FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’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 judgment of the Federal Circuit Court of Australia quashing a decision of the second respondent, the Immigration Assessment Authority (Authority), which had affirmed a decision of a delegate of the appellant, the Minister for Immigration and Border Protection (Minister), to refuse to grant the first respondent, CPA16, a Temporary Protection (subclass 785) visa (visa).

2    Section 473CA of the Migration Act 1958 (Cth) (Act) required the Minister to refer the delegate’s decision to the Authority for review as soon as reasonably practicable after the decision was made. Section 473CB(1) required the Secretary of the Department of Immigration and Border Protection (Department) to give to the Authority the “review material”, including “material provided by the referred applicant to the person making the decision before the decision was made”: s 473CB(1)(b).

3    It is common ground that the material CPA16 provided the delegate included a corroborative letter from his parish priest (Priest Letter), which for unknown reasons did not find its way onto the Departmental file. As a result the Secretary did not give the letter to the Authority as required under s 473CB(1)(b) and the Authority reached its decision to refuse the visa without having seen the letter.

4    The primary judge held that by reason of non-compliance with s 473CB(1) the Authority’s decision was affected by jurisdictional error. In the appeal the Minister contends that the primary judge erred in finding jurisdictional error in circumstances where his Honour said (at [52]) that, while “the balance of the evidence is against such a scenario [ie, the IAA making a different decision], as a likely outcome, it is impossible to predict what the IAA’s decision would have been had it had all of the evidence before it”. For the reasons we explain we are satisfied that in the circumstances of the present case the non-compliance with s 473CB(1) constitutes jurisdictional error, and it is therefore appropriate to dismiss the appeal with costs.

Background

5    CPA16 is a citizen of Sri Lanka from the Northern Province, of Tamil ethnicity and Roman Catholic faith. He arrived in Australia by boat in August 2012, and by operation of the Act he is an “unauthorised maritime arrival” and was prohibited from applying for a protection visa. In September 2015 the Minister lifted the bar under s 46A(2) of the Act and in October 2015 CPA16 applied for a visa.

6    CPA16’s claims may be summarised as follows:

(a)    in 2008 he was requested to join the LTTE but did not agree. In his submission to the Authority he claimed to be an informant for the LTTE from 2005 to 2009 which role he took on as a compromise so as not to be forcibly recruited as a fighter. He grew up in an LTTE controlled area and was heavily influenced by their ideology;

(b)    CPA16 went to Malaysia in 2008 and returned to Sri Lanka six months later;

(c)    from around January 2010 he worked for a named TV station which broadcast in his home district. He took up that work in part because of his pro-LTTE and pro-Tamil political views and wanting to promote Tamil interests;

(d)    in February 2011 he was assisting some named cameramen and staff of the TV station to cover an incident in which several Tamil villages were flooded, allegedly because the government had deliberately opened a dam. He assisted the cameramen while they were covering the incident and assisted the journalist who interviewed two Tamil National Alliance party (TNA) members of Parliament. The interview was subsequently broadcast on the TV station;

(e)    the morning after the TV station broadcast that interview the district superintendent of police, two CID officers and several plainclothes police came to the TV station office. They assaulted the program editor. CPA16, one of the cameramen and another of the staff he assisted were also at the TV station and they were taken to the police station and held overnight. He heard one of the police speak on the telephone to a person he assumed to be a named minister in the Sri Lankan government (the minister) asking what should be done with them. The following day they were transferred to a CID office where they were assaulted and severely beaten (TV Station Incident). He was released through the intervention of a wealthy friend of the owner of the TV station;

(f)    the offices of the TV station were sealed on the day they were arrested and taken to questioning, and it ceased to operate from that date;

(g)    after he and his colleagues were released it became clear that the minister was the person responsible for their arrest and detention as he feared he may lose in the (then) pending election;

(h)    his colleagues from the TV station began working at another named TV station and have all since left Sri Lanka. The applicant changed careers to work in construction. He claimed he left media work because he was fearful that his past role with the LTTE would come to light if he was subject to further investigation;

(i)    in May 2011 CPA16’s father successfully ran for the TNA as Chairman in a local election, and held that position for a number of years. The government minister caused difficulties for CPA16 and his father for contesting the election under the TNA banner. The minister was concerned that he may lose his seat at the then upcoming Parliamentary elections as many Tamils supported the TNA. The minister attempted to bribe his father before he was elected and threatened his father on several occasions after he was elected;

(j)    in July 2012 some Muslim fishermen protested outside the courthouse of CPA16’s home town regarding a fishing dispute with Tamil fishermen. As the church treasurer, he accompanied the priest, some other churchgoers and some affected Tamil fishermen to see the protest. Some media were covering the protest. He left when the protest became unruly and violent and the army had to be called to disperse the protest. Subsequently the media handed the police footage of the protest and some of the Muslim protesters were arrested;

(k)    a week later, when he was away at a church event in another village, the minister’s men came to the house he shared with his wife, searching for him. He was told the men accused him of being involved in filming the Muslim protest and handing the video clip to the police and he believes they came to his house intent on abducting or harming him (Muslim Protest Incident). This event triggered his decision to flee Sri Lanka in August 2012;

(l)    after he left Sri Lanka the minister’s supporters had looked for him several times at his wife’s home and had told his wife that he would not be spared if he returned. His wife continues to receive anonymous threatening telephone calls enquiring about his whereabouts; and

(m)    he fears that if he returns to Sri Lanka he will face harm from the government minister, the supporters of the minister and/or the police, because he will be implicated with the LTTE, because he applied for asylum in Australia and/or because he departed Sri Lanka illegally.

The delegate’s decision

7    On 28 January 2016 CPA16 was interviewed by the delegate of the Minister. The delegate’s decision records that the delegate had been provided with three documents in support of CPA16’s claim to have worked for the TV station, being:

(a)    a scanned photocopy of a work ID card for the TV station, the original of which the delegate sighted at the interview;

(b)    a copy of an undated letter from the parish priest of the Roman Catholic church in CPA16’s village, which we have described as the Priest Letter, that CPA16 provided to the delegate at the interview; and

(c)    a copy of a letter from a named Member of the Sri Lankan Parliament dated 14 January 2013 (MP Letter).

8    Curiously, the MP Letter did not refer to CPA16 and it did not concern CPA16’s visa application. Instead it related to another person (whom we will refer to as “N”) who CPA16 said was a colleague of his at the TV station. Except that it referred to N and N’s mother rather than to CPA16 and his wife, the MP letter was in identical terms to the Priest Letter. For several reasons the delegate (at [36]) discounted the reliability of each of the ID card, Priest Letter and MP Letter.

9    On 13 July 2016 the delegate refused the visa application. It is unnecessary to detail the reasons for that refusal when it has been overtaken by the Authority’s decision.

The Authority’s decision

10    On 15 July 2016 the delegate’s decision was referred to the Authority for review.

11    On 19 August 2016 the Authority decided to affirm the delegate’s decision to refuse to grant CPA16 a visa.

12    As stated in [3] above, the Secretary did not provide the Priest Letter to the Authority, and the Authority therefore made its decision without having seen the Priest Letter. The Authority did have before it the MP Letter which, as stated in [8] above, related to N rather than to CPA16.

13    The Authority set out CPA16’s claims at [13] and [14] of its reasons. At [19] to [23] the Authority identified a number of inconsistencies in CPA16’s evidence. The Authority found (at [19]) that CPA16:

…has provided inconsistent evidence regarding his role with the TV station. He has variously said that he assisted the cameramen and journalist (in his TPV statement), he was the ‘play out (for his home region)’ (the work ID card he provided), a regional media officer (the reference letter he provided from a church), he was in charge of choosing what programmes to air (during the TPV interview) and that he considers himself a journalist (in the IAA submission). I consider if the applicant genuinely was employed at the TV station, he would give a consistent account of his position. Further, his various claims show a pattern of increasing the importance of his role with the TV station and I consider his changing his evidence in this way strongly weighs against his credibility that he had any role with the TV station.

(Emphasis added.)

14    The Authority’s finding that, in a reference letter from a church, CPA16 said that he worked at the TV station as a “regional media officer” was curious. It is common ground that the Priest Letter was not before the Authority and there was no other reference letter from a church before it. The Authority can only have made that finding by reference to the delegate’s description of the Priest Letter, rather than by itself considering the evidence as part of a de novo review under Pt 7AA.

15    At [20] the Authority rejected CPA16’s claim that he was employed at the TV station. Based on that rejection the Authority said (at [23]) that it follows that other important parts of his claims must be rejected, doing so in the following terms:

… I reject that the applicant worked at the TV station. It follows that I reject the reasons in his IAA statement why he joined or left that job. It further follows that I reject he was detained or assaulted by the police due to his working for the TV station. It follows too that I reject the Minister so arranged for the detention and assault of the applicant, I reject that the applicant was questioned about the LTTE or TNA and I reject that he was released following the intervention of his employer’s friend. I consider the applicant has fabricated his claims to have worked at the TV station as a basis to create a background upon which to apply for protection and I consider his so fabricating such claims to undermine his credibility generally.

16    The decision to reject CPA16’s claim to have worked at the TV station was also significant to the Authority’s decision to reject his claims based on the Muslim Protest Incident. The Authority said that its finding that CPA16 had fabricated his claim to have worked at the TV station undermined his credibility generally and (at [25]) it rejected as implausible that the government minister would consider CPA16 responsible for providing media footage of the 2012 Muslim protest to the police.

17    The Authority then considered whether there was a real chance that if CPA16 returns to Sri Lanka he will be harmed by the minister, the minister’s men and/or the police because of his political opinion or because his father was a member of the TNA, because he will be implicated as being connected with the LTTE, because he is a failed asylum seeker from Australia, or because he departed Sri Lanka illegally. In each case the Authority found that he did not have a well-founded fear of persecution and concluded that he did not meet the criterion in 36(2)(a) of the Act or the criterion for complementary protection under s 36(2)(aa).

The Federal Circuit Court proceeding

18    Before the Federal Circuit Court CPA16 advanced five grounds of review. The primary judge found for CPA16 on Ground 2 of the application and dismissed the other grounds. Ground 2 was as follows:

The IAA’s decision is affected by jurisdictional error in that the IAA failed to review the delegate’s decision by failing to consider the review material. Had the IAA considered the review material it would have observed that critical documentary evidence had been omitted from the review material provided to the IAA by the Secretary.

19    In the hearing before the Federal Circuit Court the Minister accepted that the failure to give the Priest Letter to the Authority constituted a breach of s 473CB(1) but argued that this did not result in jurisdictional error. He contended that the Priest Letter could not have made a difference to the Authority’s decision, in part because the Authority had the delegate’s summary of the Priest Letter in any event.

20    The Minister sought to rely on the decision in CRJ16 v Minister for Immigration & Anor [2017] FCCA 727 at [31] to [35] where Vasta J said that s 473CB(1) could lead to absurdities if it were interpreted as meaning that everything had to be before the Authority. In that case his Honour concluded that, notwithstanding that a letter prepared by a psychologist which detailed that the applicant suffered from anxiety, depression and an inability to concentrate was not provided to the Authority as part of the review material, the pertinent parts of the letter had been referred to and accepted by the delegate, and in any event the letter was not “germane to the issues being considered”.

21    At [52]-[53] the primary judge rejected the Minister’s submission that the (admitted) non-compliance with s 473CB(1) did not rise to the level of jurisdictional error. His Honour said:

The difficulty confronting the Minister in this case is that whilst the summary of the letter was relied upon by the IAA for reasons that told against the applicant succeeding (see [19] of the IAA’s decision), such an argument did not deal with the possibility that a reviewer may have found the priest’s letter more compelling and accepted that the version given by the priest was the appropriate version. Whilst, given that the balance of the evidence is against such a scenario, as a likely outcome, it is impossible to predict what the IAA’s decision would have been had it had all of the evidence before it.

Ultimately, I am persuaded that this amounts to a ground for judicial review in the context of this particular case…

The Appeal to this Court

22    The Notice of Appeal raises one ground of appeal, as follows:

The primary judge erred at [52] in concluding that the breach of s 473CB(1)(b) of the Migration Act 1958 (Cth) resulted in jurisdictional error in this case on the basis that it was “impossible to predict what the IAA’s decision would have been had it had all the evidence before it”, because:

1.1    breach of s 473CB(1)(b) results in jurisdictional error by the second respondent only where the party seeking judicial review demonstrates that the missing material is material and significant;

1.2    the primary judge should have found that the missing document was:

   (a)    not material and significant;

(b)    alternatively, could not have made a difference to the second respondent’s decision.

23    CPA16 filed a notice of cross-appeal alleging that the primary judge erred by not finding in his favour on Ground 4 of the application below. The notice of cross-appeal should in fact be a notice of contention, and the parties agree to the Court dealing with it as such.

The Minister’s submissions

24    The Minister notes that the primary judge’s finding at [52] was made in circumstances where the delegate was provided with the Priest Letter and referred to it in his reasons, but it was not given to the Authority. He notes that the delegate said the following (at [36]) about the documentary evidence regarding CPA16’s employment with the TV station, including the Priest Letter and the MP Letter which the delegate described as “reference letters”:

The employment ID card for [the TV station] is of poor quality. The card contains an image that resembles the applicant and has identification details such as his name and date of birth, but it does not contain any indication of the role the applicant had at [the TV station]. I accept that small companies that operate in small towns and less developed areas in Sri Lanka may not have high quality ID cards, however, I give the [the TV station] ID card no weight in establishing his claim to have worked for [the TV station] in [town name] as a Technician. I have concerns regarding the genuineness of the two reference letters supplied by the applicant. The reference letters are from two different people yet have almost identical content. The letters state both the applicant and his colleague were Regional Media Officers at [the TV station]. This is contradictory to the applicant’s TPV application. Furthermore, the letters are photocopies and no originals were supplied by the applicant. I give the two reference letters no weight in establishing his claim to have worked for [the TV station].

25    As we have said, although the Authority did not have the Priest Letter it referred to an aspect of the letter at [19] of its reasons. The Minister contends that this was evidently because the Authority had the delegate’s description of the letter.

26    Before the primary judge the Minister submitted that the non-compliance with s 473CB(1) by the failure to give the Priest Letter to the Authority did not result in jurisdictional error, including because the letter could not have made a difference to the Authority’s decision, in part because the Authority had the delegate’s summary of the letter in any event. The primary judge rejected that submission at [52].

27    In written submissions the Minister contends that the primary judge’s finding in that regard can be understood in one of two ways:

(a)    first, there was jurisdictional error because the Court could not be satisfied how, if at all, the non-compliance with s 473CB could have affected the Authority’s decision; and

(b)    second, and alternatively, there was jurisdictional error because the Court was satisfied that non-compliance with s 473CB could have made a difference to the Authority’s decision.

The Minister argues that the first interpretation should be preferred, but either way contends that the primary judge erred in his approach.

28    On the first understanding, the Minister submits that to quash the Authority’s decision when his Honour considered it impossible to be satisfied as to whether the non-compliance with s 473CB affected the Authority’s decision, reveals a misapprehension of the following three concepts:

(a)    an applicant for judicial review bears the onus of demonstrating jurisdictional error (Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 at [24] (French CJ, Bell, Keane and Gordon JJ)), and materiality is critical to its characterisation as jurisdictional: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1; [2018] HCA 34 (Hossain) at [19], [23]-[24] (Kiefel CJ, Gageler and Keane JJ). If it is impossible to know, but the Court considers it likely that it would not have made a difference, then the applicant has demonstrated error but not jurisdictional error;

(b)    a court is not justified in interfering with the exercise of statutory power if it cannot conclude one way or the other whether an error may have affected the decision that was made. The error will only be jurisdictional if, at least to some degree, that error affected the decision-maker’s exercise of jurisdiction: see Craig v South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [82] (McHugh, Gummow and Hayne JJ); and

(c)    evaluating the materiality of an error is a step anterior to the residual discretion to refuse relief (see, e.g. Lansen v Minister for Environment and Heritage (2008) 174 FCR 14; [2008] FCAFC 189 at [125] (Moore and Lander JJ)), and the primary judge conflated that step with a later stage where relief may be refused if a party demonstrates that the error could not have made a difference.

29    On the alternative understanding, the Minister contends that if the primary judge found that the failure to give the Authority the Priest Letter could have made a difference to the Authority’s decision, the primary judge erred in so finding. In this regard the Minister submits that:

(a)    the Priest Letter cannot be described as cogent or centrally relevant: see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 (SZRKT) at [112] (Robertson J); ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at [71] (Griffiths, Perry and Bromwich JJ). It was undated, addressed “to whom it may concern”. It did not descend to details, it was expressed in a generalised fashion and it was almost identical to the MP Letter which was from someone else and about someone else;

(b)    the Priest Letter did not sit easily with CPA16’s evidence, in that:

(i)    it described CPA16 as a “regional media officer” with the TV station whereas he variously described himself as an assistant to the cameramen and journalist, or the person in charge of choosing what programmes to air, or an actual journalist; and

(ii)    the Priest Letter said that “the police surrounded [his] house…but fortunately he escaped”, whereas CPA16 claimed that the minister’s men came to his house while he was away in another village;

(c)    having regard to “the actual course of decision-making” by the Authority (SZRKT at [98]) the Priest Letter could not have made a difference, because:

(i)    the Authority said that it gave “lesser weight” to the allegedly corroborative documents CPA16 provided due to information in a Department of Foreign Affairs and Trade report regarding the prevalence of fraudulent documents in Sri Lanka. Although the Authority was not referring to the Priest Letter (because it did not have it) that remark would apply just as much to it, particularly given its similarity to the MP Letter;

(ii)    one of the critical factors in the Authority’s rejection of CPA16’s claims was inconsistent evidence he gave as to his alleged role at the TV station. In describing him as a “regional media officer” the Priest Letter contributed to the body of inconsistent evidence, it did not resolve or alleviate the inconsistency; and

(iii)    the Authority had access to and evidently relied upon the delegate’s description of the Priest Letter, which was not inaccurate; and

(d)    the primary judge said that there was “a possibility that a reviewer may have found the priest’s letter more compelling and accepted that the version given by the priest was the appropriate version” but this is far-fetched. Because the Priest Letter diverged from CPA16’s own claims the Authority would have had to reject parts of his evidence and claims if it accepted the Priest Letter. That would have had repercussions for his reliability and credibility.

30    The Minister’s written submissions were filed before the decision of the Full Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 (EVS17) (Allsop CJ, Markovic and Steward JJ) and before the decision of the majority in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (SZMTA) (Bell, Gageler and Keane JJ). In oral submissions the Minister placed reliance upon principles derived from those decisions, and there was no great difference between the parties in that regard.

31    Broadly the Minister contends that in deciding that the non-compliance with s 473CB amounted to jurisdictional error, the primary judge paid insufficient attention to the nature of the Priest Letter in the context of the claims and evidence as a whole, and the Authority’s actual course of reasoning.

The relevant principles

32    We consider the following principles to be applicable:

(1)    Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].

(2)    Where the Secretary fails to give review material to the Authority in breach of s 473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].

(3)    Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”: SZMTA at [45], [49] and [50].

(4)    In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].

(5)    The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].

(6)    Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].

33    Contrary to one aspect of the Minister’s submissions, the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.

Determination

34    It is convenient to return to the primary judge’s finding at [52] that:

…[the Minister’s] argument did not deal with the possibility that a reviewer may have found the priest’s letter more compelling and accepted that the version given by the priest was the appropriate version. Whilst, given that the balance of the evidence is against such a scenario, as a likely outcome, it is impossible to predict what the IAA’s decision would have been had it had all of the evidence before it.

(Emphasis added.)

35    The Minister’s primary submission is that the primary judge thereby found that jurisdictional error arose because it was impossible for the Court to be satisfied as to whether the failure to give the Authority the Priest Letter affected its decision. The Minister accepts, however, that it is also open to understand the primary judge as finding that he was satisfied that the failure to give the Authority the letter could have made a difference to its decision. For his part CPA16 argues that the reasons at [50]-[51] show that the primary judge understood that not all breaches of s 473CB(1) will rise to the level of jurisdictional error, and [52] shows that in the circumstances of the present case his Honour considered that the breach rose to that level. CPA16 seeks to rely on the remarks of Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 (Aala) at [4] where his Honour found jurisdictional error notwithstanding his conclusion that “no one can be sure” whether the decision-maker’s ultimate conclusion would have been the same.

36    It should be kept in mind that the primary judge’s decision was handed down before the decision of the majority in SZMTA, and his Honour was writing without the benefit of the High Court’s clarification regarding the necessary findings as to materiality. We also note that, as a matter of logic, the Minister’s preferred interpretation of his Honour’s finding at [52] is arguably not open. His Honour was assessing whether the failure to provide the Authority with the Priest Letter could have resulted in it making a different decision. Where the only change to the review material before the Authority would be the addition of the Priest Letter, the primary judge’s conclusion that the outcome is impossible to predict can only be because that letter could have resulted in the Authority making a different decision. If the letter could not have made a difference the outcome would not change and therefore would be able to be predicted.

37    But in our respectful view the primary judge’s finding is unclear and we respectfully consider his Honour erred by failing to make an express finding as to whether the Priest Letter could realistically have made a difference to the Authority’s decision. Further, the primary judge’s task was not, as his Honour indicated, to “predict” what the Authority’s decision would have been if it had been given the Priest Letter. The primary judge was required to decide whether the failure to give that letter to the Authority deprived CPA16 of the realistic possibility of a successful outcome. The stated impossibility of predicting the outcome was not central to that task. Relatedly, the primary judge made an error of the type identified in SZMTA at [68] and [69], by engaging in speculation about the likely effect of the Priest Letter on the Authority’s decision but failing to take the necessary step of deciding whether there was a realistic possibility that the outcome could have been different and explaining the basis for that decision. If the primary judge considered the letter could realistically have resulted in the Authority making a different decision, his Honour was also required to explain that conclusion.

38    Even so, while the primary judge did not go far enough in his finding at [52], we concur with his Honour’s conclusion that in the circumstances of the present case the non-compliance with s 473CB(1) constitutes jurisdictional error. For the reasons we now explain, having regard to CPA16’s claims and the evidence as a whole and in light of the Authority’s course of reasoning, we are satisfied on the balance of probabilities that provision of the Priest Letter could realistically have resulted in the Authority making a different decision. CPA16 was deprived of a realistic possibility of a successful outcome. It follows that the Minister’s appeal must be dismissed.

39    We commence by noting that, in a case such as the present, where the Authority found that CPA16’s documentary evidence relating to his employment at the TV station was not cogent and it made adverse credibility findings about CPA16’s claims, the task of deciding whether an omitted document is material is not without difficulty. As Gleeson CJ said in Aala (at [4]) “[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.” Credibility findings are often non-linear in nature: VAAD v Minister for Immigration and Multicultural Affairs [2005] FCAFC 117 at [79] (Hill, Sundberg and Stone JJ); SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 at [44]-[45] (Lee J). We respectfully agree with Kirby J’s observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; [2004] HCA 62 at [81] where his Honour said:

…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.

40    There can be no question that CPA16’s claim to have worked for a pro-Tamil TV station is central to his claim for protection. He claims that the TV station was closed down by the authorities because, with his assistance, it had broadcast a program criticising the government for deliberately flooding Tamil villages, and that the program led to his being detained by the police and assaulted at the behest of a government minister. His claim to have worked for the TV station is also significant to his claim that the minister’s men accused him of handing a video clip of the 2012 Muslim protest to the police, which led to some of the protesters being arrested and to the minister’s men coming to his house to abduct or harm him. He claims that triggered his decision to flee the country.

41    The Authority rejected CPA16’s claim to have worked at the TV station and said that “it follows” that it also rejected his claims: (a) to have taken up that job because of his pro-Tamil sympathies; (b) that he was detained or assaulted by the police as a result of his working at the TV station; and (c) to have moved away from a career in TV because he was fearful that investigations that might arise as a result would reveal his past role as an LTTE informer. The Authority found that CPA16 had fabricated the claim to have worked at the TV station in an attempt to create a background which would assist him to obtain a protection visa, which undermined his claims more generally. The Authority’s rejection of CPA16’s claim to have worked at the TV station also played into its finding that it was implausible that the minister would consider CPA16 responsible for providing a video clip of footage of the 2012 Muslim protest to the police, which the Authority in turn relied on to reject his account of the minister’s men coming to his house in search of him.

42    On its face, the Priest Letter is a copy of a letter on the letterhead of a Roman Catholic church in CPA16’s village. The letterhead includes the address of the church and its telephone number, and the letter bears the name, signature and stamp of the parish priest. It states (without correction):

To whom it may Concern

This is to certify that [CPA16] of [town name] is known to me well. I understand that he is now away from country.

He hails from my parish and a respected Roman Catholic family. He was a regional media officer for [the TV station] (a private TV channel) through which the Tamil people were bringing their day today problem and the government’s harassments to the light. But unfortunately the channel was banned by the police and they were searching for the people who were working in that field. Three months back the police surrounded the house of [CPA16] but fortunately he escaped and fled from the country for the survival of the life. But the police men are still searching for the hide out through the police intelligence.

After the above incident his wife [name redacted] with the small child is mentally affected and is living in quandary.

Under this circumstance [CPA16] contemplated that his life would be jeopardized in Sri Lanka and had to leave for abroad to protect his life.

As far as my knowledge goes it is very dangerous for the life of [CPA16] to come back to Sri Lanka.

On its face the letter is relevant and corroborative of CPA16’s claim that he worked for the TV station.

43    We do not accept the Minister’s contention that because the Priest Letter is undated, is addressed “to whom it may concern”, and is expressed in a generalised fashion, there is no realistic possibility that the Authority could have found it to be relevant or cogent. The absence of a date on a letter intended for use at an unspecified time in the future is not as significant as the Minister argues. The fact the letter is addressed “to whom it may concern” is equally unsurprising when its author is unlikely to have known to whom it was to be supplied. Nor is the letter as general as the Minister contends. It broadly corroborates CPA16’s key claim to have worked for a pro-Tamil TV station and his claim that the minister’s men came to his house with the intent of abducting or harming him. It includes specific personal information about CPA16 including the name of his wife and the fact they have a small child.

44    Nor do we accept that the inconsistencies in the review material as to the role in which CPA16 was employed at the TV station are so significant that there is no realistic prospect that the Authority could have accepted the Priest Letter as corroborative. The Authority could realistically have considered the Priest Letter to be corroborative and cogent evidence of CPA16’s principal claim to have worked at a pro-Tamil TV station, without reference to the particular role which he performed. We also note that CPA16 provided some explanation for the different roles in his statement to the Authority. He said “I identify myself as a journalist during my time with [the TV station]. I was both a technician and producer.” The different descriptions of CPA16’s role may not have been as significant to the Authority as the Minister says.

45    Similarly, while there is an inconsistency between the account in the Priest Letter – that the police came to CPA16’s house but he fortunately escaped – and CPA16’s statement that the minister’s men came to his house while he was away in another village, the essential claim is that the minister’s men came to his house with the intent of abducting or harming him. That the Priest Letter differed in this aspect from CPA16’s account does not mean that there was no realistic possibility that the Authority would have given credence to the letter. The Priest Letter did not purport to be an eyewitness account and this difference in the account of what occurred may not have been as important to the Authority as the Minister suggests. In our view the Authority could realistically have considered the letter to be corroborative and cogent evidence of CPA16’s two principal claims about working at the TV station and that the minister and/or his men came to harm him.

46    Whether the Authority could have considered the Priest Letter to be non-genuine or fraudulent is, of course, relevant to whether the letter could realistically have resulted in it making a different decision. The Minister contends that CPA16 was not deprived of the realistic possibility of a successful outcome because the Authority could not have seen the letter as genuine or cogent, it being a copy, it revealing (indeed contributing to) some inconsistencies in CPA16’s evidence, and it being almost identical in content to the MP Letter which was from someone else and about someone else.

47    We take a different view. Leaving aside the alleged inconsistencies, with which we have dealt above, the balance of the Minister’s contention is largely based on the proposition that the MP Letter and the Priest Letter are equivalent, and the Authority could not realistically find the Priest Letter to be genuine. We disagree. In our view it is unwarranted to assume that the Authority would consider the Priest Letter to be equivalent to the MP Letter.

48    On our inspection the MP Letter appears to have been created through the alteration of another document; by substituting N’s name at paragraphs one, two, four and five for whatever other name was there, and by substituting the word “mother” and N’s mother’s name at paragraph 3 for what was there previously. That seems apparent from the different typeface and font of the altered words. These observations do not apply to the Priest Letter. Thus, while it is no part of our role to decide the credibility of the evidence, and we do not do so, on its face the MP Letter does not appear to be genuine.

49    For this reason there is a prospect that the Authority would not treat the MP Letter as equivalent to the Priest Letter. The Authority could realistically consider the Priest Letter to be more reliable and cogent than the MP Letter and it could realistically lead to the Authority making a different decision.

50    Another flaw in the Minister’s argument is that notwithstanding the obvious deficiencies in the MP Letter, the Authority did not go as far as to expressly find that it was not genuine. The Authority said only that it gave the MP Letter “lesser weight”, in part because of a Department of Foreign Affairs and Trade report about the prevalence of fraudulent documents in Sri Lanka.

51    We also note for completeness that CPA16 has stated in an affidavit that he did not give the MP Letter to his migration agent or lawyer, nor did he himself lodge it with Department. Essentially, he states that he knows nothing of the provenance of the MP Letter. He provided this information in the Federal Circuit Court proceeding and should not be criticised for leaving the explanation until that time when: (a) he did not know the MP Letter had been lodged with the delegate; and (b) the delegate does not appear to have noticed that the MP Letter had the deficiencies we have noted nor to have enquired of him as to why a reference letter relating to someone else’s claim was lodged in purported support of his claim.

52    Finally, it is worth noting that in SZMTA the conclusion that the relevant document could not realistically have made any difference to the decision-maker’s evaluation of the visa applicant’s credibility concerned quite different circumstances to those in the present case. The majority said (at [71]) that the decision-maker had been provided numerous documents and general letters of support including from senior identified members of the Buddhist community in Australia, and the decision-maker had given those documents little weight. The particular letter of support which the decision-maker did not take into account was of the same nature. The majority described it as a single paragraph letter to a Senator from a member of the Buddhist community in Australia referring generally to the adverse treatment of religious minorities in Bangladesh and urging “on the grounds of humanity and compassion” that the visa applicant and his family be given asylum in Australia. The Priest Letter is quite different and on its face it is corroborative of specific and central claims made by CPA16.

53    The appeal must be dismissed. Given our finding on the appeal it is unnecessary to deal with CPA16’s notice of contention.

54    We are not aware of any reason why costs should not follow the event and we have made an order that the Minister pay the costs of the appeal.

Associate:

Dated:    12 March 2019