DCA17 v Minister for Immigration
[2019] FCCA 696
•3 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCA17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 696 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in part and other fears found not to be well-founded – Authority receiving updated DFAT country report as new information – certain other information not provided by the Secretary to the Authority – whether the Authority erred by not notifying the applicant of the new information and whether the Secretary’s breach of s.473CB(1) disabled the review considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 422B, 424A, 425, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473EA, 473GA, 473GB, 476 |
| Cases cited: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 BCQ16 v Minister for Immigration [2018] FCA 365 BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 BHE17 v Minister for Immigration [2018] FCA 757 BMV16 v Minister for Home Affairs [2018] FCAFC 90 BSQ16 v Minister for Immigration [2018] FCA 469 BVD17 v Minister for Immigration [2018] FCAFC 114 BVZ16 v Minister for Immigration [2017] FCA 958 CCQ17 v Minister for Immigration [2018] FCA 1641 CMQ16 v Minister for Immigration [2018] FCA 881 CQR17 v Minister for Immigration [2019] FCAFC 61 DBE16 v Minister for Immigration [2017] FCA 942 DBE16 v Minister for Immigration & Anor [2017] FCCA 487 DCH17 v Minister for Immigration [2017] FCCA 294 DDQ17 v Minister for Immigration [2018] FCA 1223 DGZ16 v Minister for Immigration [2018] FCAFC 12 DYS16 v Minister for Immigration [2018] FCAFC 33 EVS17 v Minister for Immigration [2019] FCAFC 20 Minister for Immigration v BBS16 (2017) 257 FCR 111 Minister for Immigration v CPA16 [2019] FCAFC 40 Minister for Immigration v CRY16 (2017) 253 FCR 475 Minister for Immigration v DZU16 (2018) 253 FCR 526 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v SZGUR (2011) 241 CLR 594 Minister for Immigration v SZMTA (2019) 93 ALJR 252 Minister for Immigration v SZVFW [2018] HCA 30 Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 SZBEL v Minister for Immigration (2006) 228 CLR 152 VAAD v Minister for Immigration [2005] FCAFC 117 |
| Applicant: | DCA17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2171 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 20 March 2019 |
| Date of last submission: | 22 March 2019 |
| Delivered at: | Sydney |
| Delivered on: | 3 May 2019 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
The application filed on 11 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2171 of 2017
| DCA17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 23 June 2017. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the Minister filed on 13 March 2019.
The applicant is a citizen of Sri Lanka. The applicant:
a)arrived in Australia on 9 September 2012 at Christmas Island as an Unauthorised Maritime Arrival. The applicant initially made an invalid protection visa application dated 5 September 2013;
b)subsequently, following an invitation from the Minister, the applicant made an application for a SHEV[1] dated 4 May 2016; and
c)met the requirements of the definition of a “fast track applicant”.[2]
[1] Safe Haven Enterprise Visa
[2] section 5(1)(a)(i)-(iii) and therefore his application was governed by Part 7AA of the Migration Act 1958 (Cth) (Migration Act)
Following the protection visa interview before the delegate, the applicant, who was that time legally represented, provided the delegate with a post-hearing submission dated 10 October 2016.
The applicant's representative sent an e-mail to the delegate, dated 17 October 2016, in which the delegate was provided with a different electronic link to some country information (the original link not having worked). Subsequently, on 20 October 2016, the applicant's representative set out in an e-mail the answers to two queries from the delegate. In an e-mail dated 20 October 2016, the delegate confirmed to the representative that the link provided by the applicant worked. These documents (collectively, the additional documents) are discussed in further detail below in respect of one matter not raised by the applicant in his judicial review application.
Following the delegate's decision, there was a referral to the Authority. The applicant did not provide any further submission or material for consideration by the Authority.
The Authority’s decision was made pursuant to s.473CC of the Migration Act. This Court has jurisdiction to hear the application under s.476(1) of the Migration Act because the decision is a "migration decision" within the meaning of s.5(1).[3]
[3] DCH16 v Minister for Immigration & Anor [2017] FCCA 294 at [70]
Although the applicant was represented before the delegate, he is unrepresented in this Court. The applicant filed an application dated 11 July 2017 for judicial review of the decision, containing a single ground. The ground raises issues about the Authority's treatment of new information and exceptional circumstances for the purposes of s.473DC and s.473DD of the Migration Act.
The applicant's claims
The applicant's grounds of review focus on one very small, and discrete, aspect of the Authority's reasons dealing with s.473DD of the Migration Act. In those circumstances, it is not necessary to deal with the applicant's claims (or the Authority's reasons) in great detail.
The applicant claimed to be a Tamil from Trincomalee, in the Eastern Province of Sri Lanka, and a Hindu. He claimed to fear harm on the basis of his ethnicity, his religion, his imputed political opinion (links with the LTTE[4]) and membership of two particular social groups (being Tamil families with a connection to the LTTE and failed asylum seekers).
[4] Liberation Tigers of Tamil Eelam
The applicant claimed that his father was a fisherman, whose boat was burned by the SLA[5] in 1985. Following this, in 1992, the applicant's father was allegedly beaten and accused of supporting the LTTE. The applicant was also a fisherman who had a brother, T. T allegedly joined the LTTE and had been missing since 2006. The applicant alleged that he had been questioned by the SLA in 2006 and thereafter fled to India. On his return to Sri Lanka in 2010, the applicant claimed that he was again questioned by the SLA and then in August 2012 aggressively interrogated about his links to the TNA,[6] the applicant having worked for an individual, AS, the applicant's brother-in-law, who stood for election as a TNA candidate (and who was subsequently elected).
[5] Sri Lankan Army
[6] Tamil National Alliance
The Authority’s reasons
The Authority's reasons are set out at [3]-[42] of its decision, with the issue of new information being dealt with at [2].
At [2], the Authority noted that it has obtained new information on the treatment of Sri Lankans of Tamil ethnicity in the form of the most recent Department of Foreign Affairs and Trade country report for Sri Lanka dated 24 January 2017.[7] The Authority noted that the delegate had relied on a previous version of the same report dated 18 December 2015. Further noting that the DFAT Report was not published until after the delegate's decision, the Authority found that there were exceptional circumstances to justify considering "this new information".
[7] DFAT Report
The Authority accepted the applicant's claims concerning his father and his brother T. It also accepted that the applicant had been the subject of adverse interest from the authorities. It also accepted that he was interrogated by the police on his return to Sri Lanka in 2010. It accepted that the applicant was a low-level TNA supporter who had assisted AS in the 2011 local council elections. It did not accept as credible the applicant’s explanation of why the CID[8] would be motivated to target him and it was “not satisfied the applicant has a political profile of any kind”.[9]
[8] Criminal Investigation Department
[9] at [6]-[13] of the decision
The applicant claimed that when he sees the SLA attacking a person he may be unable to tolerate the situation, lose control and face repercussions. The Authority found that while the assault on his father and the disappearance of T may have had a profound effect on the applicant, there was no evidence that the applicant had intervened on previous occasions and that his statements were speculative.[10]
[10] at [14] of the decision
The Authority was not satisfied that the visit of the SLA officers in August 2012 occurred, given the applicant's low profile and the opportunity the authorities had had prior to that point to take action against him. The Authority considered that, based on country information, the TNA had become a mainstream party and that the applicant did not face a real chance of serious harm as a result of being associated with the TNA. It also rejected, based on country information, that the applicant faced harm from paramilitary groups.[11]
[11] at [15]-[18] of the decision
Based on country information, the Authority did not accept that the applicant faced a real chance of harm based on his religion.[12]
[12] at [19]-[21] of the decision
The Authority accepted that the applicant had lived in a refugee camp in India for four years. However, there was no country information that suggested the applicant was at risk of harm because of imputed anti-government opinion. The country information, including the UNCHR Guidelines 2012, suggested that Tamil ethnicity, of itself, was not a sufficient basis for requiring protection. While the Authority accepted that the authorities knew about T and questioned the applicant about this, it found that the applicant had never been detained, charged or physically harmed because of his LTTE links and that the applicant had not been harmed for the six years in which the authorities knew about T's involvement with the LTTE.[13]
[13] at [21]-[24] of the decision
The current proceedings
As noted above, these proceedings began with a show cause application filed on 11 July 2017. The applicant continues to rely upon that application. There is one particularised ground in it:
1. The Authority fell into jurisdictional error in failing to put its exceptional circumstances finding in relation to considering new information to the applicant for comment
Particulars
a. At paragraph 2 of the decision record the Authority found that there was exceptional circumstances to justify considering the 2017 DFAT report that was not before the delegate at the time of making the decision;
b. No exceptional circumstances for this finding was detailed in the decision record that could justify a finding that there were exceptional circumstance; and
c. There is no legal basis for the exceptional circumstances finding disclosed in the decision record.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book lodged on 30 November 2017.
Only the Minister filed written submissions in advance of the trial of this matter. At the trial, I invited oral submissions from the applicant. He sought an adjournment so that he could look for assistance from a legal practitioner. I declined that application, noting that the application had been on foot since 11 July 2017.
Consideration
The single ground deals with distinct propositions. First, the applicant argues that the Authority was required to inform him about its decision to consider new country information. Secondly, the applicant argues that the Authority fell into error in finding that there were “exceptional circumstances” warranting consideration of the DFAT Report (seemingly based on the absence of detailed reasons for that finding).
The second proposition is incompatible with my decision in BDI17 v Minister for Immigration & Anor,[14] in particular at [69]-[72].
[14] [2018] FCCA 2162
The first proposition could, in my view, only succeed if the failure to inform the application about the Authority’s decision was unreasonable in the circumstances of the case.
Section 473DD
What constitutes “exceptional circumstances” pursuant to s.473DD(a) is “inherently incapable of exhaustive statement” and is not capable of exhaustive statement; it is not a term of art but a term with an ordinary meaning, albeit one with a broad meaning.[15] To be exceptional, a circumstance need not be unique or rare but it “cannot be one that is regularly, or routinely, or normally encountered”.[16] The application of the criterion will involve an evaluative judgment by the decision-maker.[17] The Full Federal Court in DYS16 v Minister for Immigration[18] noted that s.473DD(a) does not require the Authority, in its evaluation, to be satisfied of a particular fact or facts.[19]
[15] per Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration (2018) 353 ALR 600 at [30]; per White J in BVZ16 v Minister for Immigration [2017] FCA 958 at [39]-[42]; Minister for Immigration v BBS16 (2017) 257 FCR 111 at [104]
[16] per Gageler, Keane and Nettle JJ in M174 at [30]
[17] per Gageler, Keane and Nettle JJ in M174 at [75]
[18] [2018] FCAFC 33
[19] at [17]
In respect of whether the circumstances were exceptional, the Authority noted that the new information was obviously relevant to the review given that the DFAT Report constituted more recent up-to-date information that would enable to the Authority undertake a more accurate review. There was no obligation on the part of the Authority to consider the matters set out in s.473DD(b); they apply only to new information given by an applicant to the Authority.[20] Consistently with this, the Authority’s approach in the present case, where no reference was made to the matters in s.473DD(b), was not disapproved in similar cases.[21]
[20] M174 at [29] and [88]; DBE16 v Minister for Immigration [2017] FCA 942 at [64]
[21] DDQ17 v Minister for Immigration [2018] FCA 1223 at [27]; BHE17 v Minister for Immigration [2018] FCA 757 at [32]
Procedural fairness
The Authority’s statutory task is to review a “fast-track reviewable decision” referred to it under s.473CA.[22] The default position or “primary rule”[23] is that the Authority must consider the review material provided under s.473CB without accepting or requesting new information (or interviewing the applicant). In that regard, s.473DA of the Migration Act makes clear that Division 3 (entitled “Conduct of Review”), with s.473GA and s.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.
[22] section 473DB(1)
[23] per Gageler, Keane and Nettle JJ in M174 at [22]
A number of decisions of the Federal Court, that are binding on this Court, have considered the meaning and effect of s.473DA in the context of common law procedural fairness. Notably:
a)Barker J in DBE16 observed that s.473DA(1) is an exhaustive statement of the natural justice hearing rule, in contrast with s.422B(1) of the Migration Act. The provision operated to exclude the common law natural justice hearing rule;[24]
b)Barker J also found that there were no statutory equivalents to s.424A or s.425 of the Migration Act in Part 7AA. It followed that there was no obligation on the part of the Authority to give the applicant any notice about information that it may rely on as part of the review or to alert the applicant to issues on the review, including issues in respect of which the Authority may decide to depart from a finding of the delegate. It follows that the principles identified in SZBEL v Minister for Immigration[25] have no application in respect of the Authority;[26]
c)the construction favoured by Barker J, and the approach more generally to questions of procedural fairness in Part 7AA, has been followed by other judges in the Federal Court. Thawley J in BCQ16 v Minister for Immigration[27] noted that Part 7AA “modifies (by restricting) the common law principles of procedural fairness”;[28]
d)the Full Federal Court in DGZ16 v Minister for Immigration[29] confirmed that the appropriate starting point for consideration of these issues was not Part 7 but the terms of Part 7AA. It further confirmed that s.473DA(1) constituted an exhaustive statement of the natural justice hearing rule; there was no equivalent obligation to s.425 under Part 7AA and the Authority was permitted to depart from a finding of the delegate without informing the applicant;[30] and
e)numerous other decisions of the Federal Court (sitting as a single judge) have adopted this construction and this approach. For example, Wigney J in BSQ16 v Minister for Immigration,[31] confirmed that s.473DA operated “to exclude the common law natural justice hearing rules from reviews conducted” by the Authority.[32]
[24] at [62]; upholding DBE16 v Minister for Immigration & Anor [2017] FCCA 407 at [41] where I relied on AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12]
[25] (2006) 228 CLR 152
[26] DBE16 at [58]-[65]
[27] [2018] FCA 365
[28] at [71]
[29] [2018] FCAFC 12
[30] at [75]-[76]
[31] [2018] FCA 469
[32] at [32]. See also, for example, CMQ16 v Minister for Immigration [2018] FCA 881 at [14]-[23]
Section 473DC(3): exercise of discretion
The discretionary powers conferred on the Authority by Division 3 of Part 7AA, including s.473DC(3), are conferred on the implied condition that they are to be exercised reasonably.[33]
[33] per Nettle and Gordon JJ in Minister for Immigration v SZVFW [2018] HCA 30 at [89]
In undertaking analysis of whether the circumstances of a particular case can properly be analysed as unreasonable, due regard must be given to the broad zone of “decisional freedom” that a decision-maker has.[34] Reasonableness is informed by the subject matter, scope and purpose of the legislation in question.[35] The test for unreasonableness is necessarily stringent.[36]
[34] per French CJ in Minister for Immigration v Li (2013) 249 CLR 332
[35] per Thawley J in BCQ16 at [71]; per Kiefel CJ in SZVFW at [11]-[13]; per Nettle and Gordon JJ in SZVFW at [88]-[90]
[36] per Kiefel CJ in SZVFW at [11]
For the purposes of the discretion in s.473DC(3), the applicable principles have been conveniently set out in the decision of Thawley J in CCQ17 v Minister for Immigration.[37] His Honour noted[38] that there may be circumstances in which it is legally unreasonable to fail to consider exercising the discretion under s.473DC(3).[39] However:
a)the appellant bears the onus of establishing the factual foundation for the conclusion that there was a failure to consider exercise of the discretion and that this was a jurisdictional error;[40]
b)section 473EA(1) does not require the Authority’s statement of decision to include a statement as to the exercise of a procedural decision;[41]
c)the absence of a reference to the consideration or exercise of a discretion does not of itself give rise to an inference that its exercise was not considered;[42]
d)there are no fixed categories of circumstances where it would be legally unreasonable to fail to consider the discretion in s.473DC(3). One example, in CRY16, turned on an issue not considered before the delegate that was dispositive before the Authority (the failure to consider exercising the discretion leading to the Authority disabling itself from considering what was reasonable for the purposes of relocation);
e)the discretion must be viewed through the lens of the statutory scheme and the principles of legal unreasonableness rather than the general law principles of procedural fairness;[43] and
f)the discretion must be read with s.473DC(2) which provides that there is no duty on the Authority to get, request or accept new information. Other features of the statutory scheme that are relevant include that s.473DE(3)(a) can be used to affirm a decision without giving a referred applicant an opportunity to be heard and Part 7AA, pursuant to s.473DB(1), contemplates that the default position is that there will be a limited review on the papers.
[37] [2018] FCA 1641
[38] at [38]-[49] of the judgment
[39] Minister for Immigration v CRY16 (2017) 253 FCR 475 at [82]; Minister for Immigration v DZU16 (2018) 253 FCR 526 at [80]-[81]
[40] VAAD v Minister for Immigration [2005] FCAFC 117 at [45]; Minister for Immigration v SZGUR (2011) 241 CLR 594 at [67]
[41] BCQ16 at [45] and [49]-[50]; BVD17 v Minister for Immigration [2018] FCAFC 114 at [42]
[42] BCQ16 at [49]-[50]
[43] BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [81]
In light of the above principles, I accept the Minister’s submission that the applicant’s ground is misconceived.
First, in light of the principles identified above, there is no general obligation, as a matter of procedural fairness, on the part of the Authority to put matters to the applicant. The Authority may depart from a finding made by the delegate (although that issue does not arise in the present case). In addition, in the present case the information in question, being country information, was not specifically about the applicant;[44] it was not required to be put to the applicant and, as noted above, and that section allows a decision to be affirmed without giving the applicant an opportunity to be heard.
[44] section 473DE(3)(a)
Secondly, in the present case, even if it were to be suggested (noting that the applicant is unrepresented) that there was a failure to consider exercising the discretion in s.473DC(3) that is also misplaced. It is correct that the country information in question was not before the delegate but the circumstances are entirely different from a situation where the information has a personal dimension that may (as, for example, in the context of considering issues of relocation) have an effect on the discharge of the Authority’s statutory task. Here, the country information was simply part of the material that the Authority considered (having established that it could do so pursuant to s.473DD). Nothing in the nature of that material, or the relevant statutory context, made the course taken by the Authority unreasonable.
Thirdly, it is apparent that the Authority correctly identified (explicitly or implicitly) the considerations to be weighed in respect of the new country information.[45]
[45] see above at [25]-[26]
Additional issue: s.473CB
In accordance with the Minister’s obligation as a model litigant, counsel for the Minister raised both orally and in writing an additional issue concerning the operation of s.473CB.
Section 473CB(1) of the Migration Act requires the Secretary, in referring a decision of a delegate to the Authority, to give certain material to the applicant. That material includes:
a)“material provided by the referred applicant to the person making the decision before the decision was made”;[46] and
b)“any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.[47]
[46] section 473CB(1)(b)
[47] section 473CB(1)(c)
Thus, in simple terms, these sections require the Secretary to provide the Authority with the material provided by the applicant to the delegate and any other material that the Secretary considers relevant. The significance of the provisions in the present case is that the additional documents[48] were not provided to the Authority. Two of those additional documents were documents that were apparently provided to the delegate.[49] Given this, s.473CB(1)(b) potentially applies to those documents. In addition, the third document was a document in the Secretary’s possession that was not provided to the Authority, potentially raising the application of s.473CB(1)(c).
[48] referred to at [5] above
[49] at CB 131-132; CB 134-135
The Full Federal Court has recently had occasion to consider the correct construction and operation of s.473CB(1)(b). In EVS17 v Minister for Immigration,[50] certain medical documents were provided by the applicant to the delegate but those documents were not provided to the Authority.
[50] [2019] FCAFC 20
In essence, the ratio of EVS17, on the facts of that case, involves three propositions. First, there was a breach by the Secretary of s.473CB(1)(b)[51] because of a failure to provide a document to the Authority that was provided by the applicant to the delegate. Secondly, the breach was a material breach on the basis that it could have made a difference to the outcome;[52] and, thirdly, the Authority’s statutory task of review was disabled by reason of the failure to have before it material that the appellant had provided to, and was before, the delegate.[53]
[51] at [14]
[52] at [36]-[54]
[53] at [32]-[35]
In respect of the broader comments in EVS17 about s.473CB, the Court’s observations are not contentious. There is no dispute that a breach of s.473CB may have the consequence that the Authority falls into error by having its review task disabled. EVS17 is also authority for the proposition that the correct test for materiality is whether any breach could (rather than would) have made a difference to the outcome.
In Minister for Immigration v SZMTA,[54] the plurality (Bell, Gageler & Keane JJ) confirmed that materiality is an essential component of establishing whether there has been a jurisdictional error; an error is material only if compliance with the statutory provision that was breached “could realistically have resulted in a different decision”.[55] Materiality is a question of fact, in respect of which the onus is on the applicant. Materiality, like any question of fact, may be proved by inferences from the evidence on the application. The drawing of inferences can be assisted by reference to what can “be expected to occur in the course of the regular administration of the Act”.[56]
[54] (2019) 93 ALJR 252
[55] at [45]
[56] at [46]-[47]
In Minister for Immigration v CPA16,[57] the Full Federal Court considered a case in which a corroborative letter from a priest was provided to the delegate but was not provided to the Authority. The Full Federal Court confirmed that where the Secretary fails to give the Authority material in breach of s.473CB(1)(b) then that will result in jurisdictional error “where the review that was not provided could have resulted in the making of a different decision”.[58] The Full Federal Court also noted that in order for the Court to assess whether a decision could realistically have been different, evidence of the content of the document or information is relevant but speculation about how the missing document may have affected the decision is not enough to discharge the onus of demonstrating materiality.[59]
[57] [2019] FCAFC 40
[58] at [32(2)]
[59] at [32(4)] and [32(6)]
More recently, the Full Federal Court in CQR17 v Minister for Immigration[60] further reviewed the authorities, in particular EVS17. Although not disagreeing with the earlier Full Federal Court decision, the Full Federal Court in CQR17 considered whether there was an “evident and intelligible justification” for something to be considered not relevant to the review. At [39] Jagot J stated that:
The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review.
[60] [2019] FCAFC 61
At [130] Derrington J, referring to the decision of the High Court in SZMTA stated:
The decision in SZMTA is the most recent statement by the High Court on this issue and may have settled it, at least for the time being. For the purposes of the present matter, in ascertaining whether any non-compliance with a statutory obligation amounted to a jurisdictional error the failure to give a relevant document to the IAA has to be a material breach in that the giving of the document could realistically have resulted in the visa being granted.
In the present case, in respect of the first two documents that form part of the additional documents, I find that those documents were not provided to the Authority and that by the Secretary failing to provide them, there was a breach of s.473CB(1)(b) of the Migration Act. However, I accept the Minister’s submission that in neither case was that non-compliance material. In respect of the first document, what was provided to the delegate was a link to country information that was cited in the applicant’s post-hearing submission and summarised in that submission.[61] The information was thus before the Authority and it may be inferred that the Authority was aware of it. In respect of the second document, the essence of the exchanges between the delegate and the applicant’s representative were summarised in the delegate’s decision.[62] The delegate’s decision was before the Authority. It follows that the non-compliances did not involve any different outcome, the information in the two documents being, in any event, before the Authority. The form of that information could not have any made any difference to the Authority’s decision.
[61] at CB 124
[62] at CB 151 and CB 155, noting footnotes 61, 62, 105 and 106 and the accompanying text of the delegate’s decision
In respect of the third document, this was not a document that was provided to the delegate but rather simply a response from the delegate confirming that the link to the country information worked. To the extent that s.473CB(1)(c) applied, it may properly be inferred that the document was of no relevance to the Authority’s review and did not need to be provided.
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 3 May 2019
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