BQU18 v Minister for Immigration

[2020] FCCA 807

FEDERAL CIRCUIT COURT OF AUSTRALIA

BQU18 & ORS v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 807

Catchwords:
MIGRATION – Applications for Safe Haven Enterprise Visas – loss or destruction of audio file recording of the first applicant’s sister’s protection visa interview claimed to have been relevant to consideration of applicants’ claims by the Immigration Assessment Authority – applicability of s. 473CB of the Act – where onus on applicant to establish that the loss or destruction of the recording was material was not discharged – where onus on applicant to establish that the recording was in the possession or control of the Secretary at the time of the referral of the matter to the Authority for its consideration of the decision of the delegate was not discharged – whether statutory implication that failure to provide recording to the Authority constituted jurisdictional error – question of utility of any remitter in the circumstances – applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CA, 473CB

Cases cited:

CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421

CED15 v Minster for Immigration and Border Protection [2018] FCA 451

CPA16 v Minister for Immigration & Anor [2019] FCAFC 40

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Nobarani v Mariconte (2018) 359 ALR 31
Repatriation Commission v Knight [2012] FCAFC 83
WZAUP v Minister for Immigration & Anor [2020] FCA 116
BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091

First Applicant: BQU18

Second Applicant: BRK18

Third Applicant: BRL18

Fourth Applicant: BRM18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 901 of 2018

Judgment of: Judge Egan

Hearing dates:

7 May 2019, 22 October 2019 &

13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Brisbane

Delivered on: 9 April 2020

REPRESENTATION

Counsel for the Applicant: Mr Steele with Mr Clift

Solicitors for the Applicant: Angus Francis Lawyers

Counsel for the Respondent: Mr Kennett SC with Mr Black

Solicitors for the Respondent: Sparke Helmore

ORDERS

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

2. The Second Further Amended Application for review filed on 5 November 2019 be dismissed.

3. The Applicants pay the First Respondent’s costs of and incidental to the application for review fixed in an amount to be agreed and failing agreement to be assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRisbane

SYG 901 of 2018

BQU18

First Applicant

BRK18

Second Applicant

BRL18

Third Applicant

BRM18

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

Immigration assessment authority

Second Respondent

REASONS FOR JUDGMENT

Raison D’Etre

1. The grounds for review in this matter are identical to the grounds for review in BRG 328/2018, and almost identical to the grounds for review in BRG 329/2018. Oral arguments at the hearing of each matter were, in all respects, the same for each matter.  All three (3) matters were heard together. The applicants in all matters were represented by the same lawyers. The applicants in each matter had a familial connection. At a time when the COVID-19 virus epidemic has placed considerable pressures upon the Court and the processes of Judge’s Chambers, the Court is unapologetic that, to the extent that similar issues were necessarily addressed in each matter, identical, or almost identical reasons, were in part handed down on the issues which were common to all.

Introduction

1. The first applicant and the second applicant are citizens of Sri Lanka who arrived in Australia (Christmas Island) as unauthorised maritime arrivals on or about 20 March 2010. The third and fourth applicants were born in Australia and are the children of the first and second applicants. The applicants applied for Safe Haven Enterprise Visas (SHEV) on 21 September 2017. The first applicant’s sister (the applicant in BRG 329/2018) and the first applicant’s brother (the applicant in BRG 328/2018) also arrived in Australia (Christmas Island) as unauthorised maritime arrivals on or about 18 June 2010.

2. By letter dated 4 October 2017, the applicants were requested to attend an interview with a delegate of the Minister (PV interview) – that meeting being scheduled for 18 October 2017. By an email sent later on 4 October 2017, the legal representatives for the applicants forwarded to the delegate statutory declarations together with other documentation in support of the applicants’ claims. The interview was subsequently held in late October 2017.

3. On 5 December 2017, the delegate refused the applicants’ visa applications. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review on 11 December 2017.

4. On 8 March 2018, the Authority affirmed the delegate’s decision to refuse to grant the visas. Also on that date, the Authority, constituted by the same member, refused the visa applications of the first applicant’s brother who was the applicant in BRG 328/2018 and the first applicant’s sister who was the applicant in BRG 329/2018.

5. On 3 April 2018, the applicants filed an Originating Application for review of the decision of the Authority. Pursuant to leave granted to the applicants to do so, a Second Further Amended Application for review was filed on 5 November 2019.

6. At [7] of the reasons of the Authority, it was recorded that the Authority had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

7. The sole grounds for review relied upon by the applicants related to the non-provision to the Authority of a PV interview audio recording conducted in respect of the first applicant’s sister, who is not an applicant in the subject proceedings. Those grounds were as follows:

   “Grounds of Application

   1. The second respondent’s review under s 473CC miscarried due to the first respondent’s failure to comply with s 473CB of the Migration Act 1958 (Cth).

   Particulars

   a. The first respondent did not give to the second respondent a copy of the following material relevant to the applicants’ claims for protection in Australia, namely

   (i) – (v)… deleted.

   (vi) The protection visa audio recording (audio recording) held in relation to the applicant in Federal Circuit Court proceedings, BRG329/2018.

   b. The Other Material audio recording was provided by the applicant to the first respondent before the delegate made her decision dated 5 December 2017 and/or was relevant material in the first respondent’s custody or control at the time the decision was referred to the second respondent for the purposes of s 473CB(1) of the Act.

   c. In breach of s 473CB(1) of the Act, the Secretary (or appropriate delegate) failed to refer the Other Material audio recording to the second respondent, or failed to consider whether the Other Material fell within either s 473CB(1)(b) or (c) of the Act at the time the decision was referred to the second respondent, or erroneously concluded the Other Material did not fall within either s 473CB(1)(b) or (c) of the Act.

   d. As a result of the Secretary’s non-compliance with s 473CB(1) of the Act, the second respondent’s review miscarried and the second respondent did not properly conduct the “review” required by s 473CC of the Act.

   e. Alternatively, if the Other Material was referred to the second respondent as required by s473CB(1) of the Act, the second respondent did not properly conduct the “review” required by s 473DB(1) of the Act because it failed to consider the Other Material.

   2.  The second respondent’s review under s 473CC miscarried due to the second respondent proceeding without having before it the material required for it to properly exercise its review function.

   a. The second respondent did not have before it the audio recording at the time it undertook its review.

   b. The audio recording contained relevant information that could possibly have affected or changed the mind of the second respondent in relation to the outcome of the review.

   c. There is a statutory implication arising from the operation of s 473CC of the Act that matters referred to the second respondent will be determined properly and having regard to the circumstances of the applicants that were before the delegate at the time the delegate made her decision.

   d. The second respondent proceeded in such a way that it deprived the applicants of the possibility of a successful outcome.”

8. The first applicant’s claims for protection were set out in [16] of the reasons of the authority as follows:

   ·“In the 2017 statutory declaration he stated that he was "captured" by the LTTE in 1995 and made to undergo compulsory training for six months. At the SHEV interview he said that when his family moved to the Vanni he met a man who encouraged him to join the LTTE. The applicant husband said that at the time he was only sixteen, he had lost his mother, they did not have proper food and he was very vulnerable; he indicated that in these circumstances he agreed to join. Asked whether he agreed to go rather than being forcibly taken, he said that he could not say no; because of his situation at the time, when the recruiter "forced and encouraged him, he decided to join".

   ·In the SHEV application form, he stated that he worked as a driver and mechanic with the LTTE and that he also did six months compulsory training with the Sea Tigers. In his October statutory declaration, he claimed that he was a mechanic and did repairs and maintenance of diesel engines. He stated that he "also rode the boats and transported combatants and arms between Mullaithivu and Trincomalee".

   ·At the SHEV interview he was asked to describe his six months training in detail. He said that he was trained at a jungle camp with three hundred others. They slept in tents. He was given a 303 rifle which he had to keep with him at all times. They rose at 5am and did physical training which consisted of ten kilometre runs, running with their gun above their heads, and climbing trees. He said that they only received weapons training at the end of the six months. At the end of the six months the 150 remaining recruits were taken to Chundikulam where they were taught to swim and did water exercises for one month. After that the applicant was allocated to the Sea Tigers. Asked on what basis the allocation was done, he said it depended on where they came from. Because he came from the seaside, at VVT, he was sent to the Sea Tigers. The IAA submission indicates that the applicant was placed in the Sea Tigers because of his family’s personal association with Colonel Soosai, the head of the Sea Tigers. The applicant husband indicated at the SHEV interview that he knew Colonel Soosai quite well.

   ·The applicant husband said that his first job was at a particular base, close to Mullaithivu, where he loaded heavy weapons. After that he was sent to the Chalai base, where his task involved "looking after weapons". He was given an AK47. He said that at this time, in 1996, the LTTE was planning an attack on Mullaithivu.

   ·After the Mullaithivu battle the applicant husband was taught how to drive a speed boat. He said that the boats carried four to five people and were equipped with a 50 calibre weapon. They made one or two trips a week and for the rest of the time did training or repaired the boats.

   ·At the SHEV interview the applicant husband said that during the ceasefire, from 2002 onwards, he was in charge of thirty people who were taking supplies of spare parts, weapons and medication from the Vanni to Batticaloa. He also said that in 2004 he was allowed to go home and build a house for his father: he said that this was because his commander, Colonel Soosai, was aware of his difficult family situation. He said that from 2004 he was also driving a van, transporting vegetables for his father and civilians, as stated in his earlier applications and the current SHEV application form. He indicated that he spent time at his family home in [Village A], and returned to the L TTE base to sleep.

   ·He claims that in September 2008 he was sent by Colonel Soosai to Indonesia via Malaysia on LTTE business. In his 2017 statutory declaration and at the SHEV interview he claimed that the purpose of the trip was to obtain spare parts and engines for boats. He indicated that his passport and travel out of Sri Lanka was arranged through the LTTE by the payment of bribes. He travelled illegally from Malaysia to Indonesia by boat; his passport was taken on that voyage by the smuggler. The applicant husband drove the boat loaded with supplies back to Sri Lanka. His statutory declaration is silent as to how he re-entered Sri Lanka but at the SHEV interview he said that when they were about seventy miles off Mullaithivu they were spotted by the Sri Lankan Navy (SLN) and there was a big fight between the SLN and Sea Tigers forces which were deployed to assist.

   ·The applicant husband claims that after that Colonel Soosai then advised him that there were lots of problems (by which he apparently meant the major SLA offensive against LTTE held areas), everybody was being displaced and the applicant husband had better go home and help his father. The applicant husband therefore returned to [Village A].

   ·At the SHEV interview the applicant husband stated that other LTTE people who were on the boat with him are now working as informants and have told the government about his involvement. He was asked how he knew this and indicated that there is general information that this is how the Sri Lankan government gets its information; he did not explain how he knows that these particular people had informed on him.”

   [names omitted and pseudonyms added]

9. The second applicant is the first applicant’s wife. Her claims for protection were as set out in [23] – [30] of the reasons of the Authority. None of those claims related to the non-provision of the PV audio recording. The Court accepts that as the first applicant’s wife, she is an integral part of the first applicant’s claims in relation to the non-provision of such recording, but notes that the grounds for review in the second further amended application for review do not raise any claim in respect of the delegate’s decision to refuse the second applicant’s application for the visa other than the claim in relation to the non-provision to the Authority of the audio recording. The Court proceeded on the basis that the claims of the applicants were solely related to the non-provision of the audio recording issue. No other arguments on any other issue were advanced at the time of hearing.

Loss or Destruction of the Audio Recording

1. The matter was listed for hearing before this Court, together with the applications for review in BRG 328/2018 and BRG 329/2018. The claims in those proceedings were said to be interrelated with the claims made by the applicants in this proceeding. Submissions were sent to the Authority by the same legal firm which represented all applicants in the three proceedings. It was submitted by the applicants in SYG 901/2018 that the Authority had fallen into jurisdictional error because the Secretary of the Department had failed to provide to the Authority, for its consideration in the subject proceeding, the audio recording of the first applicant’s sister’s PV interview conducted prior to the filing of her claim in BRG 329/2018. It was submitted that the mandatory provisions of s. 473CB of the Act had not been complied with in circumstances where, had such audio recording been so provided, the Authority could realistically have arrived at a different decision.

2. It was common ground that the decisions under review in this proceeding were fast-track reviewable decisions referred to the Authority pursuant to the provisions of s. 473CA of the Act. Section 473CB of the Act relevantly provided as follows:

   “Section 473CB – Material to be provided to Immigration Assessment Authority

   (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a) a statement that:

   (i) sets out the findings of fact made by the person who made the decision; and

   (ii) refers to the evidence on which those findings were based; and

   (iii) gives the reasons for the decision;

   (b) material provided by the referred applicant to the person making the decision before the 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 Authority) to be relevant to the review;

   (d) the following details:

   (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

   (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

   (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct – such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

   (v) if the referred applicant is a minor – the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

   (2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”

3. For the relevant audio recording to fall within the provisions of s. 473CB for the purpose of the consideration by the Authority of the applicants’ claims, such recording must first have been in the Secretary’s possession or control, as well as being considered by the Secretary to be relevant to the review to be conducted by the Authority, at the time of the referral of the delegate’s decision to the Authority. In that regard, pursuant to an order made by the Court on 7 May 2019, the first respondent, relevantly, filed an affidavit of one Lorilee Lockhart on 2 July 2019 in BRG 329/2018. Such affidavit was not filed in the subject proceeding. The affidavit provided as follows:

   “1. I am a Protection Obligations Decision Maker employed by the Department of Home Affairs (“Department”) in the Protection Assessment Victoria and QLD Section of the Humanitarian Program Operations Branch. I am a delegate of the first respondent for the purposes of s 65 of the Migration Act 1958.

   2. As a Protection Obligations Decision Maker my duties and responsibilities are to examine protection claims, interview, assess and write a fair, reasonable and lawful decision against the Migration Act 1958 and Migration Regulations 1994 in accordance with relevant policies and procedures and associated administrative duties.

   3. I have worked in my section for nine years and I have experience working with TRIM and using it to upload and access documents relating to visa applicants.

   4. On 26 October 2017 at 10.00am I conducted an interview with the applicant at the Department’s offices in Brisbane. The purpose of the interview was to discuss the applicant’s application for a Safe Haven Enterprise (Subclass XE-790) visa.

   5. Interviews, with the permission of the applicant, are routinely digitally recorded. The electronic recording device allocates a numerical file name to each recording which includes the date. The interview is then downloaded to the relevant folder in my section’s shared drive, renamed and then transferred to the Department’s electronic database “TRIM”. Department security restrictions do not permit change of name on the recording device hence the recording is transferred to the shared drive, renamed then placed in TRIM.

   6. In my many years of experience in this section, I would normally keep copies of all my recordings. However the section was directed by our managers, in accordance with the Department’s policy that all documents be stored in TRIM, to delete extraneous material, in particular audio files which are large, from the shared drive and to only utilise TRIM for the storage of audio files. Accordingly, all recordings, once placed in TRIM, are then deleted from the recorder and shared drive.

   7. On 26 October 2017, I recorded the interview digitally and, as is my usual process, downloaded the recording to the relevant folder in my section’s shared drive on my computer. I uploaded the interview recording to TRIM and deleted the file from the digital recorder and shared drive. I cannot recall what date I deleted the file from the digital recorder but I generally kept audio on the recorders as long as possible and deleted the audio when folders became full. I commenced the decision record immediately after the interview and continued the assessment at a later date based on interview notes made immediately after the interview.

   8. I have been provided with a copy of the Court Book filed on behalf of the first respondent in this matter on 18 May 2018. A copy of my interview notes appears at CB page 6-7.

   9. While the decision was not recorded until approximately six weeks after the interview, the draft decision record was completed approximately two weeks after the interview date so there was no need for me to listen to the interview recording.

   10. In this matter, I uploaded the wrong recording to the shared drive and consequently the applicant’s TRIM file. Consequently I deleted the correct interview recording from the recorder. From my review of the applicant’s TRIM file, I believe the recording uploaded into the shared drive and TRIM for this applicant belonged to another visa applicant with a number allocated to the file similar to this applicant’s interview date. The number on the recording allocated by the electronic recording device to the applicant in this matter was 20171026. The number on the record allocated by the electronic recording device to the incorrect recording that was uploaded into TRIM was 20170626. I believe this was a mistake on my part.

   11. When a matter is referred to the Immigration Assessment Authority (IAA) under s 473 CA of the Migration Act 1958, a referral checklist is completed. The referral checklist is partially completed by decision makers and uploaded into TRIM. The actual file transfer is completed by another Department officer. Annexed hereto and marked “A” is a true copy of the referral checklist completed in this matter.

   12. On the referral checklist in this matter, I checked the box that the interview recording was in TRIM and the administrative team transferred the relative files to the IAA (including the recording incorrectly placed in TRIM). At the time I checked the box I did not know that the incorrect recording had been uploaded into TRIM.

   13. I understand that the IAA subsequently contacted the Department and requested the correct interview recording for the applicant. On or around 14 December 2017,1 undertook a search of the applicant’s TRIM file as well as folder on the shared drive and the same for the applicant whose recording was provided to the reviewer. Unfortunately I had (as directed) deleted all recordings from the recorder and shared drive. Accordingly, I did not find the correct interview recording.

   14. On or around 14 December 2017, I logged a support request with the Department’s IT support team to ascertain if the recording could be retrieved from the recorder. I recall that an IT officer called me and discussed the fact that the recording could not be retrieved.

   15. On 16 December 2017, I subsequently received an email confirming that the Department’s IT support team could only recover deleted items from server based storage. Annexed hereto and marked “B” is a copy of that email. 1.

   16. The interview recording has not been recovered and I believe it cannot be recovered and therefore no longer exists.

   17. I believe that I and the Department have exhausted all options to attempt to recover the interview recording.”

   Annexure A to affidavit

   (See Annexure A to this judgment)

   Annexure B to affidavit

   (See Annexure B to this judgment)

1. On the question as to whether the audio recording was, or was not, in the Secretary’s power or control at the time of the referral of the decision of the delegate to the Authority, it was submitted on behalf of the applicants that:

   “Vitally, the respondent has provided no evidence that supports an inference that the audio recording was not in the possession or control of the Secretary at the time of conferral of the review material to the IAA.” [1]

   [1]        Paragraph 18 of applicants’ submissions filed on 14 February 2020.

2. In support of such submission, the applicants relied upon the judgment of Derrington J in CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 at [105] and [107] where His Honour said:

   “[105] As the obligation of the IAA is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant.  Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the IAA is obliged to reach its own conclusions on each matter.  Indeed, the relevant material before the IAA may include information which was not considered by the delegate but which is in possession of the Secretary at the time of the referral.

   …

   [107] It follows that, for the purposes of s 473CB(1)(c), the relevant material is that which is logically probative of the issues which arise on the applicant’s visa application as they appear at the date of referral.  At the least, any material which tends to prove or disprove any of the issues would be relevant.”

3. When one looks at the page numbered 8 of Annexure A to the affidavit of Ms Lockhart, anonymised as it is in the annexure to this judgment, it is clear that such document, in part, constituted a checklist of what had, or had not, been relevantly intended to be given to the Authority for the purpose of its review of the delegate’s decision in respect of the applicant in BRG 329/2018. [2] The eighth entry on such page is referred to as ‘The PV interview audio file’. Next to such entry, Ms Lockhart checked the ‘Yes’ circle so as to record that such audio file had been intended to be included as part of the PDF electronic profile (PDFP) which was to be provided to the Authority. Ms Lockhart was recorded as being the case officer on such checklist document. [3] In her affidavit, she confirmed that she had intended that such interview recording be transferred – albeit by other members of an administrative team – to the Authority for the purposes of its review of her decisions to decline to grant the visas. She confirmed that at the time that she ‘checked the box’ indicating inclusion of the PV interview audio file as part of the material to be sent to the Authority, she did not know that the incorrect audio recording had been uploaded by her into the TRIM master file. [4]

   [2]        Page numbered 8 of Annexure A to Lockhart Affidavit filed on 2 July 2019.

   [3]        Page numbered 6 of Annexure A to Lockhart Affidavit filed on 2 July 2019.

   [4]        Paragraph 12 of Lockhart Affidavit filed on 2 July 2019.

4. The Court is satisfied, therefore, that the Secretary, through Ms Lockhart, intended that the PV interview audio file in respect of the applicant in BRG 329/2018 was to be given to the Authority in respect of the Authority’s review of the delegate’s decision in respect of such applicant. The Court is also satisfied that the PV interview audio file in that matter was, at some time prior to the referral of the delegate’s decision to the Authority, material which was in the Secretary’s possession or control, and which was considered by the Secretary to be relevant to the review of the delegate’s decision regarding that applicant. The Court is not satisfied, however, either that the audio file recording was in fact still in the Secretary’s possession or control as at 11 December 2017 – that being the date of referral of the delegate’s decision in that matter to the Authority – or that the Secretary relevantly considered such audio file recording to be relevant to the review of the delegate’s decisions in respect of the applicants to this proceeding. There is nothing before the Court upon which it could base such findings in either respect.

5. Ms Lockhart’s affidavit does not assist the Court in arriving at any conclusion as to when the audio file was forever deleted from either the ‘shared drive’, the TRIM file, or the electronic recording device used to record the PV interview. The affidavit is silent on that issue. Further, the affidavit is silent as to whether the Secretary ever considered that the audio file recording was, quite apart from its relevance to the review of the delegate’s decision made in respect of the applicant in BRG 329/2018, additionally relevant to a review by the Authority of the claims of the applicants in this proceeding. At paragraph [12] of Ms Lockhart’s affidavit, it is clear that Ms Lockhart ‘checked the box’ for the audio recording in respect of that applicant. Nowhere in the affidavit did Ms Lockhart depose that she had ‘checked the box’ so as to ensure that the audio recording was ‘given’ to the Authority as relevant material to the review of the delegate’s decisions made in respect of the applicants to this proceeding.

6. During the course of submissions, Mr Steele of Counsel, who was the lead Counsel on behalf of the applicants in all three (3) proceedings, took the Court to the checklist document at Court Book page 648. He referred the Court to the fourth-last item which had been ‘checked’ affirmatively next to the words:

   “Any referenced third party information (e.g. Information from a family member’s separate PV application)”

   (emphasis added)

   It was submitted by Mr Steele that such affirmative checking was an indication that the PV audio recording in respect of the applicant in BRG 329/2018 was relevantly third party information, and that therefore, it must have been intended to be included in the material to be given to the Authority for the purposes of its review of the delegate’s decisions in respect of the applicants to all proceedings. 

7. The Court does not accept such submission. First, the document at Court Book page 648 is part of a pro-forma checklist document which was prepared in respect of the third applicant in this proceeding. [5] Similar documents were filled out by Ms Lockhart in respect of each of the other applicants to this proceeding. [6] The document at Court Book page 648 did not record that it related to any of the material of the applicant in BRG 329/2018, nor that any such material was intended to be referenced for the purpose of a review of the delegate’s decision in respect of the third applicant. Nor did anything recorded on the checklist document suggest that the PV audio interview of the applicant in BRG 329/2018 was intended to be given to the Authority for the purpose of its review of the decisions of the delegate relating to the applicants in this proceeding. Second, the submission is speculative, in that there is no indication on the face of the document that the applicant in BRG 329/2018 was relevantly a ‘family member’ whose information or material relating to her PV application was considered relevant to the review by the Authority of the delegate’s decisions in respect of the applicants to this proceeding. Third, it is additionally speculative in that there is no indication on the face of the document that the relevant audio recording was contemplated as being ‘information’ intended to be given to the Authority. The audio recording would have been ‘material’, rather than information, in any event.

   [5]        See document at CB pages 646 – 649 inclusive re third applicant.

   [6]        See document at CB pages 638 – 641 inclusive re first applicant; see document at CB pages 642

8. Such argument does not otherwise advance the applicants’ case because the Court is unable to make any finding as to whether the audio recording was, or was not, in the Secretary’s possession or control at the time of the referral of the delegate’s decision to the Authority. 

9. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [50], when considering questions of materiality in the assessment of whether jurisdictional error on the part of a decision maker had, or had not, occurred, Bell, Gageler and Keane JJ said:

   “[50] In order to inform curial determination both of how the Tribunal in fact acted in relation to the notified document or notified information and of whether its decision could realistically have been different if the relevant breach had not occurred, evidence of the content of the document or information is relevant and admissible.”

10. At the hearing of this matter, the applicants in all proceedings, through their Counsel, were invited to consider whether Ms Lockhart was required for cross examination. Counsel for the applicants elected not to cross examine Ms Lockhart. Further, though the applicants were given leave to file affidavits in response to the first respondent’s affidavit regarding the protection visa interview audio recording in BRG 329/2018 (Ms Lockhart’s affidavit), no affidavit touching upon that issue was filed in any of the proceedings. If the applicant in BRG 329/2018 had been able to throw any particular light upon what was relevantly said by her during the course of the PV interview relating to the first applicant’s alleged membership of the LTTE, one would have expected that an affidavit deposing as to what was so said would have been sworn and filed. [7]

    [7]        Paragraph 4 of the Order of Judge Egan made in SYG 901/2018 on 7 May 2019 as follows: “4.

11. The Court infers that the Authority had had regard to the contents of the notes of such PV interview, made by Ms Lockhart, before it handed down its decision in relation to the applicants’ claims [8] (Ms Lockhart was the decision-maker in relation to all of the claims of each of the applicants in the three proceedings before the Court, and was the same delegate who handed down her decisions in respect of each of the applicants in the three proceedings before this Court on the same day). Those notes clearly recorded that the applicant in BRG 329/2018 had asserted that she had brothers who were members of the LTTE, one (1) of whom was the first applicant in these proceedings whom she had not seen from 1996 until her arrival in Australia ((A/a) in notes), and the other being the applicant in BRG 328/2019. The Authority, at [13] of its reasons, [9] noted that the first applicant’s sister (the applicant in BRG 329/2018) and the first applicant’s brother (the applicant in BRG 328/2018) were in Australia, and were also applicants for protection visas.

    [8]        CB pages 6 – 7 of BRG 329/2018.

    [9]        CB pages 717 – 718.

Late Claims by Applicant Materiality

1. In those circumstances, the Authority, at the time it made its decision, was already possessed of all of the relevant information it needed to consider and assess the first applicant’s claims. The Authority had such information at a time before it arrived at a decision as to whether the first applicant’s claims about his being a member of the LTTE Sea Tigers were genuine or not. It did not need the missing audio file recording to allow it to make an informed decision on that issue, particularly in circumstances where the Authority found that there were a number of inconsistencies in the first applicant’s claims, and also where it was found that such claims had been raised at a time late in the PV application process. [10]

   [10]      Paragraph 37 of the reasons of the Authority.

2. It was open for the Authority to find that the applicant in BRG 328/2019 would have mentioned the first applicant’s alleged LTTE involvement much earlier in the PV application process had such assertion been true. The Authority was entitled to find that because he hadn’t done so, the first applicant’s claims lacked credibility, and which led the Authority to find that he was never a member of the Sea Tigers. As Thawley J said at [21] – [24] in CED15 v Minster for Immigration and Border Protection [2018] FCA 451:

   “[21] In his written submissions, the appellant was more specific.  The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:

   69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.

   70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.

   [22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.

   [23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70].  The conclusions which the Tribunal reached were open on the evidence before it.  Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true.  Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 

   [24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”

3. The Authority was entitled to weigh up all of the evidence before it and make the findings it did, irrespective of whether the audio file interview, in part, may have touched upon whether the applicant in BRG 329/2018 had not earlier made reference to the first applicant being a Sea Tiger because of the impact her alleged PTSD had had upon her memory, or otherwise upon her capacity to fully recall past events involving the first applicant. The Authority found that the first applicant’s claims were inconsistent and lacked credibility based upon his own evidence, something that it was entitled to do.

4. In circumstances where the first respondent complied with an order of the Court relating to the filing of an affidavit relating to the making of the PV audio file recording in respect of the applicant in BRG 329/2018 - and as to the fate of such recording - the Court is unable to be satisfied, one way or the other, as to whether the destruction of the recording took place before 11 December 2017 or not. It cannot therefore find that such audio recording was in the possession or control of the Secretary as at the date of referral of the decision of the delegate to the Authority.

5. The facts of this matter are distinguishable from those matters where the first respondent is burdened with an evidential onus to adduce probative evidence of facts which are peculiarly within the first respondent’s knowledge. If the first respondent was unable to give such evidence, or could only give speculative evidence about issues of relevance, then it is incapable of discharging any such evidentiary onus. The Court respectfully adopts what was said by Derrington J in CQR17 at [91] and [92] as follows:

   “[91] In the Minister’s submission, it is irrelevant to the question of onus that all of the information as to whether the statutory obligation was performed is in the possession of only one party.  In reliance on the reasons of Campbell JA in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 (Rockcote) at [78] he submitted that “The fact that an opposing party (such as the Minister) has ‘greater means to produce evidence which contradicts the negative proposition, does not mean that the [moving party] ceases to have the onus of proof of that negative proposition.’”  However, and quite properly, he also acknowledged that, “once the [moving party] establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred”, particularly where the facts are peculiarly within that party’s knowledge or capacity (Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371-372 per Dixon CJ), “an evidential onus shifts to the [opposing party] to adduce evidence that tends to show that the negative proposition is incorrect.” (Rockcote at [78], citing Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561).  Any evidence adduced by the opposing party would, then, have to be dealt with by the moving party in the discharge of their overall burden of proof.

   [92] Despite the above acknowledgement the Minister also submitted, quite correctly, that in order to raise an inference of a negative proposition, sufficient evidence of the same needs to be adduced by the party carrying the onus.  Evidence merely giving rise to speculation is not adequate: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616-617 [67]-[69] per Gummow J. That said, even somewhat slight evidence may be sufficient in circumstances where the opposing party which has all the knowledge of the relevant fact fails to adduce evidence to the contrary. This proposition is supported by the well-established principle of fact finding that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v Archer (1774) 1 Cowp 63 at 65 per Lord Mansfield CJ.”

   
   
   

   (emphasis added)

6. Further, the Court adopts what was said by Yates, Murphy and Moshinsky JJ when discussing s. 473CB(1) in CPA16 v Minister for Immigration & Anor [2019] FCAFC 40 at [32] – [33] as follows:

   “[32] We consider the following principles to be applicable:

   (1) Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].

   (2) Where the Secretary fails to give review material to the Authority in breach of s 473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].

   (3) Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”: SZMTA at [45], [49] and [50].

   (4) In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].

   (5) The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].

   (6) Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].

   [33] Contrary to one aspect of the Minister’s submissions, the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision.  The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.”

   (emphasis added)

1. The applicants have not discharged their onus of establishing that, at the time of the referral of the decision of the delegate to the Authority, the Secretary relevantly had the audio file recording in the Secretary’s possession or control. No jurisdictional error has therefore been established in relation to Ground 1 of the Second Further Amended Application for Review.

2. Alternatively, even if it were to be held that such audio file recording was, on the balance of probabilities, in the possession or control of the Secretary as at 11 December 2017, and that the Secretary had considered such recording to be relevant to the review of the delegate’s decision made in respect of the applicants to this proceeding, there was nothing before the Authority to suggest that the content of the audio recording was substantially different from the content of the notes of Ms Lockhart taken at the time of the making of such audio recording. As referred to earlier, the applicants had the opportunity to address that issue by cross-examining Ms Lockhart, but they failed to do so.

3. The Court is therefore unable to arrive at any conclusion as to whether or not the non-provision to the Authority of the content of the audio recording was so material that it could realistically have led to the Authority arriving at a different decision. If a procedural unfairness error was to be found in the Authority proceeding to make a decision after not having been provided with the audio file recording, the Court finds that such error was, in the circumstances of this matter, nevertheless immaterial. The Authority had before it evidence that the first applicant had asserted that he and his brothers had been members of the LTTE. Also, at [35] – [45] inclusive of its reasons, the Authority closely considered the applicants’ conflicting evidence relating to his alleged membership of the LTTE as follows:

   “[35] I accept many of the applicant husband's claims which have been consistently put forward, some from the time of his arrival in Australia. I accept that he and his family come from VVT and have lived in areas of Sri Lanka that were worst affected by the conflict. I accept that the applicant husband has suffered terrible experiences which affect him to this day, including the brutal death of his mother at the hands of the IPKF, and the injuries and trauma caused to his father; the death of his brother, a recruit to the LTTE, in 2000; and severe injuries caused by two separate shell or bomb attacks. I accept that the applicant husband was in the conflict zone in the final stages of the war which must have been utterly harrowing.

   [36] I do not accept that if he were to return to Sri Lanka the applicant husband would be destitute and homeless. He said at the SHEV interview that his father still owns a home on the family land in VVT and I am satisfied that the applicant husband could return there. He claims that he is traumatised and severely injured, but there is no medical evidence before me to suggest that this is currently the case, or that he would be incapacitated for work, or that he requires treatment that would be unavailable in Sri Lanka. He claims to have previously worked in a garage, as a driver, and to have farmed vegetables. He has provided information indicating that he currently works as a volunteer at a hospital in Brisbane, a position which, according to the hospital's information sheet which was provided by the applicant husband, involves a lot of walking. He has a large number of extended family members living in the VVT area. Based on the information before me, I am not satisfied that his old injuries would preclude the applicant husband from working, or that he would be destitute and homeless if he returns to Sri Lanka.

   [37] I do not accept that the applicant husband fought with the Sea Tigers from 1995, or at all. I consider that if this claim were true, he would not have waited until the current application to raise it. I accept that many Tamils were told and believed that they should not reveal involvement with the LTTE in Australia because they might be deported, and I would be prepared to accept that, on this basis, the applicant husband may have initially chosen not to reveal that he had fought with the LTTE, if this were true. As set out above, however, the applicant husband has been through a number of different status assessments in Australia over a long period of time, in which he has had the benefit of legal representation. Prior to the current application, he underwent an ITOA assessment in 2015, at which point, in my view, he must have been aware that this was almost certainly his last opportunity to avoid being removed to Sri Lanka. Indeed, he stated in a submission for the purpose of the ITOA assessment that he was "naturally becoming highly anxious as your letter implies the department is getting ready to remove us. I am looking at my wife and my children here every day and I am becoming terrified again thinking how would l survive returning to the place I escaped from?" I do not accept that the applicant husband would have maintained his decision not to reveal his involvement with the LTTE even at that stage, if these claims were true. By that time he had been in Australia for five years. He was legally represented and provided long and detailed submissions as to the reasons why he should not be returned to Sri Lanka. I do not consider his explanation, that he had had a lot of lawyers by then and did not know to whom he should tell his story, adequately explains his failure to reveal his involvement with the LTTE at least at that stage. It was evident that the account he had provided up until that point was not regarded as sufficient basis for the grant of refugee status or the right to remain in Australia; and there was country information at the time, notably the UNHCR Eligibility Guidelines of which I am confident his advisers would have been aware, indicating that people who had fought with the LTTE would likely be in need of international protection. There would have been no reason for the applicant husband to think that he would be afforded any further opportunity to put these claims forward, if he did not do so in the ITOA. Overall, I am not satisfied that if the applicant husband's claims about having fought with the Sea Tigers were true, he would have failed to raise them until the current application.

   [38] I note, too, that there are a number of problems with the applicant husband's account of his time with the Sea Tigers which have led me to reject his account, even though he provided a considerable amount of detail both in his written claims and at the SHEV interview which, in other circumstances, might be a factor suggesting that he was telling the truth. His evidence as to the circumstances of his recruitment appears to have shifted and changed as to whether he was forcibly or willingly recruited; while I appreciate that the difference could involve considerable nuance, it seems to me that the applicant husband was either being evasive or at least inconsistent in his responses on this issue. The applicant husband's evidence was inconsistent as to the circumstances in which he came to serve with the Sea Tigers. At the SHEV interview he indicated that it was because of his origin in a seaside area; his statutory declaration and the written submissions indicate that it was to do with some special relationship his family had with Colonel Soosai, the commander of the Sea Tigers. I also find his later claims about the nature of this relationship to be highly implausible - he said, first of all, that Colonel Soosai allowed him to return to his home to help his father during the cease fire; and later, just when the war was entering its most intense final stages, when country information indicates the LTTE dramatically increased forcible recruitment because its forces were so depleted, Colonel Soosai sent the applicant husband back to his family. I simply do not accept that this happened. In the SHEV application form the applicant husband stated that he worked as a ''mechanic and driver with the LTTE" and mentioned his compulsory six months training with the Sea Tigers as an apparently separate part of his service, which appears to be inconsistent with his later evidence that all of his service was with the Sea Tigers and that to the extent that his role could be described as a "driver", it was as a driver of boats. Like the delegate, I have concerns about the applicant husband's capacity to complete the rather rigorous training that he described, given the serious injuries he claimed to have sustained only two years before.

   [39] Overall, I do not accept that the applicant husband fought with the Sea Tigers, either as a volunteer or forced recruit, or that he served as a combatant with the LTTE in any capacity. It follows that I do not accept that the applicant husband was asked by Colonel Soosai to bring a boatload of spare parts and possibly weapons from Indonesia to Sri Lanka in 2008. The applicant husband claims that this request arose out of his involvement with the Sea Tigers and possibly because of his relationship with Colonel Soosai, and I do not accept his evidence about either of these matters. I do not accept that the applicant husband was involved in the transportation of weapons or supplies to the LTTE from Indonesia. I consider it probable that his earlier departure from Sri Lanka in 2008 was, as he initially stated, an attempt to leave the country to seek asylum in Canada which was frustrated when the people smuggler disappeared with his passport.

   [40] It also follows that I do not accept that the applicant husband's brother SS told him that a friend had told SS that inquiries had been made about the applicant husband in Joseph Camp. In any case, the evidence of the applicant husband about this matter was unsatisfactory in significant respects. His claim that his brother told him this "when he came to Australia" implies, in my view that SS gave him the information soon after he came to Australia, which was in 2010, a few months after the applicant husband's arrival. Yet this information which, if true, would be very important to the applicant husband's claim that he fought with the Sea Tigers, was not mentioned when he first raised that new claim, in October 2017; it was mentioned for the first time at the SHEV interview. The information, as presented at the SHEV interview, was vague and lacking in detail and based on what the delegate put to the applicant husband about SS's evidence, their accounts contained inconsistencies. As noted above, while the applicant husband has claimed that other LTTE cadres who were on the boat with him were acting as informers, he has provided no explanation as to how he would know this and the claim appears to have been fabricated. If the suggestion is that the friend in joseph Camp had informed on the applicant husband when shown his photograph, it appears highly unlikely that he would have mentioned the incident at all.

   [41] I accept that the applicant husband was injured in shelling at his home in [Village A] during the SLA's final assault on the LTTE. The applicant husband has claimed with broad consistency, and consistently with independent country information, that he was questioned after the war ended while he was receiving treatment in various hospitals for his severe injuries. I accept that he was questioned in hospitals by the SLA and the CID, and that there were informers from paramilitary groups assisting the security authorities to identify former L TTE combatants and officials. I accept that Tamils who were identified as having connections to the LTTE were arrested and taken from the hospitals. I accept that before he left hospital the applicant husband was given a card or a token that required him to report for further questioning and I accept that he did not do so. I am satisfied, however, that as the applicant husband stated at the entry interview, this questioning was carried out routinely at the end of the war, and that all Tamils who had been in the conflict zone at the end of the war were questioned about any involvement with the LTTE. I am satisfied that the applicant husband was not of particular interest to the authorities at the end of the war because of any involvement that he actually had with the LTTE. Country information describes the intensive process by which former LTTE combatants were identified at the end of the war, including by former LTTE fighters who had defected with Colonel Karuna in the Eastern Province. The applicant husband states that he was well known in this area, because he used to transport supplies and personnel to Batticaloa, and to Karuna's forces. If this were true, and in the light of the country information, I find it extremely unlikely that the applicant husband would not have been identified definitively as a former Sea Tiger during the several occasions that he claims to have been questioned and examined during his post-war hospitalisation which extended over a period of several months.

   [42] I accept that, as the applicant husband claims, the LTTE attempted to recruit him when he was living in the Vanni, and requested that he use his three wheeler to transport goods and personnel. He claimed in his statutory declaration of January 2015 that he was able to avoid these demands by paying bribes. These earlier claims appear to have been superseded by the later claim that in fact he was recruited to the Sea Tigers. In his October 2017 statutory declaration he indicated that between about 2002 and 2006, with Colonel Soosai's permission, he used an LTTE van to transport his father's vegetables and also passengers. He thus appears to have resiled from the claim that he was asked to use his vehicle to transport supplies or people for the LTTE, in favour of the later claim that he was with the Sea Tigers and that during the ceasefire, when he returned home, he was allowed to use an LTTE vehicle to transport his father's vegetables, and passengers. Because I do not accept his claims about serving with the Sea Tigers l do not accept that he transported goods using an LTTE van with the permission of Colonel Soosai. It is not clear whether the applicant husband ever provided material support to the LTTE in terms of transporting supplies or personnel in his van. Country information indicates that this type of assistance was routinely demanded of residents of LTTE controlled areas, all of whom would have had some contact with the LTTE. Overall, although it is consistent with country information and plausible that the LTTE requested that the applicant husband use his van to assist them, he has not claimed that he did so, and I find that he did not.

   [43] I accept that the applicant husband's brother SK served with the LTTE and was killed in 2000. The applicant husband says that one of the matters he was questioned about in hospital at the end of the war was his brother's involvement with the L TTE and I accept that had he remained in Sri Lanka he may have been questioned further about his brother.

   [44] I do not accept that, as claimed in the January 2015 statutory declaration, the applicant husband's father was moving from house to house every few days, staying with friends to avoid arrest and detention by the SLA. I consider it highly implausible that, had the applicant husband's father really been of intense adverse interest to the SLA as this claim suggests, he would have been able to avoid arrest over a period of many years merely by moving to different houses while remaining in the same area. Based on the credible evidence as to his family connections to the LTTE, I consider that the claimed level of adverse interest in him is disproportionate to and inconsistent with the country information about the treatment of Tamils with similar connections to the LTTE. Finally, the applicant husband stated at the SHEV interview that his father was in VVT where he had his own house, but most of the time he lived with relatives because he needed help due to his alcoholism and mental health issues. I am satisfied that this is the reason why the applicant husband's father moves from house to house, not because he is at risk of or fears arrest.

   [45] I accept that the applicant husband left Sri Lanka by plane via Colombo Airport. 1 do not accept that he needed to pay bribes to obtain his passport illegally, or to pass through the airport without difficulty, as I do not accept that there is any reason which would have led the authorities to seek to prevent him from travelling. The applicant husband's own evidence is that at the time of his departure the Sri Lankan authorities were not aware of his claimed involvement with the LTTE. While I accept that he may have paid money to an agent to facilitate the issue of his passport and his travel arrangements, I am satisfied that this payment was not in the nature of a bribe which enabled him to obtain a passport and leave the country in circumstances where he would otherwise have been prevented from doing so. I am satisfied that the applicant left Sri Lanka on a genuine passport validly issued to him in his own name. I am also satisfied that the assistance rendered to the applicant husband by "Vasanthi" was necessitated by his medical condition, and not because he was wanted by the authorities. I accept that the applicant husband no longer has the passport on which he departed from Sri Lanka.”

   (names and footnotes omitted and pseudonyms added)

4. The Court respectfully adopts what was said in SZMTA by Bell, Gageler and Keane JJ where, at [45]-[46], on the question of the materiality of any established procedural unfairness, their Honours said:

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

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

5. The Authority was entitled to find that there was no real chance that the first applicant, the second applicant, and their children, would be subjected to harm for any reason should they return to Sri Lanka, and that the applicants did not meet the relevant s. 36(2)(a) refugee criteria. [11] It was also entitled to find that the applicants would not face a real risk of suffering harm should they be returned to Sri Lanka, and that they failed to meet the relevant s. 36(2)(aa) criteria. [12] The Authority closely examined each and every claim made by the applicants, and appropriately engaged in a consideration of the plausibility and genuineness of such claims. It was entitled to make the findings which it made.

   [11]      Paragraphs [63] and [67] respectively of the reasons of the Authority.

   [12]      Paragraphs [78] and [79] of the reasons of the Authority.

6. It cannot be said that the Authority, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at [25] – [27], where it was said:

   “[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.

   [26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.

   [27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”

1. Further, whether or not another decision maker might have arrived at a different decision to that of the Authority is not determinative. The Authority clearly engaged upon a consideration of the applicants’ claims and found against the applicants. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

2. Having had more than ample opportunity to articulate the grounds for review in respect of their respective claims, the applicants have confined their claims for review to the issue of the non-provision to the Authority of the audio file recording, as set out in the second further amended application for review. No argument on any other issue was advanced at the hearing before this Court. In those circumstances, the Court inferred that no other claim or ground of review was sought to be advanced in respect of the first, second, third or fourth applicants, and the hearing proceeded on that basis.

3. The Authority was careful to extensively express in its decision how it had considered the applicants’ claims, and why it had arrived at its decision. It cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in SZMDS at [130] and [135]:

   “[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence.  In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   …

   [135] On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”

4. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

Utility in Remitter

1. Further, the Court has given consideration as to whether there would be any utility in remitting the matter for further consideration by the Authority, even if differently constituted. The absence of the audio file recording remains as an insoluble impediment to any determination being made as to what was, or was not, said at the PV interview. The loss of the recording cannot be remedied. Any remitter would be tainted, as affording to the applicants a second bite at the cherry, in circumstances where the content of the recording is no longer able to be the subject of qualitative consideration. A differently constituted Authority would be in the same position as the Court if the decision of the Authority was quashed, and the matter remitted for its re-determination. This question, albeit in a different context, was addressed by the Full Court of the High Court in Nobarani v Mariconte (2018) 359 ALR 31 at [39] where it was said:

   “[39] … The denial of procedural fairness will cause a substantial wrong if it deprived the affected person of the possibility of a successful outcome. Unless the other party can show some reason for the exercise of discretion not to order a new trial, the power will be exercised to order a new trial. One reason that might sometimes be sufficient, and upon which the respondent relied, is where no useful result could ensue because a properly conducted trial will not make a difference.

   (emphasis added)

2. In the circumstances, there would be little utility in remitting the matter to the Authority where the probable result would be the same. [13]  

   [13]      Repatriation Commission v Knight [2012] FCAFC 83 at [23] per Finn, Gilmour and Perram JJ.

3. Further, any irregularity in the hearing or decision-making process of a tribunal or authority must be jurisdictional so as to warrant the quashing of a decision. A mistaken but unintended failure on the part of a tribunal or authority to provide an audio recording of its hearing to an application was addressed by Thawley J in WZAUP v Minister for Immigration & Anor [2020] FCA 116 at [3] and [4] where His Honour said as follows:

   “[3] The only ground argued before the trial judge, with the benefit of prehearing written submissions and the appearance of counsel for both sides, was that the Tribunal had fallen into jurisdictional error because it had failed to make an audio recording of the hearing at which the appellant gave evidence and made submissions, due to the fact that the recording equipment appears not to have recorded or fully recorded the hearing.

   [4] That claim had to fail on the material in the submissions made to his Honour because of the decisions of this Court on this point that bound the Federal Circuit Court.  In SZKOB v Minister for Immigration and Citizenship [2007] FCA 1949 at [12] - [14] Flick J had held that a failure to provide a transcript or recording of the hearing did not go to the exercise of the Tribunal’s jurisdiction so as to give rise to jurisdictional error if a recording was not or, for circumstances not within its control, could not be made.  That decision had been followed by other judges of this Court, as the trial judge set out in his reasons: SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 at 550 [51] - [52] per Middleton J and SZMOO v Minister for Immigration and Citizenship [2009] FCA 211 at [39] per Reeves J.”

Statutory Implication

1. On the question of whether a statutory implication arose in the terms as claimed in ground 2(c) of the grounds for review, it is clear that this is a case where a legitimate expectation, namely that the audio file recording of the PV interview of the applicant in BRG 329/2018 would be provided to the Authority, was thwarted by human error. It has not been asserted that the non-provision of the audio file was actuated by mala fides, nor could it have been. In those circumstances, if any statutory implication arose, it was displaced by reason of the unfortunate loss of the recording. Reasonable expectations have to yield to the reality of prevailing circumstances in cases such as the present. The Court respectfully adopts, in that regard, what Edelman J said in BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at [66] as follows:

   “[66] For an exercise of power to be procedurally unfair there must be sufficient “practical injustice” in the departure from the procedure impliedly required by the statute. For an exercise of power to be legally unreasonable it must be unreasonable to the degree required by the statutory implication. It is only where an irregularity reaches the threshold of practical unfairness or the required statutory standard of unreasonableness that the question of materiality arises. Then, for a finding of jurisdictional error, materiality requires consideration of (i) whether the conduct involved a fundamental irregularity, or, if not, (ii) whether, despite the unfairness or unreasonableness, the result would not inevitably have been the same or, put another way, there was a possibility of a successful outcome. There may, however, be circumstances where a discretion might nevertheless be exercised to refuse a new hearing, including practical reasons that have subsequently arisen that would make a new hearing futile.

   (emphasis added)

2. The applicants have failed to establish jurisdictional error on the part of the Authority.

3. The second further amended application for review is without merit and is dismissed.

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

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:  

Date:  9 April 2020

CORRECTION (29.04.2020)

The name of the first respondent was changed from MINISTER FOR HOME AFFAIRS to MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

ANNEXURE A

ANNEXURE B

         – 645 inclusive re second applicant; and see document at CB pages 650 – 653 re fourth
         applicant.           Each party has leave to file affidavits in response to the First Respondent’s affidavit regarding
         the protection visa interview audio recording in matter BRG329/2018 by 16 July 2019.”