Fqe17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1132
•4 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FQE17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1132
File number(s): MLG 2798 of 2017 Judgment of: JUDGE J YOUNG Date of judgment: 4 December 2023 Catchwords: MIGRATION – application for judicial review – temporary protection visa – where Immigration Assessment Authority affirmed decision of first respondent that applicant’s former husband is not a person in respect of whom Australia has protection obligations and accordingly applicant is also not a person in respect of whom Australia has protection obligations – whether Immigration Assessment Authority’s failure to exercise its discretion under s 473DC of the Migration Act 1958 (Cth) to request translations of identity documents was legally unreasonable – whether it is legally unreasonable for the Immigration Assessment Authority not to disclose notified information to the applicant under s 473GB of the Migration Act 1958 (Cth) – found no jurisdictional error on behalf of the Immigration Assessment Authority. Legislation: Migration Act 1958 (Cth), s 65, pt 7AA, ss 473CC(1), 473DA(1), 473DB(1), 473DC, 473GB(3), 474. Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34
BMH 17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1052
BVD17 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2019) 268 CLR 29
CLL16 v Minister for Immigration & Anor FCCA 419
CMP19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] FCA 634
Craig v South Australia (1995) 184 CLR 163
DBE16 v Minister for Immigration and Border Protection [2017] FCA 942
DCP v Minister for Immigration and Border Protection [2019] FCAFC 91
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551
DZU16 v Minister for Immigration & Border Protection and Anor [2017] FCCA 851
Minister for Home Affairs v DUA (2020) 271 CLR 550
Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nguyen v Minster for Home Affairs [2019] FCAFC 128
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Division: Division 2 General Federal Law Number of paragraphs: 130 Date of hearing: 28 July 2023 Place: Melbourne Counsel for the Applicant: Ms Finegan Solicitor for the Applicant: Asylum Seeker Resource Centre Counsel for the First Respondent: Ms McInnes Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
MLG 2798 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FQE17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
4 DECEMBER 2023
THE COURT ORDERS THAT:
1.The Amended Application filed on 30 June 2023 be dismissed.
2.The Applicant pay the costs of the First Respondent in a sum to be fixed if not agreed.
3.The name of the First Respondent be amended to read Minister for Immigration, Citizenship and Multicultural Affairs.
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 J YOUNG:
INTRODUCTION
Before the Court is an Amended Application filed on 30 June 2023 for judicial review of a decision made by the second respondent (Immigration Assessment Authority) dated 17 November 2017.
In the decision the Immigration Assessment Authority (Authority) affirmed a decision of the Delegate of the first respondent (Minister) to refuse the applicant’s application for a Temporary Protection Visa (TPV).
For the reasons that follow, the Application is dismissed.
CONTEXT
The applicant claims to be a citizen of Sri Lanka.
On 25 November 2012 the applicant and her husband arrived in Australia as an Irregular Maritime Arrival.
On 17 September 2013 the applicant gave birth to a child whilst detained on Christmas Island.
On 3 March 2016 the Department of Immigration and Border Protection (Department) sent the applicant’s then husband an invitation to apply for a TPV or a Safe Haven Enterprise visa (SHEV).
On 1 June 2016, with the assistance of a migration agent, the applicant applied for a TPV as a member of the family unit of her husband.
On 8 July 2016 the applicant was requested to provide further information, specifically documentary evidence of her identity, nationality or citizenship. That request informed the applicant that documents in languages other than English should be accompanied by an English translation.
On 1 February 2017 the Department sent the applicant a request to attend an interview on 17 February 2017 to discuss her visa application.
The interview took place on 17 February 2023. Certain identity documents were provided to the Delegate at the interview.
On 23 February 2023 the applicant’s migration agent emailed copies of untranslated identify documents to the Department, saying:
…Find attached birth certificates for [applicant] (DOB: xx xxxx 1994) mother and her brother information as evidence of Sri Lankan national as per instructed. I have forwarded non English translated copies for translations…
On 12 April 2017 the Delegate refused to grant the TPV to the applicant.
On 12 April 2017 an officer of the Department issued a notification regarding disclosure of certain information covered by s 473GB of the Migration Act 1958 (Cth) (Act).
On 19 April 2017 the matter was referred to the Authority.
On 17 November 2017 the Authority affirmed the Delegate’s decision not to grant a TPV to the applicant.
In December 2017 the applicant separated from her husband.
Applicant’s claims for protection
The husband claimed to fear harm in Sri Lanka because he is a Tamil. He claimed to have been stopped and questioned on suspicion of being a member of the Liberation Tigers of Tamil Eelam (LTTE) on one occasion. He claimed that the Sri Lankan Army (SLA) visited his home and told his parents to send him to the SLA camp for further questioning, following which he fled to India.
The applicant initially did not raise any claims in her own right. At interview, the applicant claimed to fear harm because her eldest brother was in the LTTE and she had been questioned by Sri Lankan authorities about her husband after he left for India.
Delegate’s decision
The Delegate did not accept that the applicant and her husband were Sri Lankan nationals.
The Delegate noted that the interpreter repeatedly expressed concerns about both the applicant and the husband’s ability to understand her Sri Lankan Tamil because, in her view, they were speaking Indian Tamil. The Delegate referred to a report on the value of linguistic differentiation in assessing whether a person is Indian or Sri Lankan Tamil generally. The Delegate noted that the interpreter is not a linguistic expert, but the interpreter was experienced and a native Sri Lankan Tamil. The Delegate took the interpreter’s opinion into account.
The Delegate noted that the Department had received information that the husband’s name was other than that claimed and that he is an Indian national. The Delegate identified that the husband had sent considerable amounts of money to a person in New Delhi with the same surname as that which it was alleged the husband shares. The husband stated at interview that he sent money to this person because of a debt his father told him about, and denied that this was his name or that there was any family connection.
The applicant’s representative had provided an untranslated copy of the applicant’s claimed Sri Lankan birth certificate. The applicant had provided various other untranslated documents. The Delegate noted that the applicant had provided no English translation of any of those documents and that the representative’s email provided limited information about the document.
The Delegate accepted that the applicant had lived in Sri Lanka and had been a Sri Lankan national. However, the Delegate was not satisfied that the applicant was still a Sri Lankan national finding it likely that she is now an Indian national, saying:
Many of the other factors relevant to Applicant 1 also apply to Applicant 2 in relation to her likely Indian nationality, for example, the interpreter’s view that she spoke Indian, not Sri Lankan Tamil, her knowledge of India and acknowledged periods of residency there for which she possesses no documentation, her departure for Australia from India.
The Delegate identified that the applicant had failed to provide any translations of identity documents that might confirm her name and age.
Authority decision
The Authority issued its statement of decision and reasons on 17 November 2017 (Authority Decision).
The Authority had serious concern about the credibility of the applicants and their claim to be Sri Lankan nationals.
The Authority considered that there were a significant number of inconsistencies in the applicants’ evidence about themselves and each other. It also considered there were significant gaps in the applicants’ knowledge about their families, their in-laws and where they say they lived in Sri Lanka that raised considerable issues about the applicants’ credibility.
The Authority noted that the applicant provided no identity documents with her TPV application. The Authority also noted that at the TPV interview the Delegate requested the applicant to provide identity documents with English translations of those documents and her eldest son’s birth certificate, as well as any documents in relation to her parents’ residency status in India, together with English translations.
The applicant’s representative was present at the TPV interview. In relation to the documents subsequently provided to the Delegate, the Authority at [14] said:
… At the TPV interview the delegate requested she provide identity documents with English translations of those documents and her oldest son’s birth certificate as well as any documents in relation to her parents’ residency status in India, together with English translations. Her representative was present at the TPV interview. Her representative subsequently provided what appear to be untranslated copies of [the applicant’s] birth certificate, her mother’s NIC, her father’s NIC and her brother’s birth certificate. Her representative also provided an extract of the bank book, brother’s driving licence and two Indian “Special certificate of registration of Sri Lanka Tamil” documents, all in English.
The Authority found that although some of the titles and sections of the documents were in English as well as other languages, and some of the years and dates appeared in English, the Authority was unable to understand the other entries on the untranslated documents and on this basis, attached no weight to them. The Authority noted that none of the birth certificates indicated the year 1994, being the year the applicant claimed she was born. Overall, the Authority was not satisfied that the documents were reliable evidence of the applicant or her husband’s claimed identity.
The Authority noted that the Department received information that the husband’s name is other than that claimed and that he is an Indian national. The Department also received information that the husband had remitted money overseas to a person in New Delhi with the same surname as that disclosed in the other information. This information had been put to the husband during the interview with the Delegate. The Authority considered that the payments made to a person in New Delhi with the same surname as the husband tended to provide some support for the information in the dob-in. The Authority also considered the husband’s response to the information to be evasive and reflect poorly on his credibility.
The Authority noted that the interpreter at the interview had expressed a belief that the applicant and the husband were speaking Indian Tamil while she was speaking Sri Lankan Tamil.
Due to the significant credibility issues with the biographical histories and evidence provided by the applicant and the husband, together with the third-party information, the Authority was satisfied that the applicant and the husband sought to conceal their true biographical details and their history was not as claimed. The Authority found that the applicant and the husband were not Sri Lankan nationals and it was highly likely that they are nationals of India.
The Authority then considered their claims for protection in Sri Lanka. The Authority rejected those factual claims, finding the husband had been inconsistent with his claim to have been detained by authorities. The husband made claims in his arrival interview that were not repeated in his later visa application or interview with the Delegate. The Authority found the applicant’s evidence about the number of times she was questioned by authorities inconsistent. The Authority was satisfied that the husband had fabricated his claims and rejected them based on the significant changes, inconsistencies and credibility issues in the husband’s evidence and inconsistencies in the applicant’s supporting evidence.
The Authority noted that the applicant had raised her own claims for the first time at the interview with the Delegate. The Authority found her explanation for why she had not raised the claims earlier to be unconvincing, particularly considering she had the assistance of migration agents to lodge the visa application. The Authority rejected the applicant’s claims that her brother was in the LTTE and that she and her family were questioned, harassed and beaten by the Sri Lankan authorities.
The Authority was not satisfied that the applicant or the husband met the criteria in sections 36(2)(a) or (aa) of the Act, or that they were a member of the family unit of a person who met those criteria. The Authority thereby affirmed the Delegate’s decision.
APPLICATION FOR JUDICIAL REVIEW
The applicant applied for judicial review of the Authority’s decision on 20 December 2017. The applicant was self-represented at the time of filing.
The applicant became legally represented on 25 February 2022.
In accordance with the Orders made 18 September 2018, the applicant filed an Amended Application on 30 June 2023.
The Amended Application contains the following grounds for judicial review (without amendment):
1.The Second Respondent fell into jurisdictional error when it acted in a way that was legally unreasonable by not exercising its discretion under section 473DC of the Migration Act 1958 (Cth) to seek translations of relevant identification documents, which resulted in a finding that deviated from the Department of Home Affairs’ decision dated 12 April 2017.
Particulars
A.Prior to the delegate’s decision, the Second Respondent was provided with the Applicant’s untranslated identity documents, noting that the documents were being translated: CB 194.
B.The Second Respondent made the decision without seeking a copy of the translated copies, making incorrect findings of fact on the basis of the untranslated copies, and making adverse findings, including adverse credibility findings, in relation to the untranslated copies: Decision at [14].
C.Where a decision maker knows that an applicant has relevant information, but elects not to allow the applicant to provide that information, this failure to act will be considered legally unreasonable: DZU16 v Minister for Immigration & Border Protection & Anor [2017] FCCA 851 [92] – [94].
2.The Second Respondent fell into jurisdictional error when it acted in a way that was legally unreasonable by failing to exercise its discretion to exercise its power under section 473DE of the Migration Act 1958 (Cth) in relation to new information regarding opinions about the language spoken by the Applicant at her interview with the delegate, which resulted in a finding that deviated from the Department of Home Affairs’ decision dated 12 April 2017.
Particulars
A.The Second Respondent relied upon new information, that is, the Second Respondent’s own opinion that a person who spoke Indian Tamil must necessarily be from India, rather than from Sri Lanka: Decision at [22]-[23], which was a departure from the finding of the delegate, who found that the Applicant was from Sri Lanka: CB 200.
B.The delegate did not put this opinion to the Applicant, nor did the Second Respondent elect to interview the Applicant with regards to this opinion.
C.The Second Respondent must present any adverse new information to an applicant, and invite such applicant to give comments on the new information: s 473DE of the Migration Act 1958 (Cth). To fail to do so is legally unreasonable: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 [45]; DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148 at [43].
3.The Second Respondent fell into jurisdictional error when it acted in a way that was legally unreasonable by failing to exercise its discretion to exercise its power under section 473GB of the Migration Act 1958 (Cth) to disclose contents of material subject to a non-disclosure certificate.
Particulars
A.The Second Respondent relied upon a non-disclosure certificate pursuant to s 473GB(5) of the Migration Act 1958 (Cth): CB 208.
B.In its decision, the Second Respondent relied upon the information subject to the non-disclosure certificate to make adverse credibility findings in relation to the Applicant: Decision at [18]-[23].
C.Whether the non-disclosure of a s 473GB certificate is unreasonable will depend upon the circumstances of the case: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114.
D.In circumstances where the information subject to the non-disclosure certificate is in relation to the Applicant’s husband, and the Applicant was not represented and illiterate, it is legally unreasonable to rely on this material to make adverse credibility findings.
The applicant filed the following further relevant material:
(1)affidavit of the applicant filed 20 December 2017, annexing the Authority’s decision;
(2)affidavit of the applicant’s solicitor filed 30 June 2023, annexing English translations of the identity documents that were provided to the Department by the applicant’s former husband’s migration agent (however, ultimately sought not to rely on the content of these documents); and
(3)written submissions filed 30 June 2023.
The Minister filed a Response on 9 March 2018. The Response contained the following ground:
1.The application for judicial review does not establish any jurisdictional error in the decision of the Immigration Assessment Authority dated 17 November 2017.
The Minister also filed written submissions on 13 July 2023.
THE HEARING
The hearing took place on 28 July 2023.
At the hearing the applicant did not press Ground 2. Accordingly, this Court is only required to consider Ground 1 and Ground 3.
STATUTORY FRAMEWORK
A “privative clause decision” as defined at s 474 of the Act is final and not amenable to judicial review in any Court. Absent identification of jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Authority’s decision: s 476 of the Act; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76].
The task on judicial review is not to undertake a general review of the decision or to substitute it with a decision which the Court may consider ought to have been made. The jurisdiction, being supervisory, allows for a decision to be quashed on established grounds, the most important of which is jurisdictional error, and, where appropriate, to order that the matter be remitted and reconsidered according to law: Craig v South Australia (1995) 184 CLR 163 at [175].
LEGISLATIVE CONTEXT
Part 7AA of the Act provides a fast track review process in relation to certain protection visa decisions. Under Part 7AA, the Authority must review a “fast track review decision” made by the Minister refusing under s 65 to grant a protection visa to a "fast track applicant”.
The presently relevant sections of Part 7AA are as follows.
Section 473DA(1) provides as follows:
Exhaustive statement of natural justice hearing rule
1.This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
Section 473DB(1) provides as follows:
Immigration Assessment Authority to review decisions on the papers
1.Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
a. without accepting or requesting new information; and
b. without interviewing the referred applicant.
Section 473DC, relevantly, provides as follows:
Getting new information
1.Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
a.were not before the Minister when the Minister made the decision under section 65; and
b. the Authority considers may be relevant.
2.The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
Section 473GB(3) provides as follows:
Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc.
…
3.If the Immigration Assessment Authority is given a document or information and is notified that this section applies in relation to it, the Authority:
a.may, for the purpose of the exercise of its powers in relation to a fast track reviewable decision in respect of a referred applicant, have regard to any matter contained in the document, or to the information; and
b.may, if the Authority thinks it appropriate to do so having regard to any advice given by the Secretary, under subsection (2), disclose any matter contained in the document, or the information, to the referred applicant.
CONSIDERATION
Ground 1
By ground 1 the applicant asserts that the Authority’s failure to exercise its discretion under s 473DC of the Act to request translations of the relevant identification documents (Identity Documents) was legally unreasonable.
Applicant’s submissions
The applicant submits that:
(a)the Authority’s finding that the applicant and her family had never been Sri Lankan nationals was contrary to the finding of the Delegate;
(b)that finding was based upon a finding that untranslated and uncertified documents were not understandable by the Authority and therefore could not be attributed weight;
(c)the Authority was aware that the applicant had relevant information (being translated copies of the Identity Documents); and
(d)in those circumstances the failure of the Authority to request the Identity Documents from the applicant was legally unreasonable.
The applicant submits that the failure of the Authority to request the Identity Documents was particularly unreasonable because:
(a)the applicant was unrepresented before the Authority; and
(b)on the evidence before the Authority it was not apparent whether the applicant knew that:
(i)untranslated identity documents had been provided to the Department; or
(ii)the former migration agent had not provided translations to the Department.
Further, the applicant submits that the Authority’s finding at paragraph [14] of its decision that one of the documents before it was the applicant’s birth certificate was factually incorrect. The applicant submits that her evidence to the Delegate and the information before the Authority was that she did not have a birth certificate. The applicant submits that the Authority made adverse findings regarding perceived inconsistencies in her evidence which impugned her credibility findings on the basis of incorrect factual assumptions.
The applicant relies upon the decisions in DZU16 v Minister for Immigration & Border Protection and Anor [2017] FCCA 851 and Minister for Immigration & Border Protection v CRY16 (2017) 253 FCR 475.
Minister’s submissions
The Minister concedes that there may be circumstances in which it would be legally unreasonable to fail to consider the exercise of discretion under s 473DC of the Act. However, the Minister submits that in the present matter no such obligation arose. The Minister submits that this was not a case where additional information was necessary in order to complete the review or where there was an information gap or a new issue that arose for the first time before the Authority that prevented the Authority from completing its review without obtaining additional information. The Minister submits that in these circumstances it was not unreasonable for the Authority to not consider exercising the power in s 473DC of the Act.
As to the factual error asserted by the applicant, the Minister submits that:
(a)even if one of the Identity Documents that the Authority considered was not the applicant’s birth certificate, the applicant has not established that it was factually wrong for the Authority to note that none of the birth certificates supplied showed the year 1994; and
(b)noting a matter does not mean the Authority gave it any weight. The Authority expressly stated that it placed no weight on the Identity Documents.
Finally, the Minister submits that any error in Ground 1 is not material as the Authority “for completeness” went on to consider the applicant’s claims for protection in Sir Lanka. The Minister submits this was a separate and wholly independent basis for the Authority’s decision and no error is alleged in respect of that reasoning.
Consideration – Ground 1
When conducting a review of a fast track reviewable decision the Authority “is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision has been referred to it. The task of the authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the Visa has been met”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [17].
In BMH 17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 1052 at [113] Feutrill J said:
…the de novo review of the authority is not of a lesser standard that required by the delegate in making the referred decision. A failure of the authority to understand and therefore consider the substance of the claim in fact raised by referred applicant can result in the authority failing to perform its statutory function according to law and jurisdictional error. Mistranslation of referred applicant’s claim “has the potential to result in the authority failing to discharge the core element of its overriding duty”: DVO16 at [22]-[23]. Just as mistranslation has that potential, logically, the absence of any translation has that potential. The logic applies equally to written and spoken language.
It is uncontested that s 473DC(1) confers a discretion on the Authority and that that discretion must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481 at 487-488 [21], 497 [86], 498 [90]; 353 ALR 600 at 607, 620-621. The Authority is not required to give reasons for the exercise or non-exercise of a procedural power such as those conferred on it by s 473DC(1): BVD17 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs (2019) 268 CLR 29 at [16] and [40] (BVD17). Further, the mere failure of the Authority to mention the discretion conferred by s 473DC(1) does not support the drawing of an inference that the exercise of the discretion was not considered: CMP19 v Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs [2022] FCA 634 at [61]; BVD17 at [40].
The standard required to show that the Authority’s failure to exercise the discretion under s 473DC of the Act was legally unreasonable is a high or demanding one: Minister for Home Affairs v DUA (2020) 271 CLR 550 at [26]-[34] (DUA); DCP v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110] – [113]; DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551.
In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 the plurality at [20]-[22] explained the nature and extent of the relevant implied condition of legal reasonableness as follows:
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an “intelligible justification” but also that the Authority comes to that decision through an intelligible decision-making process. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant.
Answering the question therefore requires an examination of the decision-making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
The mere existence of an informational gap will not necessarily result in the Authority being “disadvantaged in comparison with the delegate.
In DUA, when considering legal unreasonableness in the context of the exercise of the Authority’s powers under Part 7AA, the plurality said at [26]-[29]:
A requirement of legal reasonableness in the exercise of a decision-maker’s power is derived by implication from the statute, including an implication of the required threshold of unreasonableness, which is usually high. Any legal unreasonableness is to be judged at the time the power is exercised or should have been exercised. It is not to be assessed through the lens of procedural fairness to the applicant. Instead, whether the implied requirements of legal reasonableness have been satisfied requires a close focus upon the particular circumstances of exercise of the statutory power: the conclusion is drawn “from the facts and from the matters falling for consideration in the exercise of the statutory power.”
As Griffiths J correctly held in the Full Court, there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law. However, the power in s 473DC is still subject to the usual implication that it must be exercised within the bounds of legal reasonableness. Hence, this Court has held that a decision can be invalid if it is made in circumstances which exceed the high threshold of legal unreasonableness for the Authority’s failure to exercise the power in s 473DC to get new information.
The circumstances of CHK16’s case are extreme. The Authority was aware that CHK16 intended to provide submissions and that the submissions might contain new information. But it was apparent, as the Authority realised, that the submissions provided by the agent concerned a different person and that none of the personal information related to CHK16. As the Authority was aware, this was the only opportunity that CHK16 would have to provide his own new information, which could be of considerable importance. On CHK16’s case before the delegate, the consequences of refusal of his protection visa could place his life at risk. A request from the Authority for the correct submissions and CHK16’s correct personal information would have been a very simple matter. The Authority had, itself, indicated in its Practice Direction that submissions that were too long would be returned with an opportunity given to provide new submissions. These circumstances reflect the observation of six members of this Court in Minister for Immigration and Citizenship v SZIAI.
The failure of an administrative decision-maker to make inquiry into factual matters which can readily be determined and are of critical significance to a decision made under statutory authority, has sometimes been said to support characterisation of the decision as an exercise of power so unreasonable that no reasonable person would have so exercised it.
The legal unreasonableness of the failure by the Authority to get new information by requesting the correct submissions pursuant to s 473DC is plain when the alternative approach taken by the Authority is considered. Rather than taking the simple route of asking for the correct submissions, consistently with its own procedures for returning submissions that are too long, the Authority filleted the submissions that plainly concerned the wrong person into generic and non-generic information. The Authority then treated the generic information in the submissions concerning another person as though the information had been correctly provided in relation to CHK16’s circumstances. On no view could that have been a reasonable course to take.
(Citations omitted)
For the following reasons, I do not consider that the Authority’s failure to request the Identity Documents from the applicant was legally unreasonable.
Firstly, under Part 7AA of the Act it is open to the Authority to make findings different from the delegate: CLL16 v Minister for Immigration & Anor FCCA 419 at [46]. Further, s 473DA excludes any common law obligation to invite an applicant to respond to any adverse findings that the Authority might make. There is nothing in Part 7AA that suggests that the Authority is unable to make adverse findings to an applicant where the delegate has made favourable findings on the same issue: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [59].
Secondly, by letter dated 8 July 2016 the Department requested the applicant provide documentary evidence of her identity, nationality or citizenship. Under the heading “Translating your documents”, that letter, amongst other things, stated:
Documents in languages or than English should be accompanied by an English translation…
Accordingly, from the commencement of the visa application process the applicant had been on notice that she was required to provide translated Identity Documents. Translation requirements were also contained in the letter dated 1 February 2017 inviting the applicant to attend an interview on 17 February 2017.
Secondly, the transcript of the TPV interview reveals the following exchanges occurred regarding the applicant’s Identity Documents:
At page 1:
Delegate: Ok first of all have you got with you your husband’s original documents?
Applicant: Just have the ID card.
Delegate: Ok alright, moving on.
Applicant: That’s this birth certificate and the ID card.
Delegate: Ok we still need the translations. Do you have any original identity documents yourself?
Applicant:I don’t have any.
Delegate:You don’t have any? Why is that?
Applicant: My mother said that due to the problems there they couldn’t obtain the documents.
Delegate:Sorry when did your mother tell you this?
Applicant:As soon as I came here, I phoned up my mother and asked her, then only she told me.
At page 2:
Delegate:So as far as you know you have no birth certificate?
Applicant:No
Delegate:And no national ID card
…
Delegate:Could you get it now?
Applicant:No
Delegate:Why?
Applicant:…And in their haste to leave the country, they left all the documents
At page 7:
Delegate:When you were living in Sri Lanka did you ever have a national ID card or birth certificate that you kept?
Applicant:I know that I had a birth certificate so when I rang my mother and asked for it she said she did have it, but in the haste to make the arrangements to come over she did not know where she left it.
At page 12:
Delegate:Ah he’s the one in Geelong. Does he have Sri Lankan national identity documents?
Applicant:Yes, he has.
Delegate:Ok they might be useful. (Not interpreted).
Lawyer:Do you want to obtain such documents from the brother, or proof of identity from Sri Lanka. Is that correct?
Delegate:Anything proving he is a Sri Lankan national (Not interpreted).
At page 13-14:
Delegate:Ok. It’s for you to present the evidence OK? And for the level. You have to have something to justify the level of interest you claim that they have in you.
Lawyer:Can I just ask you a question, would you mind? I think according to this statement so far, the brothers, her brothers came together on the same boat, probably you must have some information about the brothers in the Department database. Will you be able to assess that or not? (Not interpreted).
Delegate:That’s fine, she can, I can compare what we have with what you give us, but I’m not finding that – she has to give me the claim.
Lawyer:No problem. I just say a little bit, the kind of questioning so far to me in this matter and from the beginning for the first applicant and the second applicant right now raised an issue of credibility of probably nationality of where they’re from and that’s kind of established more right here, but to me in the beginning, actually they are from Sri Lanka, and the interpreter cannot find out the language between Indian Tamil and Sri Lankan Tamil is there’s an issue for example to me. And why I ask that question is probably if the brother in Geelong has an identity which can be found as Sri Lankan national probably we will be able to link that to my client. (Not interpreted)
Delegate:If she is his sister yeah. (Not interpreted).
Lawyer:Thank you, I will be able to verify the information and get back to you later, anyway to the Department (Not interpreted) .
Delegate:Ok that would be good. (Not interpreted).
At page 18:
Delegate:…OK first of all regarding your identity documents, when you were interviewed in your entry interview you said they were with your parents in India. OK so specifically your birth certificate and today you said a couple of things about it but one of them was your parents left in such haste that they didn’t take your birth certificate with them. You also said in your entry interview that you, another form of identification you had was a bank book and your mum had told you she had a bank account she was putting money in since you were young. That would also be a useful form of identification. And where is that bank account, is it in India?
Applicant:It was in Sri Lanka.
Delegate:OK. Do you want to say anything about that?
Applicant:I don’t know about it because she is the one who deposited the money.
Delegate:And the birth certificate issue, do you want to say anything or have a conversation with your lawyer?
Applicant:I don’t know where the birth certificate is and my mother doesn’t know where the birth certificate is, so how can I produce it?
Delegate:OK then why did you tell us when you were interviewed in December 2012 that it was in India with your mother?
Applicant:I did inquire from my mother where the documents were, and she said she went looking for it, she couldn’t find it. She doesn’t know where she left it.
At page 22
Delegate:Well I can’t give you more than 2 weeks extension. As in a total of 2 weeks, she gets one week now and then a further extension of 7 days after that. Because there’s the issue of the claims and the issue of the identity and the nationality.
Lawyer:Well I’ll try whatever I can. Well a simply question, but if I am able to establish the brother’s status which is identity as a Sri Lankan resident would that satisfy your requirement?
Delegate:I’m not sure.
Lawyer:The reason is that –
Delegate:She’s given different names for the brother. Her overall credibility would have to be assessed and determined.
Lawyer:That would, I an put that forward right now if we can establish that her brother is a Sri Lankan national for example right. Well if you’re going to take the matter forward, that may require you to give us an opportunity to undergo DNA for both of them to establish this fact, so probably the biological relationship can be proven by DNA test.
Accordingly, it is clear in light of the above, and in light of the transcript of the applicant’s TPV interview as a whole, that the applicant’s nationality is at issue.
Fourthly, following the TPV interview by email dated 23 February 2017 the applicant’s representative forwarded untranslated documents saying:
I am writing this email in reference to your requested information during the interview held 17 February 2017. Find attached birth certificate copies for [applicant] (DOB: xx xxxx 1994) mother and her brother information as evidence of Sri Lankan national as per instructed. I have forwarded non English translated copies for translations…
Accordingly, the applicant (through her representative) provided untranslated documents and advised that translated documents would be forwarded. No such documents were provided.
Fifthly, the Delegate’s decision says:
Applicant 2 claimed at her Protection Visa interview and [sic] that she was unable to present a Sri Lankan birth certificate, or any other documentary evidence of her claimed nationality, for various reasons. However, her representative has provided an untranslated copy of the applicant’s claimed Sri Lankan birth certificate.
The applicant has also provided untranslated copies of documents she claims are:
•her mother’s Sri Lankan birth certificate
•her brother’s Sri Lankan birth certificate.
She has also provided documents that appear to be:
•her mother’s Sri Lankan national identification card, dated 2004;
•her father’s national identification card, also dated 2004;
•a Sri Lankan driving licence issued in 2006, presumably belonging to a male member of her family;
•a Sri Lankan bank account for “Mast.[sic] M. Kandaiyah Banu”, dated 9 July 2004.
The applicant has provided no English translations of any of these documents. Her representative’s email tendering them provide limited information about these documents
…
The applicant has failed to provide any translation of identity documents that might confirm her name and age.
Accordingly, the applicant was aware from the Delegate’s decision that various identification documents were submitted, but that her representative had not provided English translations of any of them. The applicant was also aware from the Delegate’s decision that the Delegate was concerned that the applicant had failed to provide any translation of identity documents that might confirm her name and age. Further, in light of these matters, the applicant’s submissions that the Authority’s failure to request the Identity Documents was unreasonable because it was not apparent whether the applicant knew that the untranslated Identity Documents had not been provided to the Department or whether the former migration agent had provided translations to the Department, cannot be sustained.
Sixthly, in the referral letter dated 19 April 2017, the applicant was given the opportunity to provide written submissions to the Authority and was advised of what to do if she wanted to give the authority new information in accordance with the Authority’s Practice Direction. The applicant did not do so.
Seventhly, at paragraph [15] of the Authority’s decision the Authority notes that notwithstanding that none of the documents provided are translated, none of the certificates provided contain the date 1994, being the year which the applicant has consistently claimed she was born. Accordingly, even if translations of the documents had been provided they would not corroborate the applicant’s asserted date of birth.
Accordingly, in circumstances where:
(a)the applicant was well on notice of the need to provide translated Identity Documents;
(b)the applicant had been given and failed to take the opportunity to provide translated Identity Documents on more than one occasion;
(c)the applicant ought to have known from the Delegate’s decision that translated documents had not been provided;
(d)the applicant ought to have known from the Delegate’s decision that there were no translated documents that could confirm her name and age;
(e)the applicant asserted that she did not know the whereabouts of her birth certificate; and
(f)even if translations of the documents had been provided they would not corroborate the applicant’s asserted date of birth as none contained the year 1994 being the year on which the applicant said she was born,
I do not consider that the failure of the Authority to request the Identity Documents was legally unreasonable.
As to the asserted factual error in paragraph [14] of the Authority’s decision, I firstly note that on a fair reading of the representative's email, the information provided to the Delegate by the applicant’s representative was that a translated copy of the applicant’s birth certificate had been provided. Secondly, at paragraph [14] of the decision the Authority says that the representative provided “what appear to be untranslated copies of [the applicant’s] birth certificate...” I do not consider, as submitted by the applicant, that is a finding by the Authority that one of the documents was in fact the applicant’s birth certificate. The Authority makes it clear that it is unable to understand the untranslated documents. This is simply a reflection of the information provided by the applicant’s representative. Thirdly, at paragraph [15] the Authority concluded that none of the birth certificates supplied appeared to show the year of birth as 1994. On the evidence before the Court that is correct. Fourthly, the Authority expressly states that it places no weight on the Identity Documents. Accordingly, I reject the submission that the Authority erred as submitted.
For completeness, I also reject the submission that the evidence before the Authority was that the applicant did not have a birth certificate. Rather, the transcript reveals that the applicant’s evidence before the Delegate was that the applicant did have a birth certificate, saying “I know I had a birth certificate” however when she asked her mother for the certificate her mother did not know where she had left it.
Further, I accept the Minister’s submission that, if contrary to my conclusion above the Authority did err, any such error was not material.
An error will constitute jurisdictional error if, and only if, it is material: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (MZAPC) at [2]-[3]. An error will be material if there is a realistic possibility that the decision made could have been different had the error not occurred. SZMTA at [45], [49]; MZAPC at [2]-[3]. Existence or non-existence of a realistic possibility that the decision could have been different is a question of fact in respect of which the applicant in an application for judicial review of the decision on the ground of jurisdictional error bears the onus of proof: MZAPC at [2]-[3]. The question is to be determined by inferences drawn from evidence adduced on the application for judicial review: MZAPC at [46]. In assessing materiality, much will turn on the facts of the case, the decision-making process and the kind of error alleged: Nguyen v Minster for Home Affairs [2019] FCAFC 128 at [54].
The errors alleged by the applicant are directed toward the Authority’s finding that the applicant (and her husband) were not Sri Lankan nationals. At paragraph [25] of its decision the Authority said:
I do not accept that Applicant 1 and 2 are who they claim to be but for completeness I have addressed their claims for protection in Sri Lanka. Furthermore, for the following reasons I do not accept they were of adverse interest to the Sri Lankan authorities.
Accordingly, notwithstanding its finding that the applicant was not a Sri Lankan national, the Authority went on to consider the applicant’s claims for protection in Sri Lanka. The Authority rejected the applicant’s claims for protection and at paragraph [32] set out its reasons for doing so. The Authority therefore provided a separate and wholly independent basis for its decision. Consequently, even if the Authority erred in finding that the applicant was not a Sri Lankan national, in circumstances where the Authority considered the applicant’s claims for protection in Sri Lanka and rejected them, there is no realistic possibility that the decision could have been different.
The applicant submits that notwithstanding the Authority stating that it placed no weight on the Identity Documents for the purposes of establishing her nationality, in its reasoning the Authority “clearly relied on” the untranslated version of the Identity Documents to draw adverse credibility findings. I reject that submission. Firstly, at paragraph [15] the Authority explicitly say it places no weight on the untranslated documents. In those circumstances I am unable to see how it can then be said that this was somehow a factor that led to a credibility finding. Secondly, at paragraph [32] of its decision the Authority rejected the applicant’s claim that she and other members of her family were questioned, harassed and mistreated by the Sri Lankan authority and said:
Applicant 2 also claimed at the TPV interview that her oldest brother was in the LTTE and that as a result her parents, her other older brother and herself were questioned, harassed and mistreated by the Sri Lankan authorities. She claimed that she was questioned two or three times before she was married and once after she married, with the first occasion being around when she was 13 years old. When she was questioned she was beaten two to three times. She mentioned in her arrival interview that her oldest brother died in 1998 after he was abducted in a van incident and that she was questioned in relation to her husband’s whereabouts but made no mention of any LTTE connections of, or questioning about, her brother. The applicant was asked why she didn’t mention these claims before the TPV interview and she said she was told by people in the camp that if she mentioned her brother was in the LTTE she would be sent back. This explanation is unconvincing as she was willing to reveal in her arrival interview that the authorities were interested in her husband and when lodging her application she had the advice and assistance of migration agents. I do not consider it credible that she failed to previously mention something as significant as being questioned and beaten two or three times by the Sri Lankan authorities including from when she was 13 years old. I reject Applicant 2’s claims that her brother was in the LTTE and that she and her family were questioned, harassed and beaten by the Sri Lankan authorities, as a fabrication.
The Authority’s findings therefore turned on the inconsistencies in the information provided by the applicant upon arrival and at the TPV interview, and her explanation for these consistencies. There is nothing in the reasoning of the Authority to suggest, or from which it can be inferred, that the Authority relied on the untranslated version of the Identity Documents in any way to draw adverse credibility findings.
It follows from the above that Ground 1 discloses no jurisdictional error on behalf of the Authority.
Ground 3
By Ground 3 in her written submissions the applicant submits that the failure by the Authority to disclose the s 473GB certificate and material covered by that certificate was legally unreasonable. However, in oral submissions the applicant said the unreasonableness arose only from the failure to disclose the notified information.
Applicant’s submissions
The applicant submits that the failure to disclose the notified information was legally unreasonable because the Authority placed weight upon this information to make a number of findings, including adverse credibility findings, which formed the basis for dismissing the applicant’s protection claims. The applicant submits that none of the notified information was properly put to the applicant to respond to during the Delegate’s interview and the Authority did not elect to interview the applicant in relation to this information. In oral submissions the applicant submitted that it was never put to the applicant by the Authority that her husband’s real name was Barat Vanraj, that he was Indian, had an Indian passport and driver’s licence and that he had assumed the identity of a deceased person. Further, she submitted that the Authority had impugned her credibility based on the notified information, notwithstanding it had not been put to her by the Authority. The applicant submitted that “effectively, the Authority has taken the brush and tarred everyone with the information behind the dob-in material without allowing the applicant to comment on it.” In oral submissions the applicant further submitted that the Authority’s decision at paragraph [23] says that the applicant and her husband “lied” and that this and the “allegation that [the applicant] was concealing her true biographical details” were never put to the applicant. It is further submitted that this was particularly unreasonable in circumstances where much of the notified information was regarding the applicant’s husband and it was unreasonable to rely on this information in circumstances where the applicant did not have legal representation before the Authority and is illiterate.
Minister’s submissions
The Minister submits that it was not legally unreasonable for the Authority not to disclose the notified information to the applicant because, in summary, the substance of the notified information had already been put to the applicant by the Delegate and was contained in the Delegate’s decision.
As to the submission that the Authority was required to put to the applicant that she had “lied” and that the applicant was concealing her true biographical details, the Minister submits that the applicant mistakes the nature of administrative decision making and the limited procedure fairness regime set out in Part 7AA of the Act. The Minister submits that procedural fairness does not, and has never, required a decision maker to put their thought processes or analysis of evidence to an applicant.
Finally, the Minister submits that if the Authority erred by failing to disclose the notified information to the applicant, such error was not material for the reasons set out in paragraph [62] above.
Consideration – Ground 3
The provisions of s 473GB of the Act were considered in BVD17 and it is useful to first set out certain observations made by the majority in that case.
Procedural fairness does not oblige the Authority to disclose the fact of a notification under s 473GB(2) to a referred applicant in a review under Part 7AA: BVD17 at [2]. This is because s 473DA(1) of the Act precludes such an obligation from arising: BVD17 at [2]. The Authority has a discretion whether to disclose information that was the subject of the notification: BVD17 at [10]. As to the manner in which the discretion in s 473GB(3) is to be exercised, the majority in BVD17 said at [10]:
Conformably with the analysis in SZMTA of the operation of s 438(3), three aspects of the operation of s 473GB(3) are not in dispute in the appeal. First, the Authority has no power to have regard to notified information or matter for the purpose of exercising any of its powers in relation to a fast track reviewable decision in respect of a referred applicant unless the Authority affirmatively exercises the discretion conferred on it by s 473GB(3)(a). Second, the Authority has no power to disclose the notified information or matter to the referred applicant unless the Authority affirmatively exercises the discretion conferred on it by s 473GB(3)(b). Third, the discretion conferred by s 473GB(3)(b) is conditioned by the requirement that it must be exercised within the bounds of reasonableness. Also not in dispute in the appeal is that the discretions conferred by s 473GB(3)(a) and (b) are so bound together that an affirmative exercise of the discretion conferred by s 473GB(3)(a) gives rise to a duty on the part of the Authority to consider exercise of the discretion conferred by s 473GB(3)(b).
(footnotes omitted)
In its decision, the Authority does not expressly refer to its consideration of the discretion in s 473GB(3)(b). The Authority is under no obligation to give reasons for its exercise or non-exercise of a procedural power: BVD17 at [40]. Therefore, the mere failure of the Authority to mention the discretion conferred by s 473GB(3) cannot support the drawing of an inference that the exercise of the discretion was not considered: BVD17 at [40]. I do not understand it to be contended by the applicant that the Authority did not consider whether to exercise the discretion conferred by s 473GB(3)(b); rather, it is contended that having considered whether to disclose the information the Authority determined not to do so and that such a determination was, in the circumstances, legally unreasonable.
The notified information is not before the Court. No notice to produce was issued. Accordingly, in the absence of such evidence the applicant’s submission that none of the notified information was properly put to the applicant to respond to during the Delegate’s interview cannot be sustained. That other matters were put to the husband by the Delegate does not lead to a conclusion that none of the notified information was properly put to the applicant.
However, certain matters are before the Court. The notification made under s 473GB is before the Court. That notification applies to three documents referred to as follows:
·AUSTRAC Report;
·Identity Report; and
·Job Detail Report.
The Authority addresses the notified information at paragraphs [18]-[22] of its decision. At paragraph [18] of its decision the Authority says:
The Department received information that Applicant 1’s name is other than that claimed and that he is an Indian national. The Department also received information that Applicant 1 had remitted money overseas to a person in New Delhi with the same surname as that disclosed in the other information, ‘V’.
Accordingly, the decision reflects that the Department received information that the husband’s name was other than claimed, that the husband was an Indian national and that the husband had remitted money overseas to a person in New Delhi with the same surname as that disclosed in the “other information, V”. I infer that the “other information” is the AUSTRAC report about payments to New Delhi and that the name of the person to whom the payments were sent began with a “V”.
The transcript reveals that the following exchanges occurred between the applicant and the Delegate.
At page 20:
Delegate: Do you know if your husband knows anyone in New Delhi?
Applicant: Her, sorry his sister, younger sister’s husband is there
Delegate: What’s his name?
Applicant: I don’t know his name. I don’t talk to him
Delegate: In New Delhi?
Applicant: Yes
At page 21:
Delegate: Do you know anyone by the surname Vanraj?
Applicant: No
Delegate: Or the first name Vanraj?
Applicant: No
Page 29 and 30 of the transcript reveal that the Delegate asked the husband:
·if he knows anyone in New Dehli;
·whether he was in contact with anyone in New Dehli;
·whether he knows anyone named Kessavan Vanraj;
·whether that person is a family member;
·what was the reason for the husband to send money to India; and
·how he obtained the $4,000 sent to India.
The Delegate also put to the husband that the Department had information that the husband had sent quite large sums of money to India, his wife had said that his sister’s husband was in New Dehli, that once he had sent more than $4,000 to India, that the Department had information that his name was Bharat Vanraj, that he was really Indian, had an Indian passport and driver’s licence and that the documents he had produced are documents of a deceased person with the photograph changed.
In the Delegate’s decision the Delegate says:
The Department has received information that the applicant’s name is other than that claimed and that he is an Indian national. The applicant has sent considerable sums of money to a person in New Delhi with the same surname as that which, it is alleged, the applicant shares. The applicant stated at interview that he sent $4000 and other sums to this person because of a debt his father told him about. He denied that this was his name or that there was any family connection.
The Delegate’s decision was provided to the applicant. She was therefore aware of the information the subject of the notification. As set out earlier, the applicant did not make any further submissions to the Authority.
I reject the applicant’s submission that it was legally unreasonable for the Authority not to disclose the notified information to the applicant. The above demonstrates that the information had, in substance, been put to the applicant by the Delegate at interview and as a consequence of the Delegate’s decision was also otherwise known to the applicant. The applicant made no further submissions to the Authority. It follows that I therefore also reject the submission that it was particularly unreasonable for the Authority to rely on the notified information due to the applicant’s lack of legal representation and illiteracy, noting that precisely when the applicant’s representation ceased is not in evidence before the Court.
As to the submission that the Authority impugned the applicant’s credibility on the basis of the notified information and “effectively tarred everyone” with the notified information, I reject that submission.
At paragraph [7]-[12] the Authority addresses the applicants’ evidence regarding their biographical histories, concluding at paragraph [12]:
Overall, there are a number of significant inconsistencies in the applicants’ evidence about themselves and each other. There are also significant gaps in the applicants’ knowledge about their families, their in-laws and where they say they lived in Sri Lanka that also raise considerable issues about the applicants’ credibility.
Accordingly, the Authority sets out the reasons for its concerns regarding the applicant’s credibility. They are not based on the notified information.
At paragraphs [13]-[17] the Authority addresses the applicant’s documentation concluding:
Overall, I am not satisfied that the documents are reliable evidence of their claimed identities.
Accordingly, the Authority’s conclusion at paragraph [17] is also not based on the notified information.
At paragraphs [18]-[22] the Authority addresses the notified information under the heading “Third party information”. At paragraph [20] the Authority addresses the applicant’s evidence regarding the notified information.
At paragraph [23] the Authority said:
Given the significant credibility issues with the biographical histories and evidence provided by Applicant 1 and 2, together with the third party information, I am satisfied that the applicants have deliberately sought to conceal their true biographical details and their history is not as claimed. I find that Applicant 1 and Applicant 2 are not Sri Lankan nationals. On the same basis, I find it is highly likely that Applicant 1 and Applicant 2 are nationals of India.
Notwithstanding that paragraph [23] is included under the heading “Third party information” it is clear that paragraphs [23] is a conclusion arising from the Authority’s consideration of all of the matters in paragraphs [7]-[22] of its decision and the findings reached therein. The Authority sets out its consideration of the applicant and her husband’s biographical history, documentation and the third party information separately and makes a finding in relation to each matter, from which it draws an overall conclusion. In light of that, I do not consider it can be said that the Authority impugned the applicant’s credibility based on the notified information or that “effectively the Authority has taken the brush and tarred everyone” with the notification information.
As to the submission that the Authority did not put to the applicant that she and her husband “lied” or that she was “concealing her true biographical details”, I accept that this is so. However, for the following reasons no error arises from the Authority not so doing. Paragraph [23] is set out above. For clarity, at no point in the Authority’s decision does it say that either the applicant or her husband “lied”. I accept, however, that the Authority found that there were “significant credibility issues with the biographical histories and evidence” provided by the applicant and her husband. The finding by the Authority that the applicant and her husband “deliberately sought to conceal their true biographical details” is a conclusion based upon the significant credibility issues with the biographical histories and evidence provided by the applicant and her husband and the notified information. There is no obligation on the Authority to give an applicant notice that it may make a particular finding and to invite comment on this possibility: DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [65]. Further, s 473DA excludes any common law obligation to invite an applicant to respond to any adverse findings that the Authority might make. Except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined: BVD17 at [34].
Finally, I accept the Minister’s submission that if, contrary to my conclusion above, the Authority did err, any such error was not material for the reasons set out in paragraph [94] above.
It follows from the above that Ground 3 discloses no jurisdictional error on behalf of the Tribunal.
DISPOSITION
It follows that the Application cannot succeed and must therefore be dismissed.
The Minister seeks costs. I shall order that the applicant pay the Minister’s costs in a sum to be fixed if not agreed.
I certify that the preceding one hundred and thirty (130) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 4 December 2023
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