Bta18 v Minister for Immigration

[2020] FCCA 2626

EDERAL CIRCUIT COURT OF AUSTRALIA

BTA18 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2626

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – whether Authority incorrectly applied s.473DD in considering new information – whether the Authority misconstrued the concept of “exceptional circumstances” under s.473DD(a) – whether the Authority confined its consideration of s.473DD(b)(ii) to the temporal aspects of the new information – whether Authority erred by failing to consider the new information as it pertained to the Second Applicant separately from the First Applicant where the Second Applicant relied on the First Applicant’s claims and did not raise his own claims – whether the Authority fell into jurisdictional error by failing to consider exercising its discretion under s.473DC – whether the Authority failed to afford the Applicants procedural fairness – no jurisdictional error established – applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss.47, 473CC, 473DC, 473DD.

Cases cited:

AAL19 v Minister for Home Affairs [2020] FCAFC 114

ALR17 v Minister for Home Affairs [2019] FCAFC 182

AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111

AUH17 v Minister for Immigration and Border Protection [2018] FCA 388

AXR16 v Minister for Immigration and Border Protection [2019] FCA 42

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89;

(2018) 261 FCR 503

BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24

BRA16 v Minister for Immigration and Border Protection [2018] FCA 127

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958;

(2017) 254 FCR 221

BZC17 v Minister for Immigration and Border Protection [2018] FCA 902;

(2018) 264 FCR 667

CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192;

(2017) 257 FCR 148

CSR16 v Minister for Immigration and Border Protection [2018] FCA 474

DBE16 v Minister for immigration and Border Protection [2017] FCA 942

DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12;

(2018) 258 FCR 551

ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372

M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16;

(2018) 264 CLR 217; (2018) 353 ALR 600

Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176;

(2017) 257 FCR 111

Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80;

(2018) 260 FCR 482

Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110;

(2018) 264 FCR 249

Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210;

(2017) 253 FCR 475

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16;

(2014) 309 ALR 67

Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16;

(2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah

[2001] HCA 22; (2001) 206 CLR 57

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No 2) [2004] FCAFC 263; (2004) 144 FCR 1

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26;

(2007) 81 ALJR 1190

First Applicant: BTA18

Second Applicant: BTB18

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

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 949 of 2018

Judgment of: Judge Baird

Hearing date: 13 May 2019

Date of Last Submission: 6 May 2019

Delivered at: Sydney

Delivered on: 18 September 2020

REPRESENTATION

Counsel for the First Applicant: Ms E Graham

Solicitors for the First Applicant: Michaela Byers Solicitors

Counsel for the Second Applicant: Ms I King

Solicitors for the Second Applicant: Hall & Wilcox Lawyers

Counsel for the First Respondent: Ms R Graycar

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

THE COURT:

1. AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. ORDERS that the amended application made by the First Applicant dated 7 January 2019 be dismissed.

3. ORDERS that the amended application made by the Second Applicant dated 17 October 2018 be dismissed.

4. ORDERS the First Applicant pay the First Respondent’s costs fixed in the sum of $5,500. 

5. ORDERS the Second Applicant pay the First Respondent’s costs fixed in the sum of $5,500. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 949 of 2018

BTA18

First Applicant

BTB18

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for judicial review made pursuant to s.476 of the Migration Act 1958 (Cth) in which the Applicants (a father and son) seek judicial review of a decision of the Immigration Assessment Authority made on 16 March 2018 (Second Authority decision), affirming a decision of the Delegate of the First Respondent, the Minister for Immigration and Border Protection (now known as the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), made on 9 June 2016 to refuse to grant the Applicants Safe Haven Enterprise (subclass 790) Visas.

2. On 6 April 2018, the Applicants applied to this Court for judicial review of the Second Authority decision.

Background

1. The First Applicant was born in Sri Lanka in 1971.  The Second Applicant is his son.  He was born in 1998 in Sri Lanka.  They are of Tamil ethnicity from Trincomalee, Eastern province, in Sri Lanka.

2. The Applicants arrived in Australia by boat in October 2012, as “unauthorised maritime arrivals”.  On 10 November 2012, the First Applicant attended an arrival interview, and on 13 January 2013, he attended an “Irregular Maritime Arrival Entry Interview” with officers of the Department of Immigration and Citizenship (as it was then known).

3. By letter dated 8 July 2015, the Minister exercised his power under s.46A(2) of the Act to invite the Applicants to apply for a visa.

4. On 21 August 2015, the First Applicant submitted the application for the Visa (signed and dated 6 August 2015 by both Applicants), including the Second Applicant in the application as a member of the same family unit as the First Applicant, not raising his own claims for protection.  The application was completed with the assistance of their appointed migration agent.

5. On 28 October 2015, the First Applicant attended an interview with the Department.

6. By decision of the Delegate dated 9 June 2016, the Delegate refused to grant the Applicants Visas. 

7. By letter dated 14 June 2016, a Delegate of the Minister notified the Authority that s.473GB of the Act applied to a document or information given to the Minister relating to the Applicants’ Visa application.

8. On 14 June 2016, the Delegate’s decision was referred to the Authority for review as a “fast track reviewable decision” under Part 7AA of the Act.

9. By letter dated 4 July 2016, referencing both Applicants, the First Applicant provided new information to the Authority.

10. On 25 July 2016, the Authority (First Authority) affirmed the Delegate’s decision. 

11. On 18 August 2016, the Applicants applied to this Court for judicial review of the First Authority’s decision.  On 6 March 2017, a judge of this Court dismissed that application.  On 21 March 2017, the Applicants appealed the primary judge’s decision to the Federal Court of Australia, arguing, inter alia, that the First Authority failed to recognise the new information and adopted an incorrect interpretation of the term “exceptional circumstances”.  On 29 November 2017, the Full Court of the Federal Court set aside the decisions of the primary judge, and the First Authority: CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; (2017) 257 FCR 148.

12. By letters dated 5 February 2018, the Authority informed the Applicants that the Federal Court had remitted the case back to it for reconsideration.  The Applicants did not provide further submissions to the Authority. 

13. As I have said at [1], on 16 March 2018, the Authority (differently constituted) affirmed the decision of the Delegate not to grant the Applicants the Visas.  The Applicants applied to this Court for judicial review of the Second Authority decision.  The Applicants initially raised 3 grounds of review.  On 17 October 2018, the Second Applicant (son) filed an amended application with 6 grounds.  On 7 January 2019, the First Applicant (father) filed an amended application with 3 grounds.  The matter proceeded to hearing before me on the amended applications. 

The Applicants’ protection claims

1. In sum, the First Applicant’s protection claims are:

   (a)he is a married Tamil Hindu, from Trincomalee, Eastern province, Sri Lanka.  He has three sons and a daughter (I note that the Second Applicant is a twin whose brother remains in Sri Lanka);

   (b)in 1990 his family was displaced due to the conflict.  His family relocated to displaced persons camp at Thambala.  His father was abducted in 1990 whilst at a refugee camp.  The family believe he has been murdered;

   (c)the First Applicant went to a separate camp (than his family) in Mulaithivu, operated by the Liberation Tigers of Tamil Eelam (LTTE).  He remained in Mulaithivu camp until 2003;

   (d)upon return to Trincomalee, the army, police or CID frequently stopped and harassed him, approximately 6 or 7 times a month, when they would search his car, and his person, question, threaten and hit him;

   (e)although he was not a LTTE member, the LTTE sometimes made auto drivers /rickshaw drivers (like himself) display LTTE flags and posters on their vehicles; his cousin was involved with the LTTE;

   (f)in 2008, in Trincomalee, he was abducted by group of Singahelese (sic) men, who put him in a white van, and drove him about an hour away.  He was beaten and accused of helping the LTTE.  He was held for 3 days;

   (g)witnesses of the abduction informed his wife and brother in law who lodged complaints to UNHCR, ICRC, and HRC;

   (h)he went to the police a day after he was released but they could not help as they could not identify who abducted him.  He went to the hospital, but discharged himself after receiving treatment for his injuries because he was worried about 2 men who were hanging around the hospital who he suspected might have been CID.  He left via the back entrance of the hospital with his wife.  They lodged a further complaint with the UNHCR.  He noticed men in black following them on their way there.  He notified the UNHCR of what happened to him;

   (i)between 2008 and 2011, the First Applicant remained in hiding in his home.  Sinhalese people came looking for him at his home, sometimes 2 or 3 times a month.  His son was questioned, and his wife lied about his whereabouts.  His family was continually harassed;

   (j)in 2011, unknown men told his wife that he had to report to Plantain Port, a notorious army camp.  He decided to move to another area.  From 2011 until his departure to Australia he moved around, staying between relatives’ houses; 

   (k)in 2012, he made his way to Australia with his son, the Second Applicant;

   (l)since his departure, his wife and family have been harassed by people.  They have visited his home and questioned his wife, most recently 4 months ago (being around April 2015).  His wife tells him she is afraid, and feels like she is constantly being watched.  She no longer allows her son to attend classes in the evening as she is afraid he may be abducted; and

   (m)he claims to fear harm from the Sri Lankan government or non‑state agents connected to the government because he is a Tamil, imputed as a supporter of the LTTE, as a failed asylum seeker who departed Sri Lanka illegally, and by reason of the Australian government’s data breach when it released personal information about him and his son.

2. The First Applicant’s claims are set out in his statement dated 6 August 2015 made in support of the Visa application, are discussed in the Delegate’s decision, and are summarised at [20] of the Second Authority’s decision.  The Authority noted at [19], the Second Applicant “has not made separate claims and relies on his father’s claims as member of the family unit and claims made on his behalf”.

New information provided by the First Applicant

1. By letter to the Authority dated 4 July 2016, the First Applicant sought to provide the Authority with “new information” in relation to his claims pursuant to ss.473DC and 473DD of the Act. The letter contained the following information (as also set out in CHF16 at [14], here adopting and varying redactions there made, and adding paragraph numbering):

   (i)I refer to the above matter and to the letter dated 9 June 2016 from the Department of Immigration and Border Protection (DIBP) and to your letter dated 15 June 2016.

   (ii)In your letter dated 15 June 2016 you attached an information sheet where you indicated that I can provide to you any new information if there are any exceptional circumstances that I can justify for you to consider. Further the information is relevant and was not provided to the DIPB when it made the decision. 

   (iii)The following new information that I am providing below was not provided to the DIBP before the DIBP rejected my application and I am of the opinion that if I got the opportunity to provide the following information to the DIBP before it made the decision, it would have definitely affected the DIBP decision.

   (iv)After I attended the interview with the DIBP, I was satisfied that I would be granted protection in Australia and I would not be sent back to Sri Lanka to face harassment and torture leading to death from the Sri Lankan government authorities, Sri Lankan Tamil armed groups and from the criminal minded CID and police officers in civil who were following me and were in search to arrest me before I departed Sri Lanka.

   (v)New Information: After I arrived in Australia the above criminal minded officers had been harassing my wife and children since then. I had indicated this to the DIBP but was not taken into consideration when deciding my case. Now the situation has turned out to be more dangerous after the CID officers started to arrest my extended family members who were in Mullaitivu along with me after the conflict in 1990. My sister's family members and my wife’s family members are presently targeted by the CID officers recently. I got the information only recently before my case was rejected and hence I consider these as real evidence to be taken into consideration. My sister [redacted]'s husband [redacted] owns a cycle shop. In 2008, one of the senior army officers was shot by the LTTE cadre who was waiting at the entrance of the cycle shop while my brother in law [A-redacted] was involved in the repairs. My brother in law was arrested as the LTTE cadre escape arrest and was branded as a LTTE accomplice. In 2013, [redacted]’s case was adjourned and the CID or police or army did not proceed with the case. My elder sister is married to my wife’s brother Mr [B- redacted] who owns his own business dealing with Mechanical and Electronical repairs. My wife’s other brother [C- redacted] was also living with all of us in Mullaitivu between 1990 and 2003. The CID in Thambalakamam had arrested all three of them [A], [B] and [C] on the grounds that they had been serving in the LTTE. During the interrogation the CID officers had mentioned to them that they are aware that my son [D- redacted] and I had fled from Sri Lanka by illegal boat and they had gathered information from the DIBP as to our details in Australia. My brothers in law were taken for interrogation separately and was questioned as to their involvement in the LTTE before 2003. They had questioned them as to my involvement as well. The officers continue to interrogate them and had ordered them to report to them when they arrest me at the airport on my arrival in Sri Lanka. They have indicated that I had been serving as a LITE cadre fighting the Sri Lankan Army in the past and had escaped arrest before they confirmed my participation in the war. 

   (vi)My brothers-in law were released after the intervention of the local members of the Parliament after the officers had been bribed. The CID officers are still visiting home asking whether I had returned back by illegal means into Sri Lanka. They had told them that I would be taken away and killed for escaping by illegal means and for waging war against the Sri Lankan Army. In May 2016, the CID officers had visited home and questioned my wife living in Trincomalee town as to my expected return back to Sri Lanka. The officers asked my wife why she was living in Trincomalee town when all her relatives are living in Thambalakamam. The officers knew that my wife was alone after the children left to school had visited her and had questioned my wife as to our involvement in the LTTE in the past between 1990 and 2003. My wife had repeatedly denied any involvement in the LTTE and the CID officers had sexually abused my wife. They had warned my wife to keep the matter secret and if she attempted to publicise their atrocities she would be taken away and killed. The officers had visited her repeatedly that she had to move to Thambalalkamam to evade further sexual harassment. The relatives and neighbours in Thambalakamam including the doctors are aware that the CID officers had reaped my wife. My wife attempted to suicide before the children came to realize what happened to her. My son in Australia is unaware as to these incidents and I beg and plead with you to treat this information as a secret as it could affect my children's life. My children in Sri Lanka had questioned my wife and she had managed to convince them as a false rumor, I am unable to give protection to my wife being her husband and I am mentally traumatised and depressed from the time I heard this information. The CID officers are visiting my relatives and are threatening them with imprisonment if they informed the Human Rights organization or the Red Cross or any other local or foreign media as to this atrocities. The CID had told my wife that when they arrest me on my arrival she would be left alone. They threatened my wife that if I tried to escape arrest from them my other twin son [D] would be abducted and my brothers-in-law would be taken into custody.

   (vii)There is no rule of law in Sri Lanka. The Prevention of Terrorism Act is in force and still people are taken for interrogation and some of them are murdered once it is established that they are LTTE supporters in the past. Many innocent Tamil youths and LTTE supporters are still interrogated and sexually harassed daily in Sri Lanka. The Sri Lankan government continues to convince the foreign countries with exaggerated procedures that they would not arrest failed asylum seekers overseas. In reality they are arresting all those who returned back recently. The government’s intention is to wipe out the Sri Lankan Tamils who were supporters of the LTTE in the past so that no one would come forward to regroup the LTTE in the future.

   (viii)In my case the DIBP had made publicly available our personal information on their Immigration website through which the Sri Lankan CID officers had access to the Sri Lankan who escaped persecution through illegal boats to Australia. As I am one of them, the CID had arrested my relatives, raped my wife and had threated to abduct my other twin son if my son and I failed to surrender to them on our return. I made this application through a foreign lawyer who used an interpreter to understand me to lodge this statement and application. During the interview with the lawyer who helped me and also during the interview with the DIBP case officer both with the assistance of Tamil interpreters, I feared to mention information about me and my family as I feared that either the DIBP or the interpreters could pass those information to the Sri Lankan authorities. There is no other way for the CID officers to know how we fled from Sri Lanka. Now my life is at stake. I could be arrested and killed on my arrival in Sri Lanka. If my application is rejected, I would end up being tortured and killed by the CID. No one has the power to take these CID officers or the army officers or the murderers who are the Tamil armed groups to the Courts who are responsible for the murders that are happening behind closed doors. No foreign journalists or foreign humanitarian organization are given access to these innocent victims so that they could publicise these atrocities to the worlds. Already the Sri Lankan ex president Rajapakse is escaping from being tried for genocide and the present president Sirisena who was a minister under Rajapakse regime is protecting him. These are new information for you to consider. I feared to mention these during the interview as I could be departed by the Australian government, which had already departed Sri Lankan Tamil boat arrivals in the past, who have disappeared. I do not want to be one of them. 

The Authority’s findings regarding new information

1. At [7] of the Second Authority decision, the Authority recorded that the Applicants provided new information on 4 July 2016.  It noted that the First Applicant claimed he received the information only recently before his case was rejected, and that he thinks it would have definitely affected the decision and therefore it should be considered.  He indicated to the immigration that criminal minded officers had been harassing his wife and children, but it was not taken into consideration.  He feared to mention the information about his family and relatives as he feared that immigration or the interpreters could pass the information to Sri Lankan authorities.

2. The Authority summarised the “new information” at [8] and [9].  At [10], the Authority considered that the First Applicant could have provided the information prior to the Delegate’s decision, saying (without alteration):

   I consider the information could have been provided prior to the delegate’s decision as the information relates to past events, all of which are said to have occurred prior to the decision. Further, I consider the claimed May 2016 visit information, which was just before the decision, could have been provided to the delegate. I consider that if the event had just occurred, it is even more likely that he could have informed immigration. Further, the applicant was legally represented and informed and aware of the need to provide information to immigration. The applicant raised concerns about visits to his home in his statements, therefore if further visits had occurred he was well aware of the importance and need to provide that information. I do not accept he was fearful of disclosing because the information could be provided to the authorities. The applicant had already disclosed visits to his home and that his cousin was LTTE. It does not make sense that he would disclose that and not information about further visits or more serious situations. Further, it does not make sense that he feared disclosure by Australia to Sri Lankan authorities, as it was the Sri Lankan authorities who were visiting the family. If the Sri Lankan authorities were visiting the family (as claimed), the Sri Lankan authorities know that.

3. The Authority continued, at [11]:

   I accept the information is personal information. However, that the applicant only raised these claims leads me to doubt his genuineness of the claims. While some of the claims relate to events in 2016 (prior to the delegate’s decision), the claims also relate to and stem from claimed events in 2003 and 2008. But were not mentioned previously. I consider the applicant had plenty of opportunity to raise these claims in 2 statements, 2 interview and submissions.

   His LTTE involvement and visits to the family were discussed and mentioned in his interviews and statements, but he did not mention these LTTE claims about his brothers in law and their situations in 2003 and 2008. Further, although he claimed his brother in law complained to HRC about the applicant’s abduction in 2008, the applicant made no mention of his brother in law’s own arrest in 2008. Although the applicant mentioned he was questioned about his cousin’s LTTE involvement, the applicant made no mention of his brother in law’s arrest and being branded LTTE accomplice or any court case or that it was adjourned in 2013. If these events had occurred, I consider he would have mentioned these when the applicant mentioned his brother in law’s involvement in his own case or when he mentioned his cousin’s LTTE connections. Further, the applicant had mentioned other visits to the wife at home so he could have also mentioned the more recent visits. It is not credible that he would not mention recent and more serious visits to the home or that his wife’s and sister’s families were targeted or his wife was raped. It is not credible that he would not mention that three of his brothers in law had been arrested on grounds they were LTTE. Further, the applicant provided little details. For instance, it is not clear when he claims they were arrested (2008 or 2013 or 2016). Presumably it was after 2013, when the applicant left Sri Lanka as he claims CID were aware the applicants had left Sri Lanka. He provided no details of when his wife moved house or was harassed. Further, it is not credible that he would not have informed immigration of such significant changes in his claims, such as his wife being sexually assaulted or raped and having to move to relatives. It is not credible that the applicant would not have mentioned such a critical part of his claims, particularly given the number of opportunities he had to do so and he was legally represented. Further, it is not credible that he would not be aware or told of such arrests or harassment soon after they occurred as he is in contact with his wife and family frequently and it would have been important to case. The applicant was legally represented and informed on a number of occasions to provide all information about his claims. Despite previous discussion about LTTE involvement and visits by authorities in his statements and interview these crucial events were not mentioned. As discussed above, I do not accept his explanation that he feared disclosure by Australia to Sri Lankan authorities. The applicant’s late claims all relate to what the Sri Lankan authorities have done to the family, so his explanation of fear of that disclosure to Sri Lankan authorities does not make sense. Further, while I accept the applicants were subject to the data breach, the explanations and fear of disclosure is not consistent with applicant disclosure of claims. Further, it was explained the claims would be and were kept confidential. Given that the new claims are raised so late despite the previous opportunities I am not satisfied the new claims and explanations are credible. The applicants have not satisfied me as to the matters in s.473DD(b).

4. At [12], the Authority then stated, “Further, I am not satisfied there are any exceptional circumstances to justify considering the information.”  At [13], the Authority recorded that it had not considered the information. 

5. At [14], under the heading ‘Other new information’, the Authority summarised other matters communicated by the First Applicant, to the effect that the Australian government is responsible for negotiating with the Sri Lankan government to stop innocent Tamils fleeing from Sri Lanka; they should have foreseen the danger for Tamils in the hands of the Sri Lankan authorities, rather than stop the boats; he was worried his wife would take drastic actions like suicide if he is sent back to Sri Lanka and arrested by the CID; there is no rule of law in Sri Lanka; the PTA is in force, and past LTTE supporters and Tamils are interrogated, sexually harassed and failed asylum seekers are arrested.  The intention is to wipe out Tamils who were supporters of the LTTE in the past. 

6. The Authority found this was opinion which could have been provided earlier.  It said (at [15]):

   I consider this is opinion which could have been provided earlier and the applicants were informed of need to provide all their information and were legally represented. Further, I consider that it is a general assertion by applicant 1, for which he has not provided independent evidence of support, and I am not satisfied it is credible personal information that may have affected consideration of the claims. Further, in respect of his fears about his wife, I consider it is opinion and speculation and I am not satisfied that the information may have affected consideration of his claims. I am not satisfied as s473DD(b). 

7. Under the heading ‘Post-dated reference letter’ the Authority noted at [16] that the First Applicant provided a letter dated 22 June 2016 from the Social Justice Commission of the Toowoomba Catholic Diocese. It accepted that the letter meets s.473DD(b)(i) of the Act, as it did not exist prior to the Delegate’s decision.

8. At [18], the Authority considered that the letter could have been sought earlier as the author had known the First Applicant over three years and it appears the letter had been sought and obtained to support his Visa application.  The Authority noted that the First Applicant was informed of the importance of providing documents and information prior to the Delegate’s decision, had legal representation and had provided post interview submissions.  The Authority observed that whilst the letter was a reference about the Applicants’ character and assistance in the community, the author appeared to have no firsthand knowledge of the applicant’s (sic) claims.  The Authority also observed that it had before it more recent country information from credible sources that comments on the same issues,  It concluded:

   I do not consider the letter takes the matters any further. I am not satisfied there are exceptional circumstances to justify considering the information.

9. The Authority, as I have noted above, then identified that the Second Applicant had not made separate claims. At [20] it summarised the First Applicant’s claims (as per the above). From [21] through to [52] it made factual findings on the claims and evidence. It then turned to the First Applicant’s claims to fear harm, and by reference to the components of s.5J of the Act, considered the facts found in the context of the claims, and made findings on those matters. It concluded that it did not accept that the First Applicant faced a real chance of harm because of any of the matters raised.

10. At [69], the Authority turned to the Second Applicant’s circumstances, and also did not accept that he faced a real chance of harm for any of the claimed reasons there summarised.

11. The Authority then considered the Applicants’ circumstances and chances of harm as failed asylum seekers (at [70] – [72]), as persons who would return to Sri Lanka having departed Sri Lanka illegally, having regard to the data breach, and country information about the circumstances they would face as returnees (at [73] – [84]), and concluded that the “applicant” did not meet the requirements of the definition of refugee in s.5H(1), and did not meet s.36(2)(a).  The Authority then considered whether the Applicants met the criterion for complementary protection, and concluded that the “applicant” did not.  At [96] – [97], the Authority considered whether the Applicants met the family unit criteria, and found as neither applicant met the definition of refugee or the complementary protection criterion, they did not meet that criteria either.  The Authority affirmed the Delegate’s decision.

Grounds of review

1. The Applicants each relied on separate grounds of review set out in their respective amended applications.  As is apparent from the below, however, there is considerable overlap between the grounds. 

2. The First Applicant relied on the following grounds of review set out in his amended application dated 7 January 2019 (without alteration, save as to the removal of underlining):

   1.The Second Respondent fell into jurisdictional error by misconstruing the concept of ‘exceptional circumstances’ under s473DD of the Migration Act 1958 (Cth) (“the Act”).

   Particulars

   a.By applying an unduly narrow interpretation of the concept ‘exceptional circumstances’ for the purposes of s473DD of the Act;

   b.Failed to correctly interpret the definition of ‘new information’ for the purposes of s473DD of the Act;

   c.Failed to correctly distinguish between ‘exceptional circumstances’ as they applied to the First Applicant and ‘exceptional circumstances’ as they applied to the Second Applicant; and

   d.Failed to appropriately consider the ‘new information’, including the information relating to the First Applicant’s wife, the threats made against his son and the broader description of events that threaten the First Applicant’s wellbeing.

   2.The Second Respondent fell into jurisdictional error by unreasonably denying the First applicant an opportunity under s473DC(3) to give evidence and provide ‘new information’ for purposes of satisfying s473DD of the Act.

   3.The Second Respondent fell into jurisdictional error in failing to discharge its duty to consider all material provided to it pursuant to s473BA of the Act.

3. The Second Applicant relies on the following 6 grounds of review set out in his amended application dated 17 October 2018, as follows (without alteration, save as to the removal of underlining):

   1.The Second Respondent made an error of law in that it misconstrued the concept of ‘exceptional circumstances’ under section 473DD of the Migration Act 1958 (Cth) (Migration Act).

   Particulars

   The Second Respondent:

   a)applied an unduly narrow interpretation of the concept of ‘exceptional circumstances’ for the purposes of section 473DD;

   b)confined its consideration of whether there were ‘exceptional circumstances’ to the evaluation of the First Applicant’s explanation for not having provided the information earlier;

   c)failed to correctly interpret the definition of ‘new information’ for the purposes of section 473DD of the Migration Act;

   d)failed to identify what ‘new information’ existed in relation to the Second Applicant;

   e)failed to acknowledge that the ‘new information’ could not have been provided by the Second Applicant to the Minister before the Minister made the decision under section 65 of the Migration Act because the First Applicant had concealed it from the Second Applicant;

   (f)failed to consider that the 'new information' was not previously known by the Second Applicant and had it been known, it may have affected the consideration of his claims;

   g)failed to correctly distinguish between ‘exceptional circumstances’ as they apply to the First Applicant and exceptional circumstances as they might be considered in relation to Second Applicant; and

   h)failed to appropriately consider the ‘new information’ including the information relating to the Second Applicant’s mother, the threats made against the Second Applicant’s twin brother and the broader description of events that threaten the Second Applicant's wellbeing.

   2.Further, and in the alternative, the Second Respondent made an error of law by denying the Second Applicant procedural fairness.

   Particulars

   The Second Respondent:

   a)failed to provide the Second Applicant with a sufficient opportunity to give evidence and provide the ‘new information’ for the purposes of satisfying section 473DD of the Migration Act; and

   b)failed to identify the critical issue of the Second Applicant being impacted by the decision in relation to the First Applicant, and did not provide the Second Applicant with notice of the significance of that decision.

   3.Further, and in the alternative, the Second Responded (sic) made a jurisdictional error in the manner in which it determined its obligations under section 473CC of the Migration Act by failing to separately consider the Second Applicant from the First Applicant.

   Particulars

   a)the Second Respondent failed to consider that:

   i.the Second Applicant was a child at the time of the first decision of the Second Respondent;

   ii.the Second Applicant had not made a claim for protection in his own right; and

   iii.at the time of the Second Respondent's decision the Second Applicant would have been in a position to make his own separate claims; and

   b)the language of the application created an expectation that the facts would be treated independently.

   4.Further, and in the alternative, the Second Respondent failed to deal with an integer of the Second Applicant’s claim. 

   The Second Applicant refers to the particulars to paragraph 1

   5.Further, and in the alternative, the Second Respondent failed to discharge its duty to consider all material provided to it pursuant to section 473BA of the Migration Act.

   The Second Applicant refers to the Particulars to paragraph 1

   6.Further, and in the alternative, the Second Respondent made an error of law in that it misconstrued the nature of the review that it was to conduct under section 473CC.

   Particulars

   a)the Second Respondent confined its review to a consideration of claims of the First Applicant; and

   b)the Second Respondent failed to consider the merits of the decision referred to it as it pertained to the Second Applicant.

Relevant legal principles

1. Part 7AA of the Act provides for a limited form of review by the Authority of “fast track decisions”, which definition applies to the Delegate’s decision. 

2. The Authority’s statutory task is to review a fast‑track reviewable decision referred to it under s.473CA: s.473DB(1).  The review is a “fresh decision”: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475, at [68]. The Authority is required to determine for itself whether or not it is satisfied the criteria for the visa have been met.

3. Division 3 of Part 7AA of the Act, together with ss.473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s.473DA.

4. The default position, or “primary rule”, is that the Authority must consider the review material provided under s.473CB without accepting or requesting new information (or interviewing the applicant): M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217; (2018) 353 ALR 600 per Gageler, Keane and Nettle JJ at [22].

5. Section 473DC(1) gives the Authority a discretion to get “new information” being documents or information that were not before the Minister when the original decision was made, and that it considers may be relevant. Pursuant to s.473DC(2), the Authority is not under any duty (or obligation) to accept “new information” given to it by an applicant: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482, at [47]. Section 473DC(3), which does not limit subsection (1), gives the Authority a discretion to invite a person to give new information in writing or at an interview. Section 473DC provides:

   (1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a)were not before the Minister when the Minister made the decision under section 65; and

   (b)the Authority considers may be relevant.

   (2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. 

   (3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)in writing; or

   (b)at an interview, whether conducted in person, by telephone or in any other way.

6. The Full Court of the Federal Court of Australia has held that there may be circumstances in which it would be legally unreasonable to fail to consider exercising the discretion under s.473DC(3): CRY16, and DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551.

7. The Authority must not consider new information unless certain circumstances are met. These are set out in s.473DD, which provides as follows:

   For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

   (a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

   (b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

   (i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

   (ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

1. It is not necessary to consider whether s.473DD applies unless the Authority is satisfied that the information or document is “new information” for the purposes of s.473DC(1). If the Authority finds that the material before it is “new information” then it must not consider that new information unless it is satisfied that the conditions in s.473DD are met.

2. Section 473DD specifies two requirements, those in paragraph (a) and those in paragraph (b) (which itself has two alternatives). The two requirements in (a) and (b) are cumulative (or conjunctive). If one is not met then the new information must not be considered. There is no need to go on and consider the other requirement. However, because the considerations that are relevant to the two requirements may overlap, an error as to the formation of the state of satisfaction as to one may infect the other. Because s.473DD requires the Authority to be satisfied as to matters under both (a) and (b), the prohibition upon considering new information applies if it is not satisfied as to either: BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24 at [26] – [27]; see also M174 at [31]; BRA16 v Minister for Immigration and Border Protection [2018] FCA 127 at [25]-[26]; AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 at [32]-[33].

3. There is no necessary indication that the Authority must commence by considering the application of paragraph (a) to the facts before it.  Much will depend on the particular factual circumstances: AUH17 at [32]. I note that in CHF16 at [46], the Full Court did not consider it necessary to consider whether there is an obligation cast by s.473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied.

4. The requirements of s.473DD(a) and s.473DD(b) are exceptions to the primary rule, to be applied in narrow circumstances dictated by those provisions: BZC17 v Minister for Immigration and Border Protection [2018] FCA 902; (2018) 264 FCR 667, at [52].

5. That the requirements of paragraphs (a) and (b) of s.473DD are cumulative, but may nonetheless overlap to some extent, has the effect that the Authority’s consideration of either or both of the limbs in paragraph (b) may inform its satisfaction under paragraph (a) as to whether there are exceptional circumstances to justify considering the new information: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]; (2017) 257 FCR 111. Either or each of the factors in sub-paragraphs (b)(i) and (ii) are just factors which might permissibly be considered and which one might apprehend will frequently be raised for consideration in the circumstances of a given case. They are in no way exhaustive of what might constitute exceptional circumstances: AAL19 v Minister for Home Affairs [2020] FCAFC 114 at [44].

6. The phrase “exceptional circumstances” is to be given a broad meaning, along the lines of circumstances which are unusual or out of the ordinary:  BBS16 at [104]. The phrase is inherently incapable of exhaustive statement: M174 at [30]. The Authority may fall into error by construing the phrase “exceptional circumstances” too narrowly:  BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; (2017) 254 FCR 221, at [47]. White J there held that the Authority’s confinement of its consideration of whether there were exceptional circumstances to the evaluation of the appellant’s explanation for not having provided the information earlier was a constructive failure to exercise jurisdiction. See also, consideration of the Full Court in Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; (2018) 264 FCR 249 at [66]-[73]; AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; AAL19.

7. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, at [41], Justice Bromberg concluded that “all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine).  It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true.”  The criteria is a “filtering mechanism”: CSR16 at [42]; referred to in CLV16 at [17].

Legal unreasonableness

1. Legal unreasonableness can arise in 2 contexts: first, facts based legal unreasonableness; and second, outcome focused unreasonableness, where there is no intelligible justification for the decision or no reasonable decision maker would have made the decision which may include unreasonable exercise/non-exercise of procedural discretions.  

2. In order to give rise to jurisdictional error on the basis of legal unreasonableness, illogicality or irrationality, the question before this Court is whether the decision to which the Authority came is one that no rational or logical decision‑maker could arrive on the same evidence: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [130] per Crennan and Bell JJ. See also reiteration of principles as relevant to the Authority by the Full Court of the Federal Court in BDY18, at [29] – [31] (McKerracher, Colvin and Jackson JJ).

3. In respect of legal unreasonableness in relation to the exercise of procedural discretions, the legislature is taken to intend that the Authority’s statutory power in s.473DC will be exercised reasonably: CRY16 at [82].

Proceeding in this Court

1. At hearing, upon the application of Ms King, counsel for the Second Applicant, I granted leave to the Applicants to be separately represented and made orders to that effect.  Before me, Ms Graham of counsel appeared for the First Applicant, Ms King of counsel for the Second Applicant, and Ms Graycar of counsel appeared for the Minister. 

2. As I have said, there is considerable overlap between the grounds.  The First Applicant adopted the Second Applicant’s submissions to the extent that they also relate to the First Applicant, namely where there is an identity of ground and particular.  I first consider the First Applicant’s grounds 1, 2 and 3 with the Second Applicant’s grounds 1, 2, and 5 respectively.  I then consider the Second Applicant’s remaining grounds. 

First and Second Applicants’ ground 1

1. The Applicants each assert by their ground 1 that the Authority fell into jurisdictional error by misconstruing the concept of ‘exceptional circumstances’ under s.473DD of the Act.

2. At hearing, Ms Graham for the First Applicant conceded that it was not necessary that the Authority consider s.473DD(a) of the Act even if it held that s.473DD(b) could not be satisfied. The First Applicant submitted that the Authority, however, confined its consideration of s.473DD(b) to whether the information could have been provided earlier – the temporal aspect – without having regard to all of the other circumstances of the First Applicant and the context in which the information was sought to be relied upon by the Applicants, which were set out in the letter. The First Applicant submitted that the Authority conflated timing of the disclosure with a determination of the credibility of the information, rather than determining the credibility of the information itself by reference to its content.

3. Counsel submitted it was not sufficient that the Authority at [12], in relation to s.473DD(a) came to the conclusion that it was “not satisfied there are any exceptional circumstances to justify considering the information”. By doing so, the Authority conflated s.473DD(b) with s.473DD(a) of the Act (but see concession at hearing, noted above). The Authority must take all the circumstances into account and give consideration whether they are ‘exceptional’. 

4. The First Applicant further submitted that a finding of credibility amounts to jurisdictional error as it appears to infer ‘not previously known’ as ‘not previously known to the applicant’.

5. In particular, and also relevant to the other grounds of review, the First Applicant argued that the Authority failed to appropriately consider the new information, specifically the information relating to his wife, the threats made against his son (the Second Applicant’s twin brother), and the events that threaten the wellbeing of the Applicants.  The First Applicant referred to the following information before the Authority in the letter, which counsel argued was not taken into account, leading, counsel submitted, to a constructive failure by the Authority to exercise its decision making power according to law:

   (a)although the allegation that the First Applicant’s wife was sexually assaulted by CID officers occurred in May 2016, and preceded the date of the Delegate’s decision, it did so only by a month; it was 7 months after he was interviewed by the Department and 6 months after further submissions had been lodged with the Minister on the First Applicant’s behalf;

   (b)there was no information before the Authority of when the First Applicant was made aware by his wife of the event, only that it was “recently before my case was rejected”;

   (c)the new information of the Applicants’ family’s recent harassment and assault is information that is, objectively, of a serious, traumatic, upsetting and deeply personal nature. The nature of the information is a circumstance that ought to have been taken into account in determining whether there were exceptional circumstances to consider it under s.473DD(a);

   (d)there was evidence from the First Applicant that he was “mentally traumatised and depressed from the time [he] heard this information”; and

   (e)the Authority failed to consider his explanation when he was informed by his wife of the more recent sexual assault in May 2016 that he had already provided information to Immigration about his family continually being harassed, so had not considered this new information may have affected consideration of his claim for a visa;

   (f)the First Applicant was concerned after being a victim of the Government’s data breach to disclose further details of harassment of his family members, or the sexual assault.  In particular the Authority’s finding that his late claims all relate to what the Sri Lankan authorities have done to his family so that fear of disclosure doesn’t make sense failed to taken into account that his fear included fear of reprisal as a failed asylum seeker, such that any disclosure of further information could jeopardise his and his family’s safety further than it had already been by the data breach.

6. Ms King, counsel for the Second Applicant, contended that the Authority made no attempt to consider the circumstances of the Second Applicant in relation to the new information.  The Second Applicant is a fast track applicant, and the statutory scheme does not distinguish in the duties placed on the Authority between those applicants that have primary claims and those that have derivative claims.  Ms King argued that the Authority failed to distinguish between exceptional circumstances as they apply to the First Applicant, and exceptional circumstances as they might be considered in relation to the Second Applicant. 

7. The Second Applicant relied on the consideration of the Full Court in AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13] – [15] on the scope of exceptional circumstances, and its observation that whether the factors in ss.473DD(b)(i) and/or (ii) have a bearing upon the Authority’s decision whether exceptional circumstances exist will depend on the particular case. Ms King submitted that in the present case there was no consideration by the Authority of the specific circumstances of the Second Applicant. She argued that the Authority at [7], in acknowledging the applicants had provided new information, overlooked that the content of the new information explicitly states that it had been kept secret from the Second Applicant.

8. The Second Applicant contended that the Authority should have taken into account in its consideration of ‘exceptional circumstances’ for the purposes of s.473DD(a) of the Act that:

   (a)the Second Applicant was a child at the time of the First Authority’s decision, and the First Applicant was acting on his behalf;

   (b)the new information contained matters (rape of First Applicant’s wife by CID officers, and attempted suicide in May 2016) which had been concealed from the Second Applicant by the First Applicant;

   (c)the new information contained claims that the information could affect the life of the Second Applicant;

   (d)the new information contained threats against the Second Applicant’s twin brother; 

   (e)the new information contained matters which could found a decision by the Authority that the Second Applicant was a person to whom Australia has protection obligations under sub-s.5H(1) and/or s.36(2)(aa) of the Act.

9. Had the Authority considered the position of the Second Applicant as distinct from the First Applicant, in accordance with approach suggested by White J in BVZ16, it would have found that the new information about the rape could not have been provided by the Second Applicant to the Minister before the Delegate made the decision, and that the information was not previously known by the Second Applicant, and had it been known may have affected the consideration of his claims. The Second Applicant says that these circumstances, along with his age, and the fact that his Visa application was made by the First Applicant without reference to the Second Applicant’s own claims for protection, constituted exceptional circumstances within s.473DD. The Authority also constructively failed to exercise its jurisdiction in failing to consider or use its powers under s.473DD(b) of the Act.

10. Ms Graycar, counsel for the Minister, submitted that the First Applicant’s contention that the Authority considered only the temporal element, and determined credibility by reference to timing only, is factually incorrect. The Authority at [11] of the Second Authority decision (see above at [21]) engaged with s.473DD(b)(ii) of the Act in its consideration of whether the information provided was “credible”, and concluded that neither the new claims nor the explanations were credible. 

11. A notable characteristic of the Authority’s consideration of s.473DD of the Act in each of BVZ16, BBS16, and CHF16 was the brevity of the analysis of the applicability of the exceptions in s.473DD of the Act. By contrast, the Minister argued, the Authority in this case devoted a substantial portion of the overall reasons to the issue of whether the circumstances permitted consideration of the new information, notwithstanding the default prohibition of the consideration of material that was not before the Delegate.

12. In relation to the Second Applicant, the evidence reveals that to the extent there were communications with him (the son), it was because the Authority had difficulty contacting the First Applicant (father), and further, the Second Applicant confirmed he could receive correspondence for his father. 

13. The difficulties for the Second Applicant with his submission regarding the Authority’s failure to consider his case as a substantive case or that there was some obligation on the Authority to so consider his case lie in the provisions of the Act, particularly s.36(1A)(b), and ss.36(2)(a) and (b), and s.47. It was on the basis of being a member of the family unit of the First Applicant that the Second Applicant was having his claims considered; he made no claims on his own account. Section 47 makes clear that the Minister can only consider a valid application for a visa. The Second Applicant did not make an application in his own right for a visa by which he claimed to be a person who met the criteria of being a refugee, or person who met the complementary protection criterion under the Act.

14. To the extent that the Second Applicant relies on BVZ16, it should be noted each case must be decided on its own merits and the matters that must be considered must necessarily vary from case to case: AQU17 at [14].

15. The Minister further submitted that the matters the Second Applicant contends the Authority ought to have considered (above at [59]) were not put to the Authority by the Second Applicant.  The Authority has no independent investigative function, rather it has to consider the application for itself on the material that was before the Delegate: see M174.  It is not the role of this Court to engage in merits review of the kind urged by the Second Applicant. 

Consideration

1. The Second Authority decision shows that the Authority engaged with the new information in some detail.  Contrary to the Applicants’ submission, it did not limit its consideration to the temporal aspect in its consideration of credibility of the new information.  It is apparent from each of the references in [10] and [11], that the Authority considered each of the matters newly provided in their context, and having regard to the existing information already provided in support of the Visa application about matters (events and involving persons), which it considered were of a similar nature, and kind, or related to persons already mentioned, or were significant changes to his claims, or critical, including:

   (i)being further instances of concerning visits to his home and family (wife and son);

   (ii)the more serious situation involving his wife (the sexual assault)/ the significant changes to his claims such as his wife being sexually assaulted or raped and having to move to relatives;

   (iii)relatives who had LTTE involvement (that his cousin was LTTE had been disclosed, new information was LTTE claims about his three brothers in law, and their situations in 2003 and 2008/ that they were arrested on grounds they were LTTE); and

   (iv)further incidents to relatives who had previously been mentioned, occurring in the same time period (his brother in law’s complaint about the First Applicant’s abduction in 2008 and involvement in the First Applicant’s case was previously mentioned, but not the new information of his brother in law’s own arrest in that year).

2. The Authority took into consideration that the First Applicant provided little details.  It was not clear when he claims the three brothers in law were arrested (2008 or 2013 or 2016, although the Authority assumed to be after 2012), and he provided no details of when his wife moved house or was harassed.  In relation to the information relating to his wife, the Authority considered the nature of the information (about a sexual assault / rape) as being something that if it had just occurred (that is, in May 2016, shortly before the First Applicant learnt of it), made it “even more likely” he could have informed the Department.  It took into consideration that the First Applicant was legally represented and informed on a number of occasions to provide all information about his claims.

3. The Authority found the First Applicant’s explanation, of fear of disclosure to Sri Lankan authorities, was not consistent with his previous disclosure of reprisals from the Sri Lankan authorities.  The Authority found that his explanation did not make sense as the Sri Lankan authorities carried out the conduct, thus they would already be aware.  It also noted that it had been explained that the claims would be and were kept confidential. 

4. Fairly read, the Authority’s findings of credibility were informed by its consideration of the First Applicant’s failure to mention information that was closely related to events and people he had previously mentioned, and information that was more ‘serious’ in connection with matters he had already raised.  It was in this context that the First Applicant’s failure to provide information earlier informed the Authority of its findings of credibility.  The Authority considered the First Applicant’s failure to provide ‘critical’ information of claimed matters that occurred prior to the Delegate’s decision, as a represented applicant, and given the number of opportunities he had to do so. 

1. I find that the Authority found that the information provided by the First Applicant was not credible personal information, and it found that the explanation he proffered for the late provision of the information not credible.  In so finding it did not limit its consideration to the “temporal aspects”.

2. As I have said in the context of my consideration of the applicable principles, the conditions in s.473DD of the Act are cumulative, and both s.473DD(a) and s.473DD(b) must be met. I do not accept the First Applicant’s submission that it was necessary or material in this case that the Authority consider s.473DD(a) of the Act separately notwithstanding that the Authority had found that s.473DD(b)(ii) was not met.

3. It is clear from a fair reading of [10] – [12] of the Second Authority’s decision, that the Authority’s consideration of s.473DD(b)(ii) informed its finding of ‘exceptional circumstances’ under s.473DD(a) of the Act at [12] of the Act. As I have noted above, the consideration of those provisions may “overlap to some extent”; consideration of the matters in s.473DD(b) may inform consideration of s.473DD(a): BBS16 at [102], and [111]. The Authority plainly based its consideration that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible: see AQU17 at [16]. In my opinion it was open to the Authority to decide, having regard to the matters it considered in [10] and [11] of the Second Authority decision, that it was not satisfied that exceptional circumstances existed.

4. As to the Second Applicant’s further submissions, there was the one fast track decision referred to the Authority for review, being the Delegate’s decision.  There was one substantive application the subject of the Delegate’s decision, the Visa application made by the First Applicant in which the Second Applicant was identified as a member of the same family unit as the First Applicant, not raising his own claims for protection.  Each of the Applicants indicated that the Second Applicant did not raise his own claims for protection in the Visa application (Form 790B Part B, item 3, and Second Applicant’s Part C, question 88).  The obligation of the Authority is to review that one decision.  The statutory language is clear.

5. The Second Applicant did not make any claims of his own and relied on the claims of the First Applicant.  In the circumstances of this case, there is no claim raised clearly or squarely on the material before the Authority by the Second Applicant. 

6. Whilst an unarticulated claim might clearly emerge before a decision‑maker (as the Full Court has explained in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89; (2018) 261 FCR 503 (at [18] – [31]), including from a decision-maker’s findings and the material before them, this is not such a case. No such claim of the Second Applicant clearly emerges from the findings of the Authority in the Second Authority decision.

7. I find that the Authority was under no obligation to consider the Second Applicant’s circumstances separately to that of the First Applicant.  The Authority’s consideration of the new information was correctly assessed against the claims put forward, that is, the First Applicant’s claims.  I do not accept the Second Applicant’s submission. 

8. I find that the Authority did not err by considering the new information against the claims of the First Applicant. 

9. It follows that the Applicants’ grounds 1 fail.

First and Second Applicants’ ground 2

1. The Applicants each assert by their ground 2 that the Authority fell into error by failing to provide the Applicants an opportunity to give evidence and provide ‘new information’ under s.473DC(3) for the purposes of satisfying s.473DD of the Act: see above at [31] and [32] respectively.

2. Ms Graham submitted that the Authority denied the First Applicant procedural fairness by failing to give him the opportunity to address the prospects of the finding by the Authority that the information was not credible, when he discovered the most recent sexual assault allegations, and why he did not seek to make further submissions before the Delegate made the decision. She argued that the Authority erred by failing to exercise its jurisdiction under s.473DC(3) of the Act, in circumstances where an adverse finding was going to be made against him in respect of the credibility of the new information sought to be relied on.

3. Ms King submitted that the Second Applicant has a right to procedural fairness, relying on Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57. She relied on the limitations of procedural fairness described in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [9]:

   Procedural fairness requires a decision maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power. The decision maker must also advise of any adverse conclusion which would not obviously be open on the known material. However, a decision maker is not otherwise required to expose his or her thought processes or provisional views for comment before making the decision.

4. Ms King argued that the Authority fell into jurisdictional error by failing to consider inviting the Second Applicant to provide information under s.473DC in circumstances where the submission from the First Applicant explicitly stated that new information had been concealed from the Second Applicant: see CRY16 at [82]. The Authority denied the Second Applicant procedural fairness by failing to consider the Second Applicant’s circumstances separately from the First Applicant’s circumstances, and by failing to provide the Second Applicant the opportunity to respond to the new information.

5. In response, Ms Graycar for the Minister contended that the Applicants’ submissions that the Authority denied them procedural fairness are fundamentally misconceived. Section 473DA, with ss.473GA and 473GB of the Act, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule”.  She submitted that a consequence of this is that there is no procedural fairness obligation to put dispositive matters to an applicant.  Further, there is no obligation to put to an applicant, as part of any procedural fairness requirement, that a decision maker is considering making a credibility finding against them as such a finding is not ‘information’: see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18].

6. The Minister submitted that the decision in CRY16 is to be understood with reference to its context - where the Authority is unable to undertake its review by reference solely to the review material in circumstances where a new issue arises, particularly one in the nature of relocation, and there is no material before it upon which it can consider that issue. 

7. The particular factual context in which the finding of unreasonableness was made in CRY16, was distinguished in DGZ16. Where the Authority is reassessing material which the delegate had considered, the fast track statutory regime of Part 7AA does not require the Authority to notify the referred applicant that it is considering taking a different view, adverse to the applicant. This is consistent with the approach taken in M174 at [17]. Apart from the new information, neither Applicant identified any new issue that the Authority was required to consider, and which had not been considered by the Delegate.

8. Ms Graycar further submitted that it is relevant that the Applicants did not seek to provide any additional submissions after the matter was remitted to the Authority this second time, nor did the Applicants request the opportunity to be interviewed. 

Consideration

1. I accept the Minister’s submissions. The authorities referred to by the Applicants do not relate to the limited form of review provided in Part 7AA of the Act. Under the regime prescribed by Pt 7AA there is no general procedural fairness obligation on the part of the Authority to put dispositive matters to the Applicants. The principles in SZBEL do not apply to reviews under Pt 7AA: see DBE16 v Minister for immigration and Border Protection [2017] FCA 942 at [59]; see also ALR17 v Minister for Home Affairs [2019] FCAFC 182 at [12].

2. The Authority made a finding of credibility under s.473DD(b)(ii) of the Act. The Authority had no obligation to put to the Applicants’ that the Authority was making a credibility finding against the First Applicant: see SZBYR at [18]. It did not make any credibility finding against the Second Applicant.

3. The new information did not relate to issues that both had not been dealt with by the Delegate and which the Authority was proposing to consider and rely on in making its decision: c.f. CRY16.

4. Whilst there may be circumstances in which it would be legally unreasonable for the Authority to fail to consider exercising the discretion under s.473DC(3), given the credibility finding the Authority made in relation to the new information referred by the First Applicant (which I have considered above), and that the Second Applicant made no claims of his own, even if I assume that the Authority failed to consider whether to exercise its discretion so as to indicate that it might not consider the new information, it cannot be said that there is anything in the circumstances of this case which required the Authority to consider exercising the discretion in s.473DC(3). The Authority’s conduct and / or its findings did not have the character of being legally unreasonable.

5. The Authority did not fall into error.  The Applicants’ respective grounds 2 must fail. 

First Applicant’s ground 3 and Second Applicant’s ground 5 – failure to consider all material

1. The First Applicant asserted by his ground 3, and the Second Applicant asserted by his ground 5, that the Authority failed to discharge its duty to consider all material provided to it pursuant to s.473BA of the Act.

2. The Applicants each submitted that the Authority failed to consider all the claims of the Applicants, and so failed to discharge its duty to consider all material presented before it.  They submitted that such a failure by the Authority is a jurisdictional error, as stated by the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [54].

3. The Minister noted that neither Applicant identified any material that was before the Authority but not considered (excepting the new information).  The Applicants have the onus of proof, and First Applicant’s ground 3 and the Second Applicant’s ground 5 must be rejected: see SZGUR at [67], [91]-[92].

Consideration

1. These grounds do not raise any separate issues beyond ground 1.  For the same reasons as I there set out, it follows that the First Applicant’s ground 3 and the Second Applicant’s ground 5 fail. 

Second Applicant’s grounds 3 and 4

1. The Second Applicant asserted by his ground 3 that the Authority fell into jurisdictional error by failing to separately consider the Second Applicant from the First Applicant.  By his ground 4, the Second Applicant asserted that the Authority failed to deal with an integer of his claims.  The First Applicant referred to the particulars to ground 1. 

2. Ms King argued that s.473CC of the Act imposes a primary obligation on the Authority to conduct a review in relation to the referred applicant, and the Authority accepted that the Second Applicant was a review applicant. It follows that the nature of the review is not to be confined by reference to a derivative claim, but, instead, if there is a claim that emerges from the material, the Authority has a duty to consider it.

3. Ms King accepted that no independent claims were ever made in relation to the Second Applicant to the Authority.  She argued that the material before the Authority is such as to raise a concern that such claims should have been made on behalf of the Second Applicant.  She further argued that it is not a sufficient answer to that submission to say that the Second Applicant simply did not make claims of his own.  On the material that is before the Authority, there are key integers that apply to the Second Applicant, and it follows that the Authority has a duty to consider them. 

4. Ms King referred to AYY17 at [18]; ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at [21]; and submitted as per Thawley J in AXR16 v Minister for Immigration and Border Protection [2019] FCA 42 at [69], “the duty of an administrative body conducting a review to engage sufficiently with the material before it, and to conduct a sufficient evaluative process directed at the evidence before it, and the issues arising from that material.”

5. Ms King further noted that ‘consideration’ requires an active intellectual engagement with the facts and circumstances forming an essential part of the matter that must be considered: see Tickner v Chapman (sub non Norvill v Chapman) (1995) 57 FCR 451 89 LGERA 1 at [495] to [497].

6. She submitted that the Authority in its consideration of the new information at [5] to [9], failed to deal with the key integers of the claims as they relate to the Second Applicant.  Instead the wording and conclusions indicate that the Authority only had regard to the claims made by the First Applicant.  It follows that the Authority erred by failing to consider the claims arising on the material about the Second Applicant: BBS16. 

7. The Minister submitted that the Second Applicant expressly made no claims of his own.  It cannot be contended that the Authority was under any obligation to do more than it did at [69], in the circumstances where the Second Applicant’s claims were derivative from the First Applicant’s claims.  

8. Ms Graycar submitted that if a claim is not articulated expressly it must emerge clearly, or squarely, from the material before the Authority and it “will not depend for its exposure on constructive or creative activity by the Tribunal”: see NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58]. No such claim emerges in the present case.

Consideration

1. Ground 3 is put at a very high level, as conceded by Ms King at the hearing.  Ground 4 does not identify any matter not addressed by the previous grounds.  The Second Applicant’s references to case law do not provide any content to this ground.  These grounds lack content. 

2. As I have identified at [74]‑[77] above, the Second Applicant made no claims of his own. Contrary to the Second Applicant’s submissions, no claim of the Second Applicant clearly emerged from the materials before the Authority or can be discerned in its findings. As I have discussed above in relation to ground 1, the Authority engaged with the material before it and conducted a sufficient evaluative process directed at the evidence before it and the issues raising from that material.

3. Grounds 3 and 4 are not established, they must fail. 

Second Applicant’s ground 6

1. By his ground 6, the Second Applicant asserted that the Authority misconstrued the nature of the review that it was to conduct under s.473CC of the Act, on the basis that it failed to properly undertake the task of considering the Second Applicant’s circumstances either in part or in its entirety. It particularises that the Authority confined its review to a consideration of the First Applicant’s claims and failed to consider the merits of the Delegate’s decision as it pertained to the Second Applicant.

2. The Minister submitted that the Second Applicant’s claims were considered on the basis of being a member of the family unit of the First Applicant.  The Second Applicant did not make an application for the Visa in his own right, by which he claimed to be a person who met the criteria for the Visa.  The Minister submitted that the Authority appropriately considered the Second Applicant’s claims in light of the principal claimant’s claims, being the First Applicant. 

Consideration

1. This ground was put at a level of generality.  It was not expanded upon in submissions.  It raises no issue additional to those I have considered, and rejected above. 

2. The Authority considered the Second Applicant’s situation directly at [69] of the Second Authority decision.  The Authority was not under any obligation to do more in the circumstances: where the Second Applicant identified as a member of the same family unit as the First Applicant, and did not claim to raise his own claims for protection. 

3. Further, the Second Applicant invites this Court to engage in impermissible merits review.  

4. For the above reasons, this ground fails. 

Conclusion and orders

1. For the reasons I have set out above, I have found that none of the grounds are made out.  I have concluded that the Authority did not fall into jurisdictional error.  It follows that the Applications should be dismissed with costs. 

2. I will so order. 

I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date: 18 September 2020