BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs
[2021] FCCA 81
•27 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BEP17 v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 81
File number(s): PEG 122 of 2019 Judgment of: JUDGE KENDALL Date of judgment: 27 January 2021 Catchwords: MIGRATION – Temporary Protection visa – decision of the Immigration Assessment Authority – whether the IAA was biased – whether the IAA erred in the application of s 473DD of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), Part 7AA, Div 3, ss 5, 36, 46A, 473CB, 473DC, 473DD, 473DE, 473GA, 473GB Cases cited: AUH17 v Minister for Immigration & Border Protection [2018] FCA 388
AUS17 v Minister for Immigration & Border Protection [2020] HCA 37
CNY17 v Minister for Immigration & Border Protection [2019] HCA 50
Craig v State of South Australia (1995) 184 CLR 163
CSR16 v Minister for Immigration & Border Protection [2018] FCA 474
DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784
FIG17 v Minister for Home Affairs [2019] FCA 1105
Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li [2013] HCA 18
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
Hossain v Minister for Immigration & Border Protection [2018] HCA 34
Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Number of paragraphs: 136 Date of hearing: 9 November 2020 and 20 January 2021 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr P Macliver Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 122 of 2019 BETWEEN: BEP17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP. MIGRANT SERVICES & MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
27 JANUARY 2021
THE COURT ORDERS THAT:
1.The application be dismissed.
REASONS FOR JUDGMENT
JUDGE KENDALL
INTRODUCTION
The applicant is a citizen of Sri Lanka (Court Book (“CB”) 3). He arrived in Australia as an unauthorised maritime arrival in October 2012 (CB 168).
On 13 January 2016, the first respondent (the “Minister”) lifted the bar under s 46A of the Migration Act 1958 (Cth) (the “Act”) and invited the applicant to apply for a Protection (subclass 785) visa (the “visa”)(CB 21-28).
On 11 April 2016, the applicant applied for the visa (CB 29-86). The applicant’s claims for protection are as follows:
•The applicant is a Tamil male from the district of Vavuniya, Northern Province;
•In 2006, he lived in an area controlled by the LTTE (Liberation Tigers of Tamil Eelam). Between August and October shells fell within 500 metres of his family home and destroyed some crops;
•Between October 2006 and mid-2009, the applicant and his family were displaced due to the conflict;
•In May 2009, following the end of the conflict, the applicant and his family stayed in a camp for internally displaced persons for six months before returning to their family home in P;
•On return to P, the applicant discovered that the family home had been destroyed and that the LTTE had built bunkers on the land. The LTTE had been living in the family home. When his family discovered boxes of undetonated bombs, shells and magazines on the land they contacted the army who came and collected the boxes;
•In 2011, the army came to the applicant’s property each month for about a year. Because they had found weapons on the land, they believed the applicant had more information about weapons, jewellery or money hidden in the area. He denied knowledge of these things;
•In March 2012, the applicant was taken to an army camp and interrogated about the location of weapons, jewellery, and money. He was hung up-side-down and beaten to the point where he lost consciousness. After being at the camp for three hours, he was driven back to his house. He was told not to tell anyone what had happened. He was also given a telephone number that he could contact if he came to know any information about weapons, jewellery, or money;
•During the next month, the applicant was too scared to stay at home so he slept at his mother’s house or his sister’s house and only visited his family during the day. When not at home, the army came and questioned his neighbours and family about him. On one occasion, the army threatened to kill his wife and children if he did not return;
•About two months later, the applicant rented a house in Vavuniya, enrolled his children in school, and made plans to leave Sri Lanka. Once his children were settled and travel arrangements made, he left the country;
•If returned to Sri Lanka, the applicant fears he will be interrogated and killed. The Sri Lankan government believes he is in the LTTE because he lived in an area controlled by the LTTE and because the LTTE lived in his house.
The applicant attended an interview before a Ministerial delegate on 12 September 2016 (CB 97). He provided a number of documents to the delegate during the course of that interview (CB 123-165).
On 14 September 2016, the delegate refused to grant the applicant the visa (CB 168-175).
The applicant’s matter was referred to the Immigration Assessment Authority (the “IAA”) on 15 September 2016 (CB 177-189).
On 29 September 2016, the applicant provided the IAA with new information (CB 192-198).
On 8 March 2017, the IAA affirmed the delegate’s decision (CB 208-223).
The IAA’s decision was appealed to this Court on 21 March 2017.
On 12 February 2019, this Court, by consent, remitted the matter to the IAA for reconsideration. The Minister conceded that the previous IAA had misapplied s 473DD(a) of the Act (CB 224-225).
On 13 March 2019, the IAA affirmed the decision not to grant the applicant the visa (CB 238-254).
On 7 April 2019, the applicant again applied to this Court for judicial review of a decision of the IAA dated 13 March 2019.
The matter was first listed for hearing on 23 June 2020. On that occasion, the applicant failed to attend. The Court made orders dismissing the applicant’s application for judicial review pursuant to r 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (the “Rules”).
On 27 July 2020, the applicant filed an application to set aside the Court’s orders pursuant to r 16.05(2)(a) of the Rules.
On 22 September 2020, the Court set aside the orders made on 23 June 2020 and reinstated the matter for final hearing.
IAA’S DECISION
To succeed before this Court, the applicant must demonstrate that the IAA fell into jurisdictional error. It is thus useful to outline the IAA’s decision in detail.
It is not disputed that the applicant satisfies the criteria in s 5(1) of the Act for a “fast track applicant”. This is important in relation to allegations of jurisdictional error in proceedings before the IAA as the Act limits what this Court can and cannot do when determining whether there is jurisdictional error on the part of the IAA.
Section 473CB(1) of the Act requires the Secretary of the Minister’s Department to give to the IAA certain material, known as the “review material”. This includes:
(a)a statement of the findings of fact made by the decision maker, the evidence relied upon and reasons of the decision maker;
(b)material provided by the “referred applicant” to the delegate before a decision was made;
(c)any other material that is in the Secretary’s “possession or control” and is “considered by the Secretary (at the time the decision is referred to the IAA) to be relevant to the review”; and
(d)the referred applicant’s contact details.
The IAA is generally required to conduct its review of the delegate’s decision on the basis of the material that was before the delegate at the time the decision was made.
The IAA can, however, obtain “new information” - defined as information that was not before the delegate and that the IAA considers “may be relevant”: the Act, s 473DC(1). Applicants may also provide “new information” to the IAA and ask that it take that information into account.
When the IAA does obtain or receive new information, the IAA cannot consider it for the purposes of making a decision on the review unless certain conditions are met. Those conditions are set out in s 473DD of the Act. That section provides:
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.
Division 3 of Part 7AA of the Act deals with the conduct of reviews by the IAA. Section 473DA(1) of the Act stipulates that this Division, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA.
The IAA’s decision in this matter is 17 pages long and spans 58 paragraphs.
At [1]-[3], the IAA summarised the procedural history of the matter.
The IAA confirmed that it had had regard to the material referred by the Secretary pursuant to s 473CB of the Act. The IAA then noted that four pieces of new information had been provided (at [5]), but noted that the applicant had not provided an explanation about why this information was not provided to the delegate and how it was relevant to his case. The “new information” included:
(a)an undated Torture and Trauma Assessment Report;
(b)an undated letter from a Sri Lankan Member of Parliament;
(c)a letter dated 1 December 2012 from a Sri Lankan Attorney-at-Law; and
(d)an untranslated letter from an office in Sri Lanka.
In relation to this information, the IAA found that:
(a)it would consider the Torture and Trauma Assessment Report (at [7]);
(b)the undated letter from the Member of Parliament and the letter from the Attorney-at-Law did not satisfy s 473DD(b) of the Act and were not considered; and
(c)there was no explanation about what the untranslated letter related to or what it was relevant to and that there were no exceptional circumstances to justify considering it. The IAA did not consider the untranslated letter.
The IAA was satisfied that there were exceptional circumstances that warranted obtaining and considering updated country information reports as a period of time had elapsed since the delegate’s decision (at [13]).
The IAA accepted that the applicant was a Tamil male from the Northern Province, that he lived in an area controlled by the Liberation Tigers of Tamil Eelam (the “LTTE”), that he and his family were displaced between October 2006 and mid-2009 and that they stayed in a camp for internally displaced persons from May 2009 to November 2009 (at [17]-[19]).
The IAA also accepted that the applicant had returned to his family home to find that it had been utilised by the LTTE and that the Sri Lankan Army (the “SLA”) removed weapons from the home. The applicant’s evidence was that neither he nor his family were ever involved with the LTTE. The IAA accepted this evidence. The IAA also accepted that the applicant was questioned by the SLA from 2011 about any knowledge he might have of the LTTE and that he was detained, beaten and interrogated for three hours by the SLA in March 2012 (at [20]-[21]).
The IAA had concerns with events which the applicant claimed occurred after the incident in March 2012. It noted that the applicant’s evidence in the entry interview, the visa application and the interview with the delegate were all inconsistent (at [22]-[25]).
The IAA stated:
26. When considered cumulatively, the above evidence leads me to conclude that the applicant was not recalling a genuine personal experience in relation to events that transpired following his release from the army in March 2012. In particular, the applicant’s claim that he moved with his family to Vavuniya in around May/June 2012 due to harassment and threats from the army is not supported by his evidence in respect of his then residential address and place of employment in the entry interview. I also note the applicant’s evidence in the entry interview was that his wife continued to live on the family property
At [27]-[28], the IAA found that the explanation provided by the applicant’s representative in relation to any inconsistencies was generic in nature and did not adequately explain these inconsistencies.
The IAA considered it implausible that the applicant was able to evade the Sri Lankan authorities by sleeping at the homes of his relatives. It determined that if the applicant was a person of ongoing interest to the Sri Lankan authorities in March 2012 due to suspected LTTE links, the SLA would not have released him after three hours and that if he continued to be of adverse interest to the authorities after March 2012, the authorities would have been able to contact or apprehend the applicant at his home (at [29]).
The IAA was not satisfied that the applicant was a person of ongoing adverse interest to the Sri Lankan authorities following his brief period of detention in March 2012. It also did not accept that the applicant moved away from the family home, or that his family was approached and threatened by the SLA in the months that followed. The IAA was not satisfied that the applicant was a person of adverse interest to the Sri Lankan authorities due to any suspected LTTE links, due to the LTTE’s occupation of his property while he was displaced or due to the authorities being aware that the LTTE had stored weapons and other items on his land. Any chance that the applicant faced because of these events was found to be remote (at [30]).
The IAA referred to country information concerning the situation for Tamils, Tamils from a former LTTE controlled area and those with any actual or imputed links to the LTTE arising from this (at [31]-[37]). The IAA was not satisfied that the applicant faced a real chance of harm individually or cumulatively as a result of his background, ethnicity, prior residence in an area previously controlled by the LTTE or any actual or imputed LTTE links (at [38]).
The IAA accepted that the applicant would return to Sri Lanka as a failed asylum seeker who had departed Sri Lanka illegally (at [39]).
The IAA was not satisfied, based on the country information, that the applicant faced a real chance of harm for reason of being a failed asylum seeker or a failed Tamil asylum seeker (at [40]-[43]).
After considering the country information (at [44]-[46]), the IAA accepted that the applicant would be charged and fined under the Immigrants and Emigrants Act as a result of his illegal departure. However, this was found not to amount to serious harm and to be a law of general application (at [47]-[48]). It was noted that if the applicant chose to plead not guilty, any period of brief detention would not amount to serious harm and there was no real chance the applicant would face imprisonment (at [47]). The IAA was not satisfied that the applicant would suffer persecution as a result of being an illegal departee.
The IAA was not satisfied that the applicant met the criteria in s 36(2)(a) (at [49]-[50]).
The IAA relied on its findings in relation to the refugee criterion to find that the applicant did not face a real risk of significant harm for reason of his previous profile or interactions with the Sri Lanka authorities prior to departing Sri Lanka in 2012. Nor did he face a real risk of significant harm because of his ethnicity, his previous place of residence, or because he was a returning asylum seeker (at [53]).
The IAA found that any monitoring or societal discrimination the applicant might receive because he is a Tamil or a returning asylum seeker would be of a low level and would not amount to significant harm (at [54]).
At [55]-[56], the IAA found that the processes the applicant would be subject to as an illegal departee on return and the imposition of any fine or short period of detention did not amount to significant harm.
The IAA was not satisfied that the applicant met s 36(2)(aa) of the Act.
The IAA affirmed the decision not to grant the applicant the visa.
PROCEEDINGS IN THIS COURT
The applicant’s application for judicial review dated 7 April 2019 contains three grounds of review as follows:
1. Jurisdictional error.
2. Bias based on conscious or unconscious prejudice by ignoring relevant materials.
3. Identifying a wrong issue on a wrong question
The applicant was given an opportunity to file an amended application, any affidavit evidence and a written outline of submissions on two occasions. No further materials were provided.
The materials before the Court thus include the applicant’s application for judicial review dated 7 April 2019, a Court Book numbering 260 pages (marked as Exhibit 1), a copy of Biodata from an arrival interview which was handed up by the applicant (marked as Exhibit 2), an affidavit of Jonathon Papalia affirmed 21 September 2020 and written outlines of submissions from the Minister dated 13 March 2020, 2 October 2020 and 23 November 2020.
At the hearing on 9 November 2020, the applicant appeared before the Court without legal representation. He was assisted by a Tamil interpreter. The Court confirmed with the applicant that he had received a copy of the Court Book and the written submissions.
Noting the remarks of the Federal Court in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain the matters that are said to give rise to an appeal (or review), the Court gave the applicant an opportunity to outline orally what he thought the IAA “did wrong”.
To assist the applicant, the Court explained that it needed to determine whether the IAA had fallen into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort they most commonly include, but are not limited to, the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
(b)where the decision-maker ignores relevant material: Craig at [198];
(c)where the decision-maker relies on irrelevant material: Craig at [198];
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
(e)where the decision maker fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the IAA’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the applicant the visa he now seeks. Rather, the Court can only undertake an analysis of whether the IAA made a material error in coming to the conclusion that it did.
Against this background, the applicant explained that the IAA did not review his application properly as “there were documents relating to another person on his file”. He stressed that because of this error, he “has had four years of his time wasted”. Further, he said that he was told that this would be “looked into” but “nothing ever happened”.
The Court will address these submissions below within the context of ground 2.
After the applicant had addressed the Court on 9 November 2020, Counsel for the Minister indicated that he wished to make submissions on the recent High Court decision in in AUS17 v Minister for Immigration & Border Protection [2020] HCA 37 (“AUS17”). This decision was not addressed in the Minister’s written submissions. Noting that the applicant was unrepresented and the decision the Minister proposed to address was jurisprudentially complex, the Court indicated it would be preferable for Counsel to make submissions in writing, rather than orally. This would allow the applicant more time to digest what was being said and make any further submissions that he might want to make.
Written submissions from the Minister were received on 23 November 2020.
The matter returned on 20 January 2021. Counsel for the Minister summarised the Minister’s written submissions in relation to AUS17 and the Court again asked the applicant if there was anything further that he wished to add or any other “mistakes” he wished to highlight. The applicant again repeated the matters he had raised at the previous hearing on 9 November 2020. The applicant also indicated that he did not understand the decision in AUS17 or the “legal matters” that Mr Macliver was discussing. This is not at all surprising. The jurisprudence relevant to the IAA is difficult. For those without any legal knowledge, it is even more difficult. Nonetheless, Mr Macliver’s summary was, in the Court’s view, couched in language that allowed for a general understanding of the issues relevant to this matter. Further, the applicant had had a further two months to seek legal assistance in relation the decision in AUS17 and had not done so. While sympathetic to the needs of all applicants who appear without legal assistance, the Court is nonetheless satisfied that the applicant had been given a reasonable opportunity to participate.
CONSIDERATION
Ground 1
Ground 1 simply provides (without alteration):
Jurisdicational error.
Without particulars it is difficult to identify what “error” the applicant is referring to.
The Court has considered the IAA’s decision in detail and makes the following observations:
(a)the IAA acted in accordance with the procedural fairness obligations in div 3 of pt 7AA. There is nothing in the decision that arguably enlivens ss 473DC(3) or 473DE of the Act (noting that country information falls into the exception of s 473DE(3)(c) of the Act);
(b)the IAA closely considered each of the applicant’s claims. It also considered claims that the applicant did not expressly make but which the delegate had considered (for example, harm on the basis of being a failed asylum seeker and as an illegal departee);
(c)the IAA confirmed that it had before it all of the material referred under s 473CB and detailed the applicant’s evidence before the delegate;
(d)the findings the IAA made about the events that the applicant experienced after March 2012 were logical and reasonable. The IAA referred to inconsistencies, noted that the evidence was unconvincing and also took into account the applicant’s explanations for these matters. Overall, however, the IAA did not consider these explanations to be satisfactory. It was entirely open for the IAA to make that determination; and
(e)the IAA relied on country information concerning the applicant’s claims. It specifically referenced the applicant’s circumstances and evidence and came to a rational and informed conclusion about whether the applicant met the criterion to be granted the visa.
No error is identified. Ground 1 is, accordingly, dismissed.
Ground 2
Ground 2 provides:
Bias based on conscious or unconscious prejudice by ignoring relevant materials.
This ground advances two arguments. The first alleges bias. The second suggests that the IAA ignored relevant material.
It is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for the applicant to establish that there is an arguable case that :
(a)the IAA, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the IAA, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the IAA had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
The applicant gave the Court a photograph of a Biodata page that related to a third party (Exhibit 2). He explained that this document was included in the Court Book in relation to the matter that had previously been remitted to the IAA.
In CNY17 v Minister for Immigration & Border Protection [2019] HCA 50 (“CNY17”), the High Court held that, in the context of a review by the IAA, if there are irrelevant materials that are prejudicial to an applicant before the IAA, then this may lead a decision-maker to display bias. These materials include materials that might cause someone to view an individual as a person who should not be granted a visa or suggest that the person was not credible and should not be believed.
The affidavit of Mr Papalia provides the following information relevant to this issue:
(a)the Secretary gave the IAA (pursuant to s 473CB of the Act) a copy of a bio-data arrival interview of an unrelated third party. Annexure JP-1 of the affidavit is a complete copy of that arrival interview;
(b)on 7 March 2017, the IAA wrote to the Secretary asking if this document was a mistake (CB 203-204). The Secretary confirmed that it should not have been referred pursuant to s 473CB. The IAA asked that the review material be resent though this did not occur;
(c)when the applicant commenced the previous proceedings in this Court, the Court Book included a copy of Exhibit 2. After the Minister’s solicitors identified that the document related to a third party, with the consent of the applicant the Court Book was uplifted and replaced with a copy that did not include Exhibit 2; and
(d)when the applicant filed the application the subject of these proceedings, the Minister deliberately omitted the “irrelevant arrival interview”.
In his oral submissions to this Court the applicant referred to documents that related to “another person”. He wanted to know whether this had been “looked into”. He referred to these documents as documents that were provided in error.
The issue here is whether this “irrelevant” material was “prejudicial” such that it could give rise to a reasonable apprehension of bias. If so, this is an error of the kind this Court can address.
The Court accepts that the irrelevant arrival interview (being Exhibit 2) was before the IAA.
Here, however, there is no reason to believe that the IAA was consciously or subconsciously biased as a result of the inclusion of Exhibit 2 in the review materials.
The IAA itself identified that Exhibit 2 appeared to be referred to it in error and was of no relevance. The IAA asked the Secretary to confirm whether this document should have been in the materials referred to it as there was no apparent link or relevance to the applicant’s claims. The Secretary confirmed that the document was sent in error.
In circumstances where the IAA has acknowledged that Exhibit 2 was of no apparent relevance and that fact was confirmed, the Court is satisfied that a fair minded reasonable observer would not consider the IAA to have been consciously or subconsciously biased by the inclusion of this document.
Having reviewed Exhibit 2 in full, there is nothing in the content of that document to suggest that it was prejudicial to the applicant and there is no indication that the IAA had any regard to Exhibit 2 in a way that can be seen to be prejudicial. All IAA references to the evidence were references which pertained to the applicant’s own claims and his evidence.
Exhibit 2, while irrelevant, was not prejudicial and the Court does not consider that a fair minded reasonable observer, aware of the facts (including that the IAA had itself questioned the relevance of Exhibit 2), would infer that the IAA was consciously or subconsciously biased by its content.
The IAA’s decision as a whole demonstrates a thorough and analytical assessment of the applicant’s claims and evidence - an assessment which resulted in the IAA accepting the applicant’s claims and evidence on a number of occasions.
The Court notes that, in his oral submissions, the applicant questioned why the Minister conceded that there was an error in the IAA matter that came previously came before the Court and suggested that this was because of these irrelevant documents.
The Minister did not concede previously because of the irrelevant documents. The Minister did so because there was clearly an error of law relating to the application of s 473DD of the Act. The ‘irrelevant documents” were of no relevance to the disposition of the matter on the previous occasion.
Insofar as ground 2 alleges bias, it is dismissed.
In relation to the argument that the IAA ignored relevant materials, without particulars it is difficult for the Court to determine what the applicant is suggesting.
As noted above, the IAA took into account each of the applicant’s claims and referred extensively to the material that the applicant had provided. Further, the IAA assessed country information that was directly relevant to the applicant’s claims for protection and the IAA’s assessment generally.
If the applicant is stating that the IAA ignored the letters from the Member of Parliament and the Attorney-at Law and the untranslated document, this is correct. However, having found that these documents did not meet s 473DD of the Act, these documents were not “relevant materials” and the IAA could not (because it was barred by statute) consider them.
The Court will consider the IAA’s application of s 473DD in detail below when it considers the “Additional Issue”. At this stage, however, it cannot be said that the IAA “ignored any relevant materials”.
Ground 2 is, accordingly, dismissed
Ground 3
Ground 3 provides:
Identifying a wrong issue on a wrong question.
It is unclear what “error” the applicant is alleging occurred here.
The issue for the IAA was whether the applicant had a well-founded fear of persecution or whether there was a real risk of significant harm if he returned to Sri Lanka. The IAA clearly understood the task it was asked to undertake.
Here, the IAA correctly summarised the principles relevant to the visa. It utilised the language of the statute and it understood the test to be applied. It is noted that the IAA used the term “remote” (at [30]). This indicates that the IAA was well aware that a real chance could be something less than 10 per cent.
The IAA undertook a detailed and analytical consideration of the materials that were before it in determining whether the applicant satisfied the criterion for the visa. The IAA was not satisfied that the applicant met the criterion and gave detailed reasons which have an evident and intelligible justification.
Ground 3 is, accordingly, dismissed.
The “Additional Issue”
As noted above, at the hearing of this matter on 9 November 2020, the Minister raised a potential “additional issue” arising from the High Court decision in AUS17.
AUS17 clarified the approach the IAA must take when assessing whether any “new information” meets the requirements of s 473DD of the Act.
For ease of reference, s 473DD provides:
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.
The requirements of s 473DD are cumulative. That is, an applicant must meet s 473DD(a) and one of the sub criteria in s 473DD(b) before the IAA can consider any “new information”. If the applicant does not meet either one of (a) or (b), the IAA cannot consider the information. This is uncontroversial: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 264 CLR 217.
In AUS17, the High Court was concerned with the construction of s 473DD and the approach the IAA must take in applying s 473DD – that is, what the IAA must do when assessing new information. Relevantly, the majority of the High Court explained:
10. Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
11.Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
12. The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non‑performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).
Having so determined, the High Court found that the IAA in that matter had indeed erred.
In AUS17, the IAA stated as follows in relation to the “new information” the appellant had provided:
I accept the letter of support from [omitted] could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information.
The IAA had considered s 473DD(b)(i) and s 473DD(a). However, the IAA had not considered s 473DD(b)(ii). Its failure to consider this sub criterion and, if it was found that s 473DD(b)(ii) was met, to then take that positive assessment into account when considering if there were “exceptional circumstances” amounted to jurisdictional error.
The Court now turns to consider whether the IAA’s approach in the matter before it here involves any error of the sort the High Court seeks to address in AUS17.
Here, the applicant provided four pieces of “new information”:
(a)an undated Torture and Trauma Assessment Report;
(b)an undated letter from a Sri Lankan Member of Parliament;
(c)a letter dated 1 December 2012 from a Sri Lankan Attorney-at-Law; and
(d)an untranslated letter from an office in Sri Lanka.
Each of these pieces of evidence will be assessed below in determining whether an error arises.
The undated Torture and Trauma Assessment Report
In relation to the undated Torture and Trauma Assessment Report, the IAA found that s 473DD was met and it considered this information. The IAA stated:
7. The ASeTTs report states that the applicant attended five counselling sessions up until 11 February 2013 while in immigration detention. The report is about the applicant’s psychological presentation in early 2013 and recommends that further assessment be undertaken to determine if he should be exempt from transfer to a regional processing country and/or if he should be released into the community. While the applicant has not provided any explanation as to how this information relates to his protection claims, I note that in one part of the report the writer states ‘[the applicant] is identified to have a torture and trauma history’. There is no further information provided as to what the applicant reported to the counsellor/s in respect of events in Sri Lanka. According to the ‘Client Presentation Summary’, the applicant reported facing difficulty due to worry about his family. To the extent that the report provides some level of corroboration of the applicant’s claim that he suffered harm in Sri Lanka, I am satisfied that there are exceptional circumstances to justify considering it.
The Minister submits that the IAA has here adhered to principles detailed in AUS17 as it is clear that the IAA considered that the information provided “some level of corroboration” (thus satisfying s 473DD(b)(ii)) and then found that exceptional circumstances existed.
The Court accepts the Minister’s submission.
The Court further notes that in light of the positive finding (i.e., that the IAA could (and did) consider the information), any error in the application of s 473DD could not have been material to the review. The IAA accepted that the applicant suffered trauma and torture as indicated by the report. Accordingly, the consideration of the report (whether correctly or incorrectly) could not have deprived the applicant of a successful outcome.
No error arises in relation to the Torture and Trauma Assessment Report.
The undated letter from a Sri Lankan Member of Parliament and letter dated 1 December 2012 from a Sri Lankan Attorney-at-Law
In relation to the undated letter from a Sri Lankan Member of Parliament and the letter dated 1 December 2012 from a Sri Lankan Attorney-at-Law, it is again clear that the IAA adopted the correct legal approach.
In relation to both letters, the IAA first considered s 473DD(b)(i) as follows:
8. The undated letter from [omitted] relates to events that purportedly transpired in 2012. I note in the applicant’s statement of protection claims (TPV statement) provided with his TPV application, he referred to the provision of a letter from the Sri Lankan parliament that he said was being provided as evidence of his identity. It is not clear if this is the same letter as I note that no letter from the Sri Lankan parliament was provided to the delegate. In any case, the letter from the MP relates to events that pre-date the delegate’s decision and I am not satisfied that this information could not have been provided to the Minister before the delegate made the decision…
9. The letter from [omitted] states that he is an Attorney-At-Law and that the applicant is his client. He states that he has written the letter at the request of the applicant’s relatives. The letter pre-dates the delegate’s decision by over four years and I am not satisfied that this information could not have been provided to the Minister…
Clearly, the IAA has positively determined that the letters were not provided to the delegate and that, as they pre-dated the delegate’s decision, they could have been provided to the delegate. The IAA has properly applied s 473DD(b)(i).
The IAA then proceeded to determine if either letter met s 473DD(b)(ii):
8.…Turning now to whether I consider this new information is credible, in the sense of capable of being believed, I have considered the applicant’s previous evidence, which I find, overall, inconsistent with parts of the letter.
9.… The letter also provides information inconsistent with the applicant’s previous evidence.
10. Both the MP and Attorney-At-Law state that the applicant approached them in August 2012 to report that unknown persons or an armed group wearing army and civilian clothing came to his home on 22 August 2012 in search of him and/or threatened his family that they would be killed. The letters also state that the applicant reported to them that he was arrested by the army on 5 March 2012.
11. I consider the information that the applicant’s family were approached and threatened in their family home by an unknown armed group on 22 August 2012 inconsistent with the applicant’s claims before the delegate, which leads to be doubt the reliability of these letters. I also consider that if it were true that the applicant’s family were threatened with death at the family home on 22 August 2012 by unknown persons, that the applicant would have mentioned this significant incident at some point throughout the TPV application process. Significantly, I note the applicant’s evidence in his interview with the delegate on 12 September 2016 (TPV interview) was that two or three months following his claimed detention by the army in March 2012 the authorities came looking for his family but they weren’t there. I also note the applicant’s evidence in his TPV statement that he didn’t tell anybody about his March 2012 detention inconsistent with the information in the letters. Given the above, I am not satisfied that the letters purportedly written by a MP and Attorney-At-Law constitute credible personal information.
Here, the IAA referred to a number of inconsistencies between the applicant’s own evidence and what was stated in the letters – as well as its concerns about the omission of a “significant incident” from the applicant’s previous evidence. It is apparent that the IAA was considering whether the letters, at the “preliminary stage”, were “capable of being believed” and had determined that, in light of the concerns it had, they were not: CSR16 v Minister for Immigration & Border Protection [2018] FCA 474 at [38]-[42].
The IAA’s application of s 473DD(b)(ii) to the new information in this regard was entirely orthodox.
Having expressly found that neither criterion in s 473DD(b) was satisfied, the IAA did not need to consider s 473DD(a). As stated by the High Court in AUS17, doing so would be “redundant”. Here, the IAA’s approach was entirely consistent with the approach now required by AUS17.
The untranslated letter from an office in Sri Lanka
The final piece of new information provided to the IAA was an untranslated letter from an office in Sri Lanka. The IAA stated:
12. The letter from [omitted], dated 10 July 1998, is written in a language other than English and no translation is provided. The applicant has provided no explanation as to the relevance of this document to his case. It appears to relate to events that occurred in 1998 or before, though I note that he has not advanced any claims in respect of events that occurred during this period. The applicant has not pointed to any exceptional circumstances that may justify considering this information, and none are evident to me. I am not satisfied that there are exceptional circumstances to justify consideration of this information.
The Minister submits that while the IAA does not “explicitly” state that s 473DD(b) is not satisfied, it is nonetheless “implicit” that the IAA has found that neither limb is satisfied. The Minister contends:
(a)given that the information related to events more than 18 years prior to the delegate’s decision and there was no explanation by the applicant as to why the letter had not been provided before the delegate’s decision, there was simply no basis upon which the IAA could have been satisfied that s 473DD(b)(i) was met. This is also implicit from the fact that the IAA expressly found that the two other letters did not meet s 473DD(b)(i) and those letters were dated after this letter; and
(b)in stating that no translation had been provided, that the applicant had provided no explanation of the relevance of the document to his case and had not advanced any claims in respect of events that occurred prior to 1998, the IAA can be taken to have impliedly found that it was not satisfied that the information in the letter was credible personal information which was not previously known which, had it been known, may have affected the consideration of the applicant’s claims as per s 473DD(b)(ii).
The Minister further submits that the IAA’s statement that there were no “exceptional circumstances” was “unnecessary”.
The Court accepts that it is not necessary for the IAA to expressly state that a particular criterion is not satisfied. It may be apparent from the decision that the IAA has made such a finding even though there is no statement in express terms. It may be implicit that the IAA has considered and found that the criterion is not met. This may be the case where, for example, it is obvious or “plain” from the document itself. In AUS17, Justice Edelman refers to country information (albeit in a different context per se) being a “plain” example of where s 473DD(b)(ii) is not met. It is apparent that country information, if provided by an applicant, will not meet s 473DD(b)(ii) by its very nature.
In FIG17 v Minister for Home Affairs [2019] FCA 1105 at [38], it was stated:
The submissions in the Federal Circuit Court also argued in the alternative that the Authority had failed to consider the criterion in s 473DD(b)(i) at all, because it did not make an express finding that that provision was not satisfied… Plainly the Authority did turn its mind to s 473DD(b)(i), and considered that it was not satisfied in the case of the statutory declarations. It did not need to say so in as many words.
The Court notes that the High Court in AUS17 refers to the IAA “taking the outcome of that assessment” (i.e., the assessment of s 473DD(b)) into account in determining s 473DD(a). The use of the term “outcome” suggests a clear finding. The Court is not prepared to infer that the “outcome” of the assessment must be express. It could be implicit. However, such an inference must clearly and unambiguously arise.
The question here is whether the IAA’s reasons can be read as implicitly finding that s 473DD(b) was not met.
It strikes the Court as “odd” that the IAA would explicitly refer to “exceptional circumstances” if it has found that s 473DD(b) was not satisfied. As shown by the IAA’s assessment of the undated letter from a Sri Lankan Member of Parliament and the letter dated 1 December 2012 from a Sri Lankan Attorney-at-Law, the IAA clearly recognised that it was unnecessary to consider s 473DD(a) if s 473DD(b) was not satisfied.
Nonetheless, the Court is satisfied that the Minister is correct in stating that the IAA implicitly found that neither s 473DD(b) is met.
The Court notes that it has been said that the failure to provide an explanation for why the new information was not provided and its importance can, alone, be sufficient to infer that s 473DD(b) is not met: AUH17 v Minister for Immigration & Border Protection [2018] FCA 388 at [33]. Whether this is the case will, however, depend upon the content of the new information itself (for example, the document itself may self-evidently explain why it meets the requirements of s 473DD(b)).
Here, it is clear that the letter pre-dates the delegate’s decision (the date alone indicates this). Given that the document is untranslated, there is nothing on its face to explain why it could not have been provided earlier and the applicant provided no explanation as to why he had not provided it earlier (at [6]).
The IAA concluded, in relation to the undated letter from a Sri Lankan Member of Parliament and the letter dated 1 December 2012 from a Sri Lankan Attorney-at-Law, that s 473DD(b)(i) was not met. In both circumstances, the IAA clearly bases its finding that s 473DD(b)(i) was not met entirely on the fact that the letters pre-dated the delegate’s decision and there was no explanation provided. Here, in relation to the untranslated letter the IAA has clearly done the same. It did not need to say so in as many words.
In relation to s 473DD(b)(ii), it is noteworthy that the document was untranslated. Clearly, this would inhibit the IAA from determining and being satisfied (again in the absence of an explanation) whether what is stated in the letter was in fact “credible personal information” which could have affected the delegate’s decision.
On its face the letter related to a period in 1998. As the IAA noted, such a date had had no apparent relevance to any of the applicant’s claims. Accordingly, the IAA could not be satisfied that the information was “personal” to the applicant where it had no link to any information previously provided or whether it could have affected the delegate’s decision (as the content of the information was unknown).
It is plain from the second and third sentences of [12] that the IAA did turn its mind to s 473DD(b)(ii). It is for the applicant to satisfy the IAA that s 473DD(b) is met. The IAA identified the reasons why it could not reach a state of satisfaction in relation to s 473DD(b)(ii). This is enough, in the Court’s view, to indicate that the IAA was not, or was unable to be, satisfied that s 473DD(b)(ii) was met.
As noted, it strikes the Court as “odd” that the IAA also considered whether there were “exceptional circumstances”. This was unnecessary. The Court is prepared to infer that the IAA did so mistakenly or out of an abundance of caution (for example, to also address why it did not obtain a translation of the document or ask the applicant to do so).
Nonetheless, this does not amount to jurisdictional error. The additional assessment could not have deprived the applicant of a successful outcome as the IAA had already found that the information did not meet s 473DD(b) and it could not be considered in any event.
Here, the Court is satisfied that the IAA has adopted the correct approach as per AUS17 in relation to the untranslated letter.
The Court notes that the Minister submitted that if there was an error in relation to the untranslated letter (for example, if the Court did not accept that there is an inferred finding that s 473DD(b) is not met) then, in the circumstances of this case, this would not be a jurisdictional error as it could not have realistically deprived the applicant of a successful outcome.
The Court agrees. In light of the IAA’s statement at [7] (i.e., that the untranslated letter pre-dates the delegate’s decision and no explanation is provided), the IAA’s findings made in relation to the other new information and the remarks made at [12] (i.e., that the document is dated in 1998 and had no apparent relevance to the applicant’s claims), the IAA could not, in these circumstances, have reasonably been satisfied that s 473DD(b) was met: Hossain v Minister for Immigration & Border Protection [2018] HCA 34.
Any error was, therefore, immaterial and could not amount to jurisdictional error.
On the basis of the above, the Court is satisfied that the Additional Issue does not raise any error. The IAA properly approached its assessment of the new information in line with the High Court’s authority in AUS17. In the event the Court is wrong, the Court is satisfied that any error was nonetheless immaterial to the outcome of the review.
CONCLUSION
The judicial review application has failed to identify any jurisdictional error in relation to the IAA’s decision. The Court has otherwise been unable to identify any jurisdictional error in the IAA’s decision.
The application is, accordingly, dismissed.
I certify that the preceding one hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 27 January 2021
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