EAA16 v Minister for Immigration & Anor
[2018] FCCA 2624
•8 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EAA16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2624 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred in making findings not available to it on the evidence – whether the Authority erred in failing to consider new information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5J, 46A, 65, 473BB, 473CB, 473DB, 473DC, 473DD, pt.7AA |
| Cases cited: AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 |
| Applicant: | EAA16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3662 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 8 May 2018 |
| Date of Last Submission: | 22 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Andelman |
| Solicitors for the Applicant: | Piper Alderman |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3662 of 2016
| EAA16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who lodged an application for a protection visa on 11 February 2016. That application was refused by a delegate of the Minister for Immigration on 3 August 2016. On 9 December 2016, the Immigration Assessment Authority made a decision to affirm the delegate’s decision. The applicant now seeks judicial review of the Authority’s decision.
Background
The applicant arrived in Australia via the Cocos Islands by boat and without a visa on 3 September 2012 and therefore became an unauthorised maritime arrival. On 30 November 2015, the Minster advised the applicant that he had exercised his power under s.46A of the Migration Act 1958 (Cth) allowing the applicant to make a valid protection visa application.
On 11 February 2016, the applicant made an application for a Temporary Protection (subclass 785) visa (TPV) and in those circumstances came within the definition of a “fast track applicant”: s.5(1) of the Act.
The applicant is of Tamil ethnicity and was born in the Eastern provinces of Sri Lanka. In late 1986, the applicant claims to have attempted to sell fish to soldiers stationed at an army camp he was passing by. He was held by the soldiers and tortured for several days. The applicant was taken to hospital where his injuries were treated. He was then transferred to another army camp where he was detained by the Sri Lankan Army (SLA) without charge until 1987. The applicant stated that he was subjected to this mistreatment because he is a Tamil and was therefore suspected of supporting the Liberation Tigers of Tamil Eelam (LTTE).
In early 1988, the applicant’s father was killed whilst farming after the SLA detonated a bomb on a passing vehicle suspected of being operated by the LTTE. In the following year, the applicant’s brother was shot by the SLA and taken to hospital for treatment. The applicant claims that hospital staff had informed his mother that uniformed army officers had taken his brother’s body away and that it has never been recovered. During this period the applicant became a supporter of the Tamil National Alliance (TNA) and undertook tasks such as putting up posters.
The applicant left Sri Lanka for Saudi Arabia where he remained and worked for multiple, extended periods between 1990 and 2007. Having returned to Sri Lanka in 2007 to be with his wife and children, the applicant in late 2010, purchased a three wheel auto to transport school children to and from the local music. After school hours the applicant’s auto was hired by private clients.
An army checkpoint was located outside the music college and the applicant would regularly be forced to transport soldiers to a neighbouring army camp. He began to divert his routes in order to avoid the soldiers who would often be drunk at night. The applicant claims that soldiers had approached another driver about his avoidance and asked for his taxi number plate. As a result, he feared he would again be detained and tortured by the SLA and decided to leave Sri Lanka to ensure his safety.
The applicant fears harm upon his return to Sri Lanka because of his Tamil ethnicity, imputed political opinion as a supporter of the LTTE and being a failed asylum seeker. He claims that he could not return to Saudi Arabia as he would not gain employer sponsorship due to his health conditions and age. The applicant also states that he cannot relocate within Sri Lanka as he would be unable to find work and therefore would be incapable of supporting his family.
On 3 August 2016, the delegate of the Minister made a decision to refuse to grant the applicant a TPV. That decision was a “fast track reviewable decision” within the meaning of s.473BB of the Act, and so was referred to the Authority for review under pt.7AA of the Act.
On 17 September 2016, the applicant sent to the Authority submissions (in the form of a statutory declaration), an extract from the Information Book of a Police station concerning a complaint made by the applicant’s wife and a letter from a Member of Parliament.
The Authority made its decision on 9 December 2016 affirming the decision of the delegate.
Authority’s decision
The Authority first considered the information before it and whether any of that information would be classified as “new information” within the meaning of s.473DC of the Act. It found that the submissions and letter from the Member of Parliament sent to it by the applicant were not “new information”, but that the extract from the Police Information Book was. The Authority was not satisfied that either sub-ss.473DD(b)(i) or (ii) was met in respect of that information and concluded that it was not able to consider the information for the purposes of the review. That conclusion is the subject of the applicant’s second ground of review and the reasons for it will be examined in detail later in these reasons.
The Authority then summarised the applicant’s claims before making findings about them. It accepted the applicant’s claims regarding his torture and detention and the circumstances involving the deaths of his father and brother and concluded that the applicant had been subject to serious harm in the past in Sri Lanka for reasons of his Tamil ethnicity and his imputed political opinion as a supporter of the LTTE. However, the Authority did not accept that the applicant had been a supporter of the TNA due to a significant discrepancy in the years he claims to have begun assisting them and the actual formation of the group.
The Authority accepted that the applicant feared the soldiers outside the music college and that this fear increased at night when they would often be drunk. It also accepted that on one occasion in 2012 the soldiers had become angry as a result of the applicant avoiding them and asked another driver for his details. However, the Authority found that because of the time that had lapsed since the event, there was not a real chance the applicant would face harm in the reasonably foreseeable future.
The Authority also found that even if the checkpoint outside the music college remained and the soldiers remembered the applicant previously avoiding to transport them, the applicant could take reasonable steps to avoid harm. It considered that it was the applicant’s evidence that he only experienced issues with the soldiers in the evening and therefore he could limit his work to driving students of the music college until 3:30pm. In addition, the Authority found that the combination of the applicant’s wife’s income and any reduced income of the applicant would be sufficient to sustain the family.
The Authority then went on to deal with whether the applicant may face harm upon return to Sri Lanka on the basis of his Tamil ethnicity, imputed political opinion as an LTTE supporter and being a failed asylum seeker; however, it is unnecessary for present purposes to refer to this in any detail as no issue is taken by the applicant in respect of those reasons. The Authority concluded that it was not satisfied that the applicant met the criteria for the grant of a TPV and so affirmed the decision of the delegate.
Consideration
There are two grounds in the applicant’s further amended application. The first ground concerns the Authority’s consideration of the applicant’s fear of harm from the SLA and the second ground concerns the Authority’s consideration of the information in the Police Information Book.
First ground: errors in the Authority’s conclusions about fear of harm from the SLA
This ground relates to the findings made by the Authority at [22] and [23] of its reasons. However, it does not, in terms, specify the jurisdictional error made there. In light of the applicant’s written and oral submissions the ground is best understood to be that the finding in [22] was not available on the evidence and the finding in [23] discloses that the Authority did not consider part of the applicant’s claims.
Before dealing with the substance of the ground as I understand it, I must deal with one aspect of the applicant’s argument that is misguided. In his submissions, the applicant contends that there were two relevant jurisdictional facts: first, the question whether the applicant can avoid the fear and the chance of harm from the SLA officers by not working after 3.30pm; and secondly, whether there was no real chance of harm because the events had occurred 4 years ago. That is not correct.
The applicant accurately records in his submissions that the term “jurisdictional fact” is used to “identify a criterion the satisfaction of which enlivens the exercise of statutory power or discretion in question”: see Corporation of the City of Enfield v Development Assessment Commission & Anor (2000) 199 CLR 135 at 148, [28]. The question whether a fact, or a complex state of facts, is a “jurisdictional fact” is one of statutory construction: Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64, [39]-[42] per Spigelman CJ; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 710, [6] per Spigelman CJ.
In Plaintiff M70/2011 v Minister for Immigration & Citizenship (2011) 244 CLR 144 (Malaysian Declaration Case), French CJ explained, at [57]:
When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.
(Citations omitted)
Here, the obligation of the Authority to “review” the delegate’s decision, and the question posed for the delegate by s.65 of the Act, meant that the relevant “jurisdictional fact” was the satisfaction of the Authority as to whether or not the criteria for the grant of a protection visa were satisfied. The questions of fact that arise on the material before the Authority in reaching its state of satisfaction are not “jurisdictional facts” and so, contrary to the applicant’s contention, it is not open to the Court to determine one way or the other what findings ought to be made in respect of those questions.
That said, if the applicant’s arguments as I understand them succeed, then the Authority will have fallen into jurisdictional error.
In order to determine whether the arguments succeed it is necessary to set out the relevant passages of the Authority’s reasons in full.
[22] I accept that the applicant was afraid of the soldiers and that his fears increased when they were intoxicated and the drive involved an isolated stretch of road. I accept that on one occasion in early August 2012 the soldiers were angry that he avoided them and asked other drivers about him and knew the number plate of his vehicle. In assessing the chance of this incident giving rise to harm to the applicant now and in the future, I note that the incident occurred more than four years ago. I find that given the time that has lapsed there is not a real chance that the applicant will face harm from these soldiers and these events now and in the reasonably foreseeable future.
[23] Even if the applicant returns to Sri Lanka and the checkpoint remains in place and the same soldiers are present and they remember the incident with the applicant avoiding transporting them as requested, I also note that the applicant could take reasonable steps to modify his work practices in order to avoid the fear and the chance of being harmed by these soldiers. The applicant’s evidence is that he worked during the day until 3.30p.m. driving children to and from the music school. Then later in the day he was available for hire by others. It was always later in the day that the soldiers requested that he transport them to the army camp. He stated in his TPV interview that his wife’s work as school librarian was sufficient to support their family when he was unemployed. He clarified that his wife is still employed in that capacity. It is apparent from the applicant’s evidence that the income from his wife’s work combined with his income from driving the children during the school hours is sufficient to provide for the applicant and his family. I find the applicant can avoid the fear and the chance of harm from the SLA soldiers by not working after 3.30p.m. In this way he can take reasonable steps to avoid the SLA soldiers.
In respect of [22], the applicant argues that the finding as to lack of risk due to four years passing is merely conjecture. He argues that this finding “was not supported by any evidence before the Authority that either: the conditions in Batticaloa had changed; or the SLA officers stationed at the checkpoint were no longer there”.
This argument has no merit. The fact that the events in question had taken place over four years before the Authority’s decision was, in the context of the claims and evidence before it, logically probative of the Authority’s finding that there was no real chance that the applicant would face harm from those soldiers and those events in the reasonably foreseeable future. It is to be recalled that the incident in question was isolated, there were only several soldiers involved, they were drunk and the incident involved a simple failure to pick up the soldiers rather than, for example, a politically motivated attack, physical assault or some other incident of greater and long-lasting importance. In those circumstances, the significant passage of time supported the Authority’s conclusion that there was no real risk of any harm arising from this event.
The second argument concerns the finding, in [23], that the applicant could avoid harm by not working after 3.30pm. That finding was made in light of s.5J(3) of the Act that provides that a person does not have a well-founded fear if the person “could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution”.
The applicant argues that his claim was that his fear was of the possibility of harm outside of the timeframe considered by the Authority. The applicant was required to cross the checkpoint throughout the day and not only after 3.30pm. The applicant stated during the interview, in reference to this incident, “[s]o thereafter I was afraid because when I do the school hires I have to pass them frequently so I handed over the auto”, and that he then left his home for his mother’s house.
I accept that the applicant’s claims involved the proposition that he would drive past the SLA checkpoint at different times during the day, and that there was a possibility that the soldiers who had demanded lifts from him may be at the checkpoint at those times. Accordingly, if it was accepted that there was a real chance that those soldiers would harm him because he had failed to return to give them a lift on one occasion in August 2012, that real chance was not restricted to times after 3.30pm. The Authority was wrong to conclude that it was so restricted. The mistake made by the Authority in this respect was to consider the applicant’s claim on the narrow basis that harm would only arise if and when, as has had already been the case, the applicant was no longer ferrying school children and was taking private passengers. However, this error did not amount to jurisdictional error because of the Authority’s finding, at [22], that there was, in any event, no real chance of the applicant being harmed by the soldiers. The opening words of [23] “Even if” make it clear that the finding in [23] was in the alternative to the finding in [22]. In light of that, the error in [23] was not material and so did not constitute jurisdictional error: Hossain v Minister for Immigration & Border Protection (2018) 92 ALJR 780 at [30] – [31] (Kiefel CJ, Gageler and Keane JJ).
The first ground is rejected.
Second ground: failure to consider “new information”
This ground concerns the reasons for which the Authority determined that it could not have regard to information provided to it by the applicant for the purpose of the review which was not before the delegate.
The conduct of review by the Authority is governed by the provisions of pt.7AA of the Act. As explained by the plurality in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [22], s.473DB:
... sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE.
It was not in issue that the Authority was correct to determine that the information in the Police Information Book was not part of the review material provided to it under s.473CB or that it was “new information” within the meaning of s.473DC(1). In light of that, the Authority was also correct to proceed on the basis that it could not consider that information unless one of the circumstances in s.473DD applied.
Section 473DD provides:
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.
(Emphasis in original)
The Authority’s reasons for concluding that it was prohibited from considering the information were set out in the following passage:
[6] The extract from the Information Book of the Police Station and its English translation purports to be a complaint from the applicant’s wife made to the police at Kattankudy Police Station on 5 September 2016 regarding unknown persons who came in a van searching for the applicant and making threats to harm and kill the applicant on 7 June 2015 and again on 31 January 2016. The extract and the claims contained therein is new information; however no explanation has been provided as to why the claims regarding the threats contained in the extract were not, and could not have been provided to the delegate before the decision was made to refuse the visa. I am not satisfied that s.473DD(b)(1) is met. Also, no explanation has been provided as to why the complaint was lodged with the police on 5 September 2016 when the alleged incidents occurred in June 2015 and January 2016. This, combined with the information the applicant provided in the application form that he “speaks to his wife and children daily on the phone and sometimes on skype”, and his statement at the TPV interview that “I am in regular contact with my family and they have no problems – my children are studying and my wife is working”, leads me to seriously doubt that the complaint to the police in September 2016 has arisen from genuine threats of harm to the applicant and his wife in June 2015 and January 2016.
[7] I am not satisfied that the extract from the Police Information Book contains credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims, as required by s.473DD(b)(ii). I am therefore unable to consider this new information in making this decision.
(Error in original)
The applicant argues that the Authority made a number of errors in this passage. First, he argued that the Authority was wrong to treat the claim in the Information Book (that is, that people had come looking for the applicant in June 2015 and January 2016) as “information”. That argument cannot be sustained. In Plaintiff M174/2016 the plurality explained, at [24], that “information” in these provisions was used in the ordinary sense of a communication of knowledge about some particular fact, subject or event. The reason the applicant had given the Information Book to the Authority was to establish a fact, subject or event: namely, that there had been incidents in June 2015 and January 2016. In other words, the Information Book contained “information” and, even though it could also be described as a claim, the Authority was correct to treat it as falling within ss.473DC and 473DD.
Secondly, the applicant argues that the Authority failed to consider whether there were “exceptional circumstances”. He relied on the following statement from the decision of the Full Court of the Federal Court in CHF16 v Minister for Immigration & Border Protection [2017] FCAFC 192:
[46] There is one point of construction which we do not find it necessary to pursue. This point is the Minister’s submission that there is no obligation cast by s 473DD to consider and make findings upon both (a) and (b) once the Authority has found that either (a) or (b) was not satisfied. It is not necessary to consider this point further because the Authority in the present case has misunderstood the scope of (a) of s 473DD when concluding that it was not satisfied that there were exceptional circumstances to justify considering the new information. Whether it is possible, as a matter of substance in a given case, to consider all exceptional circumstances without considering whether the new information could not have been provided to the Minister before the Minister made the decision or was credible personal information not previously known which may have affected the consideration of the claims, we prefer to leave to a case in which it is necessary to decide it. In a formal sense the Minister’s submission is correct but, as a matter of substance, it has a tendency to sidestep the real issue.
That decision does not assist the applicant. First, the Court in CHF16 was considering the converse of the present situation, that is, where the Authority had only considered s.473DD(a). Secondly, the statement at [46] was clearly obiter. Thirdly, later decisions make it sufficiently clear that the two paragraphs of s.473DD are cumulative so that if one is not met the Authority is prevented from considering the new information: Plaintiff M174/2016 at [31]; Minister for Immigration & Border Protection v CQW17 [2018] FCAFC 110 at [36]; AQU17 v Minister for Immigration & Border Protection [2018] FCAFC 111 at [13]-[14]. In other words, the Authority is not required to consider both paragraphs before it concludes that it is unable to consider the new information.
The applicant’s third argument is that the Authority erred by misconstruing what is meant by “credible” in sub-s.473DD(b)(ii). He relied on the following passage in the judgment of Bromberg J in CSR16 v Minister for Immigration & Border Protection [2018] FCA 474:
[41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
This passage was referred to without any apparent disapproval in Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80 at [17].
The applicant argues that the Authority here found that sub-s.473DD(b)(ii) was not satisfied because it did not believe the new information, rather than because it was not capable of being believed.
As the Minister submitted, it is a nice question as to what “capable of being believed” involves. Whatever may be the limits of that notion, I accept the Minister’s submission that, in determining whether new information is “credible”, the Authority is not prevented from having regard to the factual context in which the information arose. The error made by the Authority in CSR16 was that it found that the information was not credible because it had found that the applicant’s fear was not genuine: see CSR16 at [35]. The question of genuineness of a claimed fear was clearly one that had to be determined after the Authority had determined what information it could and could not have regard to and not before it had made that determination.
I also accept the Minister’s submission that the Authority in the present case did not make the same error as was made in CSR16. Here, there were two material facts considered by it: first, that there was no explanation as to why the complaint was lodged at the Police station 3 months and 9 months respectively from the time at which the incidents occurred and, secondly, the applicant’s evidence that he was in regular contact with his family. The suggestion arose in light of that evidence that, had the incidents occurred, the applicant’s family would have told him about them and he would have been in a position to refer to them, even though a complaint had not yet been made to the Police. The Authority assessed the information in the context of those two matters rather than as part of, or in the light of findings made by it, in the determinative stage of the review.
The strength of the applicant’s argument lies in the statement by the Authority that the two factors just mentioned led it “to seriously doubt …”. It could reasonably be argued that these words show that the Authority was determining not whether the information was credible, but whether it believed the information. In my view there is no necessary dichotomy between the two. That much is supported by the authority referred to by Bromberg J at [42]: Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at [17].
In Applicant VEAL of 2002 the Court considered whether the Refugee Review Tribunal had denied a review applicant procedural fairness by failing to disclose information contained in a “dob in letter”. In its decision, the Tribunal referred to the letter but gave it no weight as it was unable to test the assertions contained in it. The Court found that the question of whether procedural fairness required disclosure of information arose before the decision had been made and so, in that case, did not depend on whether or not the Tribunal had relied on the information in it. In arriving at this conclusion, the Court discussed the proposition stated by Brennan J in Kioa v West (1985) 159 CLR 550 at 629 that “in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”:
“Credible, relevant and significant”?
[16] What is meant by “adverse information that is credible, relevant and significant to the decision to be made”? As is always the case, what is said in reasons for judgment must be understood in the context of the whole of the reasons. Examining sentences, or parts of sentences, in isolation from the context is apt to lead to error. In particular, what Brennan J said about “information that is credible, relevant and significant” takes its meaning from the point his Honour had made only a few sentences earlier: that “[a]dministrative decision‑making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made”. Moreover, what is meant by “credible, relevant and significant” must be understood having regard also to the emphasis that his Honour had given earlier in his reasons to the fundamental point that principles of natural justice, or procedural fairness, “are not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise”. Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision‑maker must do in the course of deciding how the particular power given to the decision‑maker is to be exercised. They are to be applied to the processes by which a decision will be reached.
[17] It follows that what is “credible, relevant and significant” information must be determined by a decision‑maker before the final decision is reached. That determination will affect whether the decision‑maker must give an opportunity to the person affected to deal with the information. And that is why Brennan J prefaced his statement about a person being given an opportunity to deal with adverse information that is credible, relevant and significant, by pointing out that there may be information, apparently adverse to the interests of a person, which can and should be put aside from consideration by the decision‑maker as not credible, not relevant, or of little or no significance to the decision to be made. “Credible, relevant and significant” must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision‑maker before making the decision. And the decision‑maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made. References to information that is “credible, relevant and significant” are not to be understood as depending upon whatever characterisation of the information the decision‑maker may later have chosen to apply to the information when expressing reasons for the decision that has been reached.
(Citations omitted, Emphasis in original and added)
It should be noted that, when questions of procedural fairness arise, it is a matter for the Court to determine whether or not the relevant information is “credible, relevant and significant.” That is because it is the Court’s role, and not that of the decision-maker, to determine whether the decision-maker has or has not acted within the scope of the authority given to him or her. However, the situation is different in respect of the question raised by sub-s.473DD(b)(ii). That provision requires the applicant to satisfy the Authority that the new information is “… credible personal information”. With that distinction in mind, the Authority’s reasons are properly read, not as a final conclusion about whether the information was believed, but whether it was capable of being believed. On that basis, the Authority did not act on a misunderstanding of sub-s.473DD(b)(ii) and so did not fall into jurisdictional error.
The second ground is rejected.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 8 November 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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