Ebp19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 459
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EBP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 459
File number(s): ADG 228 of 2021 Judgment of: JUDGE YOUNG Date of judgment: 10 June 2022 Catchwords: MIGRATION - application for judicial review of decision to refuse protection visas - concerning five applicants - where the Immigration Assessment Authority (Authority) affirmed the decision of the delegate - where the applicants sought a second interview by the Authority - where a second interview was refused - where the applicant claims the Authority failed to consider new information - where the applicants claim the Authority failed to properly consider s473DD of the Migration Act 1958 (Cth) - whether there was new information that the applicants could give that was not before the delegate when the decision was made - where there was no informational gap between the delegate and the Authority - grounds not made out – application dismissed with costs. Legislation: Migration Act 1958 (Cth) ss 36, 57, 473CB, 473DA, 473DB, 473DC, 473DD Cases cited: ABT17 v Minister for Immigration and Border Control (2020) 269 CLR 439
ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576
BSS16 v Minister for Immigration and Border Protection [2017] 316 FLR 431
BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94
CSR16 v Minister for Immigration and Border Protection [2018] FCA 474
EPB19 v MICMSMA [2021] FCA 332
Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 23 February 2022 Place: Darwin Counsel for the Applicants: Mr Lawrence Solicitor for the Applicants: Australian Criminal and Family Lawyers Counsel for the Respondents: Mr Swan Solicitor for the Respondents: Sparke Helmore ORDERS
ADG 228 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EBP19
First Applicant
EBS19
Second Applicant
EBT19 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE YOUNG
DATE OF ORDER:
10 JUNE 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants are to pay the costs of the first respondent, to be agreed or taxed.
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 YOUNG
This is an application for judicial review of a decision of the Immigration Assessment Authority (“the Authority”) made on 31 May 2021 affirming a decision of the Minister's delegate made on 28 February 2017 to refuse the applicants protection visas.
The first applicant and his wife, the second applicant, and two of their children, the third and fourth applicants, arrived in Australian by boat from Sri Lanka in 2013. The fifth applicant was born to the first and second applicants in 2015 in Australia.
The first applicant claims to fear harm from persons in Sri Lanka. The other applicants profess to fear harm from the same persons. Their claims are, in practical terms, inseparable from his claims. I will refer to the first applicant for convenience as “the applicant” but that is not to overlook the related claims of the other applicants.
The matter has a lengthy history. After the delegate’s initial decision, the applicant sought a review of the decision by the Authority. The Authority affirmed the decision of the delegate. The applicant unsuccessfully sought judicial review of that decision in the (then) Federal Circuit Court (“the FCC”). The decision of the FCC, adverse to the applicant, was successfully appealed to the Full Court of the Federal Court in BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94. The Court remitted the matter to the Authority for rehearing. The Authority affirmed the delegate’s decision. The applicant unsuccessfully sought a review of that decision in the FCC. The applicant successfully appealed that decision to the Federal Court in EPB19 v MICMSMA [2021] FCA 332. The matter was remitted to the Authority for rehearing. The Authority affirmed the delegate’s decision. In the current proceeding the applicant seeks judicial review of that decision by the Authority.
The Full Court in BYA17, at [7], summarised the applicant’s claims as follows:
The appellants’ claims to fear harm if returned to Sri Lanka stemmed from the husband’s unknowing involvement in drug smuggling and the wrongful accusation of his involvement in people smuggling. That claim was explained in the husband’s statutory declaration lodged with his application for the safe haven visa as follows.
(1) Several years before the safe haven visa application was lodged, the husband accepted a job to work on a fishing boat. After the first trip, the husband became concerned that the owner of the boat, Mr Y, was a drug smuggler and that the ship was being used for that purpose. As a result, the husband declined an offer for further work because of his fear of becoming involved in the criminal activity and the danger that would present to him and his family.
(2) The husband then obtained work elsewhere which required him to be away from his family for an extended period. During this time, a number of men forced their way into the appellants’ home, searched for the husband, and said that they would kill the husband if they found him. The wife was injured in the attack.
(3) Initially the husband was confused as to why these men had attacked his home and made threats. Upon making enquiries, however, he learnt that on the fishing trip which he had declined to join, the boat was intercepted by the authorities who found drugs. As such, he considered that the smugglers must believe that he “dobbed them in”, given the timing and his knowledge of the planned trip.
(4) The husband was afraid that the drug smugglers would carry out their threats against him, given how powerful drug smugglers are in Sri Lanka. As a result he went into hiding while his family were supported by his wife’s family. However, the husband said that his wife and children “saw that they were being watched all the time by men who would drive past, and they could tell that these men were waiting to see if [I] tried to rejoin my family.”
(5) The husband explained that:
15. I did not go to the police at any point during this time because I knew that drug smugglers have connections and influence with politicians and the authorities and I didn’t know who to trust. It is very easy for the Sri Lankan authorities to make a poor person like me “disappear” and I knew that this happened regularly. I had no proof of what happened and no one could help me.
(6) The husband fled to Australia with his family and several other families on a boat which was operated by people smugglers. He later found out that the owner of the boat, Mr K, had falsely reported that the husband had stolen his boat so that Mr K would not be connected to the smuggling operation. The appellant also said that he was told that his details had been given to the Sri Lankan airport with an order for his arrest for the theft of the boat.
(7) He said that he feared that if he returned to Sri Lanka he would be arrested by the CID on arrival and put in jail where he was at risk of being killed. Specifically, he claimed that:
19. … The corrupt officers and authorities who are working with the drug smugglers will then try and kill me. If the CID or authorities don’t kill me, the drug smugglers in prison will kill me because they think that I am the one who dobbed them in. It is not only [Mr Y] who blames me. In [2013], the Sri Lankan authorities arrested many drug smugglers. The smugglers had been running their operations successfully for many years, and so the timing of my involvement with [Mr Y] and his arrest and my departure to Australia means they are convinced that I am responsible. There are therefore many drug smugglers in prison who want to kill me.
20. If I am not jailed by the CID and am released into the community, I will be found by the drug smugglers who are not in prison and will be killed. There is no prospect that I can go into permanent hiding with my wife and children to avoid detection. There is nowhere in Sri Lanka that I will be safe.
The applicants allege that the Authority’s decision is affected by jurisdictional error.
Relevantly, in the hearing before the Authority the applicant sought to rely on new information that in 2016 the applicant’s mother and brother in Sri Lanka were visited by a group of people looking for the applicant. The applicant said the members of the group were armed but were not Sri Lankan officials. He said they interrogated the family about the applicant’s whereabouts and they told them he was in Australia. The family reported the incident to the police but the police refused to give them documentary evidence of the report. The applicant said his mother had not told him about the incident earlier because she did not want to worry him. The applicant said he could not provide the information to the delegate before the delegate’s decision because the delegate had not notified them of the delegate’s doubts about the evidence of the applicant and the applicant did not know he should contact his mother to obtain this new information.
The other issue raised in the application for review is that the first and second applicants had sought to be interviewed by the Authority because, it was submitted, they had not been put on notice by the delegate that their credibility or the plausibility of their narrative was doubted. Further, the first and second applicant had sought to be interviewed because the delegate had wrongly proceeded on the basis that the first applicant had been convicted of serious criminal offences and they had thereby lost a chance to establish their credibility.
Only grounds 2 and 5 of the five grounds of the amended application were pressed:
2. The Tribunal [a reference to the Authority] erred, at [10], amounting to jurisdictional error, by failing to perform the review function, by failing to properly consider the proposed new information and apply section 473DD of the Act, by not undertaking an evaluation of the significance of the proposed new information in the context of the Applicant’s claims and considering how it might support the Applicant’s claims on review to be of ongoing adverse interest to drug smugglers and therefore constitute credible personal information and by not applying the proper test required by section 473DD(b)(ii).
5. The Tribunal erred, at [15] amounting to jurisdictional error, by misunderstanding the purpose of the review function and its relationship to procedural fairness and by failing to properly consider the question of whether an interview should be extended to the Applicants.
Ground 2
The applicant said that the Authority, in considering whether it was satisfied that there were exceptional circumstances to justify considering the new information about the visit of the armed group to his family members in 2016, failed to follow the process required by section 473DD of the Migration Act 1958 (Cth) (“the Act”) which states:
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.
The submission of the applicant is based on passages from a decision of Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 and the 2021 decision of White J in this matter in EPB19, referred to above.
In CSR16 Bromberg J considered the meaning of “credible” in s 473DD(b)(ii). He said:
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” (VEALv 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.
In EPB19 White J considered whether the Authority’s refusal to consider new information constituted jurisdictional error. Although White J referred with approval to the two stage process described in CSR16 the issue in EPB19 was somewhat different. In EPB19 the new information was a prosecutor’s report presented in a Magistrates’ Court in Sri Lanka which, the applicant said, corroborated his claim that he had been falsely accused of stealing the boat on which he and others had left Sri Lanka and corroborated his fear of harm should he return to Sri Lanka.
The jurisdictional error identified by White J was that the Authority did not assess the credibility of the report as was required by s 473DD(b)(ii) but, omitting that stage, went on to consider whether the report indicated any “ongoing adverse interest in the first appellant”: [52]. His Honour concluded that the Authority failed altogether to carry out the assessment required by (b)(ii) and consequently its assessment of whether there were “exceptional circumstances” to justify consideration of the report miscarried.
White J, echoing the language in CSR16, observed, at [48], that the Authority in did not “address the question of whether the information was capable of being accepted as truthful”. White J said:
… But the IAA did not make any express finding concerning the credibility of the information in the Magistrates Court report. This stands in contrast with its assessment of the account of the visit by the armed men to the first appellant’s mother’s home in 2016. In respect of that account, the IAA said at [11] ‘I am not satisfied that this information is credible.
The reference to the visit of the armed men to the applicant’s mother’s home 2016 is a reference to the same information which the Authority in this matter refused to consider because it was not satisfied that there were exceptional circumstances to justify its consideration.
The Authority considered this new information at paragraph [10] of its reasons. It is necessary to reproduce the whole paragraph:
The applicants provided new information that in 2016 applicant 1’s mother and brother were visited by a group of people looking for the applicant. The applicants further state: the group was armed but were not Sri Lankan officials; they interrogated the family about applicant 1’s whereabouts and they told them he was in Australia; the family reported the incident to the police but the police refused to give them a copy of the report; and applicant 1’s mother had not told him about this earlier because she did not want to worry him. The applicants say they could not have provided this information to the delegate before the decision was made because the delegate had not notified them of the issues with the evidence and applicant 1 did not know he should contact his mother to obtain new information. I have some concerns about this explanation as I consider that if the mother and brother thought the visits (sic) by the group of men was serious enough to go to the police about it [it] is unlikely they never mentioned this to applicants 1 or 2. Also, given applicant 1’s claims are to fear revenge from drug smugglers, I do not accept he would not ask his family in Sri Lanka for news on such matters when he spoke with them, particularly around the time he was gathering information to lodge his SHEV application or preparing for his SHEV interview. For the following reasons I also have concerns about the credibility of this information. The information is vague and without detail of exactly when this incident happened beyond being sometime in 2016. If the mother and brother could make a report to the police, I do not accept they could not provide more detail to the applicants, even if they couldn’t send a copy of the police report. As referred to earlier, I do not accept applicant 1’s mother and brother would not have told the applicants about the incident if it was serious enough that they would go to the police about it. It is also not credible the alleged group would not already know he was in Australia if they maintained an adverse interest in him. For these reasons I am not satisfied the information is credible personal information that may have affected the consideration of the claims. Even if I am wrong regarding s. 473DD(b), given my concerns about the credibility and vagueness of the new information, the failure to mention it in the SHEV application or at the SHEV interview, and the lack of satisfactory explanation for not providing it earlier, I am not satisfied there are exceptional circumstances to justify considering this new information.
The applicant submitted that the Authority’s assessment of this information was affected by two errors of principle evident in the paragraph. First, it was submitted, relying on a passage in EPB19 at [19](e), that an assessment for the purposes of s 473DD(b)(ii) requires “an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally:..”. Second, it was submitted that the paragraph fails to reveal the adoption of the necessary two stage process described in CSR16.
Dealing with the first alleged error, the passage quoted from EPB19 is, in my view, a statement drawing attention, in a general way, to the different functions of s 473DD(b)(i) and (ii). The complete paragraph reads:
(e) subparagraphs (b)(i) and (ii) involve different considerations. The former requires a factual enquiry as to whether or not the new information could have been presented to the Minister, whereas the later (sic) requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally: BBS16 v Minister for Immigration and Border Protection [2017] 316 FLR 431 at [105].
While paragraph [10] does not contain an evaluation of the applicant’s claims “more generally”, the passage from EPB19 does not support the submission made by the applicant for the following reasons. In the passage immediately following it White J quoted a passage from judgement of the plurality (Gageler, Keane and Nettle JJ) in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [34] where their Honours identified the three elements in s 473DD (b)(ii):
(f) … all that the IAA needs to be satisfied about in order that the subpara (b)(ii) criterion be met in respect of new information is that: ‘(1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known both of the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.
In paragraph [10] the Authority focused on the first element, whether the new information was credible. It would appear from its silence about them that the Authority, implicitly, accepted that the second and third elements were present. Clearly enough, the matters that will need to be taken into account in assessing each of the elements will be different. An evaluation of the significance of the new information in the context of the referred applicant’s claims obviously will be necessary in assessing whether or not the third element of the criterion is present. However, there is nothing in the text, purpose or context of s 473DD(b)(ii) to suggest that such an evaluation is necessary in respect of the first or second elements. Such an evaluation would be irrelevant to the assessment of whether the information was credible or previously not known to both of the Minister or the referred applicant. There is no error in this part of the Authority’s assessment.
The second alleged error was the Authority’s failure to adopt the two stage process identified in CSR16 and EBP19. It is to be noted that in CSR16 the court was addressing a case where the Authority made an immediate assessment of whether or not the new information was true, overlooking the prior stage of assessing whether it was credible. In EBP19 the court was concerned with a case where the Authority considered whether the new information in the report corroborated the applicant’s claims, rather than assessing whether it was credible.
Here, the Authority did not expressly refer to the two stage process but there is no requirement for it to do so. Whether the Authority has complied with the statutory requirements is to be determined as a matter of substance: EBP19 at [19](i) and cases cited there. More importantly, it was submitted that the Authority’s assessment indicated that it did not assess the credibility of the new information but “instead move[d] to a different and final analysis”. I do not accept that submission. The Authority said it had “concerns about the credibility of this information”. The Authority then listed four characteristics of the information relevant to its credibility, that is, to whether it was capable of belief:
(1)it was vague and without detail about when the incident happened, beyond that it was in 2016;
(2)there was an implausible lack of other detail given that the mother and brother were said to have made a report to the police;
(3)it was implausible that the mother and brother would not have told the applicants about the incident if it was serious enough that they would go to the police about it; and
(4)it was implausible that the alleged group would not already know the applicant was in Australia if they maintained an adverse interest in him.
The Authority assessed, using appropriate language, matters going to the plausibility and internal consistency of the new information, that is, to its credibility. If it was not satisfied that the new information was credible it was not required to move on to the second, deliberative stage. I am not persuaded that the Authority failed to properly perform its statutory task. This ground is not made out.
Ground 5
Ground 5 arises from an assertion that the Minister's delegate did not put to the first and second applicants his doubts about the credibility or plausibility of their claims during their interviews.
The delegate’s relevant findings were as follows:
While I can find country information supporting the claim that fishing boats are used to transport drugs into Sri Lanka, I can find no information to support the claim that the crew of these boats have been used unwittingly.
Country information supplied by the applicant’s agent in the post interview submission also states that fishing boats are used to transport drugs into Sri Lanka.
During the PV interview I found the applicant to be vague and inconsistent in his descriptions of the alleged events. He was unsure of how long he was at sea, the times varying from one night to less than a week. It does not seem plausible that he would have been involved in some sort of drug smuggling operation without any knowledge whatsoever.
I do not accept that the applicant was involved with drug smuggling without his knowledge.
…
Life is in danger from drug and people smugglers
The applicant claims that, as a result of the interception and arrest of the fishing boat he was employed on, his life is in danger. He claims that after the boat was found to have drugs on board his wife was visited by a group of armed unknown men. He claims that his wife was assaulted and questioned as to his whereabouts. The applicant claims that he believes they were associates of the drug smugglers who believed he had informed on them to the police.
During the PV interview with the applicant’s wife …, she claimed that her husband told her not to report the incident to the police, and that she was too scared to go to the police. She claimed that her husband had not told her about the drug smuggling activities.
The applicant claims that when he was arranging to leave Sri Lanka he told the people smuggler that he wanted a good boat. He claims that he sold his house to pay for his family to get on the boat. He claims that when he was in detention on Christmas Island that he was told that the people smuggler, who is the owner of the boat, has reported the boat stolen and that the applicant was the perpetrator. He claims that he was told that the people smuggler and the drug smugglers have joined together to target and kill him.
During the PV interview I asked the applicant how he knew these people were looking for him. He told me that people in the Christmas Island detention centre had told him that the people smugglers report the boat stolen and then claim on insurance. He also stated that his mother and father-in-law in Sri Lanka had told him that people had been asking about his whereabouts.
These alleged events are based on hearsay and rumour that the applicant heard while in detention. There is no evidence before me to show that the applicant has been charged with stealing a boat or that he has been reported to the Sri Lankan authorities.
I do not accept the applicant’s claim that his life is being threatened by drug smugglers and people smugglers I do not find the applicant or applicant 2 as credible witnesses in their relaying of the alleged events.
…
Based on [these findings], I do not accept that he was involved in drug smuggling activities, neither do I accept that his life is in danger from drug smuggling or people smuggling syndicates.
It also appears that the delegate laboured under a misapprehension that the first applicant had been convicted of a serious criminal offence.
The delegate’s reference to the applicant’s criminal matters was under a subheading “Sections 36(1C)(b) and 36(2C)(b)(ii) – Having been convicted of a particularly serious crime, would be a danger to the Australian community.” The delegate went on to say:
As I have found above that the applicant does not engage Australia’s international protection obligations, I have not considered under section 36(1C)(b) or section 36(2C)(b)(ii) of the Act whether, having been convicted of a particular serious crime, the applicant would be a danger to the Australian community. However, information relevant to each of these sections was before the Department and provided to me for consideration.
The delegate was mistaken on this point. In fact, as was noted by the Authority, the first applicant was charged with a criminal offence or offences and, apparently, remanded in custody but the charges were withdrawn by a nolle prosequi.
The applicant’s migration agent submitted to the Authority that the applicant was denied procedural fairness in the interview before the delegate. It was said that he or they (the second applicant also attended the interview) were not put on notice that the plausibility, consistency or level of detail of their claims were in question. It was said, further, that the delegate should have put the country information to which he referred to the applicant as relevant information for the purposes of s 57 of the Act. The migration agent also submitted that, as the criminal charge was of a serious sexual offence against a minor, it was reasonable to assume that, notwithstanding the absence of any indication by the delegate that he had taken that into account, it may have affected the delegate’s consideration, particularly in relation to credibility.
It was submitted by the migration agent that the failure of the delegate to refer to the applicant’s detailed written claims, the brief consideration of credibility issues and the absence of evidence of those matters being put to the applicant so as to provide an opportunity for a contemporaneous response suggested the delegate’s assessment of the applicant’s credibility may have miscarried. It was submitted that these deficiencies could only be cured by a second interview conducted by the Authority.
The Authority dealt with this submission at paragraph [15] of its reasons:
The applicants request they be re-interviewed due to deficiencies in the delegate’s interviews of applicants 1 and 2. They claim the interview was deficient because of a lack of challenge by the delegate at the interviews to put them on notice that their claims or aspects of their claims would not be believed. They say they could have provided their claims in a more meaningful way if the claims were tested more robustly at the interviews. The purpose of the review is to make a fresh decision on the applications, not to identify or remedy breaches of procedural fairness committed by the delegate. If the applicants did not know when making their application that their claims may not be accepted, they were on notice of this once the delegate made his findings and refused the applications. They had an opportunity to comment on those findings in written submissions to the IAA, which they did. They have also provided new information to the IAA to support the claims. There is no indication the applicants have any further new information to support the claims that can only be given by oral interview. Except in limited circumstances, I must review a fast track decision on the papers without interviewing the applicant: s.473DB(1). I have considered the request for an interview but in circumstances where the applicants have been assisted by migration agents to put their claims forward it is not apparent they have any further new information to put at interview, and having regard to the statutory framework under which I must conduct the review, I am not satisfied I should exercise the discretion to invite them to an interview.
The factors which the Authority said it relied on in choosing not to exercise its discretion pursuant to s 473DC (which was not expressly identified but may be presumed to be referred to when the Authority spoke of “discretion”) were:
(a)The purpose of the review is to make a fresh decision, not to identify or remedy procedural unfairness before the delegate;
(b)The applicants became aware after the interview of the points on which the delegate found they lacked credibility;
(c)They had an opportunity to make submissions to the Authority in relation to those points;
(d)They have provided (other) new information, which (implicitly) is intended to bolster their credibility;
(e)There is no indication of further new information that can be given only in oral interview.
(f)It is not apparent there is any further new information;
(g)Section 473DB (subject to other sections of the Act, including s 473DC) requires the Authority to review a decision without interviewing the referred applicant.
As noted, the applicant also submitted in support of his application for an exercise of discretion under s 473DC that the delegate’s assessment of credibility may have been contaminated by his mistaken belief that the applicant had been convicted of a serious criminal offence. Although the Authority did not refer to this point in its consideration of its discretion at paragraph [15] it said at paragraph [17] that the charges had been the subject of a nolle prosequi. It said that the applicant had provided information about the nature of the charge or charges, being a serious sexual offence against a minor. It said the information had no relevance to the review and it gave no weight to these and related matters such as the applicant’s incarceration.
The Authority accepted that the applicant worked on a boat involved in drug smuggling in late 2012, although the Authority found it was unlikely that the applicant was unaware of the drug smuggling. The Authority accepted the evidence of the applicant’s wife, the second applicant, that a group of men came to her house looking for the applicant, assaulted her and made threats against him. The Authority accepted this would have been very frightening for her. The Authority did not accept that the applicant went into hiding after the drug smuggling venture. The Authority did not accept that some 10 years after these events persons involved in drug smuggling would still retain an interest in seeking revenge against the applicant and found the applicants did not face a real chance of harm.
The Authority was satisfied, in relation to the applicant’s claim that he had been falsely accused of stealing the boat in which he came to Australia, that a court document identifying two persons who may have been related to the applicant was new information. The Authority was not satisfied that the applicant’s claim that armed men who were not government officials had interrogated his family in Sri Lanka about his whereabouts was credible personal information and was not satisfied it was new information to be considered.
On the application for judicial review counsel for the applicants submitted that Authority’s failure to get new information by interview was unreasonable because the Authority did not “engage” with why the applicants sought an interview, did not consider the fairness or otherwise of the process before the delegate and whether these factors warranted an interview. He said this was a consequence of a misdirection of law which, in substance, was said to reflected in point (a) above. He also said the Authority failed to understand the significance of the applicant’s submission in relation to the nature of the charges against the applicant, that is, they were of a nature particularly likely to result in “contamination” (my interpretation of the applicant’s counsel’s submission) of the decision making process, particularly in relation to the assessment of credibility. He said that factor militated strongly in favour of exercising the discretion to interview the applicants and its relevance had been misunderstood by the Authority.
Section 473DC of the Act states:
473DC Getting New Information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The applicants relied on Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475. In that case it was held that an unreasonable failure to consider the exercise of the discretion in s 473DC may constitute jurisdictional error. In CRY16 the delegate refused to accept the claims of an applicant for a protection visa to fear harm in Lebanon. On review the Authority accepted the claims but failed to give the applicant an opportunity to comment before concluding that he was not a refugee because it was practicable for him to relocate within Lebanon. In finding that the Authority acted unreasonably the Full Court said:
67It is also relevant that, as explained by Gageler J in Li at [92], reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the authority not to consider the exercise of its power to get documents or information?
...
Further, in our opinion, that the outcome is unfair “in an ordinary sense”, as accepted by Senior Counsel for the Minister, is not irrelevant to whether or not there has been legal unreasonableness in the exercise or non-exercise of statutory powers.
68We accept that the Authority was making a fresh decision and was not restricted to the correction of error in relation to the issues considered by the delegate to be determinative (references omitted).
In CRY16 the Authority failed to give the applicant an opportunity to comment on an important matter. This did not constitute procedural unfairness because the statue provided an exhaustive statement of the requirements of natural justice under Part 7AA of the Act. The Full Court held, nevertheless, that failure gave rise to an obligation for the Authority to consider whether it should get new information relevant to the review: the applicant’s comments about the practicability of internal relocation to Beirut, pursuant to s 473DC. The error related to the principles of reasonableness rather than the principles of procedural fairness. The court accepted that the requirement to consider the exercise of a discretion under s 473DC assumed there was new information to get and, if the information was to be given by the referred applicant, the requirements of s 473DD could be satisfied: [41], [42].
In this case, the consideration by the Authority of the exercise of its discretion under s 473DC focussed on subsection 473DC(1)(a): whether there was new information that the applicants could give that was not before the delegate when the decision was made. The Authority concluded the applicants were unable to give new information.
It is true that the information about the withdrawal of charges against the applicant was not before the delegate, but information that the charges were withdrawn and information about the nature of those charges, was included in the applicant’s submission to the Authority. The Authority noted that information and concluded it had no relevance to the review. There was therefore no scope for getting new information about that matter pursuant to s 473DC, nor was that requested by the applicant.
Although the Authority concluded that the applicants could not give new information in an interview there is binding authority for the proposition that demeanour may constitute new information for the purpose of s 473DD in limited circumstances. However, for the reasons set out below I am not satisfied the Authority’s approach was unreasonable or constitutes jurisdictional error.
The parties did not refer to the High Court’s decision in ABT17 v Minister for Immigration and Border Control (2020) 269 CLR 439. The present case has important legal and factual similarities to ABT17 but significant differences also. In ABT17 the delegate after an interview, including observing what were said to be marks of torture on the applicant’s body, accepted the applicant’s claims of torture. The Authority, without affording the applicant the opportunity to attend an interview, but after considering the audio record, rejected the applicant’s claims as lacking credibility. Each of the Justices held that the Authority’s failure to seek to interview the applicant in these circumstances was unreasonable. The plurality (Keifel CJ, Bell, Gageler and Keane JJ) identified an informational gap between the delegate’s interview in person and the Authority’s review on the papers provided under s 473CB of the Act.
The plurality observed that the question was whether the Authority had failed to comply with the implied condition of reasonableness to bridge the informational gap by interviewing the applicant in person. They said:
18The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course. Contrary to the urging of the appellant, answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA.
…
21Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
22The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate”. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
23 To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
24 The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate.
25 However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
(citations omitted)
There are significant differences between this case and ABT17. Here, the Authority accepted some of the claims rejected by the delegate, including that the applicant had been involved in a drug smuggling venture, and that threats had been made to his wife and she had been assaulted. There was not, as in ABT17, an informational gap between the delegate’s favourable assessment of the applicant’s credibility at an interview in person and the Authority’s unfavourable assessment without an interview.
In ATD19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 576 the delegate had accepted that the applicant had been the victim, to some degree, of family violence at the hands of her husband in Iran. The applicant provided photographs to the delegate which showed scars on her body which, she claimed, were the result of physical abuse by her husband. The delegate appeared to accept that the photographs were genuine but did not accept that the scars were caused by violence inflicted by her husband or that the applicant left Iran to escape family violence. The Authority, on the other hand, did not accept that the photographs depicted the applicant. It did not accept the applicant was credible at all and rejected her claims. On appeal to the Federal Court it was submitted that the decision of the Authority not to interview the applicant was unreasonable because the delegate, having seen the applicant at interview, appeared to accept the photographs were of her and accepted the applicant suffered some degree of family violence.
Rangiah J said that in the light of the reasoning in ABT17 it was necessary to consider:
… first, whether there was an informational gap between the delegate and the Authority; second, whether the Authority could have bridged any such gap by inviting the first appellant to an interview; third, whether any informational gap resulted in the Authority being disadvantaged in comparison with the delegate; fourth, whether the failure to invite the first appellant to an interview was unreasonable; and, fifth, whether that failure was material.
In relation to the first and second issues Rangiah J accepted there was such an informational gap. In relation to the third issue, he noted that the mere existence of an informational gap will not result in the Authority being “disadvantaged in comparison with the delegate” and “the credibility of the referred applicant will not necessarily have a significant bearing on the Authority’s determination of whether the criteria for the grant of a protection visa have been met”: ABT17 at [22]. He observed that in the case before him the photographs may not necessarily have had a significant bearing on the Authority’s determination because there were other unrelated, substantial reasons for not accepting the appellant’s credibility. In relation to the third issue, he observed that the plurality in ABT 17 observed at [25] that the Authority will act unreasonably if, without good reason, it does not interview an applicant in order to gauge demeanour for itself before it rejects the delegate’s favourable assessment of credibility. Rangiah J found there was a good reason for not conducting an interview because the photographs could not have affected the Authority’s decision. He found on the fifth issue that any error was not material for the reasons given in respect of the third and fourth issues.
In this case, addressing the issues identified by Rangiah J, while the delegate interviewed the applicants and the Authority did not, I am not satisfied there is any informational gap between the delegate and the Authority in the sense meant by the plurality in ABT17. Unlike ABT17 and ATD19 the Authority did not reject the delegate’s credibility assessment but, on the contrary, accepted some claims rejected by the delegate. The second issue does not arise because there was no informational gap to be bridged. Similarly, the third issue does not arise because there is no question of the Authority being disadvantaged in comparison with the delegate. In relation to the fourth issue, if there was no informational gap between the delegate and the Authority and no new information available to bridge such a gap there was a good reason for the Authority not to invite the applicants to an interview. In relation to the fifth issue, for these reasons any error by the Authority was not material.
Finally, counsel for the applicants submitted that the Authority’s statement, that the purpose of a review under Part 7AA of the Act is to make a fresh decision, not to identify or remedy procedural unfairness before the delegate, was “an error of principle”. I do not accept that submission. There may, as CRY16 shows, be some overlap between procedural unfairness and unreasonableness, but the appropriate “lens” is unreasonableness. In ABT17 at [5] the plurality quoted from the judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17]:
[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it.
This is in substance what the Authority said.
This ground is not made out.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young. Associate:
Dated: 10 June 2022
SCHEDULE OF PARTIES
ADG 228 of 2021 Applicants
Fourth Applicant:
EBR19
Fifth Applicant:
EBU19
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8
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