CQB20 v Minister for Immigration, Citizenship, Migrant Services an Multicultural Affairs

[2021] FCCA 838

FEDERAL CIRCUIT COURT OF AUSTRALIA

CQB20 v Minister for Immigration, Citizenship, Migrant Services an Multicultural Affairs [2021] FCCA 838

File number(s):	BRG 322 of 2020
Judgment of:	JUDGE EGAN
Date of judgment:	28 April 2021
Catchwords:	MIGRATION – applications for Safe Haven Enterprise Visas – claims that Authority failed to properly apply s. 473DD of the Migration Act – finding that Authority did perform its mandatory statutory duty – no jurisdictional error established – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 473BA, 473CB, 473DD, 473DD(b)(ii), 473FB.
Cases cited:	Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 . Minister for Immigration and Border Protection v Pandey [2014] FCA 640. AUS17 v Minister for Immigration and Border Protection [2020] 94 ALJR 1007. APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23.
Number of paragraphs:	32
Date of last submission/s:	8 April 2021
Date of hearing:	8 April 2021
Place:	Brisbane
Solicitor for the Applicants:	Angus Francis Lawyers
Counsel for the Applicants:	Mr Black
Solicitor for the First Respondent:	Minter Ellison
Counsel for the First Respondent:	Mr McGlade
Second Respondent:	Submitting appearance save as to costs

ORDERS

BRG 322 of 2020

BETWEEN:

CQB20

First Applicant

CQC20

Second Applicant

CQD20 (and others named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE EGAN
DATE OF ORDER:	28 APRIL 2021

IT IS ORDERED THAT:

1.The Amended Application for Review filed on 19 November 2020 be dismissed.

2.The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the Application for Review, fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE EGAN:

1. The first – fifth applicants are citizens of Sri Lanka. They arrived as a family unit in Australia on 18 April 2013 and were unauthorised maritime arrivals. The sixth applicant was a child born in Australia to the third and fourth applicants.

2. On 4 September 2016, the first applicant and the second applicant made a combined application for Safe Haven Enterprise Visas (SHEVs). On 12 December 2016, the third – sixth applicants made a combined application for SHEVs.

3. On 31 July 2017, a delegate of the Minister refused the applications when handing down four separate decisions. The decisions of the delegate were referred to the Immigration Assessment Authority (‘the Authority’) for review.

4. On 28 February 2018, in four separate decision statements, the Authority affirmed the decisions of the delegate.

5. A summary of the delegate’s findings was set out in [2] of the reasons of the Authority as follows:

   “[2] A delegate of the Minister for Immigration and Border Protection refused the applications in 4 separate decisions on 31 July 2017. For applicant 1 the delegate did not accept she faced a real chance or real risk of harm for reason of her family, ethnicity, gender, health issues, returning as a failed asylum seeker who left Sri Lanka illegally, or because of any past harm suffered. The delegate did not accept applicant 2 faced a real chance or real risk of harm for reason of his family, ethnicity, political activity and opinion, or any incidents that occurred when he returned from India to Sri Lanka in 2011 and 2012. In relation to applicant 3 the delegate did not accept he faced a real chance or real risk for harm for his political activity in India or Australia, his ethnicity, or returning as a failed asylum seeker. In relation to applicant 4 the delegate did not accept she faced a real chance or real risk for reason of her husband’s political activities, her ethnicity, her gender, or returning as a failed asylum seeker. The delegate assessed the children applicants 5 and 6 only as members of the family unit of applicants 3 and 4.”

6. At [5] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).

7. At [8] of its reasons, the Authority made it clear that all of the evidence presented to the Department in each of the combined visa applications would be taken into account by it in each of the two combined applications.

8. On 9 June 2020, an Originating Application for Review of the decision of the Authority was filed in the registry of this Court on behalf of each of the applicants. At the hearing before the Court, the applicants relied upon an Amended Application for Review filed on 19 November 2020, the grounds of which were as follows:

   “2. The decision of the Immigration Assessment Authority is affected by jurisdictional error because its application of s 473FB and s 473DD of the Migration Act 1958 miscarried in a way that was material to the outcome of the review.

   Particulars

   (a)Section 473FB(5) of the Act provided that the IAA was “not required to accept new information or documents from a person … if the person fails to comply with a relevant direction that applies to the person”.

   (b)At the relevant time, a practice direction dated 17 December 2018 was in force under s 473FB of the Act (the Practice Direction).

   (c) The Applicants, via their representative, provided to the IAA a written submission dated 11 March 2020 (the Submissions) along with 20 annexures (the Annexures).

   (d) The IAA found that the Submissions did “not comply with the Practice Direction because it exceeds the page limit for at least 2 of the applicants and does not clearly identify new information” and “decided not to accept” the Submissions under s 473FB(5) (see IAA reasons at para 25).

   (e) The IAA erroneously relied on the Practice Direction and s 473FB(5) to not accept the Submissions for consideration, because:

   (i) The Applicant’s Submissions in fact complied with the Practice Direction, and so the IAA’s discretion under s 473FB(5) did not arise.

   (ii) Alternatively, the IAA’s exercise of the discretion under s 473FB(5) was legally unreasonable.

   (f) The IAA’s erroneous decision to not accept the Submissions for consideration resulted in a material error, because a consideration of the Submissions by the IAA could possibly have resulted in a different decision on the review.

   (g) Further, the IAA also “decided not to accept” the Annexures (see IAA reasons at para 25) under s 473FB(5) and as a result did not consider whether s 473DD of the Act permitted it to consider any of the Annexures as “new information”.

   (h) The IAA erroneously relied on the Practice Direction and s 473FB(5) to not accept the Annexures for consideration, because:

   (i) The Applicant’s Annexures (supported by the Submissions) in fact complied with the Practice Direction, and so the IAA’s discretion under s 473FB(5) did not arise.

   (ii) Alternatively, the IAA’s exercise of the discretion under s 473FB(5) was legally unreasonable.

   (i) The IAA’s erroneous decision to not accept the Annexures for consideration resulted in a material error, because a consideration of whether the Annexures could be taken into account as “new information” under s 473DD could possibly have resulted in a different decision on the review.

   3. The decision of the Immigration Assessment Authority is affected by jurisdictional error because its application of s 473DD of the Migration Act 1958 miscarried in a way that was material to the outcome of the review.

   Particulars

   (a) Section 473DD of the Act prohibited the IAA from considering “new information” unless the requirements of paragraphs (a) and (b) of that section were satisfied.

   (b) “Applicant 3” before the IAA provided the IAA with a statutory declaration dated 11 March 2020 (see IAA reasons at para 26 and Court Book at p 1044).

   (c) Relevantly, the statutory declaration included information regarding the Naam Tamilar Katchi party; namely:

   (i) That, when in India, applicant 3 was an organiser for the Naam Tamilar Katchi party (see Court Book, p 1045).

   (ii) IThat the leader of the Naam Tamilar Katchi party was Senthamizhan Seeman (Seeman) (see Court Book, p 1045).

   (iii) That Seeman continued to be a strong advocate for the LTTE and a separate Tamil homeland (see Court Book, p 1045).

   (iv) That Seeman recently got in trouble in Malaysia allegedly seeking to raise funds to rejuvenate the LTTE (see Court Book, p 1045).

   (v) That applicant 3 continued to voice his public support for the Naam Tamilar Katchi party and Seeman (see Court Book, p 1045).

   (d) The statutory declaration also included, as Annexure B-15, a copy of Facebook post where applicant 3 had ‘liked’ or ‘reposted’ a speech by Seeman (the Facebook post) (see Court Book at p 1088).

   (e) The IAA accepted that the Facebook post (and other Facebook posts) satisfied s 473DD and so could be considered by the IAA (see IAA reasons at para 27).

   (f) In contrast, the IAA found that s 473DD(a) was not satisfied in relation to the information regarding the Naam Tamilar Katchi party (see IAA reasons at para 28).

   (g) On its true construction, s 473DD required the IAA to assess the new information regarding the Naam Tamilar Katchi party first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a).

   (h) The fell into jurisdictional by failing to assess the new information regarding the Naam Tamilar Katchi party against the criteria specified in s 473DD(b) before assessing s 473DD(a), or at all.

   (i) The IAA’s error was material, because a consideration of whether the information regarding the Naam Tamilar Katchi party could be considered under s 473DD could possibly have resulted in a different decision on the review.”

9. Section 473FB of the Act relevantly provided as follows:

   “Section 473FB

   Practice directions

   (1)  The President may, in writing, issue directions, not inconsistent with this Act or the regulations as to:

   (a)       the operations of the Immigration Assessment Authority; and

   (b)       the conduct of reviews by the Authority.

   (2)       Without limiting subsection (1), the directions may:

   (a)  relate to the application of efficient processing practices in the conduct of reviews by the Immigration Assesment Authority; or

   (b)  set out procedures to be followed by persons giving new information to the Authority in writing or at interview.

   (3)  The Immigration Assessment Authority must, as far as practicable, comply with the directions. However, non-compliance with any direction does not mean that the Authority's decision on a review is an invalid decision.

   (4)  If the Immigration Assessment Authority deals with a review of a decision in a way that complies with the directions, the Authority is not required to take any other action in dealing with the review.

   (5)  The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.”

10. The Practice Direction dated 17 December 2018 relevantly provided as follows:

    “About this direction

    [1]       …

    [2]       …

    [3] This direction sets out the requirements to be followed by applicants (you) and their representatives and authorised recipients when dealing with the IAA (us).

    …

    Submissions and new information

    [20] Reviews are generally conducted on the papers provided by the Department and are expected to be completed within six weeks of referral. However you may provide written submissions, and in exceptional circumstances we may consider new information.

    [21] If you have made a combined visa application with family members and you wish to provide a submission or new information, you should identify which applicant(s) the submission or new information relates to.

    [22] Subject to the requirements of the Migration Act, a decision may be made at any time after referral from the Department.

    Submissions

    [23] For the purposes of the review, you may provide a written submission on the following:

    ·why you disagree with the decision of the Department

    ·any claim or matter that you presented to the Department that was overlooked.

    [24]Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:

    ·be no longer than 5 A4 size pages,

    ·use a font size of at least 11 point with standard margins of at least 2.54cm,

    ·be easily legible when printed, and

    ·be provided to us within 21 days of your case being referred to us by the Department.

    [25] We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.”

    Consideration of Grounds of Review

11. Ground 2 of the Amended Application for Review asserted that the decision of the Authority was affected by jurisdictional error because it misapplied the provisions of s. 473FB and s. 473DD of the Act. It was claimed that in so far as the Authority had found that the submission dated 11 March 2020 and its 20 annexures did not comply with paragraph 24 of the relevant Practice Direction, the Authority had erred, and that such error was jurisdictional in character.

12. By way of context, at [22] – [25] of its reasons, the Authority set out why it had decided not to accept the submission dated 11 March 2020 as follows:

    “March 2020 – Submissions and New Information

    [22] Following the decision of Greenwood J remitting these matters to the IAA, on 11 March 2020 the current representative provided new information in the form of a statutory declaration of applicant 3 dated 11 March 2020 with 4 annexures. On 13 March 2020 the representative provided a 28 page document dated 11 March 2020 which contained legal argument, submissions, new information and 20 annexures.

    [23] On 8 April 2020 the IAA wrote to the representative advising the submission provided on 13 March 2020 was not compliant with the IAA’s Practice Direction dated 17 December 2018 and may not be accepted. The IAA advised the Practice Direction allows for written submissions not exceeding 5 A4 pages for a particular purpose, namely to address why the applicant disagrees with the delegate’s decision and any claim or matter overlooked by the delegate. The IAA also advised new information referred to in submissions should be clearly identified in accordance with the Practice Direction. The applicants were asked if they wanted to withdraw their submissions, including the submissions from 2017, and resubmit a new submission that complies with the Practice Direction.

    [24] On 14 April 2020 the representative responded that the submissions should be taken into account in their entirety as they contained submissions on the Federal Court remittal, a set of consolidated submissions for all applicants to assist the IAA, and new information which is identified in the submission including reasons why the IAA should consider the new information. There was no withdrawal of the 2017 submissions.

    [25] I have a discretion not to accept documents or new information that do not comply with a Practice Direction issued under s.473FB of the Act. The relevant Practice Directions sets a page limit for submissions, requirements for how new information can be given, and a page limit for the necessary explanation to accompany new information. For the following reasons I have decided the submission dated 11 March 2020 with 20 annexures does not comply with the Practice Direction. The 28 page document contains a mix throughout of legal argument, comment on the applicants’ claims, new information and reasons why the new information should be accepted. I consider in this format the new information is not clearly identified in the document as required by the Practice Direction. Whilst acknowledging there are references to new information scattered throughout the document, in this case with a long document mixing submissions, new information and explanations throughout, I consider the new information is not clearly identified. The submission dated 11 March 2020 is said to be a consolidated submission for all applicants, but much of the submission focuses on applicant 3. There are already 6 pages of submissions for applicant 3 before me, in the form of the submission dated 21 August 2017. I also have written submission from 2017 including 5 pages for applicant 1, 1 ½ pages for applicant 2, and 2 ½ for applicant 4. It is clear applicants 1 and 3 have exceeded the allowable limit for submissions, but it is difficult, without counting each paragraph in the document, to check whether the other applicants have complied with page limits for submissions, and whether all the applicants have complied with the separate page limit for explanations regarding new information. I find the submission dated 11 March 2020 does not comply with the Practice Direction because it exceeds the page limit for at least 2 of the applicants and does not clearly identify new information. The applicants were invited to consider whether they wished to withdraw the submissions from 2017 and 2020 and provide a submission that complied with the Practice Direction. The response was that everything should be considered in its entirety. I note also the submission does not comply with the Practice Direction’s time limit for submissions addressing the delegate’s decision, that is 21 days from the referral of the case to the IAA from the Department. Notwithstanding the passage of time since the delegate’s decisions in 2017, they are the same decisions under review. In circumstances where I already have written submissions for all applicants from 2017 on why they disagree with the delegate’s decisions, and where I have formed the view that the 2020 submissions do not comply with the Practice Direction, and where the applicants were on notice that the submission dated 11 March 2020 may not be accepted but declined to withdraw or amend any submissions, I have decided not to accept the submission dated 11 March 2020 including new information and annexures pursuant to s.473FB(5).”

13. There is no dispute that the representatives for the applicants sent to the Authority what was conceded by both Counsel at the hearing to be a mix of new information and submissions. By reference to Exhibit 1, the documentation provided to the Authority was of approximately 245 pages in length.

14. A review of a decision of a delegate to the Minister by the Authority is a fast track review under Part 7AA of the Act. Under s. 473BA of the Act, it was provided:

    “Section 473BA

    Simplified outline of this part

    …

    In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

    …” 

15. The Practice Direction was issued so as to enable the intentions of Parliament, as reflected by s. 473BA, to be carried into effect in an expeditious way.

1. Putting aside the question as to whether or not submissions earlier made in respect of an earlier IAA hearing were or were not to be considered as submissions for the purposes of the subject IAA hearing, in this matter, it was submitted on behalf of the first respondent that a separate submission of 5 pages could have been delivered on behalf of each applicant. It was submitted that if that had been done, there would have been compliance with the Practice Direction. At [16] of the applicants’ written submissions filed on 1 March 2021, Counsel for the applicants agreed with that proposition. It was submitted that because the submissions were no longer than 28 pages in length, there was no basis for the finding by the Authority that the Practice Direction page limit had been exceeded. Such submission ignored the existence of the annexures sent as part of the submission.

2. The Court accepts the first respondent’s submission on this point. The extensive documentation forwarded to the Authority by the representatives for the applicants was deficient, in terms of its non-compliance with the Practice Direction, in the following respects:

   (a)By the inclusion with the submission of more than 215 pages of other information, the applicants’ representatives clearly wanted the Authority to assess the submissions having regard to the annexed information. Why else would it have been included? In a fast track review process, and where the Practice Direction required submissions to be concise, the applicants were in breach of paragraph 24 of the Practice Direction.

   (b)The submission did not identify which applicants the new information contained in the submission related to, in breach of paragraph 21.

   (c)Though there were six applicants, the two child applicants’ claims were wholly dependent upon the success of the other claims. So much was trite. In such circumstances, if the remaining four applicants were each entitled to a limit of 5 A4 pages of separate submissions, the submissions presented to the Authority exceeded the limit by 8 pages.

   (d)The material was provided outside the relevant 21 day period from the date of referral of the matter to the Authority, in breach of paragraph 24.

   (e)The submission, by its footnoting, relied substantially upon a plethora of other material, including country information, case law, legislation and articles, which were not forwarded to the Authority, and which, had they been so forwarded, would have substantially added to the number of documents actually provided, in breach of paragraph 24.

3. The Authority did not err in failing to consider the 11 March 2020 submission. The administrative burden which would have been faced by the Authority should it have undertaken the onerous task wished upon it by the applicants’ representatives is a sound public policy reason for the Court finding that the Authority did not err.

4. 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.”

5. The decision of the Authority could not 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.”

6. Further, it was not unreasonable for the Authority to decide not to accept the submission. It was not arbitrary, capricious, without common sense or plainly unjust, and was, at the least, a decision on which two minds might reasonably differ. It ought also to be recognised that for a claim of legal unreasonableness to succeed, an applicant must scale a very high bar, and establish that the decision was one which no reasonable person could have arrived at. On the question as to whether something was legally unreasonable or not, Wigney J in Minister for Immigration and Border Protection v Pandey [2014] FCA 640 at [41] and [42] said as follows:

   “[41] The relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this Court in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:

   (a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b)Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   (g) There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]-[52].

   (h) The overriding duty of the Tribunal to review a decision may require the Tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case.  A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review:  Li at [100]-[102].

   (i) It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. The Tribunal is also under a duty to review decisions within a reasonable time: Li at [102].

   (j) 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: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].

   [42] The question is whether, upon application of these principles, the decision of the Tribunal to refuse the adjournment here was legally unreasonable.  Could the Tribunal’s decision be considered to be arbitrary, capricious, without common sense or plainly unjust? Do the Tribunal’s reasons disclose an evident and intelligible justification for refusing the adjournment application?”

7. As to Ground 3 of the Amended Application for Review, the Authority made findings at [26] – [28] inclusive of its reasons as follows:

   “[26] Applicant 3’s statutory declaration dated 11 March 2020 contains the following new information: the leader of the Naam Tamilar Katchi party ‘has recently got into trouble in Malaysia for alleging [sic] seeking to raise funds to rejuvenate the LTTE’; he strongly believes and publicly supports the ideals of Tamil self-determination in a separate Tamil homeland and he could not stay quiet about this if he was returned to Sri Lanka; he has received death threats because of his political views and for organising the 2018 Eelam Cup cricket tournament in Brisbane; he is the administrator for a Facebook page ‘Government of Tamil Eelam’ founded by his friend [name omitted] who he met through cricket in 2016; [name omitted] received a call from an official in Sri Lanka in October threatening him and any persons having administrative rights to the site if they ever went back to Sri Lanka; that he believes he has been identified and monitored by the Sri Lankan government for his Facebook activity; and that his daughters are not Sri Lankan citizens as he has not registered their birth to avoid drawing attention to his presence in Australia and his pro-Tamil activities. The new information in the annexures consists of screen shots from Facebook.

   [27] The new information in the statutory declaration and supporting Facebook posts regarding his political activity could not have been provided to the delegate as it refers to more recent activity. Having regard to the significant period of time since the delegate’s decision, the fact that his political activity in Australia has always been one of his claims, and that this information reflects an apparent escalation in his political activities and views since the delegate’s decision in 2017, I am satisfied there are exceptional circumstances to justify taking into account the new information regarding his political beliefs and activities in Australia contained in his statutory declaration and the 4 annexures. I find s.473DD is met.

   [28] The other piece of new information in his statutory declaration information regarding the leader of the Naam Tamilar Katchi party. I find the information that the leader has gotten into trouble in Malaysia for seeking funds for the LTTE is vague, and lacking any context as to how this impacts applicant 3’s claims or the other applicants. For these reasons I am not satisfied there are exceptional circumstances to justify taking this information into account. I find s.473DD(a) is not met and I must not consider it.”

   [names of persons omitted]

8. Section 473DD of the Act 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.”

9. In AUS17 v Minister for Immigration and Border Protection[1], the High Court was there dealing with a consideration of how the Authority ought to approach the operation of s. 473DD of the Act. At [11] and [12] of the reasons of Kiefel CJ, Gaegler, Keane,Gordon and Edelman JJ, it was said as follows:

   “[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

   [12] The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).”

   [1] [2020] 94 ALJR 1007.

10. In APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, Markovic J at [80] said as follows:

    “[80] Finally, the plurality also observed that in some cases the Authority might not fall into jurisdictional error where it does not engage in an assessment of one of the limbs of s 473DD(b) where, in the circumstances of the case, the relevant limb was incapable of being met: see AUS17 at [18]. To like effect, Edelman J (who broadly agreed with the plurality) held there will be cases where the criteria in s 473DD(B) might not be relevant to s 473DD(a), for example when new country information is provided to the Authority which, his Honour considered, is plainly not personal information: see AUS17 at [24].”

11. The Authority, at [26] of its reasons, acknowledged that the third applicant’s statutory declaration contained new information concerning the leader of the Naam Tamilar Katchi party, and matters relevant to the cricket carnival held in Brisbane. At [27] of its reasons, the Authority accepted that the new information in the statutory declaration, and in the Facebook posts regarding the third applicant’s political activity, was new information which was of recent origin, finding that there were exceptional circumstances justifying such new information being considered based upon s. 473DD considerations. At [28] of its reasons, the Authority further turned its mind to the operation of s. 473DD, finding that there were no exceptional circumstances justifying its consideration of such information because of its vague nature.

1. Having demonstrated in its reasons that it was mindful of the manner in which it ought to consider the operation of s. 473DD of the Act, even finding in one respect that it had been met, the Court does not infer that the Authority erred when it found that the new information regarding the Naam Tamilar Katchi party did not satisfy the relevant criteria under s. 473DD of the Act. The Authority found that the information provided was vague, such that it was unable to have due regard to it. The Authority otherwise demonstrated that it had intellectually engaged with the applicants’ claims at [66] – [68] of its reasons, where it said as follows:

   “[66] Taking into account his activity in Australia, I have considered what applicant 3 will do if he is returned to Sri Lanka. He claimed in his most recent statutory declaration that he believes ‘very strongly that Tamil people in Sri Lanka should have a right to self-determination and to a separate, independent Tamil homeland in Sri Lanka’ and that he could not be quiet about this in Sri Lanka and would express his views publicly. I consider this statement to be an exaggeration. I do not accept he has been vocal and public about this issue in Australia. His only public activity in Australia has been to share posts regarding Tamils and the LTTE leader, and whilst these posts commemorate the LTTE and its leader, they do not amount to a current declaration from applicant 3 that he is working for a separate, independent Tamil homeland. Although he claims that in India he organised protests and actively took part in them, as well as taking friends to political meetings, there is no evidence he has organised or taken part in protests or political meetings in Australia where he has the freedom to do so. In India he was living in a refugee camp where his freedom was curtailed and there was some harassment from the Q Branch. It is understandable that in such circumstances as a young man he got involved in protests in the camp. He has not shown the same inclination in Australia to participate in protest activity. He claimed he did not join the political parties he supported in India because of his precarious position in a refugee camp, but he has not taken any steps to join those or any other political parties since being in Australia. Given his lack of such activity in the last 8 years, that is lack of protest activity or becoming a member of a political party, I do not accept he would commence these activities in the foreseeable future in Sri Lanka. Even if he was to express his views publicly in Sri Lanka I consider it would be in the same manner as he has done in Australia. That is, occasionally on social media under an assumed name or in a way that makes him identifiable, including using his own name. I do not accept such activity would bring him to the adverse attention of the Sri Lankan authorities.

   [67] I accept applicant 3 has expressed pro-Tamil and pro-LTTE views through social media in Australia and may continue to do so if returned to Sri Lanka. I do not accept his level of activity could be considered high profile or at a level to attract adverse attention from the Sri Lankan authorities. Whilst he may hold views that include a belief in a separate Tamil state, he has not engaged in activity in Australia such as organising or leading or even attending public demonstrations or protests in support of Tamil separatism or against the Sri Lankan authorities, and I do not accept he will do so in the reasonably foreseeable future. I am not satisfied applicant 3 or any of the applicants face a real chance of harm in Sri Lanka for reason of his past or any future low level social media activity.

   [68] Applicant 3 has a tiger tattoo on his arm and claims this will give him an imputed political opinion as pro-LTTE. It is not clear from the information provided when or why he got this tattoo. The UK Home Office reported in 2016 that they were aware of only 1 case where a person with an LTTE tattoo came to harm, and the UK Upper Tribunal concluded there was not sufficient evidence to support that having an LTTE tattoo was a risk factor. There is no country information before me to indicate there have been any cases since 2016 where persons with an LTTE related tattoo faced harm or came to adverse attention for this reason. The UK Home Office reported in 2020 that a member of the Sri Lankan Criminal Investigation Department at the airport said no one is checked for scarring on return to Sri Lanka. There is nothing before to suggest the airport officials would be looking for tattoos. I consider it unlikely his tattoo would come to the attention of the authorities on return to Sri Lanka, but even if it did, I do not accept it would give rise to an imputed pro-LTTE opinion any more than his Tamil ethnicity would. Taking into account the LTTE is a spent force and that there is no evidence Tamil men with LTTE related tattoos are of adverse interest, I do not accept applicant 3, or anyone in his family, face a real chance of harm because he has a tiger tattoo on his arm.”

   (footnotes omitted)

2. Further, the information the subject of the ground of review was not “credible personal information”. Rather, the information concerned events concerning a different person/group of people in another country. It did not fall within s. 473DD(b)(ii) of the Act.

3. Even if the Authority was in error, such error was not so material as to give rise to the realistic possibility that the applicants had been robbed of a realistic possibility of success in their claims. The Authority found that the third applicant had no adverse profile with the Sri Lankan authorities such that he would be of interest to them. The Authority had had regard to the lapse of time and relevant country information when arriving at that finding. The Authority otherwise found that there was no basis for a finding that any of the first – fourth applicants satisfied the relevant refugee criteria or the complimentary protection criteria. It did so having weighed up all of the evidence before it in a considered way. Its reasons were extensive, sequential and logical. It did not err in its findings.

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

5. The Amended Application for Review is without merit and is dismissed.

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

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

Associate:

Dated:       28 April 2021

SCHEDULE OF PARTIES

BRG 322 of 2020
Applicants
Fourth Applicant:	CQE20
Fifth Applicant:	CQF20
Sixth Applicant:	CQG20