CCL17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 721
Federal Circuit and Family Court of Australia
(DIVISION 2)
CCL17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 721
File number(s): MLG 1003 of 2017 Judgment of: JUDGE EGAN Date of judgment: 30 August 2022 Catchwords: MIGRATION – application for safe haven enterprise visa – failure by Authority to accept that the applicant had a well-founded fear of persecution should he be returned to Sri Lanka – whether Authority conducted a proper review in circumstances where it had not been provided with the full details of claims made by a relative said to have had a low level of involvement with the LTTE – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) ss. 473CB, 5H(1), 5J, 473DC(l), 473DD(a), 473CB and 473DD(b)(ii) Cases cited: BXT17 v Minister for Home Affairs [2021] FCAFC 9
CQR17 v Minister for Immigration & Border Protection & Anor (2019) 269 FCR 367
EVS17 v Minister for Immigration & Border Protection [2019] FCAFC 20
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of last submission/s: 23 August 2022 Date of hearing: 23 August 2022 Counsel for the Applicant: Ms G Costello QC Solicitor for the Applicant: Bardo Lawyers Counsel for the First Respondent: Ms E Hoiberg Solicitor for the First Respondent: Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
MLG 1003 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CCL17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
30 August 2022
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.The Amended Application for Review filed on 23 August 2022 be dismissed.
3.The Applicant pay the First Respondent’s costs, fixed in the amount of $7853.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE EGAN
Introduction
The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an undocumented and unauthorised maritime arrival on 10 September 2012. He travelled to Australia in the company of his twin brother and uncle.
On 30 September 2015, the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV) jointly with his twin brother. The applicant’s brother relied upon the claims made by the applicant and also as a member of the applicant’s family unit.
On 21 November 2016, a delegate of the Minister refused to grant the applicant’s visa application.
The matter was referred to the Immigration Assessment Authority (the Authority) for review.
The joint claims of the applicant and his brother were summarised at [3] – [9] inclusive of the reasons of the Authority as follows:
“[3]The applicants were fourteen years old when they arrived in Australia. Their SHEV application was prepared with the assistance of a legal representative appointed under PAIS because they were deemed to be exceptionally vulnerable.
[4]Although they have, at different times, provided slightly different information about their family situation and living arrangements, I accept that they were born in Colombo where they lived with, and under the care of, their paternal uncle and their grandmother after their parents separated. They have a younger brother who lives with their mother. They do not know the whereabouts of their father.
[5]They attended school until halfway through year 10 when they left to come to Australia. The decision to leave Sri Lanka was made by their uncle, who told them on the day of their departure. He told them nothing about the reason why they were leaving. They travelled with their uncle and his son.
[6]Once in Australia, they learned that their uncle left Sri Lanka because he had been involved with the LTTE. According to information provided in the SHEV application, he was not a fighter, but had associations with people involved with the LTTE and did some low level work for the LTTE which involved transporting vehicles to different parts of the country. Because of this he had a lot of problems with the authorities which meant that he was not able to stay in one place for very long. When he decided that he needed to leave Sri Lanka he thought that the applicants would face problems as his dependents if he left them behind. The applicants knew nothing about their uncle’s involvement with the LTTE or any resulting problems with the authorities while they were in Sri Lanka.
[7]They stated that in 2007 their uncle went to Saudi Arabia for two and a half years and then to Qatar. At the SHEV interview the first named applicant said that he went there to work and sent money back to their grandmother. In the SHEV application they stated that after returning to Sri Lanka the uncle never stayed at home for more than a few days or a week, and this continued until they left Sri Lanka; they do not know where he was during these absences.
[8]In the SHEV application they stated that since their departure the CID have been to the family home and asked the grandmother about the whereabouts of all of them. They were not questioned further about this claim at the SHEV interview.
[9]At the SHEV interview their representative submitted that if they return they will be identified at the airport as failed asylum seekers who left illegally, and background checks will reveal their connection with their uncle. They fear that they will be detained and questioned as to the whereabouts and activities of their uncle, and they could be tortured. They could also face serious harm because as young Tamil males who left illegally they could be imputed to be supporters of the LTTE. It will be assumed that they spoke out against the Sri Lankan government. Their personal details were disclosed in the “data breach” and the information could have been accessed by the Sri Lankan authorities.”
When referring to the decision of the delegate, the Authority at [10] – [11] of its reasons said as follows:
“[10]The delegate noted in the Primary Decision Record that he had not accepted that the applicants’ uncle had a well-founded fear of persecution because of any association with the LTTE. The delegate therefore did not accept that the applicants had a well-founded fear of persecution because of their association with their uncle.
[11]Based on country information, the delegate did not accept that the applicants had a well-founded fear of persecution based on being of Tamil ethnicity and having a political opinion of support for the LTTE imputed to them for that reason, or because of other characteristics such as their association with their uncle, being young males, and having departed Sri Lanka illegally and sought asylum. The delegate did not accept that the applicants would be subjected to persecution or significant harm because they had departed Sri Lanka illegally, although he accepted they might be detained briefly, questioned and fined. He did not accept that they were at risk of harm as a result of their personal information having been briefly accessible online as a result of the data breach.”
At [12] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’). At [19] and [21] of its reasons, the Authority recorded what constituted a person as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
The Authority handed down its decision to affirm the decision of the delegate on 4 May 2017. At [13] – [14] of its reasons, when referring to country information, the Authority said as follows:
“[13]In accordance with s.473DC(l) of the Act the IAA obtained new information, that being the most recent Department of Foreign Affairs and Trade (DFAT) "Country Information Report on Sri Lanka", which was issued on 24 January 2017, after the delegate's decision. The delegate relied on information in the 18 December 2015 DFAT report for Sri Lanka, which has been superseded by the new report. The 2017 Report is DFAT's most recent assessment of the security situation in Sri Lanka, the treatment of Tamils, and the situation for Sri Lankans who have departed Sri Lanka illegally and sought asylum while overseas. I am satisfied there are exceptional circumstances to justify considering this new information: s.473DD(a).
[14]In a letter dated 24 March 2017 the IAA invited the applicants to comment on aspects of the 2017 DFAT Report which they were informed could be the reason or part of the reason for the IAA deciding to affirm the delegate's decision. Particular reference was made to the following issues discussed in the Report: the changed political environment since 2015; a dramatic improvement in the security situation since the end of the civil war; reductions in extra-judicial killings, disappearances and abductions for ransom; a decrease in instances of discrimination against Tamils; a decrease in instances of torture, including of returnees; prison conditions in Sri Lanka; and the treatment of illegal departees and returning asylum seekers, which DFAT assesses applies to all people and does not differ according to ethnicity.”
At [24] – [28] of its reasons, when carefully considering relevant country information in the context of the claims made by the applicant, the Authority found as follows:
“[24]The most recent, but now quite dated, 2012 UNHCR Eligibility Guidelines2 state that some individuals and their family members or dependents may require protection if they have certain real or perceived links with the LTTE. These include persons who held senior positions with considerable authority in the LTTE civilian administration; former LTTE combatants or former combatants who, due to injury or other reason, were employed by the LTTE in administrative functions; former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE; and LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE.
[25]DFAT notes that there are unverified reports of close relatives having been arrested and detained because of their family connections with former L TTE members. DFAT assesses that close relatives of high-profile former LTTE members who remain wanted by Sri Lankan authorities may be subject to monitoring.
[26]The applicants state that their uncle was not a combatant. Given that they have always lived in Colombo, and never in an area under LTTE control, I am not satisfied that their uncle had any role in the LTTE civilian administration. The applicants do not suggest that their uncle was involved in fund raising or had other links with the Tamil diaspora. Even if the claim that he was involved in the transportation of vehicles for the LTTE is accepted, by their own account, this was "low level" involvement, which I am satisfied must have ceased by 2007, when they say he went to work in Saudi Arabia for a period that would have encompassed the end of the war. There is no suggestion that he came under scrutiny during immigration procedures when he returned to Sri Lanka from working overseas. While they claim that he did not stay at home much after his return, there is no credible evidence before me to support the assertion that because of his LTTE links he was not able to remain for long in one place. Based on the very limited knowledge of the applicants, I am not prepared to accept that any time their uncle spent away from home was because of adverse interest in him by the authorities on account of his LTTE links, rather than for any number of plausible alternative explanations. Given that the applicants lived in the same residence as their uncle, despite their young age I do not accept that they could have been completely unaware of visits from the security authorities if these had been happening. Nor do I accept that they could have been completely oblivious to any periods of arrest or imprisonment had these accounted for any of their uncle's absences from home. Moreover, I do not accept either that a person involved in low level transportation of vehicles for the LTTE up until 2007 would have been of such interest to the authorities that they would have been forced to leave Sri Lanka in 2012, three years after the end of the war, in order to avoid discovery or investigation; or that if he had been, close family members living in the same place of residence would not have been aware of any interest in that person by the authorities. I also give weight to the fact that the applicants' uncle was found by the delegate not to be a person to whom Australia owes protection obligations because of actual or perceived links to the LTTE.
[27]Even accepting what the applicants say about their uncle's low level involvement with the LTTE, I am not satisfied that this would lead to any adverse impact on them. I do not consider that they would be imputed to hold pro-LTTE opinions, or be suspected of ever having been involved with the LTTE themselves by the fact of their connection with their uncle, given their young age during the war years and the fact that they were living in and attending school in Colombo throughout the war. I am not satisfied, on the basis of the information before me, that the authorities would be interested in the whereabouts of the applicant's uncle and so I am not satisfied that the applicants would be questioned in relation to this. Even accepting the applicants' claim at their highest I am not satisfied that a family connection to and dependence on a low level supporter of the LTTE would give rise to a real chance that they would face serious harm for this reason on return to Sri Lanka.
[28]The basis for the claim that the CID has spoken to the applicants' grandmother since their departure is not clear, and little detail has been provided, including when this was. On the available information I am not satisfied, if this occurred, that it demonstrates any adverse interest in the applicants due to their uncle's LTTE association, or because of any pro-LTTE opinion imputed to them.”
On the question of whether the applicant would be imputed as being an LTTE supporter by reason of his relationship with his uncle, the Authority, at [32] – [36] of its reasons, found as follows:
“[32]Based on the available information and for the reasons discussed above, I am not satisfied that the applicants would be imputed to be supporters of the LTTE because of their association with their uncle.
[33]I have considered whether the applicants would be imputed to hold pro-LTTE opinions because of their other personal characteristics, alone or in combination (including in combination with their relationship with their uncle), these being their Tamil ethnicity, that they are young Tamil males, and that they are failed asylum seekers who left Sri Lanka illegally.
[34]Country information indicates that at the end of the civil war a large number of LTTE members were arrested and detained; many civilians were also questioned or monitored for any possible LTTE activity and any form of civil resistance or anti-Government sentiment. The Sri Lankan security authorities remain sensitive to the potential re-emergence of the LTTE throughout the country, and continue to monitor Tamil populations in the Northern and Eastern Provinces, although it appears that the highly oppressive monitoring and registration regime in place just after the war is being eased. The purpose of the ongoing monitoring seems now to be less concerned with seeking out those people who were previously involved with the LTTE than with ensuring that the organisation does not re-emerge, and with eliminating dissent. The information considered by the delegate indicates that some Tamils continue to be monitored, arrested and detained, and despite the reported general easing of security conditions in the East and North, there continue to be security crackdowns. In these circumstances, I accept that some people may continue to be at risk of harm because of their actual or imputed political opinions, especially if they are taken into detention by security authorities as part of the process of monitoring, given evidence about the prevalence of torture and mistreatment in detention.
[35]However, I find that the applicants have no direct connection with the LTTE and have never been imputed by the authorities to have any direct connection with the LTTE. In these circumstances, and given the changed security conditions in Sri Lanka, indicating a different focus on the part of the authorities as to who might be of adverse interest in relation to LTTE connections or activity, I am satisfied that there is no real chance that they would be subjected to harm now or on return to Sri Lanka in the reasonably foreseeable future as persons with suspected LTTE connections for any reason including their relationship with their uncle, their Tamil ethnicity, the fact that they are young Tamil males, and because they left Sri Lanka illegally and applied for asylum.
[36]The country information indicates that failed Tamil asylum seekers are not specifically targeted for adverse attention from the Sri Lankan authorities at the time of re-entry unless they are suspected of having certain links with the LTTE. While there are reports of some Tamils returning to Sri Lanka, including failed asylum seekers, being detained on arrival or after returning to their villages and being subjected to mistreatment and torture8, the country information makes quite clear that the key risk factor is whether a Tamil has actual or perceived links to the LTTE which are of concern to the authorities.9 Some information indicates that it is only those viewed as a real threat to the unitary state, or likely to be involved in reviving the LTTE who may be at risk10• I do not consider that the applicants would be viewed in this light, even accepting that their uncle may have provided low level assistance to the LTTE prior to 2007.”
Grounds of Review
On 16 May 2017 the applicant’s lawyers filed an Originating Application for Review. At the hearing before the Court, the applicant relied upon an Amended Application for Review filed on 23 August 2022, the three grounds of which were as follows:
“Grounds of Application
1.The IAA failed to conduct a de novo review and instead adopted the conclusions of the primary delegate regarding the protection claims of the applicant’s uncle
2.The IAA’s decision is affected by jurisdictional error by reason of the Secretary’s breach of s 473CB of the Migration Act by not providing material to the IAA regarding the applicant’s uncle’s protection claims.
3.The IAA breached s473DD by failing to consider if new information about fell within s 473DD(b)(ii). The new information is described by the IAA at [17] of its decision and concerns harsh treatment of the applicant and his brother by police in Colombo”
As to Ground 1 of the Amended Application for Review, it was submitted on behalf of the Applicant that the Authority had merely adopted the delegate’s findings without considering the evidence upon which the adverse finding was based. Senior Counsel for the applicant relied upon particular passages at [10] and [26] of the reasons of the Authority in that regard. The Court does not accept such submissions.
The Court finds that the Authority did independently consider whether the applicant’s relationship with his uncle was such that by reason of the uncle’s alleged LTTE involvement, the applicant would thereby necessarily have a well-founded fear of persecution should he be returned to Sri Lanka. The applicant had claimed that his uncle was not a combatant, and that the uncle had merely been involved in the transportation of vehicles for the LTTE. At [26] of its reasons, the Authority reasoned that the applicant’s uncle would have only had low level involvement in the LTTE, and that time spent away from home by the uncle was not because of any adverse interest in him by the authorities. It was open for the Authority to so find. At [27] of its reasons, the Authority had clearly considered whether any pro-LTTE opinions or involvement might be imputed to the applicant, but the Authority rejected such proposition. The Authority relied in part upon country information in reaching such conclusion. It also could not be said that the Authority had failed to appreciate the nature of the claim being made by the applicant vis-à-vis his uncle’s purported LTTE connections. The Authority also relevantly addressed that issue at [35] and [36] of its reasons.
It cannot be said that no other rational or logical decision maker could not have made the same decision as the Authority. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] and [135]:
“[130]In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
…
[135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
There is no merit to Ground 1 of the Amended Application for Review.
Ground 2 involved a consideration of the provisions of s. 473CB of the Act, which relevantly provided as follows:
“473CB Material to be provided to Immigration Assessment Authority
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v) if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.”
Ground 2 was a claim that the Authority fell into jurisdictional error because it considered the applicant’s claims in the absence of it having been provided with the delegate’s reasons for rejection of the uncle’s protection claims. There is no merit to such ground.
First, the Authority did have before it information from the applicant relating to the nature of his uncle’s LTTE involvement – namely, his transportation of vehicles for the LTTE in a non-combatant context. The Secretary had provided to the Authority the reasons of the delegate which comprehensively set out the applicant’s claims about his uncle’s LTTE involvement. To the extent that the Secretary did so, the Secretary had complied with the provisions of s. 473CB(1)(a)(ii). Further, the Authority was provided with the applicant’s SHEV statement dated 8 September 2015.[1] In paragraph 16 of that statement, the applicant recorded that his uncle had only performed “ … some low-level work for the LTTE which involved transporting vehicles to different parts of the country.”
[1] Exhibit 1 – Court Book (CB) p. 105 – 108 inclusive.
In circumstances where the claim which was advanced on behalf of the applicant was that he claimed to have a well-founded fear of persecution based upon his uncle’s low-level profile and work for the LTTE, the Authority was clearly in a position where it could rely upon relevant country information when assessing whether the applicant had a real chance of persecution or not should he be returned to Sri Lanka. The Authority was not required, in the applicant’s review, to undertake the burdensome task (in a fast track review regime context) of seeking out all information in the uncle’s file which went to the question of his claimed LTTE involvement.
Secondly, it could not be said that the Secretary breached the provisions of s. 473CB(1)(c) of the Act in circumstances where there was a reasonable justification for the Secretary concluding that in order for the Authority being able to properly adjudicate upon the applicant’s claims it was unnecessary for the Authority to be provided with full details of all of the applicant’s uncle’s claims, particularly in circumstances where a delegate of the Minister had already rejected such claims. As was said by Derrington J in CQR17 v Minister for Immigration & Border Protection & Anor (2019) 269 FCR 367 at [109]:
“[109]Having identified the scope of what was relevant to the review, the appellant submits that a consideration of the documents not provided to the IAA discloses that the Secretary must have failed to comply with s 473CB(1)(c). For this argument to succeed the appellant must establish two matters. First, that the document in question was relevant to the review. Secondly, that, at the time the decision was referred to the IAA, the decision not to give the document to the IAA manifested a legally erroneous view as to what is relevant under s 473CB(1)(c) or the decision was not reached reasonably on a correct understanding of the law. If it can be said that a reasonable justification exists for concluding that the documents were not relevant to the review, it cannot be said the section was contravened, even if the Court might have reached a different conclusion.”
The Court finds that the Authority was not prevented from properly conducting the review by reason of the non-provision to it of full details of the uncle’s claims. The non-provision of documentary details of the uncle’s claims rejected by a delegate in this matter falls into a different and distinguishable category of documents not provided to the Authority in EVS17 v Minister for Immigration & Border Protection [2019] FCAFC 20, where it was held that the medical records in question could have corroborated the claims of the applicant in that case. In the present matter, the applicant’s claim that the involvement of his uncle with the LTTE was low-level did not render the decision of the Authority, or its consideration of the evidence before it, unfair.
In any event, the Court finds that even if the Authority ought to have been provided with full details of the applicant’s uncle’s claims, such error was not material, in that it could not be said that even if the Authority had been provided with such information, it could realistically have resulted in a different decision being made by it. In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell Gageler and Keane JJ at [45] and [46] said as follows:
“[45]Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.
[46]Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.”
Ground 3 was a claim that the Authority had failed to consider the provisions of s. 473DD(b)(ii) of the Act in relation to the claims of the applicant – as set out in [17] of the reasons of the Authority – that young Tamils living in Colombo were subject to search and roundup operations conducted by police, and that they were always subject to harsh treatment at checkpoints. It was also submitted that there was a realistic possibility that such treatment was somehow related to the applicant’s connection with his uncle. Section 473DD relevantly provided as follows:
“473DD Considering new information in exceptional circumstances
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.”
There is no merit to such ground. The Court finds that even if the Authority had not considered s. 473DD(b)(ii) matters, such failure could not have realistically resulted in the Authority arriving at a different decision. The Court respectfully adopts the binding authority of BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [139] – [146] per Markovic, O’Callaghan and Anastassiou JJ where it was said:
“[139]Next, the Authority set out its view about s 473DD(a) of the Act. But it did so without first considering the criterion in s 473DD(b)(ii). True it is that in setting out why in its view there were not exceptional circumstances for considering the Visa Grant Letter, the Authority considered the substance of the Visa Grant Letter. It noted that it did not include information about the sister’s claims or why she was granted a visa and that there was nothing before it to show that the sister’s circumstances were similar to those of the appellant, beyond mere assertion by the appellant’s representative to that effect. It effectively found that the Visa Grant Letter, which simply indicated that the sister had been granted a visa, was of no assistance to it. However, even accepting that this was an assessment of the personal information given and of whether the information might have affected the consideration of the appellant’s case, it was undertaken as part of the consideration of whether there were exceptional circumstances for the purposes of s 473DD(a) of the Act and not as an anterior step. While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister’s term, “structure” its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a): see AUS17 at [11].
[140] That the Authority may have considered the other items of new information in accordance with the requirements of s 473DD of the Act at [5] of its decision record does not, as the Minister puts it, support his contention that the Authority did so in the case of the Visa Grant Letter. In any event, that the Authority considered the criteria in s 473DD(b) before moving to a consideration of s 473DD(a) in the case of the other items of new information is not to the point. What is required is that the Authority assess the new information against both criterion in s 473DD(b) and then against the criteria in s 473DD(a), taking into account any finding it makes that one or other or both of the criterion in s 473DD(b) was met.
[141]In the circumstances, the Authority fell into error in its consideration of the Visa Grant Letter pursuant to s 473DD because it did not consider the criterion in s 473DD(b)(ii) before it turned to s 473DD(a). Having found that the criterion in s 473DD(b)(i) was met, it moved directly to consider whether there were exceptional circumstances for the purposes of s 473DD(a). The primary judge did not reach the same conclusion but her Honour’s decision was published prior to the decision in AUS17.
[142]It is then necessary to consider whether the error is material, a matter about which neither party made submissions nor was there any agreement between the parties or concession, on the part of the Minister, that if error was found it was material.
[143]In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29] – [31] Kiefel CJ and Gageler and Keane JJ said:
[29]That a decision-maker “must proceed by reference to correct legal principles, correctly applied” is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
[30]Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. …
[31]Thus, as it was put in Wei v Minister for Immigration and Border Protection , “[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”. Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
[144]In SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421 at [2] –[4] Bell, Gageler and Keane JJ held that a breach by the Administrative Appeals Tribunal (Tribunal) of an obligation to disclose an invalid notification made under s 438 of the Act was a jurisdictional error “if, and only if, the breach is material”. Their Honours explained that a breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to, in that case, the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. At [4] their Honours observed that where materiality is put in issue in an application for judicial review of a decision, it is a question of fact on which the applicant for judicial review bears the onus of proof.
[145]As noted above, neither party has made any submissions in relation to materiality. In that regard, the appellant has not discharged his onus.
[146]Putting that to one side, in our opinion, the Authority’s non-compliance with s 473DD was not material such that it amounts to a jurisdictional error. It did not operate to deny the appellant the possibility of a successful outcome. That is because in considering whether there were exceptional circumstances for considering the Visa Grant Letter, the Authority considered the substance of the Visa Grant Letter. It noted that it had no information about why the appellant’s sister had been granted a protection visa; the letter itself did no more than state that fact. The Authority had no information that suggested that the appellant’s sister’s circumstances were similar to his beyond an assertion made by the appellant’s representative. That explanation by the Authority amounts to an assessment of the credible, personal information provided and an assessment of whether the information might have affected the consideration of the appellant’s claims. Had the Authority undertaken its task as it was required to, by considering the criterion in s 473DD(b)(ii) before turning to s 473DD(a), it is tolerably clear that it would have reached the same conclusion.”
In the present matter, and for the reasons as found in respect of Grounds 1 and 2, the Court finds that any failure on the part of the Authority to consider s. 473DD(b)(ii) was immaterial.
Neither could the decision of the Authority be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66]This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
The applicant has failed to establish jurisdictional error on the part of the Authority.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) numbered paragraph is a true copy of the Reasons for Judgment of Judge Egan. Associate: JM
Dated: 30 August 2022
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