 is established, then the error in performing the task required by s 473DD was material. However, the parties were at odds as to the manner in which materiality falls to be assessed in a matter such as this.
Expressed generally, in a case where materiality is in issue, an applicant will succeed if the outcome could have been different as a matter of reasonable conjecture: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [38]. That standard is undemanding: Nathanson v Minister for Home Affairs [2022] HCA 26 at [33].
The primary judge dealt with materiality by concluding that failure by the Authority to properly determine under s 473DD whether it was satisfied that the new information met the criteria was immaterial, because even had it done so, and had it been so satisfied, it nevertheless would not have found it to be true when it proceeded to undertake the review. This conclusion rested on the statements by the Authority that the new information was 'not credible' (at para 86 of the Authority's reasons) and on what the primary judge described as a finding that the new information 'was not corroborative' of the claims relating to the events of 2012 (a reference to para 77).
AZT22 contends that materiality is to be determined by reference not to the outcome of the counterfactual review as a whole, but rather by reference to the first task, such that the question is whether the Authority as a matter of reasonable conjecture could have found that the new information was credible and so it should have been considered as part of the review. AZT22 submitted that material which realistically could have been included for the purpose of the review was excluded, so that the review task then undertaken by the Authority was not the statutory task required of it. This argument was said to be based on DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15. In that case, Colvin J held that s 473DD incorporated a threshold of materiality so that, in the case before him, the question was whether the Authority's decision on the application of that section could realistically have been different. His Honour held that the requirement of materiality in the case before him was not to be applied to the ultimate decision the Authority made on review.
However, during the hearing before us, counsel for AZT22 also submitted that if materiality is to be assessed with regard to the overall outcome, then once it is accepted that the Authority might have found that the new information was credible for the purpose of s 473DD, then it was capable of being believed - and it therefore follows that it could not be said that there was no realistic possibility of the claim being found to be true on review. So AZT22's submissions on materiality were also directed to the ultimate outcome of the review as a whole.
The Minister submitted that materiality was to be assessed by regard to the overall outcome, and cited a number of cases which he said exemplified this approach. The Minister referred to ABH18 v Minister for Home Affairs [2020] FCA 620 at [45]; EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [58]; BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1087 at [36]‑[38]; and CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 at [39]‑[41]. It can be accepted that each case is an example where the Court has considered the materiality of an error or purported error in relation to the application of s 473DD in the context of the ultimate outcome of the Authority's review.
Even accepting the Minister's submissions as to the manner in which materiality is to be assessed, an approach that was accepted by AZT22 as correct in the alternative, we consider the error made by the Authority was material to the outcome, applying the Nathanson threshold.
The matters relied upon by the primary judge in finding any error immaterial were not, with respect, convincing. As a matter of reasonable conjecture, there is a prospect the new information would have been accepted as credible for the purpose of s 473DD, if it had been assessed in the context of the review material but free from infection from firm findings about the events of 2012. The matters raised are not inherently unbelievable, particularly when the Authority had otherwise accepted country information to the effect that events such as that described were widespread in Sri Lanka at the relevant time (at para 83, and see [34]‑[35] and [47] above). AZT22 provided quite specific details of the alleged assault. It therefore does not follow, as the primary judge reasoned (at [58]) that the Authority would have made the same finding that BIR22 was not in hiding even if it had received the new information. As a matter of reasonable conjecture the new information was capable of changing the finding, had it been received.
Further, it is inaccurate to say that the Authority found the claim to be 'not corroborative' of the other evidence relating to the events of 2012. The Authority's use of the expression '[not] particularly corroborative' was equivocal, for the reasons we have given above.
In support of his submission that any error was immaterial, the Minister also relied upon an 'alternative' finding in para 86 that the new information was not credible. The submission rests on the Authority's statement in para 86 that 'Further, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information'. However, the Authority, having referred to those other matters, concluded that they lead it to 'further doubt' the credibility of the new information. Therefore, the 'problematic evidence' remains one of the elements that gave rise to the doubt. The passage from para 86 which we have highlighted at [54] above shows that it was a significant element. The other matters added to that doubt. The problematic evidence was weighed in the balance in some manner.
It is true that the Authority's reasons include passages in which it found, not just that the new information was not credible (s 473DD(b)(ii)), but that also that it was not satisfied that exceptional circumstances existed to justify considering it (s 473DD(a)). But as was made clear in AUS17 at [11], the criteria in s 473DD(b) must be considered before determining whether there are exceptional circumstances for the purpose of s 473DD(a), and the Authority's findings under s 473DD(b) must be factored into that determination. In the context of the present appeal, if the Authority had considered it credible that AZT22 had been raped, it might have accepted her asserted reluctance to speak of the incident as exceptional circumstances. A different approach to the credibility of the new information therefore could have affected whether it was received, and so affected the ultimate outcome of the review.
The Minister further submitted that, having regard to the Authority's finding that AZT22 did not meet the description of a woman who might face a real chance of sexual violence or other harm upon return to Sri Lanka, then any assessment of her past experiences, including the new information, would have made no difference to the outcome. The Authority's finding on this aspect of her protection claim was based on country information, and had two limbs. First, the Authority referred to DFAT's assessment that overall women in Sri Lanka face a moderate risk of societal discrimination and violence, but such risk related particularly to domestic or intimate partner violence. Second, the Authority referred to DFAT information that there were legitimate concerns about the risks facing single women or all-female households. Although the Authority acknowledged that when AZT22 was living with her mother, men in army uniforms had come to the house (see [34] above), it concluded that it was not satisfied such an event would occur now, noting that if she were returned to Sri Lanka, AZT22 would be accompanied by her husband and live with him as part of the family unit.
It can be accepted that domestic or intimate partner violence did not form part of AZT22's claims. However, as to the finding that risk was limited to single women or all-female households, as a matter of reasonable conjecture there could have been a different outcome if the Authority had regard to the evidence about the sexual assault. If, for example, that evidence were accepted on review, then the Authority would have considered her claims on the basis of a different profile and potentially come to a different conclusion. If the evidence were accepted, AZT22 would have the profile of a woman who had been visited by men in army uniforms (as already accepted) and had also been the victim of a serious assault at the hands of three Sinhalese men while her husband was not present at their house. The fact that she generally lived with her husband had not prevented such an attack. Further, if such evidence were accepted, then the events of 2012 involving both her and BIR22 may have been assessed differently, so that the Authority may have accepted that they had come to the adverse attention of the Sri Lankan security services or other person or groups, as claimed. These potentially different profiles may well have had an impact on the assessment of the protection claims.
Once it is accepted that but for the error in its approach, there is a prospect that the Authority would have accepted the new information as credible for the purpose of s 473DD, then the counterfactual review would have included consideration of the new information. On that review, consideration of the new information may have influenced the manner in which the Authority assessed the events of 2012 and so AZT22's protection claim. The undemanding standard referred to in Nathanson is met. Whether in fact the outcome would have been different is not to the point.
Further, even if the approach in DPT17 were to be followed, then we consider that for the same reasons, the correction of error may have led to a different outcome, such that relief should be granted. It is therefore not necessary to determine the issue joined by the parties in this appeal about the correctness of DPT17.
Outcome of AZT22's appeal
AZT22's application for an extension of time to appeal will be allowed. The appeal will also be allowed, with costs. The decisions of the primary judge and of the Authority will be set aside and the matter remitted to the Authority to determine according to law. The primary judge did not make an order as to costs in favour of the first respondent; her Honour's reasons do not say why. We are not aware of any reason why costs should not follow the event, so there will be an order in favour of AZT22 for the costs of the proceeding in the FCFCOA.
BIR22 and BIS22 appeal
BIR22 and BIS22's application for an extension of time to appeal, and their appeal, will be allowed. The latter follows from the outcome of AZT22's appeal and the agreed interdependence of the two appeals. Orders similar to those in AZT22's appeal will be made.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Banks-Smith and Jackson. Associate:
Dated: 9 June 2023
REASONS FOR JUDGMENT
FEUTRILL J:
Introduction
These reasons concern applications for extension of time to appeal and, if granted, appeals from judgments of the Federal Circuit and Family Court of Australia (Division 2) dismissing applications for judicial review of decisions of the second respondent (Authority) affirming decisions of a delegate of the first respondent (Minister) to refuse the applicants/appellants protection visas. The applicants/appellants are members of a family group who applied for protection visas as unlawful maritime arrivals. Applicant/appellant AZT22 in proceedings WAD 63 of 2022 is the wife of the first applicant/appellant BIR22 and mother of the second applicant/appellant BIS22 in proceedings WAD 64 of 2022 (collectively, appellants).
The appellants made applications to extend the time within which they had to commence their appeals from the judgments of the primary judge. These applications were not opposed by the Minister and the Authority and both filed submitting notices in each of the applications/appeals. On the facts stated in support of the applications, I would grant each of the appellants the requested extensions of time within which to commence the appeals and order that the draft notice of appeal annexed to each of the affidavits in support of the applications stand as the notice of appeal in each of the appeals.
In proceeding WAD 64 of 2022 there is one ground of appeal. That ground of appeal pleads that the primary judge erred by failing to find jurisdictional error in the related matter the subject of the appeal in proceedings WAD 63 of 2022. It was common ground that if the appeal in WAD 63 of 2022 were to succeed or fail, then the appeal in WAD 64 of 2022 would also succeed or fail.
In proceeding WAD 63 of 2022 there are two grounds of appeal. For the reasons that follow, I would dismiss ground 1 and, if I am wrong on ground 1, I would uphold ground 2 of the notice of appeal. However, as ground 2 depends upon appellant AZT22 succeeding on ground 1, I would dismiss the appeal with costs. Therefore, I would also dismiss the appeal in WAD 64 of 2022.
Background
The appellants' applications for protection visas have a long history.
On 5 August 2012, the appellants, who are citizens of Sri Lanka, left Sri Lanka. On 6 September 2012, the appellants arrived in Australia as 'unlawful maritime arrivals' within the meaning of that expression in s 5 of the Migration Act 1958 (Cth). On 2 June 2015, the appellants lodged a valid combined application for a Class XD Subclass 785 Temporary Protection Visa (TPV).
On 24 May 2016, a delegate of the Minister refused to grant the visas. As a consequence of their status as unlawful maritime arrivals and the date of their arrival in Australia, the decision to refuse to grant the visas was referred to the Authority under Part 7AA of the Act.
On 1 July 2016, the Authority affirmed the delegate's decision. The appellants applied for judicial review of that decision in the then Federal Circuit Court. On 20 March 2018, a judge of the Federal Circuit Court dismissed the application for judicial review: BTT16 v Minister for Immigration and Border Protection [2018] FCCA 1125. The appellants appealed to the Federal Court of Australia. On 28 February 2019, a judge of the Federal Court allowed the appeal and made orders quashing the Authority's decision for jurisdictional error and remitted the applications for visas to the Authority for reconsideration: BTT16 v Minister for Home Affairs [2019] FCA 251.
On 23 May 2019, the Authority again affirmed the delegate's decision. The appellants applied for judicial review of that decision in the Federal Circuit Court. On 5 August 2020, a judge of the Federal Circuit Court made orders quashing the Authority's decision for jurisdictional error and remitted the applications to the Authority for reconsideration: BTT16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2134.
On 27 August 2020, appellant AZT22, through her representatives, provided the Authority with a statutory declaration dated 24 August 2020. The statutory declaration contained statements of events that had taken place in Sri Lanka before the appellants had left that country. The statements included a description of a highly traumatic event involving sexual assault that was said to have taken place at the hands of three Sinhalese men while appellant BIR22 was 'in hiding' during 2012. Due to the nature of the event, appellant AZT22 did not want the information shared with appellant BIR22 or appellant BIS22. The statement about the traumatic event was 'new information' within the meaning of that expression in s 473DC of the Act.
On 1 October 2020, the Authority again affirmed the delegate's decision refusing the application of appellant AZT22 for a protection visa. The Authority provided a written statement of its reasons for that decision (AZT22 Authority reasons). The Authority's reasons included an explanation of the reasons it was not satisfied that the criteria in s 473DD of the Act had been met with respect to the traumatic event.
On 1 October 2020, the Authority also again refused the applications of appellant BIR22 and BIS22 for protection visas and provided a written statement of the reasons for that decision (BIR22 Authority reasons). The Authority's reasons relating to the applications of appellant BIR22 and appellant BIS22 contained no information or explanation of the traumatic event because that event had not formed part of their claims for protection visas. Further, as noted earlier, appellant AZT22 had not wanted appellant BIR22 and appellant BIS22 to be informed of her statements about the traumatic event.
The appellants applied for judicial review of the Authority's decisions in the Circuit Court. There were separate applications of appellant AZT22, on the one hand, and appellant BIR22 and BIS22, on the other.
Regarding appellant AZT22, the primary judge described the grounds of review and the evolution of those grounds at paras [8] – [14] in her reasons for decision (AZT22 judgment). In short, what commenced as an assertion that the Authority had acted unreasonably in not being satisfied that the traumatic events met the criteria in s 473DD came to be refined to and understood by the primary judge as an assertion that to perform the statutory review under Part 7AA the Authority must determine the scope of the materials that it is required to consider (review material and new information) before commencing its substantive review of the claims. The primary judge rejected that assertion and that was the primary reason that the application for judicial review of appellant AZT22 was dismissed: AZT22 judgment [45]-[54]. The primary judge also considered, if that conclusion were wrong, then the error was not material as the error had not realistically deprived appellant AZT22 of the opportunity of a successful outcome: AZT22 judgment [55]-[60].
Regarding appellant BIR22 and appellant BIS22, they relied on the jurisdictional error concerning appellant AZT22. The primary judge in her reasons for decision concerning these appellants (BIR22 judgment) dismissed their applications because she dismissed the application of appellant AZT22: BIR22 judgment [10]-[17].
Legislative framework
The Act confers power on the Minister to grant a non-citizen a visa that permits the visa holder to do either or both of travelling to and entering Australia, or remaining in Australia. The Act prescribes a number of different classes of visa, including, in s 35A, a class of visa known as a protection visa. Section 35A provides for a number of different categories of protection visa, including in s 35A(3), a class known as temporary protection visas.
A person may apply for a protection visa under s 36 of the Act. Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a protection visa must meet one of the criteria set out in ss 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class. If satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa under s 65 of the Act. The Minister's power to grant a visa under ss 29, 36 and 65 the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.
Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions. Fast track reviewable decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants. Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants: see, ss 473BA, 473BB, 5(1) of the Act.
The Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made: s 473CA. A person cannot make an application for review directly to the Authority. The Authority must review a fast track reviewable decision and may affirm the decision or remit the decision for reconsideration: s 473CC.
The Secretary (the secretary of the department responsible for administration of the Act) is required to give certain review material to the Authority in respect of each fast track reviewable decision referred to the Authority: s 473CB. The Authority must review a fast track reviewable decision referred to it and may affirm a referred decision or may remit the decision for reconsideration in accordance with directions: s 473CC.
Part 7AA, Division 3, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. Nothing in Part 7AA requires the Authority to give a referred applicant any material that was before the Minister when the Minister made the decision under s 65: s 473DA. Sections 473GA and 473GB contain provisions relating to restrictions on disclosure of certain information to the Authority and for limited disclosure of certain other information to referred applicants.
Subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material without accepting or requesting new information and without interviewing the referred applicant. The Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority: s 473DB(2).
Subject to Part 7AA, the Authority may, in relation to a fast track decision, get any documents or information (new information) that were/was not before the Minister when the Minister made the decision under s 65 and the Authority considers may be relevant: s 473DC. For the purposes of making a decision in relation to a fast track reviewable decision, the Authority must not consider any new information unless certain preconditions are satisfied: s 473DD. The Authority must, in relation to a fast track reviewable decision, give to the referred applicant particulars of any new information but only if the new information has been, or is to be, considered by the Authority under s 473DD and would be the reason, or part of the reason, for affirming the fast track reviewable decision. The Authority must also provide an explanation to the referred applicant and invite the referred applicant to give comments on the new information: ss 473DE, 473DF.
Where the Authority makes a decision relevant to Part 7AA, it must make a written statement that sets out the decision of the Authority on the review, the reasons for the decision, and records the day and time that statement is made: s 473EA(1). A decision on a review is taken to have been made by the making of the written statement and on the day and at the time the written statement is made. The Authority has no power to vary or revoke a decision after the day and time the written statement is made: ss 473EA(2), 473EA(3).
The Authority must notify the referred applicant of a decision on a review by giving the referred applicant a copy of the written statement. The copy must be given to the applicant within 14 days after the day on which the decision is taken to have been made; and by one of the methods specified in s 473HB. A failure to comply with the obligation to provide a copy of the statement to the applicant does not affect the validity of the decision: s 473EB. Section 473HB makes provision for the methods by which the Authority is to give documents to a person other than the secretary. Certain decisions of the Authority may be published: s 473EC.
The Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). The Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence: s 473FA(2).
Section 474 of the Act provides that a privative clause decision: is final and conclusive; must not be challenged, appealed against, reviewed, quashed or called into question in any court; and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. The effect of s 474 is to exclude a court from reviewing and granting relief for any error a decision-maker has made in respect of a privative clause decision. A decision of the Minister or a delegate refusing to grant a protection visa is a privative clause decision. However, as noted above, where a decision has been made to refuse to grant a protection visa, and the decision is a fast track reviewable decision, that decision must be reviewed by the Authority under Part 7AA. A decision of the Authority to affirm a decision to refuse an applicant a protection visa is also a privative clause decision to which s 474 of the Act applies.
Notwithstanding the terms of s 474 of the Act, the section does not have the effect of excluding the original jurisdiction of the High Court to review decisions of administrative decision-makers for jurisdictional error under para 75(v) of the Constitution: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 at [76]. Where the Tribunal has made or purported to make a privative clause decision, the High Court's jurisdiction to review such a decision for jurisdictional error is conferred on the Federal Circuit Court, except for certain decisions not presently relevant: s 476 of the Act. The Federal Circuit Court's power on such a review is limited to considering the extent to which the Authority exercised its powers within the limits of its statutory authority or failed to exercise powers it was bound to exercise. In other words, 'the inquiry is not about whether a decision which was made in the exercise of the authority was right or wrong on its merits. It is an inquiry about the boundaries of the power conferred: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [160]. The Federal Court has jurisdiction to hear and determine appeals from judgments of the Circuit Court exercising original jurisdiction under a law of the Commonwealth: s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth).
The Authority's reasons
In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 Mortimer J (as her Honour then was) and Jackson J made the following relevant observations about the legislative scheme in Part 7AA that inform the proper construction of s 473DD:
67Having explained [in Plaintiff M174/2016] at [29] that the "exceptional circumstances" "precondition set out in s 473DD(a) must always be met", the plurality then said of s 473DD(b) (at [34]):
Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.
(Emphasis added.)
68Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a "precondition". That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can "consider new information that is given to it" by a referred applicant. It is thus part of the Authority's preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17],
to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.
69As the plurality observed at [32], the precondition in s 473DD(b)(i) needs "[n]o explication". It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.
70Thus, the parameters for the Authority's review task are set by the "primary rule" in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the "primary rule" in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.
71The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.
72Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to "get" new information of its own motion, or whether to accept "new information" proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
73However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority's reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
74As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
75That is why, in our opinion, Parliament has used the word "credible" in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, "credible" means capable of being believed: it is the decision whether the information has that character, as well as the character of being "personal" to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
76Particularly in a scheme premised on a review "on the papers", there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant's explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were "true"). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what "new information" is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.
Parties' submissions
The appellants contend that on the proper construction of the Act the statutory review under s 473CC involves, in substance, two stages. First, identification of all the material that the Authority is to consider in the review. That consists of the review materials and any new information that meets the criteria in s 473DD. According to the appellants, in this stage, while the Authority may have reference to the review material when considering if it is satisfied of the criteria in s 473DD, the Authority must stop short of making any findings on the review material when considering if it is satisfied of the credibility of personal information or if exceptional circumstances exist. Second, after completion of the first stage, the Authority is then to consider the review material and any new information that satisfies the criteria specified in s 473DD when conducting the statutory review under s 473CC.
The appellants contend that the error that the Authority made in this case was to conflate the two stages. The Authority made findings on the review material and then used those findings as a basis for not being satisfied of the credibility of the personal information relating to appellant AKT22. The appellants contend that was an error because the Authority embarked on consideration of the material for the purposes of the substantive review before deciding what material it was obliged to consider in that review. Another way of characterising the asserted error is that the Authority had regard to an irrelevant consideration when considering if the personal information was credible. That is, a concluded finding based on the review material was not relevant to the question of whether the personal information was credible because the Authority was not permitted to make and use findings on the review material before deciding if the member were satisfied of the criteria in s 473DD. As a consequence, the Authority failed to exercise the procedural power in s 473DD according to law.
In support of the appellants' submissions they relied on the reasons of Yates J in AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069 (at [61]) where his Honour said:
61… Considering the application of s 473DD to new information is part of the IAA's task in determining the scope of the material properly available to it in order to undertake its review task. Reaching a final conclusion on the truth of the appellant's claims is a separate and discrete task, which can only be reached on the basis of all the information properly before the IAA for review.
In reaching that conclusion, Yates J appears to have accepted the appellant's submission in that case that the Authority had applied the wrong criterion for s 473DD(b)(ii) and had assessed the information by reference to whether the new information was 'true' rather than 'capable of being believed' (at [25]). That submission, in turn, was founded on BTW17. In BTW17, Mortimer and Jackson JJ considered and accepted that CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 represents the law on the question of the correct approach to s 473DD(b)(ii). In particular, at para [75] of their Honours' reasons quoted above, they accepted that the decision about the credibility of personal information 'is to be made at [the] procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.'
In CSR16 (at [40]-[43]), Bromberg J considered the meaning of the word 'credible' in the phrase 'credible personal information'. In the course of expressing the view that '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 (accurate, or genuine)' his Honour drew a distinction between the 'deliberative stage' of the Authority's review and 'an earlier or anterior stage' directed at whether new information should be received by the Authority for consideration at the deliberative stage. Bromberg J reasoned that at the earlier or anterior stage the Authority was only permitted to consider if the new information was 'credible' and, if so, whether the information met the other criteria specified in s 473DD, then the Authority was to consider if the new information was 'true' at the later deliberative stage.
In BTW17, the Minister argued that the approach of Bromberg J in CSR16 was wrong. The Minister submitted, amongst other things, that Bromberg J was wrong to divide the Part 7AA review into deliberative and anterior stages. The Minister submitted that there was a single review under Part 7AA. The Minister made a similar submission in these appeals to the effect that it was wrong to divide the Part 7AA review into stages by which: (1) the Authority is required to determine the scope of the material it is obliged to consider (review material and any new information that meets the s 473DD criteria); and (2) consider that material in the substantive review.
Performance of the Part 7AA review
In my view, it is correct that the scheme of Part 7AA contemplates a single review of a fast track reviewable decision by the Authority. However, the notion of a single review is not incompatible with a requirement that performance of that single review is subject to the condition that the Authority must perform the procedural duty and exercise procedural power according to law. Put another way, the Authority must perform the procedural duty to 'consider' the review material in order to make the ultimate decision in the exercise of the substantive review duty. That procedural duty is qualified by the procedural power of the Authority to get new information which it must also 'consider' if the criteria specified in s 473DD are met.
It follows that the duty to exercise the substantive review power and make a decision to affirm or remit the fast track reviewable decision is subject to the condition that the Authority has performed the procedural duty and exercised the procedural power according to law. It is preferable to describe the procedural duty and power as conditions to the exercise of the power of review rather than 'stages' of the review with sequential or temporal components so as to avoid conceptual confusion or misunderstanding of the nature of the Authority's substantive review duty.
Information that may be considered for the purposes of the procedural power
In circumstances in which a referred applicant raises new information, the exercise of the substantive power of review is conditional upon the exercise of the procedural power and an evaluation of the new information for the purpose of considering if the Authority is satisfied of the criteria specified in s 473DD(b)(ii). In my view, for the reasons which follow, the Authority is permitted, in the exercise of that procedural power, to consider the review material and form views based on that material for the purpose the exercise of the procedural power and evaluating if new information meets the criteria specified in s 473DD(b)(ii).
First, s 473DD(b)(ii) contains no express limit on what information or considerations the Authority may take into account when considering if the Authority is satisfied that the new information is credible personal information. The Authority is clearly permitted to consider the review material, or that part of the review material that is relevant, for the purpose of evaluating new information. The appellants accepted that the Authority was permitted to do so. Also, new information is to be evaluated in the context of the review material and that the Authority must consider the review material in the performance of the procedural duty as a condition of the substantive review. That is, s 473(b) 'requires an evaluation of the significance of the new information in the context of the referred applicant's claims more generally': Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [105].
Second, there is no reason for considering that the legislature intended to preclude the Authority from making some findings based on the review material and using those findings to inform the evaluation of the new information for the purposes of s 473DD(b)(ii). In DVO16 (at [19]-[20]), in the context of considering the circumstances in which it may be legally unreasonable for the Authority not to exercise its procedural powers, the plurality considered that 'where the referred applicant's testimony as given at a protection interview was incorrectly translated, testimony able to be given by the referred applicant at an interview with the Authority as correctly translated would amount to new information which might well meet [the] conditions for consideration by the Authority [specified in s 473DD] … Faced with translation errors in a recording of a protection interview revealed or suggested by the review material provided by the Secretary … the Authority would have the potential to breach the reasonableness condition implied into its powers to get and consider new information were it to fail to exercise those powers to interview the referred applicant and then to consider the referred applicant's testimony as correctly translated.'
It is implicit in the plurality's reasons in DVO16 that the Authority, in the exercise of its procedural powers, would have to reach conclusions or make findings about the accuracy of the translation in the review materials (incorrect translation) to consider if the new information (correct translation) would meet the criteria specified in s 473DD(b)(ii). In other words, findings would be made on the review materials about, at least, the quality or credibility of the review material that would then be used to inform the extent to which new information was credible personal information.
Third, it is artificial to separate the procedural duty to consider review material for the purpose of the substantive review from consideration of that same material in the exercise of the procedural power to evaluate whether new information meets the criteria specified in s 473DD(b)(ii). Administrative decision-making does not take place in a compartmentalised manner. There is an evaluative continuum. What may commence as a consideration of review material for the purpose of evaluating if new information meets the criteria specified in s 473DD(b)(ii) may end in a conclusion that informs both the evaluation of that new information and ultimately the substantive review decision. Along the continuum, as relevant and available information is considered, a view of facts will emerge with an ever increasing level of certainty until it eventually crystallises into a firm conclusion of the facts. That conclusion will then inform the decision in the substantive review. If, along the continuum, the Authority is satisfied of the criteria specified in s 473DD, then the relevant new information would become available to be considered in the formation of the Authority's view of the facts for the purpose of the substantive review. If not, then the Authority would be confined to consider only the review material and any other new information that meets the s 473DD criteria.
It follows that the Authority must be permitted to consider review material and form views about that material in the performance of its procedural duty. In the course of that consideration, the Authority may begin to reach a view of facts provided in so doing it does not 'go too far'. It is permitted to use those views to inform its consideration of new information and whether that information meets the criteria specified in s 473DD(b)(ii) and, in particular, whether that information is credible new information. However, that is not to say that the manner in which the Authority uses or takes into account views reached on the review material may not result in a failure to exercise the procedural power in s 473DD according to law for other reasons.
For example, a decision to the effect that the Authority is not satisfied of the criteria in s 473DD must be made within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; DVO16 at [19]. Therefore, a decision that new information has not satisfied the criteria specified in s 473DD(b)(ii) based on views formed on review material may involve jurisdictional error if reliance on those findings results in a legally unreasonable conclusion that personal information is not credible. However, the appellants have not asserted that the Authority made any error of that nature.
Likewise, if the new information could affect or change the Authority's view of the facts drawn from the review material or on the credibility of the referred applicant's claims as a whole it may not be a proper exercise of the procedural power in s 473DD to reach views based on review materials and use those views to evaluate the credibility of the new information. Although said in the context of a failure to exercise the power in s 427(1) of Part 7 of the Act, in AYX17 v Minister for Immigration and Border Protection [2018] FCAFC 103; (2018) 262 FCR 317 (at [85]-[87]), Tracey and Mortimer JJ counselled caution before determining that it is open to a decision-maker to conclude that proffered corroborative evidence cannot 'affect' the decision-maker's view of the reliability or credibility of an applicant as it discounts the legitimate purpose of corroborative evidence and tends to suggest a level of prejudgment. Again, the appellants have not asserted that the Authority was in error for failing to consider the extent to which acceptance of the relevant new information may have influenced findings on the credibility of other claims or that otherwise reliance on views formed on the review materials involved an element of pre-judgment concerning the credibility of the personal information relating to appellant AZT22.
Consideration: appellant AZT22 ground 1
It follows from what I have said above that I do not agree with the manner in which the primary judge expressed the approach to the exercise of the substantive power of review in para [45] of the AZT22 judgment. The Authority is required to determine the scope of the materials (review materials and new information) as a condition of the exercise of the substantive power of review. Otherwise, if made in reference to 'views formed on review materials' rather than 'findings in relation to substantive issues', I largely agree with the observations of the primary judge in paras [45]-[48] of the AZT22 judgment. Accordingly, to that extent, my view is that ground 1 is made out. Therefore, the question here is whether the Authority made the error of exercising the substantive power of review without considering if the relevant new information met the criteria in s 473DD(b)(ii).
The Authority's reasons must be read in the context of the reasons as a whole and without an eye keenly attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272. Having regard to that principle, in my view, the Authority has not performed the substantive review duty without having exercised the procedural power and determining what, if any, new information the Authority was obliged to consider in the performance of the substantive review.
The Authority explained in paras [5]-[39] the information before it, for the purposes of performing the substantive review duty (the review material and any new information that it required to consider). In that section of the reasons, the Authority said, in effect, that the statement about the traumatic event was not before the Authority for the purposes of the substantive review duty because it was not satisfied that the criteria specified in s 473DD had been met with respect to that new information. The Authority could have provided the reasons for not being so satisfied at that point, but chose not to do so until later in the reasons. It is understandable why the Authority chose to deal with the relevant new information in that manner because a discussion of the credibility of that information fitted naturally within a discussion of the review material that dealt with the premise of that new information (that appellant BIR22 was in hiding).
In paras [78]-[89], the Authority provided the reasons for its conclusion that appellant AZT22's allegations involving sexual assault were not credible new information. While understandable, choosing to deal with that new information later and mixed in with the Authority's reasons on the substantive review created ambiguity about the Authority's reasons for not being so satisfied and the manner in which the Authority performed, or purported to perform, its statutory duties.
Before coming to the relevant new information, paras [65]-[77] contain the Authority's consideration of the review materials concerning the appellants' evidence about events in Sri Lanka between 2010 and 2012. In para [65], the Authority describes that evidence as 'highly problematic'. In paras [66]-[75], the Authority then summarises the appellants' evidence and identifies various problems arising from that evidence.
In para [67] the Authority indicates that it considered appellant BIR22's evidence about events in 2010 inconsistent and his oral evidence vague. The Authority characterises his responses to questions of the delegate as evasive. The Authority also considered that appellant AZT22's evidence in her TPV interview was not supportive of appellant BIR22's evidence.
In para [75], the Authority identifies inconsistencies between each appellant's evidence, inconsistencies between the oral and written statements of each appellant and that appellant BIR22 did not mention aspects of appellant AZT22's evidence in appellant BIR22's TPV interview. The Authority describes the appellants' evidence as incoherent and lacking in detail. These problems led the Authority to doubt that the appellants 'were recalling a personal experience'. That is, to doubt the credibility of the appellants' evidence. Para [75] also contains the conclusions that the Authority 'was not satisfied that [appellant BIR22] or his family came to adverse attention of the Sri Lankan security services, or any other person or group, in 2012 as claimed' and was 'not satisfied that [appellant BIR22] was in hiding in 2012.'
In para [76], the Authority explains that a number of the concerns described in para [75] were put to the appellants in the TPV interview. The appellants were given a break and an opportunity to discuss them with a representative. Appellant BIR22 then provided an explanation by which he sought to explain one of the inconsistencies between the evidence of the appellants. The Authority found the explanation 'difficult to reconcile' with appellant AZT22's evidence. The Authority notes that '[n]one of the other concerns about their problematic evidence was addressed in the interview'. A written submission was to follow, but the post-TPV interview submission did not address the concerns.
In para [77], the Authority indicates that it also considered if the identified problems with the appellants' evidence could be explained by appellant BIR22's mental state, but considered there was no credible evidence of any psychological condition or a mental state that affected his ability to engage in the TPV process. The Authority also said that consideration had been given to appellant AZT22's evidence about the events of 2012 that were the subject of her new information. The significance of the reference to that evidence is addressed later.
The Authority then turned to consideration of the new information about the traumatic event and sexual assault in 2012. Part of the difficulty with paras [78]-[89] and this part of the Authority's reasons arises because it deals with the relevant new information after setting out its conclusions on the substantive review on the basis of the review material in paras [65]-[77]. Paragraph [86] contains a specific reference to the Authority's consideration of the appellants' evidence about the events of 2012. Therefore, the way the Authority has dealt with the appellants' evidence about the events of 2012 generally and the new information about the alleged sexual assault in 2012 creates the impression that the Authority has used findings made in the substantive review of the material to inform its evaluation of the credibility of the relevant new information. However, that impression is at odds with the manner in which the Authority dealt with all other new information at the outset of its reasons under the heading 'Information before the IAA'.
In my view, paras [65]-[77] must be read as the Authority's consideration of the information it considered was before it for the purposes of the substantive review. That is, the Authority's consideration of the review materials, but not the relevant new information which it had said in para [24] had not met the criteria in s 473DD.
After explaining the reasons the Authority was not satisfied that, amongst other things, appellant BIR22 was in hiding in 2012, at para [77] the Authority said '[i]n coming to these conclusions, I have given consideration to the wife applicant's evidence to the IAA about the events of 2012 (discussed further below), which I do not find particularly corroborative.' What the Authority meant by 'not … particularly corroborative' is not clear. It is also unclear if the 'conclusions' to which the Authority is referring are the conclusions in para [75] that it was 'not satisfied' of key elements of the protection claims, or the conclusions about the credibility of the evidence and the problematic nature of the evidence, or both.
What is 'discussed further below' are the reasons that the Authority did not consider the new information about the alleged sexual assault was credible and, therefore, the reasons it was not information before the Authority. In that context, in my view, the opening words to para [77] cannot be read as the Authority taking into account evidence it has said it has excluded from review in reaching its conclusions on the appellants' evidence of events between 2010 and 2012.
An aspect of s 473DD(b)(ii) is whether the new information 'may have affected the consideration of the referred applicant's claims'. In my view, the opening sentence of para [77] is the Authority indicating that it has also considered if the new information about the alleged sexual assault 'may have affected' the other claims about the events of 2012. In particular, if the new information had the potential to overcome the problems with the evidence described in paras [67], [75] and [76] and could be considered as confirming the key elements of the appellants claims discussed in paras [66]-[74].
While it may be said that evidence is either corroborative or it is not, the substance of the opening sentence is that the Authority has expressed the view that the relevant new information was not considered confirmatory of the appellants' evidence about the events of 2012 more broadly. That is, before considering the credibility of the new information the Authority expressed the view that it was not information that 'may have affected the consideration of' the claims of appellant AZT22 concerning the events of 2012 that were the subject of the discussion in paras [65]-[74] of the Authority's reasons.
It is open to disagree with the Authority's conclusion that the relevant new information was not relevant to, or may not affect or was not corroborative of the broader claims and consider that the conclusion was not rational, logical or legally reasonable. However, appellant AZT22 has not asserted an error of that kind.
The Authority then provided an explanation in paras [78]-[89] of the reasons for its decision that the relevant new information was not 'credible' personal information. The conclusions on the credibility of the new information were informed, in part, by the review material that resulted in the Authority not being satisfied that appellant BIR22 was in hiding in 2012.
Para [86] contains an explanation of the Authority's conclusions on the credibility of the relevant new information and it commences '[i]n respect of the new claims themselves, as noted above, I considered the problems with the wife applicant's and her husband's evidence about the events of 2012 so significant that I was not satisfied the husband was ever in hiding, which significantly undermines the credibility of the new information.' There is ambiguity in that sentence as well. It is unclear whether the Authority considered it was the conclusion on the evidence (not satisfied that appellant BIR22 was in hiding) or the problems with the evidence that undermined the credibility of the new information.
True it is that the first sentence suggests that the Authority has taken into account a conclusion reached in the substantive review of the claims about appellant BIR22 being in hiding in 2012, but, in my view, when that sentence is read in the context of the paragraph and reasons as a whole, it is the 'problems with the wife applicant's and her husband's evidence about the events of 2012' that is the reason given for undermining the credibility of the new information. As noted above, the problems with that evidence are identified in paras [65], [67], [75], [76] and [77]. Paragraph [75] describes most of the problems and ends with the conclusion that the Authority was not satisfied that appellant BIR22 was in hiding in 2012.
The next sentence in para [86] is '[f]urther, aside from the problematic evidence in respect of the events of 2012 already discussed, I have concerns with aspects of the new information.' The Authority then identifies aspects of the new information which it considered were not credible before indicating '[t]his leads me to further doubt the credibility of the new information.' Therefore, the second reason the Authority gives in para [86] was 'aside from the problematic evidence in respect of the events of 2012'. The second reason is not expressed to be aside from not being satisfied that appellant BIR22 was in hiding. That is, the emphasis for the first reason given in para [86] is on the 'problematic' evidence in the review materials not on the conclusion that the Authority reached on that evidence in the substantive review. That is also consistent with the references in para [65] to evidence that was 'highly problematic' and para [76] to 'problematic evidence' that was not addressed. It is also consistent with the reference in para [87] to 'difficulties with the evidence about the events of 2012' there referred to as part of the conclusion that the relevant new information was not credible. In context, therefore, the reference in the first sentence of para [86] to 'so significant that I was not satisfied her husband was ever in hiding' is to underscore the significance of the problems with the evidence rather than indicating that the ultimate conclusion (that the Authority was not satisfied that BIR22 was in hiding) undermined the credibility of the new information.
Again, it is open to disagree with the Authority's conclusion about the credibility of the relevant new information and to consider that it was not rational, logical or legally reasonable for the Authority to conclude that evidence from a person alleging to have been sexually assaulted, who had reasons for not raising that claim at an earlier point in time and whose claim was consistent with country information was not credible even if it were based, in part, on a premise that was founded on problematic or other evidence that was not considered credible or supportive of the other claims made. However, appellant AZT22 has not maintained that an error of that kind was made.
In my view, the Authority's reasons read as a whole without an eye keenly attuned to error do not reveal that the Authority embarked on the substantive review without considering if the relevant new information met the criteria in s 473DD(b)(ii). The AZT22 Authority reasons indicate that the Authority considered the review materials and formed views about the credibility of the appellants' evidence in support of appellant AZT22's protection claims, the Authority used those views as part of its evaluation of the credibility of the relevant new information. That was permissible. While there is ambiguity in the Authority's reasons and I accept that other interpretations are available, appellant AZT22 carried the onus of establishing jurisdictional error on the ground advanced before the primary judge. She has not discharged that onus.
It follows that while I consider that the primary judge made an error in considering that the Authority was permitted to make findings in the exercise of the substantive power of review and to use those findings in the exercise of the procedural power of evaluating if new information met the criteria in s 473DD, I do consider that error has resulted in an erroneous judgment.
Consideration: appellant AZT22 ground 2
The conclusion regarding ground 1 of the notice of appeal makes it strictly unnecessary to consider ground 2 and the issue of materiality. However, since initial preparation of these reasons I have read a draft of the reasons of Banks-Smith and Jackson JJ. As their Honours have reached a different conclusion to me on ground 1, it is appropriate to address the ground on the assumption that the Authority made an error of law in that it considered and made final findings of fact on the review material to the effect the appellant BIR22 was not in hiding in 2012.
If ground 1 of the appeal were upheld, the consequence would be that the Authority failed to exercise the procedural power described in s 473DD according to law. However, such an error would only be jurisdictional error if the error were material. The point of difference between the parties on materiality was whether the relevant question of materiality concerned the exercise of the procedural power in s 473DD or the performance of the substantive review duty.
I agree for the reasons given by Banks-Smith and Jackson JJ that if the Authority made the error of reaching a final conclusion on the facts in the substantive review before considering if the relevant new information satisfied the criteria in s 473DD(b)(ii), then that error was material. Therefore, on that assumption, I would uphold ground 2 of the appeal.
Consideration: appellants BIR22 and BIS22 ground 1
As appellant AZT22 fails on ground 1 of her notice of appeal, appellants BIR22 and BIS22 must also fail on their ground of appeal.
Conclusion
The appeals should be dismissed with costs.
I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate:
Dated: 9 June 2023
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