FEC17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 977
•3 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FEC17 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 977
File number: MLG 2567 of 2017 Judgment of: JUDGE LADHAMS Date of judgment: 3 October 2024 Catchwords: MIGRATION – application for judicial review of a decision made by the Immigration Assessment Authority – whether the Authority failed to take into account relevant information or evidence – whether the Authority failed to correctly apply the complementary provision – whether the Authority misinterpreted the requirements of s 473DC of the Migration Act 1958 (Cth) – jurisdictional error established – writs issued. Legislation: Migration Act 1958 (Cth) ss 5AA, 36, 65, 473CA, 473CB, 473DB, 473DC, 473DD, 476, 477 Cases cited: AVG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 327
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34
DGF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 931
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3
EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12
Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185
Division: Division 2 General Federal Law Number of paragraphs: 74 Date of hearing: 9 August 2024, 19 September 2024 Place: Perth (via Microsoft Teams) Applicant: The applicant appeared in person Counsel for the First Respondent: Mr A Anastasi Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Clayton Utz ORDERS
MLG 2567 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEC17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE LADHAMS
DATE OF ORDER:
3 OCTOBER 2024
THE COURT ORDERS THAT:
1.A writ of certiorari issue to quash the decision made by the second respondent on 2 November 2017.
2.A writ of mandamus issue, directed to the second respondent, requiring it to reconsider according to law the matter referred to it pursuant to s 473CA of the Migration Act 1958 (Cth).
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 LADHAMS:
INTRODUCTION
The applicant is a citizen of Sri Lanka who applied for a protection visa. A delegate of the Minister refused to grant the applicant a protection visa and the Immigration Assessment Authority (Authority) affirmed the delegate’s decision. The applicant seeks judicial review of the Authority decision in the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (Migration Act).
The applicant raises three grounds which allege that the Authority made a jurisdictional error:
(a)by not taking into account relevant information;
(b)by ignoring relevant material in a way that affected its exercise of power; and
(c)by failing to apply the complementary provision correctly.
For the reasons explained below, I have found that the grounds raised by the applicant do not establish jurisdictional error.
However, the Court also raised an issue with the parties that appeared, on the face of the materials before the Court, to potentially amount to a jurisdictional error. As explained below, after considering the parties’ submissions, I have found that the Authority made a jurisdictional error by conflating the requirements of ss 473DC and 473DD of the Migration Act, by proceeding on the basis that the discretion to seek new information from an applicant at an interview can only be exercised where there are ‘exceptional circumstances’.
The application for judicial review is therefore successful and I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the matter according to law.
VISA APPLICATIONS AND DECISIONS
The applicant is a Sri Lankan Tamil who entered Australia in September 2012. He is an unlawful maritime arrival within the meaning of s 5AA of the Migration Act.
On 24 January 2013 the applicant participated in an Irregular Maritime Arrival Entry Interview (entry interview) with an officer of the Minister’s Department.
The applicant applied for a protection visa on 20 October 2016. His claims for protection were set out in a statement that accompanied his protection visa application.
On 21 March 2017 the applicant attended an interview with an officer of the Minister’s Department to discuss his claims for protection (protection visa interview). Following the protection visa interview, the applicant provided additional documents to the delegate as evidence of his identity, namely, a copy of his passport and birth certificate.
On 7 April 2017 a delegate of the Minister refused to grant the applicant a protection visa. The matter was referred to the Authority for review pursuant to s 473CA of the Migration Act.
The applicant provided a submission and statement to the Authority which was received by the Authority on 3 May 2017.
On 2 November 2017 the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.
SUMMARY OF THE AUTHORITY DECISION
The Authority had regard to the material given to it by the Secretary under s 473CB of the Migration Act and found that new information in the applicant’s submission did not meet the requirements of s 473DD of the Migration Act.
The Authority accepted the applicant’s nationality, ethnicity and identity and found Sri Lanka to be the receiving country for the purpose of the application.
The Authority accepted that the applicant’s family were placed in internally displaced people’s (IDP) camps at various times in the period between 2006 and 2012 and that the applicant worked in Qatar for a period in 2007. The Authority was satisfied that the applicant’s village was under the control of the Liberation Tigers of Tamil Eelam (LTTE) until 2006 and was the centre of major conflict during the civil war between 2006 and 2007. The Authority considered it was plausible that the applicant and his brother were caught by members of the Karuna Group in about 2006 and his brother’s head was shaved.
The Authority accepted that it was extremely likely that the applicant would have been questioned when in IDP camps about whether he had any involvement or association with the LTTE and accepted his evidence that he was rounded up with other Tamil men on two occasions in 2008 and 2012, questioned all day and then released. The Authority also accepted that the applicant was forced to cut wood for soldiers in 2010. However, the Authority noted that the applicant had not claimed that he was accused or suspected of being a member of or being involved with the LTTE.
The Authority had regard to country information to the effect that there was no information in relation to persons currently or previously aligned with the Tamil Makkal Viduthalai Pulikal (TMVP) or the Karuna Group being involved in criminal activity since the presidential election in January 2015 and was satisfied that there was no real chance that the applicant would suffer serious harm or significant harm from members of the TMVP or the Karuna Group.
The Authority accepted the applicant’s claim that his brother-in-law went missing in 2006, but did not accept that the applicant still considered him to be missing when he made his statutory declaration in 2013 or his protection visa application in 2016, noting that a document the applicant provided to the Department suggested that his brother-in-law was handed to his parents in January 2013. The Authority did not accept that the applicant’s brother-in-law went missing again in 2014. However, the Authority considered that even if the applicant’s brother-in-law had disappeared again, the applicant had not claimed that he was associated with his brother-in-law or imputed with any involvement in the LTTE when his brother-in-law was suspected of involvement. The Authority was satisfied that the applicant was not suspected of being involved with, or a member of the LTTE himself and that he was not of adverse interest to the authorities for reasons of his imputed or actual political opinion or connection with his brother-in-law at any time prior to his departure from Sri Lanka.
Taking into account the country information before it, the Authority was satisfied that there was no real risk that the applicant would suffer serious harm or significant harm solely on the basis of his Tamil ethnicity.
The Authority accepted that the applicant departed Sri Lanka illegally and would be considered to be a failed asylum seeker on his return to Sri Lanka. The Authority was not satisfied that the investigation and treatment the applicant may face as a consequence of being a failed asylum seeker or departing Sri Lanka in contravention of the Immigrants and Emigrants Act would amount to serious harm or to significant harm.
Based on these findings of fact, the Authority was not satisfied that the applicant met the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Migration Act.
JUDICIAL REVIEW APPLICATION
The application for judicial review was filed on 27 November 2017 and was therefore made within 35 days of the date of the Authority decision, as required by s 477(1) of the Migration Act.
The applicant raises three grounds in his application (reproduced without alteration)
1.The Second Respondent erred in law by making a decision not taking into relevant information.
2.The Second Respondent ignored relevant material in a way that affected its exercise of power.
3.The First and Second Respondent failed to apply the Complementary provision correctly.
The evidence before the Court comprises an affidavit of the applicant filed on 27 November 2017, annexing a copy of the Authority decision, the court book filed on behalf of the Minister on 22 August 2018 and an affidavit of service of Jared Percy Mintz filed on behalf of the Minister on 2 August 2024.
The matter first came before the Court on 9 August 2024. On that occasion, I raised an issue with the parties in relation to whether the Authority conflated the requirements of ss 473DC and 473DD of the Migration in the manner explained in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17) at [60]-[63] and gave the parties an opportunity to file written submissions, which the Minister did.
The matter came before the Court again on 19 September 2024 and on that occasion I heard oral submissions from both parties.
CONSIDERATION OF THE JUDICIAL REVIEW APPLICATION
The role of the Court in judicial review proceedings
The role of the Court in this judicial review proceeding is to rule upon the lawfulness or legality of the Authority decision by reference to the applicant’s complaints about that decision: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21; [2022] FCAFC 3 (Djokovic) at [17]. The Court does not consider the merits of the Authority decision: Djokovic at [17]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31].
The Court can only grant relief to the applicant if he establishes that the Authority decision is affected by jurisdictional error. Jurisdictional error was explained by the High Court in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12, where the Court said at [2]-[3] (footnotes omitted):
2Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …
3Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. … Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.
The matters raised in the applicant’s oral submissions
At both hearings, I explained to the applicant the role of the Court and the need for him to establish jurisdictional error in the Authority decision. I also explained to him that there was limited detail in his grounds of application and that he would have the opportunity to provide the details to the Court in his oral submissions so that the Minister and the Court could properly understand his grounds.
In his oral submissions at the second hearing, the applicant submitted that when he first arrived in Australia, he had an interview with an officer of the Department at the Curtin Detention Centre. During the interview, the interpreter told the applicant that his claims were very detailed and long, and that in the entry interview process, claims should be made briefly and he would have a further opportunity to explain his claims later. When he attended a subsequent interview in Melbourne with an officer of the Department, the officer conveyed that he could provide new documents. It was only at this opportunity that he could give new documents and explain his role with the LTTE. His brother-in-law was at that time involved with the LTTE. The Department officer asked the applicant why he did not raise this previously. When the applicant said that the interpreter told him he should give claims in brief, the Department officer asked who the interpreter was to tell him that. The Department officer then asked the applicant many questions and he provided documents. The applicant told the officer they were at liberty to listen to the entry interview to verify what the applicant said about the interpreter. The applicant submitted that the matter then went before the Authority and, within a week of submitting documents to the Authority, he received a decision that the application was rejected. He then got hold of a lawyer in 2017 and made an application to the Court.
The applicant submitted that he provided to the Authority and the Department all the documents that prove that he should have been accepted as a refugee. He does not know what else he should have provided so that he is acknowledged as a refugee. If he had a better understanding of why the Department rejected his application, he would be better placed to respond. The applicant acknowledged that he had been given the reasons for the decisions made by the Authority and the Department.
When I asked the applicant why he believed what he had said gave rise to jurisdictional error in the Authority decision, the applicant submitted that he gave the Authority all the documents to prove that he is a refugee and does not understand why the Authority did not accept it.
In relation to ground 1, I asked the applicant what relevant consideration he believes the Authority did not consider. The applicant submitted that he has been in Australia for 13 years and has been separated from family and does not remember the claims or the material that he provided initially. He submitted that he left his son and came here when his son was one and a half years old and he is now 14. His wife has left him and is now with somebody else and this affected the applicant mentally. He submitted that his parents are very elderly and everyone is depending on him. His brother-in-law was killed during the conflict and because of his involvement. They have two children. His other brother registered with the UNHCR but he has now lost touch. His sister’s husband has left her, she has a child and is living with their parents. Everybody is thriving and existing because of the applicant. He is very upset and has things going on in his personal life. He has difficulty recalling what he provided previously. The only reason he is still here and trying to remain here is because he is hoping to give his children a better future.
When I invited the applicant to provide further information about his grounds, he submitted that the grounds were written by a lawyer who assisted him to file the application to the Court and he does not have an understanding of the grounds and cannot address those grounds.
The matters raised in the applicant’s oral submissions do not establish jurisdictional error in the Authority decision. To the extent that the applicant’s submissions referred to having provided all the documents to the Authority to establish that he is a refugee, the applicant is inviting the Court to review the factual merits of the Authority decision. As indicated above, this Court has no jurisdiction to engage in merits review. It seems that the applicant believes that he meets the criteria to be granted a protection visa. The Authority did not find that he engaged Australia’s protection obligations and gave considered reasons for that finding. The applicant’s disagreement with the Authority decision does not, of itself, establish jurisdictional error in that decision: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40].
To the extent that the applicant refers to being told to give brief answers only at his entry interview, this does not establish jurisdictional error in the Authority decision. The Authority did not make adverse credibility findings about the applicant based on his failure to raise any matter in the entry interview.
The applicant provided a statutory declaration in September 2013. In that statutory declaration, he gave evidence that at the entry interview, he was told to keep his information as brief as possible, so he mentioned the first time he was detained by the Special Task Force in 2008, but not the second time in 2012. The Authority accepted at [11] of its reasons that the applicant was taken and questioned for a day on both occasions. The Authority therefore did not make any adverse inference on the basis that the applicant failed to raise the second incident at an earlier time.
Contrary to what may be implied from his submissions to this Court, there is nothing in the evidence before the Court to suggest that the applicant, at any stage when his application was before the Department or the Authority, claimed to have any involvement in the LTTE. The Authority’s lack of satisfaction that the applicant would face harm on account of any actual or imputed political opinion was open to it on the evidence before it.
In relation to the applicant’s brother-in-law, who the applicant referred to in the submissions to the Court, the applicant said in his 2013 statutory declaration that his sister’s husband disappeared during the war and they ‘don’t know where he is’. He gave evidence that the brother-in-law is missing and they ‘don’t know what happened’. The applicant provided a further statutory declaration in October 2016. In that statement, the applicant relevantly claimed that he continues to rely on his previous statement in support of his protection claims and gave some updated information about the circumstances of his family and friends. There is no information about his brother-in-law in that statement. The applicant provided further information about his brother-in-law in his protection visa interview with an officer of the Department. The Authority addressed the applicant’s claims in relation to his brother-in-law’s disappearance at [13] of its reasons, where it said:
The applicant’s evidence relating to his brother-in-law’s disappearance and release from rehabilitation has been inconsistent and is also inconsistent with the document he provided to the Department relating to his brother-in-law’s release from rehabilitation. Whilst I accept that the applicant’s brother-in-law went missing in 2006 at the height of the conflict in [place redacted] and at that time the family did not know where he was, I am not satisfied that the applicant thought he was still missing at the time he made his Statutory Declaration in September 2013 or his SHEV application in October 2016 as the document that he provided to the Department indicates that his brother-in-law was handed over to his parents [in] … January 2013. When this discrepancy was put to the applicant at his SHEV interview he stated that although his brother-in-law was released in 2013, the CID took him away again in 2014 and his sister registered a complaint with the Red Cross. He is unable to provide any documentation relating to his sister’s enquiries with the Red Cross. He stated that the reason he did not include information about his brother-in-law’s release in 2013 was because his lawyer advised him to tell the delegate at the interview. I do not find the applicant’s reasons for not advising the Department of his brother-in-law’s release persuasive. Based on the applicant’s inconsistent and somewhat implausible evidence that his brother-in-law was rearrested by the CID for no specified reason the year after his release from rehabilitation I am not satisfied that his brother-in-law disappeared again in 2014. However, even if his brother-in-law has disappeared or was detained again, the applicant has not suggested that he has been associated with his brother-in-law in any way or imputed with involvement in the LTTE when his brother-in-law was suspected to be, or found to be involved with the LTTE by the authorities.
As can be seen from this paragraph, the Authority’s concerns did not relate to any failure by the applicant to raise this issue at the entry interview, but were rather based on the inconsistencies in the applicant’s evidence and the inconsistencies with the supporting documents provided by the applicant. The applicant has not identified any jurisdictional error in the Authority’s reasons in relation to the applicant’s claim based on his brother-in-law’s disappearance.
To the extent that the applicant’s oral submissions relate to his current family circumstances, they do not assert or establish any jurisdictional error in the Authority decision. Any information about developments that may have taken place in the applicant’s family circumstances since the Authority decision are not matters that the Court can consider in determining whether or not the Authority made a jurisdictional error. The assessment of jurisdictional error is to be made based on the state of affairs that existed at the time of the Authority decision: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v EGZ17 (2022) 289 FCR 164; [2022] FCAFC 12 at [28]; Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500; [2016] FCAFC 185 at [77] (Mortimer J).
Grounds 1 and 2
By grounds 1 and 2, the applicant asserts that the Authority erred by not taking into account relevant information or material in a way that affects the exercise of its power.
The Authority was required to consider each of the claims expressly articulated by the applicant and their component integers, as well as any claims that were not expressly articulated, but which clearly emerged on the materials before the Authority based on established facts: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89 at [18]. The Authority was also required to consider relevant evidence, but did not necessarily need to refer to each item of evidence in its reasons: see, for example, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [44], [46].
The applicant did not indicate in his application what relevant information or material he believes the Authority did not take into account. In his oral submissions to the Court, when expressly asked about this, he spoke about his current family circumstances, his desire to provide a better future for his children, and his family members’ reliance on him.
As indicated above, much of this information is based on current circumstances. Any assessment of jurisdictional error is based on the state of affairs at the time of the Authority decision and, therefore, to the extent that the applicant’s oral submissions about his family were based on his current circumstances, they cannot establish jurisdictional error. More critically, however, the applicant did not advance any claims before the Department or the Authority that the circumstances of his family members generally would cause him to face a real chance of serious harm or a real risk of significant harm upon his return to Sri Lanka. To the extent that the applicant’s claims of past harm related to harm faced by his family members, such as his brother being taken by the Karuna Group and his brother-in-law disappearing in 2006, the Authority considered those claims in its reasons.
I have carefully reviewed the record of the applicant’s entry interview, his 2013 statutory declaration, his 2016 statutory declaration and the description in the delegate’s decision and the Authority’s reasons in relation to the matters that the applicant raised in his protection visa interview. I have not identified any claim, or integer of a claim, that was expressly raised by the applicant which was not considered by the Authority. I also have not identified any claim which was not expressly articulated but which clearly emerged on the materials before the Authority based on established facts, which the Authority failed to consider. I have not identified any evidence that the Authority failed to refer to in its reasons in a way that would suggest that critical information or evidence was overlooked.
Grounds 1 and 2 do not establish jurisdictional error.
Ground 3
By ground 3, the applicant asserts that the delegate and the Authority failed to apply the complementary protection provision correctly.
To the extent that this ground asserts error in the delegate’s decision, it is beyond the jurisdiction of the Court. The delegate’s decision is a primary decision within the meaning of s 476(4)(c) of the Migration Act and, pursuant to s 476(2)(a), this Court does not have jurisdiction in relation to primary decisions.
The applicant was unable to give any explanation of why he believes the Authority failed to properly apply the complementary protection provision, noting that a lawyer drafted the ground for him.
The complementary protection provision is set out in s 36(2)(aa) of the Migration Act. The Authority correctly identified at [25] of its reasons that a criterion for a protection visa is that the applicant is a non-citizen in Australia (other than a person who is a refugee) in respect of whom the Minister is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm. In the following paragraph of its reasons, the Authority accurately set out the definition of ‘significant harm’ in s 36(2A) of the Migration Act, namely, that a person will suffer significant harm if the person will be arbitrarily deprived of his or her life, the death penalty will be carried out on the person, the person will be subjected to torture, the person will be subjected to cruel or inhuman treatment or punishment, or the person will be subjected to degrading treatment or punishment. The Authority also correctly identified that ‘real chance’ and ‘real risk’ involve the same standard, citing Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33.
In assessing whether the applicant met the complementary protection criterion, the Authority relied on findings of fact about the applicant’s circumstances and possible treatment he may face on return to Sri Lanka that it made in the context of assessing his refugee claims. It was open to the Authority to do this. The Authority expressly considered whether the treatment that the applicant may expect to face would amount to ‘significant harm’ and found that it would not.
The Authority’s approach to assessing the applicant’s claims under the complementary protection criterion is entirely orthodox and does not disclose any jurisdictional error. Ground 3 is not established.
Whether the Authority misinterpreted the requirements of s 473DC of the Migration Act in the manner identified in EMJ17
The Authority is required to conduct the review in accordance with the provisions in Part 7AA of the Migration Act. These provisions include ss 473DC and 473DD. Section 473DC allows the Authority to get new information that was not before the delegate at the time of the decision made under s 65 of the Migration Act. Section 473DC provides:
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
Section 473DD restricts the circumstances in which the Authority may consider new information. The section provides:
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.
These two provisions were considered by Thawley J in EMJ17, where his Honour said at [60]-[63]:
60.The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) “new information” can, for present purposes, be summarised as follows:
(1)Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.
(2)In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.
(3)Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.
(4)The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.
(5)The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].
(6)The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).
(7)The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.
61.The appellant’s complaint is that the Authority approached its consideration of whether to exercise its discretion to “get” the “new information” by introducing a statutory hurdle which did not exist; namely that it had to be satisfied there were “exceptional circumstances” then existing which would later permit the Authority to “consider” any new information which it decided to get. The introduction of that hurdle is significant because the question of whether there were “exceptional circumstances” under s 473DD(a) might be affected by the nature and content of the material and that could not be known in any precise way because the Authority had not yet got the material – see paragraph [60(5)] above.
62.The Authority’s reasons are to be read in a practical common-sense manner and not be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The last sentence of A[7] indicates that the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were “exceptional circumstances” within the meaning of s 473DD. That was erroneous. Whether “exceptional circumstances” exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.
63.If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous (it is strictly unnecessary to decide that question) – the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), “exceptional circumstances” within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the “new information”. The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed “exceptional circumstances” within the meaning of s 473DD(a).
In the present matter, the applicant provided a submission to the Authority in which he said:
I also believe and request that I should be afforded an opportunity to present my claims in person, and therefore that the IAA should schedule an oral hearing. I submit that the IAA would fall into error if it did not conduct a hearing, particularly if it makes adverse credibility findings.
The Authority addressed this request at [4] of its reasons:
I have noted the applicant’s request for an opportunity to respond to any adverse credibility findings at a hearing. Section 473DC of the Act provides that while the IAA may get any information not before the Minister and which it considers relevant, it does not have a duty to get, request, or accept new information. Subject to the requirements of the Act, the IAA must review a decision by considering the review material without interviewing the referred applicant and, other than in exceptional circumstances, must not consider new information: ss.473DB(l)(b) and 473DD. I have decided in the circumstances of this case not to invite the applicant to provide any response or information as I do not consider there are exceptional circumstances in this matter.
As noted above, when this application first came before the Court for hearing, I raised with the parties whether the Authority’s reasons at [4] show that the Authority made the type of error identified in EMJ17 and gave the parties an opportunity to file further submissions.
The applicant advanced no submissions on this issue. The Minister submitted that the present case was distinguishable from EMJ17 and, in advancing that submission, relied on similarities in the Authority’s reasoning in the present case and in AVG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 327 (AVG18) in which I considered that EMJ17 could be distinguished.
Any assessment of whether the Authority made the type of error described in EMJ17 is necessarily fact specific and requires the Court to have close regard to the particular reasoning in the Authority decision under review. As explained in EMJ17, it may have been open to the Authority to find that there was nothing exceptional about the circumstances of the matter before it in deciding not to exercise its discretion to get new information at an interview, but the Authority would have made an error if, properly construed, its reasons indicate that it proceeded on the basis that there must exist exceptional circumstances within the meaning of s 473DD(a) of the Migration Act at the time it decided whether or not to exercise its discretion in s 473DC of the Migration Act to get new information.
In the present case, as in EMJ17 and AVG18, any assessment of whether the Authority erred requires the Court to draw inferences about the meaning of the Authority’s reasons. This can be contrasted with reasoning such as the reasoning I considered in DGF17 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 931 (DGF17), in which the Authority expressly misstated the relevant statutory tests by saying that ‘the IAA is a limited form of review and can only obtain or consider new information in exceptional circumstances’: see DGF17 at [9].
The relevant reasoning of the Authority should be read in its proper context and without an eye keenly attuned to the perception of error.
The reasoning of the Authority that Thawley J found to be affected by error in EMJ17 was:
The submission contends that information regarding the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia at the present time. The IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.5H(1) of the Act. I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant’s application for protection in Nauru.
The reasoning that I found was not affected by error in AVG18 was:
I have noted the request in the submission for the IAA to provide the applicant with an interview if the IAA makes findings that any of the applicant’s evidence lacks credibility. Section 473DC of the Act provides that while the IAA may get any information not before the Minister and which it considers relevant, it does not have a duty to get, request, or accept new information. Subject to the requirements of the Act, the IAA must review a decision by considering the review material without interviewing the referred applicant. In this matter I do not consider there are exceptional circumstances to justify interviewing the applicant.
The reasons I found that the Authority did not make an error in AVG18 included that:
(a)the Authority expressly and accurately referred to the power to get new information in s 473DC of the Migration Act, including the non-compellable nature of that power, without referring in any way to s 473DD of the Migration Act in the relevant paragraph and there was nothing in the reasoning as a whole to suggest that the Authority imported the exceptional circumstances test in s 473DD(a) to its consideration of whether it should exercise its discretion in s 473DC to get new information: AVG18 at [24]; and
(b)the Authority referred to the general position that, subject to the requirements of the Migration Act, the Authority is to conduct the review by considering the review material and without interviewing the referred applicant, thereby acknowledging that there is no expectation in the Migration Act that the power to interview the applicant would ordinarily be exercised in every case, and therefore it is within the scope and power of s 473DC of the Migration Act for the Authority to make reference to the absence of anything out of the ordinary: AVG18 at [25].
The Minister submitted that the Authority’s reasoning in the present case is indistinguishable from that in AVG18 save for that the Authority here referred to s 473DD(a) of the Migration Act. The Minister submitted that the Authority’s reference to s 473DD was in the course of describing the statutory scheme in the same sentence in which it described s 473DB(1) of the Migration Act.
In my view, while there are some similarities between the Authority’s reasoning in the present case and that considered in AVG18, the differences, particularly the reference to s 473DD, are significant.
There is no error in the Authority’s summary of the relevant law in the second and third sentences of its reasons in [4] at the present case. However, the Authority immediately after referring to the need for the exceptional circumstances in s 473DD(a) of the Migration Act declined to invite the applicant to an interview, finding that there were no ‘exceptional circumstances in this matter’. The Authority’s refusal to exercise the discretion in s 473DC of the Migration Act because there were no exceptional circumstances in the matter, immediately after referring to the need for there to be exceptional circumstances for the purpose of s 473DD, suggests that the Authority proceeded on the understanding that there would need to be ‘exceptional circumstances’ within the meaning of s 473DD before it could exercise its discretion in s 473DC to get new information from the applicant at an interview.
At the second hearing, I invited Counsel for the Minister to address the Court on the significance, if any, of the final words of [4] of the Authority’s reasons, namely, that there were no exceptional circumstances ‘in this matter’. This is less specific than the words used in both AVG18 and EMJ17, in which the Authority found that there were not exceptional circumstances to justify getting new information or interviewing the applicant. Counsel for the Minister submitted that this simply shows the Authority was assessing the circumstances before it and saying that the circumstances were not sufficiently unusual or exceptional to warrant getting new information from the applicant, and not an indication that the Authority considered itself confined by the question under s 473DD of the Migration Act before inviting the applicant to an interview or to comment on information.
The words ‘in this matter’ in my view do not show with any certainty whether or not the Authority conflated the requirements of ss 473DC and 473DD of the Migration Act in considering the specific circumstances of the case before it. I cannot infer from those words that the Authority was only considering whether there was a basis to get new information from the applicant, without importing the ‘exceptional circumstances’ requirement in s 473DD of the Migration Act. However, those words also do not conclusively show that the Authority conflated the requirements of ss 473DC and 473DD of the Migration Act.
On balance, I consider that the Authority’s refusal to interview the applicant because there were no exceptional circumstances in this matter, made immediately after a reference to the requirement in s 473DD of the Migration Act that the Authority must be satisfied that there are exceptional circumstances before it can consider any new information, suggests that the Authority considered that it could only invite the applicant to attend an interview if it was satisfied that there were exceptional circumstances within the meaning of s 473DD. There is nothing in its reasons to suggest otherwise. I find that this is a jurisdictional error.
Before leaving the consideration of this issue, it should be noted that the Authority gave its reasons in this matter prior to the delivery of EMJ17, and without the benefit of Thawley J’s reasoning. It should also be noted that the Authority was responding to a request for an interview that lacked any meaningful detail as to why the applicant should be invited to an interview in this particular case (save for objections to the scheme under Part 7AA as a whole). Further, the Authority did not have any statutory requirement to give reasons for procedural decisions such as the exercise of the discretion in s 473DC of the Migration Act: BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29; [2019] HCA 34 at [2], [40]. In these circumstances, the lack of detail in [4] of the Authority’s reasons in relation to the case specific reasons for not inviting the applicant to attend an interview or to otherwise provide new information is understandable. Nevertheless, I have found that the reasons disclose error and it is appropriate to quash the Authority decision and require the Authority to make a new decision according to law. This does not mean that the Authority, upon remittal, is required to exercise its discretion to invite the applicant to attend an interview or otherwise provide new information. Rather, it means that in deciding whether or not the applicant should be invited to attend an interview, the Authority is to proceed on the understanding that it is not necessary to be satisfied, at the time of exercising the discretion in s 473DC of the Migration Act, that there be exceptional circumstances within the meaning of s 473DD of the Migration Act. It is only after the Authority gets new information that the requirements of s 473DD are to be assessed.
CONCLUSION
Given that I have found the Authority made a jurisdictional error, I issue a writ of certiorari to quash the Authority decision and a writ of mandamus to require the Authority to reconsider the matter according to law.
I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Ladhams. Associate:
Dated: 3 October 2024
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