DBX16 v Minister for Immigration and Border Protection
[2021] FCA 238
•22 March 2021
FEDERAL COURT OF AUSTRALIA
DBX16 v Minister for Immigration and Border Protection [2021] FCA 238
Appeal from: DBX16 v Minister for Immigration& Anor [2017] FCCA 3410 File number(s): VID 1272 of 2017 Judgment of: KENNY J Date of judgment: 22 March 2021 Catchwords: MIGRATION – appeal from Federal Circuit Court dismissing application for judicial review – Immigration Assessment Authority found new information did not meet criteria in s 473DD of Migration Act 1958 (Cth) – no unreasonableness regarding exercise of discretion under s 473DC – no misapplication of criteria in s 473DD(b)(ii) – law, practice and procedure regarding arrest warrants in Sri Lanka not matter of everyday or ordinary human experience – finding that warrants not genuinely issued legally irrational or illogical – no probative basis – error material and jurisdictional – appeal allowed Legislation: Migration Act 1958 (Cth), Pt 7AA Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407
ANO16 v Minister for Immigration and Border Protection [2019] FCA 59
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [6]; 384 ALR 196
BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170
BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378
BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221
CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551
DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134
DQM18 v Minister for Home Affairs [2020] FCAFC 110
DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123
Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482
Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405; 168 ALR 407
Staindl v Frydenberg [2020] FCAFC 41; 276 FCR 301
The Republic of Nauru v WET040 (No 2) [2018] HCA 60; 362 ALR 235; 93 ALJR 102
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division: General Division Registry: Victoria National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 117 Date of hearing: 12 March 2019 Counsel for the Appellant: Mr D Kelsey-Sugg Counsel for the First Respondent: Mr G Hill Solicitor for the First Respondent: Mills Oakley ORDERS
VID 1272 of 2017 BETWEEN: DBX16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
KENNY J
DATE OF ORDER:
22 MARCH 2021
THE COURT ORDERS THAT:
1.The appellant have leave to rely on his proposed further amended notice of appeal dated 7 March 2019.
2 The appeal be allowed.
3.Order 1 of the orders made by the Federal Circuit Court of Australia on 8 November 2017 be set aside and in lieu thereof it be ordered that:
(a)a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 21 September 2016 to affirm the decision not to grant the appellant a Temporary Protection (Subclass 785) visa;
(b)a writ of mandamus be issued to the Immigration Assessment Authority requiring it to consider and determine the conduct of the review and the review referred to it on 15 August 2016 according to law and in accordance with these reasons.
4.The first respondent pay the appellant’s costs of the appeal, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
KENNY J:
This is an appeal from a judgment of the Federal Circuit Court of Australia, which was delivered on 8 November 2017, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority).
On 21 September 2016, the Authority affirmed a decision of the delegate of the respondent Minister to refuse the appellant’s application for a Temporary Protection (Subclass 785) visa (protection visa). In making this decision, the Authority determined not to have regard to three documents titled “Warrant of Arrest” accompanying a statutory declaration made by the appellant and provided by him to the Authority before it made its decision. The issues raised by this appeal concern this aspect of the Authority’s decision-making.
BACKGROUND
The appellant is a Tamil citizen of Sri Lanka. He arrived in Australia in September 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth).
On 24 December 2015, the appellant applied for the protection visa. The appellant’s representatives provided additional documentation on 22 February 2016. The delegate interviewed the appellant on 20 April 2016. By a letter dated 12 August 2016, the delegate informed the appellant that his application had been refused.
In the decision record accompanying the 12 August 2016 letter, the delegate summarised the appellant’s protection claims as follows:
·He will be targeted because of his Tamil ethnicity.
·He was suspected of being a member of [the] Liberation Tigers of Tamil Eelam (LTTE).
·He resided in former LTTE controlled areas.
·It was unsafe in Sri Lanka and he was in fear of the Sri Lankan Army (SLA) and Criminal Investigation Department (CID).
·He claimed he was detained by the SLA for one week and physically tortured.
·He claimed he attempted to relocate in Sri Lanka and stayed in various places around Batticaloa and Trincomalee for three years before departing Sri Lanka illegally.
·He will be targeted as a failed Tamil asylum seeker who left Sri Lanka unlawfully.
The delegate accepted that the appellant was a Tamil person from the Northern Province of Sri Lanka. The delegate noted that the appellant claimed not to have been involved in the Liberation Tigers of Tamil Eelam (LTTE) and did not know anyone who was a LTTE member, but that in 2000 his brother was seen speaking with LTTE members. After accepting the appellant’s claim that in March 2009 he had been detained by the Sri Lankan Army (SLA) and Criminal Investigation Department (CID) at an army camp, the delegate stated:
The fact [he] was only detained for one week and had no reporting requirements suggests he is not a person of interest to the Sri Lankan authorities.
The delegate accepted that the appellant had departed Sri Lanka illegally and would therefore be regarded as a failed asylum seeker who left Sri Lanka unlawfully if returned. The delegate did not accept, however, that the appellant was “a person of interest to the Sri Lankan authorities or suspected of having LTTE links”, or that he had been “targeted because his brother used to talk to members of the LTTE”. After considering the matter, the delegate concluded that the appellant failed to satisfy the criteria in ss 36(2)(a) or (aa) of the Migration Act.
On 15 August 2016, the decision of the delegate was referred to the Authority. On the same day, the Authority notified the appellant the delegate’s decision had been referred to it for review. The Authority said:
The [Authority] will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
The Practice Direction provided that “new information” could only be considered in “very limited circumstances” as set out in s 473DD of the Migration Act.
On 9 September 2016, the appellant sent the Authority an email stating that he had “received new evidence”. The email attached his statutory declaration of the same date, declaring that:
l.I received PROTECTION VISA DECISION RECORD around 23rd August 2016.
2.I contacted my family. I asked them whether it is safe for me to return to Sri Lanka.
3. I was informed that CID came to my house and enquired about me.
4. CID wanted to arrest me and gave ‘Warrant of Arrest’ documents to my family.
5. I requested my family to send those documents. I have attached the same.
6.The authorities suspect that I was supporting LTTE and helped LTTE in the past.
7.If I return to Sri Lanka, I will be arrested and tortured, due to these arrest warrants.
8.I request that because of this new evidence, a protection visa may please be granted.
There were certified copies of three documents attached to the appellant’s statutory declaration, each of which were headed “Warrant of Arrest (Section 84 of the Administration of Justice Law)” and were in terms directed to the appellant’s arrest. The “complainant” in each case was stated to be the “T[errorism] I[nvestigation] D[epartment]” in Vavuniya. The form of the documents appears to be identical, with each completed with slightly different details. I shall refer to these three documents as “the arrest warrants”.
The arrest warrants are dated 9 August 2012, 20 October 2012 and 17 November 2015 respectively. The 9 August 2012 arrest warrant specifies the “particulars of the alleged offence or reasons for issue of warrant” as “[h]e was involved [in] supporting activities [of] LTTE groups”. The other two arrest warrants specify the “particulars of alleged offence or reasons for issue of warrant” as “[f]ailed to attend to Court”. The arrest warrants are apparently signed above the stamp of a “District Judge and Magistrate” although there are differences between the stamp on the 9 August 2012 warrant and the other two warrants. All three arrest warrants provide that the relevant officer is “required and authorized to arrest the above named person and to produce him before this Court”.
THE DECISION OF THE AUTHORITY
Under the heading, “Information before the [Authority]”, the reviewer stated that regard had been had to the material referred by the Secretary under s 473CB of the Migration Act, although the reviewer had not had regard to the Warrant of Arrest documents that had accompanied the referred applicant’s 9 September 2016 statutory declaration. In connection with these documents, the reviewer stated:
4.On 9 September 2016 the [Authority] received an email from the applicant forwarding a statutory declaration and copies of three documents titled Warrant of Arrest. The statutory declaration states that the applicant contacted his family after receiving the decision of the delegate and asked if it was safe for him to return. He states he was informed that the CID came to the family home to arrest him and “gave Warrant of Arrest documents to my family”. He requested that copies of these documents be forwarded to him …
5.The applicant states that he received these documents after the delegate decision. However, the documents themselves are dated between 2012 and 2015, before the date of the delegate decision. I note that the applicant had the benefit of representation to assist with his TPV application. I am not satisfied that the documents could not have been provided to the Minister before the decision was made.
6.In considering whether these documents contain credible personal information I have had regard to the authenticity of these documents. I have considered the applicant’s statement that the CID gave these to his family. I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents were given to his family by the CID. I am not satisfied that these documents are genuinely issued arrest warrants. Therefore, I find that these documents do not contain credible personal information about the applicant. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
Under the heading “Factual findings”, the reviewer accepted (at [10]) some of the referred applicant’s claims including that “his older brother had been seen talking to LTTE cadres … and that he was detained in 2008”. Further, the reviewer accepted (at [12]) that he came to the attention of the authorities during the civil war and in the months afterwards and was “rounded up and questioned by the authorities”.
The reviewer did not accept that the referred applicant’s older brother was now missing as a result of attention from the authorities in 2011. The reviewer also had “significant concerns” about his claims that he was detained, tortured and wanted by the CID and, as a result, to have been in hiding from the CID for the three years before he departed from Australia. The reviewer stated (at [13]) that “some aspects” of this account were “inconsistent with country information”; and further there were “a number of internal inconsistencies in his account”, which brought his “general credibility into doubt”. The reviewer said:
14.I do not accept that the applicant was detained in February 2009, and detained and tortured in March 2009, nor that he was regularly pursued by the CID and/or PLOTE from 2009. I find that the applicant has fabricated these claims in order to enhance his protection visa claims.
The reviewer also did not accept (at [15]) that the scars on the referred applicant’s body were the result of torture. It followed from the above findings that the reviewer did not accept (at [18]) that he “has an imputed LTTE profile, nor that he was detained and tortured in 2009”.
The reviewer did not accept that the referred applicant, if returned to Sri Lanka, would come to the attention of the Government. The reviewer said (footnotes omitted):
19.The applicant’s claims to have come to attention during the civil war are consistent with country information. The civil war ended in 2009 and since the cessation of hostilities in 2009 the security situation in Sri Lanka has improved. In 2011 the Government lifted the Emergency Regulations that had provided the security authorities broad powers to arrest and detain suspects. DFAT advises that monitoring of Tamils from the former LTTE areas has decreased under the new government.
20.The applicant has stated that although the government has changed, things have not changed in Sri Lanka for Tamils and I accept that he has an ongoing subjective fear as a young Tamil. However, having regard to the referred country information, I am not satisfied that there is a real chance that the applicant will face any harm on return to Sri Lanka. I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils. … The UNHCR guidelines advise that family members of LTTE members may come to attention and I have considered whether the detention of his older brother in 2008 would raise such a profile for the applicant. I note that the applicant’s brother was released without charge and did not come to further attention in 2009 when people with LTTE profiles were being detected and those found to have links were admitted to rehabilitation programs. I have rejected that his brother went missing in 2011. This leads me to find that the applicant’s brother was not considered to be seriously linked to the LTTE and that the applicant does not have a profile as a person who is the family member of an LTTE member or a person with LTTE links. I have not accepted that the applicant has a real or imputed LTTE profile. The DFAT and UNHCR reports demonstrate that Tamils from the former LTTE areas are at low risk of being questioned or detained by the authorities simply for being Tamil. According to the current UNHCR guidelines, being of Tamil ethnicity alone does not give rise to protection needs.
On this basis, in considering the risk that the referred applicant would be arrested and charged upon his return to Sri Lanka, the reviewer said that, since the reviewer was satisfied that he did not have an adverse profile with the Sri Lankan authorities, the reviewer was “not satisfied the applicant would be subject to further investigation or prolonged detention, or mistreatment during questioning and investigative procedures carried out under the [Immigrants and Emigrants] Act” (at [26]).
Consistently with the above, the reviewer found that “because of the lack [of] any LTTE profile or other reasons to come to [the authorities’] attention”, there was not a real chance that the referred applicant would face serious harm on return to Sri Lanka (at [29]), and therefore did not meet the requirements of the definition of refugee in the Migration Act (at [30]).
For similar reasons, the reviewer was also not satisfied that the referred applicant satisfied the criteria for complementary protection (at [33]–[39]). On 21 September 2016, the Authority wrote to the appellant, notifying him that it had decided to affirm the delegate’s decision.
THE FEDERAL CIRCUIT COURT PROCEEDING
By an application filed on 18 October 2016, the present appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. The grounds of review were:
1.The Minister erred in law by taking into consideration facts not relevant to the matter in making the decision.
2.The Minister erred in law by not taking into consideration[] relevant facts in making the decision.
3.The Minister erred in not taking into consideration relevant Country information in making the decision.
4.The Immigration Assessment Authority erred in law by taking into consideration facts not relevant to the matter in making the decision.
5.The Immigration Assessment Authority erred in law in failing to ask [a] reasonable number of questions in order to ascertain the credibility of the Applicant and make a fair decision.
6.The Immigration Assessment Authority erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1958 [] the information provided by the Applicant.
On 8 November 2017, he appeared in person at a hearing before the primary judge. His Honour dismissed the application the same day.
The primary judge proceeded on the basis that grounds 1–3 were intended to refer to the Authority’s decision. With respect to grounds 1 and 4, the primary judge said that no irrelevant considerations were identified as having been taken into account by the Authority: see DBX16 v Minister for Immigration [2017] FCCA 3410 at [18] and [24]. With respect to ground 2, the primary judge said that there was no articulation of any fact or circumstance to which this ground referred: DBX16 v Minister at [20]. With respect to ground 3, the primary judge held that there was no identified country information that should have, but had not, been considered: DBX16 v Minister at [22]. The primary judge held that ground 5 misconceived the limited statutory basis for review under Part 7AA of the Migration Act: DBX16 v Minister at [26]. The primary judge rejected ground 6 on the basis that the Authority had specifically considered the complementary protection aspect of the claim: DBX16 v Minister at [28].
The primary judge also addressed a submission at the hearing that the Authority had erred in not considering the arrest warrants (mistakenly referred to by his Honour as “search warrants”), observing (at [29]) that:
Not surprisingly the [Authority], at the very least, thought that this was not new information within the meaning of the statutory provisions. Even if the [Authority] were wrong in this regard, their reasons indicate that the material was of no weight.
THE PROCEEDING IN THIS COURT
The appellant filed a notice of appeal against the judgment of the primary judge on 22 November 2017. On 7 March 2019, the appellant filed an amended notice of appeal, which was dated 6 February 2019. The appellant, represented at the hearing by Mr Kelsey-Sugg of counsel, subsequently sought to rely on a further amended notice of appeal dated 7 March 2019. Mr Kelsey-Sugg acknowledged that the proposed grounds had not been raised before the primary judge, noting the appellant’s lack of legal representation in the Federal Circuit Court, and accepted that the appellant required the leave of this Court to advance them.
It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. At the hearing of the appeal, the Minister, represented by Mr Hill of counsel, did not oppose the grant of leave to the appellant to rely on his proposed further amended notice of appeal. The Minister did not dispute that the Authority did not have regard to the arrest warrants that the appellant had sought to place before it, and did not contend that the grant of leave would work an injustice on him. In all the circumstances, including the potential merit of the new grounds, the Court determined to grant the appellant leave to further amend his notice of appeal as he sought and to raise grounds that were not before the primary judge.
The grounds set out in the further amended notice of appeal were as follows:
1.The learned Federal Circuit Court Judge erred in failing to find that the Immigration Assessment Authority’s (IAA) decision was tainted by jurisdictional error on the ground that it was legally unreasonable for the IAA not to have considered the exercise of its discretionary power under s 473DC of the Migration Act 1958 (Cth).
Particulars
(a)By email dated 9 September 2016, the appellant sent the IAA a statutory declaration together with copies of three warrants for his arrest (“the new information”).
(b)The IAA decided at [6] of its Decision and Reasons not to have regard to the new information because it was not satisfied that the documents were genuine.
(c)The IAA’s Decision and Reasons did not disclose any evaluative process, judgment or rational explanation for rejecting the authenticity of the new information.
(d)Had the IAA been satisfied that the documents were capable of being accepted by the IAA as genuine, its overall decision to affirm the decision not to grant a protection visa may have been different.
(e)Section 473DC(3) relevantly provided that the IAA may invite a person, orally or in writing, to give new information in writing or at an interview.
(f)In circumstances where the IAA knew that the issue of authenticity was important, and there were persons likely to have relevant information which the IAA did not have, it ought to have considered exercising the power under s 473DC to afford the appellant an opportunity to address the conditions in s 473DD.
2.The learned Federal Circuit Court Judge erred in failing to find that the IAA's decision was tainted by jurisdictional error on the ground that there was no logical, rational or probative basis for the IAA’s lack of satisfaction that three arrest warrants produced by the appellant were genuinely issued.
Particulars
(a)The authenticity of the arrest warrants was rejected by the IAA on the basis that: “I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents were given to his family by the CID”.
(b)In circumstances where:
(i)there was no evidence before the IAA as to the likelihood of someone in the appellant’s position having access to arrest warrants;
(ii)the IAA made no attempt at all to explain why it considered such access unlikely;
(iii)the IAA offered no real reason for rejecting the appellant’s account that the arrest warrants had been given to his family by the CID;
(iv)there was no attempt by the IAA to analyse the documents themselves and explain why the IAA believed them to lack authenticity – no logical, rational, or probative basis can be discerned for the IAA’s lack of satisfaction that the documents were genuinely issued arrest warrants.
3.The learned Federal Circuit Court Judge erred in failing to find that the IAA’s decision was tainted by jurisdictional error on the ground that the IAA misapplied the statutory criteria for the consideration of “new information” provided by an applicant as set out in s 473DD(b)(ii) of the Act, alternatively took into account an irrelevant consideration and/or made a critical finding of fact for which there was no evidential support.
Particulars
(a)The IAA made a positive finding at [6] of its Decision and Reasons that “these documents” (being copies of three arrest warrants), did not contain credible personal information about the applicant.
(b)The sole stated basis for that finding was that the IAA was not satisfied that the documents were “genuinely issued arrest warrants”: [6].
(c)However, all that the s 473DD(b)(ii) criteria required was the IAA’s satisfaction that the documents were open to be or capable of being accepted as truthful, accurate or genuine.
(d)By requiring satisfaction that the documents were “genuinely issued arrest warrants” and/or by requiring that the “new information” was true, the IAA imposed upon itself a higher standard of satisfaction than the criteria in s 473DD(b)(ii) required.
RELEVANT STATUTORY PROVISIONS
Division 3 of Pt 7AA of the Migration Act governs the conduct of a review by the Authority of a “fast track reviewable decision”, relevantly defined to include, subject to an exception which is not presently relevant, a decision to refuse to grant a protection visa to a “fast track applicant”. It is common ground that the appellant was properly characterised as a “fast track applicant” and that the delegate’s decision was therefore a “fast track reviewable decision”.
Within Div 3 of Pt 7AA, s 473CC requires the Authority to review a “fast track reviewable decision” referred to it by the Minister under s 473CA. Division 3 of Pt 7AA (with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted” by the Authority: see s 473DA.
Also within Div 3 of Pt 7AA, s 473DB “sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22] (Gageler, Keane and Nettle JJ). Subdivision C of Div 3 provides for exceptions to the general rule that the Authority is not to accept or request new information. The central provisions providing for these exceptions are ss 473DC, 473DD and 473DE. Sections 473DC and 473DD are most relevant in this case.
Section 473DC is facultative. It is concerned with the circumstance in which the Authority can get (“in the sense of seek out”: Plaintiff M174 at [23]) “new information”, being information that the Authority considers may be relevant and that was not before the Minister or delegate at the time of deciding to refuse to grant the protection visa: Plaintiff M174 at [24]. Section 473DC provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
As Gageler, Keane and Nettle JJ said in Plaintiff M174 at [24], “new information” is limited to information “(which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event”.
Section 473DD imposes restrictions on when the Authority can consider new information, as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the [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.
In their joint judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [6]; 384 ALR 196, Kiefel CJ, Gageler, Keane and Gordon JJ stated at [11]:
Logic and policy…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).
In order to meet s 473DD(b)(i), the Authority must be satisfied that the new information given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. To meet the requirement in s 473DD(b)(ii), the Authority must be satisfied that the new information given, or proposed to be given, by the referred applicant: (1) is credible information about an identified individual, or an individual who is reasonably identifiable; (2) was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174 at [34].
The criterion in s 473DD(a) must always be met before the Authority can consider new information. Citing R v Kelly [2000] 1 QB 198 at 208 as quoted in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [40], Gageler, Keane and Nettle JJ said in Plaintiff M174 at [30]:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare: but it cannot be one that is regularly, or routinely, or normally encountered”.
In AUS17, the plurality said, with respect to the two limbs of 473DD, at [12]:
[T]he 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).
Furthermore, having assessed the new information against the criteria in s 473DD, “the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met”: see AUS17 at [6].
THE PARTIES’ SUBMISSIONS
Ground 1
In support of his first ground, the appellant contended that it was legally unreasonable for the Authority not to have considered whether to exercise its discretionary power under s 473DC to get new information, relying on Plaintiff M174 at [21] and [86] and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82]. Counsel for the appellant submitted:
[T]he unreasonableness is the non-engagement with the power that it has. … [T]he appellant’s argument is not that power must necessarily have been exercised to invite the appellant to give further information. It could have been exercised in relation to anyone, for example, the first respondent’s document examination department.
The appellant submitted that the failure to consider the exercise of its s 473DC power to give him an opportunity to address s 473DD was unreasonable, having regard to the facts that: (1) the appellant had not had the opportunity to address the question of the authenticity of the arrest warrants, since this was not an issue before the delegate, and the question was not raised in the Authority’s 15 August 2016 letter or the Practice Direction; (2) the Authority should have known that the authenticity of the arrest warrants was an “important, potentially decisive issue” for the referred applicant, given its finding that he did not have actual or perceived links to the LTTE and would not be of concern to the Sri Lankan authorities if returned to Sri Lanka; (3) the Authority’s finding that the arrest warrants were not genuine was not supported by evidence, such that the Authority’s failure to consider exercising its power in s 473DC lacked an evident and intelligible justification; and (4) there was no evidence before the Authority as to the likelihood of someone in the appellant’s position having access to arrest warrants. In this connection, counsel submitted that the Authority had not referred to any feature of the arrest warrants that indicated that they were not genuine. The appellant submitted that the Authority “knew or ought to have known that there were persons available who were likely to have information that the [Authority] did not have relevant to the issue of access to arrest warrants and the authenticity of the warrants before it”.
In response to the appellant’s submissions in support of this ground, the Minister submitted that whether it was legally unreasonable for the Authority not to have considered exercising the power in s 473DC to invite the appellant to address the authenticity of the arrest warrants must be assessed against the relevant statutory framework. In support of this submission, the Minister referred to BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; 261 FCR 35 at [31]; appeal dismissed: [2019] HCA 34; 373 ALR 196 (BVD17 (HCA)); BCQ16 v Minister for Immigrationand Border Protection [2018] FCA 365 at [71]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [7], [16], [62]; and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [13], [59], [68]–[69] and [90]–[98].
The Minister submitted that the statutory scheme indicated that the Authority was not required to seek further information under s 473DC to test the veracity of new information: (1) s 473DA provides that Div 3 is an exhaustive statement of the requirements of the natural justice hearing rule; (2) s 473DB provides that the Authority is to conduct its review on the papers; (3) s 473DC provides the Authority has the power, but is under no duty, to get more information; and (4) s 473DD provides that new information is only received in exceptional circumstances. Counsel for the Minister submitted that these features imposed substantial barriers to getting new information and made Pt 7AA a “stringent” scheme, which was relevantly different from Pt 7, citing DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69 at [68] and [74]. The Minister noted that the Authority is not under an obligation in a Pt 7AA review to invite the referred applicant to appear before it and give evidence and present arguments in respect of the issues arising in the review. That is, in a Pt 7AA review, there is no equivalent obligation to the Tribunal’s obligation under s 425 in a Pt 7 review: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [68], [74]–[75]. Furthermore, so the Minister submitted, a procedural fairness obligation could not be introduced into Pt 7AA under the rubric of unreasonableness.
The Minister also relied on ANO16 v Minister for Immigration and Border Protection [2019] FCA 59 at [33]–[40] in submitting that it is implicit in s 473DD that the referred applicant must demonstrate the exceptional circumstances warranting the Authority receiving the new information and that requiring an interview to determine whether the information should be received would be contrary to the streamlined process that Pt 7AA is intended to facilitate. In this connection, the Minister noted that a Practice Direction provided to the applicant had provided that an explanation should accompany any new information.
The Minister submitted that CRY16 should be distinguished. The Minister accepted that there were instances when it would be unreasonable for the Authority to conduct a review without seeking further information under s 473DC, but that those cases were rare, arising, for example, when a new issue arose before the Authority, which was dispositive, and in respect of which the Authority had no information: see CRY16 at [82]; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 at [66]; DYK16 at [65] and BJI18 v Minister for Home Affairs [2019] FCA 266 at [29], [35]–[36], [38]–[39], [40], [42], [47], [49].
The appellant filed short submissions in written reply pursuant to leave. Amongst other things, the appellant submitted that his argument was consistent with the scheme of Pt 7AA for the reasons set out in CRY16 at [66]–[87]. The appellant noted that, unlike ANO16, his argument did not depend on a failure by the Authority to seek a further explanation from the appellant, referencing ANO16 at [33]. In any event, the appellant submitted that Plaintiff M174 at [24] indicated that a broader view should be taken of “new information” than that taken in ANO16 at [35]. Referring to CRY16 at [83], the appellant argued that CRY16 should be understood as an application of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [82].
Ground 2
In support of his second ground, the appellant contended that the primary judge erred in failing to find that there was no logical, rational or probative basis for the Authority’s failure to accept that the arrest warrants were genuine.
The appellant submitted that there was no evidence before the Authority regarding the practices and procedures concerning arrest warrants in Sri Lanka; and, specifically, there was no evidence as to whether a family member could, as the referred applicant account indicated, receive an arrest warrant on behalf of another person in the same family. Referencing DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175, counsel for the appellant further submitted that, as in that case, the Authority “had, effectively, been poisoned in its attitude to evidence and documents because of the view it took as to the appellant’s credibility”. The appellant submitted that the Authority did not analyse the relevant documents and did not identify any features that it considered to be inconsistent with their authenticity (noting that the Authority apparently accepted the authenticity of the dates appearing on the arrest warrants).
In response to the appellant’s submissions in support of the second ground, the Minister submitted that the Authority was not required to analyse the documents in light of the basic implausibility of the documents being received by the appellant’s family. Citing CQG15 vMinister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], DAO16 at [30](5), Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]–[131], Stretton at [21], and Minister for Immigration and Border Protection v Sabharwal[2018] FCAFC 160 at [45], the Minister submitted that, like unreasonableness, irrationality is a demanding standard, which requires that the decision as a whole must be one at which no rational or logical decision-maker could arrive on the same evidence. Given this standard, the Minister submitted that it was open to the Authority to find that it was unlikely that the CID would leave the warrants with the appellant’s family. This was, so the Minister said, simply an application of common sense to the evidence. In written submissions, the Minister contended that “[a]n arrest warrant is not legal service – it is completely contrary to the coercive nature of such a document that it could be accepted by an agent of the person to be arrested”.
The Minister argued that, in light of this implausibility, the Authority was not compelled to have regard to positive, specific evidence of Sri Lankan practices and procedures relating to arrest warrants to reject the referred applicant’s account as not credible, citing CQG15 at [65] and The Republic of Nauru v WET040 (No 2) [2018] HCA 60; 362 ALR 235; 93 ALJR 102 at [26]–[29]. The Minister submitted that, in the circumstances of the case, it was unnecessary for the Authority to engage with the details of the documents in its reasons. In the Minister’s submission, the fact that arrest warrants cannot be accepted by an agent of the person to be arrested was an aspect of “popular perception and everyday experience,” to which the Tribunal could have regard in assessing the plausibility of the applicant’s claims.
In his reply filed with leave, the appellant submitted that (footnotes omitted):
The [Minister’s] appeal to “common sense” should be treated with caution. It relies upon assumptions about the Sri Lankan criminal justice system, including, for example, the tendency of Sri Lankan police to follow relevant protocols. The basis on which such assumptions ought be made is not identified by [the Minister].
Ground 3
In support of ground 3, the appellant submitted that, in declining to have regard to the new information constituted by the arrest warrants on the ground that they were not “genuinely issued arrest warrants”, the Authority made a jurisdictional error of the kind identified in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [31]–[44]. That is, the Authority understood “credible” in s 473DD(b)(ii) to require a state of genuineness or truth when all that was required by that aspect of the statutory criteria was that the information be capable of being genuine or true. The Authority therefore erred, so the appellant submitted, by imposing a higher standard of satisfaction than was called for by the provision. In this connection, the appellant’s counsel drew attention to Bromberg J’s statement in CSR16 at [42].
The appellant’s counsel further submitted that the fact the Authority concluded there were no exceptional circumstances for the purposes of s 473DD(a) provided no answer to this ground, as the Authority’s consideration of that criterion was also infected by the same error. The appellant contended in this regard that the Authority gave no reason for its lack of satisfaction as to there being “exceptional circumstances” and that “if there’s an error in its consideration of [s 473DD(b)], it would appear that that flows into the consideration of exceptional circumstances”.
In response to the appellant, counsel for the Minister submitted that the authorities accepted that “exceptional circumstances” was a very broad criterion and that “often the specific matters in [s 473DD(b)(i) and (ii)] go towards an assessment of exceptional circumstances”. Counsel for the Minister submitted that the Authority addressed s 473DD(b)(ii) at [6] of its reasons for decision (see [12] above) where the Authority said in substance that “the information is not credible because the Authority considered it unlikely that the [referred] applicant (through his family) would have access to arrest warrants and it didn’t accept his accounts”. This was, in the Minister’s submission, a sufficient statement of the Authority’s reasons.
Counsel for the Minister agreed with the appellant that the finding that the arrest warrant documents were not credible was central to the Authority’s conclusion as to its lack of satisfaction that there were exceptional circumstances. This led counsel for the Minister to make the submission that:
If [the arrest warrants] were genuine, they’re centrally relevant. If they’re not genuine, there’s … nothing else that would justify receiving the documents. So I have to concede in this case there’s no independent finding about exceptional circumstances, even though as a statutory matter the applicant has to satisfy both.
Referring to AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [16], counsel for the Minister submitted that, having regard to the substance of the Authority’s reasons, it was clear that the Authority addressed the relevant statutory criteria. Counsel submitted that, in CSR16 at [41], Bromberg J provided the relevant context for his statement at [42] (which was specifically relied on by the appellant).
Counsel for the Minister observed that, in CSR16, the new information was that the referred applicant faced a real risk of being seriously harmed by the Muttahida Qaumi Movement (MQM). The Authority had said that it was “not satisfied that the applicant does have a genuine fear of this kind and [was] therefore not satisfied that [the new information was] credible personal information”: see CSR16 at [35]. Having regard to this statement, counsel submitted that, in that case, there was “clearly a misunderstanding of this two-stage process” to which Bromberg J referred in CSR16 at [41], as the Authority had tried to “jump ahead to the result”. Referencing EAA16 v Minister for Immigration & Anor [2018] FCCA 2624, (citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [17]), DJY18 v Minister for Home Affairs [2019] FCCA 185 at [10], [16]–[17], [19]–[20], and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [23] and [37]–[39], counsel for the Minister submitted there was no necessary dichotomy between information that is believed and information that is capable of being believed, for the purposes of s 473DD(b)(ii); and that in deciding whether the new information is capable of being believed, it is permissible to consider the factual context in which the information arose. In this case, so counsel submitted, if it were permissible for the Authority to conclude that the referred applicant’s account of how he got the documents was improbable on its face, then it was open for it to conclude that the information was not capable of being believed.
In his reply with leave, the appellant contended that the Authority’s process of reasoning indicated that it construed the word “credible” in s 473DD(b)(ii) to mean “actually true or genuine”; and that in this way the Authority imposed a higher standard of satisfaction than s 473DD(b)(ii) required, citing CSR16 at [31]–[44] and Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [17]. The appellant also referred to BNV18 v Minister for Home Affairs [2018] FCA 1788 at [17]: see subsequently, BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378.
CONSIDERATION
Ground 1
As we have seen, under his first ground, the appellant argued that it was legally unreasonable for the Authority not to have considered whether to exercise its discretionary power under s 473DC to get new information, and that this gave rise to jurisdictional error.
It is established that the powers conferred on the Authority by Div 3 of Pt 7AA (including the power to get new information under s 473DC) were “conferred on the implied condition that they are to be exercised within the bounds of reasonableness” in the sense explained in Li: see Plaintiff M174 at [21] (Gageler, Keane and Nettle JJ), [86] (Gordon J); BVD17 (HCA) at [15]; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). In ABT17, their Honours there said:
The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.
(Citations omitted)
Whether the Authority’s failure to exercise the power in s 473DC to get new information is outside these bounds has fallen for consideration in a number of cases in this Court. CRY16 is one such significant case. The Full Court in CRY16 held that, in the particular circumstances of that case, it was legally unreasonable for the Authority not to consider getting information from the referred applicant concerning the impact on him of relocating to Beirut: CRY16 at [82]. The Authority had affirmed the delegate’s decision to refuse the referred applicant a visa, although it had reached this decision on a different basis to the delegate. Contrary to the delegate, the Authority found that the referred applicant faced a real chance of persecution or real risk of significant harm from sectarian violence in his place of habitual residence in Lebanon, but that this risk did not extend to Beirut, to which he could reasonably relocate. On appeal, the Court upheld the judgment of the primary judge, who had found the decision to be affected by jurisdictional error on the basis that it was legally unreasonable for the Authority not to consider whether to exercise the power in s 473DC, in order to get information from the referred applicant about his relocation.
In upholding this finding, the Full Court relied on the fact that the Authority knew that the delegate had not considered the relocation issue; that this issue depended on the particular circumstances of the referred applicant; and that there was nothing in the referred applicant’s interview with the delegate that concerned the impact on him of relocating to Beirut: see CRY16 at [76]. The Court explained that (at [82]):
…The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut... The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation…
Accordingly, the Court in CRY16 concluded that the review by the Authority was affected by jurisdictional error. Plainly enough, however, CRY16 is distinguishable from the present case: see below at [66] and [72].
As noted earlier, the Minister relied on the subsequent cases, DYK16 and ANO16, to support his submission that the Authority was not required to seek further information regarding the authenticity of the arrest warrants in this case. In DYK16, a Full Court of this Court rejected the submission that the Authority had acted unreasonably in the exercise of its power under s 473DC(3) by not inviting the referred applicant to an interview. Although not required to explain its refusal to exercise its s 473DC(3) discretion in DYK16’s favour, the Authority chose to give reasons for this determination. The Court held that these reasons were “reasonable and rational” in the circumstances of the case, and provided an intelligible basis for its refusal: see DYK16 at [67]. As the Court noted, however, the circumstances in DYK16 were fundamentally different from CRY16: see DYK16 at [71]. A moment’s reflection also shows that DYK16 is very different from this case: see below at [72].
ANO16 is also of limited assistance here. The Court’s focus in ANO16 was on whether the referred applicant had been given an opportunity to satisfy the Authority that the criteria in s 473DD had been met, in order to allow the Authority to consider the new information: its focus was not on whether the Authority had failed to act reasonably with respect to an exercise of the power in s 473DC to get new information. In this context, Charlesworth J rejected ANO16’s submission that the Authority’s decision was affected by legal unreasonableness because it had failed to consider an exercise of the power in s 473DC to seek an explanation from him concerning his failure to provide the new information to the delegate before the delegate made the original decision: see ANO16 at [33]–[34]. Her Honour held that it was implicit in s 473DD that it is for the referred applicant to satisfy the Authority that the pre-conditions for the Authority’s consideration of the new information had been met: see ANO16 at [35]. In this context, her Honour said, at [35]–[36]:
Turning first to the application of s 473DC, it may be accepted that there may be circumstances in which it is legally unreasonable for the Authority not to consider the exercise of the discretionary power in s 473DC(3) to get new information: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70] (Reeves, Robertson and Rangiah J); Minister for Immigration and Border Protection vCRY16 (2017) 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ). However, an explanation that may be given by a referred applicant as to why “new information” was not previously provided cannot, of itself, be “new information” to which the discretionary power conferred by that provision may apply. The suggestion that the Authority erred by failing to consider the exercise of the discretion to “get” an explanation from the appellant or his agent is simply not in accordance with the statutory scheme. In my view, the obligation to afford a referred applicant an opportunity to provide material relevant to the condition in s 473DD(b) is necessarily implicit in the provision itself. The provision anticipates that where the applicant gives the Authority “new information” as defined, the referred applicant is to be afforded an opportunity to make submissions and adduce evidence to satisfy the Authority that the pre-conditions for the Authority’s consideration of the new information are fulfilled. Whether or not the applicant may make submissions and give evidence for that purpose is not a matter for the Authority’s discretion under s 473DC.
Whether or not a review applicant has in fact been afforded an opportunity to address the conditions in s 473DD(b)(i) or (ii) in respect of the new information is a different question. It is a question of fact, upon which this ground of appeal turns.
Referring to the fact that a Practice Direction, which had accompanied a letter sent by the Authority to the referred applicant, had set out the conditions to be satisfied before new information could be considered, Charlesworth J ultimately held that it was open to the Authority to conclude, without any legal unreasonableness, that the referred applicant had been offered an opportunity to make submissions in respect of the conditions in s 473DD(b) and had failed to satisfy it that those pre-conditions had been met.
In this case, as the Minister submitted, the referred applicant was also given a copy of the relevant Practice Direction, which set out the conditions to be satisfied before the Authority could consider new information. ANO16 would therefore support the conclusion that the appellant here was also afforded an opportunity to make submissions in support of the fact that the conditions in s 473DD were satisfied. Indeed, paragraph [23] of the Practice Direction specifically informed the appellant that “[i]f you want to give us new information, you must provide an explanation as to why: … the information is credible personal information …”. If the reasoning in ANO16 is accepted, it would apparently support the view that the appellant in this case had already been afforded an opportunity to satisfy the Authority that the arrest warrants were “credible” personal information, including that they had been “genuinely issued” and that they were in this sense “authentic”. This view would tend to the conclusion that, contrary to ground 1, it was not legally unreasonable for the Authority not to have considered whether to exercise the power in s 473DC to give the appellant an opportunity to address s 473DD(b)(ii), including the issue of authenticity, since the appellant had already been given an opportunity to address the matter. I would not, however, decide this ground on this basis. As indicated below, there is another obstacle in the path of success for this ground.
Also of relevance to this appeal is the decision of the Full Court in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134, in which it was held that the Authority’s failure to consider whether to exercise its power under s 473DC to get new information in respect of the referred applicant’s claimed sexual assaults was “unreasonable or plainly unjust”: see DPI17 at [45] (Griffiths and Steward JJ) and [115] (Mortimer J).
In their joint reasons, Griffiths and Steward JJ specifically noted that the Minister did not contest the proposition that the Authority had in fact failed to consider the exercise of the power under s 473DC in relation to the issue whether the sexual assaults had in fact occurred or in relation to the relevant inconsistencies. Their Honours noted, at [44], that:
…This is an important concession, which was properly made. In other cases, an applicant may confront some difficulty in discharging the onus of proof of demonstrating on the balance of probabilities that the [Authority] did not consider the exercise of the power in relation to the relevant issue. …
Their Honours also held that the consequent error in not considering the possible exercise of power under s 473DC was material and involved jurisdictional error: see DPI17 at [53].
Their Honours concluded, at [77]:
Viewed in its context, as Bromberg J identified [in CSR16] at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
Section 473DD(b)(ii) of the Migration Act required the Authority to decide whether the referred applicant had satisfied it that the arrest warrants were credible personal information that was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. It was not in dispute that the arrest warrants were “not previously known” to the Authority. They were first provided to the Authority as part of the referred applicant’s statutory declaration of 9 September 2016. The Minister accepted that, the arrest warrants, if accepted to be genuine, may have affected consideration of the referred applicant’s claims. There was also no real question that the arrest warrants were “personal” information in that they specifically concerned the referred applicant (being the appellant in the appeal).
In deciding that it was not satisfied that the arrest warrants were “credible” information, the Authority addressed the issue of their authenticity. The Authority was not satisfied that the warrants were “genuinely issued arrest warrants” because it did not accept the referred applicant’s account that the CID gave them to his family. It does not seem to me that the Authority erred in the way claimed by the appellant in his third ground. Information will not be credible, in the sense of “capable of being believed” if it is not genuine. Thus, the Court in BTW17 held that the Authority’s finding that the 2015 newspaper article was not genuine was a finding that the document was not capable of being believed: see BTW17 at [84] (Mortimer and Jackson JJ, with whom Besanko J agreed at [1]). In this case, the Authority was not satisfied that the arrest warrants were authentic: it was therefore not satisfied that the information in them was credible. The Authority did not determine that the documents were not credible based on any broader assessment of the applicant’s credibility arising from the review materials. It did not therefore “jump ahead”; rather, it considered whether it was satisfied the information was “credible” personal information for the purpose of deciding whether to depart from the primary rule, which limited its consideration to the review material provided to the Authority under s 473CB.
For these reasons, I would reject ground 3.
DISPOSITION
For the reasons stated, the appellant has established that the Authority’s decision was affected by jurisdictional error of the kind identified by the appellant in ground 2 of his further amended notice of appeal dated 7 March 2019.
Accordingly I would make the following orders:
1.The appellant have leave to rely on his proposed further amended notice of appeal dated 7 March 2019.
2.The appeal be allowed.
3.Order 1 of the orders made by the Federal Circuit Court of Australia on 8 November 2017 be set aside and in lieu thereof it be ordered that:
(a)a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 21 September 2016 to affirm the decision not to grant the appellant a Temporary Protection (Subclass 785) visa;
(b)a writ of mandamus be issued to the Immigration Assessment Authority requiring it to consider and determine the conduct of the review and the review referred to it on 15 August 2016 according to law and in accordance with these reasons.
4.The first respondent pay the appellant’s costs of the appeal, to be assessed if not agreed.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. Associate:
Dated: 22 March 2021
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