EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs
[2025] FedCFamC2G 816
•30 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EJQ18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 816
File number(s): ADG 322 of 2018 Judgment of: JUDGE LUCEV Date of judgment: 30 May 2025 Catchwords: MIGRATION – Judicial review application – decision of Immigration Assessment Authority – citizens of Sri Lanka – ethnic Tamils – whether failure to obtain, supply and have regard to relevant material – whether material provided by the referred applicant to the person making the decision before the decision was made – whether any other material that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review – whether failure to consider all integers of claims made – claim of inability to subsist – claim of extortion – whether failure to have regard to evidence – whether unreasonableness – whether jurisdictional error
WORDS AND PHRASES - “to the person making the decision” – “engaging with the applicant and the application” – “material that is in the Secretary’s possession or control”
Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 473BB, 473CA, 473CB, 473DB, 473DC, 473DD, 474, 476
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11, 12
Immigrants and Emigrants Act 1948 (Sri Lanka)
Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407
Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8
Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142; (2005) 216 ALR 1; (2005) 84 ALD 545
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 630; (2003) 75 ALD 630
ASO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1310
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82; (2019) 376 ALR 93; (2019) 168 ALD 401
BBI18 v Minister for Home Affairs [2020] FCA 84
BEL16 v Minister for Home Affairs [2019] FCA 1678; (2019) 80 AAR 170; (2019) 167 ALD 295
BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74
CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1
CNY17 v Minister for Immigration & Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367
CSV15 v Minister for Immigration and Border Protection [2018] FCA 699
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641
DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353
DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148; (2022) 294 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
DUZ17 v Minister for Home Affairs [2019] FCA 1593
ECE17 v Minister for Immigration [2019] FCCA 1223
EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153
EGY18 v Minister for Home Affairs [2019] FCCA 1874
EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
EVA17 v Minister for Immigration and Border Protection [2018] FCAFC 214; (2018) 262 FCR 304
EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Jata v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1998
Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12
Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 199 ALD 446
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; (1980) 31 ALR 666; 4 ALD 139; (1980) 1A IPR 708
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289
Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10; (2005) 138 LGERA 11
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464
MZYXR v Minister for Immigration and Citizenship [2013] FCA 252; (2013) 141 ALD 276
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536
NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419; (2006) 93 ALD 333
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582; (2022) 96 ALJR 497; (2022) 400 ALR 417; (2022) 178 ALD 304
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206
Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364; (2003) 75 ALD 411
Singh v Minister for Home Affairs [2019] FCAFC 3; (2019) 267 FCR 200
Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365; (2014) 142 ALD 150
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556
Tickner v Chapman (1995) 57 FCR 451; (1995) 133 ALR 226; (1995) 89 LGERA 1
Zentai v O’Connor (No 3) [2010] FCA 691; (2010) 187 FCR 495; (2010) 270 ALR 293; (2010) 116 ALD 476
Division: Division 2 General Federal Law Number of paragraphs: 104 Date of last submission/s: 19 March 2024 Date of hearing: 19 March 2024 Place: Perth Counsel for the Applicants: Mr G Schipp Solicitor for the Applicants: Australian Presence Legal Counsel for the First Respondent: Ms L Helsdon Solicitor for the Respondents: Sparke Helmore Lawyers Second Respondent: Submitting appearance, save as to costs ORDERS
ADG 322 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EJQ18
First Applicant
EJT18
Second Applicant
EJU18 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
30 MAY 2025
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the Second Respondent made on 23 July 2018.
2.A writ of mandamus issue requiring the matter to be remitted to the Administrative Review Tribunal in accordance with rr 11 and 12 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth) to re-determine the review of the decision of the Delegate of the First Respondent made on 1 June 2018, and to determine it according to law.
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 LUCEV
INTRODUCTION
Before the Court is an amended application for judicial review filed 27 December 2023 (“Amended Judicial Review Application”). The Amended Judicial Review Application is brought pursuant to s 476(1) of the Migration Act 1958 (Cth) (“Migration Act”). The Amended Judicial Review Application seeks judicial review of a decision of the Immigration Assessment Authority (“Authority Decision” and “Authority” respectively) dated 23 July 2018. The Authority Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the now Minister for Immigration and Citizenship (“Minister”) refusing to grant the applicants EJQ18, EJT18, EJU18, EJV18 and EJX18 (collectively the “Applicants”) Safe Haven Enterprise (Class XE) (Subclass 790) visas (“SHE Visa/s”).
At hearing:
(a)the Court Book (“CB”) was marked as Exhibit 1; and
(b)the affidavit of Shamili Kugathas sworn on 27 December 2022 (“Kugathas Affidavit”), annexing a copy of various interviews with EJQ18 was read by the Applicants.
References to statutory provisions in these Reasons for Judgment are, unless otherwise indicated, references to the statutory provisions of the Migration Act, and to the provisions thereof as they were at the time of the Authority Decision.
BACKGROUND
The background to the matter prior to the making of the Authority Decision is as follows:
(a)on 8 June 2013 the first applicant EJQ18 and his wife EJT18, both citizens of Sri Lanka, arrived at Christmas Island, together with their eldest two children, EJU18 and EJV18: CB 333. Their youngest child, the fifth applicant, EJX18 was subsequently born in Australia;
(b)participated in an Unauthorised Maritime Arrival & Induction Interview (“Arrival Interview”) on 18 May 2014;
(c)on 28 November 2016 the Applicants applied for the SHE Visas. The Applicants’ claims can be summarised as follows (at CB 99-105):
(i)EJQ18 is a Tamil and originates from the Central Province of Sri Lanka but does not have Sri Lankan citizenship and is stateless;
(ii)EJQ18 lived for a time in the Northern Province with his family and as a result, would be imputed with links to the Liberation Tigers of Tamil Eelam (“LTTE”);
(iii)EJQ18’s father was beaten by the Sri Lankan Army (“SLA”) and the family fled to India in 1990. They lived in an Indian refugee camp from that time onwards. EJQ18 did not return to Sri Lanka;
(iv)in approximately 2010-2011 EJQ18 tried to travel from India to Italy on a false passport but was stopped at the airport and arrested, and he spent around six months in jail and his name was published in the media in relation to the case;
(v)EJQ18 participated in hunger strikes and protests with other Sri Lankan refugees in his refugee camp in India. The Indian police intelligence service (“Q Branch”) kept him under surveillance in the refugee camp and made his life difficult. He clashed with a Tamil NGO called “OFFER” when he refused to attend a Sri Lanka Independence Day ceremony in 2009;
(vi)EJQ18 applied for, and was granted, a Sri Lankan passport in or around 2012 because he was being repeatedly questioned by the Q Branch regarding his continued stay in India, but had no intention of using his passport to return to Sri Lanka;
(vii)EJQ18 fears being harmed by the Sri Lankan authorities for reasons of:
(A)his Tamil race;
(B)his imputed political opinion as an LTTE supporter because he lived in LTTE controlled areas;
(C)because his details were disclosed as part of the Department’s data breach in February 2014 (“Data Breach”);
(D)as a returning failed asylum seeker; and
(E)on the basis that he will have an adverse profile because of his court case and protests; and
(viii)EJQ18’s children claimed that as they had not lived in Sri Lanka before they would be mistreated: CB 162;
(d)on 1 June 2018 the Delegate refused to grant the SHE Visas: CB 333-367. The Delegate was not satisfied the Applicants would face a real chance or risk of serious or significant harm. On the same day the matter was referred to the Authority for review under Pt 7AA; and
(e)on 25 June 2018 the Applicants provided submissions and new information to the Authority: CB 388-468;
(f)on 23 July 2018 the Authority Decision was to affirm the Delegate’s Decision: CB 472-494.
AUTHORITY DECISION
In the Authority Decision the Authority:
(a)had regard to the material referred to it under s 473CB and to the Applicants’ submissions: CB 474 at [4]-[5];
(b)did not have regard to the Applicants’ new information as it said it did not satisfy either limb of s 473DD: CB 474 at [6];
(c)in circumstances where EJQ18 had been granted a Sri Lankan passport whilst living in India rejected EJQ18’s claim that he was stateless and found that the Applicants were Sri Lankan nationals: CB 478 at [21];
(d)accepted, consistent with country information, that the Applicants moved to India in 1990 for their safety and security, where they lived until mid-2013 as refugees: CB 478-479 at [23]-[24];
(e)accepted that EJQ18 attempted to depart India illegally in 2010-2011 and was arrested and imprisoned for six months, but found that the articles and publications relied on by EJQ18 did not disclose his full name or image and it was not satisfied the Sri Lankan authorities were aware of the publications or had identified him as a result of the publications, as claimed: CB 479 at [25];
(f)accepted that EJQ18 received additional attention from Q Branch but did not accept this extended to Q Branch informing the Sri Lankan authorities of his presence and activities in India. It found EJQ18’s claim in this regard was speculative. It also found EJQ18’s unsubstantiated claims that his telephone calls and movements were monitored were an overstatement of the level of interest in him: CB 479 at [26]. The Authority found there was no foundation for EJQ18’s claim that his court case may be reopened: CB 479-480 at [27];
(g)accepted that EJQ18 and EJT19 participated in mass protests in India and that EJQ18 participated in two hunger strikes, but was not satisfied that this involvement caused any ongoing difficulties or consequences for the Applicants: CB 480 at [28];
(h)accepted that EJQ18 encountered OFFER staff on occasions, but based on country information and EJQ18’s evidence did not accept that these interactions would have been reported to the Indian or Sri Lankan authorities: CB 480-481 at [29];
(i)summarised its factual findings and having regard to relevant country information, found that there was no impediment to EJQ18 applying for an identity document on return to Sri Lanka: CB 482-484 at [36]-[40];
(j)having considered a range of country information which pointed to an improved security situation in Sri Lanka, was not satisfied that the Applicants faced a real risk of harm, including torture, on return to Sri Lanka due to the difficulties they faced in India and limited involvement in protest activities, combined with their profile of being Tamils from the Northern province who left Sri Lanka thirty years ago: CB 486 at [46];
(k)accepted that the third, fourth and fifth applicants, EJU18, EJV18 and EJX18 may have an accent, but did not accept that they would be treated negatively on this basis and found that this claim was speculative: CB 486 at [48];
(l)accepted that EJQ18 and EJT18 may be identified as having departed Sri Lanka illegally in contravention of the Immigrants and Emigrants Act 1948 (Sri Lanka) (“I&E Act”): CB 486 at [49], and having regard to relevant country information (see CB 486-488 at [52]-[55]), the Authority found that EJQ18 and EJT18 may be detained for a short period in an airport holding cell whilst waiting to be brought before a Magistrate;
(m)was not satisfied that questioning at the airport, investigation, imposition of a fine or the potential of being held in detention amounted to serious harm and that both EJQ18 and EJT18 had family in Sri Lanka who may be able to act as guarantors if required: CB 487-488 at [55];
(n)that the provisions of and penalties provided for in the I&E Act were laws of general application and any process or penalty the Applicants may face would not constitute persecution: CB 488 at [56];
(o)accepted the Applicants were affected by the Data Breach but did not accept the Sri Lankan authorities would be aware of the family’s claims for protection as a result of the Data Breach: CB 488 at [57];
(p)accepted that as returning asylum seekers, the Applicants may be subject to a period of surveillance from the Sri Lankan authorities and social stigma in the north of Sri Lanka, but was not satisfied that this would amount to serious harm, and did not accept that the challenges the Applicants may face in re-establishing themselves amounted to serious harm: CB 488 at [59];
(q)found that the Applicants did not meet the criterion in s 36(2)(a): CB 488 at [60];
(r)in considering the Applicants’ claims under the complementary protection criterion, relied upon its anterior findings in concluding that the Applicants did not face a real risk of significant harm because they were Tamils from the North who departed Sri Lanka illegally, had lived in India for an extended period of time, or were briefly engaged in protest activities: CB 489 at [63];
(s)whilst accepting that the Applicants may be identified as returning asylum seekers, was not satisfied that any monitoring or social stigma they may face would amount to significant harm: CB 489 at [64]), and was not satisfied that the questioning, imposition of bail or a fine, and the potential of being held in detention for a short period, amounted to significant harm: CB 489-490 at [64]-[65], and
(t)found that the Applicants did not meet the criterion in s 36(2)(aa): CB 490 at [66].
GROUNDS AND CONSIDERATION
The Amended Judicial Review Application contains three grounds of review the terms of which are referred to at [8] (Ground 1), [59] (Ground 2) and [85] (Ground 3) below.
Jurisdictional error
For present purposes it suffices to observe that:
(a)this Court may set aside the Authority Decision upon judicial review if it is affected by jurisdictional error: ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506; (2021) 95 ALJR 441; (2021) 390 ALR 590; (2021) 177 ALD 464 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ; and
(b)it is well established that an applicant for judicial review under s 476 bears the onus of establishing jurisdictional error in the administrative decision sought to be reviewed: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594; (2011) 85 ALJR 327; (2011) 273 ALR 223; (2011) 119 ALD 1 at [67] per Gummow J (Heydon J agreeing at [91] and Crennan J agreeing at [92]); Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8; (2015) 148 ALD 206 at [24] per French CJ, Bell, Keane, and Gordon JJ.
Ground 1
Ground 1 of the Amended Judicial Review Application alleges that there was a failure by the Authority to obtain, supply and have regard to material relevant to the Authority’s review under s 473CB.
Applicants’ submissions
The Applicants’ submissions in relation to ground 1 are as follows:
(a)by operation of s 473CA the Minister was required to refer the matter to the Authority. The Minister generally does so by completing the relevant form. That form does not appear in this Court Book, although it is sometimes included as a matter of course;
(b)the requirements for referral are found in s 473CB(1). The Minister must provide:
(i)material provided by the referred applicant(s) to the person making the decision before the decision was made;
(ii)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(c)the provision of the information in s 473CB(1) is mandatory. The consequence is that if the matter was not validly referred to the Authority, the Authority may not have power to undertake its review under s 473DB, which it can only do on a decision referred to it under s 473CA (see s 473DB(1)): EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; (2019) 268 FCR 299; (2019) 163 ALD 422 (“EVS17”) at [35] per Allsop CJ, Markovic and Steward JJ, subject to materiality;
(d)the adherence to s 473CB(1) is critical in the context of Pt 7AA, which requires the matters to be determined on the papers: CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 at [105] per Derrington J. This means that there is a heightened importance to the strict adherence by the Department to the requirements of s 473CB: AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82; (2019) 376 ALR 93; (2019) 168 ALD 401 (“AUF18”) at [70] per Allsop CJ, Jagot and Moshinsky JJ, where it was observed that section 473CB(1)(c) “should be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority)”;
(e)the Applicants submit that a breach of s 473CB(1)(b) is more significant than a breach of s 473CB(1)(c). The difference is as outlined in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41] per Thawley J, where the Court said:
41.…(5) A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process – cf: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].
42. In amplification of the last proposition:
(1)If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.
(f)there are two critical documents that the Authority does not appear to have, and thus does not appear to have had regard to, and which were described as the “MP’s Letter” and the “UNHCR Documents”;
(g)in relation to the MP’s Letter:
(i)EJQ18 alleged that having participated in hunger strikes while in the refugee camp in India he was at risk on his return to Sri Lanka as a person with “anti-government” sentiment. It must be recalled that he said he was a member of the “committee” and was an organiser of, and participant in, a number of hunger strikes, which were reported in the media and in which protestors had banners and posters. He said he was interviewed and on television. In support of that allegation, he said that he had provided a letter from an “MP” that his brother had obtained “stating that who ever participated in the hunger strike was at risk in Sri Lanka”. EJQ18 said that he had provided the MP’s Letter to his case manager. The interviewer specifically declined to hear more information about this, on the basis that a document had been provided, however, that document does not appear in the CB and has not been considered by the Authority;
(ii)the Authority dealt with the participation of EJQ18 and EJT18 in the hunger strikes at CB 480 at [28] where the Authority said that their participation did not result “in any difficulties”. That finding is problematic in itself, given that it is not difficulties with the Indian Government that is relevant, but even if one assumes that this relates to the Sri Lankan authorities, the contents of the MP Letter must bear on the question;
(h)in relation to the UNHCR Documents:
(i)the Applicants gave permission for documents to be obtained from UNHCR: CB 175. EJQ18 said that in about 2010 he made an application to come to Australia legally as a refugee (“2010 Application”). EJQ18 said that the Australian authorities asked him to contact UNHCR, which he did. The 2010 Application was unsuccessful, but included the allegation that EJQ18 was stateless;
(ii)this is important information that the Authority should have had access to, and about which the Department was aware. The importance of the application cannot be understated because the Authority placed some importance on the fact that at EJQ18’s first interview in Australia (the Enhanced Security Interview (“ES Interview”)) he said he had Sri Lankan citizenship: CB 476 at [15], but in the context of the 2010 Application this is incorrect;
(iii)it is also relevant to note that the Authority made erroneous findings in relation to EJQ18’s citizenship, in that:
(A)it found that his “siblings” had Sri Lankan citizenship. This is not correct. One of EJQ18’s brothers (as well as his father) was alleged to not have citizenship: Arrival Interview Transcript;
(B)in coming to the conclusion that EJQ18 had citizenship, it conflates the terms “nationality” and “citizenship”, relying in particular on EJQ18’s temporary passport; and
(C)if EJQ18 had citizenship, why was there no response to his application made to the Sri Lankan High Commission while in India?;
(iv)in addition, the Authority should, when it became aware that it did not have all relevant information, have requested this information from the Department under s 473DC.
Minister’s submissions
The Minister’s submissions in relation to ground 1 are as follows:
(a)the Applicants assert that:
(i)the Secretary failed to refer an “MP letter” to the Authority under s 473CB;
(ii)the Secretary failed to refer any documents received from the UNHCR to the Authority under s 473CB; and
(iii)the Authority unreasonably failed to exercise its s 473DC power to obtain the above documents from EJQ18;
(b)it is convenient to first summarise some relevant principles about the operation of s 473CB. Relevantly, under s 473CB(1)(b) and (c), the Secretary must give to the Authority material provided by the referred applicant(s) to the person making the decision before the decision was made and any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(c)turning first to the MP’s Letter, on the material before the Court, that letter was only mentioned by EJQ18 on one occasion, and that is in the Arrival Interview (on 18 May 2014). The exchange that took place at the Arrival Interview involving the MP’s Letter was relevantly as follows: Arrival Interview transcript, Kugathas Affidavit page 111:
Interviewer: All right. Now – Is there anything else you’d like to tell me that we haven’t already talked about? …
Interpreter: My brother is living in Sri Lanka, and he got a letter from an MP, member of Parliament. This is the MP’s name.
Interviewer: Tell me why first. Where are you leading to with this?
Interviewer: That MP confirmed those who participated in protest or hunger strike are in risk in Sri Lanka. (It appears as though this passage has been incorrectly attributed to the interviewer)
Interviewer: No, it’s all right. Don’t worry about it. There’s a reason, I’ll explain that in two seconds. I’m not just cutting you dry. …
Interviewer: I also heard that you’ve given a copy of that to your case manager anyway.
(d)the Department’s written record of the Arrival Interview summarises the above exchange as follows at CB 26 under the question “Is there anything I have not asked that that you would like to say”:
My brother lives in Sri Lanka and he got a letter from an MP stating that who ever participated in the hunger strike was at risk in Sri Lanka. This has been provided to Case Manager.
(e)the Department says (but not on affidavit) that it has no record of the MP’s Letter, nor anything recording that EJQ18 provided any letter to his Case Manager. The Arrival Interview Transcript simply records that the interviewer “heard” that EJQ18 had provided a letter to his Case Manager (and it is unclear whether the interviewer heard it from EJQ18 himself or some other source). There is no independent evidence as to if and when EJQ18 provided the MP’s Letter to any Departmental officer;
(f)putting aside the lack of evidence about the MP’s Letter, there is no error in the Secretary not referring the MP’s Letter to the Authority given:
(i)to the extent the Applicants contends that the MP’s Letter is captured by s 473CB(1)(b), that sub-section only applies to “material provided by the referred applicant to the person making the decision before the decision was made” (emphasis added). Even if one were to accept that that provision is not to be interpreted narrowly or literally to only apply to the specific delegate who considered the SHE Visa application at first instance: BBI18 v Minister for Home Affairs [2020] FCA 84 at [21]-[22] per Greenwood J, it is straining the meaning of the bolded phrase above to include any Departmental officer over two and a half years before the SHE Visa application was even lodged (the Arrival Interview took place in May 2014, and the SHE Visa application was lodged in November 2016). The Secretary cannot reasonably be expected to excavate all the material in the Department’s possession from prior to the lodging of a visa application in order to locate documents which an applicant may have referred to or provided to a particular officer at some point;
(ii)aside from this singular reference to the MP’s Letter in the Arrival Interview, the MP’s Letter was not otherwise referred to at all during the visa and review process; and
(iii)EJQ18 has also not filed a copy of the MP’s Letter to demonstrate the materiality of the alleged error. Without a copy of the letter the onus of proving the materiality of any error cannot be discharged: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80; (2022) 96 ALJR 737; (2022) 403 ALR 398; (2022) 178 ALD 536 (“Nathanson”) at [1] per Kiefel CJ, Keane and Gleeson JJ. The Court should readily infer that any error (which is not apparent or conceded) would not have realistically resulted in a different decision in circumstances where EJQ18 did not make any reference to the MP’s Letter aside from at the Arrival Interview in 2014 and that the MP’s Letter was simply about an MP’s view that “those who participated in protest or hunger strike are in risk in Sri Lanka”. Whether those who participated in a protest or hunger strike were at risk was a matter for the Authority to consider after a review of the evidence, and in particular country information. An MP’s opinion would have been of minimal weight, especially if that MP’s opinion was formed in or around 2014, many years before the Authority Decision;
(g)in relation to the UNHCR Documents there is absolutely no evidence that the Department received any documents in response to the Department’s correspondence to the UNHCR: CB 175. Furthermore, EJQ18 made no reference to the importance of UNHCR Documents during the entirety of the visa and review process. In the absence of any evidence about what the UNHCR Documents would have included (if they even exist), EJQ18 cannot discharge the onus of establishing the materiality of any error;
(h)as for the final limb of this ground in relation to the Authority not having exercised its discretion under s 473DC to obtain new information from EJQ18, the Court is to ask itself this question: is an intelligible justification evident for the Authority to not have exercised its s 473DC discretion to obtain new information? If the answer to that is yes, then there is no unreasonableness: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 (“ABT17”) at [20] per Kiefel CJ, Bell, Gageler and Keane JJ; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [76] per Hayne, Kiefel and Bell JJ. The Minister contends that the evident and intelligible bases for the Authority to not have exercised its s 473DC power are that:
(i)the Applicants were legally represented and had already submitted detailed new information: CB 392-468;
(ii)at no point did the legally represented Applicants request that the Authority obtain new information from them. There was therefore nothing “triggering” the Authority to exercise its discretion: DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [51] per Beach J. It is well-settled that it is for an applicant to present their case;
(iii)the MP’s Letter and UNHCR documents (if they exist) were not referred to at all in the Applicants’ submissions, and did not form a central part of their case; and
(iv)under Pt 7AA, as a default position, the Authority was to conduct its review on the papers without obtaining new information: s 473DB.
Consideration – ground 1
Sections 473CA and 473CB provide as follows:
473CA Referral of fast track reviewable decisions
The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.
473CB Material to be provided to Immigration Assessment Authority
(1)The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
(d) the following details:
(i)the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;
(ii)the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iii)the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;
(iv)if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;
(v)if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.
(2)The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.
A mandatory requirement
The use of the words “must give” in s 473CB(1) imposes upon the Secretary a mandatory requirement to provide the material referred to in sub-paras (b) and (c) thereof: DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148; (2022) 294 FCR 1 (“DNU20”) at [36] per Bromberg, Moshinsky and Hespe JJ; EVS17 at [32] per Allsop CJ, Markovic and Steward JJ.
A breach of s 473CB(1)(b) or (c) by the Secretary in not providing the material referred to in sub-paras (b) and (c) thereof is an error, but whether the error is jurisdictional depends upon whether the error was material: DNU20 at [43] per Bromberg, Moshinsky and Hespe JJ; EVS17 at [41]-[42] per Allsop CJ, Markovic and Steward JJ. In BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74 at [62] per Allsop CJ, Kerr and Mortimer JJ the Full Court of the Federal Court observed that:
…In the absence of some kind of allegation of a conscious attempt to mislead the Authority or to withhold information from it, the legal consequence on judicial review (if any) of the Secretary’s non-compliance with the s 473CB(1) duty will rest upon the effect of the absence of the material concerned on the Authority’s conduct of the review. …. Not every instance of non-compliance will have an effect, or a possible effect, on the Authority’s performance of its statutory task.
MPs Letter
In relation to the MP’s Letter that letter was raised by EJQ18 at his Arrival Interview on 18 May 2014. The following exchange (the first part of which appears at [10(c)] above) took place at the Arrival Interview involving the MP’s Letter: Arrival Interview Transcript, Kugathas Affidavit at pages 111-112 (references to pauses and “[foreign language]” have been omitted):
Interviewer: All right. Now – Is there anything else you’d like to tell me that we haven’t already talked about? …
Interpreter: My brother is living in Sri Lanka, and he got a letter from an MP, member of Parliament. This is the MP’s name.
Interviewer: Tell me why first. Where are you leading to with this?
Interviewer: That MP confirmed those who participated in protest or hunger strike are in risk in Sri Lanka. [It appears as though this passage has been incorrectly attributed to the interviewer]
Interviewer: No, it’s all right. Don’t worry about it. There’s a reason, I’ll explain that in two seconds. I’m not just cutting you dry. …
Interviewer: I also heard that you’ve given a copy of that to your case manager anyway.
Interpreter: Case manager, yes.
Interviewer: Sorry.
Interpreter: Case manager.
Interviewer: All right. Now, is there anything else you need to tell me today?
Interviewee: No.
Interpreter: No.
Interviewer: No? That’s actually the end of the interview. I just need to get your signature to say that you’ve attended today’s interview.
There is no evidence that the explanation referred to for “cutting … EJQ18 dry” was ever given to EJQ18 by the interviewer.
The Arrival Interview Form at CB 3-26 is a summary of the Arrival Interview reduced to question and answer form. Each page of the Arrival Interview form is marked “Sensitive” in red lettering. At page 24 of the Arrival Interview Form at CB 26 summarises the above quoted exchange from the Arrival Interview as follows under the question “Is there anything I have not asked that that you would like to say”:
My brother lives in Sri Lanka and he got a letter from an MP stating that who ever participated in the hunger strike was at risk in Sri Lanka. This has been provided to Case Manager.
Other than as set out above there has been no other reliance upon the MP’s Letter by the Applicants until the filing of the Amended Judicial Review Application, and no other reference to it by the Department, the Delegate or the Authority.
The question arises whether the MP’s Letter was:
(a)material provided by the referred applicant to the person making the decision before the decision was made: s 473CB(1)(b); or
(b)any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review: s 473CB(1)(c).
At the Arrival Interview EJQ18:
(a)referred to his brother having obtained the MP’s Letter;
(b)twice said that he had provided the MP’s letter to his Case Manager: Arrival Interview Transcript, Kugathas Affidavit at pages 111-112.
There was no challenge to or disputing of that evidence by the interviewer at the Arrival Interview.
EJQ18 also signed the Arrival Interview Form in which he said that in the MP’s Letter the MP had stated that “who ever participated in the hunger strike was at risk in Sri Lanka” and that the MP’s letter “has been provided to Case Manager”: CB 26.
In the Minister’s submissions it was suggested that there was no independent evidence that the MP’s Letter had been provided to the Case Manager (or anyone else in the Minister’s Department). The Minister put on no evidence that the MP’s Letter was not given to the Case Manager, or as to any searches for the MP’s Letter amongst the Minister’s records to corroborate or support the submission that there was no independent evidence that the MP’s Letter had been provided to the Case Manager (or anyone else in the Minister’s Department). The difficulty with the Minister’s submission is that there is independent evidence and it comes from the mouth of the interviewer in the Arrival Interview who said “I also heard that you’ve given a copy of that to your case manager anyway” (emphasis added): Arrival Interview Transcript, Kugathas Affidavit at page 111. The use of the words “I also heard” and “anyway” suggests that it was a person other than the one participating in the Arrival Interview, and specifically one other than EJQ18, who had told the interviewer about the MP’s Letter. The Minister’s alternative submission was that the interviewer might have heard about the MP’s Letter from EJQ18. That alternative submission does not dispute the existence of the MP’s Letter or that it was given to the case manager, but rather how the interviewer came to hear of the MP’s Letter. That alternative submission is also beset by problems, namely:
(a)that it is not what was said by the interviewer;
(b)if words to the effect suggested by the Minister were said it is more likely that the interviewer would have said something like “You have told me that …” or “I have already been told by you that …”; and
(c)the Minister put on no evidence:
(i)to support the submission that the interviewer might have heard about the MP’s Letter from EJQ18; or
(ii)as to when and how it is that the interviewer and EJQ18 might have spoken about the MP Letter’s separate to the Arrival Interview, and if they did speak as to what was said between them.
In all the circumstances the Court is satisfied that the MP’s Letter exists, and that it was given by EJQ18 to his Case Manager.
The question then is whether the provision of the MP’s Letter to the Case Manager can be considered to be “to the person making the decision”.
The Minister submitted that:
(a)it strains the meaning of s 473CB(1)(b) to include any Departmental officer within the meaning of the phrase “to the person making the decision” when the Arrival Interview took place in May 2014, over two and a half years before the SHE Visa application was lodged in November 2016; and
(b)the Secretary cannot reasonably be expected to “excavate” all the material in the Department’s possession from prior to the lodging of a visa application in order to locate documents which an applicant may have referred to or provided to a particular officer at some point.
It is important to bear in mind that EJQ18 gave the MP’s Letter not to “any Departmental officer” but to his “Case Manager” at some point prior to the Arrival Interview. The importance of the Arrival Interview and material provided and referred to at the time of the Arrival Interview can be discerned from the Arrival Interview Form, which at CB 3, under the heading “Important Information” provides that:
I need information about you and your arrival in Australia. This interview will be recorded. This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.
You are expected to give true and correct answers to the questions I ask. You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.
The Department is careful to protect the privacy of all information given by you during this interview. This information will not be made available to authorities in the country of your habitual residence.
Records which might be vital to a person’s application for refugee or complementary protection in Australia cannot simply be discarded or treated as if they are irretrievable or disposable by those in the Department to whom they are entrusted. That is particularly so in this case where the MP’s Letter was given to EJQ18’s “Case Manager”. What would be the purpose of giving the MP’s Letter, plainly intended and easily understood to be supportive of some form of refugee or complementary protection, to a “Case Manager” if not to be supportive of some future application for refugee or complementary protection? That is particularly so where, as here, the subject matter of the MP’s letter that “who ever participated in the hunger strike was at risk in Sri Lanka”: CB 26, was the very reason that EJQ18 had given earlier in the Arrival Interview: CB 15, for not wanting to return to Sri Lanka, namely:
Because we participated in a severe hunger strike against the Sri Lankan Government in 2009 and we were interviewed by the media and the Sri Lankan Govt would have seen.
(see also Arrival Interview Transcript, Kugathas Affidavit at pages 69-70).
The Minister’s submission is curious insofar as it suggests a possible need to “excavate” the MP’s Letter from the records kept by the Secretary. That submission again does not suggest that the MP’s Letter does not exist, but rather that it might be too hard to find (although it is not apparent that anyone in the Department has searched for it). And, yet, the Arrival Interview Form, produced more than two and a half years before the SHE Visa application was made is able to be “excavated” and appears in the CB.
In BBI18 at [20]-[27] the Federal Court observed that:
20As to s 473CB(1)(b), it would indeed be odd to attribute such a narrow construction to the section as that adopted by the primary judge. First, subsection (1)(b) refers, in literal terms, to material provided “by the referred applicant” but it cannot be thought that material provided by an authorised agent falls outside the scope of those words simply because the material is not literally provided by the referred applicant in strict compliance with those words.
21The subsection also refers to material provided by the referred applicant “to the person making the decision”. If that phrase is to be construed in a way that confines its operation, as the primary judge thought, to material provided by the referred applicant to the “actual decision‑maker”, that is, the “particular” named person making the decision (which, in this case, is delegate “Stephen”), the provision would have no operation should it turn out to be the case, for one reason or another (such as sickness, accident, death, workloads or file reallocations) that delegate “Julie”, who was dealing with the matter and being provided with material, was unable to make the decision and another decision‑maker, delegate “Joe”, was now required to assume responsibility for deciding the application and making the decision. Could the Minister or the Department reasonably or rationally contend that material provided to the Department previously or to the Minister or to Julie would now have to be re‑provided in its entirety to delegate “Joe” for the material to constitute statutory “material” provided by the referred applicant “to the person making the decision” for the purposes of s 473CB(1)(b) of the Act?
22The text of s 473CB(1)(b) is not reductionist in the sense of reducing its scope to material provided to a “named person” but purposive in bringing within the statutory conception of “review material” all material provided by an applicant for a Safe Haven visa to the Departmental officers or the Minister or a delegate of the Minister engaging with the applicant and the application so as to comprehend the body of material to be put before “the person” who ultimately “makes the decision” before the decision is made.
23The appellants also say that s 473CB(1) ought to be construed in light of the Code of procedure for dealing fairly, efficiently and quickly with visa applications established under the Act: Part 2, Div 3, Subdiv AB. The appellants say that since s 52 regulates how a visa applicant may communicate with the Minister and s 55 permits a visa applicant to give the Minister any additional relevant information to which regard must be had, it would be unlikely that the Parliament intended to enable a visa applicant to give information to the Minister and require it to be taken into account but yet limit s 473CB(1)(b) to only that class of material that happened to be provided to a particular named delegate who ultimately makes the decision, and to exclude material otherwise put forward by the referred applicant for consideration.
24The applicants contend that once material has been provided to the departmental officers or the Minister or his delegate (in a way permitted by s 52 or in some other way permitted by the Minister), s 473CB(1)(b) is engaged as material has been provided by the referred applicant to the decision‑maker and if that material, so provided, does not make its way into the hands of the actual decision‑maker for one reason or another, it nevertheless remains statutory “review material” which must be given to the IAA by reason of s 473CB(1) recognising that the IAA must review a fast‑track reviewable decision referred to it under s 473CA by considering the review material provided to it under s 473CB: see s 473DB.
25As to the facts of this case, the statement of BBI18 accompanying the Safe Haven visa application refers, at paras 2 and 3, to the Entry and Screening Interviews with BBI18 and the Initial Statements. That reference engaged, for the purposes of the Safe Haven visa application, the Initial Statements which had been provided to the Minister’s departmental officers on or about 24 October 2013 and 7 July 2014. To the extent that the delegate thought that the Initial Statements were confined to the “[Screening] decision” (see [7] of these reasons) and the IAA accepted that position by “not asking for the documents” (see [8] of these reasons), and thus the Initial Statements were thought to fall outside the scope of the Safe Haven visa application, the position, in truth, is that the Initial Statements had been expressly brought within the Safe Haven visa application by BBI18’s statement attached to the application itself.
26Thus, the Initial Statements formed part of the material provided by the referred applicant to the person making the decision before the decision was made for the purposes of s 473CB(1)(b).
27In any event, the Initial Statements, if not falling within s 473CB(1)(b), fell within s 473CB(1)(c) as “any other material” in the Secretary’s possession or control as material which is relevant to the review of the referred decision and material the Secretary ought to be taken to have considered to be relevant at the time of referral of the refusal decision to the IAA. Although the primary judge describes a possible decision by delegate “Stephen” to the effect that the Initial Statements were considered, by him, not to be relevant to the review of the refusal decision as, “a mistake of the Secretary” (PJ at [67]), I accept that the express cross‑reference to the Entry and Screening Interviews and, more relevantly, the Initial Statements as part of the supporting statement for the Safe Haven visa application, meant that no delegate in the position of “Stephen” could reasonably have considered that the Initial Statements, as part of a review of the refusal decision, could not have been capable of assisting the IAA or capable of engaging at least the possibility that the Initial Statements taken together with the other review material could be probative of a fact in issue in the course of the review.
To the extent that it is determinative of a relevant issue BBI18 is binding on this Court: Suh and Others v Minister for Immigration and Citizenship [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; CEPU (Western Australia Division) v Fortescue Metals Group Ltd [2016] FCCA 1227; (2016) 310 FLR 1 at [50]-[55] per Judge Lucev.
In BBI18 the Federal Court gave detailed consideration to the question of whether the material provided to a person other than “the” delegate can be considered to have been provided “to the person making the decision”. In BBI18 at [22] per Greenwood J the Federal Court it was determined that “all material provided by an applicant for a Safe Haven visa to the Departmental officers or the Minister or a delegate of the Minister engaging with the applicant and the application” (emphasis in original) was material provided “to the person making the decision” for the purposes of s 473CB(1)(b). Thus “all material” provided to Departmental officers or the Minister or a delegate is caught if any one or more of those persons are “engaging with the applicant and the application”. It is the latter phrase - “engaging with the applicant and the application” - which encapsulates the crux of the Minister’s argument that, at least, s 473CB(1)(b) does not apply where, as here, a document was provided to a Departmental officer when the making of the SHE Visa application was still more than two and a half years away. The Court notes that this point did not arise in this context in BBI18 because in BBI18 the documents provided in October 2013 and July 2014 had been referred to in statements by BBI18 accompanying BBI18’s SHE Visa application made in September 2016: BBI18 at [3]-[4] per Greenwood J, that reference thus engaging the earlier provided documents for the purposes of s 473CB(1)(b): BBI18 at [27] per Greenwood J.
On the basis of BBI18 it would therefore appear that the phrase “engaging with the applicant and the application” requires that:
(a)there be an application for protection attaching the documents or expressly referring to them; or
(b)that the documents be provided to a Departmental officer or the Minister or a delegate sometime after the application is made and before the referral of the application to the Authority.
The above interpretation of the phrase “engaging with the applicant and the application” which requires that there be an application made by the applicant is consistent with the provisions of s 473CB(1)(b) which refers to “material provided by the referred applicant” and s 473BB which defines “referred applicant to mean “an applicant for a protection visa …”, from which it can be inferred that only an applicant who has made an application who is caught by s 473CB(1).
In this case the MP’s letter was referred to at the Arrival Interview but has not otherwise been referred to until raised in this Amended Judicial Review Application. It was not therefore provided in circumstances where EJQ18:
(a)was “engaging with the applicant and the application” as describer in BBI18 at [22] per Greenwood J: or
(b)fitted the description of “referred applicant” for the purposes of s 473CB(1)(b).
As such, it follows that the MP’s Letter given to the Case Manager by EJQ18 did not form part of the material provided to the person making the decision for the purposes of s 473CB(1)(b).
As in BBI18 it is, however, necessary to consider s 473CB(1)(c), and whether the provision of the MP’s Letter to the Case Manager brings the MP’s Letter within the description “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”.
In AUF18 the facts were analogous to those in this case. In short, AUF18 claimed in a statutory declaration that his mother had reported his claims to the Human Rights Commission of Sri Lanka, and that these documents (that is the documents comprising the Human Rights Commission claims) had been provided by AUF18 to the Department shortly after he arrived in Australia, but the documents had not been provided to the Authority by the Secretary.
In AUF18 at [6] per Allsop CJ, Jagot and Moshinsky JJ, the Full Court of the Federal Court found that:
… s 473CB(1)(c) imposes an obligation on the Secretary to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority) and the Secretary breached this obligation. In the circumstances of this case, this had the consequence that the Authority failed to carry out the review required by Pt 7AA of the Migration Act.
In AUF18 at [70]-[72] and [74]-[76] the Full Court of the Federal Court said as follows:
70.However, it is also not the case, and the Minister does not suggest, that s 473CB(1)(c) only requires the Secretary (or his or her delegate) to consider documents of which he or she is aware. In order to give the provision a sensible operation, it is necessary for some process to be put in place to bring to the attention of the Secretary (or his or her delegate) potentially relevant documents. Unless there is such a process, and it involves the taking of reasonable steps to identify potentially relevant documents, the provision cannot achieve its purpose. Thus, the provision should be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department's possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority). This is consistent with the principle expressed by Thawley J in EMJ17 at [41(4)]: “An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c).” That proposition was approved by all members of the Full Court in CQR17: see at [28] per Jagot J (with whom Reeves J agreed at [4]); and at [80] per Derrington J.
71.Applying these propositions in the present case, in our view the Secretary failed to take reasonable steps to locate potentially relevant documents in the Department’s possession or control. The Secretary (or his or her delegate) could have performed, but did not perform, a search of the Department’s electronic database using the appellant’s client identification number, and this would have yielded the Human Rights Documents. It is not suggested that carrying out a search using the appellant’s client identification number would have been difficult or particularly time-consuming. It would seem to be an obvious way of checking whether there were other client files for the appellant, potentially containing relevant documents. As the circumstances of this case show, it could not be assumed that the client file associated with the appellant’s visa application was the only client file for the appellant, or that it contained all documents relevant to the review.
72.Alternatively, the delegate could have carried out a search using the appellant’s nominal roll number (or Boat ID). This too would have yielded the Human Rights Documents. Again, it is not suggested that carrying out a search using the appellant's nominal roll number would have been difficult or particularly time-consuming. To the extent that the Minister's submissions suggest that this search would have involved considering all of the documents associated with the boat that the appellant arrived on, that does not appear to be correct. As the cross-examination of Mr Lochland (referred to above) makes clear, the nominal roll number or Boat ID (i.e. QVA056) is specific to the appellant. That number could, therefore, have been used to locate documents specific to the appellant.
…
74.The Minister's second reason is that nothing the appellant said to the delegate, the Department or the Authority could have put anyone on notice that he had previously given the Human Rights Documents to the Department. While this may be accepted, it needs to be borne in mind that the process established by Pt 7AA, whereby the Authority usually conducts its review on the papers, does not provide the same opportunity as a hearing for clarification of matters such as whether or not the Human Rights Documents had been previously provided to the Department. In the context of a hearing, it would be commonplace for a matter such as this to be raised by the decision-maker, giving the applicant an opportunity to respond. This type of interaction is less likely to occur in the course of a review on the papers. This underlines the importance of the Secretary's delegate taking reasonable steps to identify potentially relevant documents as an antecedent step to determining what documents to provide to the Authority.
75.The Minister's third reason is that the systems in place to identify documents were not inherently unreasonable. The Minister submits that it was not unreasonable for the Secretary (or his or her delegate) to focus on the file that was before the delegate exercising power under s 65 of the Migration Act. While it may be accepted that it was not unreasonable for the Secretary's delegate to focus on the file that was before the delegate, this does not answer the question whether the Secretary's delegate took reasonable steps to locate other potentially relevant documents. Further, insofar as the systems in place involved the person who made the decision on the visa application completing the Referrals Checklist, and the Secretary's delegate relying on that checklist, that was insufficient to constitute the taking of reasonable steps to locate potentially relevant documents in the circumstances of this case.
76.For these reasons, in our view, the Secretary failed to take reasonable steps to identify potentially relevant documents in the Department's possession or control for the purposes of considering whether the documents were relevant to the review to be conducted by the Authority, amounting to a breach of the obligation in s 473CB(1)(c).
In this case the provision of the MP’s Letter to the Case Manager means that the MP’s Letter is in the possession or control of the Secretary. There has been no evidence from the Minister indicating to the contrary.
Section 473CB(1)(c) was referred to in CNY17 v Minister for Immigration & Border Protection [2019] HCA 50; (2019) 268 CLR 76; (2019) 94 ALJR 140; (2019) 375 ALR 47 at [6] per Kiefel CJ and Gageler J, and the following observations, albeit made in dissent, are relevant (emphasis added):
6.By operation of s 473CB(1)(c), the review material which it is the duty of the Secretary to give to the Authority also includes “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”. To consider material that is in the Secretary’s possession or control to be relevant to the review within the meaning of the provision, the Secretary (who can be expected ordinarily to act through a delegate) obviously needs to form the opinion that the material is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. Compliance with the duty to provide such material to the Authority accordingly necessitates that the Secretary or delegate of the Secretary turn his or her mind to the range of material that is in the Secretary’s possession or control which pertains to the referred applicant in order to determine whether or not to form that opinion in relation to the whole or some part of that material. The opinion of the Secretary that material is relevant to the review (so as to be required to be given to the Authority) or is not relevant to the review (so as not to be required to be given to the Authority) must be formed reasonably and on a correct understanding of the law.
(see too ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439; (2020) 94 ALJR 928; (2020) 383 ALR 407 at [6] per Kiefel CJ, Bell, Gageler and Keane JJ).
On the evidence before the Court the MP’s Letter was plainly relevant to the issues before the Authority and to be determined by the Authority as it went directly to the claim that EJQ18, and possibly EJT18, would suffer harm on their return to Sri Lanka, because of their involvement in the hunger strikes and protests in India, and there would be no evident or intelligible justification for the Secretary to decide that the newspaper article was not relevant to the Authority’s review.
The Secretary failed to provide the MP’s Letter to the Authority in contravention of the Secretary’s obligation under s 473CB(1)(c). In the circumstances that was an error.
The question then becomes was the error material?
The concept of materiality has developed over time, with different modes of emphasis and expression adopted by individual Justices of the High Court. To that end, in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 (“LPDT”) (delivered just over three weeks after this case was heard), the High Court set out the following relevant principles:
(a)the requirements of materiality will depend on the nature of the statutory framework and the nature of the error identified in the decision subject to review: LPDT at [5]-[7] per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ:
(i)some errors are so fundamental to the nature of the decision-making task that it will be unnecessary to establish their materiality in order to properly characterise those errors as jurisdictional;
(ii)some errors are such that their materiality will be inherent within their very nature. For instance, legal unreasonableness with respect to a decision will, by definition, be material to the ultimate outcome; and
(iii)other errors are such that it will be necessary for an applicant for judicial review to establish (on balance of probabilities) that, but for the error, a different ultimate outcome could (not would) have been reached had that error not been made (classic materiality); and
(b)where an applicant is erroneously denied an opportunity to make a submission or provide evidence, it is not necessary for that applicant to establish how, if they had that opportunity, they may have used it. It suffices for that applicant to show that there might have been matters the applicant might have advanced using that opportunity that might have assisted their case in a manner that might have led to a different result. This is not an onerous task: Nathanson at [127] per Edelman J, as cited by the plurality in LPDT at [15] and fn 24 per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ.
The Minister’s submitted that EJQ18 has also not filed a copy of the MP’s Letter to demonstrate the materiality of the alleged error and that without a copy the onus of proving the materiality of any error cannot be discharged: Nathanson at [1] per Kiefel CJ, Keane and Gleeson JJ. This submission is defeated by the facts in this case, and also by the law. The thus far uncontroverted evidence in this case is that the MP’s Letter asserts that “who ever participated in the hunger strike was at risk in Sri Lanka”: CB 26. It is also to be noted that the MP’s Letter is said to be from a Member of Parliament and is thus evidence not readily to be disregarded. With the benefit of this evidence, which went to a central claim made by EJQ18, it is possible that the Authority could (not would) have arrived at a different outcome, and in those circumstances the law is that the error is material, the test for materiality not being onerous: Nathanson at [127] per Edelman J; LPDT at [15] and fn 24 per Kiefel CJ, Gordon, Edelman, Steward, Gleeson, and Jagot JJ.
In contravention of the Secretary’s obligation under s 473CB(1)(c) the MP’s Letter was not provided to the Authority, and that was an error which was material and therefore jurisdictional. It follows that in relation to the alleged contravention of s 473CB(1)(c) jurisdictional error has been established.
In circumstances where the MP’s Letter is in the possession of the Secretary, and further where jurisdictional error has already been established in relation to a contravention of the Secretary’s obligation under s 473CB(1)(c) it is unnecessary to determine if the Authority ought to have exercised its discretion under s 473DC to obtain new information from EJQ18.
UNHCR Documents
In relation to the so-called “UNHCR Documents” the Applicants gave permission for documents to be obtained from UNHCR: CB 134 and 175. In separate “Consent to Share and Release Information” forms (“Consent Form”) signed by EJT18 and EJQ18 respectively on 17 November 2016 consent was given for the release of information between the Australian Government (represented by the Department) and the UNHCR. There is no evidence, nor even suggestion, as to what, if any, information, might have been released by either the Department or the UNHCR under the terms of the Consent Form. Indeed on the evidence it is not apparent that the 2010 Application was ever made. In a Statutory Declaration made on 17 November 2016 (the same day as the SHE Visa application was made) EJQ18 says at CB 103 at [46] that:
I then tried applying for a visa to come to Australia. The Australian government told me that I had to approach the UNHCR. I approached the UNHCR but they told me they couldn't help us.
This evidence is confirmed and taken further by the answers to questions in the SHE Visa Application in which EJQ18 says that he:
(a)applied for an Australian visa outside of Australia, but did not visit an Australian High Commission, Embassy, Consulate or Service Delivery partner to obtain a visa to come to Australia, and was never interviewed in connection with the issuance of an Australian visa: CB 83 at Qs 66-68; and
(b)he was never registered with the UNHCR and never assessed for refugee status by the UNHCR: CB 85 Qs 75 and 76.
In EJT18’s SHE Visa Application she says that:
(a)she applied for an Australian visa outside of Australia, but did not visit an Australian High Commission, Embassy, Consulate or Service Delivery partner to obtain a visa to come to Australia, and was never interviewed in connection with the issuance of an Australian visa: CB 145 at Qs 66-68; and
(b)she was never registered with the UNHCR and never assessed for refugee status by the UNHCR: CB 147 Qs 75 and 76.
On the basis of the above evidence it cannot be said that there are any documents which would fall within the description “UNHCR Documents” which might be in the possession or control of the Secretary for the purposes of s 473CB(1)(c). Nor is it apparent that EJQ18 or EJT18 ever actually applied for an Australian visa: the evidence suggests that they may have “tried” to do so, but in trying were sent or referred to the UNHCR by representatives of the Australian Government. Even if EJQ18 and EJT18 had “applied” it is not evident to who they “applied” if they did not visit an Australian High Commission, Embassy, Consulate or Service Delivery partner and were never interviewed in connection with the issuance of an Australian visa.
Ultimately it appears that the UNHCR Documents are relied upon for an assertion made therein that EJQ18 was stateless and that in 2010 that he asserted that he was stateless.
EJQ18’s claims about his citizenship were dealt with by the Authority, in particular at CB 477-478 at [19]-[21] where the Authority observed and found as follows (footnotes omitted):
19.On 9 January 2018, Applicant 1 submitted a statutory declaration regarding his citizenship. He states that his previous claims that he was a Sri Lankan citizen (in his arrival interview, in his written statement of claims and in the SHEV application) were in fact incorrect. He repeated his previous statements about his family’s history, and the inconsistent application of citizenship to some of his siblings. He further claimed that his parents had lodged an application for citizenship on his behalf at his birth in 1974 however the Sri Lankan authorities had refused to recognise him as a Sri Lankan citizen at the time and had issued him a birth certificate stamped with the words “Indian Tamil”. He stated that he had been given an opportunity to register as a Sri Lankan citizen while he was living in the Indian refugee camp however he never received any citizenship documentation from the Sri Lankan authorities. He concluded that he held neither Sri Lankan nor Indian citizenship.
20.A copy of Applicant 1’s now expired Sri Lankan passport that was included with the referred material shows that the passport was an N series passport and that the document was issued under the ‘refugee repatriation program’ and valid for one year. Country information indicates that to obtain an N series passport the applicant must provide an application form, two photographs, a Sri Lankan birth certificate, a copy of their proof of status in the country of residence abroad, a copy of their Sri Lankan National Identity Card (if held) and the passport fee. Country information confirms that Sri Lankan refugees residing in Tamil Nadu are able to apply for identity documentation from the Sri Lankan Consulate office in Chennai.
21.Applicant 1 considers he does not hold Sri Lankan citizenship and has suggested he is stateless. I note the Sri Lankan authorities granted him a Sri Lankan temporary passport in 2012 with “Sri Lanka“ identified in the nationality field and I am of the view that the Sri Lankan authorities were satisfied regarding his nationality at the time that they granted the passport. Country information indicates that “Indian Tamils” (also known as “Plantation Tamils”, Hill Country Tamils” or “Up-Country Tamils”) are seen as part of the overall Tamil population of Sri Lanka. I am not satisfied that the inclusion of the reference “Indian Tamil” in Applicant 1’s birth certificate of itself indicates that he is not a Sri Lankan national. Despite the notation “Indian Tamil” on his birth certificate, the applicant was granted a Sri Lankan passport when he applied for one and while he has asserted that he is stateless, I am not satisfied that this is the case. I am satisfied that Applicant 1, along with the other applicants, are nationals of Sri Lanka and that Sri Lanka is the receiving country for the purposes of this review.
It is relevant to observe that in his SHE Visa application made on 17 November 2016 EJQ18 had claimed to be a Sri Lankan citizen: see, for example, CB 74 at Q 18. In 2012 EJQ18 also had issued to him a temporary Sri Lankan passport to enable him to return to Sri Lanka (which he did not do).
Plainly, on the facts, there was more than sufficient material for the Authority to conclude that EJQ18 was a citizen of Sri Lanka, and not a person who was stateless. On that basis the UNHCR Documents (if they exist) would not be material as the Authority has plainly considered EGQ18’s assertion that he is stateless, and it is not apparent that the making of another assertion to the same effect would alter the Authority’s finding as to EJQ18’s citizenship given the positive evidence relied upon (including EJQ18’s admission of Sri Lankan citizenship) to make that finding.
In the above circumstances there was no error in the Authority Decision in relation to the alleged failure to refer to any documents received from the UNHCR to the Authority under s 473CB or the alleged failure to exercise power under s 473DC to obtain the UNHCR Documents from EJQ18 (it not being apparent and there being no evidence that EJQ18 had any UNHCR Documents in any event).
Ground 1 is therefore made out in part only, but the part in respect of which it is made out establishes jurisdictional error on the Authority Decision as identified at [47] above.
Ground 2
Ground 2 of the Amended Judicial Review Application alleges that the Authority failed to consider all integers of the Applicants’ claims.
Applicants’ submissions
The Applicants’ submissions in relation to ground 2 are as follows:
(a)generally:
(i)a decision maker is required to give proper consideration to an applicant’s claims in the sense referred to in Tickner v Chapman (1995) 57 FCR 451; (1995) 133 ALR 226; (1995) 89 LGERA 1, FCR at 462 per Black CJ as involving “an active intellectual process directed at that representation or submission”. This must include all integers of the claim: Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J. Failure to take into account information may be jurisdictional error depending on the nature and importance of the evidence: Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (“SZSRS”) at [34] per Katzmann, Griffiths and Wigney JJ. The difference between claims and evidence is illusory;
(ii)submissions of substance must be addressed: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 317 ALR 365; (2014) 142 ALD 150 at [81] per Griffiths J. This can also be described as a failure to provide proper reasons or procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 (“Dranichnikov”) at [24] per Gummow and Callinan JJ (with whom Hayne J agreed at [95]), and at [78] per Kirby J; and
(iii)the Applicants made specific claims that were not addressed by the Authority;
(b)in relation to the inability to subsist:
(i)the Applicants specifically submitted that they would be unable to subsist if returned to Sri Lanka: CB 292-293;
(ii)DFAT materials before the Authority confirm that the Applicants will have difficulty on their return given the length of time that they have been away from Sri Lanka: CB 394. It is to be remembered that EJQ18 and EJT18 have never lived in Sri Lanka as adults, and their children have never been there;
(iii)the Applicants inability to subsist was not merely because of the time away from Sri Lanka, but also associated with their ethnicity as “Indian Tamils”, who, it was alleged face a greater difficulty than Sri Lankan Tamils: CB 392;
(iv)their land has been confiscated; and
(v)this integer, and the elements of it, were not considered;
(c)in relation to extortion:
(i)EJQ18 made claims and submissions in relation to extortion. EJQ18 said that he was at risk of extortion as a person who had been in a Western country for a substantial period: CB 297. As part of that risk EJQ18 claimed in his SHE Visa application that he would be asked for money by the Sri Lankan authorities. The Delegate was aware of this claim and referenced it at CB 342; and
(ii)this claim was not assessed by the Authority.
Minister’s submissions
Ground 2 having been made out in part it remains to consider whether the error was material, and therefore jurisdictional. The principles with respect to materiality are set out at [45] above.
There was a possibility that a different outcome of the Authority Decision could (not would) have resulted had the Authority considered and evaluated the extortion claim arising from the Applicants’ status as returnees from a wealthy country. The error is therefore material and, consequently, jurisdictional.
Ground 3
Ground 3 of the Amended Judicial Review Application alleges that the Authority failed to have regard to all of the evidence, or was unreasonable, in regard to its findings on EJQ18’s profile.
Applicants’ submissions
The Applicants’ submissions in relation to ground 3 are as follows:
(a)a decision maker must reason and act reasonably within the meaning of Li. Making findings based on unwarranted assumptions may also ground jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175; (2018) 74 AAR 121; (2018) 353 ALR 641;
(b)speculation should not form the basis of a decision, which must “proceed by reference to “rationally probative evidence” rather than on mere “suspicion or speculation”: Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41; (1980) 31 ALR 666; 4 ALD 139; (1980) 1A IPR 708; FLR at 62 per Deane J (with whom Evatt J FLR at 57 agreed), and see also DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353;
(c)the Authority made findings in regard to EJQ18’s profile, essentially that he did not have a profile of interest to the Sri Lankan authorities, including findings that he was not identifiable to the Sri Lankan authorities. These findings are not based on the totality of the evidence or are otherwise unreasonable, and the Authority has not properly considered the factors that indicate that EJQ18 is at elevated risk. Relevant aspects of the evidence include:
(i)the Applicants are described as “Indian Tamils” and EJQ18 as “stateless;
(ii)EJQ18 was a member of the refugee committee in India. He was not merely a participant in the hunger strike, but an organiser. There were a number of strikes. The protests were covered by the media, and EJQ18 was interviewed: CB 26. He said that he was:
(A)“on papers and on the television”; and
(B)“campaigning against what the Sri Lankan government was doing. I was having a fasting thing, propaganding (sic) with fasting without eating…I led the whole camp into a propaganda”;
(iii)the protestors did not merely undertake a hunger strike, but also had banners and posters;
(iv)EJQ18 has a criminal conviction in India. However, it is not merely the fact of the conviction, but the subject matter that is relevant. The offence was serious – EJQ18 was detained for 6 months;
(v)EJQ18 was invited to, and did, apply for Sri Lankan citizenship, and did not receive a response. The implication is that the “invitation” was a ruse to monitor individuals and obtain information. In any event, he can now be easily identified as a person who resided in the Indian refugee camp and connected to his activities in the protests and his legal case;
(vi)EJQ18 said that he was under surveillance. This was not accepted, on the basis that he had not provided independent evidence. He was found to have exaggerated his claim (that is an adverse credibility finding). However, such a finding is unreasonable: the point of covert surveillance is that there is no independent evidence. EJQ18 gave his reasons as to why he thinks he was monitored: BEL16 v Minister for Home Affairs [2019] FCA 1678; (2019) 80 AAR 170; (2019) 167 ALD 295;
(vii)EJQ18 admits to Tamil separatist sentiment: CB 99. Tamils, he says, should be able to govern themselves. EJQ18 said he would be the subject of harm if he expresses that sentiment. Consistent with Appellant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473; (2003) 78 ALJR 180; (2003) 203 ALR 112; (2003) 78 ALD 8 (“S395/2002”), it was relevant to consider why he would not speak of his views if he were to return to Sri Lanka. This was not done. EJQ18 said he would not express his views because of the real risk that as a necessary and foreseeable consequence of being removed to Sri Lanka he would otherwise suffer significant harm;
(viii)it is inconceivable that the Sri Lankan authorities would not have monitored the activities of the diaspora in an Indian refugee camp. There is country information as to the surveillance by the Sri Lankan authorities. It is accepted that the Sri Lankan authorities are concerned with the re-emergence of Tamil separatism;,
(ix)it is inconceivable that the Sri Lanka authorities would not have been aware of media articles regarding a Sri Lankan’s attempts to flee and to make further enquiries of that person. EJQ18 said that the protests coincided with the matter being raised with the United Nations, so the Sri Lankan authorities could not have been unaware;
(x)the media and academic reports regarding EJQ18 were easily sufficient to identify him. Further, while the Authority found that the hunger strikes caused no “adverse interactions” or “difficulties for the Applicants”: CB 480 at [28], this finding misses the point. EJQ18 had cleared his protest with Indian authorities on the basis that no adverse comments would be made about India, so it is hardly surprising that there were no adverse interactions with India. This is an irrelevant consideration when determining how the Sri Lankan authorities would view his activities, particularly as a leader. The Authority accepted that EJQ18 was part of the management committee: CB 483 at [37], and EJQ18 said he was a spokesperson;
(xi)there is no consideration as to the likelihood of communication between Q Branch and Sri Lankan authorities. India is not a signatory to the 1951 Refugee Convention. To the extent that any consideration of the question might be inferred from CB 483 at [37], it is a conclusion without reasoning;
(d)even if the Authority is correct, no consideration is given as to the possibility that the Sri Lankan authorities may later become aware of EJQ18’s criminal activity and involvement in anti-government activities. A proper consideration of the matter requires that regard be had to the “reasonably foreseeable future”: MZYXR v Minister for Immigration and Citizenship [2013] FCA 252; (2013) 141 ALD 276 (“MZXYR”). The Authority has found that the Applicants will be questioned on their arrival, and it may be supposed that given the fact that they have never lived in Sri Lanka as adults, more rigorous enquiries will be made. Given that the Applicants have family members still residing in refugee camps in India, it is likely that it will be determined that the Applicants also resided there. It must be remembered that EJQ18 was on the refugee committee and it would not take much imagination to connect him with the hunger strikes/protests, as well as his criminal conviction and the media/academic commentary in relation thereto. The exercise of determining the reasonably foreseeable future has not been undertaken; and
(e)in all the circumstances, the Authority has not taken into account all of the evidence regarding EJQ18’s profile and has otherwise considered the claim unreasonably.
Minister’s submissions
The Minister’s submissions in relation to ground 3 are as follows:
(a)the following principles should be borne in mind about the alleged errors made by the Authority in its consideration of the evidence and the reasonableness of its findings:
(i)it is well-settled that a decision maker is not required to refer to or make findings upon every piece of evidence: WAEE at [46] per French, Sackville and Hely JJ. Neither is it necessary for a decision maker to give a line-by-line refutation of evidence: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 (“Durairajasingham”) at [65] per McHugh J. A failure to consider evidence would only be a jurisdictional error if that evidence was of central importance to an applicant’s claims or to the decision-maker’s decision: SZSRS at [46]-[56] per per Katzmann, Griffiths and Wigney JJ;
(ii)in relation to unreasonableness, a decision which lacks an evident and intelligible justification is unreasonable: Li at [76] per Hayne, Kiefel and Bell JJ;
(iii)a decision which no reasonable person could have arrived at, or one which is arbitrary or capricious, is unreasonable: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228; (2002) 123 FCR 298; (2002) 193 ALR 449; (2002) 69 ALD 1 at [26] per Black CJ;
(iv)a decision-maker is allowed an area of decisional freedom within which reasonable minds might properly differ: Li at [28] per French CJ, [65]-[66] per Hayne, Kiefel and Bell JJ. Put differently, unreasonableness is not established simply because the Court would have taken a different view of the matter: Li at [30] per French CJ, [75] per Hayne, Kiefel and Bell JJ, and [107] per Gageler J;
(v)emphatic disagreement with a factual finding does not demonstrate any unreasonableness: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 (“Eshetu”) at [40] per Gleeson CJ and McHugh J; and
(vi)the test for unreasonableness is “necessarily stringent”: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541; (2018) 92 ALJR 713; (2018) 75 AAR 434; (2018) 357 ALR 408; (2018) 163 ALD 1 (“SZVFW”) at [11] per Kiefel CJ, “extremely confined”: SZVFW at [52] per Gageler J or requires something “in the realm of the extraordinary”: SZVFW at [70] per Gageler J;
(b)the Minister contends that the Authority properly considered the Applicant’s evidence and made reasonable findings because:
(i)the Authority’s reasoning on EJQ18’s Sri Lankan nationality and citizenship are set out in detail at CB 476-478 at [13]-[21]. In essence, based on country information that Indian Tamils were considered a part of the Tamil population of Sri Lanka and EJQ18 previously held a Sri Lankan passport, it did not accept EJQ18’s claim to be stateless. That finding was open to it on the evidence. The Authority was “not required to uncritically accept an applicant’s claims”: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 (“Randhawa”); FCR at 451 per Beaumont J;
(ii)the Authority clearly considered EJQ18’s claims about his hunger strikes and protest activity: see CB 475 at [8], 480 at [28], 483 at [38], and 486 at [46]. The Applicants’ submission about the lack of mention of banners and posters is beside the point;
(iii)EJQ18’s arrest, detention for six months and Court case were specifically referred to at CB 475 at [8] and 479 at [25]. It cannot sensibly be suggested that, having referred to those issues expressly, the Authority then somehow failed to consider them;
(iv)the steps EJQ18 explored to obtain Sri Lankan citizenship were considered at CB 477 at [19]. Again, it is difficult to see how the Authority can be said to have failed to consider that evidence;
(v)to the extent the Applicant’s quibble with the Authority’s finding about the lack of evidence that the Sri Lankan authorities kept EJQ18 under surveillance during his time in the Indian refugee camps, the Authority gave rational and cogent reasons for its findings at CB 479 at [26], including that there was “no real substantiating detail” about those claims;
(vi)in relation to EJQ18’s purportedly “separatist sentiment”, that was not a claim advanced by the Applicants, and nor did they refer to or rely upon the principles in S395/20002 as now claimed. This contention is an example of reconstruction of claims on judicial review: ASO20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1310 at [103] per Derrington J;
(vii)to the extent the Applicants’ contends that the Authority’s various findings were “inconceivable” (for example the Sri Lankan authorities’ specific knowledge about various media articles), the Authority’s findings were based on, among other things, the country information reports before it. It is well-settled that the choice and selection of country information was a factual matter for the Authority: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419; (2006) 93 ALD 333 at [81] per Young J; Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29; (2005) 79 ALJR 1142; (2005) 216 ALR 1; (2005) 84 ALD 545 at [8] per Gleeson CJ; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ;
(viii)it is difficult to see why the Applicants claim, contrary to the Authority’s finding, that articles about mass protests by some 3000 Tamil refugees “were easily sufficient to identify …[EJQ18]”. In circumstances where the Authority noted the obvious, which was that EJQ18 and EJT18 were not singled out by the articles, the Authority’s finding at CB 480 at [28] was rational and reasonable;
(ix)it is unclear why EJQ18 contends that the Authority needed to consider the “likelihood” of communication between Q Branch and the Sri Lankan authorities. The Authority found that there was no real substantiating detail to corroborate EJQ18’s claim that he was under heavy surveillance from Q Branch, and that surveillance information was fed back to the Sri Lankan authorities: CB 479 at [26]. In the absence of corroborative evidence, it was entirely reasonable and rational for the Authority to have rejected that claim;
(c)as for the assertion that the Authority needed to consider “the possibility that the Sri Lankan authorities may later become aware of EJQ18’s criminal activity and anti-government activities” purportedly based on MZYXR, that assertion does not demonstrate any error in the Authority Decision. The Authority did not confine itself (as had the decision-maker referred to in MZYXR) to the present or immediate future. Rather, the Authority found that, having regard to country information and the lack of any adverse profile, the Applicants would not face a real chance of serious harm or real risk of significant harm. Given its references to the Applicants re-establishing themselves, it is clear that the Authority was looking into the reasonably foreseeable future and not just at the present or immediate future;
(d)contrary to the Applicants’ submission, the Minister contends that the Authority was not required to suppose that at some indistinct point in the future, EJQ18 may develop an adverse profile, contrary to what the Authority had already found. To do so would be to “speculate into the unknown future”, which decision-makers are not required to do: EGY18 v Minister for Home Affairs [2019] FCCA 1874 (“EGY18 – FCCA”) at [89] per Judge Driver. An appeal against EGY18 – FCAA was dismissed: EGY18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 796; see also ECE17 v Minister for Immigration [2019] FCCA 1223; and
(e)as should be apparent, the fundamental substance of this ground cavils with the Authority’s conclusions and at most, demonstrates emphatic disagreement with the Authority’s findings: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413 at [61] per McKerracher, Griffiths and Rangiah JJ, and not jurisdictional error. The Court should be cautious not to unintentionally slide into conducting merits review: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164; (2010) 85 ALJR 306; (2010) 273 ALR 122; (2010) 199 ALD 446 at [30] per French CJ; Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
Consideration – ground 3
Much of the Applicants’ submissions on ground 3 concerns itself with asserting facts and putting argument in a manner which invites the possibility of merits review and the possibility of crossing the rigorously policed line between judicial review and merits review which lies at the heart of Australian administrative law: Murrumbidgee Groundwater at [127] per Spigelman CJ; Zentai (No 3) at [367] per McKerracher J. This Court cannot engage in a general review of the merits of the Authority Decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Doubtless the Applicants disagree with the Authority Decision, but even strong disagreement with the Authority Decision is not necessarily indicative of jurisdictional error: Eshetu at [40] per Gleeson CJ and McHugh J; Mailau v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 12 at [75] per Colvin and Halley JJ. The Authority was not bound to refer to every item of material relied upon by the Applicants and a failure to take into account a particular piece of evidence does not necessarily give rise to error: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [67]-[68], [73]-[74], [77], [89] and [91] per McHugh, Gummow and Hayne JJ; Durairajasingham at [65] per McHugh J; WAEE at [46] per French, Sackville and Hely JJ,: Li Shi Ping v Minister for Immigration, Local Government & Ethnic Affairs (1994) 35 ALD 225 at 236-237 per Carr J (with whom Sheppard and Gummow JJ agreed). The weight to be afforded to the material before the Authority (and in particular, country information: NAHI at [11] per Gray, Tamberlin and Lander JJ, was a matter for the Authority: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. And if the Authority Decision was one that was reasonable, rational and open to it on the evidence before it, for the reasons that it gave, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 (“SZMDS”) at [131]-[135] per Crennan and Bell JJ, then it is not one affected by jurisdictional error.
EJQ18’s claims about his citizenship and the manner in which the Authority dealt with them are set out at [50]-[55] above. Plainly, on the facts, there was more than sufficient material for the Authority to conclude that EJQ18 was a citizen of Sri Lanka, and not a person who was stateless, and it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: SZMDS at [131]-[135] per Crennan and Bell JJ. There was no error in relation to the Authority’s finding as to EJQ18’s citizenship.
The Authority noted that EJQ18 had claimed to be involved in the hunger strikes and protests: CB 475 at [8], and considered, in some detail, the involvement of EJQ18 in the refugee camp management committee, the hunger strikes and protests and the consequences thereof at CB 480 at [28] as follows:
Applicant 1 claimed that he was a leader in the refugee camp management committee and that he assisted the other refugees with local issues such as repairs to the refugee centre. He did this role as a form of service to his fellow refugees. He further claimed that in the last years of the war (2008 and 2009) he participated in hunger strikes and protests with other Sri Lankan refugees in his camp against the Sri Lanka conflict and the treatment of the Tamil population in Sri Lanka. Applicant 1 advanced these claims in his enhanced screening interview, his arrival interview and at his SHEV interview. Applicant 2 repeated the claims regarding the protests and hunger strikes in her arrival interview. Both applicants provided detailed information to the interviewing officers and the delegate about the hunger strikes/protests including the process the refugees went through to obtain permission from the relevant Indian authorities to hold the protests. Applicant 1 stated that the Indian officials had told him that the refugees were free to protest against the war and the Sri Lankan government but that they must not make any negative comments about India. The applicants claimed that they always complied with this requirement. Applicant 1 provided a copy of an article in the online newspaper ‘Tamil Net’ which reported on a protest in a refugee camp in Tamil Nadu in February 2009. The article includes a photograph of a large group of people who the article states were participating in a hunger strike against the war in Sri Lanka at the time. The article mentions “3000 Eelam Tamil refugees” having taken part in the hunger strike. It makes no mention of the involvement of the applicants in the protest or names or otherwise identifies either of the applicants. I accept that, like many other refugees, the applicants participated in a mass protest in India towards the end of the Sri Lankan conflict and afterwards about the treatment of Tamils and the actions of the Sri Lankan government. The claim that Applicant 1 also participated in a small number of short hunger strikes was provided by both Applicant 1 and Applicant 2 in their separate arrival interviews and I accept Applicant 1 was involved in one or two hunger strikes at some point during 2008 and 2009. Applicant 2 stated to the delegate that the hunger strikes lasted approximately one or two days only. The applicants did not claim that they experienced any adverse treatment following the hunger strikes and I am not satisfied that their joint participation in the mass protests and Applicant 1’s participation in the hunger strikes resulted in any difficulties for the applicants or that there were any ongoing consequences for them.
The involvement of both EJQ18 and EJY18 in “mass protests in 2008/2009” is also dealt with briefly at CB 483 at [37]-[38], but it suffices for present purposes to deal only with the claims and involvement of EJQ18 in the hunger strikes and protests.
The difficulty with the Authority’s otherwise detailed consideration of these issues is that it fails to consider the risk of harm to EJQ18 arising therefrom if EJQ18 were to return to Sri Lanka, and this (either alone or together with the failure to consider the MP’s Letter which goes to the same issue) is indicative of error in the Authority Decision. Further, the mere fact that EJQ18 has been found by the Authority not to have been presently been identified as a participant in the hunger strikes and protests in India does not mean that he might not be so identified on re-entry to Sri Lanka or in the reasonably foreseeable future (but not into the unknowable future), and the Authority erred in that it did not deal with this possibility as one arising squarely on the materials before it (or as it would have had to do had it considered the MP’s Letter). For the same reasons as are set out at [46]-[47] above in relation to the error arising in respect of s 473CB(1)(c) and the failure to consider the MP’s Letter these two errors are material and therefore jurisdictional.
In relation to the alleged surveillance of EJQ18 by Q Branch and the providing of information from Q Branch to the Sri Lankan authorities the Authority dealt with that issue at CB 479 at [26], and to a lesser extent at CB 483 at [37], with the Authority concluding at CB 479 at [26] that:
… I accept that the attention he received from Q Branch was additional to the Q Branch’s general supervision of Tamil refugees in India but I do not accept that it extended to the Q Branch informing the Sri Lankan authorities of his presence and activities in India and I find this is speculation on his part.
EJQ18, who was represented by lawyers (albeit different ones) before the Delegate and the Authority, referred to no country information for his assertions concerning the provision of information by Q Branch to the Sri Lankan authorities, either generally or specifically related to EJQ18 (the latter would of course be highly unusual). The Authority did have regard to country information which indicated that the Indian Q Branch was responsible for the supervision of Sri Lankan refugees in India: CB 479 at [26], but there was no other country information referred to on this issue. The weight to be afforded to the country information which was before the Authority, and as limited as it appears to be, was a matter for the Authority: NAHI at [11] per Gray, Tamberlin and Lander JJ.
As to the extent of surveillance by Q Branch alleged by EJQ18 it must be borne in mind that the Authority was not required to uncritically accept all or any of the claims made by EJQ18, or have rebutting evidence before it could decide not to accept EJQ18’s claims: Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 596 per Kirby J; Randhawa, FCR at 451 per Beaumont J; EGU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 153 at [36]-[37] per Judge Given (citing Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J). The finding made by the Authority that there was “no real substantiating detail” as to this claim was open to it on the lack of evidence before it, and again it cannot be said that no other rational or logical decision-maker could not have drawn the same conclusions: SZMDS at [131]-[135] per Crennan and Bell JJ.
The conclusions arrived at by the Authority on this issue were open on the limited evidence before the Authority and are not indicative of error in the Authority Decision.
EJQ18’s submitted that it was “inconceivable” that the Sri Lankan authorities were not monitoring the activities of the Tamil diaspora in the refugee camp and that they would not have been aware of media articles concerning a Sri Lankan’s attempts to flee India on a false passport and to have attempted to identify that person (who was EJQ18). The relevant passage in the Authority Decision at CB 480 at [28] is set out in that paragraph as quoted at [91] above and the Authority notes that the article referred to says there were 3000 Tamil refugees involved in the hunger strike and that it makes no mention of EJQ18 (or EJT18) by name and does not otherwise identify them. At CB 483 at [38] having referred to UK Home Office information about the change in focus of the Sri Lankan Government in identifying Tamil activists the Authority concluded that:
I accept that Applicant 1 [EJQ18] and Applicant 2 [EJT18] were involved in a small number of local protests and hunger strikes in India however I do not accept that the applicants were identified by the Sri Lankan authorities as persons who were working for Tamil separatism or to destabilise the unitary Sri Lankan state between 2009 - 2011.
On the basis of the available information, and even accepting that it was inconceivable that the Sri Lankan authorities would not have been monitoring events in the refugee camp in India and making efforts to identify participants, it was still open for the Authority to find that neither EJQ18 nor EJT18 were then identified and that the Sri Lankan authorities would no longer seek to identify them. In the circumstances therefore the conclusions arrived at by the Authority on this issue were open on the limited evidence before the Authority and are not indicative of error in the Authority Decision.
EJQ18 submitted that the Authority failed to consider his claim of “separatist sentiment”. The Authority:
(a)identified EJQ18’s claim that he feared being harmed by the Sri Lankan authorities by reason of “his Tamil race and his imputed political opinion as a sympathiser/supporter” of the LTTE: CB 475 at [8];
(b)accepted that EJQ18’s father had been mistreated by the SLA as a consequence of his father’s refusal to confirm that people who were shot by the SLA “were LTTE”: CB 478 at [23] and 482 at [36];
(c)accepted that both EJQ18 and EJT18 “hailed from LTTE areas” and that their families “went to India for their general security and safety”: CB 482 at [36];
(d)did not accept that EJQ18 and EJT18 were identified by the Sri Lankan authorities as persons who were working for Tamil separatism or to destabilise the unitary Sri Lankan state between 2009 – 2011: CB 483 at [38];
(e)noted that country information indicated “an overall decrease in the monitoring of Tamils from the former LTTE areas” including the area where EJQ18 “spent many years during his childhood”: CB 483 at [39]; and
(f)referred to country information concerning the treatment of persons with links to the LTTE: CB 484-485 at [42] and 485 at [44]-[45].
In circumstances where a claim which is in equivalent terms to one of “separatist sentiment” (which the Court notes are the words used in EJQ18’s lawyer’s submissions to the Court, and not EJQ18’s words) is identified, and various evidence relevant to that claim is then dealt with and conclusions drawn, including a conclusion that neither EJQ18 nor EJT18 were identified by the Sri Lankan authorities as persons who were working for Tamil separatism or to destabilise the unitary Sri Lankan state between 2009 – 2011, it cannot be said that the Authority did not consider the claim. As was observed by the Full Court of the Federal Court in WAEE at [47] per French, Sackville and Hely JJ such an inference ought not too readily be drawn where the reasoning in the Authority Decision is otherwise comprehensive and the issue has at least been identified at some point.
Ground 3 is therefore made out in part only, but the part in respect of which it is made out establishes jurisdictional error on the Authority Decision as identified at [93] above.
CONCLUSION AND ORDERS
The Court has concluded that each of grounds 1, 2 and 3 of the Amended Judicial Review Application has been made out in part and jurisdictional error has thereby been established in the Authority Decision. It follows, therefore, that writs of certiorari and mandamus will issue, with the latter writ directing that the Administrative Review Tribunal re-determine the review of the decision of the Delegate of the Minister made on 4 September 2019 and determine it according to law: Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Rules 2024 (Cth), rr 11 and 12.
The Court will hear the parties as to costs.
I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 30 May 2025
SCHEDULE OF PARTIES
ADG 322 of 2018 Applicants
Fourth Applicant:
EJV18
Fifth Applicant:
EJX18
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