FBH17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 789
Federal Circuit and Family Court of Australia
(DIVISION 2)
FBH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 789
File number(s): SYG 3550 of 2017 Judgment of: JUDGE LAING Date of judgment: 28 September 2022 Catchwords: MIGRATION – application for judicial review of a decision by the Immigration Assessment Authority not to grant Safe Haven Enterprise (Class XE) (subclass 790) visas – whether the Authority erred in considering that evidence of a suicide attempt was new information – materiality – whether the Authority otherwise misapplied s 473DD – whether the Authority failed to comply with s 473DE – application allowed Legislation: Migration Act 1958 (Cth) ss 65, 424A, 473DD, 473DE Cases cited: AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421
Plaintiff M61 /2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217
Division: Division 2 General Federal Law Number of paragraphs: 46 Date of hearing: 24 August 2022 Counsel for the Applicant: Mr C Bannan Solicitor for the Applicant: Hall & Wilcox Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: Submitting appearance, save as to costs ORDERS
SYG 3550 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FBH17
First Applicant
FBM17
Second Applicant
FBN17
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 2022
Amended pursuant to rule 17.05(2)(e) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 28 September 2022.
THE COURT ORDERS THAT:
1.A writ of certiorari issue bringing the decision of the second respondent dated 30 October 2017 affirming the decision of a delegate of the first respondent not to grant the applicants protection visas (original decision) into this Court and quashing it.
2.A writ of mandamus issue directing the second respondent to re-determine the review of the original decision 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 Safe Haven Enterprise (Class XE) (Subclass 790) visas (protection visas).
background
The first applicant was born in Tamil Nadu, India, of Sri Lankan parents. Her husband, the second applicant, was also born in Tamil Nadu to Sri Lankan parents. The third applicant is their child, who was born in Australia.
The first and second applicants arrived in Australia as unauthorised maritime arrivals in 2013. On 25 January 2017, they applied for the protection visas together with their child.
On 11 April 2017, the Delegate refused to grant the applicants protection visas. The Delegate’s decision was then referred to the IAA for review.
On 30 October 2017, the IAA affirmed the Delegate’s decision.
the iaa’s decision
The IAA observed that the applicants’ agent had provided a submission to the IAA on 3 May 2017. The IAA observed that much of the submission was not new information (at [4]). In this regard, the IAA considered that “information about the applicants’ mental vulnerabilities and lack of documentation” was not new information (at [5]).
The IAA stated, however, that new information had been provided in the submission in the form of country information and information regarding “the first named applicant’s suicide attempt in immigration detention” (at [6]). The IAA was not satisfied that the requirements of s 473DD of the Migration Act 1958 (Cth) (Act) were met in respect of this information. Where relevant to the grounds relied upon by the applicants, or the outcome of this review, this is considered in further detail below.
In relation to the first applicant’s claim to be stateless, the IAA considered that the first applicant was a Sri Lankan citizen by operation of law. This was based on new information it obtained about citizenship laws in Sri Lanka. The effect of this new information was that Sri Lankan citizenship is automatically conferred upon all descendants of Sri Lankan permanent residents who were compelled to leave Sri Lanka due to circumstances beyond their control. The IAA considered that exceptional circumstances warranted consideration of this new information, as (a) it was important to determine the applicants’ citizenship; (b) the first applicant had claimed to be both a citizen and stateless; (c) the IAA was not persuaded by the Delegate’s reasoning; and (d) it was an issue that needed to be resolved (at [32]-[35]). The IAA accepted the second applicant’s claim to be a Sri Lankan citizen by descent (at [35]).
The IAA accepted that:
(a)both the first and second applicants’ families left Sri Lanka and travelled to Tamil Nadu during the civil war. It also accepted that their home was destroyed in a bomb blast and that an uncle went missing and was presumed killed by the army as a Tamil separatist during the civil war (at [40]);
(b)the applicants are Hindu Tamils and were born in India. The IAA found that they were Sri Lankan citizens. It accepted that they belonged to the Sakliyan/Chakkiliyan/Panchamar caste and had experienced discrimination, humiliation and harassment in the past in India (at [41]);
(c)the first applicant had suffered from sexual harassment in the past and was sexually assaulted in 2012/2013 in India. However, the IAA considered that the first applicant had exaggerated the number of times she was harassed or sexually assaulted as she did not mention these events until her statement in January 2017 (at [43]-[44]);
(d)the second applicant may have been taken into custody and questioned on one occasion. However, the IAA considered the second applicant’s claims about multiple arrests were exaggerated and embellished. The IAA found that the encounter it accepted had occurred was a random event unrelated to any anti-government or LTTE association (at [45]); and
(e)the first applicant was not educated and the second applicant was educated only to year 5. The IAA accepted that the second applicant faced harassment at school, and that they faced discrimination in not being able to attend temple because of their lower caste and were treated as ‘lower than the low’ caste Indians. The IAA also accepted that in India, they had to wait until last at the water pump and that it was difficult to lease a house in certain areas due to their caste and status as refugees (at [47]).
However, the IAA did not accept that the applicants faced a real chance of serious harm in Sri Lanka. It summarised its reasons for this finding at [48] as follows:
48.…I do not accept that the applicants face a real chance of serious harm in Sri Lanka for a number of reasons. Firstly, the applicants will be returning to Sri Lanka and will not be a refugee in a different country. I consider the first named applicant’s risks of harm in India were heightened because she was young and without lawful status and in a vulnerable position being a young Tamil girl whose family were also refugees with no status in India, which would have made it much more difficult to seek and obtain protection. Likewise I consider the second named applicant’s situation in India is different to returning to Sri Lanka, as he will not be a refugee from a different country. Secondly, while I accept that part of the harm suffered was as a result of their lower caste, I consider the caste system is much stronger in India than in Sri Lanka. Further, it was evident from the second named applicant’s statement that they were considered lower caste than the Indian lower castes, as they were Sri Lankan. Thirdly, I consider the applicants have been resourceful and adaptable in Australia and matured and have been able to navigate foreign systems, in a different language and had a child in Australia. They have also been employed in the past and I consider there is no reason they could not find employment and accommodation in Sri Lanka. Fourthly, there are no official Sri Lankan laws or policies that discriminate on the basis of ethnicity. Fifthly, the applicants will be returning as a married couple with a child and would have the support of each other. In particular the first named applicant will have the support of her husband and not be returning as a single young female. Sixthly, the past harm suffered by the applicants’ parents in Sri Lanka was many years ago in the context of the civil war, which has ended, and there are many returnees from Tamil Nadu. Seventhly, I do not accept the applicants have or would be imputed to have any LTTE or anti-government or adverse political opinion or are of interest to authorities or anyone.
The IAA did not accept:
(a)the first applicant’s claim to be stateless (as noted above) (at [32]-[34]);
(b)that the second applicant’s father did not register the family as refugees, as a Sri Lankan refugees identity card was provided which included the family (other than the third applicant who was born in Australia) (at [42]);
(c)that the second applicant’s sister was abducted and escaped when she was 12 or 13, as the IAA considered that the account regarding this was not consistent (at [46]);
(d)that the applicants had an LTTE or anti-government profile or any links or suspected links to the LTTE. Nor did the IAA accept that the applicants had or will have an imputed anti-government political opinion in opposition to the unitary state of Sri Lanka (at [51]-[52]). Although the IAA accepted that the applicants’ parents came from Vavuniya and Northern Province and suffered bombing during the war, the IAA observed that the war ended in 2009 and the security situation had significantly improved. Whilst the IAA accepted that the second applicant’s uncle was killed during the war, it was not satisfied the uncle was “LTTE or suspected LTTE” (at [50]);
(e)that the applicants faced a real chance of monitoring, arrest, detention or prosecution on the basis of actual or suspected LTTE links, political opposition to the unitary State, because their parents fled Sri Lanka, or the uncle’s death (at [56]). Nor did the IAA accept that the applicants faced a real chance of harassment or monitoring on the basis of their ethnicity (at [57]);
(f)that Tamils faced a real chance of suffering harm from the Sri Lankan authorities solely on account of their ethnicity (at [59);
(g)that the societal discrimination or disrespect the applicants may face would result in serious harm. The IAA did not accept that the applicants would be unable to practise their religion or worship at the temple, nor that praying in a different part of the temple amounted to serious harm or denial of religious practice (at [63]);
(h)that although the applicants may live in caste areas in the village, they would be unable to find accommodation. The IAA did not accept that living in a different area of the village would result in serious harm. It considered that the applicants could still find accommodation, employment and practise their religion (at [64]);
(i)that the applicants would be destitute or unable to subsist or support themselves, nor that the first applicant would be forced into prostitution. The IAA accepted it may be difficult to settle at first, but did not consider there was any reason they could not find suitable employment or accommodation. The IAA found that the applicants did not face a real chance of serious harm in relation to the discrimination they may face or that they would be unable to subsist. In making these findings, the IAA expressed that it had taken into account “past trauma” and “mental vulnerabilities” (at [65]-[71]); and
(j)having considered that the first applicant would have the support and protection of her husband, that she faced a real chance of harm on the basis of her gender, caste or past sexual harassment. The IAA also did not accept that when her husband (for instance if at work or upon arrival at the airport in Sri Lanka) could not be with her, that she would face a real chance of serious harm (at [73]). Again, the IAA took into account the applicants’ “mental vulnerabilities” in concluding that they would not face relevant harm in Sri Lanka (at [74]).
In result, and having made the findings summarised above, the IAA stated:
77.Further, having considered the applicants’ circumstances and the country information I do not accept that they face a real chance of persecution because of Tamil race or ethnicity, imputed political opinion, their Sakliyan/Chakkliyan/Panchamar lower caste or membership of a particular social group as a young Tamils born in Tamil Nadu, with limited (or no) education, no connections, limited documentation, never having lived in Sri Lanka, Tamil returnees from India, female (in case of the first named applicant), or having suffered past trauma and with mental vulnerabilities or whose uncle/relative was killed during the war, whose family home was bombed during the war, or whose parents fled Sri Lanka to Tamil Nadu during the war, or who sought asylum, and are subject of a data breach (see below).
Noting country information regarding failed asylum seekers, the fact that the applicants had not left Sri Lanka illegally and the lack of adverse profile it had attributed to the applicants, the IAA did not accept that they would face harm at the airport or upon settlement in Sri Lanka (at [78]-[84]). At [85], the IAA stated:
85.For these reasons I am not satisfied the applicants face a real chance of harm from the authorities or anyone due to being a failed Tamil asylum seeker, Tamil returnees from India, or because they have lived in India or Australia, and sought asylum in Australia and will return as failed asylum seekers on a temporary travel document now or in the reasonably foreseeable future, if returned to Sri Lanka.
In relation to the complementary protection criterion, the IAA observed that it had accepted the applicants may face some low level discrimination, harassment and/or disrespect. However, the IAA did not accept that this would result in significant harm, even taking into account the applicants’ “past trauma, young age and mental vulnerabilities”. Overall, the IAA was not satisfied that the applicants would face a real risk of relevant harm if removed to Sri Lanka (at [91]-[98]).
Based upon the above, the IAA affirmed the Delegate’s decision.
relevant legislation
Section 473DD of the Act provided:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii)is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
Section 473DE of the Act provided:
473DE Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i)has been, or is to be, considered by the Authority under section 473DD; and
(ii)would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b)explain to the referred applicant why the new information is relevant to the review; and
(c)invite the referred applicant, orally or in writing, to give comments on the new information:
(i)in writing; or
(ii)at an interview, whether conducted in person, by telephone or in any other way.
(2)The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.
(3)Subsection (1) does not apply to new information that:
(a)is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or
(b)is non-disclosable information; or
(c)is prescribed by regulation for the purposes of this paragraph.
Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
proceedings before this court
The applicants commenced these proceedings through an application filed on 17 November 2017. An amended application was filed on 13 August 2018. The following grounds were pressed by the time of the hearing:
The decision of the Immigration Assessment Authority (IAA) is affected by jurisdictional error because:
1.in refusing to consider the first applicant's attempted suicide, which was new information for the purpose of s 473DD of the Migration Act 1958 (Cth) (the Act), there was a constructive failure by the IAA to exercise jurisdiction because the IAA confined its consideration of whether there were exceptional circumstances for the purpose of s 473DD(a) of the Act to a consideration of whether the new information was not, and could not have been, provided to the Minister before the Minister made the decision under s 65 of the Act…
3.in considering new information about stateless persons of Indian origin under the Grant of Citizenship to Stateless Persons (Special Provision) Act No 139 of 1988, the IAA erred in concluding that there were exceptional circumstances for the purpose of s 473DD(a) simply on the basis that the new information was “important”; and
4.it was procedurally unfair for the IAA to find that the first and second applicants were citizens of Sri Lanka without first suggesting to the applicants that this was the effect of the Grant of Citizenship to Stateless Persons (Special Provisions) Act No 139 of 1988 and giving the applicants an opportunity to respond or provide comments, or alternatively in making such a finding the IAA failed to comply with the requirements of s 473DE of the Act.
Ground 1
By ground 1, the applicants contended that the IAA erred by confining its consideration of whether there were exceptional circumstances for the purpose of s 473DD(a) of the Act to a consideration of whether the new information was not, and could not have been, provided to the Delegate prior to their decision. In this regard, Mr Bannan for the applicant relied upon AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494. In that case, it was held that the IAA must assess new information against the criteria specified in both s 473DD(b)(i) and (ii) before taking that assessment into account in assessing the criterion in s 473DD(a).
The IAA dealt with what it considered to be “new information” regarding the first applicant’s attempted suicide at [11]-[15] of its decision:
11.…The other new information was that the first named applicant attempted to take her own life whilst in immigration detention.
12.I do not accept the information could not have been provided before the decision as it was information personally known to the applicants which occurred some years prior to the decision. Further, they were given opportunities at interviews and in writing to provide information. I am not satisfied that s473DD(b)(i) is met.
13.I accept the information is credible personal information which may have affected the consideration and therefore s473DD(b)(ii) is met.
14.I do not accept that there are exceptional circumstances to justify considering it as the information was within the applicants’ knowledge and occurred well before the interview and decision. Further, the applicant referred to other incidents that occurred in immigration detention and vulnerabilities, but did not refer to this information. The applicants were provided with opportunities to present their claims to the delegate both in writing and at interviews. Further, they had the benefit of legal representation. I do not consider they were not afforded procedural fairness or did not have the opportunity to provide the information. Further, there is no medical evidence before me which might indicate an ongoing or current risk of harm in that regard. Therefore, I do not consider there are exceptional circumstances. I am not satisfied that s473DD(a) is met.
15.Therefore, I have not considered the information.
I do not accept that the IAA, in the above extract, confined its consideration to whether the new information was not, and could not have been, provided to the Delegate prior to their decision. The IAA considered whether the information was capable of satisfying s 473DD(b)(ii). It found that this provision was met, as the information was “credible personal information which may have affected the consideration” (at [13]). However, the IAA was not satisfied that exceptional circumstances justified considering it. This was in circumstances where, inter alia, it considered that the information could have been provided earlier and considered a limitation it had identified in the evidentiary force of the information, namely that there was “no medical evidence… which might indicate an ongoing or current risk of harm in that regard” (at [14]).
I am therefore not satisfied that ground 1 ought to succeed on the basis that was contended. However, as I address below, there is a further issue related to this ground that warrants further consideration. That issue is whether the IAA erred in finding that the first applicant’s suicide attempt was “new information” and, if so, whether such an error was material to its decision.
The further issue
At the hearing of this matter, I queried the basis upon which the IAA found that the first applicant’s suicide attempt in detention was “new information”. This was in circumstances where the first applicant appeared to have provided a written statement prior to the Delegate’s decision in which she stated, inter alia:
I tried to kill myself in the detention centre by swallowing insecticide. This is a common method of suicide in India. The reason I was depressed was because of the severe discrimination and sexual violence I had suffered in my life as a Shakliyan or so-called “untouchable” person.
Mr Reilly, for the Minister, conceded on the basis of the above that the IAA had erred in considering that the information regarding the first applicant’s suicide attempt was “new information”. That concession was properly made.
Mr Reilly contended, however, that the IAA’s error in this regard could not have been material in the sense considered in cases such as Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.
There is some force to that submission. The IAA at [49] stated:
49.I have considered the harm the applicants suffered on the boat journey and in detention camp. I consider the harm suffered was at the instigation of the powerful group on the boat and do not accept that they face any such harm upon return to Sri Lankan [sic]. While I accept they have had trauma counselling and the first named applicant attempted suicide in immigration detention, there was no other medical evidence before me. In any event, I have also considered the applicants mental vulnerabilities as a result of past trauma in consideration of their claims.
The IAA then went on to take into account what it termed the “mental vulnerabilities” of the applicants in making findings in relation to various issues. This included at:
(a)[69]-[70] and [95], where it referred to the applicants’ “mental vulnerabilities” in assessing whether the discrimination it had found that the applicants may suffer was capable of amounting to serious or significant harm;
(b)[74], where the IAA referred to the applicants’ “mental vulnerabilities” in assessing whether the applicants faced harm relating to their ages, education levels, absence from Sri Lanka and gender;
(c)[77] and [97], where the IAA referred to the applicants’ “mental vulnerabilities” in assessing whether the applicants faced a real chance of harm by reference to various attributes.
The outcome of this case therefore turns on what the IAA meant when it referred to “mental vulnerabilities”.
Mr Reilly contended, by reference to [49], that this expression encompassed the IAA’s consideration and acceptance of the first applicant’s suicide attempt.
For the applicant, Mr Bannan submitted that content was given to this particular phraseology earlier in the IAA’s reasoning. At [5], the IAA referred to information that was before the Delegate regarding the first applicant’s “mental vulnerabilities”. It considered that this was not “new information” and that it had taken it into account. This information (regarding the applicant’s “mental vulnerabilities”) was then contrasted in the subsequent paragraph (at [6]) where the IAA considered what it thought was “new information” regarding the first applicant’s suicide attempt. At [15], the IAA expressed (in fairly certain terms) that it had “not considered” that information in coming to its decision. Read together, this indicated that despite the IAA referring to its acceptance that the suicide attempt had occurred (at [49]), it had also considered itself bound not to take that matter into account in assessing the first applicant’s “mental vulnerabilities” for the purposes of its later findings and ultimate conclusions.
On balance, I find that there is a possibility that if the IAA had not considered itself to be constrained in the manner that it expressed at [15], then it may have considered the first applicant’s “mental vulnerabilities” to be at a greater level than it ultimately did i.e. at a level that had previously motivated her to attempt suicide in the manner that she did. Had this level of vulnerability been considered, it is possible that the IAA may have reached a different conclusion regarding whether the discrimination and other difficulties that the IAA accepted the first applicant may face in Sri Lanka were capable of resulting in serious or significant harm.
The IAA may well not have reached such a conclusion. It may instead have reasoned that, given the lack of medical evidence referred to in [14] and [49], its assessment remained unchanged. However, as I have found the applicants were denied the possibility of a successful outcome, I find that materiality has been established. I therefore conclude that the IAA’s decision was affected by jurisdictional error.
Ground 3
By ground 3, the applicant contended that the IAA erred in concluding that exceptional circumstances justified consideration of the new information about stateless persons on the basis that the new information was “important”.
The impugned reasoning of the IAA is located at [34] of its decision:
34.I consider there are exceptional circumstances to consider this new information as the delegate did not consider the information or the first named applicant’s claim of being stateless and it is important to determine the applicant’s citizenship. Further, the applicant claimed to be both a citizen of Sri Lanka and stateless. It is an issue that needs to be resolved. While the delegate found the applicant was a citizen of Sri Lanka, I consider the information she relied on to be an insufficient basis for that finding in the face of the applicant’s claim to be stateless. In the circumstances, I consider there are exceptional circumstances to justify considering new country information which clearly resolves this issue.
I do not accept that, in the above reasoning, the IAA simply found that exceptional circumstances existed because the information was “important”. The IAA explained in more detail than this the significance of the new information and the reasons it had been considered.
In any event, I accept Mr Reilly’s submission that there is no basis for finding that the IAA approached the meaning of exceptional circumstances other than as that term was interpreted in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30] per Gageler, Keane and Nettle JJ (footnotes omitted):
30.Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.
In written submissions, Mr Bannan additionally contended that the IAA misapplied s 473DD(b). This aspect of the ground was not pressed at hearing.
For the above reasons, ground 3 is unable to succeed.
Ground 4
Ground 4 contended that it was procedurally unfair for the IAA not to have invited comment from the applicants regarding the country information it relied upon in rejecting the claim of statelessness.
At the hearing, Mr Bannan clarified that the applicants relied upon s 473DE of the Act in this regard and not common law procedural fairness. He also eschewed reliance upon concepts such as unreasonableness. Rather, Mr Bannan explained that the ground depended, solely, on an argument that the information was not excluded under s 473DE(3)(a) of the Act. In this regard, Mr Bannan submitted that the information was not “generic new country information” such as that about the political situation in Sri Lanka. He submitted that the information in question was specifically relevant to the applicants’ claims.
I accept Mr Reilly’s submissions as to why this contention is unable to succeed. Section 473DE(3)(a) of the Act excluded information that “is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member”. In Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264, it was stated in relation to similar statutory language at [138] per Merkel and Hely JJ:
138…the reference in s 424A(3)(a) to the class of persons is not another criterion to be met but, as is the case with s 57(1)(b), is designed to underline the specificity required by precluding any argument that reference to a class could be taken as a reference to all individuals (including for example, an applicant) falling within it…”
Plaintiff M61 /2010E v The Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [91] (per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel (as her Honour then was) and Bell JJ) makes clear that country information is treated as a class of information excluded under s 424A(3)(a).
The material at issue in the present case was citizenship legislation relating to a class of persons of which the first applicant was a member. It was not specifically about the first applicant.
It follows that ground 4 is unable to succeed.
CONCLUSION
As jurisdictional error has been demonstrated, the application before this Court succeeds.
I will hear the parties in relation to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 28 September 2022
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