FEDERAL COURT OF AUSTRALIA

BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 171

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal is dismissed.

3.    The appellant is to pay the costs of the first respondent, as agreed or assessed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2.    The appeal is dismissed.

3.    The appellant is to pay the costs of the first respondent, as agreed or assessed.

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

REASONS FOR JUDGMENT

THE COURT:

1    Before the court are two appeals, each from judgments of the Federal Circuit Court of Australia (hereafter, the “FCCA”). By each, the appellants—a father (BJK17—hereafter, the “Father”) and his son (BJJ17—hereafter, the “Son”)—charge the FCCA with having erred by dismissing with costs applications that each had made to that court for prerogative relief under s 476 of the Migration Act 1958 (Cth) (hereafter, the “Act”): BJK17 v Minister for Immigration & Anor and BJJ17 v Minister for Immigration and Border Protection & Anor [2019] FCCA 561 (Judge Wilson). Those applications (collectively, the “Judicial Review Applications”) challenged decisions of the second respondent (hereafter, the “Authority”), which collectively affirmed an earlier decision of a delegate of the first respondent (hereafter, the “Minister”) not to grant the appellants safe haven enterprise visas.

BACKGROUND

2    The Father and Son are both citizens of Sri Lanka. Both hail from its capital, Colombo, and are of Tamil ethnicity. Both arrived in Australia on 10 September 2012 as unauthorised maritime arrivals (within the meaning attributed to that phrase by s 5AA of the Act).

3    On 16 October 2015, the Father applied for a safe haven enterprise visa (hereafter, the “Visa Application”). In support of that Visa Application, the Father contended that, if returned to Sri Lanka, he faced relevant persecution or harm because of any one or more of:

(1)    his Tamil ethnicity;

(2)    political beliefs likely to be imputed to him on account of that ethnicity and/or his history of association with members of the Liberation Tigers of Tamil Eelam (or “LTTE”)—and, more specifically, what he claimed was the tendency of Sri Lankan authorities to mistreat those who hold beliefs sympathetic to or supportive of the LTTE;

(3)    his susceptibility to serious injury arising from some kidney problems that he suffered, and related surgery that he underwent, in 2014; and

(4)    his having left Sri Lanka illegally.

4    The Son was named as a secondary applicant on the Visa Application. He claimed to be entitled to a safe haven enterprise visa as a member of his Father’s family unit, and also on account of his Tamil ethnicity and the likelihood that Sri Lankan authorities would attribute to him political beliefs sympathetic to or supportive of the LTTE (whether because of his ethnicity or his association with the Father).

5    On 27 January 2016, a delegate of the Minister interviewed the Father in connection with the Visa Application (hereafter, the “Delegate Interview”). That interview occurred with the assistance of a Tamil interpreter. There are three aspects of it that warrant noting.

6    First, it appears that the Delegate Interview commenced before the audio recording equipment was activated, such that a portion of it (at its commencement) was not recorded. During that non-recorded period, the Father spoke of the health concerns that he had endured over recent years—a topic to which the parties later returned (and that was addressed in written material advanced on his behalf before the Minister’s delegate). The Father was told that the recording was not active for a time at the commencement of the Delegate Interview and so was invited to—and did—address the delegate on the medical issues upon which he relied.

7    Second, there appeared to be at least some irregularities (or potential irregularities) with the standard of interpretation. The transcript of the Delegate Interview (which was in evidence before the FCCA and this court) discloses that the interpreter was not “an accredited Tamil interpreter”. With which body he was not accredited is not clear (and nothing turns upon it in any event). The most likely candidate is the National Accreditation Authority for Translators and Interpreters (or “NAATI”). Regardless, during the course of the Delegate Interview, the Father’s representative had occasion to raise with the delegate whether or not there were things said to or by him that went improperly interpreted. She indicated that the Father appeared to be having some difficulty understanding the interpreter’s Tamil dialect (a circumstance that she appears to have inferred from his occasional indications that there were things that he didn’t understand). The Father confirmed that he could understand the interpreter but, because he understood that the Delegate Interview was important, he wanted to be certain that he understood what was being said (which occasionally required repetition or checking). The Father was told—and apparently understood—that he should feel free to ask for clarification whenever he needed it. Those exchanges occurred toward the beginning of the Delegate Interview and there did not appear to be any other irregularities with the interpretation service thereafter.

8    Third, during the Delegate Interview, the Father showed the delegate some scarring that he had on his abdomen, which he claimed was a result of the kidney problems and surgery upon both of which he relied as to why he should be granted a safe haven enterprise visa.

9    On 21 October 2016, a delegate of the Minister dismissed the Visa Application, thereby declining to grant either the Father or the Son a safe haven enterprise visa. That decision (hereafter, the “Delegate’s Decision”) was then referred to the Authority for review in accordance with s 473CA of the Act (hereafter, the “IAA Review”).

10    Before the IAA Review was completed, the Son (through his representative) indicated to the Authority that he wished to raise a new ground upon which he hoped to be granted a safe haven enterprise visa (or upon which he asked the Authority to remit the Visa Application for reconsideration by the Minister). He indicated that he was sexually attracted to men, a circumstance that he had hitherto not disclosed to his Father. He contended that homosexuality was frowned upon in Sri Lanka—particularly throughout its Tamil population—and that, accordingly, he could not return without facing the prospect of relevant persecution or harm. Apparently in light of the sensitivity attaching to that newly-disclosed issue, he requested that the Authority issue separate decision records for him and his Father.

11    For reasons not immediately apparent (or material), the Son’s homosexuality appears to have been disclosed to the Father ahead of the IAA Review. The Father sought also to rely upon it as a further basis upon which he should be granted a safe haven enterprise visa: like his Son, he contended that homosexuality was frowned upon in Sri Lanka (and particularly by its Tamil population) and that he would be blamed or otherwise subjected to relevant persecution or harm for having raised a gay son.

12    Additionally, the Father provided to the Authority some photographs of his stomach, which bore the scars of some surgery that he had undergone in 2014.

13    As it had been requested to, the Authority issued separate decision records for each of the Father and the Son. In both cases (hereafter, the “Father’s Review Decision” and the “Son’s Review Decision”—collectively, the “Review Decisions”), the Authority upheld the Delegate’s Decision.

14    By the present appeals, the Review Decisions are said to have been the product of jurisdictional error, which this court is asked to correct on appeal through the grant of prerogative relief.

THE STATUTORY FRAMEWORK

15    Section 5 of the Act relevantly defines a “fast track applicant” and a “fast track decision” as follows:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014…; and

(iii)    who has made a valid application for a protection visa…

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant…

16    Section 5AA defines what is meant by the phrase “unauthorised maritime arrival”. It is not in doubt in either appeal that the appellants qualified as such.

17    Section 35A defines what is meant by the phrase “protection visa”:

  (1)    A protection visa is a visa of a class provided for by this section.

…

(3A)    There is a class of temporary visas to be known as safe haven enterprise visas…

18    It follows that the appellants are (and were) each fast track applicants and that the Delegate’s Decision was a fast track decision. Subject to presently irrelevant exceptions, Pt 7AA of the Act provides for a framework pursuant to which fast track decisions are to be reviewed. Relevantly, it provides for:

(1)    the automatic referral to the Authority of fast track decisions (s 473CA);

(2)    a corresponding obligation, conferred upon the Authority, to review what is referred (s 473CC);

(3)    the provision to the Authority of certain material relevant to fast track decisions that are referred to it for review (s 473CB);

(4)    the abolition, in relation to decisions referred to the Authority for review, of what would otherwise be the requirements of the natural justice hearing rule (s 473DA);

(5)    an obligation, conferred upon the Authority, to conduct any such review on the basis of the material provided to it under s 473CB (473DB);

(6)    the procurement of “new information” (s 473DC); and

(7)    the limited circumstances in which regard may be had to any new information so procured (s 473DD).

19    The latter two provisions are of relevance to the present appeals. Sections 473DC and 473DD provide as follows:

473DC   Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

   (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD   Considering new information in exceptional circumstances

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.

THE REVIEW DECISIONS

20    Prior to determining the substantive aspects of the IAA Review, the Authority considered what it might make of the information with which it had been furnished (in particular, information pertaining to the Son’s sexuality and the photographs of the Father’s abdominal scarring).

21    The Authority concluded that the Son’s recently-disclosed homosexuality qualified as “new information” under s 473DC(1) of the Act. It then set about considering to what extent it might take account of that information under s 473DD of the Act. Insofar as concerned the Father, it determined that the Son’s sexuality was information that he could not have disclosed to the Minister (because it was, at that time, unknown to him) and that there were exceptional circumstances that justified its being considered. Insofar as concerned the Son, it determined that there were not exceptional circumstances that warranted its consideration because his sexuality had always been known to him and there was no credible explanation for why he had waited until after learning of the Delegate’s Decision to raise it.

22    The Authority also concluded that the photographs of the Father’s abdominal scarring amounted to “new information”. Again, it concluded that those photographs could have been provided earlier than they were; and that there were no exceptional circumstances to justify their consideration.

23    The Authority considered the remainder of the grounds advanced by both the Father and the Son as to why they should be granted safe haven enterprise visas. None of that reasoning arises for consideration on either of the present appeals.

THE DECISION OF THE FCCA AND THE PRESENT APPEALS

24    By their Judicial Review Applications, the Father and the Son alleged that the Review Decisions were the product of jurisdictional error. Various instances of jurisdictional error were alleged. It is not necessary to here set them out, save to note that they included all of the species of error that are contemplated by the grounds that are advanced in the present appeals.

25    The FCCA did not accept that either of the Review Decisions was tainted by any of the various instances of jurisdictional error alleged by the Judicial Review Applications. By the present appeals, the FCCA is said to have erred by not accepting that the Review Decisions were so tainted. That being so, it is not necessary to recite the conclusions of the FCCA: if it is the case that neither of the Review Decisions was the product of jurisdictional error as alleged, then the FCCA will have been correct to have so decided and the appeals will fail; if the Review Decisions were attended by that species of error, then the FCCA will have erred by concluding otherwise and the appeals will succeed. Either way, it is upon the Review Decisions that this court’s attention must focus.

26    By his notice of appeal, the Father sought to advance six grounds of appeal. Four were later abandoned. The following grounds were pressed (particulars omitted):

1.    The Federal Circuit Court erred in failing to find that the IAA had fallen into jurisdictional error by treating the images of the appellant’s abdominal scarring as new information and excluding them from its review.

…

6.    The Federal Circuit Court erred in failing to find that the IAA had fallen into jurisdictional error by unreasonably failing to consider exercising its power under s 473DC(3) of the Migration Act to invite the appellant to an interview or get new information from the appellant in some other form.

27    The Son, by his own notice of appeal, adopted those grounds and added another (particulars omitted):

…

2.    The Federal Circuit Court erred in failing to find that the refusal of the IAA to consider new information, namely the appellant’s claim to fear harm in Sri Lanka on the basis of his homosexuality, was unreasonable in the circumstances, or alternatively, contrary to statute.

28    On 3 June 2019, a registrar of the court ordered that the two appeals be heard together. For the reasons that follow, we reject all three of the grounds that were collectively advanced and dismiss both appeals with costs.

BJK GROUND 1: RECEIPT OF ABDOMINAL SCARRING PHOTOGRAPHS

29    The Father contends that the photographs of his abdominal scarring, which he supplied to the Authority ahead of the IAA Review, did not constitute “new information” under s 473DC(1) of the Act (as the Authority concluded). That being the case, he continues, they formed part of the narrative that he advanced as to why he ought to be granted a safe haven enterprise visa. The Authority, he says, was obliged to consider what he advanced and its failure to do so amounts to jurisdictional error. By his first appeal ground, he charges the FCCA with having erred by concluding otherwise.

30    There is scope to doubt whether the photographs amounted to “new information”. It was not in question that the Minister’s delegate was shown, in person, the Father’s abdominal scarring. The information conveyed to him in person was, if not the same, then at least very closely related in nature to the information conveyed by the photographs. Both purported to (and, presumably, did) communicate the nature and extent of the Father’s abdominal scarring. That being so, the Father’s contention that the photographs were not “new information” is superficially attractive.

31    It might be slightly less so in light of the fact that the photographs were taken many months after the Minister’s delegate’s visual inspection of the Father’s abdominal scarring. A visual observation of a particular state of affairs made at a particular point in time might not assimilate the same information as an equivalent observation at a later point in time. The information conveyed to the Minister’s delegate (by means of his visual inspection) might more specifically be characterised as the nature and extent of the Father’s abdominal scarring at that point in time. A photograph of the scarring taken at some other point in time might not convey the same information.

32    As interesting as that question might be to ponder, it is not one that requires further analysis. This ground can be dismissed on the safer and more immediate footing that the error it bespeaks (if there was one) was not material to the Father’s Review Decision.

33    Obviously enough, the Father sought to highlight his abdominal scarring in order to underline his vulnerability to mistreatment in Sri Lanka (which, he said, was a function of the kidney problems that he experienced and the surgery that he underwent in 2014). In the Father’s Review Decision, the Authority accepted:

…that the [Father] has experienced significant health issues since undergoing surgery for a serious medical condition in 2014 and that his current condition means that he will probably require ongoing medical attention and support.

34    It then noted the Father’s submission that:

…his condition renders him particularly vulnerable to serious and significant harm under interrogation and/or detention on return.

35    Later, the Authority noted again the submission advanced on the Father’s behalf that:

…given his medical condition, even a short period of imprisonment as an illegal departee will cause the applicant serious and significant harm given the poor conditions.

36    Taking account of available country information, the Authority then went on to consider Sri Lankan prison conditions, and the likelihood and severity of any mistreatment to which the Father might be subjected were he to return (and were he to be temporarily remanded in prison for having left the country unlawfully). It found that there was not:

…a real chance of [the Father] being subject to torture or other mistreatment, including by inmates, while on remand.

37    Assuming momentarily that the Authority’s characterisation of the photographs as “new information” was an error, it will only qualify as jurisdictional error if it was material: Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780, 788 [29]-[31] (Kiefel CJ, Gageler and Keane JJ), 790 [46] (Edelman J); Minister for Immigration and Border Protection v SZMTA (2019) 93 ALJR 252 (“SZMTA”), 257 [2]-[4], 263-264 [45]-[50] (Bell, Gageler and Keane JJ), 271-272 [89]-[95] (Nettle and Gordon JJ). In order to clear that hurdle, the Father needed to demonstrate that the error was one whose absence might have resulted in a different outcome: SZMTA, 263 [45] (Bell, Gageler and Keane JJ).

38    The photographs (which were in evidence before both the FCCA and this court) depict no more than what the Authority readily accepted: namely, that the Father had endured what appeared to be significant medical difficulties in the past. There is no prospect that the Authority might have decided anything differently had it taken account of the Father’s photographs. Even assuming that it erred by characterising them as “new information”—itself a proposition open to doubt—that error was immaterial to the result.

39    This appeal ground fails on that basis.

BJK GROUND 6: FAILURE TO GET NEW INFORMATION

40    By his alternative appeal ground, the Father charges the Authority with jurisdictional error manifest in its refusal to exercise, or to consider exercising, the power conferred upon it by s 473DC(3) of the Act to get “new information”. That failure, it is said, was legally unreasonable, in the sense identified by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (“Li”) (French CJ, Hayne, Kiefel, Bell and Gageler JJ). So the contention continued, that failure bespoke jurisdictional error on the part of the Authority; and the FCCA was said to have erred insofar as it concluded otherwise.

41    Powers conferred by statute must, ordinarily, be exercised reasonably: Li, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). The power conferred upon the Authority by s 473DC to get “new information” is subject to that requirement: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 (“M174”), 607 [21], 613 [49], 618 [71] (Gageler, Keane and Nettle JJ), 620-621 [86] (Gordon J), 624 [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 366 ALR 665 (“DPI17”), 667 [36] (Griffiths and Steward JJ), 689 [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310, 328 [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed).

42    In DPI17, this court considered the boundaries of legal unreasonableness within which the Authority is constrained when exercising power under Pt 7AA of the Act. Griffiths and Steward JJ, referring to the plurality judgment in M174, listed (at [35]) six relevant propositions, namely that:

(1)     as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);

(2)     the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);

(3)     the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);

(4)     the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);

(5)     although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and

(6)     s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).

43    Their Honours then (at [37]) added a further four observations on that theme:

…First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.

44    The issue, in the present case, is whether the Authority’s failure to get, or consider getting, “new information” was outside of its “decisional freedom”: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ). If the only course reasonably available to the Authority in the circumstances that confronted it was to get or consider getting new information from the Father, then its failure to do so will bespeak legal unreasonableness and its ultimate decision might be impugned as the product of jurisdictional error. The task, as Thawley J put it in CCQ17 (at [51]), is to:

…evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

45    The Father contends that there were three matters that left the Authority with no reasonable option other than to invite him to provide further information. The first was that the audio recording of the Delegate Interview was incomplete (or did not contain a recording of matters that were discussed before the recording commenced—above, [6]). The second concerned the interpretation difficulties that presented during the Delegate Interview (above, [7]). The third was the fact that the Father advanced a new ground in support of his Visa Application, founded upon his Son’s newly-disclosed homosexuality.

46    The first of those matters can be swiftly disposed of. The transcript of the Delegate Interview makes clear that the Father was told that there were things that were said when the interview commenced that had not been recorded; and that he was invited to address them again if he wished to do so. He proceeded to discuss the health concerns that were said to have been the subject of discussion before the recording commenced. There is no reason why the Authority, having heard that exchange, should nonetheless have been compelled to form the view that it should investigate for itself whether there was any other information of which it ought to be aware for the purposes of its review.

47    The second of the three matters is similarly without consequence. We reject the Father’s submissions that “[t]here were substantial difficulties with the interpreter”. As the summary that appears at [7] above makes clear, the interpretation issues that arose at the Delegate Interview were minor. There is nothing in the transcript that suggests—much less ought to have compelled the Authority to conclude—that the Father laboured under any difficulty that materially impaired his ability to understand or convey what was to be understood or conveyed: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6, 18 [24] (Kenny J). Similarly, the fact that the interpreter was not NAATI-accredited (or not otherwise accredited, as the case may be) is not, in and of itself, something that ought necessarily to have warranted concern in the mind of the Authority that the interpretation provided at the Delegate Interview was below the standard that it should have met: SZSUT v Minister for Immigration and Border Protection [2015] FCA 190, [48] (Katzmann J); CPN16 v Minister for Home Affairs [2018] FCA 872, [65]-[67] (Kerr J). In neither circumstance could it be said that the Authority, acting reasonably, could have reached no other conclusion than that the standard of interpretation was such that the Father should be invited to provide new information.

48    The third and final matter is also of no moment. The Father raised his Son’s homosexuality by means of a submission provided to the Authority on 3 December 2016. In that submission, he explained his fears that:

…he will be held responsible by his family, the broader community and the authorities for his son returning to Sri Lanka as a homosexual as he brought his son to Australia where he has been influenced…[and that he fears] being physically and psychologically harmed by family, community and police as a result of fathering a gay son.

He also asserted that he would be “…perceived as responsible for his son being influenced to homosexuality in Australia and [was] at risk of serious harm as a result”. He relied upon country information “…detailing severe discrimination against homosexuals in Sri Lanka, particularly within the Tamil community”. Those submissions having been made, it is not apparent what other new information it is said that the Authority ought to have felt compelled to obtain.

49    The matters upon which the Father relies, individually or in combination, are not such that the only course reasonably open to the Authority was to invite, or consider inviting, the provision of additional information. The Authority was obliged to discharge its function in a manner consistent with the statutory objective of providing a mechanism of limited review that was (amongst other things) efficient and quick: the Act, s 473FA(1). It may well be that the Authority, had it been so inclined, could have turned its mind to whether it ought to exercise its discretion to get new information concerning any one or more of the three factors that the Father here highlights. Its failure to do or consider doing so, though, cannot be impugned as plainly unjust, arbitrary, capricious, irrational, or lacking in evident or intelligible justification. It was within the Authority’s “decisional freedom”.

BJJ GROUND 2: NEW INFORMATION CONCERNING THE SON’S SEXUALITY

50    In addition to his reliance upon the grounds advanced by his Father, the Son also charged the Authority with jurisdictional error arising from its refusal to consider the “new information” provided to it about his recently-disclosed homosexuality.

51    That refusal was said to constitute jurisdictional error in two alternative ways. First, it was said to have been contrary to the requirements of Pt 7AA of the Act, in that it proceeded upon the incorrect assumption that the Authority was reviewing two decisions. The Son maintained that the Authority was called upon to review only a single decision; and that it was not open to the Authority in that circumstance to consider the information about his homosexuality only insofar as concerned his Father. Alternatively, it was said that the Authority’s refusal to consider that information vis-à-vis the Son was legally unreasonable.

52    We address each contention.

How many decisions were there?

53    The short answer is: two.

54    As a species of protection visa, the criteria that condition that grant of safe haven enterprise visas find expression in s 36 of the Act, which relevantly provides as follows:

(1A)    An applicant for a protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and

(b)    at least one of the criteria in subsection (2).

(1B)    A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).

(1C)    A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

   (a)    is a danger to Australia’s security; or

(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

Note:    For paragraph (b), see section 5M.

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

     (i)    is mentioned in paragraph (a); and

(ii)    holds a protection visa of the same class as that applied for by the applicant; or

(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

     (i)    is mentioned in paragraph (aa); and

(ii)    holds a protection visa of the same class as that applied for by the applicant.

…

55    In order that they might be granted safe haven enterprise visas, each of the Father and the Son had to establish that he satisfied one or more of the criteria for which s 36(2) of the Act makes provision. By the initial Visa Application, it was said that the Father satisfied one or both of paras (2)(a) or (aa). The Son was said to qualify under para (2)(b)—or, more accurately, it was put that he would so qualify once his Father was granted a visa. Additionally, each needed to establish that he did not pose a risk of the kinds to which ss 36(1B) and (1C) of the Act refer.

56    When assessing the Visa Application, it was incumbent upon the Minister (via his delegate) to assess each applicant’s satisfaction of the applicable criteria. In the case of the Father, that involved assessing whether he was a refugee, or was otherwise at real risk of subjection to significant harm if returned to Sri Lanka. In the case of the Son, it involved assessing whether he was a member of the Father’s family unit. Additionally, both needed to establish that they satisfied the requirements provided for by ss 36(1B) and (1C) of the Act. Although the Son’s entitlement to a safe haven enterprise visa was heavily dependent on the success of his Father’s application, it was not the case that he would automatically be granted one if his Father was.

57    The fact that the Minister (via his delegate) considered and ruled upon the eligibility of both applicants by means of a single decision record is of no moment: Basra v Minister for Immigration and Border Protection [2018] FCA 422, [36] (Moshinksy J). It remains the case that doing so necessarily required two decisions: first, that the father was neither a refugee nor at real risk of subjection to significant harm if returned to Sri Lanka; and, second, that the Son was not a member of the same family unit as someone who was. Both qualified as fast track decisions and both were the subject of automatic review pursuant to s 473CA of the Act.

58    That being so, it was not contrary to the scheme for which Pt 7AA of the Act provides for the Authority to consider the Son’s newly-disclosed homosexuality only insofar as concerned the Father.

Was the refusal legally unreasonable

59    The principles that guide the detection of legal unreasonableness in Pt 7AA cases have already been stated (above, [41]-[44]).

60    At issue is whether it was legally unreasonable for the Authority to not consider “new information” about the Son’s homosexuality in circumstances where it did consider that same information insofar as it affected his Father.

61    In short, it was not. It was open to the Authority to not be satisfied, vis-à-vis the Son, that there were exceptional circumstances that warranted consideration of the new information about his sexuality. Absent such satisfaction vis-à-vis the Son, the Authority was obliged not to consider the information: the Act, s 473DD(a).

62    What constitutes “exceptional circumstances” will depend upon the circumstances prevailing in any given case. The term is given a broad meaning, encompassing circumstances that are unusual or out of the ordinary: Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581, 591 [51] (Dowsett, Greenwood and Collier JJ). The matters that can inform the Authority’s satisfaction as to the existence of “exceptional circumstances” under s 473DD(a) may overlap with the considerations to which s 473DD(b) gives voice: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111, 144 [102]-[104] (Kenny, Tracey and Griffiths JJ).

63    The Authority was entitled to conclude that the Father and the Son were in different positions insofar as concerned the new information about the Son’s homosexuality. Given that he had not known about it, the Father had not previously been in a position to advance his Son’s sexuality in support of his Visa Application. The Son, on the other hand, laboured under no such difficulty. The Authority was entitled to question why the Son waited until he did to raise his sexuality as a possible ground upon which he might be granted a safe haven enterprise visa; and to conclude that his explanation in that regard was unsatisfactory. Those were matters of which it was entitled to take account in forming the state of satisfaction that it formed about the existence of relevant “exceptional circumstances”.

64    That being so, the Authority’s failure to be satisfied that there were exceptional circumstances that warranted consideration of the relevant new information vis-à-vis the Son cannot be impugned as plainly unjust, arbitrary, capricious, irrational, or lacking in evident or intelligible justification. It was within the Authority’s “decisional freedom”.

The new information

65    The Authority’s refusal to consider the Son’s homosexuality in the context of his application for a safe haven enterprise visa was not reflective of jurisdictional error. This ground of appeal fails for that reason.

CONCLUSION

66    None of the grounds in either appeal is made out. Both appeals are dismissed with costs.

Associate:

Dated:    11 October 2019