DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1531
•8 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1531
File number(s): MLG 1678 of 2018 Judgment of: JUDGE A KELLY Date of judgment: 8 July 2021 Catchwords: MIGRATION – Safe Haven Enterprise Visa – where the applicant was an Irregular Maritime Arrival – where the applicant identifies as Telugu – where the applicant’s wife was said to be a member of LTTE – where the applicant feared harm by association with his wife, eldest son, and because of ethnicity – where the applicant and son fled Sri Lanka - whether warrants for arrest issued following son absconding bail after being charged with murder – where the applicant’s migration agent posted statutory declaration which was received after delegate had made decision – whether failure to consider statutory declaration – whether new information – whether Authority erred in treatment procedural duty in deciding whether exceptional circumstances shown – whether error in applying s 473DD material – whether decision not to interview tainted by legal unreasonableness – application refused Legislation: Migration Act 1958 (Cth) ss 65, 473BB, 473BC, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 474, 476 Cases cited: AAL19 v Minister for Home Affairs [2020] FCAFC 114
AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407
ABH18 v Minister for Home Affairs [2020] FCA 620
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
ALJ18 v Minister for Home Affairs [2020] FCA 491
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
BOS17 v Minister for Immigration and Border Protection [2020] FCA 74
BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221
BWO19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 181
BXT17 v Minister for Home Affairs [2021] FCAFC 9
BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44
CHF16 v Minister for Immigration and Border Protection (2017) 257 FCR 148
CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140
CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367
Craig v South Australia (1995) 184 CLR 163
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
DYS16 v Minister for Immigration and Border Protection (2018) 260 FCR 260
DUZ16 v Minister for Home Affairs [2020] FCA 1593
DVO16 v Minister for Immigration and Border Protection [2021] HCA 12
EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796
EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Home Affairs v DUA16 [2020] HCA 46
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
PQSM v Minister for Home Affairs (2020) 279 FCR 175
Schmidt v Minister for Immigration and Border Protection [2018] FCA 1162
XFCS v Minister for Home Affairs [2020] FCAFC 140Number of paragraphs: 208 Date of last submission/s: 26 November 2020 Date of hearing: 14 September 2020 Counsel for the Applicant: Mr J. Maloney Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondents: Mr N. Wood Solicitors for the Respondents: Australian Government Solicitor ORDERS
MLG 1678 of 2018 BETWEEN: DCF18
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE A KELLY
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS THAT:
1.By consent, pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the court via audio and video link.
2.The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
3.The further amended application dated 24 August 2020 be dismissed.
4.The applicant pay the costs of the first respondent fixed in the sum of $7,258.
REASONS FOR JUDGMENT
Introduction
By further amended application 24 August 2020, judicial review is sought of a decision of the Immigration Assessment Authority (Authority) made on 23 May 2018 affirming a decision of a delegate of the first respondent (Minister), refusing to grant him a Safe Haven Enterprise visa (visa) pursuant to s 65 of the Migration Act 1958 (Act).
The seven grounds as advanced by the further amended application replaced the six grounds as advanced by the amended application dated 11 June 2020 and the two substantive grounds which were originally put when the initiating application was filed on 14 June 2018. Although the court book was of relatively modest size, in the way in which the application was pressed it was accompanied by a voluminous quantity of authority and was the subject of further post-hearing submissions which called for consideration of more recent decisions of the Full Court of the Federal Court and High Court respectively; namely, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 (BTW17); AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (AUS17).
The substantive basis upon which the applicant sought to impugn the Authority’s decision turned upon its refusal, for the purposes of its fast track review, to consider new claims contained in a statutory declaration made on 31 October 2017. At the outset, five matters may be noted. First is that the declaration had been sent to the delegate by post, before, but not received until after, his decision was made to refuse the visa application. Secondly, the Authority undertook its own enquiries; the applicant and delegate supplied a copy of the declaration, whose contents were addressed. Thirdly, the claims related to a number of historical matters and disclosures by the applicant of, it was said, the laying of charges against his eldest son for the murder of the son’s wife, the sons detention and subsequent release from prison on bail, the applicant and his son fleeing Sri Lanka and the issue of warrants against the three of them. Fourthly, despite a five month opportunity to do so, the applicant did not supply copies of, or further information in relation to the arrest warrants. Fifthly, in light of the otherwise vague, general and in some cases implausible nature of the new information, the Authority was not satisfied the requirements of s 473DD had been met and did not consider the new information for the purposes of undertaking its fast track review.
The application should be dismissed. In summary, I have concluded as follows: (1) it has not been established that the Secretary failed to consider the applicant’s statutory declaration made on 31 October 2017 for the purposes of par 473CB(1)(c); (2) for the purposes of par 473DD(a), the Authority did not fail to consider what were described as the highly unusual circumstances in which the October declaration had been posted to, but not received until after, the delegate made a decision. The circumstance that the Secretary may have considered the October declaration to be relevant was not a factor that could have realistically effected the Authority’s consideration of the matter; (3) for the purposes of par 473DD(b)(i), nor did the Authority fail to consider whether, before the delegate’s decision was made, the applicant could not have, but had not, provided the October declaration; (4) for the purposes of par 473DD(b)(ii), the Authority did not assess the new information on the basis of whether it was capable of being believed but instead decided that it was not capable of being believed or evidently not credible; (5) an impugned finding that the applicant had concocted one claim was not in fact made. Rather, the Authority, which found the claim to be inherently implausible, was a finding for which there was an intelligible basis; (6) it was not legally unreasonable for the Authority to decline the applicant’s request for an interview; (7) if there was error in the approach taken by the Authority in relation to the matters the subject of the grounds of review, objectively, the new information could not realistically have made a difference to the process of review.
Background
The applicant, a male Sri Lankan citizen of Tamil ethnicity aged 52 years, arrived in Australia in November 2012 at the Cocos (Keeling) Islands as an Irregular Maritime Arrival where he was interviewed and provided with a Bridging Visa E. The applicant and his wife identify as Telugu, an ethnic group considered to be of low caste. Country information establishes that Telugus are considered to be Gypsies or Wanderers. The applicant claimed that prior to their marriage, his wife had been a member of the Liberation Tigers of Tamil Eelam (LTTE). The applicant claimed to fear persecution from the Sri Lankan army and other agencies of the government because they thought he and his wife were LTTE supporters.
The applicant indicated that as he resided in Puttalum for some years and worked continuously in construction, his relative wealth, or the perception of his wealth, made him a target. In the course of his arrival entry interview, the applicant stated that “In Puttalam we did well, the problem was with the “Grease Men”, we had no freedom to go outside, the Tamils are not treated fairly. We were not treated well because we were not poor. People would come to the house.” It appears that the “Grease Men”, also known as the “Grease Yaka” were a group of unidentified individuals who, during 2011, painted their faces and threatened villagers.
The applicant did not mention at the time of his interview on arrival on Cocos (Keeling) Islands (but later indicated), that in 2011 his son had been arrested and charged with the murder of his wife. He later claimed his son was held in police custody in hospital for one month before being transferred to prison pending trial. He then said the son was released after eight months (when the applicant paid bail of 40 lakhs), with a requirement that his son report to authorities once a month. Instead of reporting back to the police, the applicant and his son fled Sri Lanka and an arrest warrant was issued, it was said, for each of the applicant, his wife and their son.
On 15 December 2016, the applicant applied for a Safe Haven Enterprise Visa (SHEV), doing so at the invitation of the Minister and with the assistance of Refugee Legal.
Claims to protection
The applicant’s claims to be a refugee or otherwise entitled to complementary protection were made by three statutory declarations: the first, made on 10 December 2016; the second, made on 31 October 2017 and the third, made on 21 November 2017. The applicant’s second and third statutory declarations had been translated for him by an interpreter who made a statutory declaration to that effect on the same dates.
The applicant’s initial claims in his application for protection as set out in the 10 December declaration that accompanied his visa application stated that he was a Sri Lankan national of Tamil ethnicity who was married and a father to seven children. The applicant stated that he had fled Sri Lanka in late 2012 owing to his fears of persecution from the Sri Lankan army and other agencies of the Sri Lankan government. The applicant described that he and his wife were from a cultural group of Gypsies or Wanderers considered by other ethnic groups to be lower class and who were discriminated against by both Sinhalese and Tamils. The applicant stated that, unbeknown to him, before his marriage in 1992, his wife had been a member of the LTTE and received training after which she had been followed and subjected to harassment. The applicant recounted instances of harm from the age of 23 years and declared that he could not return to Sri Lanka because, if forced to do so, he would have to go into hiding “just like my wife. My wife continues to be followed and harassed by the LTTE and I know that the same would happen to me.” The applicant stated that he had paid for himself and his eldest son to flee by boat to Australia but could not afford to take other family members also, declaring “I took my son as he was being severely harassed as he was believed to be an LTTE member and also had some issues following the death of his wife.” The 10 December declaration made no mention of the matters that would be disclosed by the October declaration.
On 7 April 2017, the applicant was invited to attend an interview with a delegate of the Minister. On 27 April 2017, the applicant attended an interview with the delegate. Again, at the time of this interview, the applicant made no mention of the matters that would be disclosed by the October declaration. For the purposes of this interview the applicant was provided information respecting the importance of providing the Department with all information that may support his claims for protection and that a decision on his application could be made at any time after the interview had been conducted.
As appears from the reasons of the Authority (Reasons) at [14], in the course of his SHEV interview, the applicant provided the delegate with an Emergency Certificate issued in the applicant’s name and valid for the period 1995 to 1997 and in which an entry had been made containing the references B34509/11 and 0728622912. The Authority would regard the inclusion of the reference B34509/11 in the Emergency Certificate as severely undermining the applicant’s later claim that B34509/11 was the case number that would be assigned to the son’s criminal case for the murder of his wife allegedly committed in 2011.
The applicant’s statutory declaration made on 31 October 2017 was transmitted by registered post on that date. It was received by the delegate on 3 November 2017, being a day after the delegate had made his decision. The applicant’s October declaration, comprising seven paragraphs, declared that he had attended an interview on 27 April 2017 and that he was awaiting a decision on his application. The applicant then stated that he had not disclosed the following matters at the time of the April 2017 interview by reason of the fear, anxiety and stress he was feeling at the time of interview. He stated:
(a)in 2011, his son had been arrested and charged with the murder of his wife;
(b)the applicant’s son had been detained in police custody in a hospital for one month then transferred to a prison where he was detained for eight months pending trial but later released (when the applicant paid bail that was conditioned upon the son reporting to authorities each month). The son’s case number for his criminal trial was B3409/11;
(c)instead, the applicant and his son had fled from Sri Lanka to Australia;
(d)these facts had not been disclosed at the 27 April 2017 interview because he had heard that the Australian government had been returning people of Tamil descent to Sri Lanka;
(e)if he were to be returned to Sri Lanka there would be a high chance of imprisonment without bail because he had fled with an arrest warrant being issued in his name;
(f)as an elderly Tamil man, there was a high risk he would face serious harm at the hands of the prison officers and authorities, many of whom were former Sri Lankan army members and were Sinhalese.
Delegate’s decision
Before receipt of the applicant’s October declaration, on 2 November 2017, a delegate of the Minister made a decision to refuse the visa application. The delegate’s decisional record identified and considered the applicant’s claims including those which had been provided during his SHEV interview in April 2017. The delegate accepted a number of matters relating to the applicant’s visa application as being credible including that he was Telagu, identified as a Tamil, had been subjected to historical discrimination by reason of being Telagu, before their marriage (in about 1982), his wife had been an LTTE member, he had been detained by Sri Lankan authorities in about 1992 for one day and, in 2011, he feared reprisals of Grease Men. In evaluating whether the applicant met the refugee criteria, the delegate was not satisfied the applicant faced a real chance of persecution due to his Telagu background or that the type of discrimination experienced by Tamils in Sri Lanka was such as to amount to serious harm. The delegate did not consider the applicant would face any issues arising from suspected association with any political party. Insofar as a claim was made arising from the Grease Men, by reference to DFAT information, the delegate found that the activities of this group was limited to 2011 and there was no real chance of harm from them. Upon consideration of the individual and cumulative weight of those claims, the delegate was not satisfied the applicant met the criteria for a visa, either as a refugee or by way of complementary protection.
Referral to Authority
On 6 November 2017, the delegate’s decision was referred to the Authority for review and on that date the Authority was supplied with the review material including that considered to be relevant to his case. In particular, it did not include the October declaration.
On the following day, the Authority wrote to the applicant informing him of the referral and that it had been provided with all documents considered to be relevant to the case. The Authority advised the applicant that it would proceed to make a decision on his case on the basis of the information sent to it unless a decision was made to consider new information. Attached to the letter was a copy of an Information Fact Sheet and Practice Direction which, relevantly, addressed the topic of “new information”.
The applicant made a statutory declaration on 21 November 2017 identifying further reasons why he disagreed with the delegate’s decision and providing another explanation for why he had not disclosed to the Department, whether in the course of his entry interview or SHEV interview, that an arrest warrant had been issued after he had left Sri Lanka. The applicant referred to the disclosures made in his October statutory declaration, expressed a belief that it had not been read by the delegate who made the decision to refuse his application and requested the Authority take the matters in the October statutory declaration into account.
The applicant also attached translations of various documents concerning the posting of bail by his wife for their son’s release from prison in 2015 and stated that he was waiting upon further documents to arrive from Sri Lanka which would show that an arrest warrant had been issued for his son, his wife and himself in consequence of having not abided the bail conditions but instead fled the country. Upon those bases the applicant expressed a belief that he would be a person of interest to the authorities and would be arrested and detained, not granted bail and would face serious harm in prison due to his Tamil ethnicity. Attached to the declaration was a cash receipt dated 19 October 2015 issued by the Acting Registrar, High Court of Western Province, Negombo, for a sum of LKR 100,000 for the stated reason of “Bail charges in relation to High Court case number 54/15.” This apparently related to bail posted by his wife for the release of another son pending trial on other charges. Otherwise, the relevance of this material did not loom large in the present application.
A request was made for an extension of time to provide further evidence of the matters referred to in the applicant’s November statutory declaration. Contextually, this declaration averted to the supply of documents from Sri Lanka that would show arrest warrants had been issued in relation to the applicant, his wife and son. In the event, no such documents were supplied.
Relatedly, the Authority did not make its decision until 23 May 2018. In the period November 2017 – May 2018, the applicant did not supply any further information to the Authority.
On 21 November 2017, a senior solicitor and migration agent with Refugee Legal transmitted an email to the Authority attaching both the applicant’s October and November statutory declarations and a submission. From that date, the Authority had a copy of both declarations.
By letter dated 21 November 2017, Refugee Legal made a submission on behalf of the applicant stating reasons why the delegate’s decision was said to be legally and factually incorrect. It was submitted that claims and material facts had been overlooked by the delegate. A request was made that the Authority interview the applicant and a submission was made that it would be legally unreasonable not to do so.
The submission made on behalf of the applicant contended that for the purposes of s 473DC(1) of the Act, the information in the October statutory declaration was not new information, doing so on the stated basis that it had been “sent to the delegate before the decision was made” and, as there was no reference in the decisional record to the matters raised by that declaration, the Authority should accept that either of two possibilities existed: (1) the declaration had been received but not considered – in which case it was not new information, or; (2) the declaration had not been received before the decision had been made – in which case it should not be considered to be new information, as the later receipt of the declaration (after the delegate had made a decision), had been through no fault of the applicant.
Alternatively, it was submitted that if the two statutory declarations and submission were considered to be new information, the Authority was not precluded by operation of s 473DD of the Act from having regard to it since exceptional circumstances were shown and the new information was not and could not have been provided to the Minister before the decision was made and it constituted credible personal information which was not previously known by the delegate, which, had it been known, may have affected consideration of the applicant’s claims. The submission provided reference to recent Full Court authority and identified the circumstances being relied upon as constituting exceptional circumstances which justified the new information being considered. As to the October statutory declaration, it was submitted that “the information was mailed via registered mail to the delegate before the decision was made” but nothing else was said. In relation to all information provided, it was submitted the applicant’s mental health had declined due to the stress of living with the uncertainty arising from his visa application, the application by his son and separation from his wife, together with his struggle and inability to comprehend his legal position or to present his claims in a coherent manner. Those matters were formulated in the number of ways.
By letter dated 14 May 2018, the Authority wrote to the Department, noting the applicant’s claim to have sent his October statutory declaration to the Department before the delegate had made the decision. The Authority sought clarification as to the receipt of such information stating: “Can you please check your records to see if additional information was sent prior to the delegate’s decision date of 2 November 2017? If so can you please send that additional information to the IAA?” For this purpose, the Authority requested that the Department review its file and provide its response promptly. Later, on 14 May 2018, the Department responded to the Authority stating the October declaration had not been received until 3 November 2017, “the day after the decision was made.”
On 14 May 2018, additional documents were uploaded to the Authority’s file. It was common ground that the Department supplied the Authority with a copy of the October declaration.
On 23 May 2018, the Authority made a decision to affirm the delegate’s decision not to grant the referred applicant a protection visa. On the same date, the Authority notified the applicant of that decision and provided him with a copy of its decision and reasons. It is convenient to examine particular aspects of the reasoning in the context of specific grounds of review. For present purposes it may be noted that the Authority identified the information that was before it and, as concerned the submissions made on behalf of the applicant, including with respect to the October and November 2017 declarations, concluded the applicant had no valid reason for not providing his new claims before the delegate had made his decision and, for the reasons given, was not satisfied exceptional circumstances were shown as to justify consideration of the new information and did not have regard to it. Further, the Authority made a decision not to exercise the discretion to seek information from the applicant in an interview, and was not satisfied that it was legally unreasonable to do so. As concerned the request for an extension of time, the Authority noted that the applicant had provided no further information in the period November 2017 to May 2018 and concluded that he had been afforded ample time in which to prepare and present his case: Reasons, [4]-[23].
Procedural history
On 14 June 2018, the applicant filed an application seeking prerogative relief in respect of the Authority’s decision given on 23 May 2018 together with an affidavit to which he exhibited a copy of the decision but adducing no further evidence in relation to his application. According to his application, the applicant was not in detention when judicial review was sought.
On 23 July 2018, a response was filed on behalf of the Minister seeking that the application be dismissed on the ground that the Authority’s decision was not affected by jurisdictional error.
Om 18 September 2019, orders were made by a registrar, by consent, dispensing with a show cause hearing and setting the proceeding down for final hearing on a date to be fixed. Orders were made on that date regulating the procedures to be adopted with respect to a final hearing, which orders were varied by a consent order made on 12 August 2020.
On 11 June 2020, the applicant filed an Amended Application by which the six new grounds of review were advanced. On 24 August 2020, the applicant filed a Further Amended Application in which the six grounds proposed by the Amended Application were abandoned and detailing new proposed seven grounds for consideration.
The hearing, which occurred during the Covid-19 pandemic, was conducted by audio and video link on 14 September 2020. Thereafter, the parties filed a number of post-hearing submissions addressing in particular, the decisions in BTW17 and AUS17.
Judicial review
If the Authority’s decision was a privative clause decision, it is not amenable to judicial review: Act, s 474(2). A decision respecting the merits review of a visa application is not amenable to judicial review unless it is shown to be vitiated by jurisdictional error: Act, s 474(1)(c), 476(2)(b); Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). Absent jurisdictional error, the court has no jurisdiction to grant relief in respect of the Authority’s decision: Act, s 476(2). An error in the process of administrative decision-making will not be jurisdictional and so will not attract an entitlement to relief unless the error was material in the requisite sense: MZAPC v Minister for Immigration and Border Protection [2021] HCA17, [1]-[2], [30]-[34], [60].
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
The grant or refusal of a visa application turns upon whether an administrative decision-maker is satisfied that the criteria for the grant of the particular visa have been satisfied. A decision in relation to the satisfaction of those matters is a decision upon a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [102] (Crennan and Bell JJ). By s 65 of the Act, the decision-maker is required to refuse to issue a visa absent an affirmative finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ). Conversely, where the decision-maker is satisfied that the criteria have been met, the application must be granted: Act, s 65.
Applicable principles – Part 7AA
Pt 7AA of the Act provides the statutory framework within which judicial review is considered. It creates a system for a fast track review process respecting certain protection visa applications. In contrast with Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA provides a mechanism of limited merits review: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23]. By the combined operation of ss 473CA and 473CC of the Act, after a decision is made, the Minister must refer, as soon as is reasonably practicable, and the Authority must review, a fast track reviewable decision.
Ordinarily, a fast track review must be conducted on the papers: Act, s 473DB. Section 473CB of the Act identifies the material that must be provided to the Authority and defines the scope of that which comprises ‘review material’ for the purposes of a fast track review.
Division 2 of Part 7AA concerns the subject Referral of fast track reviewable decisions to Immigration Assessment Authority, and requires the Minister to refer such decisions to the Authority as soon as is reasonably practicable after the decision is made (s 473CA), obliges the Secretary to give to the Authority certain material (review material) (s 473CB) and obliges the Authority to review decisions that are referred to it, and, in doing so, authorises it to affirm the decision or remit it for reconsideration with directions or recommendations (s 473CC).
The scope of the Secretary’s obligations to provide ‘review material’, including the content of ss 473CB(1)(b)-(c) are important as concerns Ground 2. Relevantly, s 473CB provides:
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473 CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority to be relevant to the review;
(d)the following details:
(i) – (iv). . .
(2)The Secretary must give the review material to the Immigration Assessment Authority at the same time, or as soon as reasonably practicable after, the decision is referred to the Authority.
Division 3 of Part 7AA regulates the Conduct of review of a Part 7AA-reviewable decision by the Authority and comprises ss 473DA – 473DF. It is arranged in three sub-divisions which: provide a statement of the natural justice requirements for the conduct of review; require that ordinarily a fast track review is to be conducted on the papers, and; regulates the use of any additional information. In summary, Div 3 of Pt 7AA: provides an exhaustive statement of the natural justice hearing rule in a review conducted by the Authority (s 473DA); requires that the Authority should ordinarily conduct its review on the papers, (s 473DB); provides for the exceptional, and strictly circumscribed, circumstances in which new information or documents may be sought or employed, (s 473DC-DE) and; authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information, (s 473DF): BYA17, [2019] FCAFC 44, [31].
Subdivision B of Div 3 of Pt 7AA, which concerns the subject, Review on the papers, provides a regime whereby the Authority is, as a general rule, obliged to undertake its de novo review “on the papers” and without new information or any interview. Section 473DB:
473DB Immigration Assessment Authority to review decisions on the papers
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under s 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Sub-division C concerns the subject, Additional information, and comprises ss 473DC-473DF. By sub-div C, four matters are addressed: the conferral of power to ‘get’ new information; a confined power to ‘consider’ new information; an obligation to ‘give’ new information to an applicant, and; the issuing of an ‘invitation’ to give new information: Act, ss 473DC-473DF.
In general, the Authority’s overriding duty to conduct a fast track review is conditioned by a procedural duty to do so upon the review material that is supplied to it by the Secretary. The only qualifications upon the performance of that procedural duty arise from the powers which are conferred by ss 473DC and 473DD respectively to ‘get’ and/or ‘consider’ new information. The proper performance of the procedural duty, as qualified by those powers, exhausts the requirements of natural justice in the conduct of a fast track review under Pt 7AA: DVO16 v Minister for Immigration and Border Protection [2021] HCA 12, [16].
For the purposes of a fast track review, Pt 7AA provides separately for, and draws a distinction between, the discretionary powers conferred on the Authority to ‘get’ on the one hand, and to ‘consider’ on the other, information which answers the description of being ‘new’ information. The Authority is conferred with power, but is under no duty to ‘get’ any new documents or information that was not before the delegate: Act, ss 473DC(1)-(2). The Authority is also conferred power to invite a person to give new information in writing or at an interview: Act, s 473DC(3). The criteria which constrain the Authority from ‘getting’ new information are whether it was not before the original decision-maker and whether the Authority considers the information may be relevant: Act, pars 473DC(1)(a)-(b).
Section 473DD confers power to ‘consider’ new information in exceptional circumstances. Otherwise, s 473DD, which is expressed in imperative terms, proscribes the Authority from considering any new information unless the requirements of the section are met. If information is not ‘new’, the power conferred by s 473DD is not engaged.
As relevant to Grounds 3 – 7, in Div 3 of Pt 7AA, Sub-div C, Additional information, provides:
473DC Getting new information
(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.
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
473DE Certain new information must be given to referred applicant
(1) – (3) . . . .
473DF Invitation to give new information or comments in writing or at interview
(1) – (4) . . . .
New information
For the purposes of Pt 7AA, ‘new information’ means, subject to that Part, any document or information of an evidentiary nature that was not before the Minister when the decision was made under s 65 to refuse the application and which the Authority considers may be relevant: Act, ss 473BB, 473DC(1); AUS17 [2020] HCA 37, [3]; Minister for Home Affairs v DUA16 [2020] HCA 46, [25]; AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407, [2021] FCA 407, [33], [37]; Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, [21]. Information can be ‘new’ in the requisite sense where it was not previously known to the Minister or a delegate, even though it was known to the visa applicant: Plaintiff M174/2016, [33]-[34].
Whether there has been a failure to consider a matter required for the purposes of deciding to exercise a discretionary statutory power turns upon consideration of the decision-maker’s reasons read in light of the particular statutory context. Having regard to such reasoning, considered in the relevant statutory context, an inference may be available from the absence of any reference in the reasons to a particular matter that such matter had not been considered or was not considered to be material. Here, the specific context arises from the requirements of pars 473DD(a) and 473DD(b)(i)-(ii) of the Act. While the burden of demonstrating jurisdictional error lies upon the applicant, if it depends upon an inference that a matter had not been considered, such an inference may also be displaced: compare, e.g. (by analogy), EGY18 [2020] FCA 796, [45]-[51] (Perry J). The statutory context here includes that in the exercise of the discretion whether to consider new information, the Authority is concerned with the discharge of a procedural duty, a matter upon which it is not required to provide reasons.
Section 473DD operates in the context of ss 473DB-473DC which require that the Authority is ordinarily required to conduct its fast track review on the papers and without interviewing the applicant subject to the conferral of power to ‘get’ new information. And the power to ‘consider’ new information is not available unless the criteria to do so are met. The nature and scope of this power was considered in AUS17. Properly construed, s 473DD imposes a procedural duty to assess such ‘new’ information as is before it in making a decision whether it may proceed to ‘consider’ it. The plurality held at [6]:
. . . s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria. Having performed that duty to assess the new information against the specified criteria, 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.
AUS17 had not been decided at the time of the Authority’s decision not to accept the ‘new’ information which the applicant had sought to place before it on fast track review (or at the time of hearing argument on this application). The parties were agreed they should be permitted to make post-hearing submissions upon the impact of that decision in this case. From their submissions, there was no dispute as to the decision or applicable principles.
AUS17 holds that information must be assessed by the Authority against the criteria specified in both pars 473DD(b)(i) and (ii) before an evaluation is made of the criteria in par 473DD(a); that is, whether it has been satisfied that there are exceptional circumstances to justify considering the new information. While the requirements in par 473DD(a) and (b) are cumulative, if the applicant satisfies either or both of 473DD(b)(i) and (ii), such satisfaction must be employed when the Authority addresses the requirements of par 473DD(a). If neither par 473DD(b)(i) nor (ii) be satisfied, no occasion arises to consider par 473DD(a), and the Authority is prohibited from considering the information upon review. The same result arises if pars 473DD(b)(i) or (ii) are satisfied and, upon consideration of par 473DD(a), the Authority is not satisfied exceptional circumstances justify the information being considered. Nothing in AUS17 dilutes the cumulative requirements of pars 473DD(a) and (b).
The reasoning in AUS17 has been characterised as mandating the way in which the assessment of ‘new’ information is to be undertaken pursuant to s 473DD: BXT17 v Minister for Home Affairs [2021] FCAFC 9, [137]. In BXT17, a Full Court stated at [139]:
While the plurality in AUS17 does not set out how the Authority should, to adopt the Minister’s term, “structure” its reasons or, put another way, how qualitatively it should address each of the criterion, they do require that the Authority assess the new information against each of the criterion in s 473DD(b)(i) and s 473DD(b)(ii), assuming it is capable of such assessment, and then take the outcome of that assessment into account in its subsequent assessment of the criterion in s 473DD(a).
The Full Court found at [142], that the Authority had erred in its consideration under s 473DD by failing to consider the criterion in par 473DD(b)(ii) before turning to par 473DD(a).
Consideration
The grounds of review were framed so as to address several permutations of challenge arising from the alleged failure by the Secretary to supply the new information and the decisions of the Authority to not consider the information in the October declaration and to not exercise the discretion to interview the applicant. Issues of materiality are dealt with separately.
Ground 1 – s 473CC: Failure to consider review material
Ground 1 of the Further Amended Application advanced a contention that the Authority, being obliged to consider ‘review material’, had erred in not giving consideration to the matters raised in the applicant’s October declaration. Ground 1 was not pressed, it being accepted that that declaration had not been before the delegate at the time of decision.
Ground 2 – s 473CB: Failure to consider October declaration
Ground 2 of the Further Amended Application reads:
If, contrary to grounds 1 and 2 (sic), the Secretary failed to provide the October Declaration to the Authority pursuant to s 473CB of the Act, then – compliance with that provision being a precondition for the exercise of the Authority’s jurisdiction to conduct a review – that failure vitiated the Authority’s review.
Particulars
The October Declaration commences at CB 124. The relevant part of the Authority’s reasons is [8]-[18].
Proceeding upon a premise that the Secretary had not provided the October declaration to the Authority pursuant to s 473CB, those particulars asserted, but did not distinctly identify, why or how there had been a failure by the Secretary to discharge the obligation imposed by s 473CB or how this had vitiated the process of fast track review by the Authority.
Submissions
By Ground 2, the applicant reformulated Ground 1 in terms that, if the Department’s email to the Authority on 14 May 2018 providing it with a copy of the October declaration was not to be understood as having been provided in the discharge of the obligation imposed by s 473CB, the Secretary thereby failed to comply with that provision, with the effect that the Authority’s review was vitiated by that failure. The substantive basis for the complaint under Ground 2 was that the October declaration should have been part of the review material. Upon that premise, ultimately it was said that had the declaration formed part of the review material, this could have made a difference to the manner in which the Authority exercised its procedural duty under s 473DD in deciding whether it could consider the information in the declaration. Although the reformulated basis for this ground took some time to emerge, essentially it was said that, if the October declaration been supplied by the Secretary pursuant to par 473CB(1)(c), it would have been received by the Authority with an appreciation that the October declaration had been considered by the Secretary “to be relevant” for the purposes of the review. Little attention was paid to whether the Secretary had breached par 473CB(1)(c). Instead, Ground 2 was focussed upon the submission that it could have made a difference to the way in which the Authority approached the October declaration had the Secretary regarded it to be relevant.
It was submitted the October declaration satisfied the definition of ‘review material’ in that it had been provided to the delegate before the delegate’s decision was made; and/or in that it was relevant to the review. It was further submitted that the Secretary must be taken to have known that the declaration had been provided before the delegate’s decision, and formed part of the claims put by the applicant before the delegate. Why that was so was not explained. It was further submitted that the Secretary must be taken to have known that the applicant would not know that the delegate had not had the declaration before it when it made its decision; would not know that the Authority would not have the declaration before it; and (subject to satisfying the exceptions in ss 473DC and 473DD) would have no further opportunity to put his case. On that basis, it was said the Secretary must be taken to have known the Authority would make its decision without knowing of the declaration.
It was submitted that it was not reasonably open to the Secretary to form the view that the declaration was irrelevant to the review, or to form the view that it did not meet the definition of ‘review material’, since it had been provided before the delegate ’s decision. For those reasons it was submitted that the Secretary failed to apply s 473CB reasonably or to do so on a correct understanding of the law. In oral submissions, the applicant abandoned a submission that the ultimate effect of that failure was that the Authority had been obliged to consider the declaration as part of the ‘review material’ pursuant to s 473DD. This concession was properly made. It was accepted that the declaration had not been before the delegate when the decision was made and so could not have been provided by the Secretary under par 473CB(1)(b). In a reply submission, counsel properly accepted that had the Secretary provided the declaration to the Authority pursuant to par 473CB(1)(c), it remained subject to the proscription in s 473DD unless the requirements of that section were satisfied. What was sought to be emphasised was that, had the declaration been supplied by the Secretary as part of the review material, the fact the Secretary considered it to be relevant could have been a matter that the Authority would have taken into account for the purposes of s 473DD.
Counsel for the applicant said that Ground 2 was now put on a different basis being, in effect, a challenge to the lawfulness of the Secretary’s conduct in circumstances where the October declaration had not been considered by the delegate. It was submitted that, had the declaration been supplied by the Secretary to the Authority in the discharge of its obligations pursuant to par 473CB(1)(c), there was a real possibility it could have affected the way in which that declaration would have been treated by the Authority, including by taking it into consideration as material considered by the Secretary to be relevant, instead of approaching it by reference to the constraints that were to be applied to new information under s 473DD. This submission necessarily involved an asserted failure by the Secretary to include the declaration as part of the review material pursuant to the power conferred by par 473CB(1)(c).
The Minister contended that the Secretary had not failed to comply with section 473CB but that on 6 November 2017, the Secretary had provided to the Authority that which he or she considered at the time of referral to be the material which was relevant to the fast track review.
The Minister denied that it was not open to the Secretary not to consider that the declaration was relevant to the review, but submitted that the ground was hopeless in any event. While accepting that non-compliance by the Secretary with s 473CB could vitiate an Authority’s decision on review, it was submitted that this was so only if the non-compliance had been material. Counsel submitted that whether or not the October declaration was considered by the Secretary to be relevant to the process of review, or supplied by the applicant, in either event it constituted new information since it had not been before the delegate at the time the decision was made. For that reason, it was submitted the Authority was proscribed from considering it unless the requirements of s 473DD were satisfied. It was further submitted that the Authority was required to determine for itself whether new information may be relevant and, accordingly, in the proper discharge of its functions the Authority could be neither bound nor influenced by the Secretary’s opinion upon the question of relevance.
Resolution
The Secretary was obliged to apply s 473CB reasonably and on a correct understanding of the law. A failure to provide relevant documents to the Authority, as informed by a correct understanding of the law, could vitiate the Authority’s review: see, e.g., EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299, [31]-[43]. Further, it was properly accepted by the Minister that a failure by the Secretary to properly discharge the obligation in s 473CB to provide review material to the Authority could vitiate the ensuing process of fast track review if the error could have had a material effect upon that process of review: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140, [6], [14]-[15], [109]. CNY17 confirms that for the purposes of par 473CB(1)(c), when forming a view whether other material in the possession or control of the Secretary was relevant to a review by the Authority, the formation of that view was conditioned by an obligation of legal reasonableness and so required a correct understanding of the law.
In the way in which Ground 2 was framed, it proceeded upon an assumption that the Secretary had failed to provide the October declaration to the Authority contrary to s 473CB. At the time of referral, the Secretary provided to the Authority the ‘review material’, including that which had been considered to be relevant to the review. Some evidence that the Secretary did so was confirmed by the Authority’s letter to the applicant dated 7 November 2017. The submissions did not explain how, but assumed, the delivery of the review material to the Authority on 6 November 2017, which did not include the October declaration, constituted a failure by the Secretary to observe the requirements of s 473CB, and in particular, par 473CB(1)(c).
The October declaration was at one and the same time, capable of being both review material and new information. Review material is not limited to information that was before the delegate at the time a decision to refuse a visa application was made: Plaintiff M174 v Minister for Immigration and Border Protection (2018) 264 CLR 217, [25], [27]. The review material, which was supplied on 6 November 2017, did not include the October declaration.
It was common ground that the October declaration did not fall within par 473(1)(a) or (d) and could only constitute ‘review material’ under pars (b) or (c).
On the facts disclosed by the Reasons, and as confirmed by the concession that Ground 1 was not pressed, the October declaration did not constitute material that had been provided by the applicant to the delegate before the decision was made. For that reason, there could be no complaint of a failure to provide the Authority with that declaration pursuant to par 473CB(1)(b). Here, par 473(1)(c) provided the only available basis for impugning the conduct of the Secretary, and so to vitiate the process of review by the Authority. The October declaration was in the Secretary’s possession or control when the decision was referred to the Authority. While the October declaration was not material that had been provided by the applicant to the delegate before the decision was made on 2 November 2017, it could have constituted “review material” if the Secretary, being in possession or control of, and aware of it, had considered it, at the time of referral, “to be relevant to the review.”
Section 473CB is expressed in mandatory terms, thereby obliging the Secretary to give to the Authority certain material, including that which was provided by a fast track review applicant to a delegate before the decision was made. In EVS17, Allsop CJ, Markovic and Steward JJ paid particular regard to the objective purpose of Part 7AA, including that it was intended to provide an efficient but fair process of review such that a failure to comply with s 473CB may prevent the Authority from conducting a review is contemplated by Part 7AA, depending upon the gravity of the breach in question. The reasoning in EVS17 was endorsed in AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 274 FCR 82, [6], [70], [77]. EVS17 bears some similarity to the present case in that it concerned documents not before the delegate when the decision was made to refuse the visa application. While the applicant had given certain documents to the Department in 2012, they had been stored. By 2016, when the applicant applied for a SHEV, the Department having created another electronic file for the applicant, the subject 2012 documents were not provided with the 2016 SHEV application. At the time of referral under Pt 7AA, the subject documents were not identified or provided to the Authority and it refused to consider them on the mistaken view that they had not been supplied to the Department before the delegate had made a decision. The appeal was upheld on the basis that par 473CB(1)(c) imposed an obligation on the Secretary to take reasonable steps to locate potentially relevant documents.
The breadth of what may comprise review material under par 473CB(1)(b), is expanded by par 473CB(1)(c). The obligation to provide any other material that is in the possession or control of the Secretary and considered (at the time the decision was referred to the Authority) to be relevant to the review, is wider in scope than merely the documents before the delegate at the time of decision. However, the scope of s 473CB(1)(c) is not at large. In AUF18, [2019] FCAFC 222, [77], Allsop CJ, Jagot and Moshinsky JJ rejected a contention that the mere fact of documents being in the Department’s possession or control and not being considered for relevance would, in or of itself, establish a breach of par 473CB(1)(c). Their Honours, however, accepted that an unreasonable failure or refusal to identify documents that might be relevant could arguably constitute a breach of par 473CB(1)(c).
It was for the applicant to discharge the onus of demonstrating error by the Secretary in not including the October declaration as part of the review material. As concerns par 473CB(1)(c) it must be recognised that whether, and the manner in which, the Secretary sought to identify and consider if other material was relevant and should be supplied to the Authority were matters peculiarly within the knowledge of the Secretary. In such circumstances, it may be open to infer error from slight evidence, including from the content of the documents in question.
From 3 November 2017, the October declaration was in the Secretary’s possession or control. Whether the Secretary was in fact aware of it on 6 November 2017 was not evident. But there was no evidence that at the time the delegate’s decision and other review material was referred to the Authority, the October declaration was considered by the Secretary, subjectively, to be relevant for the purposes of that review. Absent such evidence, an applicant does not discharge the onus of proving a failure by the Secretary to consider other material: cf CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367, [28]-[44], [39] (Jagot J, Reeves J agreeing on this issue, [4]). An application for special leave to appeal was dismissed: [2019] HCASL 228. Jagot J stated at [39]:
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.
Her Honour recognised it was not difficult to propose a chain of reasoning by which a document could be relevant, or, conversely, to identify another chain of reason by which it was not: [40]. Jagot J concluded that the applicant had not established a contravention of par 473CB(1)(c) by the Secretary with the result that no jurisdictional error was established. Her Honour also examined materiality, and concluded, that had it been supplied the documents in question, the reasoning which led the Authority to conclude there were no exceptional circumstances to justify considering new information, could not have been affected by the information which those documents contained: [43]-[49].
Although differing in the result, Derrington J reasoned to somewhat similar effect: [79]-[84], [91]-[93], [98]. Derrington J examined the issue of relevance and concluded that for the purposes of par 473CB(1)(c) “relevant material is that which is logically probative of the issues which arise on the applicant’s visa application as they appear at the date of referral”: [107]. Derrington J concluded that an inference of relevance could be drawn from the documents and that “all material which tends to prove (or disprove) any aspect of the protection visa application would be relevant”: [117]. Yet it was also recognised that “even if one reached the conclusion that the documents were relevant, it is not possible to reach the conclusion that the contrary decision of the Secretary was not reached reasonably and on a correct understanding of the law. The question of the probative relevance of the document is something on which reasonable minds might disagree”: [121]. Derrington J concluded certain documents were obviously and unequivocally relevant to the review to be undertaken by the Authority and, accordingly, that the Secretary’s conclusion to the contrary had not been reached upon a correct understanding of the law. Derrington J agreed that the failure to provide such documents had not denied the applicant the possibility of a realistic outcome. [125], [135], [139].
For an error in the application of par 473DD(b)(ii) to be material, it must be shown that the ultimate outcome of the exercise under that provision may have been different had the error not been made: ABH18, [2020] FCA 620, [29], [34]-[35]. There, Charlesworth J emphasised that the concern of a supervising court was “to identify how (if at all), the error in the application of the procedural power to consider new information may have affected the ultimate exercise of the Authority’s power to affirm the decision under review under Pt 7AA of the Act.” Her Honour accepted that, in general:
In the ordinary course, an erroneous interpretation or application of s 473DD may be expected to result in the Authority erroneously proceeding on the basis that it is precluded by s 473DD from considering new information. Such an error may be material if consideration of the new information may conceivably have resulted in a more favourable outcome for the review applicant. Whether that is so must turn on the particular circumstances of the case.
However, Charlesworth J also identified that the question of materiality could be approached through the prism of “credible personal information” in par 473DD(b)(ii), explaining that where the reasoning evidenced “substantive consideration being given to whether the new information could be believed (as opposed to whether it was capable of being believed), and a substantive conclusion that it could not”, even if such an approach was erroneous, it may not materially affect the outcome on review. Her Honour reasoned that where the Authority had given substantive consideration to the new information, albeit for the purposes of s 473DD, the end result was that the information would also not have been considered for the purposes of review: [42]-[46]. With respect, this reasoning is persuasive.
Materiality may be viewed from a different perspective where the Authority has applied par 473DD(b)(ii) erroneously by not assessing whether new information is credible through the appropriate filter or at a threshold level but instead reaches a substantive conclusion. As ABH18 illustrates, where the Authority arrives at substantive conclusion that new information is evidently not credible or not capable of being believed, in the circumstances of a particular case it may be accepted that this conclusion would have been adopted by the Authority had it been employed not merely for the purposes of s 473DD but also in discharging its core function of review pursuant to s 473CC(1) of the Act. If the substantive conclusion reached was that the new information was evidently not credible or not capable of being believed conclusion and that is grafted onto the reasoning on review, it may be concluded there could be no realistic possibility of a different result on review in those circumstances.
Here, in my view, the Authority undertook a substantive assessment. At one and the same time it said that it had not been satisfied of the requirements of s 473DD(b)(ii), but, instead of applying that provision as a filter and at a threshold level, it undertook its evaluation of the information as though at a substantive level on review. In doing so, it did not concern itself with whether the information was capable of being believed but adopted the converse approach in concluding that it was not capable of being believed or evidently not credible. While the adoption of that approach may not have entailed error, to have done so by reaching a substantive conclusion, rather than applying the provision as a filter and at a threshold level was erroneous. For present purposes, the question is whether that error was material.
Upon the principles considered in ABH18, I do not accept there could realistically have been any different outcome in the Authority’s conclusion that the applicant had not satisfied it the new information may have affected the consideration of his claims on the material that was before it. Particularly is that so in light of the failure to supply the further documents from Sri Lanka and the otherwise vague, general or implausible nature of the information that had been put forward. For those reasons, I am not satisfied that the applicant has discharged the onus of proof in establishing to the requisite standard the historical facts necessary to support an inference that, had the ‘new’ information been considered in the manner which is required by par 473DD(b)(ii), there is a realistic possibility the Authority could have reached any different decision upon whether he had satisfied it that such information was credible personal information which, had it been known, may have affected the consideration of his claims.
For the reasons above, I also do not accept that the identified error in the application of par 473DD(b)(ii) could realistically have infected consideration by the Authority of whether it was satisfied of exceptional circumstances as required by par 473DD(a).
Materiality of error to consideration of exceptional circumstances
Since the criteria in s 473DD(a)-(b) are cumulative, an erroneous conclusion in relation to one of them “will not be material if its conclusion that the other pre-condition does not exist is a conclusion that is unaffected by error.” Accordingly, despite the adoption of an erroneous approach in relation to par 473DD(b)(ii), this will be insufficient, of itself, to establish jurisdictional error. The condition of exceptional circumstances in s 473DD(a) must always be met: Plaintiff M174 at [34]. A high threshold is set by the requirement that the Authority be satisfied there are exceptional circumstances to justify considering the new information: see, e.g., DUZ16 at [59]-[61]. Unless this condition was satisfied, the Authority remained obliged to conduct the review upon the review material and remained subject to the proscription that it should not consider any new information.
The requirement of ‘exceptional’ circumstances is a straightforward matter of objective fact: BTW17, [2020] FCAFC 159, [67]-[67], [77]. As the plurality explained, the purpose of the provision is to regulate the circumstances in which the Authority may be satisfied it should depart from the proscription in s 473DB(1) to conduct the de novo review on the papers.
As stated above, I have not been persuaded that the Authority addressed par 473DD(a) before giving consideration to the requirements of par 473DD(b)(i)-(ii): see, e.g., Reasons, [21]. If I am wrong in that view, it remains to consider whether a failure to do so could realistically have resulted in a different decision by the Authority in the consideration of par 473DD(a). Upon the conclusions I have reached, both in relation to Grounds 3-5, and upon the question of materiality of any error arising on those grounds, I am not satisfied there could realistically have been any different outcome in relation to the treatment of par 473DD(a).
The Authority concluded the condition of exceptional circumstances was not satisfied. It found that the information in the October declarations, which had not been provided to the delegate, could have been provided at any time from the making of the application in 2016, could have been provided at the SHEV interview and could have been provided before the delegate’s decision was made. The Authority was satisfied the information was new in that it had not been known by the delegate and further, that it was personal. Although it adopted an erroneous approach, as in ABH18, the Authority undertook a substantive evaluation of the information and concluded it was not capable of being believed or evidently not credible. Upon the principles considered above, the error in the approach to par 473DD(b)(ii) was not material. That is because the condition in par 473DD(a), which must always be met, was not satisfied and there could realistically have been no different outcome in circumstances where the Authority did not ignore but did consider the October declaration for the purposes of s 473DD.
I am not satisfied that the applicant has discharged that onus of demonstrating historical facts which could realistically have affected the outcome as to whether the Authority was satisfied “there were exceptional circumstances as might justify considering the new information”.
The applicant’s claims as originally made have been set out above, as have the delegate’s findings. In substance, the delegate had accepted the applicant was Telagu, identified as a Tamil, had been subjected to historical discrimination by reason of being Telagu, before their marriage (in about 1982), his wife had been an LTTE member, he had been detained by Sri Lankan authorities in about 1992 for one day and, in 2011, he feared reprisals of Grease Men. However, nothing in the applicant’s claims supported a finding that he now faced a real chance of persecution whether those claims were considered individually or cumulatively.
Claims relating to threats posed by the Grease Men were addressed by reference to DFAT information which indicated that the practices of this group were confined to 2011.
Insofar as the applicant claimed he would furnish further documentation from Sri Lanka relating to the issue of arrest warrants as against his son, his wife or himself, this did not eventuate despite the Authority allowing a period of some five months for this to occur. At no point were those documents supplied. The non-supply of such documents is to be considered in the circumstance that the applicant had referred to his wife having retained a lawyer (for purposes unexplained). Viewed objectively, the other information lacked cogency.
Absent information of that kind, the claims to face a high chance of imprisonment were unsupported except by most general assertions in the October declaration. No other country or DFAT information had been supplied by the applicant in support of this claim. While some submissions had been made by the applicant’s lawyers addressing prison conditions, the Reasons confirm that the Authority paid regard to this issue in detail: [50]-[54].
Materiality of refusal to interview etc
Little, if anything was said in relation to the materiality flowing from Grounds 6-7. In the view I have taken respecting the coincidental use of the alphanumeric series B3409/11, the finding of implausibility was well open on the evidence before the Authority. Nothing in the circumstances of the case disclosed error by the Authority in declining to interview the applicant upon this issue. If I am in error as to those conclusions, for the reasons above I do not consider there is a realistic possibility the applicant could have achieved a different outcome from the Authority had this issue been pursued further by way of interview.
Conclusion
The application should be dismissed.
I certify that the preceding two hundred and eight (208) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly. Associate:
Dated: 8 July 2021
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