FEDERAL COURT OF AUSTRALIA

EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders made by the Federal Circuit Court of Australia on 1 May 2018 be set aside and in lieu thereof order that:

(a)    a writ of certiorari be issued quashing the decision of the second respondent dated 10 October 2017;

(b)    the matter be remitted to the second respondent for determination according to law; and

(c)    the first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

THE COURT:

1    This is an appeal from a decision of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for review of a decision of the second respondent (Authority) made on 10 October 2017. The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise visa (SHEV).

background

2    The appellant, a citizen of Sri Lanka from the Eastern province and a Tamil of Hindu faith, arrived in Australia on 21 October 2012.

3    On 29 February 2016 the appellant applied for the SHEV on the basis of his claim to fear harm because of his ethnicity as a Tamil and his political opinions.

4    The Authority’s decision records the appellant’s claims to include that:

(1)    in or around March 2009 the appellant had been questioned by the Sri Lankan Army (SLA) due to their suspicion that he was assisting the Liberation Tigers of Tamil Eelam (LTTE) by fixing their vehicles as he was a mechanic. The SLA hit the appellant with rifle butts and, since that time, he has had difficulty standing straight;

(2)    the appellant went to hospital after that incident and, upon his release, the SLA asked him to report to their camp again. His father went in his place and was questioned about what the appellant had told the hospital about his injuries. His father told the SLA that he did not know. His father was told to return with the appellant. The appellant hid but was subsequently told by his aunt that his father had been taken by the SLA;

(3)    the appellant then went to the SLA camp with his aunt. His father was released but the appellant was detained until the following day, during which time he was tortured. He said that chilli was placed in a cut in his knee and his big toe nail was ripped out. The SLA told him not to tell anyone about his torture, took him across the street and left him near a school;

(4)    on another occasion the appellant repaired a vehicle for the SLA in the evening which stopped working the following day. The SLA took the appellant from his workplace to where the vehicle was stuck and beat him; and

(5)    he was beaten three times between 2009 and 2012 by Cheddipalayam forces because he did not assist them to repair their trucks.

5    On 15 December 2016 a delegate of the Minister refused the application for the SHEV. Attachment A to the decision record was titled “Material before the decision maker” and relevantly included “Departmental file CLF2015/79684 relating to the applicant” but provided no further description of the content of that file.

6    On 21 December 2016 the delegate’s decision to refuse to grant the appellant the SHEV was referred to the Authority. On 10 October 2017 the Authority affirmed the decision of the delegate not to grant the appellant the SHEV.

The authority’s decision

7    The Authority set out the appellant’s claims of beatings and torture by the SLA and Cheddipalayam forces at [9] and [10] of its reasons.

8    The Authority identified a number of discrepancies in the appellant’s evidence including in relation to the incidents of claimed beating and torture. At [16] of its reasons the Authority concluded that, in light of what it described as “the not insignificant changes and inconsistencies” in the appellant’s evidence about the incidents he was involved in from 2009, and notwithstanding that a supporting letter from a member of parliament provided a level of corroboration for his claim that unknown men were searching for him, “based on the totality of [the appellant’s] evidence”, it was satisfied that the appellant had “exaggerated, embellished and fabricated his evidence on (sic) those incidents in order to boost his claims for protection”. The Authority continued:

… I reject his claims that he was detained, questioned and beaten by the SLA in March 2009; that they subsequently detained his father; and that he turned himself in to secure his father’s release and was then tortured by the SLA. I am prepared to accept that while he was working as a mechanic in Kalmunai from 2002 to 2005 the SLA on some occasions attended the garage where he worked, beat him and others and asked them to work on SLA vehicles, and on one occasion they picked him up from that work in a jeep and took him to a broken down vehicle that he had previously worked on and beat him. I reject his claim that on three occasions between 2009 and 2012 he was beaten by the Cheddipalayam forces because he refused to work on their trucks.

9    The Authority then considered whether the appellant was a refugee for the purposes of s 5H(1) of the Migration Act 1958 (Cth) (Act) and, in turn, whether he had a well-founded fear of persecution as defined in s 5J of the Act by reason of being a Tamil male from the east, his LTTE links and imputed political opinion; his support for the Tamil National Alliance; or as a failed asylum seeker. In each case, the Authority found that he did not and thus concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) and the requirements of s 36(2)(a) of the Act.

10    The Authority also considered whether the appellant met the requirements for complementary protection under s 36(2)(aa) of the Act and found that he did not.

federal Circuit court proceeding

11    In his application before the Federal Circuit Court the appellant relied on one ground of review by which he asserted that the Authority’s decision was affected by jurisdictional error because of its failure to make a dispositive finding in relation to a substantial, clearly articulated claim. That ground of review was rejected by the primary judge who was not satisfied that the Authority fell into error as contended. No issue is taken with that finding on this appeal.

12    Rather, this appeal concerns findings made by the primary judge in relation to a bundle of documents (Medical Documents) (described at [13] below) which the appellant produced at the hearing in the court below. The Medical Documents were not included in the court book before the Federal Circuit Court but were marked as Exhibit B. At [24]-[25] the primary judge said:

24.    … Notwithstanding that the [appellant] did not put that material on in an affidavit, the Court is prepared to accept the [appellant’s] evidence that a copy of this material was provided to the delegate. The material on its face cannot be said to be credible, relevant and significant information for the [appellant’s] claims.

25.    There was in this case no reason for the Authority to make express reference to the medical records as to treatment in 2014and (sic) it is apparent that the Authority took into account the [appellant’s] pain in relation to the alleged incident in 2009 where the [appellant] alleged he was physically injured, including the injury to his knee and toe. The documents marked Exhibit B do not identify any relevant information that required any express finding by the Authority, nor are the documents capably said to be credible, relevant and significant insofar as they were documents not provided to the Authority by the Secretary under s 473CB of the Act. No jurisdictional error arises by reason of the [appellant’s] reference to the documents in Exhibit B that were not included in the court book. The Authority did take into account the relatives who had been killed but found that claim did not meet the criteria for the grant of the visa. The Authority’s reasons in support of those findings were rational and logical. The adverse findings were open to the Authority for the reasons it gave and were not unreasonable.

Medical documents

13    Before proceeding further, and because they are central to the determination of the appeal, it is useful to describe the Medical Documents. They include the following:

(1)    a referral dated 3 February 2014 from the appellant’s general practitioner referring the appellant to a physiotherapist;

(2)    the results from a PRP Diagnostic Imaging report requested on 30 July 2014 for an ultrasound of the appellant’s right lower limb which, among other things, stated:

No abnormality was detected on ultrasound. The nerves had a normal appearance. They were normal in size and structure, and there was no evidence of any focal nerve lesion.

(3)    a Westmead Hospital Radiology/Nuclear Medicine & Ultrasound medical imaging department form dated 13 August 2014 requesting an MRI of the “lumbar-sacral/spine” for the appellant;

(4)    an e-discharge form dated 13 August 2014 which recorded that the appellant presented to Westmead Hospital with right foot drop and included:

HPI:

Was seen at WM ED on 28/7/14 for same.

Was referred to outpaient (sic) doppler and Nerve conduction studies with f/u in RANC clinic.

Never contacted back by RANC clinic.

Saw LMO who referred him back to ED.

Right foot drop started 2 months ago

Initially began with paraesthesias in right dorsum of foot.

Now has weakness in right foot – unable to balance while walking, stumbling. …

Sensation:

Reduced sensation in L5 region to light touch and pinpoint

Proprioception:

Decreased joint sensation in great toe of right foot

Progress:

Patient was reviewed by Nuerologist (sic) … and Neurology Registrar …

sensation - loss of sensation to light touch and pinprick along L5 region of right leg (lateral calf and dorsum of foot). Normal sensation on lateral right foot which helps him to balance while walking

Walking - off balance, foot drop

Spine:

Mild pain in mid lumbar region on deep palpation

No restriction to ROM

Imp:

Unclear aetiology of current symptoms

(5)    a progress note dated 13 August 2014 addressed to the “Physiotherapist of WM ED” which included:

Thank you for your ongoing care of [the appellant] … who presented for right foot drop but requires an AFO. He was discharged late on 13/8/14 and we could not organise this for him any other way. Could you kindly provide this patient with an Ankle-foot orthosis for his foot drop as requested by [neurologist].

(6)    an e-discharge form dated 14 August 2014 for assessment by a physiotherapist which included under the heading “Reason for Referral”:

Paged to see this 32 year old male for application of a right foot AFO for rerported (sic) foot drop

Patient presented to ED yesterday where he was reviewed by a neuologist (sic) … who ordered an AFO and advised pt to return to ED today for application of AFO

Patient was diagnoised (sic) with

“unclear aetiology of current systems”

Advised to represent to ED to see PT for AFO

Patient was fitted for AFO for the right foot drop

…

(7)    a receipt from Western Sydney Local Health District dated 14 August 2014 for the fee paid for a right foot “AFO – large”;

(8)    letters dated 18 August 2014 and 16 December 2014 from Western Sydney Local Health District informing the appellant of appointments in the Neurophysiology EMG Clinic on 10 November 2014 and 18 March 2015 respectively for EMG/Nerve Conduction studies which the letters noted would help to examine nerve and muscle function;

(9)    appointment notifications from Westmead NeuroMuscular Clinic informing the appellant of appointments at the clinic on 5 December 2014 and 20 March 2015 respectively; and

(10)    a letter dated 12 January 2015 from Western Sydney Local Health District to the appellant informing the appellant of an appointment at the Neurophysiology Evoked Potentials Clinic on 2 March 2015 for “upper limb somatosensory evoked potentials” and “lower limb somatosensory evoked potentials” tests.

14    For the purposes of the appeal the Minister does not challenge the finding made by the primary judge that the appellant provided the Medical Documents to the delegate nor his Honour’s finding, made relying on the content of the court book and in the absence of direct evidence, that the Medical Documents had not been provided by the Secretary of the Department of Immigration and Border Protection (Secretary) to the Authority.

15    The Minister therefore concedes on the appeal that the Secretary failed to comply with s 473CB(1)(b) of the Act (see [21] below) by failing to give the Authority documents that were provided by the appellant to the delegate before the delegate’s decision was made, namely the Medical Documents.

notice of appeal

16    The appellant’s amended notice of appeal raises three grounds of appeal. However, in light of the Minister’s concession set out in the preceding paragraph the appellant only presses ground three.

17    By that ground, the appellant alleges that:

3.    The Federal Circuit Court erred in failing to find that, in making the IAA Decision, the Second Respondent fell into error by constructively failing to exercise jurisdiction under s 473CC of the Migration Act 1958 (Cth) by failing to conduct a "review".

Particulars

   c.    The Appellant repeats the particulars of Grounds 1 and 2.

d.    The Medical Documents were material to the outcome of the Authority's review.

e.    The Authority's review was "disabled" by reason of the Authority having been prevented from performing its obligation under s 473CC of the Act.

legislative framework

18    Part 7AA of the Act provides a limited form of review of certain decisions, called “fast track decisions”, to refuse protection visas to some applicants. This includes 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 centre, known as “fast track review applicants”: s 473BA of the Act. There was no dispute that the appellant is a fast track review applicant and that the delegate’s decision to refuse to grant him the SHEV is a fast track reviewable decision.

19    In reviewing fast track reviewable decisions, the Authority is “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)”: s 473BA of the Act.

20    Division 2 of Pt 7AA provides the mechanism by which fast track reviewable decisions are to be referred to the Authority. Section 473CA requires the Minister to refer such a decision to the Authority as soon as reasonably practicable after the decision is made.

21    Central to the issues raised in this appeal is s 473CB which sets out the material which is to be provided to the Authority at the time a fast track reviewable decision is referred to it. It provides:

473CB Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

  (a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

    (ii)    refers to the evidence on which those findings were based; and

    (iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any 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 Authority) to be relevant to the review;

  (d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

22    Section 473CC then provides that the Authority must review a fast track reviewable decision and sets out what it may do on such a review namely, affirm the decision or “remit [it] for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation”: subs (2)(a) and (b) respectively.

23    Regulation 4.43 of the Migration Regulations 1994 (Cth) (Regulations) prescribes the directions that the Authority is permitted to make for the purpose of s 473CC(2)(b). It does so by setting out what is and what is not a permissible direction and provides:

(2)    It is a permissible direction that:

(a)    the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or

(b)    the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or

(c)    subsection 36(3) of the Act does not apply to the referred applicant; or

(d)    the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.

(3)    However, it is not a permissible direction that:

(a)    subsection 5H(1) of the Act applies to the referred applicant; or

(b)    subsection 5H(1) does not apply to the referred applicant because of subsection 5H(2); or

(c)    the referred applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act; or

(d)    the referred applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:

(i)    the referred applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or

(ii)    the referred applicant committed a serious non‑political crime before entering Australia; or

(iii)    the referred applicant has been guilty of acts contrary to the purposes and principles of the United Nations; or

(e)    the referred applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i)    the referred applicant is a danger to Australia’s security; or

(ii)    the referred applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

(4)    It is a permissible direction that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Act.

24    The Regulations do not prescribe any permissible “recommendations” for the purpose of s 473CC(2)(b) of the Act.

25    Division 3 of Pt 7AA of the Act concerns the conduct of the review. It, together with s 473GA and s 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority: s 473DA of the Act. The review is to be undertaken on the papers. That is, by considering the review material provided to the Authority pursuant to s 473CB without accepting or requesting new information and without interviewing the applicant: s 473DB(1) of the Act.

26    In limited circumstances the Authority may obtain and consider documents or information, called “new information”, that was not before the Minister when making his decision under s 65 of the Act and that it considers may be relevant: s 473DC and s 473DD of the Act. By s 473DC(3)(b), the Authority may invite a person to give new information at an interview. The Authority must follow the procedures set out in s 473DE and s 473DF of the Act in respect of new information or any invitation to give new information or comments.

consideration

27    Two issues arise for consideration in this appeal: first, the effect of a failure by the Secretary to comply with s 473CB(1)(b) of the Act on the Authority’s jurisdiction to conduct a fast track review and make a decision under s 473CC of the Act; and secondly, whether, in the circumstances of this case, the Secretary’s failure to comply with s 473CB(1)(b) resulted in jurisdictional error on the part of the Authority in making its decision.

28    There was no dispute between the parties that a failure by the Secretary to comply with s 473CB(1)(b) of the Act could deprive the Authority of jurisdiction to conduct a fast track review in accordance with the provision of Pt 7AA of the Act. However, the parties diverged on whether, in the circumstances of this case, the Secretary’s breach resulted in the Authority being prevented from conducting the review contemplated by the Act.

29    In order to resolve that divergence of views it is necessary to first consider the broader question of principle identified at [27] above.

30    A failure by the Secretary to provide documents to the Administrative Appeals Tribunal (as opposed to, as in this case, the Authority) in accordance with the Act has been considered in the context of s 418(3) which applies to “Part 7-reviewable decisions”. Section 418(3) of the Act, which is in analogous terms to s 473CB(1)(c), requires the Secretary, as soon as practicable after being notified of an application for review, to provide to the Tribunal those documents which are in the Secretary’s possession or control and which he or she considers to be relevant to the review. It has been held that a failure to comply with s 418(3) will not, of itself, constitute jurisdictional error. That is because the Tribunal’s obligation to conduct the review under Pt 7 of the Act arises on the making of a valid application by an applicant and not on the receipt of material provided under s 418(3) of the Act: WAGP v Minister for Immigration [2006] FCAFC 103; 151 FCR 413 at [63]. Further, compliance by the Secretary with s 418(3) of the Act is not a precondition to the exercise of the Tribunal’s review function and no obligation is imposed on the Tribunal to consider the documents described in s 418(3) of the Act as part of the review process: Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 at [32].

31    Despite the similarity in the terms of s 418(3) and s 473CB(1)(c), given the critical differences in the schemes of Pt 7 and Pt 7AA as they apply respectively to the review of Part 7-reviewable decisions and fast track reviewable decisions, the authorities which consider the effect of a breach of s 418(3) of the Act cannot readily be applied to s 473CB(1). As Thawley J observed in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [42(3)]:

p… A Part 7 review is triggered by the making of a valid application by the applicant, not by the receipt of material under s 418(3). The review body is not prevented from receiving new material. By contrast, under Part 7AA, the review is automatic: the Secretary “must refer a fast track reviewable decision” to the Authority: s 473CA. Subject to the terms of Part 7AA, the Authority must (s 473CC(1)) conduct its review “by considering the review material” and “without accepting or requesting new information” or “interviewing the referred applicant”: s 473DB(1). Part 7AA does not contemplate the Authority affording procedural fairness in a manner equivalent to Part 7. The s 473CB(1) “review material” is, accordingly, a critical part of the process and errors under that provision are not as likely to be corrected or rendered immaterial by reason of an opportunity to be heard being provided in the review, as may occur under Part 7.

32    The language of s 473CB(1) is mandatory. The Secretary must give the Authority the material set out therein including the material provided by the applicant to the delegate before the delegate’s decision was made: subs (1)(b). That obligation is to be considered in light of the objective purpose of Pt 7AA and the prescriptive way in which the Authority is required to carry out its review.

33    The intent of Pt 7AA is to provide an efficient, but fair, process of review in accordance with the terms of the Act: see [18]-[19] above. The Authority is expressly required to pursue that objective by providing a “mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3”: s 473BA. Division 3 sets out the way in which the Authority is to conduct the review. It expressly confines the material to which the Authority may have regard in undertaking its review to the material provided by the Secretary under s 473CB and, except in the limited circumstances set out in Subdiv C of Div 3, without accepting or requesting new information or interviewing the applicant. Further, in undertaking its review, the Authority is not concerned with the correction of error on the part of the Minister or delegate but undertakes a de novo consideration of the merits of the decision referred to it. It is required to consider the application afresh and determine for itself whether the criteria for a protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [17].

34    That there be a fair review, free of bias in which the Authority considers the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA of the Act, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance by the Secretary with his or her obligations under s 473CB(1), and in particular, s 473CB(1)(b) of the Act, such that the Authority has all of the material before it that was provided by the applicant to the delegate.

35    What then is the consequence of a failure to comply with s 473CB(1)? A failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the Authority from conducting the “review” contemplated by Pt 7AA such that jurisdictional error on the part of the Authority is established. But the parties were agreed, and we accept, that not every breach of s 473CB(1) of the Act will result in jurisdictional error. Rather, whether that is so will depend upon the gravity of the breach.

36    In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780, the High Court (Kiefel CJ, Gageler and Keane JJ) observed at [24] that jurisdictional error, in its most generic sense, refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made lacking characteristics necessary for it to be given effect by the statute pursuant to which it was purportedly made. At [25] their Honours said:

[25]    To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately "a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised".

(footnotes omitted)

37    Their Honours observed that identification of the extent of non-compliance with the preconditions or conditions of an exercise of decision making power which will result in an otherwise compliant decision lacking the necessary characteristics to be given effect by the statute depends on the construction of the statute: Hossain at [27]. They emphasised the need to assess materiality when considering a failure by a decision-maker to comply with a statutory condition or obligation and said at [30]-[31]:

[30]    Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.

[31]    Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.

(footnotes omitted)

38    The Minister submitted that the approach that should be adopted in interpreting the effect of a breach of s 473CB(1) is as set out in AKK17 v Minister for Immigration and Border Protection [2017] FCCA 2486; 327 FLR 343 where Judge Driver said at [60]:

[60]    I accept that the Authority is not required to consider every document provided to it as a pre-condition to exercising its decision making powers. Section 473DB(1) requires the Authority to review a decision referred to it under s 473CA “by considering the review material provided to it under s 473CB”. If a document is omitted by the Secretary which is inconsequential, the Authority will not be disabled from performing its statutory duty. If, however, the document is significant and material to the outcome of the review, its omission may well disable the review function.

39    The Minister said that the question that then needs to be addressed is, having regard to the circumstances of the case and the nature of the documents, was the information that the Secretary failed to provide to the Authority significant and material to the outcome such that the Authority was disabled from conducting the review in the absence of those documents. The Minister relied on Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[112] where, in considering whether a failure by the Tribunal to consider corroborative evidence constituted jurisdictional error, Robertson J held that:

[111]    In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

[112]    As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.

40    The Minister contended that the assessment of the materiality of a particular breach of s 473CB(1) by the Secretary should be undertaken by considering whether the absence of the documents would have affected the outcome of the review having regard to the Authority’s reasons and the way in which it undertook its fact finding assessment of the applicant’s claims. That is, there will be jurisdictional error if the material which the Secretary failed to provide in contravention of s 473CB(1) would have impacted on the outcome of the review.

41    The reduction of the assessment of the character of the documents to any overly precise textual formula is fraught with the risk of literalism and over-refinement. The conduct of the review is intended to be, to a degree, restricted, but fair. Natural justice requirements are circumscribed by the terms of Div 3 of Pt 7AA. One aspect of the context of this is the mandatory provision to the Authority of the material (implicitly, all the material) provided by the applicant to the decision-maker: s 473CB(1)(b). An aspect of fairness is the appearance of fairness. Thus, it is an important consideration, in assessing the gravity of the error or defect in the review caused by the Secretary’s failure to give to the Authority certain documents, that the applicant apparently considered them to be relevant. He wanted these documents considered. In that context, the assessment of the gravity of the failure should be by reference to assumptions of fairness, and the natural justice hearing rule that are taken to be exhaustively stated by Div 3, on the assumption of compliance with s 473CB.

42    Having regard to those considerations, the requirements of s 473CB(1) of the Act by which the Secretary must provide the material referred to therein and the nature of the review prescribed by Pt 7AA, the test for which the Minister contends is inapt. It imposes too high a bar. Given the statutory purpose of a fair hearing, a lower threshold of materiality is called for. That is, one that considers whether the documents that were not provided by the Secretary could have resulted in the making of a different decision: see Hossain at [31]. In other words, there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Pt 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review. Whether that is so should be considered by reference to an applicant's claims and the Authority's reasons.

43    The Authority’s powers upon review are not at large but are limited in the way set out in s 473CC, see [22]-[23] above; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [12]-[13]. But, in our opinion, that does not affect the approach to the assessment of materiality of a breach of s 473CB(1) for the purpose of determining whether the decision made by the Authority is vitiated although it may have an impact on the application of the test to particular facts.

44    It is then necessary to consider whether the Secretary’s breach of s 473CB(1)(b) of the Act in this case, by failing to provide the Medical Documents to the Authority, prevented the Authority from conducting the review contemplated by Pt 7AA of the Act.

45    The Minister submitted that the Medical Documents were not “significant and material” to the appellant’s claims such that, despite the Secretary’s failure to comply with s 473CB(1)(b) of the Act, no jurisdictional error arose.

46    The Minister accepted that the Medical Documents were capable of establishing that the appellant suffered from, and received medical treatment for, a disability potentially consistent with nerve damage culminating in the condition of foot drop and causing problems with his ability to balance while walking. However, the Minister submitted that, notwithstanding that, the Medical Documents neither would nor could have satisfied the Authority that, in the period from 2009 to 2012, he suffered beatings and torture from the SLA. The Minister contended that, while the Medical Documents might not be inconsistent with the appellant’s claims, that does not mean they were material to the claims in the sense that, on their face, or considered with the rest of the information that was before the Authority, they could not have impacted on the Authority’s findings.

47    The Minister observed that, having regard to the appellant’s disability as gleaned from the Medical Documents, the only claim raised that may have been supported by those documents was the appellant’s claim to have been hit with rifle butts by the SLA in 2009. The Minister contended that, even if the disability referred to in the Medical Documents is consistent with such an injury, it could not have impacted in a material way on the Authority’s assessment of whether the disability he suffers from was caused by an injury sustained in 2009. That is, the Minister said that, even if the Authority might have been satisfied, with the benefit of the Medical Documents, that the appellant had suffered a serious injury several years earlier, those documents could not have impacted in a material way on the Authority’s assessment of whether the injury was suffered at the hands of the SLA in the manner described by the appellant and were not probative of the truth of his claim.

48    The Minster made two further points. First, he said that to the extent that the appellant’s claims that he was beaten at other times by the SLA might have been supported or corroborated by the Medical Documents, the Authority accepted that the appellant had been beaten at times at [16] of its reasons. Secondly, he observed that it was not clear how the appellant’s claim to have been tortured with chilli being placed in a cut in his knee and his big toe being ripped out could possibly have been supported or corroborated by the Medical Documents.

49    For the following reasons we have come to a different conclusion to that urged on the Court by the Minister about the effect of the Medical Documents.

50    First, the Medical Documents establish that the appellant presented with an issue to his back and right foot. They also describe his symptoms as including loss of sensation in part of his right leg, walking off balance, foot drop and mild pain in the lumbar region on deep palpation. The appellant was referred for further tests.

51    Secondly, as the Minister submitted, the appellant’s claim to have been hit with rifle butts in March 2009 may have been supported and corroborated by the Medical Documents. That claim was rejected by the Authority at [16] of its reasons. The Minister said that the Authority rejected that claim because, as it explained at [15] of its reasons, the appellant “made no mention of these significant incidents in his arrival interview or SHEV application”. However, given their content and notwithstanding the reason given by the Authority at [15] of its decision record for rejecting that claim, the Medical Documents could have made a difference to the Authority’s consideration of that claim. Those documents could have, when considered with the balance of the material before the Authority, led it to a different conclusion. It was for the Authority to consider the appellant’s claims based on its evaluation of the evidence before it, without hearing from the appellant. Critically, contrary to the Authority’s belief and its statement at [16] of its reasons, it did not have “the totality of [the appellant’s] evidence” before it when it reached its conclusion. The Authority may have wanted to invoke s 473DC(3) and ask for some explanation of the documents. Whilst the documents themselves may not be new information (having been before the decision-maker), an explanation of them, in particular placing them in proper context, would be new information.

52    Thirdly, contrary to the Minister’s submissions, whether the Medical Documents may be corroborative of the appellant’s claims (other than his claim to have been hit with rifle butts in March 2009) is an open question which once again requires an evaluative judgment on the part of the Authority based on the evidence before it. That being so, the Medical Documents could have affected the way in which the Authority might view the appellant’s other claims.

53    Fourthly, we accept that the Medical Documents taken at their highest could only establish that the appellant suffered an injury in the past and not that the injury was suffered at the hands of the SLA. But acceptance of the former may result in the Authority taking a different view of the cause of the injury and, indeed, accepting the appellant’s version of events.

54    The Medical Documents could have affected the outcome of the Authority’s review given their content, the claims made by the appellant and the reasons given by the Authority for rejecting those claims. That is, they could have led to the Authority drawing different conclusions in relation to some of the appellant’s claims which may, in turn, have affected the ultimate conclusion reached by the Authority. Here, there was no independent basis on which the Authority’s decision might otherwise have been upheld such that the breach of s 473CB(1)(b) could have made no difference to the outcome, namely the Authority’s decision to affirm the delegate’s decision: cf Hossain at [35].

55    Although the issue was not raised in the same manner before the primary judge, his Honour came to a different view about the effect of the Medical Documents assuming that, in contravention of s 473CB(1), they were not provided by the Secretary to the delegate: see [12] above. To the extent his Honour did so, dismissing the effect of those documents on the basis that they were not “credible, relevant and significant”, his Honour, with respect, erred.

56    Given the conclusion we have reached it follows that the Authority was prevented from conducting its review under Pt 7AA of the Act such that jurisdictional error is established.

57    For completeness, we acknowledge the supplementary submissions provided by the parties at the Court’s request after the conclusion of the hearing. Among other things, those submissions addressed the relevance of the potential use by the Authority of some or all of the provisions of Subdiv C of Div 3 of Pt 7AA of the Act, which relevantly concerns “new information”. As the appellant submitted, the Medical Documents were not “new information” as defined in s 473DC(1) of the Act for the purposes of Subdiv C because they were before the Minister when he made his decision. Thus the Authority could not obtain or consider the Medical Documents by the processes set out in Subdiv C of Div 3 of Pt 7AA of the Act. We therefore do not propose to consider these provisions further.

conclusion

58    The appeal should be allowed with costs. The orders made by the Federal Circuit Court on 1 May 2018 should be set aside and in lieu thereof orders should be made that the Authority’s decision dated 10 October 2017 be quashed; that the matter be remitted to the Authority for determination according to law; and that the Minister pay the appellant’s costs of that proceeding.

59    We will make orders accordingly.

Associate:

Dated:    11 February 2019