FEDERAL COURT OF AUSTRALIA

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court on 23 March 2018 be set aside and in lieu thereof:

(a)    the decision of the second respondent dated 4 April 2017 is set aside and the matter is remitted to the second respondent for determination according to law; and

(b)    the first respondent is to pay the applicant’s costs in the proceedings in the Federal Circuit Court.

3.    The first respondent is to pay the appellant’s costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1.    INTRODUCTION

1    The appellants are a family comprising the husband, wife and their three children of Sinhalese ethnicity. The appellants are Sri Lankan citizens save for the youngest child who was born in Australia and is described as stateless.

2    This is an appeal from orders made by the Federal Circuit Court (FCC) dismissing the appellants’ application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (the IAA). The IAA is established by Div 8 of Pt 7AA of the Migration Act 1958 (Cth) (the Act) and is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (the AAT). The IAA had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellants Safe Haven Enterprise (Class XE) Subclass 790 visas (the safe haven visas). A safe haven visa is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary for the appellants to satisfy the criteria for a protection visa in either subs 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see subs 35A(6) of the Act.

3    Grounds 1-3 of the notice of appeal concern the alleged failure by the IAA to address a number of news reports relating to an event in Sri Lanka to which hyperlinks were provided in a submission to the IAA. Specifically, the appellants contend that the primary judge ought to have inferred that the IAA failed to consider whether these articles constituted “new information” under s 473DC of the Act and whether they met the requirement of “exceptional circumstances” under s 473DD. Ground 4 concerns a document from a court in Sri Lanka which was obtained after the Minister rejected the appellants’ application but before the review of that decision by the IAA. The appellants submit that the rejection of this document as not constituting “credible personal information” within s 473DD(b)(ii) of the Act was irrational.

4    Finally, the Minister stated in his submissions on the appeal filed on 17 August 2018 that he did not press his notice of contention as filed on 7 May 2018. Rather, the Minister accepted that if new information is provided to the IAA after the decision of the Minister (or delegate) under s 65 of the Act, the IAA is required to consider that information for the purposes of considering whether the information falls within the statutory exception (s 473DD) to the “primary rule” (citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 (Plaintiff M174) at [22] (Gageler, Keane and Nettle JJ)). However, the Minister was granted leave at the hearing to file an amended notice of contention in which he alleged that the hyperlinked articles referred to by the primary judge at [4], [5] and [8]-[11] of the primary judge’s reasons could not have affected the IAA’s decision because of the findings made by the IAA in its reasons at [18]-[23]. As such, the Minister contended that any failure to consider these news reports could not constitute jurisdictional error, or alternatively, that relief should be refused in the exercise of discretion.

5    For the reasons set out below, the amended notice of contention filed on 24 August 2018 should be dismissed and the appeal must be allowed on grounds 1 to 3.

2.    BACKGROUND

2.1    The appellants’ claims

6    We have described the appellants’ claims in general terms only in order to minimise the risk of inadvertently disclosing information which may identify the appellants.

7    The appellants’ claims to fear harm if returned to Sri Lanka stemmed from the husband’s unknowing involvement in drug smuggling and the wrongful accusation of his involvement in people smuggling. That claim was explained in the husband’s statutory declaration lodged with his application for the safe haven visa as follows.

(1)    Several years before the safe haven visa application was lodged, the husband accepted a job to work on a fishing boat. After the first trip, the husband became concerned that the owner of the boat, Mr Y, was a drug smuggler and that the ship was being used for that purpose. As a result, the husband declined an offer for further work because of his fear of becoming involved in the criminal activity and the danger that would present to him and his family.

(2)    The husband then obtained work elsewhere which required him to be away from his family for an extended period. During this time, a number of men forced their way into the appellants’ home, searched for the husband, and said that they would kill the husband if they found him. The wife was injured in the attack.

(3)    Initially the husband was confused as to why these men had attacked his home and made threats. Upon making enquiries, however, he learnt that on the fishing trip which he had declined to join, the boat was intercepted by the authorities who found drugs. As such, he considered that the smugglers must believe that he “dobbed them in”, given the timing and his knowledge of the planned trip.

(4)    The husband was afraid that the drug smugglers would carry out their threats against him, given how powerful drug smugglers are in Sri Lanka. As a result he went into hiding while his family were supported by his wife’s family. However, the husband said that his wife and children “saw that they were being watched all the time by men who would drive past, and they could tell that these men were waiting to see if [I] tried to rejoin my family.”

(5)    The husband explained that:

15. I did not go to the police at any point during this time because I knew that drug smugglers have connections and influence with politicians and the authorities and I didn’t know who to trust. It is very easy for the Sri Lankan authorities to make a poor person like me “disappear” and I knew that this happened regularly. I had no proof of what happened and no one could help me.

(6)    The husband fled to Australia with his family and several other families on a boat which was operated by people smugglers. He later found out that the owner of the boat, Mr K, had falsely reported that the husband had stolen his boat so that Mr K would not be connected to the smuggling operation. The appellant also said that he was told that his details had been given to the Sri Lankan airport with an order for his arrest for the theft of the boat.

(7)    He said that he feared that if he returned to Sri Lanka he would be arrested by the CID on arrival and put in jail where he was at risk of being killed. Specifically he claimed that:

19. … The corrupt officers and authorities who are working with the drug smugglers will then try and kill me. If the CID or authorities don’t kill me, the drug smugglers in prison will kill me because they think that I am the one who dobbed them in. It is not only [Mr Y] who blames me. In [2013], the Sri Lankan authorities arrested many drug smugglers. The smugglers had been running their operations successfully for many years, and so the timing of my involvement with [Mr Y] and his arrest and my departure to Australia means they are convinced that I am responsible. There are therefore many drug smugglers in prison who want to kill me.

20. If I am not jailed by the CID and am released into the community, I will be found by the drug smugglers who are not in prison and will be killed. There is no prospect that I can go into permanent hiding with my wife and children to avoid detection. There is nowhere in Sri Lanka that I will be safe.

2.2    The delegate’s decision

8    The delegate interviewed the husband and wife separately on 10 January 2017. They lodged a post-interview submission on 17 January 2017.

9    By a decision dated 28 February 2017, the Minister’s delegate refused the applications for the safe haven visas, relevantly rejecting the husband’s claim that he was unwittingly involved in drug smuggling activities and that his life is in danger from drug or people smuggling syndicates. Specifically, with respect to the claim that the people smuggler and the drug smugglers had joined together to target and kill the husband, the delegate found that:

During the PV interview I asked the applicant how he knew these people were looking for him. He told me that people in the … [immigration] detention centre had told him that the people smugglers report the boats stolen and then claim on insurance. He also stated that his mother and father-in-law in Sri Lanka had told him that people had been asking about his whereabouts.

These alleged events are based on here say [sic] and rumour that the applicant heard while in detention. There is no evidence before me to show that the applicant has been charged with stealing a boat or that he has been reported to the Sri Lankan authorities.

I do not accept the applicant’s claim that his life is being threatened by drug smugglers and people smugglers. I did not find the [husband or wife] as credible witnesses in their relaying of the alleged events.

2.3    The decision of the IAA

10    On 8 March 2017, the IAA wrote to the appellants acknowledging that the delegate’s decision had been referred to it for review. The letter explained that the Department had provided it with all of the documents that it considered relevant to the appellants’ case, including material provided to the delegate before his decision, and that the IAA would proceed to make a decision on the basis of that information unless it decided to consider new information. The letter also explained that the IAA could only consider new information in limited circumstances which were apparently set out in an attached fact sheet and practice direction.

11    Subsequently on 27 March 2017, the appellants’ migration agent, Tern Visa and Migration Lawyers, wrote requesting that the IAA consider what was said to be credible new information that was not before the delegate and afford the husband the opportunity to provide this new information at an interview (the Tern submission). The new information included hyperlinks to news reports on what was described as “a widely reported incident of prisoners being killed by gunmen as part of a drug-related issue”. These were said to corroborate the husband’s fear that he will be killed once he is detained in Sri Lanka: see further below. In addition a report was attached which was said to concern a prosecution in a Sri Lankan court of other passengers who had travelled on the same boat to Australia as the husband and were charged for departing illegally when they returned to Sri Lanka (the Sri Lankan Court report). The husband was mentioned in that report and accused of being a crewmember. The report also stated that the other passengers were being investigated for stealing the boat. This was said to corroborate the husband’s claim that he had been accused of stealing the boat and being a crewmember.

12    By a decision dated 4 April 2017, the IAA affirmed the delegate’s decision not to grant protection visas to the appellants.

13    In reaching that decision, the IAA had regard to the material referred by the Secretary under s 473CB of the Act and to the sections of the Tern submission that addressed the delegate’s decision and findings (IAA’s reasons at [3]-[4]). However, the IAA was not satisfied that the husband could not have provided the Sri Lankan Court report to the delegate given that it was the husband’s responsibility to provide sufficient evidence to establish his claims, the appellants were represented when completing their visa application, and the husband was able to obtain the document in the brief time since the delegate’s decision. The IAA also considered that the variation between the date and port of departure in the Sri Lankan Court report, on the one hand, and the husband’s account on the other hand, “brings into doubt the veracity of this document”. As such, the IAA was not satisfied that the report contained credible personal information. Nor was the IAA satisfied that there were exceptional circumstances justifying the IAA having regard to this information.

14    No mention at all is made in the IAA’s reasons of the new information in the Tern submission comprising the news reports.

15    While, as we have mentioned, the IAA affirmed the delegate’s decision, it reached that conclusion by a different line of reasoning in which fundamental aspects of the husband’s claims were accepted.

16    First, the IAA found that the husband claimed among other things that he fears harm:

… because he has been listed as having stolen the boat on which they came to Australia that he will be arrested on arrival in Sri Lanka and gaoled. He fears he will be killed by corrupt officials or the drug smugglers. He believes the drug smugglers colluded with the people smuggler to report he stole the boat so that he will be arrested on return and they can kill him in prison. He stated that a number of drug smuggling arrests occurred around … 2013 and because drug smuggling attracts a life sentence in Sri Lanka the smugglers will take revenge believing he informed on them.

17    The way in which the IAA dealt with this aspect of the appellants’ claims is critical and should be set out in some detail.

(1)    The IAA accepted as plausible that:

(a)    the husband was unwittingly involved in a fishing trip that may have been used to disguise drug smuggling;

(b)    he was invited to join a second trip but declined; and

(c)    the second trip was intercepted by the Navy and drugs were located (IAA’s reasons at [16]).

(2)    The IAA also accepted that “it is plausible that armed men came to the family home in … 2012 and his wife was injured when they forced entry to the house and that they threatened to harm the applicant” (IAA’s reasons at [17]). The IAA nonetheless found that:

17. I note that the applicants decided not to inform the police of the intruders who visited the family home and made threats to kill [the husband]. Both applicants stated that this was because the police are corrupt and the drug smugglers have connections to the police. Yet [the husband] advised that he did not become aware of the interception of the second fishing trip until after this incident. As he was not yet aware of the interception of the second trip at this time, it is difficult to reconcile his claim that he and [his wife] did not advise the police of this intrusion and threat because of concern the drug smugglers are connected to the police.

(3)    While accepting that the wife was “fearful”, “had recently suffered a scare from the intrusion in … 2012”, and may have been alarmed by people driving past her, the IAA was not convinced that she was watched and considered her fears “to be based on conjecture” (IAA’s reasons at [18]). The IAA apparently accepted that the wife remained in the area living with her parents and that the children stopped attending school. However the IAA noted that no one approached her or her family or came to the family home where she was staying with her parents. The IAA concluded on this issue that “[c]onsidering the evidence before me I do not accept that men she may have observed driving past were in fact watching her, or waiting for [her husband] to return” (IAA’s reasons at [18]).

(4)    The IAA also considered that the husband’s explanation for his belief that the drug smugglers blamed him for the interception of the second boat trip, namely, “the coincidence of the timing and his refusal to be involved in the second boat trip”, was “speculative” (IAA’s reasons at [19]). In referring to “the coincidence of the timing”, the IAA was plainly referring to the timing of the violent and threatening visit by the armed men. In reaching that view, the IAA referred to indications that the authorities were actively disrupting drug operations and focusing on the drug trade (ibid). It must be observed, however, that while the appellants did not submit that this finding was legally unreasonable, the so-called coincidence of the timing might reasonably have been thought to be a compelling basis for inferring a connection between the two events.

(5)    The IAA also accepted that the husband was fearful for his safety, stayed in hiding for seven months before he departed Sri Lanka, and managed to successfully evade the drug smugglers. It also accepted that the visit in 2012 occurred and that it may have been linked to the fishing trip which the husband had undertaken in the boat of a known drug smuggler. However, it was not convinced that the drug smugglers were searching for him after the 2012 visit, as he feared, because there was no indication that in that time the drug smugglers made any further attempts to speak with his wife, his extended family, or other villagers despite the husband being in contact with other villagers and discussing his concerns and plans with them (IAA’s reasons at [20]-[21]). It concluded at [21] that the husband and wife held subjective fears for their safety but those fears of future harm from the drug smugglers as a result of the fishing trip were largely speculative and not well-founded. As such, the IAA was “not satisfied that they had an ongoing interest in him after the visit in … 2012” (IAA’s reasons at [21]).

(6)    The IAA concluded on this issue that:

22. I am not satisfied that the applicant’s fear he has been accused of stealing a boat, that this theft and his name have been recorded at the airport, and that he will be arrested on return on this basis, is well-founded. [The husband] has concluded this from discussions he has had with other asylum seekers in Australia and from discussions with his father-in-law. When asked at the [safe haven visa] interview how he knew this he responded that he was 100% sure. When asked who told him he had been reported for stealing the boat he stated that this was his mother and his father-in-law and that his father-in-law knows and talks to a lot of people. The delegate asked [the husband] why he thought the boat owner had made an insurance claim and accused him of stealing the boat to which he replied, why else would the people smuggler team up with the drug smuggler. I am not convinced from this account the [the husband] has been reported to the CID for stealing the boat. The [husband’s] fear is based on speculation that the people smuggler and the drug smugglers have colluded to report the [husband] to the authorities for the theft of the boat so that he will [be] imprisoned on return to Sri Lanka and they can kill him in prison. I have noted that there was only one visit to the [husband’s] home in … 2012, I have not accepted that they monitored [the wife] in order to locate [the husband] after that visit, and the indications are that the drug smugglers did not make other attempts to locate [the husband]. Accordingly I am not satisfied that the drug smugglers have since entered into an arrangement with the people smuggler to orchestrate his imprisonment into Sri Lanka so that they can harm him on return.

23. [The husband] did not come to the attention of the police or other authorities before his departure from Sri Lanka and there is no indication that he is of adverse interest to the authorities. I note his concerns regarding corrupt police and the supporting country information, however I have not accepted that he is of ongoing interest to drug smugglers and I do not accept that the authorities will act in concert with, or on behalf of, drug smugglers to harm [the husband].

18    We also note that, while the IAA considered that the husband and wife would be subject to a penalty by reason of having departed Sri Lanka illegally in 2013 which was almost always a fine, it also accepted that:

26. As returnees, … [the husband and wife] may be questioned by police at the airport and charged under the [Immigrants and Emigrants Act 1949]. As part of this process, most returnees will be fingerprinted and photographed, then transported to the nearest Magistrates Court at the first available opportunity. However, returnees may be required to remain in police custody at the CID Airport Office for up to 24 hours [and if] a Magistrate is not available before this time, such as a weekend or public holiday, may be held at a nearby prison.

(emphasis added)

19    As such, the IAA accepted that the appellants may be detained and questioned at the airport for up to 24 hours and may face a short period of time in prison pending bail (IAA’s reasons at [30], [31] and [42]).

2.4    The decision of the FCC

20    The amended application for judicial review in the FCC relevantly alleged that the IAA fell into jurisdictional error:

(1)    in failing to consider whether the country information referred to in the Tern submission satisfied the requirements of s 473DD of the Act so as to justify its consideration (Ground 3(a)); and

(2)    by applying an unreasonable or illogical process of reasoning when considering whether to have regard to the Sri Lankan Court report pursuant to s 473DD which led to an unreasonable end result (Ground 3(b)).

21    With respect to Ground 3(a), the primary judge held at [8]-[9] that the news reports related to “an incident of marginal relevance” to the husband’s claims, being concerned with a drug-related gangland killing in Sri Lanka. As such, the primary judge considered that it was perhaps not surprising that the clippings were not referred to by the IAA and rejected the appellants’ submission that it should be inferred that the IAA had failed to consider them (applying by analogy the reasoning of the Full Court in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE) at [46]): FCC reasons at [11]. However, the primary judge rejected the Minister’s submission that, in the absence of a statutory duty to accept new information, there could be no duty to consider such material at all. Rather, his Honour held that if information was before the Authority which ought to have satisfied it of the matters set out in s 473DD(a) and (b), there would be an obligation to consider that information and to fail to do so would involve a constructive failure to exercise jurisdiction. As earlier mentioned, the Minister does not press his notice of contention in this appeal alleging that the primary judge fell in error in so holding. However, the primary judge found that the information lacked the necessary cogency and direct relevance to affect the Authority’s conclusion that the husband’s fears of harm if returned were speculative (FCC reasons at [18]).

22    With respect to Ground 3(b), the primary judge did not accept that the IAA’s grounds for rejecting the credibility of the Sri Lankan Court report were legally unreasonable, given in particular the discrepancy between the husband’s claim as to the place from which the fishing boat had departed, on the one hand, and the place of departure identified in the report, on the other hand (FCC reasons at [21]-[24]). As such, the primary judge concluded that it was at least open to the IAA to doubt the credibility of the information and not to be satisfied that it was credible personal information for the purposes of s 473DD(b)(ii) of the Act.

3.    RELEVANT STATUTORY PROVISIONS

23    Part 7AA of the Act (comprising ss 473BA-473JF) was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the amending Act) and commenced on 18 April 2015. The amendments introduced a Fast Track Assessment Process (fast track process) providing a mechanism for limited merits review by the IAA in respect of certain adverse protection visa decisions. As the simplified outline of Pt 7AA in s 473BA explains, the fast track process provides:

… a limited form of review of certain decisions … to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.

24    The fast track process may relevantly be summarised as follows.

25    First, the Minister must refer a fast track reviewable decision (as defined in s 473BB) to the IAA “as soon as reasonably practicable after the decision is made” (s 473CA). At the same time as the referral is made (or as soon as reasonably practicable thereafter), the Secretary must give to the IAA “review material” in respect of the referred decision (s 473CB). The review material must include a copy of the primary decision-maker’s written reasons for decision and any material provided to the primary decision-maker by the referred applicant, together with “[a]ny other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review” (subs 473CB(1)(a)-(c)).

26    Secondly, the IAA must “review” a fast track reviewable decision referred to it under s 473CA (s 473CC(1)). In the exercise of its review function, subs 473FA(1) requires the IAA “to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).”

27    Thirdly, the conduct of the review is governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). When read together with s 473DA, the scope of material which may be considered by the IAA is limited by Subdiv C of Part 7AA Div 3.

28    Thus s 473DA provides that Div 3 (together with ss 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.” In turn, s 473DC(1) provides that:

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.

29    “New information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174 at [24] (Gageler, Keane and Nettle JJ).

30    The IAA, however, has no duty to get, request or accept any new information whether requested to do so by the referred person or anyone else (subs 473DC(2)).

31    Furthermore, the discretion to get new information under subs 473DC(1) must be read together with s 473DD which strictly circumscribes the circumstances in which the IAA may consider any new information. That section provides that:

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)     the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

32    As Gageler, Keane and Nettle JJ explained in Plaintiff M174 at [27], “given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.” Thus, in order to consider new information, the IAA must be satisfied that the criterion in s 473DD(a) is met and either of the criterion in s 473DD(b)(i) or (ii): Plaintiff M174 at [30]-[31]. With respect to s 473DD(b)(ii), the question is whether the personal information is information which was not previously known to the Minister even if it was previously known to the referred applicant. As Gageler, Keane and Nettle JJ held in Plaintiff M174:

34. Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

(emphasis added)

33    The effect of these provisions is that the IAA conducts the fast track review on the papers by reference to the material provided to it by the Secretary under subs 473CB(1) (described in Plaintiff M174 at [22] as the “primary rule”) subject to the exception in s 473DD: Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 (AMA16) at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed).

34    Finally, pursuant to s 473FB, the President of the AAT has issued a practice direction stating that a referred applicant may provide a written statement on why she or he disagrees with the Department’s decision and on any claim or matter which she or he presented to the Department but was overlooked. The practice direction also explains the limited circumstances in which new information may be considered consistently with s 473DD: Plaintiff M174 at [38].

4.    CONSIDERATION

35    As the Minister submitted, it is well established that the onus lies upon the appellants to establish jurisdictional error: BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 (BVD17) at [41] (the Court). It follows that the appellants bear the onus of establishing the factual foundation from which it can be inferred that the IAA failed to consider whether the information in the news reports was new information which met the criteria in s 473DD. For the reasons set out below, the appellants have discharged that onus and grounds 1-3 of the appeal must be upheld.

4.1    Alleged failure to consider whether the news reports met the criteria in s 473DD (grounds 1 to 3, notice of appeal)

4.1.1    The parties’ submissions

36    The first issue is whether, on the balance of probabilities, the FCC ought to have inferred that the IAA did not consider whether the news reports to which hyperlinks were provided in the Tern submission, and the submissions made relating to those reports, met the criteria for the exception in s 473DD of the Act to the “primary rule”.

37    The starting point is that there is no dispute that the IAA did not refer to the news reports hyperlinked in the Tern submission or to what the Tern submission argued regarding the news reports. The question is therefore whether it ought to be inferred that the IAA nonetheless had regard to them. In this regard, it is well established that this Court is in general in as good a position as the primary judge to be able to decide on the proper inferences to be drawn from facts which are undisputed or are established by findings of the primary judge: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [25] (Gleeson CJ, Gummow and Kirby JJ) (approving Warren v Coombes (1979) 142 CLR 531 at 551).

38    In support of the submission that the Court should infer that the IAA failed to consider whether the news reports met the criteria in s 473DD, the appellants do not rely only upon the total absence of any mention of the news reports by the IAA in its reasons. Rather, the appellants emphasise that the IAA found at [4] that “I have had regard to the sections of the [Tern] submission that address the delegate’s decision and findings” before then explaining at [5]-[10] why it had not had regard to the Sri Lankan Court report or the new information purportedly conveyed by the husband from his mother which was described in the Tern submission. In this context, the appellants submit that the detailed reasons given as to why that new information was not taken into account, when contrasted with the complete absence of any reference to the news reports, tend to the conclusion that the latter were overlooked.

39    The Minister, on the other hand, submits that the FCC rightly held that it could not be inferred from the failure by the IAA to refer to the news reports that that material was overlooked by the IAA.

40    First, applying the approach of the Full Court in WAEE, the Minister submitted that:

(1)    the IAA was not required to identify every piece of evidence or contention in its reasons; and

(2)    no error can be inferred from its failure to refer to the news reports, given, as the FCC correctly found, that those reports were of “marginal relevance” only and therefore fell within what WAEE indicates need not be specifically mentioned.

41    As such, the Minister submitted that understood in context, the FCC’s conclusion was plainly correct:

That context reveals that the information (in the form of hyperlinks) was provided as “new country information” … As country information, the information concerned people and events unrelated to the Appellants. It was not, in that context, “credible personal information” under s 473DD(b)(ii) of the Act. The only relationship between the information and the Appellants was the [husband’s] claim to be fearful that he could be targeted by drug smugglers whilst in custody if he were detained upon his return to Sri Lanka. However, there was nothing to link the country information to the Appellant. Also, the IAA did not accept the claim that he would be arrested or harmed as a result of adverse interest or action against him by drug traffickers or persons acting at their behest … There was no suggestion that the news articles had any relevance to the Appellant at all.

42    Secondly, the Minister submitted that s 473EA did not require the IAA to provide a written statement recording procedural decisions along the way to deciding the review and the reasons for those decisions, but only for “the decision of the Authority on the review”, relying upon BVD17 at [41]-[51], BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (BCQ16) at [50], and CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 (CVS16) at [26]-[29]. Thus, while the IAA did give some explanation for how it applied s 473DD, the Minister submitted that there was no statutory obligation which could support any inference that if some piece of evidence was not mentioned, it was not considered.

43    Thirdly and in any event, the Minister submitted that there was no possibility that the evidence could have led to a different result. In the Minister’s submission, the findings made by the IAA that it did not believe that the applicant was of any interest to the drug smugglers precluded any different result.

4.1.2    Did the IAA fail to consider whether the news reports met the criteria in s 473DD?

44    In our view, the appellants have established on the balance of probabilities that the IAA failed to consider whether the news articles and submissions relating to them met the criteria in s 473DD.

45    First, as the appellants submitted, the approach outlined by the Court in WAEE affords valuable guidance particularly in the context of Part 5 and Part 7 reviewable decisions but it does not purport to lay down rules. Rather, the question of whether the decision-maker in question has failed to consider a contention which may have been dispositive of the outcome will turn upon the construction of the particular reasons read in the light of their statutory context.

46    Secondly, the Minister rightly contends that the absence of any reference in the IAA’s written statement of reasons given under s 473EA to the hyperlinked news reports does not of itself give rise to an inference that the IAA failed to consider whether they met the criteria in s 473DD. This flows from the fact that there is no obligation upon the IAA under s 473EA to set out its “decision” on whether new information meets the criteria in s 473DD.

47    Thus s 473EA(1) provides that the IAA must make a written statement that:

(a)    sets out the decision of the Authority on the review; and

(b)    sets out the reasons for the decision; and

(c)    records the day and time the statement is made.

48    In BVD17 at [45]-[49], the Full Court held that reasons given under s 473EA must comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth) (AIA). Section 25D requires that “the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”: see also AMA16 at [74]. As such, the Court held in BVD17 (at [49]) that the reasoning of the High Court in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 concerning the construction of s 430 of the Act (which imposes similar requirements to s 25D of the AIA) applies by analogy to s 473EA(1).

49    In SZGUR, the High Court held that s 430 of the Act did not require the Tribunal to disclose in its written reasons, procedural decisions taken in the course of making its “decision on a review” and therefore did not require the Tribunal to refer to the disposition of a request by the applicant’s migration agent for an independent medical assessment. As such, the High Court held that the Federal Court had erred in relying upon s 430 to found an inference that the Tribunal had not considered the request because the Tribunal had not referred to the request in its reasons. In so holding, French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed) reasoned that:

32. … Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.

50    Applying SZGUR, the Full Court in BVD17 therefore held that the absence of any reference in the IAA’s reasons to the exercise of the discretion to disclose information covered by a certificate under s 473GB of the Act does not of itself give rise to an inference that the exercise of that discretion was not considered (at [49]). Equally, Bromwich J held in CVS16 at [29] that s 473EA(1) does not require the IAA to set out whether or not new information satisfies the criteria in s 473DD in its reasons because s 473EA(1) “is directed to the decision, and reasons for decision, on the review itself”. As such, Bromwich J held that the IAA did not fall into error in failing to state its reasons in respect of the discretion in s 473DD (at [25] and [29]). It was not submitted that the decision in CVS16, which is directly on point, was wrongly decided and should be overruled. That notwithstanding it is important to stress that “there may well be circumstances where the lack of any information in the reasons as to the exercise of the discretion supports an inference that the exercise was not considered”, as the Full Court in BVD17 also observed at [50]. An example of such a case is the decision of Mortimer J in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [56]-[58].

51    Thirdly, it is true that the news reports could not of their nature meet the criterion in s 473DD(b)(ii) because the information was not “personal” to the appellants. Thus, it was not in dispute that the information contained in the news reports concerned people and events unrelated to the appellants and was in the nature of country information (and indeed was so described in the Tern submission itself). However, the appellants sought to rely upon the news reports on the basis that the information contained in them fell within s 473DD(b)(i) of the Act and it was not in issue in the FCC that the news reports satisfied the description in that subsection: FCC reasons at [17]. In this regard, we note that several of the reports, which appeared in foreign publications, were dated 27 February 2017 which was the same date as the delegate’s decision and therefore could not have been provided to the Minister before the delegate’s decision.

52    Fourthly and turning to the question of whether the information was nonetheless correctly held to be of marginal relevance only, the Tern submission to the IAA explained that “… earlier this year there was a widely reported incident of prisoners being killed by gunmen as part of a drug-related issue.” The submissions then set out hyperlinks to six news articles from a variety of sources on the incident, namely, publications in the United Kingdom including The Telegraph, the BBC and the Daily Mail, and another publication, Hiru News, and continued:

This incident demonstrates that drug gangs in Sri Lanka are able to target prisoners and thus corroborates [the husband’s] fear that he will be killed once he is detained in Sri Lanka. This additional country information therefore provides additional support for the objective basis of these claims in the following key elements of the claims are readily established:

•    The highly organised activities of drug smugglers using fishing boats in Sri Lanka is well-known

•    Whilst the Sri Lankan Navy and other government bodies are attempting to tackle the drug problem, the police force is endemically corrupt

•    There are continued high-levels of bribery and corruption complaints against police personnel

•    suspicious deaths in custody are prevalent

•    Drug gangs are involved in highly organised targeted killings of those in police custody.

53    The news reports in turn include reference to the trafficking of heroin into Sri Lanka “steadily increasing”, with the main trafficking routes being by sea and the heroin being smuggled into the island in sea containers and fishing boats. They refer in particular to an attack on a prison bus transferring suspects to court, as a result of which five suspects were killed including an alleged underworld gang leader described in one article as a “drug lord”. One of the reports dated 27 February 2017 stated that the police had declined to provide police protection for the transfer but that “the assailants had worn clothing similar to police uniforms”. Another article bearing the same date stated that the shooting was described by police as “a result of enmity between two underworld gangs”. The article also stated that gang-related activity was rising, and referred to illegal drugs as one of three ways in which most gangs made their money. Another article also dated 27 February 2017 referred to the fact of a number of shootings targeting prison buses.

54    It follows that while the information was not directly about the appellants, it potentially provided independent and objective corroboration of important aspects of their claims to fear harm which were otherwise regarded as speculative by the IAA, including: as to the reach of the drug smugglers and the lengths to which they may go for revenge; and as to the risk of harm posed to the husband if he were detained in prison even for a short time, which the IAA accepted may occur (see above at [18]). It follows, with respect, that we do not agree with the primary judge that the news reports were of “marginal relevance” only, being the reason given by his Honour as to why he did not infer that the IAA had failed to consider the information.

55    That being so, in our view the IAA’s failure to make any reference to the news reports in its reasons, coupled with its detailed consideration of the other new information on which the appellants sought to rely, entitles an inference to be drawn that it did not consider the news reports either in the exercise of its functions under s 473DD or in arriving at its substantive decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ). In other words, these considerations provide a proper basis for inferring on the balance of probabilities that the IAA “… failed in the discharge of [its] exact function according to law”, being to form a state of satisfaction under s 473DD in respect of whether it should have considered the information in the news reports and, if satisfied that they should be considered in the review, to consider them: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J).

56    In the event that the Court so found, subject to the questions raised by the amended notice of contention which we consider below, the Minister accepted that the IAA was required to consider the information for the purposes of considering whether it fell within the statutory exception in s 473DD to the “primary rule” excluding new information.

57    Finally, it should be borne in mind that absent satisfaction of the criteria in s 473DD, the review of a fast track reviewable decision under Part 7AA is limited to the material before the Minister at the time that she or he made the initial decision. As such, a decision on whether to consider new information is a decision about the very scope and nature of the review decision. By contrast, Part 7-reviewable decisions are subject to full merits review by the Tribunal including a hearing with the Tribunal, which must make the correct or preferable decision at the time that it makes its decision on the material before it, including evidence of relevant, supervening events: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [47]-[51] (Kirby J), [98]-[101] (Hayne and Heydon JJ) and [140]-[142] (Kiefel J (with whose reasons on this issue Crennan J agreed at [117])). Absent any mention therefore by the IAA of an applicant’s request for new information to be taken into account, an applicant would be left entirely in the dark as to whether even the very limited statutory rules of procedural fairness applicable to the fast track review were complied with by the IAA.

4.1.3    Was the failure to consider whether the news reports met the criteria in s 473DD material to the IAA’s decision?

58    It will be recalled that the Minister’s amended notice of contention raises two issues, namely, whether the error in failing to consider the news articles was material or alternatively, whether relief should be refused in the exercise of discretion.

59    It follows for the reasons given at [52]-[54] above that it cannot be said that the IAA’s error in failing to consider whether the news reports satisfied the criteria in s 473DD could have had no impact upon the IAA’s decision. In this regard, as earlier explained, the IAA accepted many major “planks” of the appellants’ claims. However, while it accepted that their subjective fears were genuinely held, the IAA did not accept that their fears that they continued to be of interest to, and therefore at risk of harm from, the drug smugglers were well founded. Rather, it considered those claims to be speculative, despite among other things the so-called coincidence in the timing of the violent and threatening visit by the armed men to the appellants’ home and the interception of the fishing boat used in the smuggling activities. The finding by the IAA as to the speculative nature of the claims in turn was based upon a lack of evidence which might have lent objective weight to the appellants’ continuing fears, rather than upon positive evidence suggesting that they were not at risk of harm. In that context, the new information may, if considered, have had an impact upon the IAA’s ultimate decision, assuming that the IAA decided that the criteria in s 473DD(a) and (b) were met.

60    Contrary therefore to the Minister’s submissions in support of the notice of contention, this is not a case analogous to Shrestha v Minister for Immigration and Border Protection [2018] HCA 35; (2018) 92 ALJR 798 (Shrestha). In that case, the legal error had no effect on fulfilment of the precondition to the exercise of statutory discretion. As such, applying the reasoning in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 92 ALJR 780, the postulated legal error was denied the character of a jurisdictional error (Shrestha at [10] (Kiefel CJ, Gageler and Keane JJ)). Here, the IAA’s error in failing to form a state of satisfaction on whether to consider the news reports was material in the sense that it operated to deprive the appellants of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [3] (Bell, Gageler and Keane JJ).

61    Equally and for the same reasons, the grant of relief should not be refused in the exercise of discretion. It cannot be said, contrary to the Minister’s submissions, that there would be no utility in remitting the matter to the IAA for redetermination according to law.

4.2    Alleged error in relation to the IAA’s consideration of the Sri Lankan Court report (ground 4)

62    While it is strictly unnecessary to address ground 4 given that the appeal must be allowed in any event, we consider that no error was established with respect to the IAA’s treatment of the Sri Lankan Court report as alleged by ground 4. As the primary judge held, it was open to the IAA to find that the report did not contain “credible personal information” so as to satisfy the criterion in s 473DD(b)(ii) given the inconsistencies between the report and the appellants’ accounts as to the date and places of departure of the fishing boat. The arguments by the appellants that that finding was irrational because the inconsistencies might equally have supported its veracity and could be explained by the nature of the report being based upon information from unknown sources, go no higher than to demonstrate that reasonable minds might have come to a different conclusion. To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148] (Robertson J); CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496 at [60] (the Court)).

5.    CONCLUSION

63    For these reasons, the appeal should be allowed and the notice of contention dismissed with costs.

Associate:

Dated:    14 March 2019

SCHEDULE OF PARTIES