FEQ17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 121
Federal Circuit and Family Court of Australia
(DIVISION 2)
FEQ17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 121
File number(s): SYG 3686 of 2017 Judgment of: JUDGE GIVEN Date of judgment: 21 February 2023 Catchwords: MIGRATION – Issue raised by Minister in accordance with obligations as model litigant – 473GB certificates – whether inclusion of confidential yet irrelevant information in review material was sufficiently prejudicial as to give rise to an apprehension of bias – confidential Exhibits – suppression and non-publication orders Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 230, 231, 232
Migration Act 1958 (Cth) ss 5J, 36, 438, 473GB, 486N
Cases cited: AAL19 v Minister for Home Affairs & Anor (2020) 277 FCR 393
BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29
C7A/2017 v Minister for Immigration and Border Protection(No 2) [2020] FCAFC 70
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456
Hogan v Hinch (2011) 243 CLR 506
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 42
Orell v Forrest [2021] FedCFamC2G 197
Thind v Minister for Immigration and Border Protection [2013] FCCA 1438
Division: Division 2 General Federal Law Number of paragraphs: 83 Date of hearing: 10 June 2022 Place: Sydney The Applicant: In person Counsel for the Respondents: Mr J Kay Hoyle Solicitor for the Respondents: Mills Oakley ORDERS
SYG 3686 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FEQ17
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First RespondentIMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE GIVEN
DATE OF ORDER:
21 February 2023
THE COURT ORDERS THAT:
1.Pursuant to s 232(1)(a) and (c) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act), until further or other order of this Court or the Federal Court of Australia, the Exhibits marked “EJT-3” and “EJT-4 to the Affidavit Edwin Jack Taylor made 28 March 2022 (confidential Exhibits) are suppressed, and must not be disclosed or published other than to a Court.
2.A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 31 October 2017 into this Court for the purpose of quashing it.
3.A writ of mandamus shall issue, requiring the Immigration Assessment Authority to re-determine, according to law, the review referred to it.
4.The first respondent is to pay the applicant’s costs and disbursements of the proceedings limited to any:
(a)filing fee; and
(b)setting-down fee;
paid by the applicant to the Court, within 35 days of the applicant providing proof of payment of same.
5.The parties have liberty to apply at any time to seek to vary order 1.
THE COURT NOTES THAT:
1.The confidential Exhibits are sealed in an envelope, initialled by the Court, to which a sealed copy of these orders is attached, and are held with the relevant files in the Court’s Registry at Level 17, Law Courts Building, Queens Square, Sydney, 2000.
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 GIVEN:
The applicant seeks review of a decision of the Immigration Assessment Authority (Authority) made on 31 October 2017 (Court Book (CB) 251 to 270) which affirmed a decision of a delegate of the first respondent (delegate) refusing to grant the applicant a Safe Haven Enterprise (subclass 790) visa (visa).
Background
The background to the application is derived predominantly from the first respondent’s written submissions but does not appear to be in dispute.
The applicant is a citizen of Sri Lanka who arrived in Australia by boat as an Irregular Maritime Arrival (IMA) on 22 November 2012 (CB 219). On 30 January 2013 the applicant attended an IMA entry interview (entry interview) (CB 2 to 20). Travelling with the applicant at the time of his arrival was his wife, their daughter and the son of the applicant’s wife (born of her prior marriage) (K). Also with them were two children of K. The applicant’s wife and daughter had separate IMA interviews and, ultimately, made visa applications separately from the applicant’s visa application.
The applicant claimed to fear harm in Sri Lanka by reason of his imputed involvement with the Liberation Tigers of Tamil Eelam (LTTE) because certain of his family members had been politically active in the 2007 and 2012 elections, his step-son having been involved with the capture of a “greased man”, and as a returned asylum seeker because of the applicant’s illegal departure from Sri Lanka. The applicant also claimed to fear harm from Hindus because he had converted to Christianity, from people smugglers and from Sri Lankan authorities because of assault proceedings against him in Australia.
On 26 December 2015 the applicant applied for the visa (marked as received on 6 January 2016) (CB 78 to 139). He was assisted and represented in relation to his visa by a migration agent, who was also a solicitor. With the visa application the applicant submitted:
(a)a statutory declaration made by the applicant on 26 December 2015, by which he set out his claims for protection (first declaration) (CB 126-143); and
(b)a Psychological Assessment Report dated July 2014 (PAR) prepared by a clinical psychologist for the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STARTTS) (CB 145 to 158).
By the first declaration the applicant said that he was estranged from his wife and daughter (as of 26 December 2015) due to a “family dispute”. The applicant said he had been convicted of common assault (which he described as “domestic violence”) and imprisoned for 1 month in 2014. Subsequently, the applicant was subject to an 18 month good behaviour bond and a 12 month Apprehended Violence Order (AVO) (CB 126). The applicant spent time in immigration detention while his family was in the community.
Among matters recorded in the PAR were the following which are relevant to the instant case:
(a)that its author had prepared the PAR on the basis of a 90 minute assessment interview with the applicant, held on 16 July 2014 (CB 146); and
(b)the applicant recounted to the psychologist that, following an argument with his (then) 17 year old daughter about her refusal to attend school, he had been “sent to gaol at Silverwater correctional complex without a trial”, that charges laid against him were false (CB 147, 153 and 156 to 157) and that his wife had denied the incident as presented by police on her behalf.
At or about the same time as the applicant made his visa application in December 2015, the applicant’s wife and daughter applied for their visas, making stand-alone claims for protection The applicant’s wife and daughter were represented by the same migration agent/solicitor in respect of their visa applications.
On 14 February 2017, being shortly before his interview with the delegate, the applicant provided a second statutory declaration made on that date (second declaration) (CB 207 to 210), by which he referred to having sought the services of a counsellor to assist in reconciling with his family (first counsellor). The first counsellor told the applicant that he should utilise the services of a counsellor closer to where he lived, and he eventually found another counsellor (counsellor) to whom he explained the problems he had with his family (CB 208 at [1] to [5]). The second declaration said that the counsellor then met with the applicant’s family at their home following which, a visit to the counsellor’s office was arranged for all the family members. The applicant’s evidence as contained in the second declaration was that the counsellor had played an important role in convincing his wife to allow him to return to living with the family in the marital home (CB 209 at [12]).
On 16 March 2017, a delegate of the first respondent refused to grant the applicant the visa (CB 219 to 234). The delegate found that the applicant was estranged from his wife and daughter due to a “domestic dispute” which resulted in the good-behaviour bond and an AVO referred to at [6] above. The delegate also noted the 2014 assault charge in relation to his daughter but that ultimately no conviction was recorded. The delegate observed that the applicant was said to have reconciled with his family.
On 21 March 2017, the decision was referred to the Authority for review.
As part of the referral, the Authority was notified of two certificates issued pursuant to s 473GB of the Migration Act 1958 (Cth) (Act), both dated 16 March 2017, in respect of documents which were included by the Secretary in the review material provided to the Authority as part of the referral. The first certificate (CB 239) covered two documents, namely a New South Wales Police Liaison Request and a report to the Commonwealth Ombudsman about the applicant under s 486N of the Act.[1] The second certificate (CB 240) covered a number of documents which included copies of the Safe Haven Enterprise visa (SHEV) applications from the wife and daughter and other correspondence which related to the applicant.
[1] Which requires the Secretary to periodically report to the Commonwealth Ombudsman about persons in detention
The applicant did not submit anything to the Authority in relation to the review (CB 252 at [4]).
Authority decision
On 31 October 2017 the Authority affirmed the decision of the delegate to refuse the applicant the visa.
The Authority set out the applicant’s claims for protection (CB 252 to 254 at [1] and [5] to [8]).
The Authority recorded that it had “had regard to the material given by the Secretary under s.473CB” of the Act (CB 252 at [3]) but otherwise made no reference to the material that was the subject of the s 473GB certificates, nor did it disclose the fact of the existence of the certificates themselves (at any point in the decision, or before its making).
As part of its summary of the applicant’s circumstances, the Authority said the following at [7] about events following the applicant’s release from custody in relation to his assault charge and subsequent immigration detention:
On release from detention, he resided separately from his family for approximately six months until he returned to the family home in about August 2016 following the intervention of a counsellor. Despite residing in the same house, information before the delegate suggests the applicant remains estranged from his wife and daughter and has not genuinely reconciled. On the evidence before me, the applicant appears to be separated from his wife but living under the same roof and does not appear to be wholly or substantially financially, physically or emotionally reliant on his wife or daughter or vice versa. The applicant’s wife and his daughter are independently in receipt of Centrelink income and the applicant’s granddaughters are nominated as dependents of the applicant’s wife.
The structure of the Authority’s decision can be summarised as follows. First a consideration of the applicant’s claims against the s 36(2)(a) refugee criterion (CB 254 to 263 at [9] to [49]), then the applicant’s claims by reference to the s 36(2)(aa) complementary protection criterion (CB 263 to 265 at [50] to [61]) before turning to the question of the other members of the “same family unit” (CB 265 to 266 at [62] to [66]). At [64] of its decision the Authority said as follows:
I hold concerns about the irregularity of the counsellor’s intervention and engagement with the applicant’s wife and daughter as described by the applicant. I consider it unusual and inappropriate for a relationship counsellor to approach estranged family members in person, on their doorstep and without prior invitation. On the evidence before me, reconciliation as described by the applicant appears to have been initiated proactively and aggressively by the applicant with strong intervention by a counsellor acting on the applicant’s behalf. Given the finding of a court that the applicant had committed a criminal offence against his daughter in 2014, the court’s order for a 12 month apprehended violence order to be in place, that the applicant had lived separately from his family while in detention and previously for six to seven months in the community (totalling in excess of two years), and the nature of the interventions of a counsellor acting in the husband’s interests, I am not satisfied the wife has genuinely reconciled with her husband, despite allowing him to return to reside in the same house.
The Authority found, based on the family’s continuing estrangement, that the applicant was not a member of the same family unit as the wife and daughter for the purposes of s 36(2)(b)(i) and (ii) of the Act.
The Authority addressed the PAR at two parts of its decision, namely:
(a)at [13][2] where it noted the context in which the assessment was made, being a single interview at a particular point in time. The Authority found that (having listened to the entry and visa interviews) it was satisfied the applicant had been able to present his claims adequately. The Authority did not make any adverse findings about minor anomalies in the applicant’s evidence; and
(b)at [54][3] where it noted the applicant had not provided any further detail about his mental health issues other than the PAR. Based on country information, and the nature of the available evidence (in the PAR), the Authority found the applicant would not suffer significant harm by reason of any unavailability of health resources in Sri Lanka.
[2] CB 255
[3] CB 264
The Authority accepted the applicant’s claim that he had been harassed, questioned and mistreated by the authorities during his time in Colombo because of an imputed association with the LTTE (CB 255 at [14]). However, the Authority observed that whenever detained the applicant had been consistently released, and had not been the subject of any rehabilitation process, or required to report to the Sri Lankan authorities (CB 255 to 256 at [14] to [15]). The Authority noted the applicant had not claimed to have experienced any difficulties with the authorities on departure, or that he would return to return to Sri Lanka. The Authority found that these matters indicated that the applicant did not hold any profile of interest to the authorities between 1997 and 2007 by reason of any perceived involvement with the LTTE (CB 256 at [15] and CB 259 at [30]).
The Authority also considered the claim about the abduction of his daughter and, by reference to country information about harassment of women and children, accepted that the daughter had been abducted and released a short time later (CB 258 at [26]). However, the Authority took the view that the circumstances of the abduction were such as to suggest it was a random criminal act, rather than that the family was targeted by Karuna Group members or others because of the connection to K or to the applicant (CB 258 at [26]). The Authority noted that the applicant had only heard about the incident after it occurred, and it was not satisfied that the applicant faced harm due to the abduction (CB 258 at [27]).
In relation to the applicant’s claim to fear harm from people smugglers who had assisted the applicant to travel to Australia, the Authority analysed the applicant’s evidence but was not satisfied that any harm feared from a particular person involved in that operation was motivated by any of the reasons in s 5J(1)(a) of the Act (CB 259 to 260 at [31]).
The applicant claimed to fear harm by reason of his conversion to Christianity in Australia. Based on country information and also the applicant’s circumstances, including the limited extent of his church activities, the Authority was not satisfied that he faced a real chance of any harm on return to Sri Lanka by reason of his conversion to Christianity (CB 260 at [33]).
In relation to the claim to fear harm from Sri Lankan authorities by reason of his having been charged with the assault of his daughter, the Authority considered the evidence and found that given the good-behaviour bond period had expired, that no conviction had been recorded, that there was nothing to suggest there was any record remaining against the applicant which would reveal the proceedings on return and it was not satisfied that said proceedings would (in and of themselves) expose the applicant to further charges, questioning or detention on return to Sri Lanka (CB 260 at [34]).
The Authority was also not satisfied as to the applicant’s claims to fear harm as a returned asylum seeker (CB 261 to 262 at [36] to [46]).
Given the provision of the PAR, the Authority considered it might give rise to a fear of harm, despite the fact the applicant had not indicated how this might occur. Based on available country information the Authority was not satisfied that the applicant would be denied (or unable to access) medical treatment or services in Sri Lanka for any of the reasons in s 5J(1)(a) of the Act (CB 262 at [47]).
Having found that the applicant did not, individually or cumulatively, face a real chance of serious harm in Sri Lanka at that time, or in the reasonably foreseeable future, based on his claims for the purposes of s 36(2)(a) of the Act, then relying on its anterior factual findings it was also not satisfied the applicant met the s 36(2)(aa) criterion either (CB 262 to 265 at [48] to [61]).
Application to this Court
By an application to show cause filed with this Court on 28 November 2017, the applicant sought review of the Authority’s decision and raised four, particularised grounds of review. The applicant has been unrepresented since the inception on the proceedings.
The matter was initially docketed to another Judge of the Court (first primary Judge). On 2 March 2018, the parties appeared at a directions hearing before the first primary Judge on which occasion his Honour made orders by consent, which included leave to the applicant to file Affidavit evidence and any amended application by 27 April 2018. No hearing date was set on that occasion, with a final hearing to be listed either administratively or at an (as yet unscheduled) callover. The matter was later transferred to the central migration docket upon the retirement of the first primary Judge until when, on 22 December 2021, it was brought into my docket and listed for hearing.
On 28 March 2022 an Affidavit of Edwin Jack Taylor affirmed on the same date, was filed for the first respondent (Taylor Affidavit) in a redacted form. The redacted form of the Taylor Affidavit is comprised of:
(a)The body of the Taylor Affidavit;
(b)Annexure “EJT-1” being 2 documents the subject of the first non-disclosure certificate, which the first respondent concedes is invalid and over which no claim for privilege is now made. Consequently, Annexure “EJT-1” is not redacted;
(c)Annexure “EJT-2” being five of seven documents contained in the Department’s files which were the subject of the second non-disclosure certificate, which Mr Taylor redacted and over which the first respondent makes a claim of public interest immunity;
(d)Exhibit “EJT-3” being an un-redacted version of “EJT-2”, which was sealed in an envelope and delivered to my Chambers in advance of the hearing; and
(e)Exhibit “EJT-4” being a USB drive containing 2 audio recordings which are the remaining two of seven documents contained in the Department’s files which were the subject of the second non-disclosure certificate, which was sealed in an envelope and delivered to my Chambers in advance of the hearing.
In respect of Exhibits “EJT-3” and “EJT-4” (confidential Exhibits), they remained sealed until I opened them in order to prepare these reasons for judgment. The confidential Exhibits, while present in the Court room during the hearing, were not considered by the Court before or during the hearing, nor was the Court requested to access them at that time.
In accordance with the Court’s orders, the first respondent filed written submissions in advance of the hearing. The applicant at no time filed any amended application, nor sought leave to do so beyond the time granted to him by the first primary Judge. The applicant advanced no additional evidence beyond his Affidavit made on 17 January 2017 which was filed in support of the originating application,[4] nor did he file any written submissions. The applicant was unrepresented at the final hearing of the matter, but assisted by an interpreter in the Tamil language. The first respondent was represented by Counsel.
[4] Which served solely to annex the Authority’s decision which was later included in the Court Book.
The grounds of review in the originating application which fall for consideration are as follows (omitting particulars):
1.Ground 1 – The IAA failed to consider essential integers of the applicant’s claims [8] and circumstances when assessing future harm.
2.Ground 2 – The IAA failed to consider the psychological assessment report, and even if it did gave less weight [13] to this report prepared by the expert witness because the report is based on a single interview.
3.Ground 3 – The IAA failed to consider that the applicant’s daughter was abducted by members of the Karuna Group in a white van [26].
4.Ground 4 – The IAA failed to consider future harm the applicant would face due to being “the subject of adverse interest by the CID and police” [14].
In addition to addressing the grounds of review, the first respondent very properly raised an issue for consideration to which the Taylor Affidavit went. Namely, whether the decision of the Authority is affected by jurisdictional error by reason of the Authority’s treatment of documents the subject of s 473GB certificates and, more specifically, in the manner found in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 (CNY17).
At the commencement of the hearing, the Taylor Affidavit was read for the first respondent. The significance of the Taylor Affidavit and the concept of the Confidential Exhibits was traversed (the latter in neutral terms) by Counsel for the first respondent, following which I explained the applicant the nature of the issue, why the Taylor Affidavit was in redacted form and that the Court was being asked to have regard to the Confidential Exhibits, in due course. With that knowledge, the applicant indicated that he had no objection to the Taylor Affidavit being received. The Court Book was received with no objection and marked Exhibit “1R”.
At the conclusion of the hearing, the parties were each given leave to file a supplementary written submission including, in the case of the applicant, going to any of the four grounds of review in the originating application if he wished to say anything about those as well. Only the first respondent took up that grant of leave, later advancing submissions to ground a suppression order sought in relation to the confidential Exhibits.
The grounds of review contained in the originating application can be dealt with in short compass, having not been augmented by the applicant by any submissions. Further, they largely cavil with the merits of the Authority’s decision and the weight given to evidence. The central issue in this review, albeit not advanced by, or engaged with, by the applicant, is the additional issue raised by the first respondent.
Ground 1
By this ground the applicant contends that the Authority failed to consider essential integers of his claims and circumstances when assessing future harm. The ground itself contains pinpoint reference to “[8]” which, it is presumed, should be taken as a reference to [8] of the Authority’s reasons for decision. By the particulars to this ground the applicant simply reserved the right to provide further details upon receipt of the Court Book. The Court Book was filed on 3 April 2018[5] and served on the applicant by post on 4 April 2018.[6]
[5] 3 days out of time
[6] Affidavit of Sophie Caroline Roberts affirmed 31 March 2022 at [5] and Annexure “SCR-3” thereto
As is customary in migration matters, the Court Book was filed and served in advance of the date upon which the applicant has leave to file any amended application, with a view to the applicant being able to do so with the benefit of the Court Book. Accordingly, the applicant had the Court Book for approximately 3 weeks before the deadline by which the amended application was due. Nothing was filed within that time, or in the 4 years which followed, to further particularise this ground.
Paragraph [8] of the Authority’s reasons is its summary of all of the applicant’s claims. Accordingly, without further particularisation the ground is not capable of meaningful consideration. On a fair reading of the Authority’s decision there do not appear to be any of the essential integers of the applicant’s claims and circumstances which the Authority failed to consider when making its decision, or more specifically, assessing the question of future harm. Accordingly, ground 1 is not made out.
Ground 2
This ground takes issue with the Authority’s consideration of the PAR at [13] (CB 145 to 157) of its decision. By that paragraph the Authority briefly summarised the PAR and said:
…I note that the psychological assessment report is based on a single interview occurring on 17 July 2014 and reflects the applicant’s mental state at that point in time. Given his presentation in 2014 was said to be impacted, in part, by his experiences in Sri Lanka, and having regard to his age and also the impact of his travel to Australia, I am mindful of the difficulties the applicant may have had in presenting his claims for protection…
Later in the decision when considering the complementary protection criterion, the Authority referred at [54] to the PAR and its conclusions about the applicant’s mental state. In doing so the Authority observed that:
…While the report recommended he receive supportive counselling, including the prospect of possibly accessing trauma specific counselling in the future, I note that this position was derived following a single interview with the applicant in July 2014 and no further detail has been provided about the status of the applicant’s mental health, whether he has engaged in counselling or his future treatment needs since the date of the report. It is not clear whether the applicant’s mental health relates to an express claim for protection or that he fears persecution on this basis. Notwithstanding, I note that country information indicates that in Sri Lanka universal, free health care is available through the public sector health system but facilities vary and some medicines or treatments may need to be accessed from private providers…
before going on the further consider the situation in respect of health care in Sri Lanka based on country information.
By the particulars to this ground the applicant seems to assert that the Authority’s reference to the fact that the PAR was based on a single interview, somehow means that it discounted the PAR contents such that there was no basis to conclude that the applicant’s emotional and mental health had not hampered his ability to present his protection claims. To the extent that it is suggested the Authority used this factor in an adverse way, or that its conclusions as to the limitation of the PAR were not open to it, I reject that assertion.
Firstly, the Authority’s observation that the PAR was based on a single interview was just that: an observation about an objective fact. The description of the PAR at [13] as reflecting the applicant’s mental state at a particular point in time is also unremarkable and neutral. Next, and, as is apparent from [54] of its reasons, the Authority (while noting the limitations and lack of detail surrounding the mental health claims) went on to consider the claim as best it could on the material before it, the potential availability of health services to the applicant. I agree with the first respondent’s submission that the Authority’s findings in this regard were open to it based on the material before it and that its assessment of this material was neither unintelligible, nor irrational. The Authority was confronted with material of limited scope and probative value, having regard to fact that there was material before it about ongoing mental health issues. The Authority assessed the applicant’s answers and reached a conclusion available on the material. It also went further to the benefit of the applicant, by considering the possibility (not advanced by the applicant) that he maybe was making a claim about health resources in Sri Lanka.
In all the circumstances of this case, ground 2 is not made out.
Ground 3
By this ground the applicant challenges the Authority’s finding at [26] and says that the Authority failed to consider a claim that his daughter had been abducted by members of the Karuna group in a white van.
The ground fails at a factual level.
The Authority clearly considered this claim at [25] and expressly accepted that an abduction of the daughter had occurred.
What the Authority was not prepared to accept however, was that the applicant’s daughter was taken by members of the Karuna Group and, relying on the circumstances of the abduction and the short length of time that the daughter was detained before being released, it found that the act was a random criminal abduction. Based on the available material, this conclusion was clearly open to the Authority.
I agree with the submissions of the first respondent that the ground essentially seeks to challenge the conclusions of the Authority. The Authority finding that a claim cannot be accepted in all its integers is different than a failure to consider the claim at all. While the applicant may be disappointed by the nuance of the finding, and the outcome, this does not mean that a consideration did not take place. That consideration, and the conclusion reached by the Authority, was based on probative material, notably the nature and timing of the abduction (taking into account the Authority’s other findings about the applicant’s claims at [26] to [27]).
Ground 3 must fail.
Ground 4
The final ground as raised by the applicant in his originating application alleges that the Authority failed to consider the future harm he would face by being the subject of adverse interest by the CID and police, which he says is at odds with the Authority’s acceptance that he had been “displaced, harassed, question, mistreated and detained by the authorities”.
The first respondent submits that the ground appears to be based on a misconception. I agree.
The applicant correctly observes that the Authority accepted his claims to have been harassed and mistreated by the authorities, including the CID, during the time he worked in Colombo. However, that finding must be considered in the broader context of findings made to the effect that the applicant was released each time and was not required to undertake reporting or rehabilitation, as would more likely be the case with members or suspected members of the LTTE. In essence the Authority took the view that while the authorities had been interested in the applicant at a particular time, that interest was low level, not long-lasting and there was not a likelihood that he continued to be of interest to them by reason of any putative connection with the LTTE (at [15]). While past harm can be a guide to future harm, it is only a guide. The contextual and limited findings of harm which were accepted did not lead the Authority to be satisfied that the applicant would be the subject of adverse interest in future from the CID or police. The finding was open on the material before the Authority. The allegation that the Tribunal failed to make a particular finding is, in reality, an attempt to cavil with the merits of the Authority’s decision and say that it ought to have found differently. It is not for this Court to substitute its own factual findings and such an exercise is impermissible.
Accordingly, ground 4 is not made out.
Additional issue
In his capacity as a model litigant the first respondent has raised an additional issue for consideration by the Court as a potential jurisdictional error (albeit such error is not conceded).
In essence, the first respondent raises for consideration whether the Secretary giving the Authority the material which forms the confidential Exhibits, constituted provision of irrelevant and potentially prejudicial material sufficient to ground a claim of apprehended bias in the manner identified in CNY17 (which decision has subsequently been the subject of analysis by the Full Federal Court in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456 (FSG17) and AAL19 v Minister for Home Affairs & Anor (2020) 277 FCR 393 (AAL19)).
Relevant statutory framework
Section 473GB of the Act enables the Minister to certify that a document or information ought not be disclosed because its disclosure would be contrary to the public interest (based on a claim of public interest immunity)[7] or relates to material that was given to the Minister in confidence.[8] If the Authority is given a document or information subject to a s 473GB certificate then, for the purposes of its review, it is able to have regard to any matter in the document or information and may (if it considers it appropriate to do so) disclose to the referred applicant any matter covered by the certificate.[9]
[7] See s 473GB(1)(a)
[8] See s 473GB(1)(b)
[9] See s 473GB(3)(a) and (b)
As the first respondent observes, the operation of s 473GB was considered by the High Court in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 (BVD17), from which arise the following relevant propositions:
(a)in accordance with Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[10] (SZMTA):
(i)the Authority is not empowered to have regard to notified information for the purpose of exercising its powers unless it affirmatively exercises the discretion conferred by s.473GB(3)(a);
(ii)the Authority has no power to disclose notified information to the referred applicant unless the it affirmatively exercises the discretion conferred by s.473GB(3)(b); and
(iii)the discretion conferred by s.473GB(3)(b) is conditioned by the requirement that it must be exercised within the bounds of reasonableness;
(b)unlike in s.438 (as discussed in SZMTA), there is no obligation of disclosure in accordance with the principles of common law procedural fairness; and
(c)in respect of the consideration of the exercise of the power in s.473GB(3)(b), because there is no obligation on the Authority to give reasons in respect of a procedural decision, the mere failure to mention the discretion cannot support the drawing of an inference that the discretion was not considered.
[10] Albeit being a case which considered s 438 of the Act which comes within the ambit of Part 7 of the Act (which does not apply to the Authority)
In the instant case, the Authority made no reference to the exercise of its discretion to give the documents to the applicant pursuant to s 473GB(3)(b). The first respondent submits it is not open to draw an inference that the Authority failed to consider exercising the discretion, nor that the Authority’s failure to disclose the information was legally unreasonable, for two distinct reasons, namely that:
(a)in relation to the first certificate, while the certificate was arguably invalid (because the information was not confidential), the documents themselves did not go to any issue of which the applicant was unaware, or which created any unfairness;
(b)in relation to the second certificate, while the material it covered did have the necessary quality of confidence (being material provided in relation to separate protection visa applications which, and related to sensitive issues concerning the applicant, there was nothing unintelligible or arbitrary in the Authority choosing not to disclose that material in circumstances where the domestic violence issue (and the consequences for the relationship between family members) was an issue squarely raised by the applicant himself (and which had no bearing on the protection claims of the applicant other than in respect of whether the applications should be treated as claims by family members).
I disagree.
In CNY17, the High Court upheld the appeal, finding by a majority (Nettle, Gordon JJ, with Edelman J concurring, and Kiefel CJ and Gageler J dissenting) that an apprehension of bias arose where documents and information about the appellant’s conviction for certain offences while he was in detention were provided to the Authority, and the Authority made no reference to those documents in its decision. Each of the respective judgments which form CNY17 set out the well-established principles applicable to an assessment of apprehension of bias.[11]
[11] See CNY17 at [14] to [29] per Kiefel CJ and Gageler J, [68] to [73] per Nettle and Gordon JJ and [130] to [136] per Edelman J
It is uncontroversial to observe that CNY17 did not involve any novel or far-reaching development of the test for apprehended bias, and there was also general agreement about the principles as between the different members of the Court: see AAL19 per Logan, Markovic and Anastassiou JJ at [80] and FSG17 per Bromberg Davies and O'Bryan JJ at [32] where the Full Federal Court distilled the principles arising from CNY17 as follows:
(a) First, the bias rule of procedural fairness is not excluded or limited by any of the provisions of Part 7AA of the Act, and indeed s 473FA(1) stipulates that, in carrying out its functions, the Authority is to pursue the objective of providing a mechanism of limited review that is, amongst other things, free of bias: at [16] per Kiefel CJ and Gageler J, at [60] per Nettle and Gordon JJ and at [131] per Edelman J.
(b) Second, the applicable test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the questions the Authority is required to decide: at [17] per Kiefel CJ and Gageler J, at [56] per Nettle and Gordon JJ and at [132] per Edelman J. In assessing that test, the Court attributes to the fair-minded observer knowledge of the relevant legal framework (here the procedures under Part 7AA) and knowledge of the relevant facts: at [17] per Kiefel CJ and Gageler J and at [58]–[59] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
(c) Third, it follows from the second principle that the apprehended bias rule is concerned with preserving the public appearance of independence and impartiality and the rule does not require a finding that the irrelevant material affected the decision and there was actual bias: at [18] per Kiefel CJ and Gageler J, at [70] per Nettle and Gordon JJ and at [131] per Edelman J. A corollary is that apprehended bias is not remedied by the decision-maker disregarding the irrelevant and prejudicial material. The question is directed to what a fair-minded lay observer might reasonably apprehend.
(d) Fourth, in certain circumstances, a fair-minded lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious (prejudicial) effect on the mind of a decision-maker notwithstanding that the decision-maker had consciously and expressly put the information aside as irrelevant: at [28]–[29] per Kiefel CJ and Gageler J, at [97] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
Apprehended bias is not necessarily cured by the decision-maker disregarding the irrelevant material. Rather, the focus is on the reasonable observer[12] and an assessment of the circumstances of the case at hand. Such assessment requires consideration of whether the irrelevant and prejudicial material might have had a subconscious effect on the mind of the Authority: FSG17 at [32](d).
[12] see FSG17 at [32](c)
It is relevant to observe that it is a precondition of the Authority exercising its jurisdiction, that the Secretary provide the Authority with the review material, including any review material specified by s.473CB(1)(c). The Secretary’s duty is to provide the totality of the specified review material and not any other information: CNY17 (supra) per Kiefel CJ and Gageler J at [14]-[15]. However, any non-compliance in this respect must be material: CNY17 (supra) per Kiefel CJ and Gageler J at [15]. In this context, the Authority must consider all of the review material: CNY17 (supra) per Nettle and Gordon JJ at [63]-[64].
As the first respondent observes, the divergence of opinions in CNY17 centred around how the principles were applied to the particular facts of that case, which is unsurprising because the assessment of apprehension of bias is a fact-specific and dependent exercise.
In the instant case, I have considered the confidential Exhibits which are comprised of the material covered by the second certificate. There is no doubt that that material was provided to the Authority and, accordingly, formed part of the “review material” for the purposes of the Authority’s review. The Authority expressly said it had had regard to the review material and did not make any mention of the certificates themselves, nor disavow reliance on the material covered by them. The first respondent accepted that the material did not have any direct bearing on the applicant’s claims for protection. In that sense, the material was irrelevant to the applicant. The question for assessment then, is whether it was also sufficiently prejudicial as to give rise to an apprehension of bias in the manner identified in CNY17 and related cases.
In making the following assessment, it is necessary to be more circumspect about detail than the Full Federal Court and High Court were in cases such as CNY17 because the material which was covered by the second certificate (and which forms the confidential Exhibits) may reveal its source. This was less of a concern in CNY7 and the related cases.
While there are factual differences about the nature of that material from the circumstances of CNY17, none of them is such as to sufficiently distinguish this matter from that case.
The material which is covered by the second certificate is material of which the applicant in this case is unaware. The matter was not referred to by the delegate. The material is concerning in what it reveals. I am of the view that it is of a nature such that a fair-minded lay observer might apprehend that the information could lead a decision-maker to be biased against the applicant in the same manner contemplated in CNY17 at [96], [124] and [138]. Namely, it might give rise to impressions about the applicant’s fitness to be granted a visa, may have led to a prejudicial assessment of his character on impermissible bases. I consider it prudent to not describe the material, or the specific nature of that potential prejudice to the applicant’s character further, in order to protect the various persons involved in the provision of that material.
Of course, and as the Full Federal Court in AAL19 found at [99], there may be cases in which the material given to the Authority was somewhat prejudicial to an applicant, but not such as to potentially lead a fair-minded lay observer to apprehend a lack of impartiality. Their Honours observed that the point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract. In the specific circumstances of this case, I am satisfied that such a point was reached.
Having reviewed the material which forms the confidential Exhibits, I am of the view that it is sufficiently irrelevant and prejudicial that it gives rise to the possibility it might have affected the Authority’s disposition of the review in a manner unfavourable to the applicant. The correct vantage point is, of course, whether a fair-minded lay observer would conclude that the information might lead the Authority to be improperly influenced in its consideration of the applicant’s actual claims. I find that such a bystander would be so satisfied. I find that to be an error and to have been material.
The first respondent is to be commended in the present case for having raised this issue. Counsel for the first respondent provided extremely detailed submissions and sought to distinguish the matter from the relevant authorities. However, over all I am not satisfied that it is distinguishable. Accordingly, and notwithstanding the very skilful submissions advanced for the Minister, in my view the decision is affected by jurisdictional error.
Suppression order
Part 7 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provides for the making of suppression and non-publication orders in relation to proceedings of Division 2 of the Court other than proceedings under the Family Law Act 1975 (Cth). When determining whether to make a suppression order or non-publication order, the Court is required to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
Section 230 of the Court Act empowers the Court, upon applicable grounds, to make a suppression order or non-publication order that prohibits or restricts the publication or other disclosure of information that relevantly:
(a)tends to reveal the identity of any person who is related to or otherwise associated with any party to a proceeding before the Court: see s 230(1)(a); or
(b)relates to information lodged with or filed in the Court: see s 230(1)(b)(iv).
The Court is empowered to make such orders as it considers appropriate to give effect to such an order.[13] Section 231(1) of the Court Act specifies the grounds upon which a suppression order or non-publication order may be made and relevantly includes that an order may be made if it is necessary to protect the safety of any person. The terms of the order must specify the ground or grounds upon which the order is made.[14]
[13] See s 230(2) of the Court Act
[14] See s 231(2) of the Court Act
Section 232(1) of the Court Act permits the Court to make a suppression order or non-publication order of its own motion or on the application of a party to proceedings (or a person the Court considers to have a sufficient interest in the making of the order). In the present case the first respondent makes an application for appropriate suppression or non-publication orders necessary to protect the safety of persons the source and/or subject of the material which forms the confidential Exhibits.
I have had regard to the relevant considerations in respect of making such an orders: see Orell v Forrest [2021] FedCFamC2G 197 per Judge Cameron at [5] to [8] and [15] to [22]; C7A/2017 v Minister for Immigration and Border Protection(No 2) [2020] FCAFC 70 at [13] to [17], Hogan v Hinch (2011) 243 CLR 506 at [21] per French CJ and Thind v Minister for Immigration and Border Protection [2013] FCCA 1438 per Judge Lucev at [34].
Even if the first respondent had not sought such an order, in all the circumstances of this case the Court would in any event have proceeded to consider it of its own motion. I am satisfied that in the present case such orders are necessarily in the interests of the administration of justice and to protect the safety of persons whom I will neither identify nor enumerate. I will make necessary orders to that effect.
Given the nature of the information in the confidential Exhibits, there does not appear to me to be any particular date by which the risk involved may not be alleviated. It is sufficient for the purposes of the present case to make the order until further order of this Court, or the Federal Court of Australia. Should the need arise for the variation or setting aside of the order at some later time, the parties may approach the Court.
Conclusion
For the foregoing reasons, the decision of the Authority is affected by jurisdictional error and must be remitted for determination according to law. I will so order.
The applicant having been unrepresented throughout these proceedings his costs, if any, are limited to the payment of any filing fee and/or setting-down fee. I will make an order to the effect that he be entitled to those costs upon presentation to the first respondent’s solicitors of proof of any such payment/s, which provision the applicant should attend to as a matter of priority.
I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 21 February 2023
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