DGF17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 931
Federal Circuit and Family Court of Australia
(DIVISION 2)
DGF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 931
File number: MLG 1549 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 11 November 2022 Catchwords: MIGRATION – application for judicial review of decision of Immigration Assessment Authority – where Authority misconstrued and misapplied s 473DC of the Migration Act 1958 (Cth) – whether misconstruction was material – jurisdictional error established – writs issued Legislation: Migration Act 1958 (Cth), ss 5J, 65, 473CA, 473CB, 473DC, 473DD, 476, 477 Cases cited: EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26
Division: Division 2 General Federal Law Number of paragraphs: 40 Date of last submission/s: 15 September 2022 Date of hearing: 19 July 2022 Place: Perth Counsel for the Applicant: Mr M Nguyen Solicitor for the Applicant: Victoria Legal Aid Counsel for the First Respondent: Mr T Reilly Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1549 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGF17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE LADHAMS
DATE OF ORDER:
11 November 2022
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 27 June 2017.
2.A writ of mandamus issue directed to the second respondent requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LADHAMS:
Introduction
Before the Court is an application filed under s 476 of the Migration Act 1958 (Cth) (Migration Act) by which the applicant seeks judicial review of a decision made by the Immigration Assessment Authority (Authority). On 27 June 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
The applicant relies on an amended application filed on 25 January 2022 which contains one ground. By that ground, the applicant alleges that the Authority erred in its construction of s 473DC of the Migration Act by finding that there needed to be ‘exceptional circumstances’ before it could obtain new information under that section. The Minister concedes that the Authority erred in this manner, but submits that the error was not material. The determinative issue in this judicial review application is whether the Authority’s error was material.
I have found that the error made by the Authority was material and I therefore issue writs of certiorari and mandamus to quash the decision of the Authority and remit the matter to the Authority for reconsideration according to law.
Relevant Background
The applicant is a citizen of Sri Lanka. On 5 May 2016 he made a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. The applicant claimed that he would face harm from the Sri Lankan authorities and army in relation to a dispute over a parcel that he was instructed to deliver by the Sri Lankan army and as a result of a complaint over a land dispute. He also claimed that he would face harm on the basis of his Tamil ethnicity and imputed support of the Liberation Tigers of Tamil Eelam (LTTE).
On 17 November 2016 a delegate of the Minister made a decision not to grant the applicant a protection visa. The matter was then referred to the Authority pursuant to s 473CA of the Migration Act.
On 11 December 2016 the applicant’s representative provided to the Authority a statement made by the applicant and two media articles. In the statement the applicant said, amongst other things:
Currently, I am having anxiety issues due to the stress I have gone through in Sri Lanka. The trauma has been affecting my mind and affecting my day to day life. After I received the outcome from the Department, I have been feeling really low and insecure. I am suffering from anxiety. Recently, I have consulted my problems with a doctor and the doctor has recommended me for counselling. I am waiting for my first appointment with the counsellor. You can contact my doctor to discuss about my mental issues.
[Applicant’s doctor’s contact details]
If I am forced to return to Sri Lanka, I will not be able to take it mentally. I fear I will break down mentally. I humbly request you to consider the information I have provided and my current mental condition.
The Authority affirmed the delegate’s decision on 27 June 2017.
In relation to the applicant’s submission regarding his mental health issues, the Authority:
(a)characterised the applicant’s invitation to the Authority to contact his doctor as a request to get new information; and
(b)identified as new information the applicant’s submission that if he is forced to return to Sri Lanka he will not be able to take it mentally and fears that he will break down mentally, and found that the requirements of s 473DD of the Migration Act were met in relation to this new information.
It is the manner in which the Authority addressed the applicant’s invitation to contact his doctor that is the subject of the ground of review advanced by the applicant. In this regard, the Authority said at [9]:
The applicant also advised that he is experiencing stress due to his experiences in Sri Lanka and that since receiving notification of the department’s decision he has been “really low and insecure” and is suffering from anxiety and his doctor has recommended him for counselling. The applicant invited the IAA to contact his doctor to discuss his mental health however the IAA is a limited form of review and can only obtain or consider new information in exceptional circumstances. The statement has not advanced any exceptional circumstances that warrant the IAA getting new information, nor am I satisfied that any exceptional circumstances exist that warrant the IAA getting new information in regard to this matter.
The Authority considered the applicant’s claims for protection and found that the applicant did not meet the criteria for a protection visa in ss 36(2)(a) or 36(2)(aa) of the Migration Act.
Due to the limited nature of the issue before the Court, it is unnecessary to summarise in detail the Authority’s findings of fact about the applicant’s claims. For present purposes, it is sufficient to note the following findings of the Authority in relation to the applicant’s mental health:
(a)The Authority accepted that the applicant had been experiencing stress and anxiety and had consulted his doctor who recommended that he receive counselling. The Authority also accepted that the applicant’s anxiety caused him to be concerned about his ability to cope if returned to Sri Lanka.
(b)The Authority accepted that the applicant departed Sri Lanka illegally and, upon his return, may be questioned at the airport and charged under the Immigrants and Emigrants Act 1949 (Sri Lanka). Based on country information, the Authority found that the applicant may be questioned and detained at the airport for up to 24 hours, and that he may be fined for breaching the Immigrants and Emigrants Act and may be held in prison for a short period of time. Despite the applicant’s anxiety, the Authority did not consider that any likely questioning of him by the authorities at the airport on arrival, any surety imposed, or the imposition of a fine would constitute serious harm under s 5J(5) of the Migration Act.
(c)In considering the complementary protection criteria, the Authority again accepted that there was a real risk the applicant would be investigated and detained for several hours at the airport, possibly detained on remand for some days pending bail, and then fined. The Authority was not satisfied that this treatment, either during the investigation process or while being held at the airport would amount to significant harm, despite the applicant’s anxiety, or that the applicant would be exposed to significant harm during this process.
Proceedings Before This Court
The application for judicial review was filed within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
By amended application filed on 25 January 2022, the applicant advances a single ground of application:
The Immigration Assessment Authority erred by construing s 473DC of the Migration Act 1958 (Cth) as being confined by a requirement that the Authority be satisfied that there are “exceptional circumstances” that warrant getting new information.
Particulars
(a)The applicant stated to the Authority that he was suffering from anxiety, had consulted a doctor, and feared breaking down if returned to Sri Lanka. The applicant invited the Authority to contact the doctor to “discuss about my mental issues” [CB 156 [8]].
(b)The invitation to contact the doctor constituted a request that the Authority get new information within the meaning of s 473DC.
(c)The Authority dealt with the request by stating that it “can only obtain or consider new information in exceptional circumstances” and it was not “satisfied that any exceptional circumstances exist that warrant the [Authority] getting new information in regard to this matter” [CB 166 [9]].
(d)In accordance with the decision of the Federal Court in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [60]-[63], the power in s 473DC is not confined by a requirement that the Authority be satisfied of the existence of “exceptional circumstances” as in s 473DD.
(e)The reasoning referred to in paragraph (c) above was erroneous, in that the Authority:
(i)incorrectly construed s 473DC as being confined by a requirement that the Authority be satisfied of the existence of “exceptional circumstances”; and
(ii)further or alternatively, conflated the requirements of ss 473DC and 473DD.
(f)There is a realistic possibility that the Authority could have made a different decision on its review if the Authority had not made the error referred to in paragraph (e) above.
Both parties filed submissions ahead of the hearing in accordance with orders made by the Court. The matter came before the Court for hearing on 19 July 2022 and at the conclusion of that hearing I reserved my judgment. After the High Court delivered its judgment in Nathanson v Minister for Home Affairs (2022) 403 ALR 398; [2022] HCA 26 (Nathanson), I made orders by consent to give the parties an opportunity to file supplementary submissions addressing the potential impact of Nathanson on this application. Both parties have filed supplementary submissions in accordance with the orders made, and I have taken those submissions into account.
Consideration
The Authority’s error in its construction and application of s 473DC of the Migration Act
Although reviews by the Authority are to be conducted, subject to the provisions in Part 7AA of the Migration Act, by considering the review material provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant, the Authority does have a discretion conferred by s 473DC to obtain new information that was not before the Minister and which the Authority considers may be relevant.
Section 473DC of the Migration Act provides:
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
If new information is obtained by or provided to the Authority, the Authority may only consider that information if it is satisfied that the requirements of s 473DD are met. This section requires that exceptional circumstances exist to justify considering the new information (s 473DD(a)) and, in relation to new information provided by a referred applicant, either:
(a)the new information was not, and could not have been, provided to the Minister prior to the decision made under s 65 (s 473DD(b)(i)); or
(b)the new information 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 (s 473DD(b)(ii)).
The error made by the Authority in the present matter was to conflate the issues raised by ss 473DC and 473DD of the Migration Act, by approaching its consideration of whether it should obtain new information on the understanding that there was a requirement that it needed to be satisfied that there were exceptional circumstances before it could get new information.
In establishing this error, the applicant relies on the judgment of Thawley J in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17). His Honour’s comments at [60] and [63] are apposite to the present matter:
60.The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) “new information” can, for present purposes, be summarised as follows:
(1)Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.
(2)In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.
(3)Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.
(4)The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.
(5)The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].
(6)The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).
(7)The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.
…
63.If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous (it is strictly unnecessary to decide that question) – the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), “exceptional circumstances” within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the “new information”. The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed “exceptional circumstances” within the meaning of s 473DD(a).
In the present matter, the Authority’s comments that it could only ‘obtain or consider new information in exceptional circumstances’ show that the Authority misunderstood the requirements of s 473DC in the same way that the Authority in EMJ17 misunderstood the requirements of s 473DC. There is no requirement that there be ‘exceptional circumstances’ to get new information under s 473DC of the Migration Act. As mentioned above, this error was conceded by the Minister.
Materiality
An error by the Authority will only amount to jurisdictional error if that error could realistically have deprived the applicant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [3], [45]; MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 (MZAPC) at [2], [39]; Nathanson at [1].
The dispute between the parties in this matter relates to whether the Authority’s error in its interpretation and application of s 473DC of the Migration Act was material. In resolving this dispute, I am mindful that the role of the Court is not to determine what the Authority would have decided had it not misconstrued s 473DC, but rather to determine whether the Authority’s error could realistically have deprived the applicant of the possibility of a successful outcome: Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [33].
The onus is on the applicant to establish that the Authority’s error is material: SZMTA at [46]; MZAPC at [39]; Nathanson at [1]. The onus on the applicant was explained by the majority of the High Court (Kiefel CJ, Gageler, Keane and Gleeson JJ) in MZAPC at [38]-[39] (footnotes omitted):
38.The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred – as distinct from what would have occurred – had there been compliance with the legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.
39.Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
In Nathanson, the High Court confirmed that the realistic possibility of a different outcome can be demonstrable from the record of the decision, and the appellant in that case was not required to articulate a specific course of action which could realistically have changed the result: Nathanson at [2]. Kiefel CJ, Keane and Gleeson JJ also referred to the Court’s earlier decision in MZAPC and explained at [32]-[33] (footnotes omitted):
32.As explained in MZAPC, the materiality of a breach requires consideration of “the basal factual question of how the decision that was in fact made was in fact made”. This question is determined by proof of historical facts on the balance of probabilities. Then, it is necessary to consider whether the decision that was in fact made could have been different had the relevant condition been complied with “as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined”. The burden falls on the plaintiff to prove “on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition”.
33.There will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration. The standard of “reasonable conjecture” is undemanding. It recognises that a fundamental purpose of affording procedural fairness is to afford an opportunity to raise relevant matters which are not already obvious, or not liable to be advanced by the apparently persuasive “story” of the opposing party. Where a Tribunal errs by denying a party a reasonable opportunity to present their case, “reasonable conjecture” does not require demonstration of how that party might have taken advantage of that lost opportunity. Nothing said in MZAPC denies this. To the contrary, the standard of “reasonable conjecture”, correctly applied, proceeds on assumptions that are derived from the rationale for procedural fairness, namely that, if given a fair opportunity to present their case, a party will take advantage of that opportunity and that, by doing so, the party could achieve a favourable outcome.
With these principles in mind, I now turn to whether the Authority’s error in the present case was material.
In the course of the submissions on materiality, a dispute arose between the parties as to how to properly characterise the applicant’s submission to the Authority, as extracted at [6] above. The Minister submitted that the words ‘[y]ou can contact my doctor to discuss about my mental issues’ when read fairly amount to an invitation to the Authority to contact the applicant’s doctor if it does not accept or is unsure about what the applicant has stated about his mental health. The applicant submitted that it was a direct invitation to contact the applicant’s doctor. Ultimately, and as the Minister accepted, nothing turns on this characterisation, because the Authority treated the comment as an invitation to contact his doctor to discuss his mental health.
The applicant submitted that he has discharged his onus to establish the relevant historical facts. The applicant submitted that he had established that he had consulted with his doctor, with the Authority accepting this at [22] of its reasons. The applicant further submitted that he had established that information about his mental health was relevant to the Authority’s decision, because the Authority’s conclusion that the treatment that the applicant would face after his arrival in Sri Lanka did not meet the threshold of significant harm was reached ‘despite his anxiety’. I accept, based on the Authority’s reasons, that the Authority accepted that:
(a)the applicant had consulted a doctor in relation to stress and anxiety; and
(b)the applicant’s anxiety was relevant to the Authority’s consideration as to whether the treatment the applicant would face for breaching the Immigrants and Emigrants Act would reach the threshold of ‘serious harm’ or ‘significant harm’.
The only reason advanced by the Authority for declining to obtain information from the applicant’s doctor was the absence of exceptional circumstances. As discussed above, it was unnecessary for the Authority to be satisfied that exceptional circumstances existed in order for it to exercise the discretion in s 473DC of the Migration Act to obtain new information. I accept the applicant’s submission that it cannot be inferred that the Authority would have refused, or have been obliged to refuse, to exercise the discretion in s 473DC on some independent basis. Put simply, the Authority might, or might not, have opted to contact the applicant’s doctor, but there is no way for the Court to know what course the Authority would have taken, had it properly understood the requirements of s 473DC. In circumstances where the Authority gave no indication of its thought processes other than its erroneous view that there needed to be exceptional circumstances, there is a realistic possibility that the Authority could have exercised its discretion to get new information from the applicant’s doctor had it properly understood that the exercise of its discretion in s 473DC was not conditional on the existence of exceptional circumstances.
The applicant submitted that the realistic possibility of the Authority getting new information inevitably gives rise to the realistic possibility that the Authority could have decided to consider any new information consistently with s 473DD. The Minister noted in his submissions that any information obtained from the doctor would need to satisfy s 473DD before it could be considered by the Authority, but did not submit that that was not a realistic possibility. I accept that if the Authority opted to obtain new information from the applicant’s doctor, there is a realistic possibility that the Authority could have been satisfied that the requirements of s 473DD were met.
Much of the focus of the parties’ submissions on materiality addressed whether the possible content of any information that the Authority might have obtained from the applicant’s doctor could realistically have led to the possibility of a different conclusion in relation to the applicant’s protection claims. There is necessarily an element of speculation in any such assessment as the Court cannot know what information the applicant’s doctor would have provided to the Authority if asked. These matters need to be determined on the basis of ‘reasonable conjecture’, which the High Court in Nathanson confirmed was an ‘undemanding’ standard: Nathanson at [33].
The applicant submitted that the Authority’s reasoning shows that the applicant’s mental health was directly relevant to whether the treatment to which he could be subjected upon arrival in Sri Lanka would amount to serious harm or significant harm. The applicant submitted that medical opinions about his mental health were capable of affecting the outcome of that evaluation, and that the words used in his submission to the Authority amounted to his own brief but meaningful lay-person description of his mental health issues, and were not the relaying of a doctor’s opinion. It can reasonably be assumed that the doctor could have provided more meaningful information to the Authority, for example, information about the severity of the applicant’s anxiety, observations about the applicant’s demeanour, and about the stressors of his anxiety.
The Minister noted that the Authority accepted that the applicant suffered from stress and anxiety and that his doctor recommended him for counselling. The Minister then submitted at [27] of his written submissions:
It cannot be realistically assumed that the doctor if consulted by the Authority would have said anything significantly different to what the Authority has already accepted about the applicant’s mental health (leaving aside that if he did it would have to satisfy s 473DD to be considered by the Authority). The applicant’s submissions appear to proceed on the basis that it could be assumed that the doctor if consulted would add something additional to what was accepted by the Authority, but such an assumption is not realistic in the circumstances of this case. The applicant can be taken to know what his doctor had diagnosed, and communicated this to the Authority. There is nothing to indicate that the doctor had anything significant to add to what the applicant had already communicated about his mental health to the Authority. In those circumstances, the suggestion that the doctor would add something that realistically could have led to a different outcome by the Authority is no more than speculation without a factual basis. Accordingly the applicant has not discharged his onus (MZAPC at [39]) of showing the suggested error by the Authority was material.
The applicant at [11] of his post-hearing submissions following the High Court’s delivery of Nathanson addressed the Minister’s submissions at [27] (extracted above) and said (footnotes omitted):
… Nathanson confirms that the question is not whether the applicant had established that the doctor “had” anything significant to add or that it could be “assumed” that the doctor “would” add something additional to the applicant’s statement. Adapting what was said in the joint reasons, the question is whether it was a reasonable conjecture that the doctor “may have been able to” provide the Authority with information that “may have provided more detail”, being information that “could have” affected the outcome of the review, without any need to establish the nature of that information or detail. Or, adapting what was said by Edelman J, it is sufficient that there “might” have been things the doctor “might” have been able to tell the Authority which “might” have assisted the applicant in a manner that “might” have led to a different result. Further, adapting what was said by Gordon J, there is no need for the applicant to show or for the Court to make findings about just what information “would or could have [been] given” by the doctor and whether this could have persuaded the Authority.
In response, the Minister reiterated his earlier submissions that it is ‘speculation’ and not ‘reasonable conjecture’ that, if contacted by the Authority, the applicant’s doctor may have provided more detail that could have affected the outcome of the review.
I accept the applicant’s submissions in relation to whether the content of any information provided by the applicant’s doctor, if asked, could realistically have led to the possibility of a different outcome.
In my view, there is a realistic possibility that if the Authority had exercised its discretion in s 473DC to obtain new information from the applicant’s doctor, that information could have affected the Authority’s considerations of the applicant’s claims. It is reasonable to infer that the applicant’s doctor would have been capable of providing information about the applicant’s clinical diagnosis, prognosis, the severity of his symptoms and possible triggers. I cannot exclude the realistic possibility that the applicant’s doctor might have provided information that might have led to a different outcome on the review, particularly in circumstances where the Authority considered the applicant’s mental health to be relevant to its assessment of the risk of harm he may face during any period of brief detention and interrogation upon his return to Sri Lanka.
The Authority’s misconstruction of s 473DC of the Migration Act is therefore material.
Conclusion
I have found that the error made by the Authority in its construction of s 473DC of the Migration Act was material because:
(a)if the Authority had properly understood that there is no requirement that there be ‘exceptional circumstances’ to get new information under s 473DC of the Migration Act, there is a realistic possibility that the Authority could have decided to contact the applicant’s doctor to obtain new information;
(b)if the Authority had obtained new information from the applicant’s doctor, there is a realistic possibility that the Authority might have found that the requirements of s 473DD were met in relation to that new information; and
(c)there is a realistic possibility that the applicant’s doctor might have provided information about the applicant’s mental health that could have led to a different outcome on the review.
It follows that the applicant has established that the Authority decision is affected by jurisdictional error and the judicial review application must be allowed. Writs of certiorari and mandamus will issue.
For the avoidance of any doubt, nothing in these reasons should be read requiring the Authority to get new information from the applicant’s doctor upon remittal. Whether or not the Authority exercises its discretion in s 473DC of the Migration Act to get new information is entirely a matter for the Authority. Any decision as to whether or not to exercise that discretion must, however, be based on a proper interpretation and understanding of the law.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 11 November 2022
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