EKE17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 867
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EKE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 867
File number(s): SYG 3033 of 2017 Judgment of: JUDGE LAING Date of judgment: 28 September 2023 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority (“IAA”) affirming a decision not to grant Temporary Protection (Class XD) (Subclass 785) visas – where the Applicant was told that she had 7 days in which to submit further material, but the delegate’s decision was made before that time expired – where the Applicant did submit further material prior to the referral to the IAA under s 473CB of the Migration Act 1958 (Cth), but that material was not referred to the IAA – whether the Secretary’s referral of material under s 473CB of the Act was affected by legal unreasonableness or other error – materiality – whether the IAA failed to consider exercising its discretion to obtain documents or new information – application succeeds Legislation: Migration Act 1958 (Cth) Cases cited: ARM18 v Minister for Home Affairs [2018] FCCA 3326
AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82
CJD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 212
CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76
CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367
EIH18 v Minister for Home Affairs [2022] FedCFamC2G 460
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174; (2020) 280 FCR 381
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of last submission: 14 July 2023 Date of hearing: 14 November 2022, 4 May 2023 Place: Sydney Solicitor for the Applicants: Mr M Jones of Michael Jones Solicitor Counsel for the First Respondent: Mr B Kaplan Solicitor for the First Respondent Mills Oakley Second Respondent Submitting appearance, save as to costs ORDERS
SYG 3033 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EKE17
First Applicant
EKG17
Second Applicant
EKH17
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
28 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 27 July 2017 into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the review 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 LAING:
Before the Court is an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA affirmed a decision of a delegate (Delegate) of the first respondent (Minister) refusing to grant the applicants Temporary Protection (Class XD) (Subclass 785) visas (protection visas).
BACKGROUND
The first applicant (Applicant) is a Sri Lankan citizen of Tamil ethnicity. The second and third applicants are her children.
The applicants arrived in Australia in 2012 as unauthorised maritime arrivals.
On 30 March 2016, the applicants applied for protection visas.
The Applicant attended a protection visa interview with the Delegate on 16 February 2017.
On 20 February 2017, the Delegate refused to grant the applicants protection visas. The Delegate’s decision was then referred to the IAA for review.
On 27 July 2017, the IAA affirmed the Delegate’s decision.
THE IAA’S DECISION
The IAA accepted that:
(a)the Applicant lived in an LTTE controlled area in Sri Lanka and was internally displaced prior to moving to India (at [22]);
(b)the Applicant may have undergone compulsory basic training with the LTTE (at [23]);
(c)the Applicant and her husband were arrested and mistreated the year that they were married (at [23]);
(d)the Applicant’s older brother was killed in the 1990s (at [23]); and
(e)the Applicant’s husband was subsequently arrested (at [23]).
However, the IAA considered these incidents to be remote in time and, in the case of the Applicant and her husband’s arrests, “relatively minor”. The IAA was not satisfied that they would be sufficient to cause the Applicant to be a person of concern to the Sri Lankan authorities (at [23]).
The IAA did not accept that:
(a)the Applicant’s husband disappeared in Sri Lanka in August or September 2013. The IAA considered that Facebook posts obtained by the Department suggested interactions between the Applicant, her husband, and the second applicant. The IAA considered that the Applicant had “fabricated her claims o[f] her husband's disappearance so as to create a basis for her protection claims” (at [17]);
(b)the Applicant was detained for a period of time and mistreated. The IAA had regard to what it considered were “significant discrepancies in the accounts given by her” (at [18]). On account of this, the IAA considered that the Applicant had “fabricated her claims of detention and mistreatment so as to create a basis for her protection claims” (at [18]);
(c)the Applicant’s husband had any role with the LTTE. The IAA observed that at the visa interview, the Applicant claimed that her husband’s role was to provide food and information to the LTTE, whereas at the entry interview she had stated that her husband was in the intelligence group of the LTTE (at [21]);
(d)the Applicant faced a real chance of relevant harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion (at [27]);
(e)the Applicant would be subjected to discrimination, economic hardship or other harm amounting to serious or significant harm on the basis of her Tamil ethnicity and/or her gender as a woman (at [28]-[31] and [40]-[43]); or
(f)the applicants would face a real chance of such harm from the Sri Lankan authorities as failed asylum seekers or for any other reason (at [32]-[36] and [40]-[42]).
PROCEEDINGS BEFORE THE COURT
The applicants commenced proceedings before this Court on 3 October 2017. The applicants ultimately relied upon a further amended application filed on 5 May 2023 containing the following grounds:
1.The Authority constructively failed to exercise its jurisdiction to review the decision of the delegate.
Particulars
The delegate had denied the Applicant procedural fairness by telling her that she would give her 7 days after the interview to provide further submissions or evidence, but then made her decision 4 days after the interview. The Applicant in fact sent further submissions and evidence to the delegate within the 7-day period which were received on the same day that the decision was referred to the Authority. The Secretary did not provide the submissions and evidence to the Authority, or advise the Applicant that it had not provided the submissions and evidence to the Authority so that she could do so. Had the Authority been told of or provided with the submissions it could have considered whether they contained new information which should have been considered under s 473DD.
As a result the Authority's decision was affected by the delegate's denial of procedural fairness to the Applicant, even if the Authority was not aware of that denial.
The Authority's decision was further affected by jurisdictional error because a statutory precondition for the exercise of its review obligations under ss 473CC(1) and 473DB(1) had not been met, in that the Secretary to the Minister's Department had not included in the material given to the Authority under s 473CB(1) the material in pages 1 to 15 of the Court Book despite that material having been in the Secretary's possession or control and the Secretary not having taken reasonable steps to locate 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, and as a consequence not having considered or formed a view on the relevance of that material before the decision of the delegate was referred to the Authority.
2.The Authority failed to consider whether to exercise its discretion to obtain documents or new information.
Particulars
(a)The Applicant had said at her entry interview that she was detained for six or seven days in 1998. At the interview with the delegate, she said that she had been detained in 1997 for three days and sexually assaulted. The Authority should reasonably have asked itself whether there were two separate occasions on which the Applicant had been detained, and used its discretion under s 473DC(3) to request new information from the Applicant.
(b)The Applicant had not been shown, or given the opportunity to comment on, all of the screenshots that were given to the Authority (see Supplementary Court Book), in contravention of ss 57 and 58 of the Act. The Authority should have used its discretion under s 473DC(3) to request new information from the Applicant in respect of the screenshots.
3. The Authority failed to engage intellectually with the evidence before it.
Particulars
The Authority formed the view that the First Applicant would not suffer serious or significant harm as a result of being detained on return to Sri Lanka, and assumed that the Second and Third Applicants would therefore also not face harm, without turning its mind to the fact that they were children.
In closing submissions, the applicants advised that ground 3 of the further amended application was not pressed.
Factual disputes
There were two main factual disputes between the parties:
(a)Firstly, whether the Applicant had not been shown, or given the opportunity to comment on, all of the Facebook screenshots that were before the IAA; and
(b)Secondly, whether the Delegate told the Applicant that she would be given 7 days after the interview in which to provide further submissions or evidence.
In relation to the first matter, the Applicant relied upon an affidavit that she affirmed on 24 July 2020. In that affidavit, she gave evidence that she had been shown some of the Facebook screenshots contained within the Supplementary Court Book, but that she had not been shown all of them. The Delegate gave evidence that although she could not remember what occurred in this particular case, it was her usual practice to show all of such records to an applicant: transcript of 4 May 2023 (T2) at 33.37. The Delegate gave evidence that this was done on a computer screen during the interview: [6] of the Delegate’s affidavit dated 14 October 2022 (Delegate’s Affidavit).
During cross examination, the Applicant frankly conceded that it was possible that her recollection that only certain screenshots had been shown to her during the interview was incorrect. This was considering the passage of time that had occurred after the interview, as well as her emotional state during the interview: transcript of 14 November 2022 (T1) at 7.45-22.28. Having regard to this concession, I do not find that the Applicant was only shown some of the Facebook screenshots in the Supplementary Court Book. Instead, I find that in accordance with the Delegate’s usual practice, all of this material was shown to the Applicant.
In relation to the second factual dispute, the Applicant gave evidence in her affidavit dated 24 July 2020 as follows:
7.At the end of the interview the officer told me that any further documents or information I provided before the decision was made would be taken into account. She then said that the interview was finished and switched of the recording.
8.After the recording had been switched off I said to the officer, through the interpreter, words to the effect "How long will I have to put in any new documents or information?"
9.The interpreter translated my question and the officer replied through the interpreter: "You can send it within 7 days".
10. I was surprised to learn that the decision on my case was made four days after the interview without waiting for my further submissions.
As will be considered further below, the Applicant did provide additional material to the Department (Additional Documents), which were received on the morning of 23 February 2017. This was after the Delegate’s decision, but prior to the referral of materials to the IAA under s 473CB of the Migration Act 1958 (Cth) (Act).
The Delegate gave evidence that she did not recall having any conversation with the Applicant after the conclusion of the interview. She observed that she had not been able to locate in the Department’s records any record of the conversation alleged by the Applicant: [8]-[12] of the Delegate’s Affidavit. The Delegate gave evidence that her usual practices were as follows:
10.If an applicant, whether represented or not, indicated to me prior to the conclusion of an interview that they intended to provide further documentation or information to support their claims, my usual practice in 2017 was to state orally on the record the timeframe within which that material was required to be provided. It was also my usual practice at that time not to finalise my assessment of an application prior to that timeframe elapsing. It was not my usual practice at the time to follow this up in writing unless such a request was made by the applicant or his or her representative.
11.If an applicant, whether represented or not, had a conversation with me at any time after the conclusion of an interview, whether to request an opportunity to provide additional documents or information to support their claims or otherwise, it was my usual practice in 2017 to turn on the recording device and to state on the record that the applicant would be given the opportunity to provide such material and to specify the timeframe within which that material was required to be provided.
12.Since becoming a decision-maker under section 65 of the Act, where I have given to an applicant the opportunity to provide material after an interview and have specified the timeframe within which that could be done, I do not recall ever having made a decision on an application before that timeframe has passed. Consistently with my usual practice, in this case I do not believe that I would have finalised my assessment of the first applicant’s SHEV application four days after her SHEV interview if I had stated on the day of her SHEV interview that she had seven days within which she could provide any further documents or information.
During cross examination, the Delegate gave evidence that she did not believe that she would have deviated from her usual practices as she was conscious of the need to document such requests in circumstances where she may not ultimately be the final decision maker in matters for which she had conducted interviews: T2.34.32 (Delegate).
The Delegate presented as a careful and highly experienced decision maker who was conscious of the need to document exchanges such as the one that is in issue. I have no doubt that her usual practices in this regard have been routinely and carefully followed, generally, in the vast number of cases that she has adjudicated.
However, as a matter of human experience, mistakes can happen. Usual practice may not always be followed, even in cases involving the most experienced and responsible decision makers.
It is possible that deviation from the Delegate’s usual practice did not occur in this case. It is also possible that the interpreter misinterpreted what was said, or that this was misunderstood by the Applicant.
On the balance of probabilities, however, I am prepared to accept that the Applicant was told at the interview by the Delegate, through the interpreter, that she would have a period of 7 days in which to send in any further documents or information.
I found the Applicant’s account in this regard to be credible. In her evidence, the Applicant appeared genuinely distressed and surprised at the decision having been made before this period had expired. Given this, and the importance of the matter to her, I do not find it surprising that she is able to recall what happened.
Whilst the Applicant undoubtedly has an interest in the outcome of these proceedings, her willingness to concede other points against her case (such as that she may have been mistaken about not being shown all of the Facebook screenshots) assisted her credibility.
This is notwithstanding the Applicant’s lack of contemporaneous complaint to the Department or the IAA. When the Applicant was notified of the Delegate’s decision on 20 February 2017, she was also notified that the matter had been referred to the IAA and that further information should be provided to the IAA, rather than the Department. The notification indicated that the IAA had been provided with material considered relevant to her matter (and, therefore, may have suggested that material she had provided in support of her application would be, or would have been, provided to the IAA). I do not regard the Applicant’s evidence that she didn’t complain at the time because she didn’t know that she could, or that she had some difficulty knowing what to do by the IAA stage due to her inability to understand English, as inherently non-credible.
The Applicant’s account is also supported, to some extent, by the evidence given by her doctor (Doctor). The Doctor appears to have provided the Applicant with some assistance with preparing the Additional Documents that she sent to the Department. The Doctor gave evidence that the Applicant had called him after her interview with the Delegate and informed him that she had been told that she had 7 days to lodge any further information. The value of this evidence is diminished by the witness having been asked if he could recall this happening prior to giving his evidence. The Doctor’s recollection of what occurred was therefore not entirely independent, with the date of the interview and the 7 day period having been suggested to him: T2.18.40 (Doctor). However, the Doctor did insist that he had some recollection of what had occurred and of helping the Applicant to prepare her statement over the weekend: T2.19.9 (Doctor). His account therefore provides some support for the Applicant’s account.
I accept that the Applicant did not refer to her conversation with the Doctor in her affidavit dated 24 July 2020. However, that affidavit was brief in nature. Its focus was upon what the Applicant says occurred, rather than whom (if anyone) she told about it. I do not find as unpersuasive as the Minister the Applicant’s explanation that she did not raise the conversation in her affidavit because she did not know that she was meant to do so.
Finally, I do not accept the Minister’s submission that any inference should be drawn against the Applicant due to her “failure to call the interpreter to give evidence”. It is not apparent that the Applicant knew the interpreter (or their contact details), nor why the interpreter may have been expected to have recalled what was said due to their role in interpreting an interview of no apparent personal significance to them that occurred several years earlier. Either party could potentially have taken greater steps to attempt to identify, locate and solicit evidence from the interpreter. I draw no adverse inference from the fact that neither party did so.
Ground 1
Ground 1 contended that the IAA constructively failed to exercise its jurisdiction to review the decision of the Delegate. This was said to have occurred for two reasons:
(a)Firstly, the IAA was unaware of a denial of procedural fairness that occurred at the Delegate’s stage of consideration. This was said to have occurred because the Delegate told the Applicant she could have 7 days to submit material, made a decision before that period had expired, and did not subsequently provide the Additional Documents she had provided in the intervening period to the IAA or inform the Applicant that this had not occurred; and
(b)Secondly, the Secretary had not included in the material given to the Authority under s 473CB(1) of the Act the Additional Documents, despite that material having been in the Secretary's possession or control at the time of the referral. The applicants contended that reasonable steps were not taken towards locating these documents.
I have accepted above that the Applicant was told that she could have 7 days to submit material and that the Delegate’s decision was made before that period expired.
The evidence demonstrates that the Additional Documents were received at a mail distribution centre at which mail to the Department was received (Mail Distribution Centre) at 7.31 am on 23 February 2017: Exhibit A (Australia Post records produced under Subpoena); Affidavit of the Applicant affirmed on 24 November 2022; Affidavit of Bronwyn Jackson affirmed on 21 February 2023 (Jackson Affidavit); T2.69.25 (Jackson). Whilst Ms Jackson’s affidavit indicated that she has not been able to locate any record of the name of the person Australia Post’s records indicate signed for the Additional Documents, I do not place any particular significance upon this. It is potentially explicable by a spelling error, or by a contractor or Australia Post employee being the person who signed the document. It is clear enough that the Additional Documents were received, and I find that they were received, at the Mail Distribution Centre at 7.31 am on 23 February 2017. Mail was then usually delivered to the Department’s mail room at another location (Mail Room) between 8.30 am and 9:00 am: Jackson Affidavit at [7]. This was before the referral of materials under s 473CB of the Act took place, which occurred later that morning at 9.42 am on 23 February 2017: CB 16; T2.40.45.
To the extent that the applicants relied upon a denial of procedural fairness argument, independent of their contentions regarding s 473CB of the Act, this has not adequately been explained.
The applicants’ reliance upon s 473CB of the Act is of a different nature.
Section 473CA provided:
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.
Section 473CB relevantly provided:
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; …
The question of relevance is to be determined by the Secretary or their delegates. However, that opinion must be formed reasonably and on a correct understanding of the law: see CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 268 CLR 76 (CNY17) at [6] per Kiefel CJ and Gageler J.
A number of cases have found relevant error to have been established on account of what has been held to have been an unreasonable failure by the Secretary, through delegates, to provide or consider providing “other material” within the contemplation of s 473CB(1)(c). The applicants relied upon cases such as AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) 274 FCR 82 (AUF18) per Allsop CJ, and Jagot and Moshinsky JJ; EIH18 v Minister for Home Affairs [2022] FedCFamC2G 460 per Judge Egan and CJD18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 212 per Judge Humphreys, in which error has been found on this basis.
In AUF18, the Full Court reasoned:
66.The nature of the review to be carried out by the Authority underlines the importance of the Authority being provided with all relevant documents, whether or not they were before the person who made the decision on the visa application: see CQR17 at [105] per Derrington J…
70.… 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.
The following was agreed between the parties in an Agreed Statement of Facts dated 16 June 2023:
1.The person who was responsible for performing the Secretary’s duty under section 473CB of the Migration Act 1958 (Cth) (Act) to provide “review material” (as defined in sections 473BB and 473CB(1)) to the Immigration Assessment Authority (Authority) relating to the decision dated 20 February 2017 to refuse the grant of a Safe Haven Enterprise visa (SHEV) to each applicant was [the Delegate]. [The Delegate] was a delegate of the Secretary for the purposes of performing the duty in section 473CB of the Act in relation to the review of the decision to refuse SHEVs to the applicants.
2.In performing the duty under section 473CB of the Act in relation to the review of the decision dated 20 February 2017 to refuse SHEVs to the applicants, [the Delegate] did not conduct any search, or make any enquiry, of the mail room at the office of the Department at 26 Lee Street, Sydney, for the document appearing at pages 1 to 15 of the Court Book filed in this proceeding.
3.[The Delegate] did not wait for mail to be distributed internally within the Department on 23 February 2017 before causing the review material in relation to the review of the decision dated 20 February 2017 to refuse SHEVs to the applicants to be provided to the Authority under section 473CB(2) of the Act.
The Minister submitted that the issue of reasonable searches did not arise in this case because the Delegate located the Additional Documents on 9 March 2017. The Minister submitted that it was not necessary for the Delegate to have located the documents prior to the referral at 9.42 am on 23 February 2017, as it was accepted that they came into the control of the Secretary sometime between 8:30 am and 9:00 am that day. It was therefore accepted that the Additional Documents had the potential to come within the scope of s 473CB(1)(c) of the Act. That duty, the Minister submitted, was ongoing, although referable to material that was in the Secretary's possession or control at the time that the decision was referred: ARM18 v Minister for Home Affairs [2018] FCCA 3326 at [26] per Judge Manousaridis; EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174; (2020) 280 FCR 381 at [56] per Murphy J and Mortimer J (as her Honour then was).
As was submitted by the Minister, the location of a document and its non-provision to the IAA is not sufficient to demonstrate a breach of s 473CB(1)(c) of the Act. In order to demonstrate that the exercise of power miscarried, the applicants need to demonstrate that the exercise or non-exercise of power under s 473CB(1)(c) of the Act was affected by relevant error.
An “unreasonable failure or refusal to identify documents which might be relevant” for the purposes of s 473CB(1)(c) may constitute a breach of that provision: EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [41] per Thawley J; AUF18 at [70].
Relevance within this context is used in the sense of being “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”: CNY17 at [6]. For the purposes of s 473CB(1)(c) of the Act, relevance turns on the subjective view of the Secretary or their delegate(s): CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; (2019) 269 FCR 367 (CQR17) at [33]-[35] per Jagot J. However, that view must be reached reasonably. In this regard, it was stated in CQR17 at [38]-[39]:
38.… The test is the lack of an intelligible justification for the (assumed) decision that this document was not relevant.
39.The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review.
The Minister submitted that such a justification is found in the fact that the Additional Documents did not “add anything” to the substance of the material that was before the Delegate and that had otherwise been provided to the IAA. For similar reasons, the Minister submitted that materiality could not be established even if s 473CB(1)(c) of the Act were breached in relation to the Additional Documents.
I am unable to accept the Minister’s position for two reasons.
Firstly, the Delegate’s evidence did not indicate that she declined to refer the Additional Documents to the IAA because she did not consider that they were relevant to the review. To the contrary, a note that was apparently made by the Delegate on 10 March 2017, at Annexure AF-2 to her affidavit, indicates that she considered that the Additional Documents had been “passed on to Admin tema [sic] to pass on to the IAA”. This indicates that the material was considered relevant by the Delegate, in discharging the Secretary’s obligations under s 473CB of the Act. Its non-provision in accordance with that section, for this reason alone, resulted in breach of s 473CB of the Act.
Secondly, I do not accept that the Additional Documents added nothing of substance to the materials referred to the IAA.
The submission that formed part of the Additional Documents detailed the claimed effect upon the Applicant of her experiences, including by reference to Post-Traumatic Stress Disorder. This was in the context of country information in the form of news articles, of which the Applicant was aware, regarding the situation in Sri Lanka (including what was said to have been a risk of “widespread sexual exploitation by officials” faced by Tamil women). Whilst these matters may have been, at least to some extent, reflected elsewhere in the evidence, I am not persuaded that the Applicant’s additional submissions in this regard about her claimed fear of sexual violence and the effects of her experiences added nothing to the evidence that was referred to the IAA.
The Applicant also sought to address, in the Additional Documents, the Delegate’s concerns regarding the Facebook screenshots as follows:
I was astonished when you brought upon some Face Book based evidence against me about the existence of my husband and his whereabouts despite me revealing my innocence about not being able to use Face book. I will be glad if he is alive as it gives me a ray of hope of reuniting with him at some stage in life. My son being a teenager uses it as I stated. Nevertheless my two innocent children still do not know that their dad and my husband has disappeared in custody and thus their uncle is keeping their hopes alive through this account and thus the communication and thereby your face book findings does not console me to the extent it should console me. This will need further clarification and information and explanation contrary to your assumption and conclusion on a trivial element of evidence upon which you may elect to reject some of my claims unfortunately (emphasis added).
Whilst the Minister’s closing submissions suggested that the “uncle” in question was the Applicant’s older brother who was killed, this does not appear to have been the effect of the submission. The submission did not identify the “uncle” in this manner. Rather, the submission was that someone described as an “uncle” (whether a blood relation or otherwise) was keeping the Applicant’s children’s “hopes alive” through the Facebook account because the children did “not know that their dad and [the Applicant’s] husband has disappeared in custody”. This, it was submitted, explained why there seemed to be communications with someone appearing to be the Applicant’s “husband” giving the impression that her husband was alive and in contact with the family. This explanation was not provided during the interview. I therefore do not accept the Minister’s submission that it added nothing to the material referred to the IAA.
Within the context of the above, I am unable to perceive any intelligible justification for the non-referral of the Additional Documents to the IAA. I do not accept that the documents were not considered relevant by the Delegate. I further conclude that the exercise of the function required under s 473CB(1)(c) of the Act miscarried in circumstances where:
(a)the Applicant had been told that she had 7 days (i.e., by 23 February 2017) in which to submit further material;
(b)the Delegate’s decision was made prior to the expiry of that period;
(c)the Additional Documents were nonetheless received by the Department prior to the referral to the IAA; and
(d)although reasonable processes for locating documents did not necessarily require in every case that the delivery of mail be awaited, or that searches of the Mail Room be undertaken, they would have required any undertaking as to the period in which further material could be provided by an applicant to have been considered and respected.
Had the Additional Documents been considered by the IAA, then it is possible that the outcome of the review may have been different. It is possible that the IAA may have accepted the Applicant’s explanation for the Facebook communications and therefore not rejected her claims about her husband’s disappearance as a fabrication (at [17]). This may have had further consequences for the IAA’s assessment of her credibility. If the IAA had found the Applicant’s further submissions persuasive about her fears of sexual violence and discrimination, and the impact of her experiences on her psychological condition, then this may have further affected its assessment of the risks she claimed to face.
I am therefore persuaded that ground 1 ought to succeed.
Ground 2
As I have found for the applicants under ground 1, it is not strictly necessary to determine ground 2. However, for completeness, I accept the Minister’s submissions as to why this ground is unable to succeed.
Ground 2 contended that the IAA erred in failing to consider whether to exercise its discretion to obtain documents or new information under s 473DC(3) of the Act. In relation to the second particular relied upon, the applicants contended that new information should have been requested from the Applicant regarding the Facebook screenshots in circumstances where not all of them had been shown to her at the interview. I have not accepted that all of the screenshots were not shown to the Applicant at interview, and it has not been shown that anything to the contrary was known to the IAA. I therefore do not accept that the premise behind this part of the ground can be made out.
Ground 2 further contended that the IAA ought reasonably to have asked whether there were two separate occasions on which the Applicant had been detained, in circumstances where she had said in her entry interview that she was detained for 6 or 7 days in 1998 but had said in her interview with the Delegate that she was detained for 3 days and sexually assaulted in 1997. However, I accept the Minister’s submission that it was open to the IAA to have regarded the Applicant’s accounts of her detention as inconsistent, rather than consecutive, in circumstances where the Applicant had not suggested in either interview that she had been detained on more than one occasion. The Applicant’s evidence in her interview with the Delegate (as set out in the transcript annexed to an affidavit of Winnie David dated 3 August 2020) made no suggestion that the Applicant was claiming that she had been detained on any occasion other than the “one incident” in which she claimed to have been detained and harmed in 1997. Given this, I am not persuaded that it was unreasonable for the IAA not to have sought further information from the Applicant, or that it unreasonably failed to consider exercising its power to do so.
CONCLUSION
As I have accepted that jurisdictional error has been demonstrated under ground 1 of the further amended application, that application succeeds.
I will hear from the parties in relation to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 28 September 2023
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