BIR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2020] FCCA 3325
•10 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
BIR19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 3325
File number(s): SYG 787 of 2019 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 10 December 2020 Catchwords: MIGRATION – application for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to decision of Immigration Assessment Authority (Authority) affirming decision not to grant Safe Haven Enterprise visa – whether information the Authority considered without first considering in relation to that information whether s.473DD of the Act was satisfied was “new information” – whether the Secretary failed to consider whether information was relevant to the review or if the Secretary did consider such information whether the Secretary’s decision not to consider that material relevant to the review was unreasonable – whether the Secretary’s having provided to the Authority irrelevant material gave rise to a reasonable apprehension of bias – no jurisdictional error. Legislation: Federal Circuit Court Rules 2001 (Cth), Sch 1, Pt 3
Migration Act 1958 (Cth), ss 5J, 56, 359A, 424A, 473CA, 473CB(1), 473DD, 473DE, 473FB(5), 476
Cases cited: AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50
DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220
EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180
FKP17 & Ors v Minister for Immigration & Anor [2018] FCCA 2053
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29
Minister for Immigration and Border Protection v CED16 [2020] HCA 24
Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Number of paragraphs: 54 Date of hearing: 12 May 2020 Place: Sydney Counsel for the Applicant: Mr R Chia, by video Counsel for the First Respondent: Mr J Kay Hoyle, by video Solicitors for the First Respondent: Mills Oakley Lawyers ORDERS
SYG 787 of 2019 BETWEEN: BIR19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
10 DECEMBER 2020
THE COURT ORDERS THAT:
1.The application is dismissed.
2.Subject to order 3, the applicant pay the first respondent’s costs set in the amount of $7,467.
3.The parties have liberty to apply within 21 days after the day on which these orders are pronounced to vary or discharge order 2.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Authority) affirming a decision of a delegate of the first respondent not to grant the applicant a Safe Haven Enterprise visa (SHEV).
BACKGROUND
The applicant is a citizen of Sri Lanka. He arrived in Australia in September 2012. The applicant was then a minor, and he travelled to Australia with another person.
The applicant participated in an arrival interview on 22 September 2012 and, on 7 January 2013, he participated in an “Irregular Maritime Arrival Entry Interview”. At his arrival interview the applicant referred to the person with whom he had travelled from Sri Lanka as “uncle”.
In about July 2015 the applicant was released from immigration detention as the holder of a Bridging E visa.[1] At the time he was released, the applicant signed a document titled “Code of Behaviour” under which the applicant agreed to do a number of things while “living in the Australian community”. Relevant to one of the grounds on which the applicant relies is the applicant’s agreeing to “not disobey any Australian laws including Australian road laws”, and that he would “cooperate with all lawful instructions given to” the applicant “by police and other government officials”.
[1] Affidavit of D Baddeley, page 7
According to a report prepared by an officer of the Department of Home Affairs (Department) titled “Assessment of Alleged Breach of the Code of Behaviour by an Illegal Maritime Arrival (IMA) released into the community on a Bridging E visa (BVE)” (Assessment Report), on 30 October 2016 the applicant was involved in a road traffic incident as a result of which he was charged with one count of “Drive under the influence”, and one count of “Fail to stop and give particulars to persons at a crash scene”.[2]
[2] Affidavit of D Baddeley, page 4
CLAIMS FOR PROTECTION
The applicant applied for a SHEV on 16 December 2016. The applicant set out his claims in a document tiled “Statement of claims”. In that document, the applicant claimed as follows:[3]
[3] CB88-91
(a)The applicant is the third of five children. Until 2003 the applicant and his family lived in a particular district in Northern Province. The applicant’s father was working as a truck driver for the LTTE (Liberation Tigers of Tamil Eelam) transporting goods “all over Sri Lanka”.
(b)In 2003 the applicant’s family moved to another district in Northern Province. The applicant’s father continued to work as a truck driver.
(c)In 2007 there were problems in the district in which the applicant and his family lived for people having links to the LTTE. The applicant’s family were seen as supporters of the LTTE because the applicant’s father had been working for the LTTE for many years. During that time people having links with the LTTE were taken away in white vans, and they never returned.
(d)In 2008 the applicant’s family moved to another district where the applicant went through year 7. In 2009 he went through year 8 as a residential student in another place, and he returned to live with his family when he completed year 8.
(e)The applicant’s father was working for the LTTE until the end of the war. In 2010 the applicant’s father was identified as a person having links with the LTTE, and he was detained at a particular camp. He was tortured and “enquired by the CID” (Criminal Investigation Department) about his involvement with the LTTE, and about any information he had in relation to the LTTE. The applicant’s father was released after three months, and he was required to register once a week at the camp.
(f)In 2012, when the applicant’s father went to sign the register at the camp, he was again detained, this time for one week, and tortured very badly. “They were asking him about the links he had with the LTTE”, the things he had transported for the LTTE, and information about the pick-up and delivery addresses. The applicant’s father was released, but he was asked to return one month later.
(g)The applicant’s father did not return to sign the register because he was scared. In the month the applicant’s father was required to return to sign at the camp, CID officers came to the applicant’s home searching for the applicant’s father. The applicant’s father was not home so the CID officers took the applicant to the camp, and told the applicant he would be detained at the camp until his father would come to the camp.
(h)The applicant’s father came to the camp the next day, and the applicant was released. The applicant’s father told him to leave the country. The applicant did so with the help of his uncle.
(i)The applicant’s father was detained at the camp at the time the applicant left Sri Lanka, but the applicant came to know his father had escaped. The applicant does not know about his father’s whereabouts. The applicant’s mother and his siblings are being frequently watched by the CID, and “frequently enquired of them”.
(j)The applicant left Sri Lanka because he had been detained by the CID, he was scared of CID enquiries, and he feared death by the CID. The applicant is afraid to return to Sri Lanka because on his return Sri Lankan authorities will find the applicant because he is on a watch list because of his father’s association with the LTTE.
BEFORE THE DELEGATE
At his interview before the delegate (SHEV interview) the applicant claimed that a year and a half before the interview the CID detained and questioned the applicant’s brother about the whereabouts of the applicant’s father; and when the CID released the applicant’s brother they required him to sign the register. The applicant’s brother did not do so but he instead fled to France. The applicant also claimed the CID contacted the applicant’s family in Sri Lanka about one month before the SHEV interview in search of the applicant’s father.[4]
[4] CB146
The delegate accepted the applicant is of Tamil ethnicity; the applicant’s father had a “low level of involvement with the LTTE as a driver of goods and equipment”; the applicant and his father were detained and questioned by the CID because of the applicant’s father’s link to the LTTE; the applicant had no personal involvement with the LTTE other than his imputed link to the LTTE through his father’s involvement as a driver for the LTTE until the end of the war; the applicant’s father has been missing since 2012; the CID may have contacted the applicant’s brother and family about his father’s whereabouts since the applicant’s father went missing in 2012; and the applicant departed Sri Lanka illegally. The delegate did not accept the CID had been in recent contact with the applicant’s family about the applicant’s father’s whereabouts.
BEFORE AUTHORITY
The applicant, through his agent, provided submissions to the Authority (Authority Submission).[5] The applicant’s agent submitted, among other things, that the delegate made an error in assessing the applicant’s father as having a low level involvement with the LTTE.[6] Because this part of the applicant’s agent’s submissions is relevant to ground 1 of the further amended application, it will be necessary to set out the following passages from the Authority Submission:[7]
We submit the Delegate of DHS [sic] made an error in finding the fact that the Applicants’ [sic] father’s involvement with LTTE as a low level involvement.
The delegate of DHA refers to the fact that the Applicant’s father was a driver working for transporting goods and equipment for LTTE and erred in finding that the Applicant’s father had a low level of involvement with LTTE.
We submit that the Applicant’s father was working as a truck driver with LTTE and also was managing the transportation of goods and equipment for LTTE for many years (at least from 1996 till the end of the war, as far as the Applicant knows) (please refer to the Statement of Claims by the Applicant)
We submit that the truck drivers working for LTTE, who managed the transportation of LTTE materials, even though they were not fighting in the battles, were considered as important high positioned persons in LTTE because they were responsible for the transportation of valuable items and weapons.
. . . .
We submit that the Applicant’s father had a significant role in the LTTE and therefore the Applicant is perceived to have had a significant role in the LTTE and also perceived to be active persons of post-conflict Tamil separatism and therefore satisfying the advice given by June 2017 UK Home Office Report (please refer to page 6 of the Decision).
We submit that the Applicant’s father as a person with knowledge of whereabouts of LTTE assets and equipment is considered to be a person of post-conflict Tamil separatism and that is the reason the CID is actively searching for him. We submit that the Applicant is perceived to be an active person of post-conflict Tamil separatism because of the applicant’s father’s high level involvement with the LTTE for many number of years.
. . . .
[5] CB175
[6] CB175
[7] CB176, CB178
AUTHORITY’S REASONS
The Authority first identified the information that was before it. It noted the applicant’s agent had submitted the CID was interested in the applicant’s father because he was a person with knowledge of the whereabouts of LTTE assets and equipment; and, for that reason, “the applicant is perceived to be an active person of post-conflict Tamil separatism because of his father’s high level involvement with the LTTE for many number of years”. The Authority said that it had not previously been suggested that the applicant’s father “has certain knowledge of LTTE assets which has caused him to be of ongoing interest, or that he or the applicant are considered ‘persons of post-conflict Tamil separatism’”. The Authority considered the claim that the applicant’s father had knowledge of LTTE assets was new information, but decided “not to accept this new information per s.473DB(5) [sic]”. The Authority so decided because the applicant’s agent did not identify the information as new information, contrary to the terms of the “IAA Practice Direction for Applicants”; the applicant did not provide a written explanation addressing the requirements of s.473DD(b) of the Act; and “there has been no effort to explain how this information might meet s.473DD, noting it is for the applicant to satisfy the IAA that s.473DD(b) is met”.[8]
[8] CB184, [3]
The Authority then turned to the factual elements of the applicant’s claims. The Authority accepted the applicant is a Tamil Hindu and a Sri Lankan national from Northern Province; the applicant’s father provided some low level support to the LTTE during the war as a driver;[9] on occasion the applicant’s father came to the adverse attention of the CID in the post war period because he had been an LTTE driver, and was detained in 2010 and released subject to reporting obligations;[10] the applicant left Sri Lanka by unofficial means, contrary to the Immigrants and Emigrants Act (IE Act);[11] and that, if returned to Sri Lanka, the Sri Lankan authorities may assume that, due to his methods of departure, the applicant had sought protection in Australia and, therefore, would be regarded as a returning asylum seeker.[12]
[9] CB186, [7]
[10] CB186, [10]
[11] CB188, [15]
[12] CB188, [15]
The Authority, however, was not satisfied of, or did not accept, the following claims:
(a)The applicant’s father had any managerial or supervisory roles with the LTTE, or that he had any involvement with the LTTE other than as a driver.[13] The Authority relied on the applicant’s not being able to give to the delegate any details about his father’s activities beyond stating his father was responsible for driving and transporting goods, and that his father would know other people.[14]
(b)The applicant’s father’s involvement with the LTTE can be regarded as serious, or that the applicant’s father’s involvement with the LTTE would be regarded in any way as important or high profile. The Authority relied on there being no evidence the applicant’s father transported any weapons for the LTTE, and on there being no suggestion the applicant’s father was sent for rehabilitation after the war in circumstances where rehabilitation was a widespread practice of the Sri Lankan authorities for any actual or suspected LTTE members or supporters, including those who had made significant contributions to the war effort.[15] The Authority was satisfied the applicant’s father’s LTTE involvement was of a low level.[16]
(c)The applicant’s father was detained in 2012, and the applicant was abducted and used to secure the applicant’s father’s attendance. The Authority relied on its finding that the applicant’s father’s involvement with the LTTE was of a low level who had never been referred to rehabilitation.[17]
(d)The applicant was detained by the CID while in Sri Lanka. The Authority considered the applicant fabricated that claim. The Authority relied on the applicant having given different accounts of the duration of detainment, and when he was detained. The Authority also relied on the findings it had made about the applicant’s father’s involvement with the LTTE.[18]
(e)The applicant is on a Sri Lankan government watch list. The Authority relied on the applicant’s not having made this claim at the SHEV interview; the applicant’s not providing any further information, such as how it is the applicant came to know he is on such a list; and country information that indicated that “watch lists” are used by security services in Sri Lanka to record individuals whom they consider to be of interest for reasons that include separatist or criminal activities, and “watch lists” are also used to record minor offenders and former LTTE cadres; and the applicant indicated he never had any LTTE involvement himself.[19]
(f)The applicant’s brother was detained by the CID in 2016 and then fled Sri Lanka. The Authority relied on the applicant not having made this claim in his form of application; the applicant not providing any further details about the circumstances in which his brother had been detained, given the applicant’s stating at the SHEV interview that he was in regular contact with his family; and the Authority considered it to be implausible that the applicant’s brother would be of interest to the Sri Lankan authorities in 2016 because of the applicant’s father’s low level LTTE activities.[20]
(g)The applicant’s mother and siblings have been subject to monitoring or visits after the applicant departed Sri Lanka, or that they are of any ongoing interest to the Sri Lankan authorities. The Authority relied on its findings that the applicant’s father would not be regarded as high profile.[21]
[13] CB186, [8]
[14] CB186, [8]
[15] CB186, [9]
[16] CB186. [9]
[17] CB186, [10]
[18] CB187, [11]
[19] CB187, [12]
[20] CB187, [13]
[21] CB188, [14]
Having made these findings, the Authority considered whether the applicant had a well-founded fear of persecution within the meaning of s.5J of the Act, first, because of the applicant’s father’s “historic low level LTTE involvement”,[22] or because the applicant is a Tamil, or because of his origins; second, because the applicant requested asylum, or because the applicant left Sri Lanka in breach of the IE Act. For reasons it is not necessary to set out, the Authority was not satisfied the applicant had a well-founded fear of persecution because of any of these matters. Relying on findings it had already made, together with additional findings relating to prison conditions in Sri Lanka, the Authority found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm.
[22] CB189, [19]
GROUND 1
The applicant relies on grounds 1, 3, and 4 of the further amended application filed on 25 March 2020. Ground 1 is as follows:
The second respondent (IAA) failed to form a state of satisfaction under section 473DD of the Act in relation to the new claim (at CB176) that the applicant’s father, besides being a driver, was “also … managing the transportation of goods and equipment for LTTE for many years”.
Parties’ submissions
In his written submissions the applicant submits:
(a)the Authority Submission contained a “new claim”, namely, that the applicant’s father “also was managing the transportation of goods and equipment for LTTE for many years”;[23]
(b)as the applicant had previously only claimed that his father was a truck driver, the “transport manager claim” was “new information” for the purposes of s.473DD of the Act;[24]
(c)being “new information” the Authority was required, but it failed, to apply the conditions in s.473DD of the Act to the new claim before it considered the merits of that claim;[25]
(d)instead, the Authority referred to a separate claim, namely, that “the Applicant is perceived to be an active person … of post-conflict Tamil separatism”, but decided not to accept this new information “per s.473DB(5)”, this being an intended reference to s.473FB(5) which provides that the Authority is not required to accept new information if the person fails to comply with a relevant direction;[26]
(e)even so, the Authority made a jurisdictional error because it stopped short of forming a state of satisfaction as to whether it should have considered the new information, this being a different question to whether “it is required to accept” the new information.[27]
[23] Applicant’s Written Submissions, [25]
[24] Applicant’s Written Submissions, [25]
[25] Applicant’s Written Submissions, [26]
[26] Applicant’s Written Submissions, [27]
[27] Applicant’s Written Submissions, [27]
The applicant relies on the judgments of the Full Federal Court in EEM17 v Minister for Immigration and Border Protection[28] and in BYA17 v Minister for Immigration and Border Protection.[29]
[28] EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180, at [45]
[29] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, at [55]
In his oral submissions counsel for the applicant submitted that when assessing the applicant’s claims the Authority relied on the absence of any suggestion that this father had a managerial role within the LTTE, yet that is what the applicant’s agent submitted in the Authority Submission, and the Authority did not consider that claim. Counsel further submitted that the Authority’s failure to consider that claim against the criteria of s.473DD of the Act was material.
The Minister, on the other hand, submits there was a claim before the Authority that the applicant’s father performed a managerial or supervisory role in addition to driving trucks for the LTTE, and the Authority considered it. The Minister further submits that that claim was not new information because it was based on evidence the applicant had given in the SHEV interview. In those circumstances the Authority was not required to consider whether the claim the applicant’s father performed managerial functions for the LTTE satisfied s.473DD of the Act before it could consider the claim.
Issues
The competing submissions give rise to the following issues:
(a)Was there a claim before the Authority that the applicant’s father performed a managerial function for the LTTE in addition to driving trucks for the LTTE?
(b)If so, was the claim, or information based on that claim, “new information”?
(c)Assuming it was “new information”, did the Authority consider whether s.473DD of the Act was satisfied before it considered the “new information”?
(d)Assuming (b) is answered in the affirmative, and (c) in the negative, was the Authority’s failure to do so material to its decision?
Determination
There is no question there was before the Authority, and the Authority understood there was before it, a claim that the applicant’s father performed managerial functions for the LTTE. The Authority considered, but did not accept, that claim. And it is true that the applicant’s agent made that claim in the Authority Submission. But the claim so made was based on the material that was before the delegate. That is apparent on the face of the Authority Submission. It was there submitted that the delegate did “not consider the matters presented to them [sic] properly”;[30] and there was an “[e]rror in analysing the facts around the Applicant’s father’s involvement with LTTE”.[31] That submission was developed in the section of the Authority Submission headed: “Has been erroneous in consideration of facts provided by the Applicant”.[32]
[30] CB175
[31] CB175
[32] CB176
It may be accepted that in not being satisfied the applicant’s father performed managerial functions for the LTTE the Authority relied on its findings there was no, or there was no sufficient, evidence to support that claim; but that does not mean the Authority did not consider the claim made in the Authority Submission; and it does not mean that the claim the Authority considered was based on information that included information that was not before the delegate. The Authority considered the claim made in the Authority Submission that the delegate was incorrect in its assessment of the information that was before the delegate that the applicant’s father had no more than a low level involvement with the LTTE; and it did so by reference to the information that was relevant to the determination of the claim which the Authority identified in paragraph 8 of its reasons. The Authority Submission did not refer to, or suggest there was, any information that was not before the delegate that supported the claim that the applicant’s father performed a managerial function for the LTTE. The Authority found the information did not support the claim because the applicant had given no information other than stating at the SHEV interview that his father was responsible for driving and transporting goods, and that his father would know about other people.
The circumstances of the case before me are distinguishable from those considered by the Full Federal Court in EEM17 and in BYA17. In EEM17 the Authority considered a new claim made in a submission provided to the Authority that was based, at least in part, on a photograph that had not been before the delegate. The photograph itself was “new information”. The jurisdictional error the Full Federal Court found the Authority made was to consider the claim, and the photograph on which it was based, without first considering whether the preconditions under s.477DD of the Act for considering such new information had been satisfied. In BYA17 the Full Federal Court found the Authority made a jurisdictional error by not considering whether newspaper articles that were not before the delegate and, for that reason, were “new information”, satisfied the conditions provided for by s.473DD of the Act. The applicant in the case before me, however, does not point to any information that was not before the delegate, other than the claim made in the Authority Submission, that the Authority either did not consider, or considered without first satisfying itself that the requirements of s.473DD were met.
Perhaps the applicant intends to submit that a submission made to the Authority in relation to information that was before the delegate itself constitutes “new information”. If that is what the applicant intends to submit, I do not accept it. “Information”, as it appears in s.359A and s.424A of the Act, has been considered in a number of cases. In that context it has been held that “information” “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”.[33] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[34] That this is the meaning of “information” in Part 7AA of the Act is apparent from s.473DE of the Act, which is similar to s.359A and s.424A of the Act, which distinguishes between “new information” and “comments” in relation to “new information”. Thus, the submissions made in the Authority Submission in relation to the information that was before the delegate was not “new information”, and it would not have been open to the Authority to proceed on the basis that it could consider those submissions only if the conditions provided for by s.473DD of the Act were satisfied in relation to the submissions.
[33] VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[34] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609, at 616 ([18]); see also Minister for Immigration and Border Protection v CED16 [2020] HCA 24, at [21], [22]
Next, I will assume the claim made in the Authority Submission that the applicant’s father performed managerial roles for the LTTE was new information which the Authority ought not to have considered without first determining whether the conditions provided for by s.473DD of the Act were satisfied in relation to it. Would that have been material? That question is to be determined by asking whether, had the Authority considered whether the claim met the requirements of s.473DD of the Act, that could realistically have resulted in a different decision.[35] That question is to be answered in the negative. If the Authority considered whether s.473DD applied to the claim, the Authority would have decided either to consider the claim or not consider the claim. If the Authority had decided not to consider the claim, the Authority’s decision would have been no different. If, on the other hand, the Authority decided to consider the claim, there is nothing about the exercise the Authority would have carried out in determining whether the conditions in s.473DD applied to the new claim that could realistically have led the Authority to consider the new claim in a manner that is different from the manner in which the Authority did consider the new claim.
[35] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3, at [45] (Bell, Gageler, Keane JJ)
Finally, the applicant claimed in his written submissions that the Authority made a jurisdictional error to the extent it decided purportedly under s.473FB(5) of the Act it would not consider what it identified as a new claim because the applicant, through his agent, raised a new claim without complying with directions the Authority issued. The basis of the applicant’s submission is that the Authority stopped short of forming a state of satisfaction or non-satisfaction about whether it should have considered the new information. That, in turn, is based on the submission that “should have considered” is different to “is not required to accept”. These submissions appear to construe “accept new information” in s.473FB(5) as meaning “making a finding to the effect of that conveyed or asserted by the new information”. That would be an unreasonable construction. “Accept” in the context of s.473FB(5) of the Act, means “accept for consideration” or “receive for consideration”.
Even if, contrary to how I have construed s.473FB(5), that subsection required the Authority to consider whether it should accept the new information in the sense of accepting whether it was true or not, but it failed to do so, I am not satisfied the Authority’s failure to do so could realistically have resulted in a different decision. The new claim was not supported by any information that could conceivably have supported the claim. There was, therefore, no realistic prospect the Authority would have accepted the new claim.
Ground 1, therefore, fails.
GROUND 3
Ground 3 is as follows:
Further or in the alternative to 1 and 2, the IAA committed jurisdictional error because the Secretary of the first’s [sic] respondent’s department unreasonably failed to give the IAA relevant material under section 473CB of the Act.
Parties’ submissions
The material to which this ground relates is a transcript of an interview by a delegate of the Minister of the person whom the applicant had described as his “uncle” (Uncle) in relation to an application for a SHEV the Uncle had made (Uncle’s SHEV claims).[36] In his written submissions the applicant submits the Uncle’s SHEV claims, like the applicant’s claims, centred on his family’s involvement with the LTTE and perception of a family of LTTE supporters. The Uncle’s SHEV claims, therefore, were corroborative of the applicant’s claims.[37]
[36] Affidavit of L M Stark, annexure LS-3
[37] Applicant’s Written Submissions, [31]
In his oral address counsel for the applicant repeated the substance of the applicant’s written submissions. Counsel also submitted, however, that this is not a case that required the Department of Immigration and Border Protection (Department) to look at every applicant for a SHEV and every document provided by every such applicant; and that is because the applicant had from the outset stated that he travelled to Australia with a person whom he described as an uncle; and the applicant referred to the Uncle at the SHEV interview. Counsel submitted this rendered self-evident that what the Uncle may have said in his application for a SHEV might be relevant to the applicant’s claims.
The Minister, in his written submissions, submits that the applicant has not discharged the onus that lies on him to show the Secretary of the Department (or a person holding a delegation from the Secretary) (Secretary) acted unreasonably in either not having in place a system that would have revealed the Uncle’s SHEV claims as being potentially relevant to the applicant’s claims or, if the Secretary did have in place such system and the system revealed the Uncle’s SHEV claims as being potentially relevant to the applicant’s claims, the Secretary acted unreasonably in not considering those claims to be relevant to the review by the Authority of the applicant’s claims.
Principles
Before I consider the parties’ submissions, it will be necessary to refer to the text of s.473CB(1)(c), and to some of the authorities that are relevant to the nature of scope of the Secretary’s duties under s.473CB(1) of the Act.[38] That subsection relevantly provides:
The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of which each fast track reviewable decision referred to the Authority under section 473CA:
. . .
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review . . . .
[38] As for the meaning of “Secretary” see DJU20 v Minister for Immigration & Ors [2020] FCCA 2635, at [19]
The scope of the Secretary’s duty under s.473CB(1)(c) was considered by Bromwich J in DJU20 v Minister for Immigration and Border Protection in the context of a claim that the Secretary ought to have provided the Authority with an invalid application for a visa.[39] In that context, his Honour said:[40]
Section 473CB(1)(c) cannot possibly be interpreted in a way that requires the Secretary to consider all the Departmental material in his or her possession and control, not least because of the sheer size and ambit of the Department’s operations and responsibilities in administering Australia’s migration laws. Statutory construction is therefore required to decide the metes and bounds of what must be carried out so as to comply with s 473CB(1)(c).
[39] DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220
[40] DJU20 v Minister for Immigration and Border Protection [2019] FCA 2220, at [19]
Also relevant is the following passage from the judgment of the Full Federal Court in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[41]
However, it is also not the case, and the Minister does not suggest, that s 473CB(1)(c) only requires the Secretary (or his or her delegate) to consider documents of which he or she is aware. In order to give the provision a sensible operation, it is necessary for some process to be put in place to bring to the attention of the Secretary (or his or her delegate) potentially relevant documents. Unless there is such a process, and it involves the taking of reasonable steps to identify potentially relevant documents, the provision cannot achieve its purpose. Thus, the provision should be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority). This is consistent with the principle expressed by Thawley J in EMJ17 at [41(4)]: “An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c).” That proposition was approved by all members of the Full Court in CQR17: see at [28] per Jagot J (with whom Reeves J agreed at [4]); and at [80] per Derrington J.
[41] AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222, at [70]
Determination
There is no evidence to suggest the Secretary had in place a system that revealed or ought to have revealed the Uncle’s SHEV claims for the purpose of the Secretary considering whether the Uncle’s SHEV claims were relevant to the review; and there is no evidence the Secretary otherwise considered the Uncle’s SHEV claims for the purpose of determining whether they were relevant to the review. In those circumstances, the only available bases on which the applicant could rationally submit the Secretary did not comply with s.473CB(1)(c) of the Act is if he could show two things:
(a)First, assuming the Secretary was not aware of the Uncle’s SHEV claims, the Secretary ought to have had in place a system that recognised that persons in a relationship similar to the relationship the applicant claimed he had with the Uncle might make claims that corroborate each other’s claims such that, under that system, the Uncle’s SHEV claims would have become available for the Secretary to consider whether the Uncle’s SHEV claims were relevant to the review.
(b)Second, assuming the Secretary was aware of the Uncle’s SHEV claims, or ought reasonably to have been aware of those claims, no reasonable person in the position of the Secretary could have considered the Uncle’s SHEV claims as anything other than relevant to the review.
As to the first of these things, the applicant has submitted, in effect, that the Secretary ought to have had in place a system that treated persons having the relationship the applicant purported to have with his uncle; and the basis of this submission is that the applicant referred to the Uncle as his uncle, and the applicant had travelled with the Uncle. That submission must be assessed by reference to the statutory context in which applications for the grant of visas are made and determined by the Minister, these being the provisions contained in subdivisions AA and AB of Part 2 of the Act. These provisions are premised on a particular person applying for a particular class of visa and providing all information on which he or she relies. That would include information not only from the applicant for a visa, but also from another person who has information that supports an applicant’s application for a visa, and who is willing to provide such information.
In these circumstances, it would be reasonable for the Secretary to assume that an applicant for a visa, including an applicant for a SHEV, would provide to the Minister all information on which he or she relies in his or her application, and also in documents he or she may provide after an application is made, but before the Minister makes a decision to grant or not to grant a visa, and in any interview an applicant attends in response to an invitation under s.56 of the Act. Given it would be reasonable to so assume, it would be unreasonable for the Secretary to put in place some system which would require the Secretary to assess the material an applicant provided in support of his or her application to determine whether that material suggests there is material the applicant has not provided but which some other person has submitted to the Minister that may corroborate an applicant’s claims.
Even if, however, it were reasonable to require the Secretary to have in place a system that would require the assessment of material provided by an applicant to determine whether it suggests there may be material the applicant has not, but some other person has, provided that corroborates the applicant’s claims, I am not satisfied that such system would have resulted in an assessment that the Uncle could give information that could have corroborated the applicant’s claim. That the applicant described the Uncle as his uncle, and a person with whom he travelled, is incapable of showing the Uncle could have given information that corroborated the applicant’s claims. As the Minister has submitted, although at his arrival interview the applicant claimed his father drove trucks for the LTTE and his “uncle” had been involved in pro-government groups during elections, the applicant did not mention the Uncle in the SHEV interview.[42]
[42] First respondent’s Outline of Submissions, [25], [26]
Thus, assuming the Secretary was not aware of the Uncle’s SHEV claims, I am not satisfied that the Secretary’s not being aware of those claims would have been due to the Secretary not reasonably having put in place a system for the identification of information that could potentially be relevant to the applicant’s review to the Authority.
Next, I will assume the Secretary was aware of the Uncle’s SHEV claims. The question is whether no reasonable person in the position of the Secretary could have considered the Uncle’s SHEV claims to be other than relevant to the applicant’s application for review. Apart from generally asserting those claims corroborated the applicant’s claims, the applicant has not identified which part of those claims were capable of being assessed as relevant to the applicant’s claims, and how they could reasonably have been assessed as relevant. For that reason alone, if the Secretary was aware of the Uncle’s SHEV claims, I would not be satisfied the Secretary acted legally unreasonably in not considering those claims to be relevant to the applicant’s review.
For these reasons, ground 3 fails.
GROUND 4
Ground 4 is as follows:
Further or in the alternative to 1, 2 and 3, the decision of the IAA was affected by a reasonable apprehension of bias.
Particulars
Annexure DB-1 to the Affidavit of David Baddeley made 30 August 2019.
“Annexure DB-1” is the Assessment Report to which I refer in paragraph 5 of these reasons.
Parties’ submissions
The applicant submits that the Assessment Report was among the material the Secretary sent to the Authority, but it was not relevant to any of the issues that arose or could reasonably be expected to arise on review of the delegate’s decision. Given the contents of the Assessment Report, the Authority’s having received the Assessment report might lead a fair-minded lay observer to apprehend a lack of impartiality by the Authority when considering the application for review. The applicant relies on CNY17 v Minister for Immigration and Border Protection, and in particular, on the following passage from the judgment of Nettle and Gordon JJ (emphasis in original):[43]
[A] fair-minded lay observer might apprehend a lack of impartiality on the part of the IAA where: (i) material has been designated as “relevant” by the Secretary; (ii) the IAA must have regard to that material; (iii) the information is prejudicial to the applicant; and (iv) that information is hidden from the applicant. A fair-minded lay observer may well ask why prejudicial information is provided and hidden from the applicant, if that information was not to be taken into account. In those circumstances, the fair‑minded lay observer might apprehend that the decision-maker might decide the case other than on its merits.
[43] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [100]
The Minister, on the other hand, submits the facts in the case before me are distinguishable from those considered in CNY17; the applicant has not attempted to articulate how a fair-minded lay observer might apprehend the content of the Assessment Report might lead the Authority to decide the application for review otherwise than on the merits; and, in any event, in response to the delegate’s questions in relation to character, the applicant disclosed he was fined and disqualified for one year for drink driving.
Principles
I do not propose to consider in any detail the judgments in CNY17, and that is because in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Full Federal Court has summarised the principles for which CNY17 stands as authority, and also the effect of the judgments given in that case:[44]
[44] FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29, at [32]-[34]
Although members of the Court disagreed on the outcome, each member of the Court was agreed on the following matters of principle:
(a)First, the bias rule of procedural fairness is not excluded or limited by any of the provisions of Part 7AA of the Act, and indeed s 473FA(1) stipulates that, in carrying out its functions, the Authority is to pursue the objective of providing a mechanism of limited review that is, amongst other things, free of bias: at [16] per Kiefel CJ and Gageler J, at [60] per Nettle and Gordon JJ and at [131] per Edelman J.
(b)Second, the applicable test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the questions the Authority is required to decide: at [17] per Kiefel CJ and Gageler J, at [56] per Nettle and Gordon JJ and at [132] per Edelman J. In assessing that test, the Court attributes to the fair-minded observer knowledge of the relevant legal framework (here the procedures under Part 7AA) and knowledge of the relevant facts: at [17] per Kiefel CJ and Gageler J and at [58] – [59] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
(c)Third, it follows from the second principle that the apprehended bias rule is concerned with preserving the public appearance of independence and impartiality and the rule does not require a finding that the irrelevant material affected the decision and there was actual bias: at [18] per Kiefel CJ and Gageler J, at [70] per Nettle and Gordon JJ and at [131] per Edelman J. A corollary is that apprehended bias is not remedied by the decision-maker disregarding the irrelevant and prejudicial material. The question is directed to what a fair-minded lay observer might reasonably apprehend.
(d)Fourth, in certain circumstances, a fair-minded lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious (prejudicial) effect on the mind of a decision-maker notwithstanding that the decision-maker had consciously and expressly put the information aside as irrelevant: at [28] – [29] per Kiefel CJ and Gageler J, at [97] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
Nettle and Gordon JJ (at [51]) and Edelman J (at [110]) concluded that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material contained in the departmental information which the Authority was mandated to consider. Their Honours considered that the departmental information might have led the Authority to make a decision otherwise than on the legal and factual merits of the case, because it might have led the Authority to the view that the applicant was not the sort of person who should be granted a visa or that the applicant was not a person who should be believed, even if that view was formed on a subconscious rather than conscious level. The risk of subconscious bias was such that it could not be cured by putting the information aside (at [97] per Nettle and Gordon JJ). Their Honours regarded as relevant the facts that: the prejudice likely to arise from the departmental information was substantial; the Authority was required by statute to consider the material provided by the Department; the Authority said in a letter to the applicant that it would make its decision on the basis of the material provided by the Department; the Authority stated in its reasons for decision that it had considered all of the material provided to it; and the Authority did not expressly state that it had put the irrelevant and prejudicial material to one side (at [94], [96], [98] and [99] per Nettle and Gordon JJ and at [110] and [111] per Edelman J).
Kiefel CJ and Gageler J differed from the majority and concluded that the hypothetical fair-minded lay observer would understand that the departmental information could have no legitimate bearing on the review to be conducted by the Authority (at [41]) and that such an observer would not regard the information as so shocking as to give rise to the realistic possibility that knowing it would play on the subconscious of the Authority to the detriment of the applicant (at [43]).
It is apparent that what may give rise to a reasonable apprehension of bias is not the relaying to the Authority of irrelevant information per se, but the relaying of information that a fair-minded lay observer might reasonably consider to be prejudicial to an applicant for review. But not all prejudicial information is liable to give rise to a reasonable apprehension of bias. That point was made by Nettle and Gordon JJ (emphasis in original):[45]
There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. Here, the information was such that a fair-minded lay observer might think it would bias the decision-maker against the grant of a visa to the appellant.
[45] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [101]
There is one other matter to note; and that is the knowledge it is to be assumed a fair-minded lay observer has of the scheme for review provided by Part 7AA of the Act. Nettle and Gordon JJ identified that knowledge as follows (footnotes omitted):[46]
The fair-minded lay observer knows the key aspects of the statutory scheme, which are as follows. First, the Secretary must give the IAA any material which he or she considers to be “relevant” to the review. Second, the IAA must conduct its review “by considering the review material” provided under s 473CB. Third, it must do so “without accepting or requesting new information” and “without interviewing the referred applicant”, except as provided by Pt 7AA. Fourth, the IAA has no duty to accept or request new information and must not consider it except in exceptional circumstances. Fifth, the IAA is under no obligation to give the applicant any material which was before the Minister.
[46] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [94]
Determination
The determination of ground 4 largely turns on whether a fair-minded lay observer, having the knowledge identified in the preceding paragraph, the knowledge and qualities that are usually attributed to a fair-minded lay observer,[47] and knowledge of the course of the applicant’s application for a SHEV, might consider the Assessment Report being prejudicial or potentially prejudicial to the applicant. That question is to be determined in the negative. First, there is the nature of the offence. The applicant described it at the SHEV interview as follows:[48]
[47] As to which, see the authorities to which I refer in FKP17 & Ors v Minister for Immigration & Anor [2018] FCCA 2053, at [23], [24]
[48] Affidavit of L M Stark, annexure LS-2, page 36.5
Department Officer: . . . I also need to ask a few character questions. Have you ever been convicted of a crime or charged of a crime in Australia or overseas?
Interpreter: No
Department Officer: No. This includes any driving offences, anything in Australia?
Interpreter: Once ah there was a drunk driving offence.
Department Officer: Can you tell me about that?
Interpreter: So when I was drunk and driving, ah when I was like trying to park, I had I think hit the vehicle in front and the police were called.
Department Officer: Okay. And what happened? With the, with the charge? Were you charged or?
Interpreter: There was ah like a fine and a one (1) year disqualification.
Department Officer: Okay.
Second, there is the assessment of the offences recorded in the Assessment Report; and there two things to note. The first is that the breach of the code was assessed to be a “low level of seriousness”. Second, out of a number of available sanctions, the most serious being consideration of cancellation of the applicant’s bridging visa, the author recommended the lightest available sanction, namely, referring the applicant “for discussion with SRSS provider”.[49]
[49] That appears be a reference to support services that are arranged through the Department’s “Status Resolution Support Services Program”
In the light of these matters I am not satisfied that a fair-minded lay observer might form the view that the Assessment Report might be prejudicial to the applicant, or that the Authority might consider the Assessment Report to be prejudicial or otherwise might lead the Authority to consider the applicant’s application for review on anything other than on its merits. On the contrary, I am satisfied that the fair-minded lay observer would form the view that, given assessment in the Assessment Report of the driving offences to be “a low level of seriousness”, and given the mild sanction the Assessment Report recommended, the Authority would have regarded the driving offence as being of no relevance to its consideration of the applicant’s application for review.
There is a final point to note. By providing to the Authority irrelevant material the Secretary would have failed to comply with the requirements of s.473CB(1)(c) of the Act, the due or substantial fulfilment of which is a condition precedent to the Authority’s jurisdiction to review an decision referred to it under s.473CA of the Act. Given what I have found to be the irrelevance of the Assessment Report to any of the issues that arose on the application for review, the Secretary’s not providing the Assessment Report could not realistically have made any difference to the Authority’s decision.[50]
[50] CNY17 v Minister for Immigration and Border Protection [2019] HCA 50, at [48] (Kiefel CJ and Gageler J)
Ground 4, therefore, also fails.
CONCLUSION AND DISPOSITION
The applicant has failed on each of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. There is no reason why costs should not follow the event. I also propose, therefore to order that the applicant pay the Minister’s costs in the amount provided for in Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) as those rules operated at the time the applicant filed his application with this Court. That amount is $7,467. Because I did not invite the parties to make any submissions about costs, I will reserve to the parties liberty to apply within 21 days for an order varying or discharging the order for costs I propose to make.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 10 December 2020
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