BRG18 v Minister for Immigration
[2020] FCCA 806
•9 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRG18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 806 |
| Catchwords: MIGRATION –Application for Safe Haven Enterprise Visas – loss or destruction of audio file recording of the applicant’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 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 – where onus on applicant to establish that the loss or destruction of the recording was material – 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 Minister 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. |
| Applicant: | BRG18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 329 of 2018 |
| Judgment of: | Judge Egan |
| Hearing date: | 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 Respondents: | Mr Kennett SC with Mr Black |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Second Further Amended Application for review filed on 5 November 2019 be dismissed.
The Applicant 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 |
BRG 329 of 2018
| BRG18 |
Applicant
And
| Minister For IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| Immigration Assessment Authority |
Second Respondent
REASONS FOR JUDGMENT
Raison D’Etre
The grounds for review in this matter are almost identical to the grounds for review in SYG 901/2018 and BRG 328/2018. 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
The applicant is a citizen of Sri Lanka who arrived in Australia (Christmas Island) as an unauthorised maritime arrival on or about 18 June 2010. The applicant applied for a Safe Haven Enterprise Visas (SHEV) on 22 September 2017. The applicant’s brother (the applicant in BRG 328/2018) and the applicant’s brother and his wife (the first and second applicants in SYG 901/2018) also respectively arrived in Australia (Christmas Island) as unauthorised maritime arrivals on or about 18 June 2010 and on or about 20 March 2010.
On 26 October 2017, the applicant attended an interview with a delegate of the Minister. On 5 December 2017, the delegate refused the applicant’s visa application. The matter was referred to the Immigration Assessment Authority (‘the Authority’) for review on 11 December 2017.
On 29 December 2017, the applicant’s representative provided written submissions to the Authority.
On 8 March 2018, the Authority affirmed the delegate’s decision to refuse to grant the visa. Also on that date, the Authority, constituted by the same member, refused the visa applications of the applicant’s brother who was the first applicant in SYG 901/2018 and the applicant’s brother who was the applicant in BRG 328/2018.
At [6] 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’).
At [7] of the reasons of the Authority, it was recorded that the 29 December 2017 submission from the applicant’s newly appointed representative requested that the Authority have regard to submissions lodged on behalf of the applicant’s brothers – namely the applicant in BRG 328/2018 and the first applicant in SYG 901/2018 - on the basis that the claims were “inter-related”. The Authority recorded that it had taken all of the submissions into account as requested.
In [8] of the reasons, when referring to part of the submission sent on 29 December 2017, the Authority said as follows:
“[8] … the submission reiterates the applicant’s claims that were before the delegate, and takes issue with the delegate’s findings and reasons. To this extent it is not new information. The submission reiterates the reasons why the applicant did not initially disclose information that her brother S fought with the Sea Tigers during the civil war, stating that S had asked her not to disclose the information and that the whole family feared deportation if the information was disclosed. ”
On 4 April 2018, the applicant filed an Originating Application seeking review of the decision of the Authority. On 5 November 2019, the applicant filed a Second Further Amended Application for review. The sole grounds for review relied upon by the applicant related to the non-provision to the Authority of a PV interview audio recording conducted in respect of the applicant’s sister, who is the applicant in BRG 329/2018 but 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. … deleted.
b. The first respondent did not give to the second respondent
the Refugee Status Assessment interview audio recording, the ITOA interview audio recording, orthe protection visa audio recording (audio recordings) held in relation to the applicant.c. The
Other Material andaudio recordingswas material 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.d. In breach of s 473CB(1) of the Act, the Secretary (or appropriate delegate) failed to refer the
Other Material and/orthe audio recordingsto the second respondent, or failed to consider whether the Other Material and/or audio recordings 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 and/or audio recordings did not fall within either s 473CB(1)(b) or (c) of the Act.e. 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.
f. Alternatively, if the Other Material and/or audio recordings 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.”
The applicant’s claims for protection were as set out in [15] – [25] inclusive of the reasons of the Authority as follows:
“[15] The applicant has consistently claimed that she was born in [Village A] (VVT) in the Jaffna area, which is the birthplace of Prabakharan, the leader of the LTTE.
[16] She had five older brothers. She has consistently claimed that the oldest, SK, was forcibly recruited by the LTTE in 1999 and was killed in 2000. One brother lives in Malaysia and one in Canada, where the applicant claims he has been granted refugee status. As noted above, her brothers S and SS are both in Australia.
[17] She claims that in 1988, when she was a baby, her parents were mistaken by soldiers of the Indian Peace Keeping Force (IPKF) for LTTE supporters and were taken to their camp. Her parents were tortured and then dumped outside a nearby temple. The applicant’s mother died of her injuries. The applicant has provided a report dated 23 October 2017 written by a counsellor at the Queensland Programme of Assistance to Survivors of Torture and Trauma (QPASTT) which states that the applicant has received counselling regularly since her referral to the service in 2011 because she was suffering from persistent fear and worry, hypervigilance and intense emotional distress. The report states that the death of her mother “has featured notably throughout her counselling as a significant trauma for both herself and her family”. The applicant was apparently told as a young child of the details of her mother’s brutal death. The author of the report expresses the opinion that the applicant is suffering from major depression and/or post-traumatic stress disorder (PTSD). While I am not satisfied that a social worker is qualified to make a formal diagnosis of these conditions, I found the report to be otherwise helpful, carefully worded and objective. The report notes that when the applicant was first seen by the service she presented as highly distressed and hopeless with acute suicidal and self-harm ideation; at the time the report was written (23 October 2017) the applicant told the counsellor that she no longer had thoughts about suicide but it was noted that this could change if she were forced to be separated from her children.
[18] The applicant states that she and her family were displaced on several occasions by the fighting in the civil war. Her studies were disrupted by the war. In her statutory declaration of January2015 she stated that between 2002 and 2006 her father accompanied her to school to protect her from harassment by SLA soldiers; she said that they would be questioned at roadblocks and accused of being LTTE supporters because of their origin in VVT and because in 1999 the applicant’s brother SK was forcibly recruited to serve in the LTTE. The applicant stated that she left school in 2006 because of harassment by the SLA and after the disappearance of some of her friends. I note that in the SHEV application form, however, she stated that she left school in2003.
[19] The applicant claimed at the entry interview that when the family lived in the SLA controlled Jaffna area between 2002 and 2006 the SLA regularly came to their house “checking and inquiring”. Sometimes (maybe once a week) the family members would be taken to an open area where they would be made to wait for two or three hours while inquiries were made. Two or three times the SLA came in search of her brother SK.
[20] From 2006 until 2008 the applicant lived with her family in [Village B], in the Vanni area which was under LTTE control. The applicant and her siblings had to avoid being forcibly recruited by the LTTE. In May 2008 the applicant’s father determined that it was too dangerous for her to remain there and she left Sri Lanka illegally by boat with relatives. They went together to a refugee camp in India. Her relatives returned to Sri Lanka in 2009 but the applicant’s brother who lives in Malaysia arranged for her to travel to Australia.
[21] In 2009 her brother S was badly injured in a shell attack on the family home in [Village B],
[22] The applicant has heard many stories of Tamil girls being raped by soldiers of the SLA. She claims that she would have no male protection if she returns to Sri Lanka as her brothers will be immediately arrested and her father is an alcoholic. In her written claims she said that her father moves around to the homes of different friends to avoid arrest and detention. She said that her family homes in VVT, [Village C] and [Village B] had all been destroyed. However, at the protection interview, according to the delegate’s notes, she said that her father lives in the family home in VVT. The decision statement records that she stated that because her father is an alcoholic he struggles to look after himself for extended periods and spends time in his home and with relatives who live in a house on the same land.
[23] In a statutory declaration dated October 2017 which was submitted in support of her current SHEV application, the applicant claimed for the first time that her brother S had been forcibly recruited to the LTTE. She said that this happened in 1995 when she was eight years old and she has little knowledge or memory of him being taken away; she only learned what had happened when she went to live with her family in the Vanni in 2006, but apparently even then was not aware that he was with the Sea Tigers. She stated that she had not previously disclosed this information out of anxiety and fear. According to the delegate’s decision record, the applicant further stated at the SHEV interview that S had not disclosed his involvement with the LTTE and directed the applicant and their brother SS not to disclose the information because they would be either sent back to Sri Lanka or imprisoned. According to their IAA submissions, S and SS have provided the same explanations for their failure to reveal this information. According to the decision record, the applicant also stated at the SHEV interview that she had not disclosed this information because they were “separated”: she said that she did not see S from the time of his recruitment until their arrival in Australia.
[24] The applicant says that she fears returning to Sri Lanka because she may be arrested on arrival because of her family links, through her brothers, to the LTTE, and because she resided in areas under LTTE control, in particular VVT, the birthplace of Prabakharan. She is also afraid because women and girls are subject to sexual abuse by SLA soldiers, who hate Tamils. She will be returning as an unaccompanied woman because her brothers will be arrested on arrival. Because her personal information was released in the data breach she is afraid that the Sri Lankan authorities may know that she sought asylum in Australia and this is regarded as antigovernment activity because she will have revealed information about human right abuses committed against Tamils. It was claimed in the ITOA submissions that the applicant feared harm on return because she departed from Sri Lanka illegally, and that she therefore faced heavy fines and a possible prison sentence. Even though this claim was not articulated in the context of the present application, the delegate considered whether the applicant faced serious or significant harm on return because she had departed illegally.
[25] In her statement in relation to the ITOA assessment the applicant referred to the difficulties of being separated from her husband, an Australian permanent resident, and her Australian citizen daughter, if she were to return to Sri Lanka. She claimed that if her daughter was to return to Sri Lanka with her, she could be taken into state care if the applicant were arrested. Also, her daughter would be separated from her father. (As noted above, the applicant was expecting another child in February 2018 but there is no further information before me about the birth). The applicant wrote about the importance to her mental health of her relationship with her husband and the birth of their (first) daughter. The applicant did not repeat these claims in her SHEV application but the delegate considered whether the impact of the separation of the family unit and the possible inadequacy of mental health care facilities in Sri Lanka would constitute significant harm for the purposes of the complementary protection provisions; she concluded that it would not.”
[names omitted and pseudonyms added]
The matter was listed for hearing, before this Court, together with the applications for review in SYG 901/2018 and BRG 328/2018. Submissions were sent to the Authority by the same legal firm which represented all applicants in the three proceedings.
Loss or Destruction of the Audio Recording
It was submitted on behalf of the applicant 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 applicant’s review, the audio recording of the applicant’s protection visa (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.
It was common ground that the decision under review in this proceeding was a fast-track reviewable decision 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.”
The audio recording was something that had been facilitated by the delegate. It was never “material” which had been provided by the applicant to the Department before the adverse decision refusing the visa had been made by the delegate. Section 473CB(1)(b) of the Act, therefore, has no application.
For the relevant audio recording to fall within the provisions of s. 473CB(1)(c) of the Act, such recording must first have been in the Secretary’s possession or control, as well as being considered relevant by the Secretary 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 filed an affidavit of one Lorilee Lockhart on 2 July 2019 in BRG 329/2018. Such affidavit was not filed in the other proceedings. 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)
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 applicant 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.
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.”
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.
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 Secretary must, therefore, be taken to have considered it relevant to the review of the delegate’s decision to refuse to grant the visa to the applicant. The Court is also satisfied that the PV interview audio file in the 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. The Court is not satisfied, however, 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. There is nothing before the Court upon which it could base such finding.
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. At paragraph [12] of Ms Lockhart’s affidavit, it is clear that Ms Lockhart ‘checked the box’ for the audio recording in respect of the 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 for the review of the delegate’s decision made in respect of any other applicant.
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.
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.”
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 applicant was given leave to file affidavits in response to Ms Lockhart’s affidavit regarding the protection visa interview audio recording, she did not do so. If the applicant had been able to throw any particular light upon what was relevantly said by her during the course of the PV interview relating to her brothers’ alleged involvement in or membership of the LTTE, one would have expected that an affidavit deposing as to what was so said would have been sworn by her and filed. [5]
[5] Paragraph 4 of the Order of Judge Egan made in SYG 901/2018 on 7 May 2019 as follows: “4.
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 applicant’s claims. [6] Those notes clearly recorded that the applicant had asserted that she had brothers who were members of the LTTE, one (1) of whom was the first applicant in SYG 901/2018 whom she had not seen from 1996 until her arrival in Australia ((A/a) in notes), and the other being the applicant in BRG 328/2018.
[6] CB pages 6 – 7 of BRG 329/2018.
Late Claims by Applicant and Materiality
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 applicant’s claims about imputed LTTE involvement on the part of the applicant in BRG 328/2018, and in respect of the actual LTTE involvement on the part of the first applicant in SYG 901/2018. The Authority had such information at a time before it arrived at a decision as to whether the applicant’s claims about her brothers’ respective involvements with 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 a number of her claims were implausible, [7] and also where it was found that such claims had been raised at a time late in the PV application process. [8] It was open for the Authority to find that the applicant would have mentioned any alleged LTTE involvement on the part of her brothers at a much earlier time in the PV application process had such assertion been true. [9] In that regard, it is of note that the Authority, when considering the lateness of the applicant’s claims being raised, said:
“I have also had regard, as requested, to the explanation put forward by all three family members (the applicant and her brothers S and SS) in their submissions to the IAA.”
[7] Paragraphs [34] – [37] of the reasons of the Authority.
[8] Paragraph [35] of the reasons of the Authority.
[9] Paragraph [35] of the reasons of the Authority.
The Authority was entitled to find that because she hadn’t done so, her claims in that regard lacked credibility, leading the Authority to find that the first applicant in SYG 901/2018 was never a member of the Sea Tigers. As Thawley J said at [21] – [24] in CED15 v Minister 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].”
The Authority was entitled to weigh up all of the evidence before it and make the findings it did, irrespective of whether the applicant’s audio file interview, in part, may have touched upon whether the applicant had not earlier made reference to the first applicant in SYG 910/2018 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 him. The Authority found that the applicant’s claims were inconsistent and lacked credibility based upon her own evidence, something that it was entitled to do.
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 – 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.
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)
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)
The applicant has not discharged her 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.
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 applicant 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.
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. At [29] – [39] inclusive of its reasons, the Authority closely considered the applicant’s claims as follows:
“[29] I accept those of the applicant’s claims that have been presented reasonably consistently since her arrival in Australia.
[30] I accept that in 1988 the applicant’s parents were mistaken for LTTE supporters by the IPKF, that both were detained and tortured and that her mother died as a result. I accept that, as the QPASTT assessment suggests, the death of the applicant’s mother in such appalling circumstances has been a defining incident in the lives of the applicant and the surviving members of her immediate family. I accept that it has had a profound impact on the applicant’s psychological health. However, the issue that I must determine is whether the tragic events of the past give rise to a future risk of harm. Given the length of time that has now passed, I am not satisfied that there is a real chance that the Sri Lankan authorities would now or in the future suspect that the applicant was involved or connected with the LTTE because of that incident, especially given that she was a baby at the time. I consider it highly unlikely that the Sri Lankan authorities would even be aware of the circumstances of her mother’s death, or that her parents were wrongly suspected by the IPKF of helping the LTTE. The applicant has not claimed that any of the subsequent incidents of questioning or harassment that I accept she experienced while living in army controlled areas were specifically related to that incident.
[31] I accept that her family came originally from Jaffna where they were badly affected by the civil war; and that they were displaced to the Vanni on multiple occasions, where ultimately the applicant’s father and brothers were present in the conflict zone in the final stages of the civil war. I accept that while living in the LTTE controlled Vanni the applicant was afraid of being forcibly recruited by the LTTE and that this was the reason why she was sent away to India in2008. In the submission to the IAA the applicant’s representative stated that these claims had been overlooked by the delegate. It is not evident that the claims about fear of being forcibly recruited by the LTTE are relevant to an assessment of the future risk of harm faced by the applicant. While I appreciate that living in constant fear of the LTTE must have exacerbated the applicant’s fear and anxiety, it is evident from the country information that the LTTE is a spent force and I am satisfied that there is no risk whatsoever that the applicant faces forcible recruitment or harm of any kind from the LTTE now, or in the reasonably foreseeable future.
[32] I accept that the applicant’s brother SK was forcibly recruited into the LTTE in 1999 and was killed the following year. The applicant has made this claim consistently since the entry interview, soon after her arrival in Australia, and it is consistent with country information about LTTE recruitment practices and the course of the war.
[33] I accept the applicant’s claims that while living under army control the SLA frequently visited her home, asked questions and monitored the family. I also accept that they were taken away from home and detained for hours at a time in the course of this monitoring and checking. I accept that while going to school the applicant and her father were detained and questioned at checkpoints. All of these claims are completely consistent with country information about the activities of the SLA during the course of the war, and although I note that part of the period over which the applicant has claimed this monitoring took place encompasses the ceasefire years, country information records many breaches of the ceasefire on both sides and I am prepared to accept that some of this adverse attention by the SLA took place during the period 2002 to 2006, as the applicant claims. Even if she is confused about the precise dates this would not be surprising, and I do not consider that this detracts from her otherwise credible claims about these events. I accept that the applicant, as a young woman, would have felt particularly vulnerable, given ample evidence of sexual violence against Tamil women and girls by the SLA, and I accept that living for many years in fear and constant insecurity would have had a profound impact on her.
[34] I accept that in the course of this monitoring the applicant and members of her family were asked about the whereabouts of her brother SK, as she has consistently claimed. However, as SK was killed in 2000, it does not appear plausible and I am not satisfied that the authorities would have had an ongoing interest in his whereabouts for a long period of time after that. This appears consistent with her evidence at the entry interview that they were asked about SK two or three times.
[35] I do not accept that the applicant’s brother S was a member of the Sea Tigers from 1995 or1996 until the final stage of the war in early 2009. I do not accept the reasons given for the failure of the applicant to mention this information in the course of any of her applications or dealings with the Department until the SHEV application lodged in September 2017. I have also had regard, as requested, to the explanations put forward by all three family members (the applicant, and her brothers S and SS) in their submissions to the IAA. The applicant arrived in Australia in 2010 and underwent several refugee status and removal assessments, all of which resulted in unfavourable decisions. It is evident that at the time of the ITOA assessment in 2015 the applicant was aware that she was facing imminent removal to Sri Lanka, and that this would possibly involve the separation of her family unit. In my view, the applicant has not satisfactorily explained why, at least at that point when she apparently knew that she was facing imminent removal and when the integrity of her own newly established family unit was threatened, she would have failed to provide this information which she now suggests is fundamental to her fear of return, even if it were the case that her brother may have instructed her not to reveal it. It is equally inexplicable, in my view, why her brother S would have maintained his silence about his claimed membership of the LTTE until such a late stage in the processing of his multiple applications – as is clear from the information included in his submission to the IAA about his immigration history as set out in the delegate’s decision record in relation to his SHEV application - and long after he too must have been aware that he was facing removal to Sri Lanka. It also makes little sense, in my view, that the applicant would be prepared to declare that one brother, SK, had been forcibly recruited into the LTTE, but not S. In my view, this logical inconsistency undermines the applicant’s claim that she did not reveal S’s involvement with the LTTE for fear that she would be deported to Sri Lanka if it were known.
[36] Overall, I do not accept that the applicant’s brother S was recruited forcibly or otherwise into the LTTE in 1995 or 1996, and that he served with the Sea Tigers until the end of the war.
[37] The applicant’s account of having been subjected to routine checking, monitoring, questioning and harassment during the civil war is consistent with independent country information. I accept that the applicant and members of her family were harassed, subjected to roundups and detention, and stopped and interrogated when going about their ordinary business. I am satisfied that this occurred because they were automatically suspected of supporting the LTTE, being Tamils and residents of an area close to, or under LTTE control. While I accept that the applicant may have been questioned by the Sri Lankan security authorities about the whereabouts of her family members, I am not satisfied that this was because the authorities knew or suspected at that time that her brother S was with the Sea Tigers: I am satisfied that any such inquiries were routine in the context of wartime security.
[38] UNHCR’s most recent, but now dated, Guidelines for assessing the eligibility of Sri Lankans for asylum state that there is no longer a presumption of a requirement for protection simply for reason of being of Tamil ethnicity and a prior resident of areas of the country previously under the control of the LTTE, namely the Northern and Eastern Provinces. The Guidelines state that persons suspected of certain links with the LTTE - including people with family links to LTTE cadres - may be in need of international refugee protection, depending on the individual circumstances of their case. There is no more recent evidence to suggest that there are risks for a wider range of people than those identified by the UNHCR in 2012 as potentially requiring protection, and indeed, the weight of recent country information indicates that due to the easing of the security situation and the election of a new government, the risk of harm faced by the Tamil population - depending on individual circumstances - has decreased. Recent country information indicates that the human rights situation for Tamils has improved considerably since the end of the war and more particularly since 2015 when the Rajapaksa government, which was in power during the final stages of the war and presided over the defeat of the LTTE, lost government. According to DFAT, there has been an overall decrease in monitoring of Tamil populations for possible LTTE activity or links since 2015, although some individuals in the north and east still report being questioned and observed by the military and the sizeable military presence remains a factor in aspects of civilian life. The country information also indicates that some Tamils are still subjected to serious human rights abuses, including torture, because of real or suspected LTTE activity or links in the past or currently. However, the purpose of the ongoing monitoring seems now to be less concerned with seeking out those people who were previously involved with the LTTE than with ensuring that the organisation does not re-emerge, and with eliminating dissent.
[39] Based on the country information and the credible evidence about the applicant’s circumstances, I am not satisfied that there is a real chance, now or in the reasonably foreseeable future, that she would be suspected of involvement with the LTTE, for any reason including her ethnicity or place of residence; because her brother SK was forcibly recruited to the LTTE one year before his death in 2000; or because her parents were tortured by the IPKF in 1988 having been mistaken for LTTE supporters. I am not satisfied that there is a real chance that she would be subjected to human rights abuses constituting serious harm because of actual or imputed links to the LTTE.”
(footnotes omitted)
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.”
The Authority was entitled to find that there was no real chance that the applicant would be subjected to harm for any reason should she return to Sri Lanka, and that the applicant did not meet the relevant s. 36(2)(a) refugee criteria. [10] It was also entitled to find that the applicant would not face a real risk of suffering significant harm should she be returned to Sri Lanka, and that she failed to meet the relevant s. 36(2)(aa) criteria. [11] The Authority closely examined each and every claim made by the applicant, and appropriately engaged in a consideration of the plausibility and genuineness of such claims. It was entitled to make the findings which it made.
[10] Paragraphs [40] – [54] inclusive of the reasons of the Authority.
[11] Paragraphs [56] – [63] inclusive of the reasons of the Authority.
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.”
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 applicant’s claims this and found against the applicant. 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.”
Having had more than ample opportunity to articulate the grounds for review in respect of her claims, the applicant has confined her 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 on behalf of the applicant, and the hearing proceeded on that basis.
The Authority had clearly set out how it had considered the applicant’s 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.”
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
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 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 applicant 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)
In the circumstances of this matter, there would be little utility in remitting the matter to the Authority where the probable result would be the same. [12]
[12] Repatriation Commission v Knight [2012] FCAFC 83 at [23] per Finn, Gilmour and Perram JJ.
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 applicant 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
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 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)
The applicant has failed to establish jurisdictional error on the part of the Authority.
The second further amended application for review is without merit and is dismissed.
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 (30.04.2020)
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
Each party has leave to file affidavits in response to the First Respondent’s affidavit regarding
the protection visa interview audio recording in matter BRG 329/2018 by 16 July 2019.”
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