FEDERAL COURT OF AUSTRALIA

CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61

ORDERS

THE COURT ORDERS THAT:

1.    The notice of appeal filed 7 December 2018 is dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to this appeal.

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

REASONS FOR JUDGMENT

REEVES J:

1    Relevance, or its related concept, materiality, is central to this appeal. It arises as an issue at two points in time and in two different contexts. To succeed in this appeal, the appellant needs to establish the relevance, or materiality, of the documents at the heart of the appeal at both of those points in time.

2    The first context involves the words of s 473CB(1)(c) of the Migration Act 1958 (Cth) (the Act): “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” (Emphasis added). As this section specifies, the point in time at which the relevance of the material falls to be assessed by the Secretary is the point at which the delegate’s decision is referred to the Immigration Assessment Authority (the IAA). On this aspect, the issue raised by this appeal is whether, at that point in time, the Secretary breached his obligation under s 473CB(1)(c) by either not considering the relevance of the documents it is agreed were not provided to the IAA at all (described in oral submissions as the “frank breach”) or, if he did consider those documents, whether he acted unreasonably in concluding that they were not relevant to the IAA’s review.

3    The second context assumes a breach of s 473CB(1)(c) by the Secretary with respect to those documents and posits the question “whether there is a realistic possibility that the [IAA’s] decision could have been different if it had taken [them] into account” (see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at [48]). The point in time at which this materiality question falls to be considered is the time of the IAA’s decision.

4    I have had the benefit of reading in draft form the reasons for judgment of Jagot and Derrington JJ. On the first issue above, I agree with the reasons and conclusion of Jagot J that the appellant has not established that the Secretary breached s 473CB(1)(c) of the Act. On the second issue, I agree with the reasons and conclusions of both of their Honours that, even assuming the Secretary breached s 473CB(1)(c), the appellant has not established that he was denied the realistic possibility of a different outcome before the IAA if it had taken the documents in question into account.

5    That brings me to the question of costs. In this respect, I strongly endorse the remarks of Jagot J about the disturbing lack of transparency surrounding the Secretary’s decision in this matter. To those remarks I would add a grave concern about the concomitant dearth in record keeping relating to the prescribed statutory steps the Secretary was required to undertake leading to that decision. In my view, a court reviewing a decision of this kind should be able to expect that the pertinent administrative processes leading to the decision have been accurately recorded and that that record is available for scrutiny should that be required. Regrettably, that did not occur in this matter. As a consequence, unnecessary costs and delays were occasioned in disposing of this appeal. In those circumstances, despite his success, I would not be willing to order the costs of this appeal in the Minister’s favour.

6    For these reasons, the appropriate orders are:

1.    The notice of appeal filed 7 December 2018 is dismissed.

2.    There be no order for costs.

Associate:    

Dated:    15 April 2019

REASONS FOR JUDGMENT

JAGOT J:

Background observations

7    This case is difficult and made more so by the manner in which Pt 7AA of the Migration Act 1958 (Cth) (the Act), which regulates the fast track review process in relation to certain protection visa decisions, seems to be administered. Part 7AA creates a class of decision known as a fast track reviewable decision. A fast track decision is a decision to refuse to grant protection visas to certain applicants, known as fast track applicants: s 5(1) of the Act. The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority (the IAA) as soon as reasonably practicable after the decision is made: s 473CA. The Secretary must give certain review material to the IAA in respect of each such decision including, relevantly to the present case, “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”: s 473CB(1).

8    The peculiarities of administration of the scheme apparent from the present case include that although the statutory requirement is for the Secretary to give material to the IAA that the Secretary considers relevant to the review, the evidence in the present case does not identify:

(1)    the means by which the Minister or Minister’s delegate referred the decision of the Minister’s delegate to the IAA;

(2)    that the Secretary received any material from the delegate of the Minister who made the decision or any other person for the purpose of considering the material relevant to the review;

(3)    the means by which or the date on which the Secretary gave such material as the Secretary considered relevant to the review to the IAA;

(4)    the material the Secretary did consider relevant and in fact gave to the IAA; or

(5)    the material the IAA in fact had before it when it conducted its review.

9    If it were not for the fact that the IAA’s reasons for its decision to affirm the delegate’s decision record in [2] that the IAA reviewer “had regard to the material referred by the Secretary under s 473CB of the Migration Act 1958”, the administrative obscurity of the process would be complete. As it is, but for the Minister’s concession that, whatever else the IAA was given, it was not given the documents in dispute in the present case, the appellant would have been forced to the inconvenience and expense of interlocutory processes merely to identify what the Secretary had given to the IAA. This is in the face of the express statutory duty under s 473CB(1)(c) of the Secretary to give to the IAA 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 IAA) to be relevant to the review. Lack of transparency in administrative processes is generally undesirable. Lack of transparency in administrative processes which directly affect fundamental individual interests, such as eligibility for a protection visa, is particularly troubling. Transparent decision-making processes enable the quality of those processes to be understood and improved. They ensure that the individual who is the subject of those processes may feel confidence in those processes as fair and decent irrespective of the outcome. They engender general confidence in our society as a whole and ensure that the exercise of administrative decision-making powers which may directly affect fundamental individual interests is undertaken in a fair and decent manner. Obscure and impenetrable administrative processes work against the perception of fairness and decency and tend to undermine confidence in institutional decision-making processes. Such confidence is part of the compact upon which the successful functioning of our democracy relies.

10    This appeal, in common with the application for judicial review before the Federal Circuit Court against which this appeal is brought, must be determined on the evidence, such as it is. From the Minister’s concession it is known that within the Secretary’s possession or control in the present case at the time of the referral to the IAA there were certain documents that were not given to the IAA. One, dated from 2013, discloses that the appellant had been approved for six sessions of torture and trauma counselling in 2013. Another discloses that the appellant had later been seriously injured in a car accident, it being undisputed that this occurred in 2014 and that the appellant suffered a brain injury as a result. Another provides guidance about the Primary Application Information Service (or PAIS), which provides eligible people with assistance in making an application for a protection visa. The guidance refers to eligibility criteria which include the exceptional vulnerability of the person for a variety of reasons including conditions affecting cognitive function, mental illness, torture and trauma, incapacitating illness, and difficulty in completing an application form. It is known that in 2016 the appellant obtained PAIS approval and was provided with assistance in making his application for a form of protection visa known as a Safe Haven Enterprise visa.

11    The appellant, a Sri Lankan national of Tamil ethnicity, had arrived in Australia in 2012. In his arrival interview on 9 January 2013 he said that in Sri Lanka he had been, “kidnapped three or four times by a White Van” and that “CID” (Sri Lanka’s Criminal Investigation Department) detained him after which he was released but a white van was always driving by his house and he was afraid. In addition, he said that he had been detained by the Army in Camp Joseph for six days. There is no reference in this interview to the appellant having been beaten during any of the times in which he was detained.

12    The first of the documents in dispute, dated 18 July 2013 (some seven months after this interview) records in relation to the appellant:

The health request for 6 x sessions of Torture and Trauma counselling is approved at $1848.

13    In a statement the appellant made in February 2016 in support of his application for a visa he said he had worked in a Liberation Tigers of Tamil Eelam (LTTE) owned jewellery shop and was linked to the LTTE by having worked for them in this shop, had been detained in Camp Joseph as a suspected member of the LTTE, which he denied, and that he was then beaten and interrogated. He also said that on the third occasion he was kidnapped and taken into a white van where he was then beaten while being interrogated about his wife’s brother who was a member of the LTTE. In his interview with the delegate in 2016 the appellant’s representative said that the appellant had suffered a brain injury which affected his understanding.

14    The protection visa decision record of the Minister’s delegate dated 20 October 2016 records the delegate’s view that the delegate did not accept the appellant was detained at Camp Joseph, that any of the white van incidents occurred or that the appellant was harmed as claimed. The delegate did, however, accept that the appellant had been detained at 74 Rehabilitation camp for three days. The delegate decided that the appellant was not a person in respect of whom Australia has protection obligations as set out in the Act. The delegate’s reasons record that the delegate took into consideration that the “the applicant was involved in a serious car accident here in Australia which has impacted on his ability to remember information in regards to his claims”. Accordingly, it could not be and was not suggested in the appeal that the delegate did not consider this information about the brain injury and its effect on the appellant.

15    There is another document dated 20 October 2016 which, from the name of the case officer identified, may be inferred to have been completed by the Minister’s delegate. The document is headed:

Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist

16    This document states that:

This part of the form must be completed by case officers when reviewing a fast track reviewable decision

17    It contains a table under the statement that the “PDFP contains the following material”. There follows a list of items against which there is a column marked “Status” identifying three options, Yes, No, or N/A. The following items are both marked N/A.

Any other relevant correspondence in regard to application lodgement

Any other relevant documents that should be included in the PDF Portfolio

18    This document also states:

Date checklist transferred to TPVP team    :    20 October 2016

This part of the form must be completed by the TPVP officer before the case is referred to the IAA.

19    On 17 November 2016 a submission was filed for the appellant with the IAA seeking to put new information before the IAA. This submission is to be understood in the light of s 473DD of the Act which 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.

20    Section 473DD(b)(ii) has been construed to mean “not previously known” to either the referred applicant or the Minister: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) 257 FCR 111 at [106].

21    The submission identified the new information as the appellant fearing harm in Sri Lanka because of his “actual involvement with/membership of the LTTE”, the appellant having been in a special intelligence unit under a particular LTTE leader, a named Colonel, with a role of monitoring camps and secretly passing information and using claymore mines to attack army vehicles. The submission said that the appellant did not provide this information earlier as disclosure of his involvement with the LTTE is the basis of his fears and increases the likelihood of him being harmed. The submission said that the context of the appellant fearing for his life and being accustomed to not sharing information provides a reasonable explanation as to why the appellant did not disclose this information previously. Further submissions followed to the same effect.

22    It is at least apparent from its reasons that the IAA had access to the appellant’s various statements and the interview with the delegate and, indeed, there is evidence that the delegate requested further information from the Department to ensure it had access to the whole of the interview with the delegate, which was recorded.

23    In the reasons for decision affirming the original decision not to grant the appellant a protection visa, the IAA:

(1)    accepted that the appellant suffered from a brain injury which may impair his ability to recall dates;

(2)    did not accept that the appellant worked for the LTTE in an LTTE owned jewellery shop;

(3)    accepted that the appellant had been detained by the CID in Camp Joseph and had been beaten on more than one occasion while detained at that camp for six days;

(4)    accepted that the appellant had been taken in a white van and detained on three other occasions and on the third occasion that the appellant had been beaten while being interrogated about his wife’s brother whom the IAA accepted was involved with the LTTE; and

(5)    did not accept that this third occasion occurred in 2012 just before the appellant came to Australia but inferred it occurred in 2010 due to surrounding circumstances which the IAA identified.

Competing case

24    The submissions for the appellant may be summarised briefly.

25    According to the appellant the only evidence of consideration of the documents to be forwarded to the IAA is the checklist by the delegate. It should be inferred from this document that the relevance of the documents not given to the IAA was not considered by the Secretary. Alternatively, if this inference cannot be drawn it was unreasonable for the Secretary not to consider those documents to be relevant to the review. The approval for torture and trauma counselling, in particular, disclosed that the appellant was considered to have been traumatised to the extent he needed treatment. His approval under the PAIS was also relevant as torture and trauma are an eligibility criterion for such approval. The documents were thus relevant because at the time of referral to the IAA the delegate had rejected the appellant’s claims of having been detained and beaten due to his LTTE links. The documents could support the inference that he had been detained and beaten to such an extent that he was traumatised and required torture and trauma counselling and was eligible for assistance under the PAIS scheme, one criterion for which was past experiences of torture or trauma.

26    The appellant submitted that the contravention of s 473CB(1)(c) of the Act was material, sufficient to constitute jurisdictional error. The documents which were not given to the IAA may have caused the IAA to reach a different conclusion. In particular, if the IAA had known of the documents it may have been satisfied that there were exceptional circumstances enabling it to take into account the new information that the appellant belatedly claimed to be a member of the LTTE. The IAA may have been satisfied that the appellant’s fear of disclosure was such to prevent him from making known his role in the LTTE at an earlier time given the documents could have supported his claim to have been beaten at Camp Joseph and when detained on the third occasion. Further, the documents could have supported the appellant’s claim to have worked in a jewellery store for the LTTE which the IAA rejected at [28] of its reasons. That is, the documents could have supported the inference that he was beaten due to his LTTE links, including having worked for the LTTE in one of its jewellery shops. In turn, these inferences could have supported the inference that the appellant would be at risk of serious harm if he returned to Sri Lanka. What cannot be said is that the result may not have been different if the IAA had been given the documents.

27    The Minister’s case may be discussed more conveniently as part of the overall consideration of the appellant’s arguments. For present purposes it is sufficient to note that the Minister denied any contravention of s 473CB(1)(c) of the Act by the Secretary on the basis that it had not been proved that the Secretary failed to consider the relevant documents and the view that the documents were not relevant was legally reasonable in the particular circumstances of the case. Further, if there had been any contravention by the Secretary then, in any event, the contravention did not amount to jurisdictional error because the contravention could not have made any difference to the result.

Consideration

28    In EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 Thawley J provided a convenient summary of principles in these terms:

41. As a matter of principle, it was at least arguable that a breach of s 473CB(1)(c) by the Secretary could, in an appropriate case, have the consequence that the Authority’s decision was affected by jurisdictional error:

(1) Section 473CB(1)(c) requires the Secretary to form a view as to which documents are relevant to the review to be conducted by the Authority – see, in a different context: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at [64].

(2) The view so formed is the subjective view of the Secretary as to relevance: Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [73] (Griffiths J).

(3) The Secretary’s view as to relevance must be formed in a reasonable manner and on a correct understanding of the law – see, albeit in a different context: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890 at [57]; NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 551 at [41] (Tamberlin J).

(4) An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c).

(5) A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process – cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].

42. In amplification of the last proposition:

(1) If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.

(2) A breach of s 473CB(1)(c) might also have that consequence. The statutory scheme contemplates limited merits review on the “review material” provided by the Secretary to the Authority. The “review material” must include material which the Secretary considers to be relevant: s 473CB(1)(c). It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law – see: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority’s decision-making process and whether it conducts a “review” of the kind authorised.

(3) The reasoning in cases such as WAGP at [62]-[64], in relation to a breach of s 418(3) (found in Part 7), does not easily translate to a breach of s 473CB(1) in light of the quite different scheme contemplated by Part 7AA; see also: SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 and BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159. 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.

29    In EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 the Full Court held that a contravention of s 473CB(1)(b) (which requires the Secretary to give the IAA “material provided by the referred applicant to the person making the decision before the decision was made”) could give rise to jurisdictional error. The Full Court said this:

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.

…

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 [Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780] 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.

30    The first issue is one of fact. Has the appellant, who bears the onus of proof, proved that the Secretary failed to consider the relevance of these documents? The Minister pointed to the following observations of Gummow J (with whom Heydon and Crennan JJ agreed at [91] and [92]) in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67]:

An applicant in the Federal Magistrates Court for judicial review of the Tribunal’s decision, as the moving party, bears the onus of establishing jurisdictional error on the part of the Tribunal. Nothing in the Migration Act displaces the usual position that it is for the moving party to make out its case … the point to be made is that it fell to the first respondent to establish a basis for drawing the inference necessary to make out the alleged jurisdictional error. There was certainly no burden upon the Minister to demonstrate the positive proposition that the Tribunal had indeed considered the request.

31    The Minister also relied on Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] where French CJ, Bell, Keane and Gordon JJ said:

First, the burden is upon the plaintiff to demonstrate that the Delegate’s decision was affected by jurisdictional error.

32    In the course of argument the presiding judge, Reeves J, referred to cases dealing with Blatch v Archer (1774) 1 Cowp 63 at 65 where Lord Mansfield CJ referred to the “maxim that all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted” including Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corp (1985) 1 NSWLR 561 at 565 where Hunt J referred to the principle that “only comparatively slight evidence is required for the plaintiffs to discharge their onus in… [a] case where the facts are peculiarly within the knowledge of the defendant: cf Parker v Paton (1941) 41 SR (NSW) 237 at 243; 58 WN 189 at 192; Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371”. In Hampton Court, a personal injury case, Dixon CJ said at 371 said about this principle:

But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it, in accordance with the often repeated observation of Lord Mansfield in Blatch v Archer…

33    In the present case it seems plain that knowledge of the fact of the Secretary having considered whether the documents in question were relevant or not is a matter peculiarly within the knowledge of the Minister given that the Secretary may be inferred to be in a position within the Minister’s Department. Further, given that the task which s 473CB(1)(c) vests in the Secretary involves the Secretary’s subjective state of mind as to the relevance to the review of documents in the Secretary’s possession or control, the appellant has no power to produce evidence relevant to that question. In this context, given that the Minister has produced no evidence about that issue, the question is whether there is some evidence, even if comparatively slight, that the Secretary did not consider whether the documents were relevant.

34    For reasons which will become apparent, in the circumstances of the present case, this question tends to collapse into the other question the appellant posed – was it legally unreasonable for the Secretary to have concluded that the documents were not relevant? This is because there are no reasons for the Secretary’s decision not to give the documents to the IAA and no evidence of what the Secretary did or did not do, apart from the checklist prepared by the delegate. Even if that checklist can somehow be inferred to have been relevant to the Secretary’s consideration (which I doubt), the “N/A” answers are equally capable of supporting a range of inferences including that the Secretary did not consider the documents to be relevant. To my mind, they do not permit an inference that the relevance of the documents was not considered at all. These circumstances render the first question, did the Secretary consider the relevance of the documents at all, moot. This is because, in this case, the only evidence which might be capable of supporting an inference that the Secretary did not consider the relevance of the documents is the conclusion, if it be the conclusion, that a decision the documents were irrelevant would be legally unreasonable.

35    I note that in SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123 at [54] Bennett and McKerracher JJ said:

We agree with the Minister and the Full Court in WAGP [WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103; (2006) 151 FCR 413] that the objective relevance of a document is not the test to be applied by reason of s 418(3), except perhaps in an extreme case where the document was so clearly critical that it could only be inferred that failure to supply it to the Tribunal meant there was no discharge of the obligation to form a view. In our view, the Medical Reports are relevant but not ‘crucial’ to the appellant’s claim.

36    The issue in the present case is the discharge of the onus of proof. In my view, if a decision that the documents were irrelevant to the review would be legally unreasonable in the sense discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 then that itself might be some evidence that the Secretary did not consider the relevance of the documents. A conclusion of legal unreasonableness might be reached because a document is critical or crucial but that is because deciding that a document critical or crucial to the review is irrelevant may be a decision lacking any evident intelligible justification. As the Full Court discussed in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437:

44. …legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li 297 ALR 225; [2013] HCA 18 at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li 297 ALR 225; [2013] HCA 18 at [105]) …

45. In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.

37    The Minister identified circumstances said to provide an intelligible justification for a decision that the documents were not relevant to the review. The key document is the approval for torture and trauma counselling. Without this, there can be no argument that a decision that the other documents were irrelevant would have lacked an intelligible foundation. There was no suggestion that the delegate had rejected the information about the brain injury given in the interview with the delegate, and the interview, we know, must have been considered by the Secretary to be relevant as it was given to the IAA. This fact is recorded at [25] of the IAA’s reasons. The PAIS eligibility criteria guidance document identifies multiple bases for eligibility including conditions affecting cognitive function. Thus it does not add anything to the information which was otherwise given to the IAA. It is not difficult to conclude that the Secretary could well have reached the legally reasonable view that these other documents were not relevant to the review because they did not add anything to the information otherwise available. This also accords with the fact that the entire focus of the appellant’s case was the inference that at least one person in the Department was of the view that the appellant was tortured and traumatised by that torture. This argument depends on the torture and trauma counselling approval as an essential link in a chain of inferences, without which the other documents, on the case as put by the appellant, cannot be sustained.

38    What then of the torture and trauma approval document? The test is the lack of an intelligible justification for the (assumed) decision that this document was not relevant. The Minister emphasised that the document is a bare approval and is dated 2013, a time when the appellant had claimed to have been detained, but not beaten. Nothing is known of the circumstances in which the approval was granted. Further, the delegate had accepted that the appellant had been detained, albeit in a different camp from that the appellant identified. As a result, the Minister submitted, it cannot be said that a decision that the document was irrelevant would have been legally unreasonable. For example, according to the Minister, the Secretary might have reasoned that the fact of the appellant’s detention, which the delegate had accepted, itself constituted torture or trauma and that, as detention had been accepted by the delegate, the document added nothing so a decision that the document was not relevant could not be said to lack any intelligible justification.

39    I agree with the Minister’s submissions. The test is not whether I consider the document might have been or was relevant to the review. Nor is the test whether I could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review. It is not difficult to propose a chain of reasoning by which the document could be relevant. At the time the decision had to be referred to the IAA by the Minister under s 473CA of the Act, the Minister’s delegate had rejected the appellant’s claims (made in his visa application in 2016) to have been beaten whilst being detained. Even a bare approval for torture and trauma counselling from 2013 might have formed a relevant link in a chain of reasoning supportive of the appellant’s claims to have been beaten which, in turn, might have been used in a chain of reasoning to support his claims (as they existed at that time) to have worked in an LTTE owned jewellery store and to be linked to the LTTE through his brother-in-law. In this regard, it is worth emphasising that the test for reasonableness is to be applied at the time the decision was referred to the IAA because this is the time the Secretary had to discharge the function imposed by s 473CB(1)(c). At that time the “new information”, concerning the appellant being an LTTE member operating in a special intelligence unit, did not exist. Nor can it be inferred that this new information, which was sent directly to the IAA, was in the Secretary’s possession or control when the decision was made.

40    It is also not impossible to identify another chain of reasoning by which the document might be considered irrelevant. It is a bare approval from 2013. Torture and trauma counselling presumably applies to either torture counselling or trauma counselling. It would not be unreasonable to so understand the approval despite the use of the conjunction “and” in the description. There is no evidence of the eligibility criteria for such an approval. Hence, contrary to the appellant’s submissions, it cannot be said that at least one person within the Department must have accepted that the appellant had in fact been tortured. There is no evidence of the appellant having made a claim in 2013 to having been beaten or otherwise tortured. He had claimed to have been detained and the delegate had accepted he had been detained, albeit in a different location from that claimed. The fact of detention, which the delegate had accepted, may have been sufficient to make the appellant eligible for torture and/or trauma counselling. Thus, the approval did not advance the appellant’s claims one way or another. In my view, this kind of reasoning would have been legally reasonable. As a result, it cannot be concluded that the Secretary contravened s 473CB(1)(c) by not having given the documents in question to the IAA on the ground that it was legally unreasonable not to do so.

41    This conclusion also leads me to the view that there is not even slight evidence to support the inference that the Secretary failed to consider the relevant documents at all. On the state of the evidence, the appellant has not discharged the onus of proving this as a fact. The evidence, such as it is, does not permit the negative inference to be drawn.

42    For these reasons I would conclude that the appellant has not established that the Secretary contravened s 473CB(1)(c) of the Act, with the consequence that there can be no legal error affecting the IAA’s decision, jurisdictional or otherwise.

43    If this conclusion is incorrect, there is an issue about the materiality of the (on my conclusions, assumed) jurisdictional error. Whether the test for the existence of jurisdictional error or the materiality of a jurisdictional error is that the error could not have materially affected the decision that was made or there was a possibility that the error, if not made, could have changed the result (for example, Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [31] and [72]; Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31 at [38]) or that the “compliance could have realistically resulted in a different decision” (Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [45]) the Minister contends that the threshold of materiality is not met in this case. Importantly, materiality of jurisdictional error is to be determined having regard to the outcome of the review in light of the appellant’s claims and the IAA’s reasons: EVS17 at [42]. This may be contrasted with the time at which the reasonableness of the Secretary’s decision is to be evaluated which is the time the matter was referred to the IAA given the terms of s 473CB(1)(c).

44    The appellant identified two ways in which the asserted error (which I assume for present purposes) should be held to be material.

45    First, the IAA did not accept the new information under s 473DD of the Act. The IAA accepted that the appellant may have initially feared disclosing his membership of the LTTE but did not see this as an adequate explanation for not having disclosed the new information until after the delegate’s decision. The IAA also noted the appellant had been in a car accident and claimed to have suffered a brain injury which may have impaired his ability to recall dates and continued at [9]:

I am not satisfied that any brain injury he has suffered would account for his failure to mention this additional claim at all and the applicant has not asserted that it has.

46    This part of the IAA’s reasons is to be read in the context of its statement at [25] that the IAA accepted that the appellant had been injured in a car accident and that this may have resulted in a brain injury which presented the appellant with “some challenges” in “effectively putting all his claims for protection” and had “taken this into account when assessing his claims and evidence”.

47    According to the appellant, had the documents in question been sent to the IAA then it is possible the IAA could have reached a different conclusion about the existence of exceptional circumstances for the purpose of s 473DD(a) of the Act. That is, the IAA could have reasoned that the appellant’s fear was reasonable in circumstances where at least one person in the Department was of the view that he had been so traumatised by his experiences in Sri Lanka he needed torture and trauma counselling.

48    According to the Minister, on no view could the documents have been relevant to the requirements of s 473DD(a) of the Act. The IAA accepted that the appellant may have a brain injury which presented him with challenges in presenting his case. It took this into account in deciding that there were not exceptional circumstances to justify considering the new information as provided for in s 473DD(a). Having accepted this and the appellant’s fear of disclosure, the fact of the approval for torture and trauma counselling could not have affected the IAA’s conclusion at [9] that it was not satisfied that exceptional circumstances to justify considering the new information existed.

49    I accept the Minister’s submissions. The Tribunal’s reasoning at [5] to [9], which led it to find that there were not exceptional circumstances to justify considering the new information, could not have been affected by the torture and trauma counselling document, still less the other documents. This is because the IAA accepted that the applicant was initially afraid to disclose his claimed LTTE membership and role and that he may suffer from a brain injury which presented him with some challenges in effectively putting forward his claims. Despite those matters the IAA was not persuaded that there were exceptional circumstances given the opportunities and assistance which the appellant had to put forward his full claims before the delegate made a decision. I cannot see how the approval of torture and trauma counselling from 2013, in these circumstances, means that the result could have been different or that the appellant was deprived of the possibility of a different result under s 473DD(a). Assume the appellant’s case at its highest, that it should be inferred from the approval for counselling that at least one person in the Department considered that the appellant had been tortured and continued as at 2013 to be adversely affected so as to require counselling. To my mind, the IAA’s reasoning could not have changed as a result of any such inference. The facts would have remained as identified in [5] to [9] of the Tribunal’s reasons. As far as I could understand the argument it is that the IAA might then have accepted that the appellant’s fear was so great he felt he could not disclose the information at any earlier time than he did but the IAA had accepted the existence of fear and explained why neither fear nor the brain injury could satisfy it as to exceptional circumstances. It is unrealistic in the circumstances of the IAA’s reasoning to infer that the approval document, or any of the documents, could have made any difference. As also noted in SZMTA:

46. Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

…

48. In the case of an invalid notification, where the court on judicial review of a decision of the Tribunal can infer that the Tribunal left the notified document or notified information out of account in reaching its decision, the question that still remains is whether there is a realistic possibility that the Tribunal’s decision could have been different if it had taken the document or information into account. The court must be careful not to intrude into the fact-finding function of the Tribunal. Yet the court must be alive to the potential for a document or information, objectively evaluated, to have been of such marginal significance to the issues which arose in the review that the Tribunal’s failure to take it into account could not realistically have affected the result.

50    The context may be different but the principle is the same. Materiality is a matter of inference from evidence. In the present case, there is an insufficient evidentiary foundation to infer that that the alleged error was material on the first basis identified.

51    Second, the IAA at [28] did not accept that the appellant worked for the LTTE in an LTTE owned jewellery store. It was submitted for the appellant that had it known of the documents they would have supported an inference that the appellant had not exaggerated these claims. Again, the IAA’s reasons at [27] and [28] do not support the inference of materiality. The IAA identified a series of inconsistencies in the appellant’s evidence, noting that they might be explained by the brain injury but ultimately considered the claim to be exaggerated. The documents could not have affected that chain of reasoning.

52    For these reasons, if the Secretary had contravened s 473CB(1)(c) (which I do not accept) I would not have found the non-compliances to be sufficiently material to vitiate the IAA’s decision for jurisdictional error. It follows that the appeal should be dismissed with costs.

Associate:    

Dated:    15 April 2019

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

53    The question on this appeal is whether the omission of the Secretary of the Department of Immigration and Border Protection (the Secretary) to provide to the Immigration Assessment Authority (the IAA) certain identified documents relating to the appellant’s visa constituted a breach of s 473CB(1)(c) of the Migration Act 1958 (Cth) (the Act) and, if so, whether the IAA’s subsequent decision was vitiated by a jurisdictional error.

54    On 16 February 2016 the appellant made an application for a Safe Haven Enterprise Visa. It was refused by a delegate of the Minister for Immigration and Border Protection (the delegate) on 20 October 2016. By operation of s 473CA of the Act the delegate’s decision was automatically referred to the IAA which, by a decision of 18 May 2017, affirmed the decision not to grant the protection visa. The appellant applied to the Federal Circuit Court of Australia (FCC) under s 476 of the Act for the issue of a Constitutional writ directed to the IAA in respect of its decision. On 14 March 2018 the FCC refused the relief sought and dismissed the application.

55    The appellant failed to file a Notice of Appeal in respect of the decision of the FCC within the time permitted by r 36.03 of the Federal Court Rules 2011 (Cth). However, after the making of the appropriate application, on 13 November 2018 an extension of time in which to appeal was granted under r 36.05 and a Notice of Appeal was duly filed.

The facts

56    The appellant is a Sri Lankan national of Tamil ethnicity from the Batticaloa area. On 3 November 2012, he arrived in Australia by boat as an “unauthorised maritime arrival”. At some time prior to early 2016 he was given permission to lodge an application for a protection visa and on 16 February 2016 he applied for a Safe Haven Enterprise Visa.

57    There is no dispute the appellant was assisted with the making of his visa application by a migration agent appointed under the “Primary Application Information Service” (PAIS). The PAIS is a government funded scheme established to assist certain unauthorised maritime arrivals to apply for visas. It is uncontroversial that government policy is that assistance under the PAIS scheme is only available to a small portion of protection visa applicants and certain eligibility requirements limit the type of persons who might be afforded such services. It is plain from the government guidelines that persons who suffer from cognitive impairment and who might be regarded as exceptionally vulnerable can be provided with the PAIS assistance. Such cognitive impairment may have resulted from brain injury, mental illness, incapacitating illness or torture and trauma. The Department of Immigration and Border Protection (the Department) assesses PAIS eligibility based on information held on its systems which may have been derived from a variety of different sources.

58    In a statement supporting his application for a protection visa the appellant claimed that in Sri Lanka he had worked in jewellery shops which were owned or controlled by the Liberation Tigers of Tamil Eelam (LTTE) and that he collected gold from members of the community for the LTTE. He later said that he was not a member of the LTTE. In addition, he claimed that he and his family were displaced on several occasions during the Sri Lankan civil war. Specifically, he said he travelled from an LTTE controlled territory to the town of Vavuniya, which was in a government controlled area, and that he became the victim of a round up, transported to a government camp, accused of being a member of the LTTE and beaten by the police or by members of the army in civilian dress. His claims of internment were two-fold. First he claimed that he was taken to a camp called Joseph Camp. It was there he was detained for about six days and, he claims, beaten on a number of occasions while being questioned about whether he was a member of the LTTE. He also said that after the war he and his family were sent to 74 Rehabilitation Camp. He did not claim to have suffered beatings or torture there. He said that he was released after a bribe was paid.

59    The appellant also asserted that, on a number of occasions after the civil war, he had been abducted by men in white vans, taken to an office building and slapped by a number of different persons. He said he believed these people were from the Criminal Investigation Division (the CID).

60    In her decision of 20 October 2016, the delegate rejected the appellant’s claims of detention and harm because she had identified a number of inconsistencies in his accounts of his experiences in Sri Lanka. The delegate did not believe the appellant had been harmed in detention camps or that he had been abducted and harmed by men using white vans. Consequently, she determined that Australia did not owe him any protection obligations. Relevantly, she did not include in her reasons any observations about the appellant’s claimed serious brain injury which had resulted from a car accident in which he was involved whilst in Australia in April 2014, being prior to the delegate’s decision. It is said that the appellant informed the delegate of this impairment even though it is not referenced in her reasons.

61    Under the Act the appellant was a “fast track applicant” with the consequence that, by the operation of s 473CA, the delegate’s decision was automatically referred to the IAA for review. Pursuant to s 473CB the Secretary is obliged to give to the IAA for the purposes of the review certain identified material. Although the evidence reveals the Secretary performed that statutory obligation to some extent by forwarding some material, the central question is whether the obligation was fully performed and, in particular, whether there was compliance with the obligation in s 473CB(1)(c). Relevantly, at the time of the referral the Secretary had possession of a number of documents relating to the appellant and his circumstances which were not given to the IAA. They are referred to in greater detail below but include documents relating to the severe car accident in which the appellant was involved in April 2014, documents relating to the provision to the appellant of six torture and trauma counselling sessions and documents relating to the affording of assistance to the appellant under the PAIS scheme.

The decision of the IAA

62    The appellant sought to advance some new claims before the IAA. One was to the effect that he was, in fact, a member of the LTTE and, in support of that, he sought to provide information about his role in that organisation. He provided a statement to the IAA in which he asserted that during the visa application process he feared that if he mentioned or admitted his involvement with the LTTE he would have been detained indefinitely, jailed or handed over to the Sri Lankan authorities. It was said on his behalf that, given the context of his fear for his life and being unaccustomed to sharing information with government authorities, he had provided a reasonable explanation as to why he had not earlier disclosed this new claim.

63    The IAA held it ought not consider the new information provided by the appellant in support of his new claim. It reasoned that, whilst it might be accepted he had some initial reluctance to disclose his alleged involvement with the LTTE, that did not adequately explain his failure to disclose it until after he was informed of the delegate’s decision and the referral of his application to the IAA. The IAA also considered the circumstances of the Safe Haven Enterprise Visa interview which was conducted between the delegate and the appellant with the support of his migration agent. It found the circumstances of that interview reinforced its conclusion that there was no reason why he could not have disclosed his claimed involvement with the LTTE earlier. It was also concerned that he had given evidence under oath in his entry interview which was directly contradictory to the claims then being made to it.

64    The IAA also considered the appellant’s submission that he had been involved in a significant car accident on 13 April 2014, the result of which was he had suffered a brain injury and this accounted for his failure to mention his actual involvement with the LTTE earlier. It was, however, not satisfied that this circumstance accounted for his omission to provide the relevant information at his initial SHEV interview which had occurred prior to the injury. In the result, it concluded there were no exceptional circumstances to warrant the consideration of “new information”.

65    In relation to the application more generally, the IAA concluded that Australia did not owe the appellant any protection obligations. It found that he was not at risk of harm from Sri Lankan authorities because he was involved in manufacturing gold commemorative plates or coins for the LTTE or because he engraved numbers on pistols and walkie talkies for the LTTE as he had claimed. It concluded that he was not a person of adverse interest to the authorities on the basis of any of his activities.

66    The IAA reached different conclusions to those of the delegate in relation to the appellant’s claim that he had been taken and interned in Joseph Camp for six days. It accepted that his evidence in this regard was somewhat confused and, quite probably, because he was suffering impairment due to his brain damage consequent upon the car accident. It concluded that in 1999, he was detained by the Sri Lankan Army in Joseph Camp for six days. It accepted that during that time he was beaten on more than one occasion and that he may have been accused of being an LTTE member. The IAA also accepted that, at the end of the war, the appellant and his family were displaced by the approaching Sri Lankan Army and they were taken to another camp where they spent some days. It was a camp for internally displaced persons and not a “rehabilitation camp” and there was no suggestion of mistreatment occurring on that occasion.

67    The IAA also reached a different conclusion to that of the delegate in relation to the appellant’s claims to having been abducted three or four times by men driving a white van. Although his claims in this respect were rejected by the delegate, the IAA accepted that this had occurred on at least one occasion and on that occasion the appellant was slapped by a number of men.

Application for review to the FCC

68    On 30 October 2017, the appellant caused a subpoena to be issued out of the FCC directed to the Department requiring it to produce documents relating to the his eligibility for benefits under the PAIS scheme and any medical evidence or report used by the delegate or the IAA relating to the appellant’s involvement in a serious car accident. On 10 November 2017 and again on 11 December 2017, the Department produced a number of documents to the FCC Registry. From those the appellant identified certain ones which he says were not given to the IAA in contravention of s 473CB(1)(c) of the Act.

69    Seven grounds of review were advanced to the FCC. For present purposes it is only the seventh which is relevant. That ground stated:

The Secretary failed in its statutory obligation to provide relevant information concerning the applicant’s vulnerability after the serious car accident in April 2014.

70    Before the primary judge it was argued that the documents which explained the PAIS scheme and those which had come into existence as a result of assistance under it, by way of an accelerated referral, ought to have been given to the IAA. It was submitted that, given they demonstrated his eligibility for the receipt of PAIS assistance, they disclosed the degree of his cognitive dysfunction which would explain his inability to precisely recall the events supporting his claim. On this basis it was submitted that they were obviously relevant to the IAA’s review of the delegate’s decision.

71    The primary judge concluded that, at the time the application was before the delegate and before the IAA, the appellant’s migration representatives were well aware that the application had been commenced as a result of a PAIS accelerated referral in circumstances where the appellant had suffered a serious car accident. His Honour found that the appellant’s migration agents would have been well aware of the existence of documents concerning the application of the PAIS scheme and none of them were subject to any request to be taken into consideration by the delegate or by the IAA. No reference was made to them or to the PAIS scheme in any submission. His Honour found that the documents, on their face, were not “relevant, credible and significant”. He found it was open to the Secretary to conclude that the information in the documents was not relevant within the meaning of s 473CB(1)(c) of the Act.

72    His Honour’s brief reasons do no explain why it was relevant to the Secretary’s performance of the obligation in s 473CB(1)(c) that the appellant or his migration agent were aware of the likely existence of documents concerning the PAIS scheme and the according of assistance under it to the appellant. Nor do the reasons explain why the Department’s documents were not, on their face, “relevant, credible and significant”. In any event, the application for review was dismissed.

Appeal to this Court

73    The sole ground of appeal in respect of which an extension of time to appeal has been granted is as follows:

The Secretary failed in its statutory obligation to provide the Immigration Assessment Authority (IAA) relevant information received or produced by the first respondent upon which decision to grant the applicant PAIS was based. Judge Street failed to hold that it was a jurisdictional error.

74    It may be that the point sought to be argued on appeal is wider than that agitated before the FCC. Before that Court it was argued the documents said to be relevant but not given to the IAA related to the appellant’s claimed brain injury, whereas before this Court it is argued that the relevant documents also related to his internment in Joseph Camp and possible torture.

75    There are two relevant questions on appeal:

(a)    first, whether the Secretary failed to comply with his duty under s 473CB(1)(c) of the Act in failing to give the IAA with particular documents in his possession or control; and

(b)    secondly, whether, if there was non-compliance with s 473CB(1)(c) because the identified documents were not given to the IAA, the Secretary’s breach had the effect of vitiating the IAA’s decision.

Section 473CB(1)(c) and the scope of possible error

76    Section s 473CB(1) of the Act requires the Secretary give to the IAA:

(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; …

77    Although in the present case the appellant focuses upon sub-paragraph (c), it must be kept steadily in mind that the context of the Secretary’s obligation in that respect includes the obligations to provide the statement referred to in sub-paragraph (a) and the material provided by the appellant to the delegate as identified in sub-paragraph (b). The documents provided under those paragraphs will often inform the scope of the obligation in sub-paragraph (c).

78    The appellant’s written submissions filed for the appeal lack clarity as to which documents he claims ought to have been given to the IAA. At the hearing of the appeal they were specified as being:

(a)    An email dated 13 April 2014 from the South Australian Police stating that the appellant had been critically injured in a car accident and was unlikely to live.

(b)    A document maintained on the Department’s data files recording the fact that the appellant had suffered severe injuries in a car accident.

(c)    An email from an officer of the Department dated 18 July 2013 (which pre-dated the car accident) to the effect that approval had been given for the appellant to receive six sessions of torture and trauma counselling at a cost of $1,848.

(d)    A document maintained on the department’s data files recording the fact that the appellant had been given approval for the six counselling sessions.

(e)    A document entitled “Additional guidelines on PAIS eligibility criteria and assessment process”. That document identified the eligibility requirements for the PAIS services in the case of applicants with impaired cognitive ability, acquired brain injuries or who have received recent torture and trauma treatment.

79    It is not disputed by the Minister that the Secretary did not give the identified documents to the IAA. It also appears not to be in dispute that the documents were in the possession of the Secretary at the relevant time, being when the delegate’s decision was referred to the IAA. It is at that point in time that s 473CB(1)(c) requires the Secretary to consider the relevance of the documents in his possession. The Secretary must form a view as to which are relevant to the review to be conducted by the IAA: Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [73]; EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462, [41]. The view which is relevant to the satisfaction of the section is the subjective view of the Secretary as to relevance and not some theoretical objective view: AMA16 at [73].

80    It might be accepted that the Secretary’s view as to relevance is one which must be formed in a reasonable manner and on a correct understanding of the law: EMJ17 at [41(3)]; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, [33]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [130]-[137]. Additionally, an unreasonable failure or refusal to identify documents which might be relevant may also be regarded as a contravention of s 473CB(1)(c): EMJ17 at [41(4)].

81    In the material before the Court there are no reasons or record of reasons as to why the Secretary concluded that the identified documents were not relevant to the IAA’s determination and there is no process under the Act by which an applicant is entitled to any written explanation for any determination made under s 473CB(1)(c). That said, at paragraph 2 of the reasons of the IAA it is recorded that it had regard to the material referred to it by the Secretary under s 473CB. That is some evidence that the Secretary gave documents to the IAA as required by the Act although it is of little assistance in ascertaining whether the obligation in s 473CB(1)(c) was performed correctly or at all.

82    The appeal proceeded upon the assumption that the failure of the Secretary to comply with the statutory obligation in s 473CB(1)(c) would generate a jurisdictional error in the subsequent decision of the IAA. This was apparently founded upon the correctness of the observations of Thawley J in EMJ17 where his Honour acknowledged the possibility of the Secretary’s non-compliance with the section infecting the IAA’s subsequent decision. At [41]-[42] his Honour said:

…

(5) A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process - cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].

42. In amplification of the last proposition:

(1) If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.

(2) A breach of s 473CB(1)(c) might also have that consequence. The statutory scheme contemplates limited merits review on the “review material” provided by the Secretary to the Authority. The “review material” must include material which the Secretary considers to be relevant: s 473CB(1)(c). It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law - see: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority’s decision-making process and whether it conducts a “review” of the kind authorised.

(3) The reasoning in cases such as WAGP at [62]-[64], in relation to a breach of s 418(3) (found in Part 7), does not easily translate to a breach of s 473CB(1) in light of the quite different scheme contemplated by Part 7AA; see also: SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 and BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159. 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.

83    That view was endorsed by the Full Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20, [35], [40]-[42] (11 February 2019) where it was said that whether or not the non-compliance by the Secretary with the requirements of s 473CB(1)(c) amounted to a jurisdictional error depended upon the materiality of the contravention. In that respect the Court applied the test of materiality identified in Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at [31], however, that test was superseded by the subsequent decision in Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (13 February 2019) which is discussed below.

84    Ultimately, the Minister did not submit that an error by the Secretary in the performance of his obligation under s 473CB(1)(c) could not have the consequence that the IAA’s decision contained a jurisdictional error.

The argument advanced on appeal

85    As the appeal was argued the appellant advanced two potential ways in which there had been a breach of s 473CB(1)(c). First, it was argued that the Secretary failed to turn his mind to whether or not to exercise the power under s 473CB(1)(c) and did not consider what documents in his possession were relevant to the IAA’s review. Secondly, it was said that any exercise of the power was flawed and that can be ascertained by a consideration of the documents which were not given to the IAA in the context of the statutory obligation and concluding that no reasonable exercise of the power could have resulted in the omission to give them. In other words the validity of the exercise of the Secretary’s conclusion or inferred conclusion as to relevance is to be judged by considering “the outcome of the exercise of power in the factual context presented and… [assessing] its justification or intelligibility”: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45].

86    The exercise of the power to give the relevant material to the IAA is conditioned on the Secretary forming a state of mind, being that he considers the material to be relevant to the review. Where a statutory power is conditioned upon the formation of a state of mind by the repository of the power, the latitude in reaching the required state of mind is not unlimited. In Graham v Minister for Immigration and Border Protection (2017) 91 ALJR 890, [57] the plurality of the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) identified those limits in the following manner:

[57] The suspicion of the Minister necessary to fulfil the first condition of s 501(3) and the satisfaction of the Minister necessary to fulfil the second condition of s 501(3) and the relevant condition of s 501C(4) must each be formed by the Minister reasonably and on a correct understanding of the law. The concept of the national interest, the Minister’s satisfaction as to which is the subject of the second condition of s 501(3), although broad and evaluative, is not unbounded. And the statutory discretion enlivened on fulfilment of those statutory conditions must in each case be exercised by the Minister “according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself” (R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189; [1965] ALR 1067, citing Sharp v Wakefield [1891] AC 173 at 179. See Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491; [2016] FCAFC 11; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 (2016) 240 FCR 158; [2016] FCAFC 28).

87    That paragraph, relied upon by the Minister, has two limbs. First, it identifies that the Minister’s satisfaction or state of mind has to be formed “reasonably and on a correct understanding of the law”. Secondly, the broader discretionary power enlivened by the formation of the requisite state of mind is controlled by further and different considerations. In relation to the question at hand, the appellant must establish that the exercise of power, assuming that it occurred, was unreasonable in the sense that no reasonable person might have reached the conclusion that the material was not relevant. The reasonableness is to be adjudged on a correct understanding of the law, being the statutory obligation in question. Error is not established merely by a judge concluding that they would have decided the point differently. As in the case of unreasonableness in the exercise of discretionary power, the test of whether there has been a failure to reach the necessary state of satisfaction is necessarily stringent. By analogy with that test for unreasonableness, it is probably appropriate to ask whether the exercise of statutory power lacks an evident and intelligent justification: Minister for Immigration and Border Protection v SZVFW (2018) 92 ALJR 713, [10] per Kiefel CJ.

Was there a relevant non-compliance with s 473CB(1)(c)?

88    It was acknowledged by the appellant that he carried the onus of establishing that there had been a contravention by the Secretary of the obligation to refer relevant material to the IAA. That may have been achieved by demonstrating the Secretary failed to turn his mind to the exercise of power at all. Alternatively, it might be demonstrated inferentially by showing that specific documents were not provided to the IAA in circumstances where no Secretary could have validly considered they were not relevant. Either of these impose a significant hurdle for an applicant to overcome.

A frank breach?

89    The first of the above contraventions, being the failure to exercise the power at all, was referred to in the course of submissions as being a “frank breach”. It was accepted by the Minister that if the Secretary did not turn his mind to the exercise of the power there would necessarily be a contravention of the obligation in s 473CB(1)(c).

90    On this issue a question arose as to the nature of the onus the appellant bore in establishing the negative proposition that the Secretary did not perform the obligation under s 473CB(1)(c). Of particular concern was the near insurmountable hurdle which an applicant would face in attempting to establish whether the Secretary actually turned his mind to the exercise of power or did exercise the power. On that issue, all of the evidence and information which might demonstrate the fact either way would only be within the knowledge of the Secretary. Whilst a subpoena might reveal some documents which disclose the fact, it is more than likely that, where the Secretary fails to exercise the power at all, there will be no document which might tend to prove that one way or the other. The parties were given leave to file additional written submissions on this topic and substantial submissions were received.

91    In the Minister’s submission, it is irrelevant to the question of onus that all of the information as to whether the statutory obligation was performed is in the possession of only one party. In reliance on the reasons of Campbell JA in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 (Rockcote) at [78] he submitted that “The fact that an opposing party (such as the Minister) has ‘greater means to produce evidence which contradicts the negative proposition, does not mean that the [moving party] ceases to have the onus of proof of that negative proposition.’” However, and quite properly, he also acknowledged that, “once the [moving party] establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred”, particularly where the facts are peculiarly within that party’s knowledge or capacity (Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371-372 per Dixon CJ), “an evidential onus shifts to the [opposing party] to adduce evidence that tends to show that the negative proposition is incorrect.” (Rockcote at [78], citing Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561). Any evidence adduced by the opposing party would, then, have to be dealt with by the moving party in the discharge of their overall burden of proof.

92    Despite the above acknowledgement the Minister also submitted, quite correctly, that in order to raise an inference of a negative proposition, sufficient evidence of the same needs to be adduced by the party carrying the onus. Evidence merely giving rise to speculation is not adequate: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616-617 [67]-[69] per Gummow J. That said, even somewhat slight evidence may be sufficient in circumstances where the opposing party which has all the knowledge of the relevant fact fails to adduce evidence to the contrary. This proposition is supported by the well-established principle of fact finding that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v Archer (1774) 1 Cowp 63 at 65 per Lord Mansfield CJ.

93    In considering the performance of the obligations in s 473CB(1)(c) it is apt to keep steadily in mind that the legislature imposed no express requirement on the Secretary to give to any party reasons concerning the performance of its statutory function and there is nothing which suggests that the IAA is required to identify if and how that function was performed.

94    The appellant sought to establish the absence of any attempt by the Secretary to exercise power by reference to a document received by his lawyers consequent upon the issue of a subpoena directed to the Department. That document is headed “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” (the Referral document). It appears to have been prepared by the delegate in respect of the fast track reviewable decision concerning the appellant and contains a checklist of documents which the delegate identified as being appropriate for sending to the IAA. That checklist does not refer to the documents which the appellant claims were improperly not given to the IAA. However, the proforma list contains an item, “Any other relevant documents that should be included in the PDF portfolio” and against it the producer of the document has marked the option which reads “Not Applicable”. Alternative indicators were “Yes” or “No”. The appellant argued that the indication that this item was “Not Applicable” revealed that the Secretary failed to exercise his discretion at all. It was said that if the power were exercised the relevant documents which were produced on subpoena would have been considered and either a “Yes” or “No” marked in relation to this item.

95    The appellant’s submissions in this regard cannot be accepted. First, there is nothing in the Referral document which indicates whether the Secretary exercised the power under s 473CB(1)(c). It was not prepared by the Secretary nor, as far as can be ascertained, on his authority or by his subordinates. There was no evidence of whether the Secretary delegated his power to the person who completed it and even the Carltona principle (Carltona Ltd v Commissioner of Works [1943] 2 All ER 560) will not assist because it is not known whether the delegate was a person who might act as the agent of the Secretary in the exercise of power under s 473CB(1)(c). There is simply no indication one way or another whether the person who completed the document was acting with the authority of the Secretary.

96    Secondly, the Referral document seems to indicate that the part relied upon by the appellant was, in fact, not completed by a person who was acting with the authority of the Secretary. On a different page to the checklist is a section to be completed by a different officer, namely a “TPVP officer”. That section directs attention to the exercise of power under ss 473GA and 473GB to the extent to which those sections require the exercise of power by the Secretary. It would seem to follow that this separate section is intended to be completed by a person who may exercise the Secretary’s powers and, inferentially, the checklist section is exercised by a person without that authority.

97    Thirdly, even if the documents listed in the checklist were those which the Secretary concluded constituted the “review material”, there is no indication that the completion of the checklist was intended to indicate that no other documents were considered. It may well be that the documents which were considered irrelevant to the review were simply not included or mentioned. The indication that the item on the checklist which read “Any other relevant documents that should be included in the PDF portfolio” was “not applicable” was, at best, ambiguous. At worst for the appellant it may mean that no other documents were considered relevant and thereby indicating that the obligation to consider the material in possession of the Secretary was fulfilled.

98    There was no other evidence pointed to by the appellant which suggested that the Secretary did not exercise the power in s 473CB(1)(c). That being so, no inference of a failure to perform or to consider performing the duty arises on the material. On the other hand there is some slim evidence that the Secretary did. At paragraph [2] of the reasons of the IAA it is stated, “I have had regard to the material referred by the Secretary under s 473CB”. That statement is suggestive of the fulfilment of the obligations in that section although it is far from conclusive.

99    It follows that the appellant has not been able to establish that the Secretary failed to consider exercising the power under s 473CB(1)(c).

A failure to exercise the powers in s 473CB(1)(c) correctly

100    Similarly, the Minister submitted that the appellant carried the onus of establishing that, assuming the power was exercised, it had been exercised otherwise than in accordance with the statutory requirements. In doing so he relied upon the observations of French CJ, Bell, Keane and Gordon JJ in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 [24] to the following effect:

[24] First, the burden is upon the plaintiff to demonstrate that the Delegate’s decision was affected by jurisdictional error. The plaintiff must show that the approach adopted by the Delegate “manifest[ed] a legally erroneous view as to what it was about which [he] needed to be satisfied” (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [55] (Eshetu)), so that the Delegate lacked legal authority to make the decision that was made (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 22 ; [2001] HCA 30 at [82] (Yusuf)).

101    In that case the exercise of power was conditioned on the Minister being satisfied there were compelling reasons for giving special consideration to the granting of the visa in question. The statement in that case of what the applicant for review must show is consistent with what was said in Graham in that the touchstone of invalidity was identified as manifesting a legally erroneous view as to what the decision maker had to be satisfied. That apart, it is clear that the onus rests upon the appellant to establish the foundation of the jurisdictional error.

102    The appellant submitted that the non-compliance with s 473CB(1)(c) can be established by a consideration of the documents which were in the Secretary’s possession and which were not given to the IAA, even assuming that the Secretary purported to perform the obligation. So the argument goes, the documents are patently relevant on their face and the Court should conclude that there must have been a legally erroneous exercise of the power because no determination to give them to the IAA was made. In other words, in the absence of reasons, the error in the performance of the Secretary’s obligation appears from the fact that if he had acted reasonably and with an understanding of the power to be exercised, the documents would have been given to the IAA. The outcome of the exercise of power in the factual context reveals its erroneous exercise: cf Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45].

What is “relevant to the review” in s 473CB(1)(c)

103    Before considering the documents which were not provided to the IAA, some attention has to be given to ascertaining the nature of the material which is “relevant to the review” as that expression is used in s 473CB(1)(c). The scope of the review to be conducted by the IAA under the Act necessarily impacts upon the identification of the material which is properly said to be relevant to it. In this respect it is important to keep in mind that the nature of the review which the IAA is to undertake is not merely to consider the reasons given by the delegate and make a judgment as to their correctness. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481, Gageler, Keane and Nettle JJ identified the obligation of the IAA in the following terms:

[17] Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority’s determination.

104    That obligation is similar to that identified of the Refugee Review Tribunal (as it was) as being to undertake a “fresh consideration of the application which led to the decision under review”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10] per French CJ, referring to Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 261 per Mason CJ, Brennan and Toohey JJ, and “to arrive at the correct or preferable decision in the case before it according to the material before it”: Bushell v Repatriation Commission (1992) 175 CLR 408, 425.

105    As the obligation of the IAA is to conduct a de novo hearing to consider the application for a protection visa afresh, all material which relates to every aspect of the visa application is necessarily relevant. Even where a delegate has decided a point in favour of the visa applicant, the material in the possession of the Secretary which tends to prove or disprove that issue can be said to be relevant to the review as the IAA is obliged to reach its own conclusions on each matter. Indeed, the relevant material before the IAA may include information which was not considered by the delegate but which is in possession of the Secretary at the time of the referral.

106    The appellant submitted, that at the time of determining whether material is relevant to the review, the Secretary does not know how the IAA would go about its task of finding facts. He submitted that the word “relevant” refers to “material that could affect the IAA’s assessment of a claim, or the probability of claimed event having occurred, or the time when that event occurred”. Based on that formulation, all material which may have any impact on an assessment of the applicant’s claim would be relevant. To the extent that formulation is not inconsistent with the above discussion, so much may be accepted as accurate. However, the requirement is of what the Secretary considers will be relevant to the review and does not require any degree of prescience. The Secretary is not required to guess at what additional issues the applicant might seek to raise by way of new information or new claims. The consideration is based on the circumstances as they exist as at the date the decision is referred to the IAA.

107    It follows that, for the purposes of s 473CB(1)(c), the relevant material is that which is logically probative of the issues which arise on the applicant’s visa application as they appear at the date of referral. At the least, any material which tends to prove or disprove any of the issues would be relevant.

108    There is no need to consider in this case whether it can be said that information going solely to the character or credibility of a visa applicant would, per se, be relevant to a review. Here, the delegate had disbelieved the appellant in relation to key aspects of his claim on the basis of inconsistency between his original written statement and his oral statements during his Protection Visa interview. That being so, at the time of referral to the IAA his credibility was a significant issue in the visa application process. Any material which tended to establish or diminish the appellant’s credibility would be relevant and, in the present context, that would include any material which explained why his evidence was inconsistent.

The inference of a breach of s 473CB(1)(c) drawn from the documents

109    Having identified the scope of what was relevant to the review, the appellant submits that a consideration of the documents not provided to the IAA discloses that the Secretary must have failed to comply with s 473CB(1)(c). For this argument to succeed the appellant must establish two matters. First, that the document in question was relevant to the review. Secondly, that, at the time the decision was referred to the IAA, the decision not to give the document to the IAA manifested a legally erroneous view as to what is relevant under s 473CB(1)(c) or the decision was not reached reasonably on a correct understanding of the law. If it can be said that a reasonable justification exists for concluding that the documents were not relevant to the review, it cannot be said the section was contravened, even if the Court might have reached a different conclusion.

The email of 18 July 2013 and the departmental record of torture counselling

110    The appellant claims that the email of 18 July 2013 from a person in the Department approving the provision of six sessions of torture and trauma counselling was unequivocally relevant to the IAA’s assessment. He submits it was relevant to his claim that he had been tortured whilst in Joseph Camp, being a claim which the delegate disbelieved. He also claimed that a screenshot of the Department’s computer system recognising the granting of approval was equally relevant. It was submitted that these documents (which are referred to as the counselling documents) revealed “that the appellant was considered by one or more persons in the Minister’s Department to require torture and trauma counselling several months before the car accident which left him with a brain injury”. In other words, it is said that the requirement for counselling arose before the car accident and was, therefore, attributable to the alleged torture and not any trauma sustained in the car accident.

111    At the time when the Secretary was required to determine the relevance of the documents, being the time of the reference of the delegate’s decision to the IAA, it is plain that the appellant had raised claims of being tortured at Joseph Camp. His statement of 16 February 2016 included an assertion that he had been beaten there whilst being questioned. That undoubtedly amounts to torture and the Minister did not submit to the contrary. The delegate did not directly deal with this claim and seemed to confuse the several occasions of torture which the appellant had raised.

112    Nevertheless, given the issues advanced by the appellant to the delegate and the delegate’s reasons, it is apparent that whether the appellant was tortured was a matter which was relevant to the IAA’s review. So, the question becomes whether the counselling documents were relevant to the issue of whether he was, in fact, tortured.

113    The Minister submits that there is nothing which demonstrates the omission to provide the counselling documents to the IAA evidences a failure to comply with s 473CB(1)(c). He submits that it may well have been that the Secretary did not consider the documents to be relevant to the review because they did not add to, or shed any light upon, the appellant’s claim for protection. It was said that, of itself, the email does not identify the appellant’s personal circumstances and, in particular, the reasons why the counselling sessions were approved. There is nothing which suggests that the Department had evidence establishing the occurrence of torture apart from the allegations which the appellant may have made. In addition, there is nothing to suggest that the Department authorised the counselling sessions having accepted that the torture occurred. Those submissions can be accepted. The policies or guidelines on which the Department acted in authorising the counselling sessions are not before the Court and neither were any details of the manner in which the decision to approve the counselling was made. It may well be that the Department adopted what is referred to as a “trauma informed” approach to the appellant’s claim and acted only upon the allegation of torture rather than having reached any conclusion that the events actually occurred.

114    That being so, it is simply not possible to say that no person acting reasonably with a proper understanding of the obligation in s 473CB(1)(c) could have concluded that the counselling documents were not relevant. By themselves, they do not tend to prove the appellant was tortured. They could be seen to be neutral on that topic because there is nothing to explain how or why the counselling was approved. It would be open for a Secretary to speculate about their relevance but ultimately conclude that they do not tend to prove one way or another that the appellant had, in fact, suffered torture as claimed.

115    The Minister also submitted that it may well have been that the Secretary considered that, as at the date of referral to the IAA, the email did not add anything of substance to material that would otherwise have been before the IAA. That submission cannot be accepted. If the information in the counselling documents was to the same effect as the appellant’s statement that he was put in Camp Joseph and beaten, then it would have been corroborative evidence to that extent and, for that reason, would have been relevant.

116    The Minister further submitted that the Secretary may well have not regarded the email as being relevant because the issue to which it related had been determined in the appellant’s favour by the delegate. That should also be rejected. The delegate did not decide that issue in the appellant’s favour at all. His claim was that he was taken to Joseph Camp where he was detained over six days and beaten on a number of occasions. The delegate disbelieved him in that respect but found he had been taken to another camp referred to as the 74 Rehabilitation Camp. The appellant made two distinct claims about the camps in which he had been placed. The first was in relation to Joseph Camp where he claimed to have been beaten. The second occasion was at 74 Rehabilitation Camp though he did not claim to have suffered any harm there. It is quite clear that the delegate did not accept his claims to have been beaten over a number of days at Joseph Camp and the Minister’s submission to the effect that the issue of torture was decided in his favour by the delegate is apt to mislead. It follows that it is not possible to assume the Secretary legitimately considered the email to be irrelevant because the issue to which it related was found by the delegate in the appellant’s favour.

117    Even if the delegate had decided the issue of torture in favour of the appellant, given the IAA is required to undertake a de novo hearing, and it is not bound to accept the delegate’s findings, even those in the appellant’s favour, all material which tends to prove (or disprove) any aspect of the protection visa application would be relevant.

118    Next, the Minister submitted that the Secretary may have considered that at the time that approval was given for the counselling sessions, being 18 July 2013, the only allegation that had been advanced by the appellant was that he had been detained at Joseph Camp and the delegate found that he had been detained, albeit in Camp 74, and so had determined the matter in the appellant’s favour. That submission also ought to also be rejected. The allegation advanced by the appellant was that he was interned in Joseph Camp and that was not accepted by the delegate. In addition, it is clear that the submission advanced at the SHEV interview was that the appellant had been tortured (see AB 191) and the delegate had determined that had not occurred. The Minister’s submission in this respect is both factually wrong and founded upon distinctions which do not exist.

119    That which has been said in relation to the email applies equally to the departmental recording of the receipt of that email and its contents.

120    Despite some of the submissions advanced on behalf of the Minister, the initial submission has validity. That is, the counselling documents have no probative relevance to the issues on review. They neither tend to prove nor disprove the appellant’s claim to have been detained at Joseph Camp and to have been beaten on a number of occasions. True it is that they may be made relevant to the question of whether the appellant was tortured if they were combined with other evidence, but such evidence does not exist and none has been identified. At its highest, all that can be said is that, when the decision was referred to the IAA, the documents may have been relevant.

121    It can also be observed that, even if one reached the conclusion that the documents were relevant, it is not possible to reach the conclusion that the contrary decision of the Secretary was not reached reasonably and on a correct understanding of the law. The question of the probative relevance of the document is something on which reasonable minds might disagree. The documents relating to the counselling are not so obviously relevant that it can be said that the decision was unreasonable. As identified above, there is a logical path to the conclusion that they do not tend to prove that the appellant was tortured in Sri Lanka.

The PAIS scheme documents

122    The appellant also claimed that the documents concerning his eligibility for the PAIS scheme ought to have been given to the IAA because they were relevant to the review. The documents identified in this respect were the email of 13 April 2014 and corresponding departmental record concerning the car accident in which the appellant was involved as well as the PAIS eligibility criteria (collectively referred to as “the PAIS documents”).

123    In the first instance the appellant submitted that such documents evidenced that he had been traumatised to such an extent that he required assistance under the PAIS scheme and this was relevant because it supported his claims of having been tortured which the delegate had rejected. There are a number of difficulties with that submission. Whilst it is true that the eligibility criteria in the PAIS guidance document indicate that the service can be provided to persons who have suffered torture and trauma, they also indicate that the service may be provided to persons who have sustained brain injuries which impact on their cognitive functioning through, inter alia, accident. There seems to be no doubt that the provision of assistance via the PAIS scheme followed the appellant suffering a brain injury consequent upon a serious car accident. Further, there is nothing in the material to indicate whether the provision of the PAIS service resulted from an assumption that he had been tortured or because he had suffered cognitive disabilities as a result of the accident. In that respect the document tends to neither prove nor disprove any of the appellant’s claims of torture and they are not relevant in that respect.

124    However, the appellant also submits that the documents were relevant to his cognitive dysfunction and his inability to give evidence in a logical and coherent manner and, as such, they were self-evidently relevant to the IAA’s review. That submission has substantial merit. The review conducted by the IAA is of a wide scope and the matters relevant to its assessment would include the credibility of the applicant and their evidence. That credibility is assessed, in part, by evaluating the manner in which the applicant gives evidence as well as the coherency and consistency of that evidence. Only those wholly unfamiliar with the way in which the Minister’s delegates and the IAA consider visa applications would conclude that the manner in which a visa applicant presents their evidence was not relevant. Credibility is relied upon in nearly every case and frequently, if not usually, is central to the outcome of the application. Here, the delegate disbelieved the appellant due to the inconsistencies between the evidence he provided on his initial application and that which he provided subsequent to his car accident. The delegate did not mention either the occurrence of the car accident nor its sequelae despite the fact that the accident was obviously very serious and his brain injuries were likely to impede the appellant’s ability to give coherent evidence.

125    It is apparent that the impact of the car accident or of the alleged torture put the appellant in a unique position whereby he was entitled to the benefits of the PAIS scheme. His eligibility for that scheme was indicative of a diminished cognitive function which would most likely have hindered his ability to give coherent and consistent evidence. Relevantly, the delegate had found the appellant lacked credibility because his evidence was inconsistent. That being so, the reports of his car accident and the PAIS eligibility criteria were obviously and unequivocally relevant to the review which the IAA was to undertake. It necessarily follows that the conclusion that they were not relevant was a decision that was not reached reasonably on a correct understanding of the law. It follows that there was a contravention of s 473CB(1)(c) in the failure of the Secretary to provide the PAIS documents to the IAA.

Did any breach generate jurisdictional error?

126    The next question is whether, assuming the Secretary breached s 473CB(1)(c) by failing to give relevant documents to the IAA, the IAA’s decision was infected with jurisdictional error. The Minister submitted that even if the Secretary failed to comply with the statutory obligation to give relevant documents to the IAA, such an error was immaterial and did not generate any jurisdictional error.

127    There has been considerable movement as to the precise nature of the types of error occurring in an administrative process which amount to a jurisdictional error. In Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at 788 the test of materiality was identified by Kiefel CJ, Gageler and Keane JJ as being that a breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision. In that case, Edelman J took a slightly more robust approach by identifying at [72] “an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power”. These ever-so-slight variants were combined in Nobarani v Mariconte (2018) 92 ALJR 806 at [38] where, in a different context, the Court (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ) identified a different test for jurisdictional error being one where it would “deprive the party of the possibility of a successful outcome”.

128    Whether there is any difference between those approaches need not be considered. In Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252, which was handed down on the day on which the present appeal was argued, a majority of the Court (Bell, Gageler and Keane JJ) identified that an Act is not to be interpreted to deny legal force to a decision made in breach of a limitation on power unless that breach is material. As to the question of materiality their Honours said:

Materiality

45 Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

46 Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

129    The minority, Nettle and Gordon JJ, were of the opinion that the question of materiality did not go to the issue of whether non-compliance with a statutory limitation amounted to a jurisdictional error. Their Honours considered that it went to the question of whether the discretion to refuse relief despite non-compliance would be exercised.

130    The decision in SZMTA is the most recent statement by the High Court on this issue and may have settled it, at least for the time being. For the purposes of the present matter, in ascertaining whether any non-compliance with a statutory obligation amounted to a jurisdictional error the failure to give a relevant document to the IAA has to be a material breach in that the giving of the document could realistically have resulted in the visa being granted.

131    In the course of the hearing reference was made to the recent decision of this Court in EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 delivered on 11 February 2019, however, the comments made therein relied on the decision in Hossain and have been overtaken somewhat by SZMTA.

The PAIS documents

132    The appellant submits that had the PAIS documents been provided to the IAA his claim that he had suffered a brain injury and cognitive dysfunction as a result of a serious car accident might have been fortified. He further says that had that been accepted it would have explained his inability to provide coherent answers and accurately identify relevant dates and his credibility would not have been adversely affected. However, the difficulty with this submission is that the IAA accepted that he had been injured in a car accident which resulted in a brain injury that presented challenges for him in effectively putting forward his claims for protection in a consistent manner (at [25]) and it took this into account when assessing his claims and his evidence (at [30]). The appellant’s perceived disabilities were given particular consideration by the IAA when accepting his claims of having been interned in Joseph Camp and beaten and where he claimed that he had been abducted by CID personnel using white vans (at [33]).

133    There is nothing in the PAIS documents which suggest that the level of cognitive disability which might be assumed to exist from a consideration of those documents was greater than the impact of the accident accorded to the appellant in the IAA’s reasons. It was prepared to accept that his impairment could account for the discrepancies and inconsistencies in his evidence and, in doing so, accepted critical parts of his claim which the delegate had not. The appellant has not identified any aspect of his substantive claim which may have been decided differently had the PAIS documents been before the IAA and none can be detected. It follows that it is not possible to see how the additional information could realistically have resulted in a different outcome.

134    However, the appellant further says that the receipt of the PAIS documents could realistically have made a difference to the result of his request to the IAA to accept new information, being his claim that he was a member of and participated in the activities of the LTTE. He submitted that the documents would go to the “exceptional circumstances” in which that claim was now advanced because his brain injuries would have explained his failure to advance this new claim before the delegate. However, the IAA took into account his brain injuries when considering whether exceptional circumstances existed and identified why the existence of such injuries would not support an argument that exceptional circumstances existed. In particular it observed that in the appellant’s entry interview, which occurred before the car accident, he had denied that he had been involved with the LTTE. At paragraphs [8] and [9] the IAA found:

8.    I also place weight on the fact that in his entry interview the applicant answered no to the questions whether he had ever participated in armed conflict or fighting or ever received training in preparation for conflict and stated under oath in his SHEV interview that while he had worked for the LTTE, he had never been a member of the LTTE.

9.     I note the applicant was in a car accident and claims that he suffered a brain injury as a result which may impair his ability to recall dates. I am not satisfied that any injury he has suffered would account for his failure to mention this additional claim at all and the applicant has not asserted that it has. Taking all of the above circumstances into consideration, I am not satisfied that exceptional circumstances exist to justify considering the new information.

135    It follows that, to the extent to which the PAIS documents were relevant to any issue, those issues were found in the appellant’s favour and the exclusion of those documents could not realistically have had any material impact on the outcome of the decision making process.

The counselling documents

136    Although it has been determined that the counselling documents were not relevant and no error occurred by the failure of the Secretary to refer them to the IAA under s 473CB(1)(c), even if they ought to have been referred, no jurisdictional error would have occurred. To the extent to which the email of 18 July 2013 from the Department authorising the six torture and trauma counselling sessions (and possibly the PAIS documents) was relevant to the appellant’s claims of torture, such claims were accepted by the IAA. It accepted he had been taken to Joseph Camp in 1999, detained for six days, and beaten on more than one occasion. Again, the issue to which the disputed documents went was determined in his favour. There is nothing in the counselling documents which suggest that any additional finding in relation to the torture would have been made or advanced the appellant’s case.

137    Nor could it be said that the Departmental email relating to torture and trauma counselling could have had any impact on the conclusion that the appellant suffered a brain injury which affected his ability to effectively put forward all his claims for protection. That claim was not actually advanced but, in any case, the IAA accepted the existence of a cognitive dysfunction which inhibited the presentation of claims by the appellant.

138    At paragraph [27] of his written submissions the appellant claimed that the counselling documents would have founded exceptional circumstances for considering the appellant’s “new claim” that he had been a member of the LTTE and he was at risk of harm upon return to Sri Lanka. Just how the documents would have added to the compelling circumstances is not apparent. The IAA had accepted the appellant’s assertion that he had been tortured as he claimed and that must have been in its mind when considering whether to allow the new information concerning the claim that the appellant had actually been a member of the LTTE. As the Minister accurately submits, on no view could the fact that the appellant was approved for torture and trauma counselling sessions in 2013 alter the conclusion that there were no exceptional circumstances to justify the consideration of a new claim.

No material non-compliance existed

139    It follows that, even if one were to assume that the Secretary had failed to comply with s 473CB(1)(c) by omitting to provide the disputed documents to the IAA, it cannot be said that it has denied the appellant the realistic possibility of a different outcome.

Conclusion

140    It follows that the appellant has not established the existence of any jurisdictional error which might vitiate the IAA’s decision. Even though the Secretary failed to provide the IAA with all of the relevant documents, any such error had no impact and could not realistically have denied the appellant the possibility of a different outcome.

141    Consequently the appeal must be dismissed with costs.

Associate:    

Dated:    15 April 2019