DFP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 953
•7 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DFP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 953
File number(s): ADG 260 of 2018 Judgment of: JUDGE EGAN Date of judgment: 7 May 2021 Catchwords: MIGRATION – Application for Protection Visas – failure by Authority to assess whether each of the s. 473DD(b) criteria were satisfied – failure to perform mandatory statutory obligation – jurisdictional error established – decision of Authority quashed. Legislation: Migration and Maritime Power Legislation Amendment (Resolving The Asylum Legacy Caseload) Act 2014 (Cth).
Migration Act 1958 (Cth) ss 5H(1), 5J, 473CB, 473DD(a), 473DD(b), 473DD(b)(i), 473DD(b)(ii).
Cases cited: AUS17 v Minister for Immigration (2020) 94 ALJR 1007.
AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111.
APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23.
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481.Number of paragraphs: 28 Date of last submission/s: 29 April 2021 Date of hearing: 29 April 2021 Place: Brisbane Solicitor for the Applicants: Mr Simmons of MSM Legal Counsel for the First Respondent: Mr Swan Solicitor for the First Respondent: Mr Chan of Sparke Helmore Second Respondent: Submitting appearance save as to costs ORDERS
ADG 260 of 2018 BETWEEN: DFP18
First Applicant
DFQ18
Second Applicant
DFR18 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
7 MAY 2021
IT IS ORDERED THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
2.The Further Amended Application for Review filed on 6 April 2021 be granted.
3.The decision of the Immigration Assessment Authority made on 4 June 2018 be quashed.
4.A writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the Applicants’ Application for Review of the Second Respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.
5.For the purpose of the Immigration Assessment Authority again determining the Applicants’ applications, it be constituted by a different member than the member who handed down the decision on 4 June 2018.
6.The First Respondent pay the Applicants’ costs of and incidental to the Application for Review, fixed in the amount of $7,467.00.
REASONS FOR JUDGMENT
JUDGE EGAN:
Introduction
The applicants are citizens of Sri Lanka who arrived in Australia as unauthorised maritime arrivals on 5 May 2013. The first applicant is the mother of each of the second, third and fourth applicants.
The first applicant’s husband (FT) had arrived in Australia as an unauthorised maritime arrival before 13 August 2012. In November 2012, FT applied for a Class XA (Sub Class 866) Permanent Protection Visa. Because the applicants had arrived in Australia after 13 August 2012, they were barred from lodging any application for a visa pursuant to the provisions of the Migration and Maritime Power Legislation Amendment (Resolving The Asylum Legacy Caseload) Act (2014) (Cth). After the Minister lifted that legislative bar, the applicants applied for Sub Class 790 Safe Haven Enterprise Visas (SHEVs) on 15 March 2017. The visa application made by FT and the visa applications made by the applicants were separate applications.
On 17 November 2017, a delegate of the Minister refused to grant the visa applications lodged on behalf of the applicants.
After the making of the decision by the delegate, the matter was referred to the Immigration Assessment Authority (‘the Authority’) for review. Before the Authority handed down its decision, the representatives for the applicants lodged with the Authority a submission dated 19 December 2017, the decision records of the Refugee Review Tribunal relating to FT and FT’s brother (JKT), a statutory declaration sworn by the first applicant on 18 December 2017 and a statutory declaration of FT of the same date.
On 4 June 2018, the Authority affirmed the decision of the delegate not to grant the visas.
Grounds of Review
On 28 June 2018, the applicants filed an Originating Application for Review of the decision of the Authority. At the hearing before the Court, the applicants relied upon a Further Amended Application for Review filed on 6 April 2021, the grounds of which were as follows:
“1. The decision of the IAA was affected by jurisdictional error because the IAA misconstrued and/or misapplied s 473DD in considering its purported application to the new information provided by the applicants concerning:
(a) the visa status of the first applicant’s husband; and
(b) a press release published by ‘Human Rights for All’ dated 12 December 2017.
Particulars
1.1 The IAA considered the application of s 473DD to the provision of new information under two categories, namely:
1.1.1 new information provided with respect to the visa status of the first applicant’s husband, which consisted of statutory declarations from the first applicant and her husband, and positive decision records of the Refugee Review Tribunal in relation to the first applicant’s husband and his brother; and
1.1.2 new ‘country information’ consisting of a press release published by ‘Human Rights for All’ dated 12 December 2017 (“the Press Release”).
1.2 The IAA was required to assess the new information first against the criteria specified in s 473DD(b) and, if one or both of those criteria was met, then against the criterion specified in s 473DD(a). If either of the criteria specified in s 473DD(b)(i) or (ii) were met, that is a circumstance that the IAA was required to factor into its subsequent assessment of whether the new information met the criterion specified in s 473DD(a).
1.3 The IAA’s satisfaction of either or both of the limbs in subpara (b) is required to inform its satisfaction under subpara (a) that there are exceptional circumstances justifying consideration of the new information.
1.4 In considering the application of s 473DD to the new information provided with respect to the visa status of first applicant’s husband:
1.4.1 the IAA failed to make any finding with respect to whether s 473DD(b)(ii) was satisfied, and failed to then to consider its conclusion in that regard as a circumstance as a factor in the assessment of whether the criterion under s 473DD(a) was satisfied; and
1.4.2 further, the IAA proceeded on an incorrect understanding of the law, in that it understood that it could consider a “new claim” only there were exceptional circumstances “to justify considering the new claim made by the applicants that they will be imputed with an adverse political profile because of their association with FT”, and the IAA’s consideration of whether the new information should be considered was affected by its view that, because the claim was not raised earlier, the applicant should not be permitted to rely upon it.
1.5 In considering the application of s 473DD to the Press Release, the IAA failed to make a finding with respect to whether s 473DD(b)(i) was satisfied, and failed to then to consider its conclusion in that regard as a circumstance as a factor in the assessment of whether the criterion under s 473DD(a) was satisfied.
1.6 The IAA therefore failed to performed the procedural duty imposed on it by s 473DD.
2. The decision of the IAA was affected by jurisdictional error because its application of s 473DD in relation to the new information concerning the visa status of the first applicant’s husband was based upon findings and reasoning that were illogical or unreasonable, in that:
2.1 the relevant claim was that there was a real chance that a political opinion imputed to her husband FT would also to be imputed to the first applicant;
2.2 on a proper understanding of that claim, it was illogical or unreasonable for the IAA to find that the link between the RRTA decision (which had found that FT was at risk of persecution due to an imputed political opinion) and the applicants was “tenuous”;
2.3 the relevance of the RRTA decision to the claim did not depend at all on the applicants having been involved in any way in the fishing cooperative; and
2.4 the IAA’s reasoning proceeded from a finding that it had before it no information about FT’s current visa status, being a finding that was unreasonable, because the IAA did have before it information to the effect that FT was the holder of a temporary protection visa (a three year visa) granted in 2016 (and thus in force as at the date of the IAA’s decision).”
Consideration of Grounds of Review by Authority
At [3] of the reasons of the Authority, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (‘the Act’).
At [12] – [15] inclusive of its reasons, the Authority recorded the respective claims of the applicants as follows:
“[12] The first applicant’s claims can be summarised as follows:
· She was born in [town omitted] in the Eastern Province of Sri Lanka on [date of birth omitted].
· She moved to a refugee camp in Mullaitivu, in the Northern Province of Sri Lanka, with her family in 1984.
· In 1990 the Sri Lankan Army (SLA) came to the camp and took the males suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE) for interrogation. Her father was taken beaten and tortured. He had a heart attack on his way home and died.
· In 1990 she fled to a refugee camp in India with her family where she met and married her husband, FT, in 1993.
· From 1994 until 1998 they moved back to the refugee camp in Mullaitivu. They saw abductions, people’s bodies on the roadside, air raids and shelling.
· In 1996 she was sexually assaulted in Mullaitivu by the SLA. They had come to her house when they were searching for people suspected of LTTE involvement.
· In 1998 she miscarried as a result of the stress she was under during a shelling.
· Her uncle was taken for interrogation by the SLA and then went missing. She does not know if her father and uncle were involved with or supportive of the movement or if they were taken only on suspicion of LTTE involvement.
· In 1998 she went back to India to the refugee camp with FT and her two young sons. They were faced with many restrictions, including freedom of movement, and they were verbally abused. She had her third son in India.
· In 2012 FT left the home unannounced and called the family when he arrived in Australia.
· In April 2013 the applicants travelled by boat to Australia to join FT.
· The family were affected by the Department’s data breach in 2014 when it inadvertently published a file containing the personal details of asylum seekers in detention. They fear that the Sri Lankan authorities may have accessed this information and know that they sought asylum in Australia.
· She fears that if she returns to Sri Lanka, her children would be targeted by the authorities because of their western education and appearance.
· She fears that if she returns to Sri Lanka as a single Tamil woman she may be subject to sexual violence and will not be able to earn a living.
· She fears that as a Catholic she may be harmed in the practice of her religion by militant Buddhists who are part of the Sinhalese majority.
[13] The second applicant’s claims can be summarised as follows:
· He is the first applicant’s eldest son born on [date of birth omitted] in [town omitted]. He is single, lives at home and is wholly or substantially reliant on his parents for emotional and financial support. He is currently studying English at TAFE and receives Centrelink payments.
· His family had problems in Sri Lanka and that is why they moved to India as refugees. He was three years old when he left so does not remember much but they left because of the war and at the same time his father was taken and beaten, he might have been suspected of LTTE involvement by the Sri Lankan authorities.
· In India they lived in the refugee camp his whole life, up until the age of 18 years. He did not have freedom of movement and faced many restrictions. He could not continue his studies. He faced a lot of abuse from Q Branch Officers.
· He was affected by the February 2014 inadvertent publication by the Department of a file containing the personal details of asylum seekers in detention (the data breach).
· As he left Sri Lanka when he was small, he does not know the country. He fears that if he is forced to return to Sri Lanka he and his family may be beaten, tortured, or killed. He has heard that abductions and kidnappings are still taking place.
· He also fears returning as someone who went to Australia to seek asylum. He has heard that bad things are happening to people like him who return from overseas.
[14] The third applicant’s claims can be summarised as follows:
· He is the first applicant’s middle son born on [date of birth omitted] in [town omitted]. He is single, lives at home and is wholly or substantially reliant on his parents for emotional and financial support. He is currently studying Construction Engineering at TAFE and receives Centrelink payments.
· He fears that if he is forced to return to Sri Lanka he will be persecuted or suffer significant harm because of his ethnic background; his imputed political opinion; and his membership of particular a social group, that being Tamils who sought asylum in a western country.
· His father was a fisherman and he does not think he would have any other way of making a living if he returns to Sri Lanka. He has heard that there have been huge fights between Tamils and Sinhalese if the Tamils try and fish.
· He has heard that the SLA will force Tamils to join them in the army.
[15] The fourth applicant is the first applicant’s younger minor son born on [date of birth omitted] in [town omitted], India. He relies on his mother’s claims for protection.”
[names and personal identification information omitted]
At [31] – [32] of its reasons, the Authority duly recorded what constituted a person having status as a refugee under s. 5H(1) of the Act, and what constituted a well-founded fear of persecution under s. 5J of the Act.
As to Ground 1 of the Further Amended Application for Review, it was claimed on behalf of the applicants that the Authority had misconstrued and/or misapplied s. 473DD of the Act in relation to the new information provided by the applicants to the Authority relating to the visa status of FT, as well as in relation to a press release dated 12 December 2017 published by an organisation called “Human Rights For All”.
It was claimed that the Authority failed to assess what was submitted to be new information as against each of the criteria as set out in s. 473DD(b) of the Act. Section 473DD relevantly provided as follows:
“473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.”
It was also claimed that the Authority had proceeded on an erroneous understanding of the law, namely that a new claim could only be considered if there were exceptional circumstances justifying its consideration, on the basis that the applicants would be imputed as having adverse political profiles because of their association with FT. Further, it was claimed that the Authority was in error in not considering the new information because it had found that because the claim had not been raised earlier, the applicants should not be permitted to rely upon it. It was further claimed in relation to the press release that the Authority had failed to make any finding as to whether s. 473DD(b)(i) of the Act had been satisfied in its assessment as to whether the criterion under s. 473DD(a) had been satisfied. It was submitted that the Authority had failed to perform its statutory task.
At [23] of its reasons, the Authority accepted that the first applicant had been sexually assaulted by government soldiers, but that the circumstances of such assault was suggestive of it being an opportunistic attack rather than a targeted attack against her as an LTTE suspect.
At [24] – [27] inclusive of its reasons, the Authority considered the first applicant’s claims that she would be discriminated against because of her Tamil ethnicity, but found that neither the first applicant, her husband, nor members of her family were of any particular profile to be of any particular interest to the LTTE. It was noted that the applicants had left Sri Lanka permanently during the civil war in 1998. It was found that the applicant and her family could not be imputed as having been involved with the LTTE merely because they were Tamils.
In AUS17 v Minister for Immigration (2020) 94 ALJR 1007 at [6] – [12] inclusive, Kiefel CJ, Gageler, Keane and Gordon JJ said as follows:
“[6] Though expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD necessarily operates against the background of s 473DB also to empower the Authority to consider new information if the criteria it specifies are met. For that binary outcome of the application of s 473DD to be workable, 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.
[7] The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of "exceptional circumstances" justifying its consideration of that new information.
[8] New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of "credible personal information", that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.
[9] Section 473DD(b)(ii) was inserted during the parliamentary process which resulted in the enactment of Pt 7AA for the express purpose of expanding the circumstances in which new information obtained from a referred applicant might be considered by the Authority beyond those which would have prevailed had s 473DD(a) been left to operate only in combination with s 473DD(b)(i). Section 473DD(b)(ii) to that extent modifies the policy manifest in s 5AAA, s 473DB and s 473DD(b)(i) of casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application. Section 473DD(b)(ii) allows for a very limited second opportunity to provide evidence that might previously have been provided.
[10] Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).
[11] Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.
[12] The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a).”
[footnotes omitted]
On the question as to whether exceptional circumstances for consideration of the new information existed or not, it has been held that the Authority is entitled to have regard to whether the information is credible or not. In AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [16], it was said per McKerracher, Murphy and Davies JJ as follows:
“[16] Contrary to the appellant’s submission, the Authority did not conclude that the s 473DD(a) requirement was not met solely upon an evaluation as to whether the new information was information that could have been provided to the Minister’s delegate. Although the Authority did not make any finding in express terms in respect of the s 473DD(b)(ii) requirement, the primary judge was correct to hold that the Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible.”
Further, on the question of how the Authority might fulfil its statutory role in a s. 473DD context, the decision of the High Court in AUS17 was recently considered by Markovic J in APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 where, at [79], it was said as follows:
“[79] As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exists for the purposes of s 473DD(a).”
As to the Authority’s consideration of the “new information” relating to FT, at [14] of the applicants’ submissions filed on 6 April 2021, there was a concession that the Authority’s assessment/consideration of s. 473DD(b) had been limited to s. 473DD(b)(i).
As to the Authority’s consideration of s. 473DD(b)(ii), it was submitted on behalf of the first respondent that the Authority had relevantly considered that sub-section because, at [6] – [10] of its reasons, it had specifically referred to the RRT decisions relating to each of FT and JKT, and further, that the Authority had found that such decisions did not assist the Authority because they did not give any contemporary context to the circumstances of either FT or JKT.
The reasons of the Authority for not considering the information were as follows:
“[6] Two decisions of the RRTA regarding FT and JK have been provided to the IAA in support of the applicants’ new claim that they will be imputed with an anti-government political profile due to their association with FT and JK. The decisions were made in 2012 and 2013, a considerable length of time before the applicants’ SHEV application, and I do not accept that they could not have been provided to the delegate at the primary stage. Further, they RRTA decisions do not provide any current information about JK and FT’s circumstances or visa status. The RRTA decisions have been provided solely in support of the new claim which is set out in the first applicant’s Statutory Declaration which I have assessed below. I consider that the applicants would have been aware of this information earlier but did not use it in support of their application due to the passage of time; the fact that the decisions provide no information about JK and FT’s current circumstances; and the remoteness of the connection of the applicants’ circumstances to those of JK, on whom, FT’s visa decision relied.
[7] The Statutory Declaration of the first applicant is dated 18 December 2017. She claims she and her children were until recently unaware of the nature and extent of JK’s involvement with the fishing co-operative and by association FT’s involvement and fear of the CID. The first applicant makes the new claim that she fears that, if she and her children are forced to return to Sri Lanka, they will be imputed with an anti-government political profile due to their association with FT and JK. She seeks a hearing to provide further information to the IAA. As noted above, the RRTA decisions have been available since 2013. I consider that the first and third applicants had some knowledge of FT’s problems as a fisherman in Sri Lanka. In the SHEV interview the first applicant stated that suspicion of LTTE involvement is high among fishermen. The police will not allow ‘sea people’ to live there because they are Tamil and Christian. In the SHEV interview the third applicant also mentioned his father’s difficulties as a fisherman noting that fishing work is now taken by Sinhalese people. He goes on to state that the Sinhalese will use any misunderstanding to kill us all. I do not find it credible that the applicants were not aware of the existence or content of the RRTA decisions before the delegate’s decision.
[8] FT has submitted in his Statutory Declaration, dated 18 December 2017, that he did not disclose information about his brother JK’s or his visa decision to the first applicant and his children because he did not believe that informing them would achieve anything other than contribute to their already real and significant fear of the prospect of being forced to return to Sri Lanka. As noted, I do not find it credible that, in the context of their visa application, the applicants did not seek information from FT at any point in the primary stage about why he was offered protection. I consider that the first applicant could and would have made enquiries of her husband as to why he was granted protection and then sought documentation in support of that information and presented it at the primary stage of her application. I do not believe FT’s claim that he did not disclose this information to the first applicant at the primary stage.
[9] I am not satisfied that there are exceptional circumstances to justify considering the new claim made by the applicants that they will be imputed with an adverse political profile because of their association with FT and I am also not satisfied that there are exceptional circumstances to justify considering the new information that has been provided in support of the claim including the content of the RRTA decisions relating to JK and FT, the first applicant’s Statutory Declaration and FT’s Statutory Declaration. In considering whether exceptional circumstances exist, I consider that the first applicant was aware that her husband had been granted a protection visa and that she would have been aware of the reasons why. She had legal representation throughout the application process, even though she changed representation after the delegate’s decision was made, and she was not prevented from accessing the material in the RRTA decisions earlier. The applicants were asked by the delegate a number of times during the SHEV interview to make their claims in full and they did not include this claim. Their solicitor made a submission after the SHEV interview and did not make this claim. Further, the information in the RRTA decisions dates from 2012 and 2013 and does not provide any information about FT’s current visa status; and the decision is only tenuously linked to the applicants by virtue of the fact that FT is married to the first applicant. The applicants have not claimed to have been linked in any way to the fishing cooperative that JK was involved with apart from being relatives of JK by marriage. Given all these factors I am not satisfied that there are exceptional circumstances to justify considering the new information about FT and JK and the resulting new claim, including the content of the two RRTA decisions and the two Statutory Declarations.
[10] I have considered the applicants’ request for a hearing or interview to discuss this new claim and related information but I decline to do so as I am satisfied that the applicants had ample opportunity to put this information to the Department in their arrival interviews, SHEV application and SHEV interviews and in their post interview submission but did not do so.”
The above findings of the Authority immediately followed the recording by the Authority, in its reasons, that it had received the submission dated 19 December 2017 sent to it by the applicants’ migration lawyers. [1] The Authority recorded that it had had regard to the arguments contained in the submission. At [5] of its reasons, the Authority noted that the submission had two statutory declarations attached to it. [2] Both such declarations were to the effect that FT had not disclosed the involvement of JKT in a fishing cooperative in circumstances where such involvement was imputed as involving FT in anti-government activity by reason of his association with JKT.
[1] Court Book (CB) p. 344 – 386 inclusive.
[2] CB p. 349 – 350.
The Authority clearly did not accept that the applicants were not aware of the existence or the content of the RRT decisions involving FT and JKT. It was open for the Authority to so find, bearing in mind the closeness of the relationship between FT and the first applicant. To the extent that it did not accept that it was credible that the applicants did not know about the bases upon which protection visas had been granted to FT and JKT, the Authority was implicitly finding that the criteria in s. 473DD(b)(i) had not been met. In so finding, the Authority was, to that extent, carrying out its statutory task.
The Authority was required, however, to also assess the information against the criteria specified in s. 473DD(b)(ii). For it to do so, the Authority had to intellectually engage upon a consideration of the elements of s. 473DD(b)(ii). As was said in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at [33] – [34] per Gageler , Keane and Nettle JJ:
“[33] The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. In that provision, the term "personal information" takes its defined meaning within the Act of "information or an opinion about an identified individual, or an individual who is reasonably identifiable". Unaided by considerations of legislative history, the reference in s 473DD(b)(ii) to personal information which was not previously "known" might have been read as confined to personal information not previously known to the referred applicant. Legislative history, however, is against that reading. The provision is the result of an amendment to the Bill for the 2014 Amendment Act made in the Senate. The purpose of the amendment was explained at the time as being to "extend the types of 'new information' that a referred applicant may present to [the Authority] to include, for example, evidence of significant torture and trauma which, if it had been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant's asylum claims by the Minister ". The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.
[34] Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant's claims.”
(footnotes omitted)
Nowhere in the reasons of the Authority is it evident that the Authority has considered the elements of s. 473DD(b)(ii) as set out in Plaintiff M174/2016. The analysis of the Authority at [6] – [10] of its reasons relating to the alleged lack of knowledge on the part of the applicants was but one piece of the puzzle, and was applicable to a consideration as to whether s. 473DD(b)(i) applied or not. Such analysis, without more, did not address all relevant s. 473DD(b)(ii) issues, and constituted a failure to take account of a mandatory relevant consideration for the purposes of the application of the criterion in s. 473DD(a).
To the extent that the Authority failed to address the s. 473DD(b)(ii) criteria, the Court finds that the Authority failed to perform its statutory task, and was in error. Such error was jurisdictional in nature.
In the light of the Court’s findings, it is unnecessary to address the claims as set out in Ground 2 of the Further Amended Application for Review.
The Court orders that the decision of the Authority be quashed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 7 May 2021
SCHEDULE OF PARTIES
ADG 260 of 2018 Applicants
Fourth Applicant:
DFS18
0
4
0