BVI18 v Minister for Immigration
[2020] FCCA 9
•17 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BVI18 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 9 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in significant respects and other fears found not to be well-founded – whether the Authority failed to deal with a claim arising out of the Departmental data breach in 2014 or whether the review by the Authority was disabled by the failure of the Secretary to provide the Authority with the record of an interview conducted with the applicant in Nauru considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.65, 473CB, 473EB |
| Cases cited: AKK17 v Minister for Immigration (2017) 327 FLR 343 |
| Applicant: | BVI18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1014 of 2018 |
| Judgment of: | Judge Driver |
| Hearing dates: | 21 June 2019, 6 December 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 March 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Chia |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 23 March 2018 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Immigration Assessment Authority to redetermine, according to law, the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1014 of 2018
| BVI18 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 March 2018. The Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male of Hindu faith and Tamil ethnicity, born in 1993 in the Porativu Pattu Divisional Secretariat, Batticaloa District and Eastern Province of Sri Lanka.
The applicant arrived in Australia as a teenager, his boat travelling directly from Sri Lanka and arriving at the Cocos (Keeling) Islands on or about 30 August 2012.
As an “unauthorised maritime arrival” (UMA), the applicant was detained and transferred to Nauru, a “regional processing country”, apparently pursuant to Part 2 Division 8 of the Migration Act 1958 (Cth) (Migration Act). Although at one point in dispute, it is now not contentious that the applicant met the requirements of the definition of a “fast track applicant”[1] and therefore his visa application is governed by Part 7AA of the Migration Act.
[1] Migration Act, s.5(1)(a)(i)-(iii).
Whilst in Nauru, the applicant was interviewed by departmental officers on behalf of the Nauruan government on 7 December 2012 (transferee interview)[2] and on 27 April 2013 ().[3]
[2] Court Book (CB) 4.
[3] Refugee Status Determination (RSD) interview. See RSD interview transcript, annexed to the affidavit of Lecia Stark made on 14 February 2019.
The RSD interview was conducted by an officer of the Minister’s Department on behalf of the Nauruan government and followed much the same format as the applicant’s later protection visa interview. The officer made some standard introductory comments, telling the applicant the interview was for the purpose of him providing additional information in support of his claims and that a recommendation would be made to the Nauruan government as to whether he was owed protection. The officer then went through some of the applicant’s biographical details before asking him about his family, his uncle, and his claims. The applicant said, amongst other things, that, because he was the oldest child in his family, he would be seen as a prime candidate for recruitment to the LTTE[4] and that, whilst in Colombo, he had had to pay bribes to the police. The interview then concluded with the officer putting to the applicant some of her concerns regarding his claims.
[4] Liberation Tigers of Tamil Eelam.
The applicant was returned to Australia in about September 2012.[5]
[5] CB 55.
On or about 22 September 2016, the applicant applied for a SHEV[6] pursuant to a Ministerial determination that s.46A(1) of the Migration Act does not apply to the applicant.
[6] Safe Haven Enterprise Visa.
The applicant provided a statutory declaration dated 2 September 2016 in support of his application for the SHEV.[7]
[7] CB 71-72.
In his statutory declaration, the applicant said that his family home was located in an area formerly occupied by the LTTE and, later, by the pro-government paramilitary group, TMVP,[8] formerly known as the “Karuna group”. The applicant claimed that his uncle, who lived with his family for a time, was a supporter of the LTTE and had permitted the LTTE to store weapons behind their home.[9] He said that the uncle later moved to Negombo and was abducted and tortured by the CID.[10]
[8] Tamil Makkal Viduthalai Pulikal.
[9] In his statutory declaration, the applicant said that his uncle was a member of the LTTE but he would later clarify that the uncle was only a supporter of, and had given money to, the LTTE: protection visa interview transcript at 48-50, 53.
[10] Criminal Investigation Department.
The applicant said that he was a member of the Manpower Sports Club, which had links to the opposition TNA[11] and that the TMVP targeted members of the club, arresting, detaining and torturing six members of the club in June 2012. The applicant said that five TMVP officers came to his home in January 2009 and questioned his father about his support offered to the LTTE and assaulted him in from of his family. They dug up the living room and broke the ceiling looking for stored munitions. The applicant also said that three days later the TMVP returned, questioning him about his involvement with the LTTE, checking his body for scarring and other evidence of military training, and telling him that he was going to be monitored.
[11] Tamil National Alliance.
In the statutory declaration, the applicant continued to say that his parents sent him to Colombo for his safety; however he was arrested in 2009, aged sixteen, and detained for seven days in inhumane conditions and questioned about his involvement with the LTTE. His mother would later tell him that, in his absence, the TMVP had repeatedly come to their home looking for him.
The statutory declaration concludes:
7.I fear that I will be harmed in Sri Lanka if I am returned because:
a)I did not comply with the conditions of reporting to the police after my release. I did not do so, because I feared the police will contact the TMVP and thereafter become aware of my status as a suspected supporter of the LTTE
b)Therefore, the police will detain me and perhaps charge me under Prevention of Terrorism Act for being a member of a prohibited organisation.
c)The TMVP will harm me because I flouted their authority.
d)The TMVP believes that I have received funds from the LTTE. Therefore I will be subject to extortion and worse abduction and torture,
e)My father was arrested by Kalawanchikudy police last month in relation to his connection to me. He was questioned by the police about my whereabouts and the money I received from the LTTE to take a boat to Australia.
f)The TMVP is still insistent in their belief that I have received money and weapons from the LTTE. They are still interested in interrogating me about the weapons,
g)Therefore, I will be tortured, if I return to Sri Lanka.
Included with the visa application were the applicant’s birth certificate,[12] Sri Lankan national identity card,[13] a letter of support from the chairman of the Manpower Sports Club[14] and statements from his father and mother.[15]
[12] Translation in CB 68.
[13] Translation in CB 70.
[14] Translation in CB 74.
[15] Translation in CB 77 and 79, respectively.
On 10 March 2017, the applicant attended an interview with the delegate (protection visa interview) and responded to questions with the assistance of an interpreter in the Tamil and English languages.
At the protection visa interview, the applicant provided further details of his claims, including that, whilst in detention in Colombo, he heard that an article with his photograph was published in the newspaper.[16] He also said that he had distant relatives who were LTTE martyrs,[17] that he had provided some assistance to the LTTE with delivering goods and helping with Martyrs’ Day celebrations,[18] and that his family were still in contact with former LTTE members who had been released from “rehabilitation”.[19]
[16] Protection visa interview transcript at 60.
[17] Protection visa interview transcript at 54.
[18] Protection visa interview transcript at 66.
[19] Protection visa interview transcript at 78.
The applicant also said at the interview that, contrary to the assurances that what he says will not be conveyed to the Sri Lankan authorities, the Minister’s Department had in fact sent him a letter apologising for publishing his personal information on the internet. He said that, even if details of his claims were not published, the Sri Lankan authorities could associate him with LTTE members who were on his boat, that those that came with him but had returned could be questioned about him, and that the police would definitely suspect him (collectively, data breach claim).[20]
[20] Protection visa interview transcript at 74-75.
The applicant also noted at the protection visa interview that he had previously had various documents and news articles in Nauru; however they were destroyed when there were riots at the detention centre and his building burnt down. The applicant said that he had already been interviewed on Nauru and that he had sought but not been provided those recordings prior to the protection visa interview. He asked that those things be considered and the delegate said that she would be taking everything he said into account.[21]
[21] Protection visa interview transcript at 77; delegate’s decision at CB 121-122.
On 26 May 2017, the delegate refused the applicant’s application for a SHEV, finding that he did not meet the criteria set out in s.36 of the Migration Act.[22]
[22] Court Book 116.
The delegate accepted the applicant’s claimed identity, that his home in Sri Lanka was searched by either the SLA[23] or TMVP, that his uncle may have been a financial supporter of the LTTE and questioned by the CID in Negombo, and that the applicant assisted the LTTE with Martyrs’ Day celebrations and had distant relatives who were LTTE martyrs.
[23] Sri Lankan Army.
However, the delegate did not accept that the uncle had been kidnapped for seven days and tortured and did not accept that members of the Manpower Sports Club were detained and tortured. The delegate did not accept that the applicant would be sought out by TMVP due to his membership of that club, his uncle or his distant relatives who were LTTE members. The delegate concluded that the applicant moved to Colombo out of general concerns for his safety and that he had in fact complied with the police reporting requirements.
The Authority below
On 31 May 2017, the delegate’s decision was referred to the Authority for review under Part 7AA of the Migration Act.
On 20 June 2017, the applicant provided written submissions to the Authority (20 June 2017 submissions).[24] The submissions generally responded to the delegate’s decision and referred to various country information reports regarding the situation faced by Tamils in Sri Lanka. In that submission, the applicant noted that he had made claims concerning the data breach and noted as follows: [25]
I have repeatedly stated in my claims and at the interview, that I was suspected as an LTTE supporter and was tortured by the authorities. Now that the data has been leaked, it becomes more dangerous for me to return back to Sri Lanka in the future. The Sri Lankan government and the authorities are aware that I was in immigration detention in Australia in January 2014. I fall under the category of a Tamil asylum seeker who has fled from Sri Lanka to avoid persecution and imprisonment due to my involvement in the LTTE before the war.
[24] CB 160.
[25] CB 161.
On 23 March 2018, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.[26]
[26] CB 170.
The Authority noted at [4]-[7] that the applicant’s 20 June 2017 submissions contained references to country information regarding Sri Lanka. It found that it was not able to consider the country information which pre-dated the delegate’s decision due to s.473DD of the Migration Act but that it could and had considered the country information that post-dated the delegate’s decision.
The Authority generally accepted that the applicant’s claims regarding his family, education, work and residential history. It accepted that he had been a member of the Manpower Sports Club and that he had moved to Colombo. However the Authority identified what it said were “significant changes, inconsistencies and credibility problems in the applicant’s evidence” and concluded that he was “clearly prepared to exaggerate, embellish and fabricate aspects of his evidence”.[27] The Authority did not accept that the applicant’s uncle was a member of the LTTE, that his family home had been searched for weapons, that the TMVP pursued the applicant or targeted members of the Manpower Sports Club, or that his father and uncle knew LTTE members who had been sent to rehabilitation and released.
[27] CB 175-177 at [22]-[23].
The Authority also reasoned that, if the police had wanted to enquire about the applicant, they would not have waited four years until August 2016 to arrest and interrogate his father.
The Authority noted that it had regard to the material given by the Secretary under s.473CB.[28] It is not a matter of dispute that the RSD interview recording was not given to the Authority and that therefore the Authority did not have occasion to consider it.
[28] CB 171 at [2].
Although the Authority did not refer to the applicant’s data breach claims at [8] of the decision (which summarised the applicant’s claims), it did record the applicant’s claims at [26] of the decision where it noted that the applicant was one of a number of asylum seekers affected by the data breach. The Authority found that the applicant may be identified as a returning asylum seeker who left Sri Lanka illegally.[29]
[29] CB 177.
At [29]-[41], the Authority gave extensive consideration to country information concerning the risks to those of Tamil ethnicity with express or imputed links or associations to the LTTE.[30] In that context, it found that the applicant did not have a profile that put him at risk of harm. It noted, among other things, that a person’s past or suspected LTTE membership or involvement no longer generally gives rise to the need for protection and the authorities had made no enquiries about the applicant’s whereabouts in the more than five years since he left Sri Lanka.[31]
[30] CB 178-182.
[31] CB 182-183 at [43]-[44].
The current proceedings
These proceedings began with a show cause application filed on 11 April 2018. An amended application was filed on 8 December 2018. The applicant now relies upon a further amended application filed on 5 July 2019. The grounds in that application are:
1. The second respondent (Authority) failed to give proper, genuine and realistic consideration to the applicant’s claim, based on the 2014 data breach.
2. Further or in the alternative, the process of review was subverted by a failure by the Secretary of the first respondent's department to give the second respondent the sound recording of the interview conducted by the department at Nauru Regional Processing Centre on 27 April 2013 (RSD interview).
Particulars
The applicant, at his interview with the delegate on 10 March 2017, referred to and relied upon what he had previously said at the RSD interview and was told that information he had previously provided would be considered.
In material breach of subsection 473CB(1) of the Act, the Secretary failed to give the Authority the sound recording of the RSD interview, which:
a. the applicant had '"provided" to the delegate under paragraph 473CB(1)(b) of the Act; or
b. the Secretary had either failed to consider the relevance of, or unreasonably treated as irrelevant, for the purposes of paragraph 473CB(1)(c) of the Act.
In addition to the book of relevant documents filed on 30 May 2018, I have before me the following affidavits:
a)the affidavit of Lecia Maree Stark made on 14 February 2019, to which is annexed the transcript of the RSD interview held at Nauru on 27 April 2013;
b)the affidavit of Sion Griffith made on 8 August 2019, in which Mr Griffith deposes as to the identification and transfer of relevant material from the Minister’s Department to the Authority; and
c)the affidavit Brooke Griffin made on 9 August 2019, to which is annexed a copy of the Republic of Nauru Refugee Status Determination Handbook dated August 2013.
Both the applicant and the Minister filed pre-hearing submissions prior to the commencement of the trial of this matter on 21 June 2019. At that time I adjourned proceedings to enable the applicant to provide better particulars of Ground 2 in the application as amended and additional evidence and submissions. Both the applicant and the Minister filed additional written submissions before the resumed hearing on 6 December 2019 and made oral submissions through their counsel at that time. I have been assisted by those submissions.
For the avoidance of doubt, the Minister no longer presses his notice disputing facts dated 14 December 2018. In respect of the RSD interview recording, the Minister accepts that:
a)the RSD interview recording was in the possession or control of the Secretary;
b)the Secretary did not provide a copy of the recording to the Authority; and
c)by virtue of (b), the Authority did not have the recording before it and did not consider the recording.
In addition, the Minister confirms that the delegate accessed the RSD interview recording from the departmental records.
Consideration
Ground 1 – the data breach claim
I accept the applicant’s submissions concerning the principles to be applied in relation to the first ground. In Applicant WAEE v Minister for Immigration[32] the Full Federal Court stated:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
[32] (2003) 236 FCR 593 (French, Sackville and Hely JJ, as his Honour then was) at [47].
In Khan v Minister for Immigration[33] Gummow J has stated that what is required when “considering” a claim is that “proper, genuine and realistic consideration” must be given to the merits of the claim in a real sense:[34]
[W]hat was required of the decision maker, in respect of each of the applications, was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ...
[33] (1987) 14 ALD 291.
[34] at [25] (citations omitted).
The Full Federal Court has more recently stated that what is required is that the decision maker “engage in an active intellectual process directed at that claim”[35]; that “if a critical piece of evidence or a particular issue is not referred to, that fact might be one from which an inference can appropriately be drawn that the decision-maker did not … engage actively with the matter” and that it is relevant to have regard to the centrality and prominence of the issue or material.[36]
[35] Carrascalao v Minister for Immigration [2017] FCAFC 107 at [45] per the Court (Griffiths, White and Bromwich JJ). See also Islam v Cash (2015) 148 ALD 132 at [14].
[36] Singh v Minister for Home Affairs [2019] FCAFC 3 at [36]-[37].
In the present case, the applicant had claimed at the protection visa interview that he would be imputed to have an association with the LTTE because, due to the 2014 data breach, he could be identified as having arrived in Australia with LTTE members and it would therefore be more dangerous for him to return to Sri Lanka.[37] The applicant said that those asylum seekers who could be identified as being in his cohort and who had returned to Sri Lanka could be questioned about him and suspicion would be raised.
[37] see above at [18] and also 20 June 2017 submissions at CB 161.
The applicant contends that this was a claim which could have been determinative, yet, in summarising the applicant’s claims, the Authority makes no reference to the data breach claim. Under the heading “Applicant’s claims for protection”, the Authority at [8] did no more than reproduce [7] of the applicant’s statutory declaration.[38] Nowhere does the Authority acknowledge that the applicant had claimed that publication of his name in the data breach could lead to him being associated with others on his boat who were LTTE members. Nowhere does the Authority refer to, much less than deal or engage with, the data breach claim when making findings in relation to imputed LTTE support and political opinion, under the heading “Young Tamil male from the east, LTTE links and imputed political opinion”. Nowhere in the Authority’s reasons does it make findings as to whether there were LTTE members on the applicant’s boat, whether the Sri Lankan authorities could associate him with those persons, or question them about him on return to Sri Lanka. Under “factual findings”, the only reference to the data breach is under the heading “returning asylum seeker and illegal departure from Sri Lanka”, where the Authority notes that the data breach would only reveal that he had sought asylum,[39] and not whether others who had also sought asylum could be connected to him.
[38] applicant’s statutory declaration at [7] set out above at 14.
[39] CB 186 at [61].
In the applicant’s submission the Authority did not “engage in an active intellectual process” directed at the data breach claim.
I reject that contention. I agree with the Minister’s submissions concerning this ground.
It is not in dispute, at a conceptual level, that the Authority may fall into jurisdictional error if it fails to engage with, or give active consideration to, a material aspect of an applicant’s case. However, to state the problem in these terms is to say little about whether there was such an error. As the Full Federal Court has explained in Minister for Home Affairs v Buadromo[40] a failure to engage with material in a way that leads to error may be described in a number of different ways with different connotations, of which the description “active intellectual exercise” is merely one.[41] What is required is a proper analysis, within the applicable statutory setting, of what the decision maker did. It might be added that this includes the nature of the claims advanced, the way in which the reasons deal with the issue (including by reference to other broader issues) and the prominence of the material within that conceptual scheme.[42]
[40] [2018] FCAFC 151.
[41] ibid at [42]-[45].
[42] Singh at [36].
In this context, the Full Federal Court in Buadromo reiterated (albeit in a different statutory context) that:
a)an obligation to give reasons does not require a line by line refutation of the evidence. It must give reasons for decision, not the sub-set of the reasons why it accepted or rejected individual pieces of evidence;
b)a decision maker is not required to make findings of fact about every claim made or issue raised. There are many instances where such factual findings are not necessary; it is not possible to be comprehensive.
The Full Federal Court also reiterated that it is not generally essential for a decision maker to refer to every piece of evidence or contention raised by an applicant. In doing so, it in effect re-emphasised that Applicant WAEE continues to be good law.
I accept the Minister’s submission that the characterisation of the “data breach claim” by the applicant at [35] of his written submissions is not entirely accurate. It is correct that the applicant stated in the protection visa interview that there may have been LTTE members in the boat in which he travelled to Australia. He went on to note that when those people (who may or may not have been on the boat with him) were returned to Sri Lanka the authorities would ask them about the applicant “because they ask do you know this person, we got the information about him and what is he doing there”. In other words, the principal concern was that the applicant would be the subject of scrutiny by reason of the data breach, in a situation where it was possible that some others returning to Sri Lanka, possibly imputed to have LTTE connections, might be questioned about him.
The statements during the protection visa interview were part of the broader claim made by the applicant about the risk that he may be imputed to have LTTE connections by reason of the data breach in addition to the other matters that he claimed gave rise to such imputed LTTE links. That is consistent with the claim advanced by the applicant in the written submission to the Authority. In that document the applicant emphasised his claims that he would be seen as an LTTE supporter. The applicant argued that the data breach would reinforce his perceived involvement with the LTTE. The applicant stated that he should be seen as “a person involved…involved in the LTTE and had been assisting the LTTE”.
It follows that the risk that other returnees who had travelled with him would be questioned about him was predicated upon the underlying claim that he was someone who would be seen as having imputed links to the LTTE and that returnees with such imputed links would be at risk.
Seen in this way, the Authority asked the correct question and assessed the correct claim in its reasons for three reasons. First, the Authority plainly considered, and found at [26], that the applicant may be identified, upon his return to Sri Lanka, as a returning asylum seeker who departed illegally.
Secondly, the Authority considered at some length and made extensive findings about the risk that the applicant might be perceived to be an LTTE supporter or imputed to have links or associations to the LTTE. In that regard, the Authority found that even suspected LTTE membership did not generally give rise to the need for protection and there was no basis to conclude that the authorities had any adverse interest in the applicant. Although not stated expressly, the breadth of this conclusion necessarily answered the question of whether the returnees would be asked about the applicant: there was no occasion to do so because the applicant, contrary to what he suggested in his written claims, was not the subject of adverse interest. In other words, as the applicant himself noted, the only reason the returnees might be asked about the applicant is if the authorities had some reason to do so. The suggestion was that the authorities would question the returnees about the applicant; they would only do so if they had reason to do so and the Authority implicitly rejected any suggestion that merely travelling with one of the returnees (and being identified by the data breach as having done so) would be sufficient to prompt questioning about the applicant’s putative LTTE links.
Thirdly, the Authority rejected the idea that being identified as an asylum seeker would expose the applicant to a real chance of harm. In that context, and consistently with the characterisation of the reasons outlined above, the Authority found that those with actual or perceived links may be questioned on return but the applicant did not have any profile (actual or perceived) as an LTTE member or sympathiser. The Authority found that the data breach would only identify the applicant as an asylum seeker. It implicitly rejected the idea that merely because the applicant travelled with a particular group of returnees that this fact alone would lead to adverse interest from the authorities because of imputed links to the LTTE.
There was no failure by the Authority to consider or engage with the applicant’s claims. Its conclusions covered the broad claims as advanced and necessarily disposed of the discrete aspect of the claim raised during the protection visa interview. No error arises.
Ground 2 – section 473CB
The applicant arrived in Australia as an UMA prior to the introduction of Part 7AA. As an UMA, the applicant was transferred to Nauru, at a regional processing centre, pursuant to s.198AD of the Migration Act. There is no dispute that the applicant was on Nauru from approximately September 2012 until November 2013.
While on Nauru, the applicant had his protection claims assessed as part of an RSD conducted by the Government of Nauru pursuant to the terms of the Refugees Convention Act 2012 (Nauru) (Convention Act). The RSD process on Nauru was a determination of protection claims under Nauru law for the purposes of establishing refugee status on Nauru.
It is not in dispute that officers of the Minister interviewed the applicant on behalf of the Nauru government on 7 December 2012 and then on 27 April 2013 for the purposes of the RSD. The second interview was conducted for the purposes of the RSD, and was recorded. It is the copy of that recording that is at issue in respect of the applicant’s second ground.
Applicant’s contentions
In EVS17 v Minister for Immigration[43] and Minister for Immigration v CPA16,[44] the Full Federal Court held that the failure of the Secretary of the Minister’s Department to forward material to the Authority under s.473CB of the Migration Act constituted jurisdictional error. In the former case, medical records and, in the latter case, two letters of support, were not forwarded by the Secretary to the Authority and the Authority therefore could not consider those documents when deciding the review. The Full Federal Court specifically rejected the Minister’s argument that the material not provided to the Authority must be “cogent or centrally relevant”, in the SZRKT sense.[45] The Full Federal Court referred to the High Court’s decision in Minister for Immigration v SZMTA[46] and concluded that, just as an invalid notification by the Minister’s Department to the Administrative Appeals Tribunal (Tribunal) under s.438 of the Migration Act could amount (without fault on the part of the Tribunal) to jurisdictional error, so too could a breach by the Secretary of the mandatory obligation to give the Authority material under s.473CB of the Migration Act amount to jurisdictional error by the Authority. Whether the breach amounts to jurisdictional error depends upon whether the Authority could have come to a different decision if the material had been provided to it. Referring to the High Court’s decision in Hossain v Minister for Immigration,[47] the Full Federal Court stated that the error must be “material in the sense that it operates to deprive the applicant of the possibility of a successful outcome”.[48]
[43] [2019] FCAFC 20 (Allsop CJ, Markovic and Steward JJ).
[44] [2019] FCAFC 40 (Yates, Murphy and Moshinsky JJ).
[45] In this sense, the Full Federal Court’s decision in EVS17 (at [38] and [42]) is a departure from the approach taken by this Court in AKK17 v Minister for Immigration (2017) 327 FLR 343.
[46] (2019) 363 ALR 599.
[47] (2018) 359 ALR 1 at [30]-[31].
[48] CPA16 at [32].
In the present case, the Minister’s Department (and therefore the Secretary) had in its possession the sound recording of the RSD interview. So much can be inferred from the fact that it was produced by the department to the applicant pursuant to a request under the Freedom of Information Act 1982 (Cth).[49] Further the admission has been made on behalf of the Minister that there was “no recording of [an interview conducted on 27 April 2013] given to the Immigration Assessment Authority”.[50] The applicant in any event relies upon a Notice to Admit Facts to the same effect dated 4 December 2018.[51]
[49] Supplementary Court Book (SCB) at 7.
[50] SCB 10.
[51] SCB 9. It is understood that the Notice Disputing Facts at SCB page 11 is no longer pressed.
The applicant contends that the content of the RSD interview was clearly material which, had it been referred to the Authority, could have realistically resulted in a different decision:
a)the applicant claimed at the RSD interview that his risk profile would be raised due to him being the oldest child in his family.[52] This was a claim which, if accepted, could itself give rise to imputed support for, or membership of, the LTTE; however it was a claim that was not considered by the Authority because it was not provided a copy of the sound recording of the RSD interview;
b)the applicant also claimed that, when he was living in Colombo, he paid bribes to the police.[53] Again, this was a claim that, if accepted, could have itself amounted to persecution or otherwise been dispositive of the review; however, it was not considered by the Authority. Even if not dispositive, it was a claim that if accepted would, at the very least, have explained why the police might have waited some four years, until after the applicant left Sri Lanka, before they proceeded to arrest his father and, accordingly, been relevant to the Authority’s reasoning at [24].
c)the Authority relied at [23] on “significant changes, inconsistencies and credibility problems in the applicant’s evidence”, primarily arising from differences between the account set out in his statutory declaration and his responses to questions at the protection visa interview. However it cannot be said that the Authority’s assessment of the applicant’s credibility would necessarily have been the same if it had been aware of the further account given in the RSD interview:[54]
As Gleeson CJ said in Aala (at [4]) “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” Credibility findings are often non-linear in nature: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79] (Hill, Sundberg and Stone JJ); SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (Lee J). We respectfully agree with Kirby J’s observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [81] where his Honour said:
...decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.
[52] RSD interview transcript at 30.
[53] RSD interview transcript at 22-23.
[54] CPA16 at [39] per the Court.
By his application dated and filed 5 July 2019, the applicant contends, amongst other things, that the Authority committed jurisdictional error due to the failure of the Secretary of the Minister’s Department to forward to it the sound recording of the applicant’s 27 April 2013 RSD interview conducted at Nauru Regional Processing Centre in material breach of ss.473CB(1)(b) and (c) of the Migration Act.
As noted above, the Minister has subsequently filed:
a)the affidavit of Ms Griffin made 9 August 2019, annexing the Republic of Nauru Refugee Status Determination Handbook; and
b)the affidavit of Mr Griffith made 9 August 2019, attesting to the Minister’s Department’s procedures and storage of documents, including the RSD interview recording.
The applicant makes the following submissions, limited to the question of the interpretation of s.473CB(1)(c) of the Migration Act, pursuant to the orders of the Court made on 8 and 13 November 2019 and further to the applicant’s written submissions dated 7 June 2019.
Section 473CB(1)(c) of the Migration Act provides as follows:
(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:
…
(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;
…
In EMJ17 v Minister for Immigration,[55] Thawley J stated:
(5) A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process - cf: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].
[55] [2018] FCA 1462 at [41]-[42].
In amplification of the last proposition:
(1) If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.
(2) A breach of s 473CB(1)(c) might also have that consequence. The statutory scheme contemplates limited merits review on the “review material” provided by the Secretary to the Authority. The “review material” must include material which the Secretary considers to be relevant: s 473CB(1)(c). It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law - see: Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority’s decision-making process and whether it conducts a “review” of the kind authorised.
His Honour’s comments were later approved by the Full Federal Court in EVS17 and CQR17 v Minister for Immigration.[56] In the latter case, the Full Federal Court stated that breach is established where the Secretary either does not consider the relevance of documents or where he considers the relevance and unreasonably concludes the documents are not relevant to the review.
[56] [2019] FCAFC 61.
More recently, in BLA16 v Minister for Immigration,[57] Bromwich J stated at [18]-[19]:
[57] [2019] FCA 748.
The Minister … submits:
(1)the language and necessary operation of s.473CB(1)(c) reveals that the live issue raised by this ground of appeal is the “domain” of documents to which the Secretary’s consideration must be applied;
(2)the primary judge held that this had to extend beyond the documents of which the Secretary was actually aware to those documents required to be collated because they may be relevant to the review by the Authority;
(3)that wider ambit was correctly derived by the primary judge from the language of s.473CB(1)(c) referring to documents both in possession or control, and considered to be relevant to the review;
(4)the primary judge thereby identified the required process in this case as being referrable to a valid visa application that was subject to a “fast track reviewable decision”, as defined in s.473BB;
(5)the 2013 statutory declaration related to an invalid application that the Minister was required not to consider under s.47(3) of the Migration Act;
(6)despite being given a copy of the invalid application at the time he was told that the bar to making a protection visa application had been lifted, per the letter from the Department dated 17 August 2015, the appellant did not rely upon the 2013 statutory declaration, either in support of his valid visa application or at any later time before the delegate, so as to bring it within s.473CB(1)(b) of the Migration Act;
(7)for those reasons, the 2013 statutory application was not within the domain of documents reasonably required to be considered under s.473CB(1)(c), and accordingly there was no breach; and
(8)it therefore follows that the primary judge did not err in concluding that a breach of s.473CB(1)(c) had not been established.
The Minister’s submissions must be accepted. Section 473CB(1)(c) cannot possibly be interpreted in a way that requires the Secretary to consider all the Departmental material in his or her possession and control, not least because of the sheer size and ambit of the Department’s operations and responsibilities in administering Australia’s migration laws. Statutory construction is therefore required to decide the metes and bounds of what must be carried out so as to comply with s.473CB(1)(c).
The reasoning of Bromwich J in BLA16, set out above, does not purport to determine the metes and bounds of when documents will be “reasonably required to be considered”. His Honour only stated that that was a matter to be determined in any particular case by statutory construction and that, in that particular case, it was not unreasonable for the Secretary to not have considered the document in question because the applicant had chosen not to rely on it and it related to a different (invalid) visa application.
In application, it will be difficult to distinguish between circumstances, on the one hand, where a document is not “reasonably required to be considered” and, on the other, circumstances where a document is not “unreasonably” considered irrelevant. In both instances what is reasonable is to be objectively determined and will depend upon the facts of the particular case. BLA16 does not set boundaries for the obligation of the department to act reasonably in the exercise of his power under s.473CB(1)(c).
Minister’s submissions
In his original submissions the Minister complained that the applicant had not identified with precision the breach of s.473CB for which he contends.
It is correct that the applicant referred to interviews that took place on Nauru (although it was not clear initially which interview he meant).[58] No actual claim was asserted about the interview or what was said in the interview.
[58] CB 71 (Statutory Declaration dated 2 September 2016 at [2]); CB 120 (delegate’s decision).
In his further submissions, the Minister refines his position with the assertion that the applicant has not identified why s.473CB(1)(c) has been breached in the present case.
As the applicant has noted, the construction and application of s.473CB(1)(c) has been the subject of recent judicial consideration, notably by the Full Federal Court in CQR17 and by the Federal Court in BLA16. In a slightly broader context, the Federal Court has also considered s.473CB(1) in EMJ17 and the Full Federal Court in EVS17.
The Minister concedes that the applicant is broadly correct in stating in his written submissions that the resolution of questions concerning a breach of s.473CB(1)(c) is likely to turn on the factual circumstances of each case. As noted above, it is, in the Minister’s submission, disappointing in that context that the applicant has chosen not to identify, even in outline, what the factual circumstances are (or apprehended to be as at the date of the written submissions) that support a finding that the Secretary’s assessment in the present case was legally unreasonable. In that regard, it is worth reiterating the framework within which a claim for legal unreasonableness arises.
The concept of legal unreasonableness should not be reduced to formulae or competing descriptions.[59] Reasonableness is informed by the subject matter, scope and purpose of the legislation in question.[60] The test for unreasonableness is necessarily stringent.[61] A supervisory court should remain mindful of the need not to exceed its role by undertaking a review of the merits or substituting its own view.[62] There is an area of “decisional freedom” where a decision maker has a genuinely free hand.[63] In that context, what the law permits and what it strikes down must be determined by the correct delimitation of the boundary between decisional freedom and legal unreasonableness.[64] Where minds might differ about the outcome or justification for an exercise of power or where it falls within the range of legally and factually justifiable outcomes, the exercise of power is not unreasonable.[65]
[59] per Allsop CJ in Minister for Immigration v Stretton (2016) 237 FCR 1 at [2].
[60] per Thawley J in BCQ16 v Minister for Immigration [2018] FCA 365 [71]; per Kiefel CJ in Minister for Immigration v SZVFW (2018) 92 ALJR 713 at [11]-[13]; per Nettle and Gordon JJ in SZVFW at [88]-[90].
[61] per Kiefel CJ in SZVFW at [11].
[62] per Hayne, Kiefel and Bell JJ in Minister for Immigration v Li (2013) 249 CLR 332 at [66]; Minister for Immigration v Singh (2014) 231 FCR 437 at [47].
[63] French CJ in Li at [30].
[64] per Steward J in Mowatt v Minister for Home Affairs (No.2) [2018] FCA 1157 at [24].
[65] per Wigney J in Stretton at [92].
The proper focus is on the area of decisional freedom and its boundaries as drawn by the nature and character of the decision and the terms of the relevant statute in the particular legal and factual setting.[66] The relevant task is one of characterisation.[67]
[66] per Allsop CJ in Stretton at [7].
[67] per Allsop CJ in Stretton at [11].
The courts will not lightly interfere with the exercise of a statutory discretion and should not enter the zone of discretion reserved for the decision maker.[68] The implied standard of reasonableness applies to the justification for the way that the discretion is exercised as well as the result but a breach of that standard is not shown simply by virtue of a defect in reasoning.[69]
[68] per Griffiths J in Minister for Immigration v Haq [2019] FCAFC 7 at [37].
[69] per Colvin J in Haq, at [74] and generally at [72]-[97].
As outlined above, it will be insufficient for the applicant merely to claim that the document in question (the RSD recording) is one that is relevant to the review in question. Relevance is an evaluative idea and, critically, the applicant faces a high threshold in persuading this Court that an assessment about relevance (in particular, by reference to the domain of documents of which the Secretary has chosen to search) is unreasonable. It bears repetition that even if minds might differ, or there is an available view that the Secretary was wrong not to provide the document to the Authority, that does not make out a case for unreasonableness. It is only where it can be demonstrated that, within the scope, object and purpose of the statutory power in question (properly construed), a decision was capricious or manifestly unintelligible that an applicant may meet the requisite test. The Minister submits that the applicant does not meet the threshold in the present case.
At issue is whether, in the circumstances of this case, it was unreasonable for the Secretary not to provide a document (notionally within the Secretary’s possession or control) to the Authority in respect of an entirely different process and an entirely different application. The Minister contends that it was not.
Resolution
Ground 2: section 473CB(1)(c)
The applicant now relies on two alleged breaches of s.473CB(1) relating to sub-paragraphs (b) and (c). In respect of the latter, the applicant’s case is based on the Secretary doing one of two things: first, failing to consider the relevance of the RSD interview; or, secondly, unreasonably treating the RSD interview as irrelevant. It is suggested that both formulations constitute a contravention of s.473CB(1)(c). It is appropriate to begin with the legislative context, as the Minister does in his submissions.
The statutory language
The relevant statutory language is as follows (emphasis added):
(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;…”
A number of matters should be noted about the language of s.473CB(1).
First, the obligation on the part of the Secretary in the chapeau of the section, to which sub-paragraphs (a), (b), (c) and (d) relate, is to provide material “in respect of” the “fast track reviewable decision” that has been referred. The decision in question is the delegate’s decision made under s.65 that is subject to review by the Authority (in the present case, the decision dated 26 May 2017). The words “in respect of”, although broad, provide for a connection between the material and the decision itself. That is the overarching frame of reference by which sub-paragraphs (a) to (d) are to be construed.
Secondly, as noted in the Minister’s original submissions, sub-paragraph (b) is referrable to “material” that is “provided by” the applicant. There is no reasonable textual basis to read the noun “material” as extending to explicit or implicit references made by an applicant to material that is not actually provided to the delegate. The purpose of sub-paragraph (b) is also evident: it places an obligation on the Secretary to corral, and provide to the Authority, the domain of documents provided by an applicant to the delegate before they make their decision. The default position under Part 7AA is that the review will be conducted on the papers. In that context, the legislature focused on ensuring that the substantive material that the applicant placed before the delegate was also provided to the Authority.
Thirdly, sub-paragraph (c) identifies a domain of documents, beyond those provided by the applicant, that the Secretary possesses or controls, and which the Secretary considers relevant to the review. Relevantly, the Secretary’s consideration is referrable to the review of the delegate’s decision, being a fast-track reviewable decision. In other words, relevance is framed by the scope of the delegate’s decision and the limited scheme of merits review contemplated by the terms of Part 7AA. The other aspects of s.473CB(1)(c) are dealt with in further detail below.
Fourthly, sub-paragraph (d) (the text of which has not been set out), facilitates the provision of the applicant’s contact details, as the Authority must notify the applicant directly of the outcome of the review.[70] This is, again, consistent with the statutory focus on the delegate’s decision, the matters considered within the scope of that decision, and the Authority’s review of that decision.
[70] Section 473EB; Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [877].
Section 473CB(1)(c) of the Migration Act
It is plain from the text of sub-paragraph (c) that the Secretary is required to provide, from material within the Secretary’s possession or control, material that the Secretary considers to be relevant to the review.
The statutory task is an evaluative one on the part of the Secretary and, in that regard, some matters are not contentious. First, the Secretary must form a view as to which documents are relevant.[71] Secondly, that view is a subjective one.[72] Thirdly, in some cases the question of whether the Secretary considered the relevance of documents may, as a matter of evidence, have to be addressed by looking at the assessment of relevance and asking whether a conclusion that the documents were irrelevant (by reason of the fact that they had not been provided to the Authority) was legally unreasonable.[73]
[71] EMJ17 at [41(1)]; CQR17 at [28]; BLA16 at [15].
[72] EMJ17 at [41(2)]; CQR17 at [28].
[73] CQR17 at [34]-[36].
Similarly, the authorities establish that the Secretary’s view (or evaluation) as to relevance must be formed reasonably.[74] Importantly, as the text makes clear, the evaluation falls to be assessed at the time when the delegate’s decision is referred to the Authority.
[74] EMJ17 at [41(3)]; CQR17 at [28]; [34]-[37].
The critical issue posed by sub-paragraph (c) is how to assess the Secretary’s evaluation of relevance in a particular case and whether that evaluation was reasonable. For this purpose, two situations can be envisaged: first, a document that (it may be inferred) was considered but determined not to be relevant; and, secondly, a document that was never considered because (it may be inferred) it was determined to be not relevant to search for it within the applicable domain of documents. The present case involves the second of these.
Two issues are likely to arise: first, identification of the documents which must be considered by the Secretary; and, secondly, the manner in which the Secretary must undertake consideration of the documents in order to assess their relevance (the Secretary’s obligation being conditioned by the need to provide documents that in the Secretary’s judgment are “relevant to the review”).
The section does not prescribe any particular method or process by which documents are identified.[75] The only guidance is that the documents must be in the possession or control of the Secretary.
[75] BLA16 at [20(1)].
The section cannot be construed so as to place a requirement on the Secretary to review or consider every document that is technically within the Secretary’s possession or control. The number of documents that the Secretary is likely to have would tell against such a construction, it being plainly at odds with the nature of the review process contemplated by Part 7AA, including the speed of referral mandated by s.473CA. As Bromwich J noted in BLA16, the section “cannot possibly be interpreted in [that way] not least because of the sheer size and ambit of the Department’s operations and responsibilities in administering Australia’s migration laws”.[76]
[76] at [19].
The plain text of the section might suggest that it is limited to documents of which the Secretary is personally aware. However, the context supports the view that the section requires consideration of more than the material of which the Secretary was actually aware.[77]
[77] BLA16 at [20(2)].
I accept that, taken together, these two propositions have the consequence that s.473CB(1)(c) should not be construed so as to require the Secretary’s consideration of all documents within his or her possession or control or require consideration of only documents of which the Secretary is actually aware. Rather, the Secretary’s scope of consideration is referable to the processes put in place by the Secretary to identify the domain of documents that needs to be assessed.
Put slightly differently, the domain must extend beyond the documents of which the Secretary is actually aware, to those documents of which the Secretary may be unaware but which must be collated because they may be relevant to the review. That is consistent with the statutory language and statutory context, notably the words “in the Secretary’s possession or control” must be read by reference to the process of consideration that the Secretary has to undertake in respect of the Authority’s review. In that regard, relevance is referrable to the “fast track reviewable decision”, not a different decision under a different statutory scheme.
The Minister correctly interprets the nature of s.473CB(1)(c) as impliedly conferring a power to search for documents, to be exercised reasonably. The “power” conception is to be preferred, and is correct in principle. This is consistent with the analysis and the result in BLA16: it is not necessary for the Secretary to search for documents associated with an invalid application; such documents will, without further examination, fall outside the sphere of relevance because the Authority must review material in respect of the delegate’s decision. It is also consistent with the observation of Thawley J in EMJ17 that an “unreasonable failure or refusal to identify document which might be relevant”[78] might be a breach of s.473CB(1)(c).
[78] At [41](4).
This explains the positing both of an obligation, consistently with the requirement to exercise the power reasonably, not only to maintain the correct domain of documents but also to undertake reasonable searches within that domain (or, alternatively, to conduct reasonable searches within the documents in the Secretary’s possession or control).
It is not in dispute that the Secretary did not provide the record of the RSD interview in Nauru to the Authority. The applicant did not provide the RSD interview to the delegate so there was no breach of s.473CB(1)(b). The question to answer is whether that failure constituted a breach of s.473CB(1)(c) of the Migration Act so as to disable the review function of the Authority.
In my view, the answer to that question is that the failure by the Secretary to provide to the Authority the record of the RSD interview did disable the Authority’s review function. The Minister has been able to determine as a fact that the delegate accessed the RSD recording prior to making her decision. This followed the delegate having assured the applicant at the SHEV interview that she would consider everything that he had said, after having been informed by the applicant of the RSD interview in Nauru. It was, therefore, part of the material considered by the delegate for the purpose of the delegate’s decision.
There is no doubt that the record of the RSD interview was material in the Secretary’s possession or control. Had the Secretary adverted to it, there can be no real doubt that the Secretary, if aware that the delegate had had regard to the record of interview for the purposes of her decision, would have considered the record to be relevant to the review. No other conclusion would in my view have been open to the Secretary. That is in my opinion sufficient for the Secretary’s breach to satisfy the test of legal unreasonableness, to the extent that such a finding is necessary.
Further, as is pointed out in the applicant’s submissions, the record of the RSD interview was, objectively, relevant to the review. It set out information having a direct bearing on the applicant’s claims which might have had a material outcome on the consideration of those claims by the Authority.
I conclude that, in the circumstances of this case, the breach by the Secretary of s.473CB(1)(c) did disable the Authority’s review function and, accordingly, the applicant should receive the relief he seeks.
Conclusion
The applicant has succeeded in establishing that the decision of the Authority is affected by jurisdictional error. He should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 March 2020
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