DTC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 653
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
DTC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 653
File number: MLG 1815 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 16 August 2022 Catchwords: MIGRATION – Judicial review of decision of Immigration Assessment Authority – whether the Authority denied the applicant procedural fairness by failing to raise critical matters or invite him to an interview – whether the Authority misapplied s 473DD of the Migration Act 1958 (Cth) – Authority decision affected by jurisdictional error – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AA, 5H, 36, 65, 473CA, 473CB, 473DA, 473DC, 473DD, 473DE, 476, 477 Cases cited: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34
AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37
Bala v Minister for Immigration and Border Protection [2019] FCA 600
BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 179; [2020] FCAFC 24
BOS17 v Minister for Immigration and Border Protection (2020) 170 ALD 1; [2020] FCA 75
BVD17v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58
CYE17 v Minister for Immigration and Border Protection [2019] FCCA 102
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3
DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389; [2021] HCA 12
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210
Minister for Immigration and Border Protection v CYE17 [2020] FCA 1594
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA)
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16
Division: Division 2 General Federal Law Number of paragraphs: 85 Date of hearing: 10 May 2022 Date of last submission: 23 June 2022 Place: Perth Applicant: The applicant appeared in person Counsel for the First Respondent: Mr J Barrington Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Mills Oakley Lawyers ORDERS
MLG 1815 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DTC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
16 AUGUST 2022
THE COURT ORDERS THAT:
1.The name of the first respondent is changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.A writ of certiorari issue quashing the decision made by the second respondent on 2 August 2017.
3.A writ of mandamus issue requiring the second respondent to reconsider according to law the review 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 2 August 2017 the Authority affirmed an earlier decision made by a delegate of the Minister not to grant the applicant a protection visa.
For the reasons explained below, I have found that there is jurisdictional error in the Authority decision in relation to the Authority’s treatment of some of the information provided to it by the applicant. In particular, the Authority:
(a)failed to consider whether new information meets the criteria in both s 473DD(b)(i) and (ii) of the Migration Act and take those findings into account in determining whether there exist exceptional circumstances to justify considering new information for the purposes of s 473DD(a); and
(b)incorrectly identified one claim as new information when it was in fact before the delegate.
I issue writs to set aside the Authority decision and remit the matter to the Authority for reconsideration according to law.
BACKGROUND
The applicant is a citizen of Sri Lanka who entered Australia at Christmas Island in November 2012. He is an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act.
On 23 December 2015 the Minister’s Department invited the applicant to apply for a protection visa and on 12 April 2016 the applicant lodged a valid application for a Safe Haven Enterprise visa, which is a type of protection visa. The applicant’s claims for protection were set out in a statement that accompanied his protection visa application. The applicant claimed to fear harm from the Sri Lanka Army (SLA) and the Criminal Investigation Department (CID) if he returned to Sri Lanka because of his real or imputed links to the Liberation Tigers of Tamil Eelam (LTTE).
On 7 November 2016 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection.
On 30 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 21 December 2016 the applicant provided to the Authority a statement made by him on 19 December 2016, a photograph and two newspaper articles.
On 2 August 2017 the Authority affirmed the delegate’s decision.
AUTHORITY DECISION
Information before the Authority
The Authority had regard to:
(a)the material referred by the Secretary under s 473CB of the Migration Act;
(b)the applicant’s statement provided to the Authority on 21 December 2016 to the extent that it did not comprise new information; and
(c)an updated country information report on Sri Lanka published by the Department of Foreign Affairs and Trade (DFAT), in relation to which the Authority was satisfied that the requirements of s 473DD of the Migration Act were met.
The Authority identified that the applicant’s statement contained new information:
(a)about the applicant’s cousin and the reason he was believed to be associated with the LTTE;
(b)that the applicant would not be able to live in Sri Lanka without a National Identity Card (NIC), and he would come to the adverse attention of the authorities if he tries to obtain one; and
(c)that the Sri Lankan authorities continue to harass his family in Sri Lanka.
The Authority was not satisfied that the requirements of s 473DD were met in relation to the new information in the applicant’s statement, or in relation to the supporting photograph and newspaper articles. This aspect of the Authority’s decision is addressed in greater detail below.
Authority’s consideration of protection claims
The Authority accepted that the applicant is a national of Sri Lanka of Tamil ethnicity. The Authority accepted that the applicant and his family were displaced from their hometown when the SLA captured Jaffna and that they moved elsewhere before returning in 1999.
The Authority accepted that the applicant’s cousin S was shot and killed in 2007 and was prepared to accept it was possible that S was killed by the authorities because of suspected involvement with the LTTE. The Authority accepted that the applicant’s brother M worked with S in his shop, and following the death of S, M was sent by his father to live in India in 2008. The Authority also accepted that the applicant’s cousins had left Sri Lanka but was not convinced that their departure had anything to do with the applicant, M or any other member of the applicant’s immediate family.
The Authority did not accept that masked men started visiting the applicant’s family home and interrogating his family members after M departed Sri Lanka. The Authority found that the applicant’s evidence in relation to this claim had changed in a number of respects from his written statement and his protection visa interview. The Authority noted that when the applicant was questioned about why the men visited his family home, he said the reason for them visiting was because they knew his family had LTTE weapons or documents that they were hiding. The Authority noted the difference in reasoning in the applicant’s written statement where he claimed that the men visited the family home to ask questions about M and whether the applicant himself had any involvement with the LTTE. Further, the Authority noted that the applicant at the protection visa interview said the men started to visit the family home in 2007 which was before M departed to India.
The Authority was willing to accept that after the authorities found arms belonging to the LTTE behind S’s shop in 2010, the applicant and his father were interrogated over the weapons, beaten and questioned about M who worked with S at the shop. The Authority also accepted that afterwards the authorities continued to visit the family home once a month, but did not accept that the applicant was taken to the SLA camp as claimed. The Authority did not accept that in 2011 the CID threatened the applicant’s father that the applicant would be killed if he did not provide information about the LTTE’s weapons storage, noting that had the authorities genuinely held any outstanding concerns that the applicant’s father had knowledge of the LTTE weapons cache, they would have sought to detain the applicant’s father under the Prevention of Terrorism Act (Sri Lanka). The Authority accepted that the applicant’s father was stabbed but was not satisfied this attack was in connection with the applicant.
The Authority was not satisfied that the applicant was a person of interest to the authorities because of real or suspected links to the LTTE at the time of his departure from Sri Lanka in 2011. The Authority accepted that the applicant’s family was visited by the CID after he left Sri Lanka but considered this to be an incident of routine monitoring to which many Tamils were subject. Given that the applicant denied at the protection visa interview that there had been any further visits to his home, the Authority did not accept the applicant’s claim in his written statement that the CID still visit his family home.
Taking into consideration its findings of fact and the country information that was before it, the Authority was not satisfied that the applicant would face a real chance of serious harm on return to Sri Lanka because of his youth, ethnicity, gender, suspected family connections to the LTTE or origins in the north of Sri Lanka. The Authority found that the applicant did not depart Sri Lanka illegally and was not at risk of prosecution as a result of breaching the Immigrants and Emigrants Act (Sri Lanka). The Authority accepted that the applicant may be identified as a failed asylum seeker upon his return to Sri Lanka, and detained and questioned under routine procedures for a few hours at the airport. However, the Authority considered that this did not amount to serious harm and would not lead to any adverse interest.
The Authority found that the applicant did not meet the requirements of the definition of refugee in s 5H(1) of the Migration Act and did not meet the criteria in s 36(2)(a). Based on the same findings of fact, the Authority also found that the applicant did not meet the complementary protection criteria in s 36(2)(aa) of the Migration Act.
PROCEEDINGS BEFORE THIS COURT
The application for judicial review was filed on 21 August 2017. This is within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant raises the following three grounds of review in his written application:
1.The Second Respondent constructively failed to review the First Respondent’s decision, denied the Applicant’s procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information.
2.The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness.
3.I have made an application for assistance through Victorian Legal Aid and am waiting for a response from them.
The matter came before me for hearing on 10 May 2022. The applicant was self-represented with the assistance of an interpreter in the Tamil and English languages. The Minister was represented by Mr Barrington of counsel.
Applicant’s request for the hearing to be adjourned
On the evening prior to the hearing the applicant sent an email to my associate requesting that the hearing be adjourned because he was going through a mental breakdown and stress following the sudden death of his father in Sri Lanka and was unable to prepare for the hearing. At the hearing the applicant said that his father passed away in April, he had not seen a doctor and was not aware of the process for the grant of an adjournment. Mr Barrington for the Minister neither consented nor opposed the applicant’s request for an adjournment.
While I am not unsympathetic to the applicant’s situation, I declined to adjourn the hearing. No medical evidence was provided by the applicant to support his claim to have suffered a mental breakdown and stress caused by the death of his father. I was satisfied that the applicant could effectively participate in the hearing and was not denied procedural fairness as a result of any claimed mental breakdown and stress.
CONSIDERATION
Jurisdictional error
The role of a court in considering an application for judicial review was explained by the Full Court of the Federal Court in Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 397 ALR 1; [2022] FCAFC 3, where the Full Court said at [17]:
… an application for judicial review is one in which the judicial branch of government reviews, by reference to legality or lawfulness, the decision or decisions of the Executive branch of government… The Court does not consider the merits or wisdom of the decision; nor does it remake the decision. The task of the Court is to rule upon the lawfulness or legality of the decision by reference to the complaints made about it.
In order to be entitled to relief by this Court, the applicant must establish that the Authority decision is affected by jurisdictional error. The Authority will have made a jurisdictional error if it ‘exceeded the limits of the decision-making authority conferred by the statute in making the decision’: MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590; [2021] HCA 17 at [29].
The High Court identified a number of examples of jurisdictional error in Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig). In that case the High Court said at [14] that if the decision-maker:
…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The examples of jurisdictional error set out in Craig are not exhaustive: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82]; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 (SZMTA) at [81]. There might be jurisdictional error in an Authority decision if the Authority fails to conduct the review in accordance with the provisions in Division 3 of Part 7AA of the Migration Act, or if the Authority fails to exercise its discretionary powers in those provisions reasonably: see, for example, Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217; [2018] HCA 16 at [21]; and ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3].
To amount to a jurisdictional error, any error by the Authority must be material, in the sense that the error could realistically have deprived the applicant of the opportunity of a successful outcome: SZMTA at [45].
Matters raised in the applicant’s written and oral submissions
The applicant filed written submissions on 10 March 2022. In these submissions, the applicant sets out his protection claims and says that the Authority did not accept his grounds for facing a real chance of persecution or risk of significant harm. He did not assert any jurisdictional error in the Authority decision.
I gave the applicant an opportunity at the hearing to explain to the Court the grounds raised in his application and what he believes the Authority did wrong. The applicant submitted that he would still face problems in Sri Lanka, and said that he lost his cousin recently, his brother is no more, his father is no more, and he cannot lose his life and his safety.
The applicant’s written and oral submissions do not address the grounds raised in his application to the Court. The applicant’s submissions outline why he should be granted a protection visa and essentially invite the Court to engage in merits review. The Court has no jurisdiction to consider the merits of the Authority decision or to decide for itself whether the applicant meets the criteria for a protection visa: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The applicant’s submissions do not establish jurisdictional error in the Authority decision.
Ground 1
Ground 1 of the written application alleges that the Authority constructively failed to review the delegate’s decision and denied the applicant procedural fairness by failing to sufficiently raise critical matters with the applicant and by failing to extend to him a real opportunity to reply to adverse information. As noted above, the applicant did not make any submissions in relation to this ground.
The Minister submitted that the applicant’s failure to particularise this ground is a sufficient basis to dismiss the ground, relying on NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37]. Although it would be open to me to dismiss this ground, or any of the grounds, on the basis that they are not particularised, it is also open to me, in circumstances where the applicant is self-represented, to decline to dismiss the grounds solely on the basis that they are not particularised: see, for example, Bala v Minister for Immigration and Border Protection [2019] FCA 600 at [7]. In my view, it is preferable to endeavour to understand the grounds raised by the applicant and consider those grounds.
The Minister further submitted that in any event the ground is not established having regard to limited form of merits review provided by Part 7AA of the Migration Act. The Minister submitted that there was no error simply because the Authority took a different view of the material considered by the delegate, and that the Authority was not required to inform the applicant of specific reservations about his case and to provide him with an opportunity to make a fuller or better case.
I agree that the Authority did not deny the applicant procedural fairness in conducting the review in the manner alleged by ground 1.
There are limited procedural fairness obligations owed by the Authority to an applicant in relation to a review under Part 7AA. Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA, together with two other sections that have no application in the present matter, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The High Court has held that s 473DA(1) of the Migration Act leaves no room for the operation of the common law rules of procedural fairness: BVD17v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [33].
It is not clear what ‘critical matters’ the applicant says the Authority failed to raise with him. The issues before the Authority were the same as the issues that were considered by the delegate. The only materially different finding of fact is that the delegate found that the applicant departed Sri Lanka illegally, whereas the Authority found, based on information provided by the applicant at his entry interview, that he departed Sri Lanka legally by plane. The applicant did not claim in his written statements to the delegate or the Authority that he had departed Sri Lanka illegally, and the Authority did not have any procedural fairness obligation under the provisions in Division 3 of Part 7AA of the Migration Act to invite the applicant to comment on its proposed finding.
As the Full Court of the Federal Court said in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551; [2018] FCAFC 12 at [72]:
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
The only new information considered by the Authority which was not provided by the applicant was the 2017 DFAT report on Sri Lanka. The Authority was not required to invite the applicant to comment on information in the DFAT report. This is because the obligation in s 473DE(1) of the Migration Act to provide to an applicant clear particulars of new information that will be considered by the Authority under s 473DD and would be the reason or part of the reason to affirm the decision under review does not extend to new information that is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member: s 473DE(3)(a). Country information therefore falls within the exclusion in s 473DE(3)(a) of the Migration Act.
Ground 1 is not established.
Ground 2
Ground 2 alleges that the Authority denied the applicant procedural fairness by failing to schedule an oral interview for the applicant to present his claims.
Although the Authority has the power to invite an applicant to give new information, including by attending an interview, it does not have any duty to get, request or accept any new information: see s 473DC(2) and (3) of the Migration Act. There may, however, be occasions where a failure by the Authority to get new information from an applicant, or to consider getting new information from an applicant, will be legally unreasonable. The Minister has identified in the written submissions filed on 23 February 2022 examples of circumstances in which the Authority’s failure to exercise its discretion in s 473DC to get new information from an applicant, or to consider the exercise of that discretion, might be legally unreasonable, including:
(a)where the Authority required additional information from the applicant that it lacked and knew the applicant possessed: Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; [2017] FCAFC 210 at [82];
(b)where the Authority differed from the delegate on demeanour based credit findings without having the benefit of observing the applicant answer questions: ABT17 at [25]; and
(c)where there were apparent errors in translation: DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389; [2021] HCA 12 at [20], [47].
The Authority in the present case did not act unreasonably by not inviting the applicant to attend an interview. As mentioned above, the only material finding of fact made by the Authority that significantly differed from a finding made by the delegate related to whether the applicant departed Sri Lanka illegally. The delegate found that the applicant departed Sri Lanka without permission or a passport and was a passenger on a people smuggling venture, and therefore departed Sri Lanka illegally.
In contrast, the Authority said at [29] of its reasons:
The applicant claims that his escape to a western country illegally is going to cause further problems for him as the authorities will know that he has come to Australia to seek protection and he has spoken out against them. The applicant did not refer to, or provide evidence in his SHEV interview, in support of his claim to have spoken out against the government. Nor did he provide evidence subsequently that he has done so and I reject this claim as an embellishment. Nor do I accept that he escaped Sri Lanka illegally. The delegate found that the applicant departed Sri Lanka without permission or a passport and therefore that he left Sri Lanka illegally. I have come to a different conclusion. The evidence he gave in his entry interview to Department officers was that he left Sri Lanka lawfully, flying from Colombo to Singapore on his own passport which was subsequently confiscated by the people smuggler (agent) in Indonesia. On that basis I do not consider that he is at risk of prosecution under Sri Lanka’s Immigrants and Emigrants Act 1949 (the I&E Act) for illegal departure. I accept, however, that the fact that he will be travelling on a temporary travel document means that the Sri Lankan authorities will identify him during routine processing as a person who has made a claim for asylum in Australia, although I do not accept that this will cause problems for him as he claims.
I accept the Minister’s submission that although the Authority came to a different view to the delegate about the applicant’s departure from Sri Lanka, there is nothing to suggest that the finding was made on the basis of demeanour, or that the Authority was relevantly disabled in its fact-finding on this issue.
It was not unreasonable for the Authority not to exercise its discretion in s 473DC(3) to invite the applicant to an interview to discuss the circumstances of his departure from Sri Lanka, or to discuss his claims more generally.
Ground 2 is not established.
Ground 3
Ground 3 is merely an assertion that the applicant has made an application for legal aid. It does not assert any jurisdictional error in the Authority decision and does not need to be addressed further in this judgment.
Additional issue raised by the Minister: Authority’s treatment of new information
The Minister raised, as a model litigant, an issue in relation to whether the Authority erred in its approach to s 473DD of the Migration Act, taking into account the principles addressed in the High Court’s judgment in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494; [2020] HCA 37 (AUS17).
The Minister provided detailed submissions on 23 February 2022 explaining why, in the Minister’s view, there was no jurisdictional error in relation to the Authority’s treatment of new information. When the matter came before the Court for hearing, I raised some additional concerns about the Authority’s treatment of new information, and made orders for the filing of further evidence in relation to the information before the delegate as well as further submissions to address the issues raised by the Court. I thank the parties for providing this additional material in accordance with those orders.
The Minister’s submissions are addressed in relation to each item of new information below. The applicant’s submissions provide clarification about what he intended to say at his protection visa interview and information about why he fears he will still face harm in Sri Lanka. In assessing whether the Authority has erred in its approach to s 473DD of the Migration Act and, in particular, whether any error is material, a court is to conduct a backward looking inquiry based on what the Authority did in the particular case: see MZAPC at [37]; BDY18 v Minister for Immigration and Border Protection (2020) 273 FCR 179; [2020] FCAFC 24 at [88]. It follows that any clarification of what the applicant intended to say, or how he intended to express himself, at the protection visa interview, and any reasons why he feels he will still face harm in Sri Lanka, are of limited relevance to whether any jurisdictional error is evident in relation to the Authority’s approach to s 473DD of the Migration Act.
When new information is received from an applicant, the Authority must be satisfied the new information meets the criteria in s 473DD of the Migration Act before it can be considered in the review process. Section 473DD provides:
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.
In AUS17, the High Court held that as a matter of logic and policy, the Authority is to assess new information it obtains from an applicant first against the criterion specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a): AUS17 at [11]. More specifically, the High Court in AUS17 held at [11] that:
(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. In such circumstances, a further assessment of the new information against the criterion specified in s 473DD(a) is redundant.
(b)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 in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and 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.
Any error in the Authority’s approach to s 473DD will only amount to jurisdictional error if the error is material, in the sense that it could realistically have deprived the applicant of the possibility of a different outcome: SZMTA at [45].
The Authority identified four categories of new information, and I address in turn its approach to s 473DD in relation to each category.
Claim regarding the applicant’s cousin and imputed LTTE associations
The following information regarding the applicant’s cousin was identified by the Authority at [3] of its reasons as new information:
His cousin grew up with them and his store was located close to their house; he lived with the applicant’s family during work days. His cousin was displaced to Vanni in 1994 and returned to Jaffna in 2002 which could be the main reason the authorities believed he was associated with the Liberation Tigers of Tamil Ealam (LTTE).
The Authority assessed this new information for the purposes of s 473DD at [5] of its reasons and said:
The information about his cousin pre-dates the delegate’s decision. It is information wholly within the knowledge of the applicant and which was open to the applicant to raise in either his SHEV application or in his SHEV interview when the delegate asked him directly about his cousin and his claims related to him. He did not. I am not satisfied that exceptional circumstances exist to justify considering this aspect of the new information.
It can be seen from this that the Authority considered matters relevant to s 473DD(b)(i), but there is nothing in this passage from which it can be inferred that the Authority considered whether the information was credible personal information which, had it been known, might have affected the consideration of the applicant’s claims. The Minister appropriately conceded that the Authority erred in considering this new information against s 473DD as there was no basis to infer that the Authority considered the information against s 473DD(b)(ii).
However, this error does not amount to jurisdictional error. I accept the Minister’s submission that the error was not material because the Authority was prepared in any event to accept at [14] of its reasons that it was possible that the applicant’s cousin was killed because of his suspected connections with the LTTE. Information as to why the applicant’s cousin might have been suspected of LTTE involvement does not advance the applicant’s case in circumstances where the Authority had already accepted the possibility of the applicant’s cousin being involved with the LTTE. Therefore, the Authority’s failure to assess this new information against s 473DD(b)(ii) of the Migration Act could not realistically have deprived the applicant of the possibility of a successful outcome.
Claim regarding the applicant’s difficulties obtaining a replacement NIC
The new information regarding the applicant’s difficulties of obtaining a replacement NIC was identified at [3] of the Authority’s reasons, where it said:
If he is forced to return to Sri Lanka, he will not be able to live there in the absence of his National Identity Card (NIC). If he approaches the local government office to obtain a new one, he will come to the adverse attention of the authorities including the army Criminal Investigation Division (CID).
The Authority’s assessment of this new information against the criteria in s 473DD is set out at [5] of its reasons, where it said:
In regard to his claim about his inability to approach the authorities for a replacement NIC, it is clear this is not a recent circumstance. The written record of his entry interview indicates that he had lost his NIC by the time of that interview. His fear therefore of not being able to obtain a replacement one was one he could have made in either his SHEV application or SHEV interview during which he was asked in detail about his interactions with the authorities and what he feared on return. I am not satisfied that exceptional circumstances exist to justify considering his claim regarding problems in seeking a replacement NIC.
The Minister submitted that the Authority expressly considered this information against s 473DD(b)(i) by finding that the applicant could have made this claim either in his application for a protection visa or during his protection visa interview. I accept this submission.
The Minister further submitted that, although the Authority did not expressly set out its reasoning in relation to s 473DD(b)(ii), the Court should infer that the Authority assessed this information against that criterion. The Minister submitted that the criterion in s 473DD(b)(ii) requires the information to be ‘personal’ information, meaning ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable’. The Minister submitted that the new information was not a claim about the applicant personally, but rather information about how the Sri Lankan authorities behave, or, as Mr Barrington said in oral submissions, ‘describing a process for a person applying for or seeking to have issued a NIC’. In this sense, the information was said to be about a general circumstance not unique or personal to the applicant, and akin to country information.
To support this submission, Mr Barrington referred the Court to BOS17 v Minister for Immigration and Border Protection (2020) 170 ALD 1; [2020] FCA 75, where the Federal Court said at [59] (emphasis added):
The phrase “personal information” is defined s 5 of the Act as having the same meaning as in the Privacy Act 1988 (Cth), where it is defined (by s 6 of that Act) as information or an opinion about an identified individual or an individual who is reasonably identifiable, whether the information or opinion is true or not and whether the information or opinion is recorded in a material form or not: see also Plaintiff M174/2016 at [33] and [34] per Gageler, Keane and Nettle JJ. In my view, an essential aspect of that definition is that the information is about an identified individual or an individual who is reasonably identifiable. Information is not personal information merely because the information refers to an identified individual. Although the articles relied on by the appellant refer to various people by name, such as President Maithripala Sirisena, the information contained in the articles cannot be characterised as being about those persons. The articles, and the information contained in them, are about the practices of torture and persecution in Sri Lanka and the steps, or lack of steps, being taken to address those practices.
In the present case, there is nothing in the Authority’s reasons which would allow an inference to be drawn that the Authority considered the information against the criterion in s 473DD(b)(ii) and simply did not set out its reasoning. I also do not accept that the new information is wholly akin to country information. While the information may in part be about how the authorities in Sri Lanka may act, that is an overly simplistic view. The new information also includes information that the applicant had a subjective fear of coming to the attention of the authorities because of the need to obtain a NIC and the process necessary to do so. That goes beyond information that is akin to country information. The Authority was required to, but did not, consider whether the new information about the applicant’s concerns if he is required to obtain a replacement NIC was credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims.
The error was material. The Authority did not make any other findings that effectively take into account the new information. Had the Authority properly assessed the new information against the requirements of s 473DD, it could realistically have found that s 473DD(b)(ii) was met, and there is a realistic possibility that that might also have led it to find that s 473DD(a) was met. The information about the NIC was essentially a new claim, and I cannot exclude the realistic possibility that the Authority might have reached a different decision had it considered this new claim.
The Authority has therefore made a jurisdictional error.
Claim that the Sri Lankan authorities continue to harass the applicant’s family
The Authority identified at [3] and [4] of its reasons that the applicant’s claim that the Sri Lankan authorities continue to harass his family was new information. In finding that the information was new information, the Authority said at [4]:
He did claim in his written statement that the authorities are still regularly visiting his family home but specifically stated in his SHEV interview that there hadn’t been any further visits after the 2014 incident involving his father.
The Authority made findings for the purposes of s 473DD at [6] of its reasons, where it said:
In regard to his claim that the Sri Lankan authorities continue to harass his family, I note that the submission was made approximately six weeks after the November 2016 SHEV interview and three weeks after the delegate’s decision, and the applicant does not indicate that these are recent events. I have taken into consideration that the decision was made relatively quickly after the interview was conducted and that the interview was not particularly detailed. Nonetheless, the applicant has been assisted throughout the application process by a registered migration agent and he was offered the opportunity to add anything further at the end of his interview when his agent also made a number of submissions. He made no mention of further visits to his family and in fact the claim he now makes regarding visits to his family directly contradicts information he provided in his interview. In light of all these circumstances, I am not satisfied that there are exceptional circumstances to justify considering it.
The Minister originally submitted that the Authority’s comments that the claim was not a reference to recent events and that the applicant had not advanced this claim before the delegate amounted to sufficient consideration of s 473DD(b)(i) of the Migration Act. The Minister submitted that the Authority’s comment that the new information ‘directly contradicts information he provided in his interview’ was directed to whether the information was ‘credible’ personal information in the sense of whether it was capable of being believed.
At the hearing, I raised an issue as to whether the information that the applicant’s family continued to be harassed by the Sri Lankan authorities was properly classified as new information. I have reviewed the partial transcript that the Minister has provided of the applicant’s protection visa interview and I accept that at one point in that interview the applicant was asked whether the authorities had been back at his family’s house since 2014 and he clearly answered no because his father was in hospital and was unwell. To this extent, I accept the Minister’s further submission that the transcript of the protection visa interview bears out the Authority’s statement that the applicant ‘specifically stated in his SHEV interview that there hadn’t been any further visits after the 2014 incident involving his father’.
However, the simple fact that the information that the authorities continue to harass the applicant’s family might be inconsistent with some of the information that the applicant gave at his protection visa interview does not mean that the information is properly classified as ‘new information’ within the meaning of s 473DC(1). For information to be ‘new information’ within the meaning of s 473DC(1), the information must not have been before the Minister when the Minister made the decision under s 65 of the Migration Act.
Information that was before the delegate included:
(a)a claim set out in the applicant’s statutory declaration made on 8 April 2016 that (emphasis added):
33.We fear that the Army CID is still after us. If I am forced to return, I would be targeted by them and get killed.
…
34.I am fearful of returning to Sri Lanka, because they are still targeting my family. The Army CID is still regularly visiting my family home. They have attacked my father in August 2015. I am feared to go back. If I am forced to return, I will get killed by the army CID
(b)a comment at the end of the protection visa interview that the ‘CID is actually targeting my family…first my brother had problems, and then I had problems, now it happened to my father…’.
The information provided to the Authority in the applicant’s statement dated 19 December 2016 that ‘[t]he Sri Lankan authorities continue to harass my family till now’ is substantially the same as the information set out in the paragraph immediately above which was before the delegate. The making of a seemingly inconsistent statement in his protection visa interview that the authorities had not visited his family home since 2014 does not render the information in the 19 December 2016 statement new information. Evidence that has already been presented before a delegate does not become new information simply by being re-presented to the Authority: see ABT17 at [121]; see also CYE17 v Minister for Immigration and Border Protection [2019] FCCA 102 at [45], approved in Minister for Immigration and Border Protection v CYE17 [2020] FCA 1594 at [6]. I find that the Authority has misunderstood and misapplied the meaning of ‘new information’ in s 473DC(1) of the Migration Act. The consequence of the information not being ‘new information’ is that the Authority did not need to be satisfied that the requirements of s 473DD were met before considering the information and therefore erred by disregarding the information because it was not satisfied that s 473DD was met.
In the further submissions filed on 26 May 2022, the Minister submitted that if the Authority was wrong in considering the claim that the Sri Lankan authorities continue to harass the applicant’s family as new information, the error was not material. The Minister submitted that the Authority’s reasons at [4] and [6] show that it did not consider the information to be credible.
The findings made by the Authority at [4] and [6] show that the Authority considered the information that the Sri Lankan authorities continue to harass the applicant’s family to be inconsistent with some of the information he provided at his protection visa interview. However, the mere identification of information as being inconsistent with other information does not, in the context of the present matter, mean that there is no realistic possibility of the Authority reaching a different conclusion if it had considered the information in the applicant’s statement of 19 December 2016, which was consistent with his earlier statutory declaration made in April 2016, and arguably also consistent with one of his comments at his protection visa interview.
I have also carefully considered, for the purposes of assessing materiality, the Authority’s reasons at [20]-[23]. In these paragraphs, the Authority said (emphasis added):
20.There are some discrepancies in relation to what he claims happened after he left Sri Lanka. In the written statement he said that after he left Sri Lanka the Army CID has been regularly visiting his home, questioning his parents about his brother and him and checking the house. In his SHEV interview he said the authorities visited his father at home 2 or 3 times and told him that he’d saved his two boys but that it will be risky for him. He also said that after this, in 2014 his father was attacked with a knife by people who told him that he’d saved his kids but they wouldn’t spare him. He said his father’s colleague went to save him but they cut him as well. In his written statement he said his father and his colleague were both attacked and stabbed when returning from work, instead of his later claim that his father’s colleague was injured only when coming to the aid of his father. In his statement he did not claim that anything was said to his father by the attackers. When the delegate asked whether there had been anything else since his father’s attack in 2014, he said there hadn’t been, in contrast to the claim in his written statement that the Army CID is still regularly visiting his family home.
…
22.I accept it is plausible that his family was visited after he left Sri Lanka but I consider this to be attributable to an incident of routine monitoring to which many Tamils were subject. As his parents told the authorities that the applicant and his brother had left Sri Lanka, I do not consider it plausible that the authorities continued to visit his family regularly asking about them and I consider the claim in his interview that they told his father that he’d saved his two boys but that it will be risky for him a recent invention designed to bolster his claims. I also note that in his entry interview, the applicant made no claims that after he left Sri Lanka for India in 2011 his family was visited at home, nor that there were any such visits after he left for Singapore in 2012.
23.While I accept that his father was, unfortunately, attacked and stabbed by unknown people and seriously injured, there were differences in his accounts of what happened between his written claim and his SHEV interview evidence. I am not satisfied that the attack on his father was anything other than a criminally motivated attack which was unconnected with the applicant. As he explicitly denied in his SHEV interview that there had been any further visits to his home, I do not accept the claim in his written statement that the Army CID is still regularly visiting his family home.
In the light of these findings, it may seem unlikely that the Authority would have reached a different conclusion had it considered the information in the applicant’s statement of 19 December 2016 that the authorities continue to harass his family. However, the role of the Court when assessing materiality is not to determine what the Authority would have done or was likely to have done, but rather whether there is a realistic possibility that the Authority could have reached a different outcome if it had taken into account the information in the applicant’s statement of 19 December 2016: see, for example, Minister for Immigration and Border Protection v CPA16 (2019) 268 FCR 379; [2019] FCAFC 40 at [32]-[33]. I cannot exclude the realistic possibility that the Authority could have reached a different decision if it had taken into account the information in the applicant’s statement of 19 December 2016, as this is information that was consistent with, and may have reinforced, the claim in the applicant’s statutory declaration made in April 2016. It follows that the Authority’s error is material and therefore jurisdictional in nature.
Further supporting documents
The Authority addressed the supporting documents provided by the applicant at [7] where it said:
The supporting documents provided by the applicant (photograph of a family gathering at his cousin’s first birthday, an article about two Jaffna university students who were killed, and a link to a video of the Northern Chief Minister claiming it is not safe for asylum seekers to return) all predate the delegate’s decision and it is not apparent why they could not have been provided to the delegate before the decision was made. At his SHEV interview, the applicant was advised that anything further he wished to provide before the decision was made may be taken into consideration. As noted above, the applicant had the benefit of being represented by a migration agent before the decision was made. During the interview, he was given an opportunity to comment on country information relating to improvements in the situation for Tamils under the new government. In response, his representative raised claims regarding the situation for Tamils and the powers of the government under the Prevention of Terrorism Act. The applicant and his representative were clearly on notice of the relevance of these matters and indicated that they understood they would be in issue. I am not satisfied that in the circumstances, there are exceptional reasons which justify considering the new information comprising the photograph and two media articles.
In finding that the new information predated the delegate’s decision and, by implication, that the new information could have been provided to the delegate prior to the delegate’s decision, the Authority has assessed the new information comprising three supporting documents against the criterion in s 473DD(b)(i).
The Authority has not expressly considered the supporting documents against the criterion in s 473DD(b)(ii) of the Migration Act. I do not accept the Minister’s submission that the Court should infer that the Authority considered the two media articles against s 473DD(b)(ii) and simply did not refer to it in its reasons because it was country information and not personal information. There is nothing in the Authority’s reasons to suggest that it had regard to s 473DD(b)(ii) in relation to any of the new information provided by the applicant.
I do, however, accept the Minister’s submission that any failure by the Authority to assess the supporting documents against the criterion in s 473DD(b)(ii) was not material. The two country information articles could not realistically be considered to be personal information by the Authority, and therefore there is no realistic possibility that they might be found to meet the criterion on s 473DD(b)(ii). I also accept the Minister’s submission that the photograph could only show the applicant’s family composition, which was not in issue before the Authority. Accordingly, the Authority’s failure to consider the photograph against the criterion in s 473DD(b)(ii) could not realistically have deprived the applicant of the possibility of a successful outcome.
No jurisdictional error is established in relation to the Authority’s consideration of the supporting documents against s 473DD.
CONCLUSION
I have found jurisdictional error in the Authority decision. It follows that I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the matter according to law.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 16 August 2022
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