Fke17 v Minister for Immigration and Border Protection
[2024] FedCFamC2G 329
•17 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FKE17 v Minister for Immigration and Border Protection [2024] FedCFamC2G 329
File number(s): MLG 2706 of 2017 Judgment of: JUDGE CHAMPION Date of judgment: 17 April 2024 Catchwords: MIGRATION – Judicial review – Protection visa – Where there was a dispute as to whether the Immigration Assessment Authority received Applicant’s submissions emailed to it – Where s. 161(1)(d) of the Evidence Act 1995 (Cth) contained an evidentiary presumption of receipt – Where evidence adduced rebutted the presumption – Where even though the presumption was rebutted the Court determined as a matter of fact the Authority received the submissions – Where the Authority did not consider the submissions – Jurisdictional error – Decision quashed – Matter remitted to Authority Legislation: Evidence Act1995 (Cth) s. 161
Migration Act 1958 (Cth) ss. 36, 473CA, 473CB, 473CC, 473DB, 473DC, 473FB, 473HF
Cases cited: AFG20 v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs [2022] FCA 585
Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 14
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89
BIL18v Minister for Home Affairs [2020] FCA 1236
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
EPE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 170
FGC17 vMinister for Home Affairs [2019] FCA 559
Kassem v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCA 451
Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46
Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541; [2018] HCA 30
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v. SZSRS (2014) 309 ALR 67, [2014] FCAFC 16
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [85]; [2013] HCA 18
Minister for Immigration and Citizenship v. SZQRB (2013) 210 FCR 505, [2013] FCAFC 33
Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365, [2006] FCAFC 142
Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Nathanson v Minister for Home Affairs (2022) 276 CLR 80, [2022] HCA 26
Nguyen v Minister for Immigration and Border Protection (2016) 306 FCR 225; [2016] FCCA 480
North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; [2012] NSWCA 168
Plaintiff M1/2021 v Minister for Home Affairs (2022) ALJR 497; [2022] HCA 17
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, [1980] HCA 13
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [2007] HCA 35
SZSKX v Minister for Immigration [2014] FCCA 157
Division: Division 2 General Federal Law Number of paragraphs: 151 Date of last submission/s: 29 February 2024 Date of hearing: 13 December 2023, 29 February 2024 Place: Melbourne Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: Ambi Associates Solicitor for the Respondents: Australian Government Solicitor ORDERS
MLG 2706 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FKE17
Applicant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
17 APRIL 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent is amended to “Minister for Immigration, Citizenship and Multicultural Affairs.”
2.A writ of certiorari issue to quash the decision of the Immigration Assessment Authority (Authority) made on 17 November 2017.
3.A writ of mandamus issue directed to the Authority requiring it to determine the Applicant’s application according to law.
4.The Applicant file submissions (not exceeding 3 pages) as to costs on or before 4.00 pm on 1 May 2024.
5.The First Respondent file submissions (not exceeding 3 pages) as to costs on or before 4.00 pm on 8 May 2024.
6.The Applicant file any submissions (not exceeding 3 pages) in reply on or before 4.00 pm on 15 May 2024.
AND THE COURT NOTES THAT:
A.The parties are requested to confer as to whether costs can be agreed before 1 May 2024. In the absence of any request for an oral hearing, the Court will determine costs on the papers.
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 CHAMPION:
SUMMARY
The Applicant is a citizen of Sri Lanka. He seeks a protection visa. He worked as a “pass officer” for the Customs division of the Liberation Tigers of Tamil Eelam (LTTE) and had family connections with the LTTE. The serious harm he fears is abuse and torture should he be detained on return to Sri Lanka because of his LTTE connections. Although the Immigration Assessment Authority accepted that the Applicant had employment and family connections to the LTTE, it refused to grant him the visa because it concluded that he was no longer a person of interest to the Sri Lankan authorities and there was no real risk of him being detained on any return to Sri Lanka. In necessary consequence, because there was no real risk of his detention, there was no real risk of him suffering abuse and torture in detention.
A hearing in two parts
The hearing in this Court took place over 2 separate days: 13 December 2023 and 29 February 2024. The second day of hearing was required because of a dispute as to whether the Authority had (or had not) received — and, in error, failed to consider — the Applicant’s submissions in support of his application emailed to the Authority on 9 August 2017 (4:48 pm) (the Submissions).
In the introduction to its reasons as to “Information before the IAA”, the Authority set out that it had regard to the material given by the Secretary under s. 473CB of the Migration Act 1958 (Cth) and that “No further information has been … received by the IAA in respect of this matter” (CB196, [4]).
On 13 December 2023 (the first day of the hearing before me) the Applicant contested that statement in the Authority’s reasons because it submitted that the Applicant had in fact emailed the Submissions to the Authority. As of 13 December 2023, the Applicant was unable to provide particulars, or evidence, as to the Submissions he said he had sent to the Authority. Because a protection visa was at issue, I made orders permitting the Applicant to put on further evidence of any submissions he had in fact sent to the Authority.
After the first hearing date, the Applicant filed a “Second Further Amended Application” dated 15 January 2024 in which he set out new grounds of judicial review.
The central premise of the new grounds is that the Applicant emailed the Submissions, the Authority received the Submissions and made a jurisdictional error because it failed to consider the Submissions.
The Minister submitted that I ought to find the Submissions had been “sent,” but not “received.” The Minister conceded that if I found that the Authority had received the Submissions, its decision was affected by jurisdictional error because it failed to consider the Submissions.
In summary, I have found on the evidence before me that, on the balance of probabilities, the Authority received the Submissions. Because of the error, the decision must be quashed and the matter be remitted to the Authority.
None of the Applicant’s other grounds has been made out.
My reasons follow.
THE EVIDENCE
On 13 December 2023, I received the Court Book into evidence (Ex. CE-1; CB1–213). I also received into evidence the supplementary court book (SCB) which comprised the DFAT Country Information Report Sri Lanka (24 January 2017) (Ex CE-2; SCB1–41).
On the trial’s resumption, as to the issue of the Submissions, the Applicant read the affidavit of his lawyer, Mr Chellappah Ambikaipalan, affirmed on 15 January 2024 and its Annexures (“AC-1”–“AC-4”) were tendered.
The Minister did not challenge Mr Ambikaipalan’s evidence.
JUDICIAL REVIEW APPLICATION: NEW GROUNDS
As I have set out, the Minister conceded that if, on the evidence, I found that the Authority received the email dated 9 August 2017 (and its attachments) (the Submissions) there was a jurisdictional error because the Authority’s reasons disclosed (CB196, [4]) that the Authority had not considered the Submissions. As to receipt, it was sufficient if the Authority received the Submissions by their delivery to [email protected] and it did not matter whether the actual decision-maker had (or had not) received the Submissions.
The Authority’s review function required it to consider all the Applicant’s claims and its essential integers. If the Authority received the Submissions and did not consider them it had failed to consider relevant material and it made a jurisdictional error (AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503; [2018] FCAFC 89, [18]).
If the Authority received the Submissions, the Minister also conceded that the Authority’s error was material (Minister’s Further Supplementary Submissions (MFSS), [13]). If the Authority had considered the Submissions, there was a realistic possibility that the Authority could have made a different decision (Nathanson v Minister for Home Affairs (2022) 276 CLR 80, [2022] HCA 26, [1]).
RESOLUTION OF THE EVIDENTIARY DISPUTE IS DISPOSITIVE
The resolution of the evidentiary dispute — as to whether the Authority did (or did not) receive the Submissions — is the dispositive issue as to whether there was jurisdictional error
The relevant facts drawn from the Court Book and the evidence in Mr Ambikaipalan’s affidavit together with its Annexures (AC-1–AC-4) are set out below.
Referral to the Authority
On 20 July 2017 this matter was referred to the Authority pursuant to s. 473CA of the Act (CB171).
Practice Direction
On 20 July 2017 the Authority sent the Applicant a copy of its Practice Direction issued under s. 473FB of the Act titled: Practice Direction for Applicants, Representatives and Authorised Recipients (CB173–177). The Practice Direction set out at item 20:
20. For the purposed of the review, you may provide a written submission on the following:
•why you disagree with the decision of the Department
•any claim or matter that you presented to the Department that was overlooked.
The Practice Direction set out that: “Where possible, you should give us documents by emailing them to [email protected]” (item 32). Under the Act, an email to that address was a permitted method of giving a document to the Authority (ss. 473FB; 473HF(1)(a)).
Mr Ambikaipalan’s affidavit
Mr Ambikaipalan’s affidavit proved 5 facts. By and large, it was common ground that Mr Ambikaipalan’s affidavit proved these facts.
First, on 25 July 2017 (about 2 weeks before the Submissions) the Authority received Mr Ambikaipalan’s email at [email protected] that he acted for the Applicant (Mr Ambikaipalan, [6]–[7]). As a result, there was a recent history of a successful exchange of emails between the Applicant’s lawyers and the Authority. There was not some threshold technological issue preventing emails being exchanged between them.
Secondly, on 9 August 2017, the Minister conceded that an email from Mr Ambikaipalan’s email address was sent to the Authority at [email protected] which attached written submissions, a statement of the Applicant and country information as to Sri Lanka (Mr Ambikaipalan, [8] –[9], AC-1). The Authority’s email address was correctly typed. The sent email bears a date and time stamp “Wednesday, 9 August 2017 4:48 pm” consistent with its dispatch. There is nothing on the face of the email that suggests it was not delivered. A legal assistant at the Applicant’s firm of solicitors made a handwritten file note of having sent the email, “… sent to IAA for consideration” (Mr Ambikaipalan [8] (AC-2)).
Thirdly, Mr Ambikaipalan did not receive a “failed delivery” notification in response to the email (Mr Ambikaipalan, [12]). He was not challenged as to his statement that he was:
…confident that if I had received notification that the email attaching the submissions had not been delivered to the Authority, I would have noted the fact and taken action to ensure delivery of the submissions.
Fourthly, the email was successfully “cc’ed” to Mr Ambikaipalan’s business partner and received at the “cc” address (Mr Ambikaipalan, [13]). There seemed no intrinsic problem with the email transmission because a recipient other than the Authority received it.
Fifthly, after the first hearing day in this court so as to crystallise this issue, Mr Ambikaipalan sent correspondence to the Authority. In that correspondence on 18 December 2023 the Applicant asked the Authority:
Could you please confirm that …[the documents sent on 9 August 2017] were received by the IAA shortly after we sent them on that date?”
Following Mr Ambikaipalan’s inquiry, on 20 December 2023 the Authority provided the following written response sent from [email protected] (Mr Ambikaipalan, [15] –[16]; AC-4):
Thank you for your email of 18 December 2023 seeking confirmation of receipt of correspondence relating to [applicant’s name omitted]
The IAA has searched relevant mailboxes and its case management system . There is no record of having received email correspondence on 9 August 2017 in relation to [… the Applicant’s] matter.
Yours sincerely
Immigration Assessment Authority
I note that the Authority did not indicate beyond its responsive email who had conducted the search or the parameters of any search for the Submissions.
The Minister encapsulated the effect of the Authority’s response as follows: “despite searches having been made, the IAA has no record of the 9 August 2017 email” (RFSS, [4.4]).
The parties’ competing positions
The Applicant put his case at its highest on the basis that “on or after 9 August 2017 there was some error at the Authority’s end, either in the email from the applicant’s representative not having been accepted, or in the email having been lost after it was received” (Applicant’s Submissions, [7]).
The Minister resisted that position. The Minister submitted that the evidence established that the email was sent and that the email was not received. The Minister’s position was as follows:
5.1. There is no evidential basis to infer, from the absence of a record of the 9 August 2017 email in the IAA’s records, that the IAA received but lost that email. [footnote omitted]
5.2. It is evident, from the Court Book (which contains the IAA’s records) and the IAA’s response to the applicant’s enquiry about the 9 August 2017 email, that the email was never received. However, it is purely speculative to suggest that this was because of a technological “error” on the IAA’s part; but, in any event, for the reasons outlined below, any such technological issue does not disclose jurisdictional error.
Relevant authorities
Two authorities in this Court were canvassed in submissions. Although both authorities concerned the Administrative Appeals Tribunal, the principles apply equally to the Authority.
In Nguyen v Minister for Immigration and Border Protection (2016) 306 FCR 225; [2016] FCCA 480 the Applicant sent an email to the Tribunal which was rejected by the addressee’s server. In this court, in Nguyen, the Minister tendered an affidavit of an “Operations Manager in the Technical Services Section” of the AAT ([9]). The Operations Manager’s evidence on affidavit was that because the email “exceeded the permitted size limit…[it] was subsequently rejected by the Tribunal gateway server… A non-delivery report was sent from the Tribunal’s email system to the email address of the applicant” (at [22]). Judge Heffernan noted that “to use the colloquial expression, the email “bounced” (at [27]). In Nguyen, the email was not received. Part of the ratio of Nguyen is that if it is not proved that the decision-maker received the submissions, there can be no duty on a decision-maker to consider what was not received.
In SZSKX v Minister for Immigration [2014] FCCA 157 Judge Driver considered a facsimile transmission. On one hand, there was evidence of a Telstra record of a successful transmission of the facsimile ([15]). On the other hand, the Director of Technology Services for the Tribunal (the most senior Tribunal information technology employee) gave evidence that annexed the Tribunal’s receipt logs from the relevant date which showed that “the facsimile in question was never received by the Tribunal” and that it was “not possible to delete a record of a single facsimile transmission on the Tribunal’s log” ([14]). Judge Driver found that it did not appear that there was “any malfunction in the system used by the applicant’s representative to send the transmission.” Equally, however, there was “no record of the Tribunal having received a facsimile transmission at the time it was sent.” His Honour said that “the circumstances are, therefore, mysterious” (at [15]). Judge Driver concluded that the evidence from the Tribunal’s Director of Technology Services displaced the presumption of receipt in the Evidence Act 1995 (Cth) ([16]). Further, “the evidence of non-receipt relied upon by the tribunal is detailed and, on balance, persuasive” ([16]).
ANALYSIS
The issue is not whether the email and its attachments were sent but whether they were received
As Bromwich J held in Kassem v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCA 451 at [27], what matters is delivery (or receipt) not merely sending:
While there are evidentiary presumptions of receipt flowing from sending a document by post and by electronic means in ss 160 and 161 of the Evidence Act 1995 (Cth), applicable in this Court, those presumptions are rebuttable. Even before the Tribunal, where the rules of evidence do not apply, ordinarily sending of an email will, in context, amount to proof of delivery, but not always. What matters is delivery, not merely sending.
[Emphasis added]
Section 161(1)(d) – The statutory presumption: Has evidence sufficient to raise a doubt about the presumption been adduced?
Section 161(1)(d) of the Evidence Act1995 (Cth) provides as follows:
161 Electronic communications
(1)If a document purports to contain a record of an electronic communication other than one referred to in section 162, it is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that the communication:
[…]
(d)was received at the destination to which it appears from the document to have been sent; and
There is no dispute that an email is an “electronic communication” for the purposes of s. 161(1).
With reference to that statutory evidential presumption, the Minister’s position was that the presumption has been displaced because there is evidence “sufficient to raise doubt about the presumption”: namely, the Authority’s response dated 20 December 2023 that its searches of relevant mailboxes and case management system found “no record” of the Submissions.
The statutory evidentiary presumption may be rebutted. The statutory presumption does not operate so that receipt is presumed unless the contrary is proved. “Evidence that raises ‘a doubt’ does not need to be of the same quality or of the same probative strength as evidence that is required to satisfy the civil standard” (North Sydney Leagues’ Club Ltd v Synergy Protection Agency Pty Ltd (2012) 83 NSWLR 710; [2012] NSWCA 168, [60]).
The evidence as to the Authority’s targeted searches which found no record of the Submissions is sufficient to raise a doubt to rebut the presumption. It does not matter for the purposes of s. 161(1)(d) that the Applicant himself adduced the evidence sufficient to raise a doubt (the Authority’s 20 December 2023 response was an annexure to Mr Ambikaipalan’s affidavit) rather than the Authority adducing the evidence. Within the ordinary conception of a “doubt”, the evidence that the searches uncovered no record of the Submissions is sufficient to raise “doubt” and to rebut the presumption.
The Applicant bears the onus
The presumption having been rebutted, whether the Authority received the Submissions is an ordinary question of fact in respect of which the Applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined from the evidence adduced on the application (see discussion in another context in Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, [46]).
Even though the Applicant has been deprived of the benefit of the statutory presumption, that is not the final determination of the fact in issue. I must make a finding on the balance of probabilities in the ordinary way as to whether I am satisfied that the Authority received the Submissions.
Basal fact – The assessment of the evidence
This question turns on the quality of the evidence. As in Kassem, “ordinarily sending of an email will, in context, amount to proof of delivery, but not always” ([27]). As in SZSKX, “the evidence of receipt by the [Authority] relied upon by the applicant is circumstantial” ([16]).
The circumstantial evidence, even though there is evidence that raises a doubt, is sufficient such that I find that the Applicant has proved on the balance of probabilities that the Authority received the email and its attachments.
I rely on the cumulative effect of the circumstantial evidence comprised of:
(1)the earlier (and recent) successful exchange of correspondence on 25 July 2017 between the Applicant’s lawyer and the Authority;
(2)the apparent regularity of the date and time stamp on the 9 August 2017 email;
(3)the fact that email was correctly addressed to the IAA’s email address;
(4)the successful delivery of the email “cc’ed” to the Applicant’s lawyer’s business partner;
(5)the absence of a delivery failure notification in circumstances in which the Applicant’s lawyer gave unchallenged evidence that he would have checked for it; and
(6)the very limited content of two-line communication from the IAA that it has “searched relevant mailboxes and its case management system” and found no record of having received email correspondence.
Doubtless, the final matter to which I refer — the Authority’s searches — is the most controversial. There was no evidence from the Authority as to who conducted the search or the parameters of the search. I do not know whether the search was comprehensive or cursory. The Court has been presented with a bare conclusion. In the absence of evidence as to who conducted the search and some greater detail about how the search was conducted — although the Applicant has the onus and in that sense the Authority had nothing to prove — in contrast to the observations of Judge Driver in SZSKX, I do not find the Authority’s evidence of its searches “detailed” or “persuasive”.
I do not consider the fact that the Submissions were not in the court book which “contains the IAA’s records” makes it more or less likely that the Authority received the Submissions.
The Authority took no active part in the proceeding before me
The Authority filed a submitting appearance and took no active role in the judicial review proceedings before me. That is the usual course and appropriate.
The High Court has observed that it “discourage[s] Tribunal’s and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions” (Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30, [25], drawing on the principle in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13, [1980] HCA 13, 36). I see no difference in principle between the Authority and the Tribunal. I note that the principles in Hardiman permit some exceptions one of which is that a Tribunal does not become involved as a protagonist in a proceeding if its involvement is limited to submissions going to its “powers and procedures” (Hardiman, 36).
I have proceeded on the circumstantial evidence before me and not drawn any Jones v Dunkel inference. I had no expectation that the Authority, having played no active part in the proceedings before me, would call an absent witness. In Muin as to the Migration Review Tribunal (but in observations which apply with equal force to the Authority) Gleeson CJ said at [25]:
… This Court has taken pains to discourage tribunals and members from endangering their impartiality by assuming the role of protagonist in proceedings challenging their decisions. Consistently with that approach the Tribunal has entered a submitting appearance in these proceedings. The process of factual inference considered in Jones v Dunkel involves an expectation that the party against whom the inference is drawn would call the absent witness. There was no proper basis in the present case for an expectation that the Tribunal member would be called to give an account of the process of decision making beyond that which is set out in her published reasons for her decision.
A case of this kind may place the Authority in a difficult position. In Nguyen, an operations manager, and in SZSKX, a senior IT employee, gave evidence (and were cross-examined) and the acceptance of their evidence as to the non-receipt of material underpinned the conclusion that the Tribunal had not received the relevant communication. No similar evidence was before me. With reference to the decisions in Hardiman and Muin, I make no criticism of the IAA for adopting that course.
The result, however, is that the totality of the evidence before me comprises the Applicant’s cogent, if circumstantial, case of receipt and very limited evidence about the nature and extent of any searches the Authority conducted to support a conclusion of non-receipt.
The correct approach is to consider the evidence as to receipt as a whole rather than in stages. It appears to me that the Minister’s approach (in effect) proposed that I segment my consideration of the evidence into two stages as to whether the email was “sent” and whether it was “received.” On this staged approach, and although at the first stage there was evidence that proved the email was sent, at the second stage there was no evidence that proved that the Authority had received the email. That approach appeared to de-contextualise the Authority’s email as to no Submissions being found by its searches from the Applicant’s broader evidence of the regular dispatch and absence of any failed delivery notification and other persuasive (if circumstantial) evidence of the Authority’s receipt of the email. I note Bromwich J in Kassem referred to the importance of the context.
Even though I have no direct (as contrasted with circumstantial) evidence that the Authority received the Submissions, evaluating the totality of the evidence as to the circumstances of the Submissions being sent together with the limited evidence about the Authority’s searches as to its receipt, I am satisfied on the evidence before me that on the balance of probabilities the Authority received the email.
The Minister conceded, that if I reached the evidential conclusion that the Authority received the email and the attached Submissions, that there was jurisdictional error because the Authority had not considered the Submissions (Ground 1, particular 1(f)). It is unnecessary to conceptualise whether the jurisdictional error may also be framed in terms of a denial of procedural fairness (Ground 2, particular (c)) or a failure by the Authority to discharge its necessary statutory functions (Ground 3, particular (c)).
The Authority’s decision will be quashed and I will remit the matter to the Authority for determination in accordance with law.
HAS THE APPLICANT PROVED JURISDICTIONAL ERROR IF THE AUTHORITY DID NOT RECEIVE THE SUBMISSIONS?
Although it is strictly unnecessary to further consider the new grounds, the Applicant’s position was that, even if the Authority did not receive the Submissions, there was jurisdictional error.
I do not accept this submission.
Failure to consider material
If the Authority did not receive the submissions, it was not under any obligation to consider material which was not before it (Cf. AYY17).
Denial of procedural fairness?
As to procedural fairness, on the counter-factual that the Authority did not receive the email, the Authority did not deny the Applicant procedural fairness by not considering submissions it did not receive.
The Applicant did not point to any contravention of the exhaustive statement of the natural justice rule set out in Division 3 of Part 7AA of the Act.
The Applicant relied on the 4 general principles of procedural fairness as outlined by French J (in dissent) in Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365, [2006] FCAFC 142, [102]. I accept that, in SZFDE, French J identified 4 circumstances where “without any fault on the part of an administrative tribunal” a denial of procedural fairness could affect a person’s right to a fair hearing. The facts in this case are not analogous to any of French J’s 4 examples. In any event, in SZFDE at [125], French J found that “want of procedural fairness [had] no purchase”. French J found that this was not a case about “unfairness” but “about the effect of fraud” on the decision-making process ([128]).
As French J said, although it may not be necessary to show fault on the part of the decision-maker in order to establish procedural unfairness, that proposition is “subject to the qualification that there must be more than unfairness which is purely the fault of the affected party’s own legal advisers” (SZFDE (FCAFC), French J at [100]). On appeal, the High Court clarified that the unfairness must also not be attributable to “some other mishap” (SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189, [2007] HCA 35, [5]; ‘SZFDE(HC)’; extracted below).
Consistent with that analysis, on the counter-factual that the Authority did not receive the Submissions because of some fault of the party’s own legal advisers or because of “some other mishap” (see SZFDE (HC), [53], below), absent proof of the Authority’s receipt of the Submissions, the Applicant could not prove that the Authority committed a jurisdictional error by denying him procedural fairness. Receipt of the Submissions remained the dispositive issue.
Did the Authority fail to discharge its statutory function of review?
Completing the analysis with reference to SZFDE (HC), the High Court held that, because of the fraud of a rogue migration agent, the Tribunal “was disabled from the due discharge of its imperative statutory functions with respect to the conduct the review” (SZFDE (HC), [51]). As a result, even though the Tribunal was blameless, its decision was set aside for jurisdictional error. In SZFDE (HC) (at [53]) the High Court emphasised that “the outcome in this appeal should not be misunderstood”. The court said:
there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.
[Emphasis added]
I repeat, had the Submissions not been successfully received, this would be a case in which the Applicant’s conduct before the Authority would have been affected to his detriment by “some other mishap.” On the counter-factual that the Authority did not receive the submissions, in the absence of the particular kind of fraud that vitiated the decision in SZFDE, there was no failure by the Authority to discharge its imperative statutory functions of review.
To the extent that the Applicant submitted in the alternative that there was jurisdictional error because of a failure to consider material, a denial of procedural fairness and/or a failure to discharge the statutory task of review, even if the Authority did not receive the submissions, he has not made out any of those grounds.
THE JUDICIAL REVIEW APPLICATION: ORIGINAL GROUNDS
Because I am the trial judge and should determine as many issues as possible, it also remains appropriate that I consider the Applicant’s original grounds for judicial review as argued on 13 December 2023. For the reasons set out below none of those grounds has been made out.
It is first useful to place those original grounds in the context of the Authority’s decision (CB196–205; [1]–[43]).
The Authority’s decision
The Applicant claimed that if he were to return to Sri Lanka he would be detained for “rehabilitation” because of his employment and family links to the LTTE. He also claimed that he would be in danger if he returned to Sri Lanka because “the CID will shoot him or put him in jail” (CB196, [5]).
The Authority accepted the creditworthiness of the Applicant’s narrative
In large part, the Authority accepted the creditworthiness of the Applicant’s narrative. It said the Applicant “provided consistent, forthright and spontaneous responses when questioned regarding his sisters’ employment in the LTTE bureaucracy” (CB199, [11]).
The Authority accepted that:
(a)the Applicant worked in a clerical role for the LTTE from late 2003 to late 2004 (CB198, [10]);
(b)one or more of the Applicant’s cousins used their LTTE membership to assist him to obtain his position as a pass officer (CB198, [13]);
(c)both his sisters worked in the LTTE bureaucracy and they obtained their employment through their cousins (CB199, [14]);
(d)the SLA detained and questioned him in 2004 (CB199 [15]–[16]);
(e)the Applicant’s sister was forcibly recruited to the LTTE in the latter years of the conflict and that she is still missing (CB199, [18]); and
(f)in around 2010 the CID called him for questioning “on multiple occasions” and that “he may have been mistreated during these incidents” (CB200, [20]).
Not a person of interest
The Authority did not grant the Applicant a visa because, even though it accepted the creditworthiness of his personal narrative, at several points in its reasons, it found that the Applicant did not continue to be “a person of interest” to the Sri Lankan authorities. The Authority held:
(a)in 2004 the Applicant’s “release suggests he was not considered to be a person of adverse interest at this time because of his employment” (CB199, [15]–[16]);
(b)that the Applicant made no claims that he was questioned on his departure for Qatar in 2004 or upon his return in December 2009 “suggesting he was not regarded as a person of interest” (CB199, [17]);
(c)that it was not satisfied that at the time of his departure from Sri Lanka to Thailand in late 2010, or on his deportation back to Sri Lanka in July 2011, that he was “considered to be a person of any ongoing security interest” (CB200–201, [23]); and
(d)although the Authority accepted that in late 2011 when he departed Sri Lanka for Malaysia “he was assisted by a Tamil agent” (CB201, [25]) the Authority was not satisfied that “he was viewed adversely at the time he departed for Malaysia” because “in the five months prior to his departure for Malaysia, the applicant did not have any adverse interactions with the Sri Lanka authorities, nor was he sought by them” (CB201, [25]).
Conclusion
The Authority’s conclusion as to the Applicant’s central claims, and which meant that he was not granted a visa because he was not a person of ongoing interest to the Sri Lankan authorities, was as follows (CB203, [34]):
34. While I have accepted the applicant’s claims that he worked as a civilian employee for the LTTE in 2003/4 and was questioned by the CID in 2004 and 2010 and mistreated on occasion, I have also found that he was not a person of interest to the Sri Lankan authorities at the time of his departure from Sri Lanka. I am not satisfied that the applicant will be perceived to have any ongoing LTTE links were he to return to Sri Lanka. I am not satisfied that the applicant has or will be perceived to have any ongoing LTTE or pro-separatist links and I do not accept that there is a real chance the applicant would be harmed by reason of ethnicity, origins in the north, or his previous work and familial connections to the LTTE were he to return to Sri Lanka now or in the reasonably foreseeable future.
[Emphasis added]
The Authority confirmed the decision not to grant the Applicant a protection visa.
THE JUDICIAL REVIEW APPLICATION - ORIGINAL GROUNDS
Ground 1: Did the Authority fail to consider relevant claims or evidence?
By Ground 1 the Applicant submitted that the Authority failed to consider relevant claims or evidence.
I have dealt with Ground 1, particular (f) as to not considering the Submissions above.
In his grounds as they stood at 13 December 2023, the Applicant set out particulars (a)–(e) of Ground 1.
Particulars 1(a)–(e) of Ground 1 (as originally framed in support Ground 1 and the Authority’s alleged failure to consider relevant claims or evidence) were as set out below. The Applicant submitted the Authority failed to consider relevant claims or evidence as to:
(a)country information [particular 1(a)];
(b)whether the Applicant may be imprisoned or detained immediately on return to Sri Lanka and, if so, for how long and whether he may be subjected to violence or torture on his imprisonment or detention [particulars 1(b) and (c)];
(c)that the Applicant was a customs “officer”: that is, more than a clerical worker with the LTTE [particular 1(d)]; and
(d)that the Applicant had a prominence because it was notable that he was only one of two surviving LTTE customs officers [particular 1(e)].
With the exception of particulars 1(b) and (c) which may be conveniently considered together, I will consider each of these particulars in support of Ground 1 sequentially.
Particular 1(a): Did the Authority fail to consider relevant country information?
In its reasons, the Authority referenced various country information including a DFAT report (Country Information Report Sri Lanka, 24 January 2017 (SCB1–38; Ex CE-2).
The Applicant submitted the Authority failed to consider all the country information as to the “prevalence and culture of torture and abuse in Sri Lanka, including the abuse of persons in detention and persons with links to the LTTE.” In particular, the Applicant submitted that the Authority failed to consider paragraphs 4.12–4.22 of the DFAT report which detailed that there had been reports of torture and mistreatment in Sri Lanka
The “weight or persuasive quality” to be attributed to the country information was a matter for the decision-maker (Plaintiff M1/2021 v Minister for Home Affairs (2022) ALJR 497; [2022] HCA 17, [24]–[25]. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, [11] a Full Court held: “the weight that [the Tribunal] gives to such [country] information is a matter for the Tribunal itself, as part of its fact-finding function”. Further, “mere disagreement with the Tribunal’s reading of country information does not amount to jurisdictional error” (AFG20 v Minister for Immigration, Citizenship, Migrant Services And Multicultural Affairs [2022] FCA 585, [59]).
The Authority, as it was entitled to do, relied on country information from DFAT, the UK Home Office and the Immigration and Refugee Board of Canada (CB203-203, [35]–[37]) in support of its finding that there was not a real chance of harm to the Applicant if he returned to Sri Lanka. In its reasons, the Authority specifically (and accurately) noted paragraphs 4.21 and 4.22 of the DFAT report that “DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka” and that it “assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce” (CB204, [37]).
The Applicant has not proved that the Authority failed to consider the country information. In effect, the Applicant disagrees with the conclusions that the Authority drew from the country information. Mere disagreement does not establish jurisdictional error (AFG20, above). The Applicant submits that the Authority ought to have drawn different conclusions from the country information. The weight or persuasive quality the Authority attributed to the Country Information was a matter for the decision-maker (Plaintiff M1/2021, above).
Particular 1(a) invites impermissible merits review.
Particulars 1(b) and 1(c): Did the Authority fail to consider the question of harm to the Applicant in detention?
The Authority accepted that the Applicant had been employed by the LTTE and had family ties with the LTTE.
By particular 1(b), the Applicant contended that the Authority failed to consider whether, as a result of those employment and family ties to the LTTE, the Applicant may be detained and imprisoned on his return to Sri Lanka, for how long and in what conditions.
Particular 1(c) is closely related. The Applicant submitted that, if he were detained, he “may suffer serious harm by assault or torture because of the general culture of violence and torture by the police and other authorities against those in detention or prison.”
The Applicant submitted that because the Authority accepted the Applicant’s accounts of past mistreatment and detention in 2004 (CB199, [15]–[16]) and 2010 (CB 200, [20]) that required the Authority to consider a further consequential material question as to whether the Applicant may be detained and mistreated in detention on his return to Sri Lanka and, if so, for how long, and in what conditions, he may be detained.
The Minster’s answering submission was that even though the Authority accepted that there was a history of past mistreatment, (as I have set out above) the Authority found that if the Applicant returned to Sri Lanka, the Applicant was not of ongoing interest to Sri Lankan authorities.
Th Authority concluded that there was not a real chance of the Applicant’s detention on his return to Sri Lanka which was a consideration of the matter set out in particular 1(b). It is insufficient to prove jurisdictional error that the Applicant disagrees with the Authority’s conclusion.
As to Particular 1(c), the risk of serious harm whilst in detention rested on proof of the factual premise of a real chance of detention. If there was no real chance of detention, it necessarily followed there was no real risk of harm in detention. Because the factual premise of detention was not made out, it was unnecessary for the Authority to make a consequential finding of risk of mistreatment in detention. In Applicant WAEE a Full Court held: “[i]t may be that it is unnecessary to make a finding on a particular matter … because there is a factual premise upon which a contention rests which has been rejected” (Applicant WAEE v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 14; [47]; emphasis added).
Particular 1(c) does not establish jurisdictional error because it was unnecessary for the Authority to make a factual finding as to mistreatment in detention because the factual premise on which that finding rested — namely, the anterior issue of the Applicant’s detention in the first place — was rejected.
Particular 1(d): Did the Authority fail to consider that the Applicant claimed that he was a customs “officer” not a mere clerical worker?
By particular 1(d), the Applicant contended that the Authority failed to consider his claim that he was a customs officer, not a mere clerical worker. He emphasised that “as an officer, he had responsibilities beyond clerical work … checking permits for passengers and vehicles” (Applicant’s submissions, [36]).
Contrary to the Applicant’s submissions, the Authority did consider the Applicant’s claim that he was a customs officer with responsibilities beyond clerical work.
The Authority described the Applicant “as a clerical worker with the LTTE Customs Department from late 2003 -2004” (CB 198, [10]). It then set out, almost verbatim, the customs officer responsibilities the Applicant submits were important to understanding his role as to “checking permits for passengers and vehicles” as follows (CB 198, [10]):
In this role he worked at the Muhamaalai checkpoint on the Jaffna/Kandy highway checking the identify cards of travellers into and out of LTTE- controlled areas of northern Sri Lanka and the travel permits of vehicular traffic. He also checked the vehicles to ensure that prohibited items (such as weapons) were not being smuggled. The applicant was able to provide detailed and spontaneous answers to questions about his day-to-day work duties and while he was unable to provide any documentation to support his claim (for example, a copy of an employment ID card or any photos of him at work), I accept that he did work in a clerical role for the LTTE from late 2003 to late 2004 as claimed.
[Emphasis added]
The Authority accurately described the Applicant’s duties with the LTTE Customs Department. It did not diminish the significance of his role by treating him as a mere clerk. In the passage set out above, the Authority expressly considered the very matters that the Applicant contended the Authority had to consider.
Particular 1(d) does not support any finding that the Authority made a jurisdictional error by a failure to consider material.
Particular 1(e): Did the Authority fail to consider the Applicant claim’s that he was one of only two surviving customs officers of the LTTE and how that may affect his risk of harm?
The Authority did not refer to the fact that the Applicant said that he was one of only two surviving LTTE Customs officers. The delegate’s decision identified this issue as follows (CB156):
Is the applicant one of only two surviving Customs officers?
The applicant stated that he is one of only two surviving Customs officers from the former LTTE controlled areas, as all the others had been killed. He said the other Customs officer was in Adelaide. A check of Department records indicated that there is also another former LTTE Customs officer currently applying for asylum in Melbourne as well. I do not find the applicant’s un-evidenced and sweeping statement to be credible.
The Authority had to consider claims which were the subject of substantial clearly articulated argument or claims which “clearly emerged” from the materials (AYY17, [18]). A claim which “clearly emerged” from the materials is to be distinguished from a claim which “depends for its exposure on constructive or creative activity by the Tribunal” (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263, [58]; [68]; emphasis added).
The Applicant’s assertion to the delegate that he was one of only two surviving Customs officers of the LTTE was insufficient, without more, to amount to a claim that he had a well-founded fear of persecution because he was one of only two surviving Customs officers. It was also not a claim which “clearly emerged from the materials.” A claim might have been made that because he was one of only two surviving customs officials that heightened his importance in the eyes of the Sri Lankan authorities or exacerbated the real chance of his persecution. The Applicant never sought to draw such a link between his claimed status as one of only two surviving customs officers and his risk of persecution. Such a claim would depend for its exposure on the Tribunal’s “creative activity” rather than clearly emerging from the materials.
If that is wrong, the obligation was to consider the claim, not to mention the claim in the reasons (Minister for Immigration and Border Protection v. SZSRS (2014) 309 ALR 67, [2014] FCAFC 16, [34]). The Applicant has not proved that the Authority failed to consider the claim in the context of its detailed reasons as to his employment links with the LTTE.
Particular 1(e) of Ground 1 does not establish that the Authority made a jurisdictional error.
Conclusion
Ground 1 has not been made out.
Ground 2: Did the Authority fail to afford the Applicant procedural fairness?
The particulars the Applicant advances as to a failure to consider integers of his claim (Ground 1), procedural fairness (Ground 2) and legal unreasonableness (Ground 4) are closely related or overlapping.
Conceptually, if the Authority failed to consider material it may, conceptually, by that failure, have also denied the Applicant procedural fairness. Nonetheless, as far as the Applicant relied on the same particulars under Ground 2 (as to a denial of procedural fairness) as he relied on under Ground 1 (a failure to consider material), Ground 2 did not advance his case.
Particular 2(a): Did the Authority fail to consider all of the material before it including the abuse of persons with links to the LTTE and persons in detention?
The particular at 2(a) in substance reproduced the particular at 1(a), that there was a jurisdictional error in the way in which the Authority dealt with the country information as to the prevalence and culture of torture and abuse in Sri Lanka including the abuse of persons in detention.
As to the particular at 1(a), I concluded that the Authority considered the Country Information including as to the prevalence of torture and abuse of persons in detention in Sri Lanka.
The particular at 2(a) adds nothing to the particular at 1(a).
Particular 2(b): Did the Authority fail to seek new information?
With reference to the particular at 2(b) the Applicant submitted that as a matter of procedural fairness the Authority had to invite the Applicant to provide information at interview (or in some other way) to give “new information” as to his past repeated detentions, interrogations and beatings and/or about two named cousins he claimed had been granted protection in Australia.
Division 3 of Part 7AA codified the requirements of procedural fairness. Section 473DC(2) set out that the 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.”
As a matter of procedural fairness, the Authority had no “duty” to seek further information.
The particulars at 2(b) do not establish any jurisdictional error.
The Authority had a statutory discretion to get new information under s. 473DC(2). Like all statutory discretions it had to be exercised within the bounds of reasonableness. It will be necessary therefore to return to the substance of this ground with reference to the legal unreasonableness grounds (particulars at 4(c)).
Particular 2(c): Did the Authority fail to give the Applicant procedural fairness as to the issue that the Applicant was a customs officer rather than a clerical worker or as to the issue of whether he was one of only two surviving Customs officers
The particular at 2(c) reproduces and does not add substantively to the particulars at 1(d) and 1(e). For the reasons set out above as to the particulars at 1(d) and 1(e), the Applicant has not established any jurisdictional error as to these issues.
Ground 3: Did the Authority misinterpret or misapply the law?
The Authority reasoned that — even though it accepted his account of his personal history — the Applicant was not “a person of interest to the Sri Lankan authorities at the time of his departure from Sri Lanka” and that it was not satisfied that the Applicant would be perceived to have ongoing LTTE or pro-separatist links if he returned to Sri Lanka (CB203, [34]).
Particular at 3(a): Did the Authority misapply or misinterpret the law in not getting new information about the Applicant’s cousins?
The Applicant has not advanced a substantive point that the Authority misapplied the law or applied some wrong legal standard as to its discretion to get “new information” under s. 473DC. As noted, under s. 473DC(2), the Authority was under no duty to get new information (s. 473DC(2). In substance, the Applicant submits that the Authority exercised its discretion as to getting new information in a legally unreasonable way. I will return to this issue below under Ground 4.
The particulars at 3(a) do not disclose any material error as to a misapplication or misinterpretation of the law.
Particulars 3(b): Did the Authority apply the wrong legal standard as to a real chance of persecution?
The Applicant submitted that the Authority’s conclusion that the Applicant did not meet s. 36(2)(a) was “not explicable on any basis other than it required a greater than a small real chance [of persecution] before being satisfied that the criteria in section 36(2)(a) and 36(2)(aa) were met” (AS, [47]).
I accept the Minister’s answering submission that “nothing in the… reasons discloses that it applied an incorrect legal standard.”
As to the relevant legal standard, “a fear of persecution is ‘well-founded’ if there is a real chance that the refugee will be persecuted if he returns to his country of nationality” (Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62, 389 (Mason CJ); 398 (Dawson J); 429 (McHugh J). A fear of persecution may be well-founded, even though there is less than a 50% chance of persecution occurring. Under s. 36(2)(aa) (the complementary protection regime) Australia owed the Applicant protection obligations if there was a “real risk” that the Applicant would suffer significant harm if he returned to Sri Lanka. There was no relevant difference between “real chance” (Refugees Convention) (s. 36(2)(a)) and “real risk” (complementary protection regime).
In its reasons, the Authority referred to the correct legal test that a “well-founded fear of persecution” involved a “real chance” of persecution (CB197, [7]; CB203, [34]; CB 204, [38]). It correctly noted that, under the Refugees Convention and the complementary protection regime respectively, “real chance” and “real risk” involved an application of the same standard. It cited applicable authority for that proposition (Minister for Immigration and Citizenship v. SZQRB (2013) 210 FCR 505, [2013] FCAFC 33, [246]).
Contrary to the Applicant’s submissions that the conclusion was “not explicable” other than as the result of the application of a wrong legal standard, the Authority’s conclusion that there was not a “real chance” or a “real risk” of serious harm to the Applicant should he return to Sri Lanka was explicable and rested on its factual conclusion that the Applicant was not a person of ongoing interest to the Sri Lankan authorities.
The particulars at 3(b) do not prove jurisdictional error under Ground 3 because the Authority applied the wrong legal standard as to a “real chance” or “real risk” of persecution.
Ground 4: Did the Authority make findings which were unreasonable?
Ground 4 particularises the Applicant’s legal unreasonableness grounds.
Particular 4(a): Was the Authority’s conclusion that there was not a “real chance” of persecution legally unreasonable?
Particular 4(a) was as follows:
The Authority accepted that the Applicant’s cousins and sisters had been members of the LTTE and that he had worked the LTTE as a customs or clerical officer, and that he had repeatedly been arrested or detained and questioned and beaten after his return to Sri Lanka in or about 2010. It had reports by the UN and other sources of a history and culture of torture by police and other forces, and the risks of harm to this with links to the LTTE such as working for the LTTE and having family members in the LTTE. Yet the Authority was not satisfied there was a real chance the applicant may [face] serious or significant harm should he return to Sri Lanka
The Applicant submits that the Authority’s conclusion that there was not a real chance of serious harm on the Applicant’s return to Sri Lanka was a legally unreasonable conclusion. The Applicant does not identify any particular error in the Authority’s reasoning process but submits that “the result itself bespeaks error” (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [85]; [2013] HCA 18).
It may not always be possible to identify a particular error in the reasoning process to found a conclusion of unreasonableness. In Minister for Immigration and Border Protection v SZFVW (2018) 264 CLR 541; [2018] HCA 30 Nettle and Gordon JJ held (at [83]):
Indeed, grievous error may result if a court on review had to identify a particular error to found its conclusion of unreasonableness. If the court approached the assessment in this way, at least one important part of the lens for assessing legal unreasonableness would be removed: namely, error identified by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances.
The Applicant is entitled to advance this ground in an outcome (or result) focused way, rather than being limited to proving unreasonableness by identification of a particular error in the reasoning process. In effect, he submits that even if a particular error in the reasoning process cannot be identified the result or outcome is so unreasonable that it falls outside the “range of possible acceptable outcomes which are defensible in respect of the facts and the law” or that the result lacked “justification, transparency and intelligibility” (Li, [105], Gageler J).
I do not accept the submission. There was ample material before the Authority that the Applicant was not a person of ongoing interest to the Sri Lankan authorities. That material provided justification, transparency and intelligibility for the Authority’s conclusion that there was not a real risk of the Applicant’s detention and mistreatment should he return to Sri Lanka. The result was within the range of possible acceptable outcomes defensible as to the facts and the law. This was not a case in which the result bespeaks error.
The particulars at 4(a) do not prove jurisdictional error because the result was legally unreasonable.
Particulars 4(b)and 4(c)
The Applicant abandoned Ground 4(b).
There is no particular 4(c).
Particular 4(d): Was the Authority’s exercise of its discretion not to seek new information legally unreasonable?
In assessing whether there is legal unreasonableness as to the exercise of discretion not to seek new information about past events or the Applicant’s cousins, the issue must be considered in the context of the statutory scheme in Part 7AA that ordinarily the Authority must review a fast track reviewable decision referred to it by considering the information referred to it under s. 473CA “without accepting or requesting new information” and “without interviewing the referred applicant” (s. 473DB(1)(a) and (b)). Further, the Authority is not under a duty to get, request or accept any new information in any circumstances: s. 473DC(2).
Nonetheless, the power to get (or not get) “new information” under s. 473DC(2) is statutory discretion that must be exercised within the bounds of legal reasonableness (Minister for Home Affairs v DUA16 (2020) 271 CLR 550; [2020] HCA 46, [26]–[27]).
The Applicant’s submission to the delegate on 10 May 2017 (after his interview) set out that two of his cousins, whom he named, had been granted protection visas in Australia (CB146). The delegate made no finding (one way or the other) as to that issue.
The Authority found that (CB202, [27]):
In a submission dated 10 May 2017 following his SHEV interview, the applicant has named two persons who he claims are his cousins and who, he claims, were LTTE members during the war. The applicant has claimed that the two persons live in Australia after being granted SHEVs at some point in time. The applicant has not provided any evidence to substantiate his claim that the persons he has named are related to him in any way or any information regarding their personal histories or the substance of their claims for protection. I am not satisfied that he would be linked with such persons by the Sri Lankan authorities, or that it would give rise to an adverse profile for the applicant.
The Minister referred me to three Federal Court authorities (DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, [72]; FGC17 vMinister for Home Affairs [2019] FCA 559, [40] (approved in BIL18v Minister for Home Affairs [2020] FCA 1236, [54]); EPE19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 170, [31]).
In DGZ16, the Court said that the Authority was not required to notify the referred applicant that it was considering taking a different view adverse to the referred applicant of the material considered by the delegate.
In FGC17, the Court the developed the principles in DGC16 and held the “requirement for legal reasonableness is not a vehicle for effectively mandating the exercise of s 473DC in every case which involves the Authority overturning a positive finding made by a delegate on an issue that is dispositive to its review”
Finally, in EPE19, the Court held that the Authority was not required to inform the Applicant of any specific reservations it had about his case.
In this matter, the delegate had taken no view one way or the other as to the veracity the Applicant’s claims as to his cousins. Having regard to the statements of principle above and, most particularly, the principle drawn from DGZ16 and developed in FGC17, the Authority had no obligation to notify the Applicant that the Authority was taking a different view than the delegate adverse to the Applicant as to his claims about his cousins and the requirement for legal unreasonableness did not mandate getting new information under s. 473DC because the Authority was taking that adverse view (FGC17). The fact that the Authority took an adverse view of the Applicant’s claims as to is cousins in circumstances in which the delegate had not taken a view one way or another does not amount to legal unreasonableness in the Authority not exercising its discretion to get new information as to the Applicant’s cousins under s. 473DC(2). The Authority was entitled to proceed without getting new information within the bounds of legal reasonableness.
The particular at 4(d) does not establish legal unreasonableness.
DISPOSITION
The Applicant has been successful because the Authority failed to consider the material set out in Submissions it received on 9 August 2017.
I will issue a writ of certiorari to quash the Authority’s decision. I will issue a writ of mandamus directed to the Authority to determine the Applicant’s application according to law.
Costs
The Minister wished to be heard as to costs.
I direct that the parties confer within 14 days of the date of this decision as to whether an agreed position as to any costs orders can be reached.
If not, the orders I will make timetable costs submissions. In the absence of a request for an oral hearing, I will decide the question of costs on the papers.
Without expressing any view as to matters the parties might wish to argue as to costs, I note the following. First, the usual order is that costs follow the event and the Applicant has been successful. Secondly, my preliminary view is that the issue as to which the Applicant has been successful ought to have been raised on 13 December 2023 obviating the need for a second hearing day. Thirdly, my preliminary view is that a more efficient course would be to fix the quantum of any costs rather than referring the matter to taxation. Any submissions should therefore also descend to detail as to quantum. In that regard, I note the scale in Sch. 2, Part 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. There may of course be other issues as to costs.
I certify that the preceding one hundred and fifty-one (151) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 17 April 2024
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