FEDERAL COURT OF AUSTRALIA

AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222

ORDERS

THE COURT ORDERS THAT:

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

2.    Within seven days, the parties file any agreed minute of orders to give effect to the reasons for judgment and in relation to costs (both of the proceeding at first instance and the appeal).

3.    If the parties cannot agree, then within a further three days each party file and serve a minute of proposed orders together with a written submission (of no more than two pages) in support of those orders.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The issue raised by this appeal concerns the duty imposed on the Secretary of the Department of Home Affairs (the Secretary) by s 473CB(1)(c) of the Migration Act 1958 (Cth) to give to the Immigration Assessment Authority (the Authority), in respect of a fast track reviewable decision referred to the Authority, “any other material that is in the Secretary’s possession or control and is considered by the Secretary … to be relevant to the review”.

2    The facts giving rise to the appeal can be briefly stated as follows. In January 2013, the appellant, a Sri Lankan citizen who had arrived by boat in Australia, provided certain documents to the Department. These included two documents relating to a complaint to the Human Rights Commission of Sri Lanka (the Human Rights Documents). The Department saved the documents in an electronic client file that had been created for the appellant in 2012 (the 2012 Client File).

3    In 2015, another electronic client file for the appellant was created within the Department’s document management system (the 2015 Client File). In 2016, the appellant applied for a Safe Haven Enterprise visa, a form of protection visa. The Human Rights Documents were not provided with the application. The visa application was considered by a delegate of the first respondent (the Minister). The client file associated with the appellant’s visa application was the 2015 Client File. The Human Rights Documents were not included in the 2015 Client File at the time the delegate made his decision and were not considered by the delegate. The delegate decided to refuse the visa application and the decision was then referred to the Authority for review pursuant to the provisions of Pt 7AA of the Migration Act.

4    A delegate of the Secretary considered what documents should be provided to the Authority pursuant to s 473CB. In undertaking this process, the Secretary’s delegate did not have regard to the 2012 Client File or to the Human Rights Documents. The Human Rights Documents were not, therefore, provided to the Authority. If the delegate had performed a search of the Department’s electronic database using the appellant’s client identification number, the search would have retrieved the 2012 Client File, which contained an email attaching the Human Rights Documents.

5    After the matter had been referred to the Authority, the appellant provided the Human Rights Documents to the Authority and requested that they be considered. The Authority refused to consider them, proceeding on the misapprehension (through no fault of its own) that they had not been previously provided to the Department. In the course of its decision, the Authority stated that the late appearance of the documents called into question their veracity. The Authority did not believe the appellant was a witness of truth and did not accept his claims.

6    For the reasons that follow, in our view, s 473CB(1)(c) imposes an obligation on the Secretary to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority) and the Secretary breached this obligation. In the circumstances of this case, this had the consequence that the Authority failed to carry out the review required by Pt 7AA of the Migration Act. In our respectful opinion, the primary judge erred in not so holding, and the appeal should be allowed.

Relevant legislative provisions

7    It is convenient to set out the relevant legislative provisions before outlining the background facts. The relevant provisions are contained in Pt 7AA of the Migration Act, which provides for a fast track review process in relation to certain protection visa decisions. As explained in the simplified outline in s 473BA, the Part provides a limited form of review of certain decisions to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.

8    Section s 473CA provides that the Minister must refer a fast track reviewable decision (defined in s 473BB) to the Authority as soon as reasonably practicable after the decision is made.

9    The key relevant provision for present purposes is s 473CB, which provides as follows:

473CB    Material to be provided to Immigration Assessment Authority

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

(a)    a statement that:

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

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

(iii)    gives the reasons for the decision;

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

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

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

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

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

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

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

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

(Emphasis added.)

10    Section 473CC(1) provides that the Authority must review a fast track reviewable decision referred to the Authority under s 473CA.

11    Generally, the Authority conducts its review on the papers. This is the effect of s 473DB(1), which provides that, subject to the Part, the Authority must review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.

12    The concept of “new information” is defined in s 473DC(1) and comprises documents or information that: were not before the Minister when the Minister made the decision under s 65; and the Authority considers may be relevant. The Authority does not have a duty to get, request or accept any new information: s 473DC(2).

13    Section 473DD deals with when the Authority may consider new information:

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.

Evidence

14    In the proceeding in the Federal Circuit Court, the Minister relied on an affidavit of Alexander Lochland, the Victorian Team Leader of the Temporary Protection review team employed by the Department of Home Affairs, affirmed on 11 October 2018 (the Lochland Affidavit). The affidavit provided evidence about the Department’s files and documents relating to the appellant. Mr Lochland was cross-examined and the primary judge made findings concerning the files and documents. There is no challenge to the primary judge’s findings about these matters.

15    During the course of the appeal hearing, a number of questions were raised by the Court concerning the way in which documents are stored and arranged electronically, and able to be accessed, within the Department’s database. To address these questions, the Minister sought and was granted leave to file further material. Subsequently, the Minister filed an affidavit of Siôn Griffith, the Assistant Director of the Protection Caseload Resolution Section in the Refugee, Humanitarian and Settlement Division of the Department of Home Affairs, affirmed on 30 October 2019 (the First Griffith Affidavit) and a further affidavit of Mr Griffith affirmed on 12 November 2019 (the Second Griffith Affidavit). There is no objection to the First Griffith Affidavit and this should be received into evidence. In relation to the Second Griffith Affidavit, the appellant has (in written submissions) objected to parts of [5] and [7], but otherwise does not oppose the receipt of this affidavit. In relation to [5], the appellant objects to the part of the paragraph from “and its current location” to the end of the paragraph. In relation to [7], the appellant objects to the third and fourth sentences. In our view, the parts of [5] and [7] that are objected to should not be received. Those parts go beyond what is necessary to respond to the questions raised by the Court, and are not necessary for the resolution of the issues on appeal. However, the balance of the Second Griffith Affidavit should be received. While the additional affidavits fill in some of the detail concerning the Department’s ability to locate the Human Rights Documents in its database, they do not fundamentally alter the position as presented in the material before the primary judge.

16    In addition to the above, the Court has been provided with a copy of the transcript of the cross-examination of Mr Lochland before the primary judge.

Background facts

17    The appellant arrived in Australia in November 2012 as an unauthorised maritime arrival.

18    In 2012, a client file for the appellant was created within the Department’s document management system. The client file had the number CLF2012/232399 and is referred to in these reasons as the “2012 Client File”.

19    On 16 January 2013, the appellant was interviewed on Christmas Island by an officer of the then Department of Immigration and Citizenship. The Appeal Book includes a record of this interview headed “Irregular Maritime Arrival Entry Interview”. The record includes the name of the boat on which the appellant arrived (Qvale), a nominal roll number for the appellant (QVA056) and a client identification number for the appellant (20246267217). The client identification number was unique to the appellant. The nominal roll number was also unique to the appellant: see the cross-examination of Mr Lochland at page 8. Mr Lochland explained that the three letters (QVA) represented the boat that the appellant arrived on, and the three numerals (056) were specific to the appellant. The nominal roll number is also referred to in some of the materials as the Boat ID.

20    On 19 January 2013, the Department received an email attaching some 24 documents in relation to the appellant and his family (the January 2013 email), including two documents relating to a complaint made to the Human Rights Commission of Sri Lanka (referred to in these reasons as the “Human Rights Documents”). In relation to the Human Rights Documents, the following matters are noted. The first document is on the letterhead of the Human Rights Commission of Sri Lanka, addressed “To Whom It May Concern” and states that a named person (apparently, the appellant’s mother) had made a complaint to the Human Rights Commission on 10 January 2012 in respect of the appellant. The appellant’s name appears in the document followed by the word “Thretning”. This may refer to the subject matter of the complaint, which involved alleged threats against the appellant. The second document appears to be a receipt issued by the Human Rights Commission of Sri Lanka in respect of the same complaint. The document includes the name of the complainant, the date that the complaint was received (10 January 2012) and the complaint number. Alongside the word “Refer”, the word “Thretning” appears, together with the appellant’s name.

21    The January 2013 email and the attached documents were stored by the Department in the 2012 Client File: see the cross-examination of Mr Lochland at page 7 and the Second Griffith Affidavit at [7]. The January 2013 email (including the attachments) was named “QVA056 – Various Identity Document” in the Department’s document management system.

22    By letter dated 23 December 2015, a Departmental officer notified the appellant that the ‘bar’ under s 46A of the Migration Act had been lifted and invited the appellant to apply for a Temporary Protection visa or a Safe Haven Enterprise visa.

23    In 2015, another client file for the appellant was created within the Department’s document management system. This client file had the number CLF2015/82452 and is referred to in these reasons as the “2015 Client File”.

24    On or about 18 November 2016, the appellant lodged an application for a Safe Haven Enterprise visa. The application was supported by a statutory declaration dated 15 November 2016 setting out the appellant’s claims. The appellant’s claims fell into two broad categories. The first related to alleged assaults and other conduct in the period from 2000 to 2008. The second category related to alleged threats and other conduct in the period 2010 to 2012. In relation to the latter category, the appellant stated (in his statutory declaration) that on 10 January 2012 his mother had reported a number of these incidents to the Human Rights Commission of Sri Lanka. The appellant did not provide a copy of the Human Rights Documents with his visa application.

25    For fast track matters, such as the appellant’s, the Department maintains only an electronic file; it does not maintain a hard copy paper file for such cases: see the Lochland Affidavit at [7]. The electronic file associated with the appellant’s application for a Safe Haven Enterprise visa was the 2015 Client File.

26    On 6 April 2017, the appellant attended an interview with the delegate of the Minister responsible for dealing with the visa application.

27    On 9 May 2017, the delegate decided not to grant the appellant a Safe Haven Enterprise visa. At the time the delegate made his decision, the Human Rights Documents were not included in the 2015 Client File. In these circumstances, the delegate did not have regard to (and was presumably unaware of) the Human Rights Documents.

28    In the course of his decision, the delegate referred to the appellant’s claim that his mother had, on 10 January 2012, reported a number of the claimed incidents to the Human Rights Commission of Sri Lanka. The delegate accepted a number of the appellant’s claims as plausible. However, the delegate did not accept other claims, including the claim that the appellant’s mother had reported a number of the incidents to the Human Rights Commission of Sri Lanka.

29    On 12 May 2017, the delegate’s decision was referred to the Authority for review pursuant to the provisions of Pt 7AA of the Migration Act.

30    All fast track reviewable decisions and the associated review material are referred to the Authority electronically. A delegate of the Secretary is responsible for compiling the material to be provided to the Authority pursuant to s 473CB. The delegate is instructed to provide all information that was before the delegate who dealt with the visa application at the time the delegate made the decision on the visa application. Thus, on 12 May 2017, a copy of the 2015 Client File was transferred electronically by a delegate of the Secretary to the Authority: see the Lochland Affidavit at [8]-[10].

31    The process of providing documents to the Authority is explained in a little more detail in the First Griffith Affidavit at [12]-[18]. Shortly after making the decision on the visa application, the delegate who made that decision (referred to as the case officer) completes a form headed “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” (the Referrals Checklist). The purpose of this document is to assist the delegate of the Secretary for the purposes of s 473CB (referred to as the TPVP officer) to determine the review material to be given to the Authority. This material will generally be contained in the file created for the referred applicant’s visa application (referred to as the delegate’s file). This includes any material given by the applicant to the case officer for the purpose of deciding whether or not to grant the visa; and any other material that the delegate had before him or her at the time of making the decision to refuse to grant the applicant a visa. In assessing what material to refer to the Authority, the TPVP officer will include only items in the delegate’s file, unless additional items are identified on the Referrals Checklist completed by the case officer.

32    As the Human Rights Documents were not, at the time of referral, included in the 2015 Client File, or referred to in the Referrals Checklist completed in relation to the appellant, they were not considered for relevance by the Secretary’s delegate, and were not provided to the Authority.

33    No further documents were provided by the Secretary to the Authority with respect to the appellant’s visa application between the date of referral (12 May 2017) and the date of the Authority’s decision. For completeness, we note that, for reasons that are unexplained, on 1 June 2017, the January 2013 email (including attachments) was added to the 2015 Client File. However, this was after the delegate had made his decision on the visa application and after the referral of the decision to the Authority. The inclusion of the document in the 2015 Client File at this stage did not lead to it being provided to the Authority, and is not relevant for present purposes.

34    By email dated 8 August 2017, the appellant provided to the Authority certain documents, including the Human Rights Documents, and requested that they be considered.

35    The Authority did not invite the appellant to provide any new information, nor did it conduct an interview with the appellant.

36    On 5 January 2018, the Authority decided to affirm the decision not to grant the appellant a Safe Haven Enterprise visa. In a section of the Authority’s reasons headed “Information before the IAA” the Authority referred to the documents that had been provided by the appellant to the Authority. In relation to the Human Rights Documents, the Authority stated at [8] that the appellant “did not explain why these documents were not provided to the Department before a decision was made given that the complaint was made in 2012”. The Authority also stated: “Despite making claims about his mother having approached this organisation, the [appellant] did not provide these documents to the Department”. These sentences demonstrate that the Authority was proceeding under the misapprehension that the documents had not been provided to the Department when, in fact, they had.

37    Further, the Authority stated at [8] that the “late appearance” of the documents “calls into question their veracity”. The Authority stated that, while the two documents purported to corroborate the appellant’s claim that he was threatened, “the fact that they were not provided earlier despite their apparent existence for some years gives rise to doubts as to their reliability”. The Authority discussed whether the requirements of s 473DD (for the consideration of new information) were satisfied in relation to the Human Rights Documents and concluded that they were not: at [9]-[10].

38    The Authority did not accept the appellant’s claims. The Authority considered there to be “significant inconsistencies and omissions” in the appellant’s evidence: at [39]. This led the Authority to find that the appellant’s evidence could not be relied upon and that the appellant was not telling the truth: at [39]. Among other things, the Authority was not satisfied that a complaint had been made to the Human Rights Commission of Sri Lanka: at [47].

39    The affidavit material filed after the hearing of the appeal was directed to whether and, if so, how the Human Rights Documents could have been located through searches of the Department’s document management system at the time of the referral to the Authority. Certain aspects of the First Griffith Affidavit were corrected in the Second Griffith Affidavit. The upshot is that a search of the Department’s electronic database (called the Total Records Information Management system, or TRIM) using the appellant’s client identification number would have identified 97 records, including the 2012 Client File. If the 2012 Client File had been opened, 31 records would have been identified, including the January 2013 email and attachments (and thus, the Human Rights Documents).

40    Further, a search of the Department’s electronic database using the appellant’s nominal roll number or Boat ID (i.e. QVA056) would have identified 94 records, including the January 2013 email and attachments (and thus, the Human Rights Documents).

41    With respect to both of the searches described above, it would not be possible to know what documents were attached to the January 2013 email without opening each attachment. That is because the file names of the attachments to the January 2013 email were numbers and did not, therefore, provide any indication of the contents of the attachments.

42    There is no evidence to suggest that the searches described in [39] and [40] were carried out and it may safely be inferred that they were not.

The proceeding in the Federal Circuit Court

43    The appellant applied to the Federal Circuit Court for judicial review of the Authority’s decision. In his amended application, the appellant relied on two grounds. The first ground concerned the Authority’s decision not to consider the Human Rights Documents on the basis that they were “new information”. This ground can be put to one side as it is not pursued on appeal. The appellant’s second ground was that the Authority’s statutory task under s 473CC of the Migration Act miscarried “because of the failure of the … Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act to consider providing material in [the Department’s] possession or control to the Authority in order for it to carry out its review obligation”.

44    The primary judge concluded that neither of the grounds of review was made out and, accordingly, dismissed the application.

45    The primary judge made findings based on the evidence of Mr Lochland at [4]-[11] of her reasons for judgment. The primary judge accepted Mr Lochland’s evidence that the Human Rights Documents did not form part of the documents referred to the Authority on 12 May 2017: at [9]. The primary judge also found that the Human Rights Documents were not before the delegate at the time he considered the appellant’s visa application: at [11] (see also [36] and [38]).

46    The primary judge set out the appellant’s claims at [20] of her reasons. The IAA’s reasons were discussed at [25]-[28].

47    It is not necessary for present purposes to refer in any detail to the primary judge’s consideration of ground 1.

48    In relation to ground 2, the primary judge stated, at [38], that it was clear from the evidence that the appellant had provided the Human Rights Documents to the Department when he first arrived in Australia and that these documents made their way into the Department’s records.

49    The primary judge stated, at [45], that the real question raised by ground 2 was “what does the Secretary need to do in order to comply with the obligation imposed by section 473CB(1)(c) of the Act?” The primary judge referred to the judgment of Judge Manousaridis in BLA16 v Minister for Immigration and Border Protection (2018) 338 FLR 194 (BLA16 (FCCA)). (That judgment was subsequently affirmed in BLA16 v Minister for Immigration and Border Protection [2019] FCA 748 (BLA16 (Federal Court)), a judgment handed down after the decision of the primary judge in the present case.) The primary judge quoted, at [53], the following passage from the judgment of Judge Manousaridis in BLA16 (FCCA) at [31]:

In my opinion, s.473CB(1)(c) at the very least obliges the Secretary to undertake reasonable searches for the purpose of identifying whether there are materials in the possession or control of the Department of Immigration that are relevant or which are reasonably capable of being considered to be relevant to a review by the IAA of any given fast track reviewable decision’. On this construction the Secretary will fail to comply with s.473(1)(c) in any given case if the Secretary undertakes no search or no reasonable search for materials that are, or which are, reasonably capable of being considered to be relevant to the IAA’s review of the fast track reviewable decision in question; and in determining in any given case whether the Secretary has failed to undertake reasonable inquiries, it will be relevant to inquire whether the Secretary:

(a)    has put in place a system designed to hold, and enable an officer of the Department of Immigration to readily identify and access, documents that are, or which may reasonably be considered capable of being, relevant to a review by the IAA of fast track reviewable decisions; and

(b)    whether in any given case that system has been resorted to for the purpose of identifying documents that are or might be relevant to the review by the IAA of a delegate’s decision not to grant a protection visa; and,

(c)    if resorted to, whether the system has been used in the manner it was intended to be used.

50    The primary judge stated that she agreed with his Honour in terms of the obligation imposed upon the Secretary by s 473CB(1)(c) and also the factors that might be relevant in determining whether that obligation has been met: at [54]. The primary judge then said the question in the present case was “whether the Secretary ought to have reasonably looked for documents stored on [the Department’s] system in respect of the applicant prior to his application for a protection visa and which might evidence or corroborate the claims made by him”: at [55].

51    The primary judge stated, at [56], that she was satisfied on the basis of the evidence that the Secretary did not consider whether the Human Rights Documents were relevant to the Authority’s review. The primary judge found that there was evidence that a checklist was developed and used to determine what documents might exist that might be relevant to the review: at [56]. The primary judge rejected a submission by the appellant that the Secretary should have conducted a search of the Department’s records to consider whether there were any other documents in the Department’s possession or control that might relate to any of the appellant’s claims: at [57]. The primary judge reasoned as follows at [58]-[61]:

58.    It was reasonable for the Secretary to assume that to the extent that the applicant had documents relevant to his claims and upon which he would seek to rely, that he would have included them in his SHEV visa application. Indeed he was invited to do so via the letter sent to him inviting him to apply for a visa and also the visa application itself.

59.    In addition section 5AAA of the Act required:

…it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person [to whom protection obligations are owed] and to provide sufficient evidence to establish the claim.

60.    Moreover, whilst the applicant makes reference to the fact that his mother lodged a claim with the Sri Lankan HRC in his SHEV visa application, not only did he not attach any documents which relate to this matter but he did not make reference to the fact that he had provided any such documents to the Department previously.

61.    For these reasons, I am not satisfied that the applicant has made out a claim that the Secretary has in fact breached section 473CB(1)(c) of the Act.

(Footnotes omitted.)

52    Further, the primary judge was not satisfied that the Human Rights Documents were material: [63]-[74]. The primary judge acknowledged that the Authority’s assumption that the Human Rights Documents had been produced only after the delegate’s decision and without reasonable explanation as to why they had not been produced earlier impacted on the Authority’s assessment of the appellant’s credibility: at [68]. The primary judge held, however, that it was also clear from a fair reading of the Authority’s reasons for decision that the credibility concerns arose from significant inconsistencies and omissions in the appellant’s evidence extending well beyond the failure to include the Human Rights Documents in the visa application: at [68].

The appeal to this Court

53    The appellant relies on two grounds in his notice of appeal. They are to the following effect:

(a)    that the Federal Circuit Court erred in failing to find that the Secretary breached s 473CB(1)(c) in respect of the Human Rights Documents (ground 1); and

(b)    that the Federal Circuit Court erred in failing to find that the Secretary’s breach of s 473CB(1)(c) affected the decision of the Authority with jurisdictional error (ground 2).

The parties’ submissions

54    The appellant submits that the Secretary breached s 473CB(1)(c) by failing to consider the relevance of the Human Rights Documents to the review at the time of referral. The appellant submits that ultimately at issue is the legitimacy of the administrative scheme that confines the Secretary’s consideration of the relevance of documents in the Department’s possession or control at the time of referral to a consideration of the relevance of documents before the delegate and other documents listed in the checklist created by another person at an earlier point in time.

55    The appellant relies on the summary of principles applying to s 473CB(1)(c) in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 (EMJ17) at [41], approved in CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61 (CQR17) at [28].

56    In relation to ground 2, the appellant submits that the Secretary’s breach of s 473CB(1)(c) was material because the appellant claimed in his statutory declaration that his mother had reported his claims to the Human Rights Commission of Sri Lanka. It is submitted that the Secretary’s breach deprived the appellant of the opportunity of having the Authority consider important corroborative evidence (namely, the Human Rights Documents) with an appreciation that the documents had been provided by the appellant to the Department shortly after he arrived in Australia.

57    The Minister submits that by ground 1 the appellant appears to contend that s 473CB(1)(c) requires the Secretary to consider whether each and every document in his or her possession or control is relevant to the review, failing which he or she fails to comply with the provision. The Minister submits that that contention should be rejected having regard to the text of the provision, the broader context, and the unreasonableness or absurdity of the result it would produce. The Minister refers to SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 (SZTAL) at [14] and SAS Trustee Corporation v Miles (2018) 361 ALR 206 at [20], [41] and [64].

58    The Minister acknowledges that an applicant has a legitimate interest in having documents presented to the Authority for consideration, given that the Authority operates chiefly on the papers: see the explanatory memorandum accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [876]. For this reason, the Minister does not contend that s 473CB(1)(c) is limited to whatever the Secretary happens to be aware of and considers relevant; some degree of extra consideration is called for. The Minister submits that the appropriate balance is struck in the manner identified by Bromwich J in BLA16 (Federal Court); the question is, on a case by case basis, whether it was reasonable not to consider the particular documents in question.

59    The Minister submits that ground 2 does not arise, because it is predicated upon the Court concluding that there has been a breach of s 473CB(1)(c). Assuming, however, that ground 1 is established, the Minister submits that ground 2 should be rejected. It is submitted that any non-compliance with s 473CB(1)(c) was not material, in that the Human Rights Documents could not realistically have made a difference: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at [45], [49]-[50]. The Minister submits that: as the primary judge correctly observed, the Authority’s reasoning shows that it comprehensively rejected his claims due to significant inconsistencies and omissions in the appellant’s evidence extending well beyond the failure to include the Human Rights Documents in the visa application; and it is open to the Court to consider the actual reasons given by the Authority and the missing documents in assessing materiality: see SZMTA at [50], [71].

60    In his supplementary submissions, filed with leave after the hearing of the appeal, the Minister makes the following further submissions about s 473CB(1)(c):

(a)    The view that is relevant to the satisfaction of s 473CB(1)(c) is the subjective view of the Secretary as to relevance, and not some theoretical objective view: CQR17 at [79]; EMJ17 at [41]. That view must not be unreasonably formed: EMJ17 at [41].

(b)    Section 473CB(1)(c) does not, in terms, prescribe that the Secretary (or his or her delegate) shall carry out any particular process in which documents are identified in order then to consider the relevance of the documents that are found: BLA16 (Federal Court) at [20]. But s 473CB(1)(c) can and should be understood to confer a discretion to search for documents. The conferral of such a power is necessary to give effect to the duty imposed by s 473CB(1)(c). That discretionary power is then amenable to the usual presumption that it be exercised reasonably: see generally, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. Subject to a consideration of the materiality of any error (see generally, SZMTA), an unreasonable process in which documents are identified can then lead to jurisdictional error.

(c)    In this way, reasonableness cuts in at two places: in identifying the documents to consider, subjectively, whether they are relevant; and in forming a view on the relevance of those documents that are identified.

61    The Minister’s supplementary submissions contain some additional points. It is convenient to address these later in these reasons.

Consideration

62    The main issues raised by the appeal are whether s 473CB(1)(c) imposes an obligation on the Secretary to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority) and whether the Secretary breached any such obligation. This raises a question of construction, which is to be resolved by reference to the text, context and purpose of the provision: see SZTAL at [14] per Kiefel CJ, Nettle and Gordon JJ.

63    Section 473CB(1) provides that the Minister must give to the Authority certain material, defined as the “review material”, in respect of each fast track reviewable decision referred to the Authority under s 473CA. Paragraph (a) of s 473CB(1) refers to a statement that: sets out the findings of fact made by the person who made the decision; refers to the evidence on which those findings were based; and gives the reasons for the decision. Paragraph (b) refers to material provided by the referred applicant to the person making the decision before the decision was made. Paragraph (c) – the paragraph of central relevance for present purposes – refers to “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”. Paragraph (d) refers to certain details concerning the referred applicant.

64    It is noteworthy that paragraph (c) refers to “any other material that … is considered … to be relevant to the review” rather than, for example, the material that was before the person who made the decision on the visa application. This indicates that the material that is relevant to the Authority’s review, and thus to be provided to the Authority, may go beyond the material that was before the person who made the decision on the visa application. It may also be noted that paragraph (c) refers to “the time the decision is referred to the Authority” rather than the time of the decision on the visa application, again indicating that the material to be provided to the Authority may go beyond the material that was before the person who made the decision.

65    In considering the scope of the obligation in s 473CB(1)(c), it is relevant to have regard to the nature of the review to be conducted by the Authority, and the overall scheme of Pt 7AA. As for the nature of the Authority’s review, in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, Gageler, Keane and Nettle JJ stated at [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.

66    The nature of the review to be carried out by the Authority underlines the importance of the Authority being provided with all relevant documents, whether or not they were before the person who made the decision on the visa application: see CQR17 at [105] per Derrington J.

67    As for the overall scheme of Pt 7AA, it is relevant to note the Part provides a mechanism for the automatic referral of decisions to the Authority, with the review material provided by the Secretary rather than by the visa applicant. Further, the Authority generally conducts the review on the papers (i.e. without a hearing) and with only a limited capacity to consider new information (see s 473DD). These features of the statutory scheme also underline the importance of the Authority being provided with all documents relevant to the review.

68    In conferring the obligation in s 473CB(1)(c) on the Secretary of the Department, the Parliament may be taken to have understood that the obligation would not be carried out personally, but rather by a delegate. Further, the Parliament may be taken to have understood that the Department would have in its possession or control a vast number of documents, and that the documents would be arranged in a systematic way, with mechanisms available to locate potentially relevant documents.

69    In light of these matters, if and to the extent that the appellant contends that a breach of s 473CB(1)(c) is established simply on the basis that the Human Rights Documents were in the Department’s possession or control and were not considered for relevance by the Secretary, we reject that contention. As Bromwich J said in BLA16 (Federal Court) at [19], s 473CB(1)(c) “cannot possibly be interpreted in a way that requires the Secretary to consider all the Departmental material in his or her possession and control, not least because of the sheer size and ambit of the Department’s operations and responsibilities in administering Australia’s migration laws”.

70    However, it is also not the case, and the Minister does not suggest, that s 473CB(1)(c) only requires the Secretary (or his or her delegate) to consider documents of which he or she is aware. In order to give the provision a sensible operation, it is necessary for some process to be put in place to bring to the attention of the Secretary (or his or her delegate) potentially relevant documents. Unless there is such a process, and it involves the taking of reasonable steps to identify potentially relevant documents, the provision cannot achieve its purpose. Thus, the provision should be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority). This is consistent with the principle expressed by Thawley J in EMJ17 at [41(4)]: “An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c).” That proposition was approved by all members of the Full Court in CQR17: see at [28] per Jagot J (with whom Reeves J agreed at [4]); and at [80] per Derrington J.

71    Applying these propositions in the present case, in our view the Secretary failed to take reasonable steps to locate potentially relevant documents in the Department’s possession or control. The Secretary (or his or her delegate) could have performed, but did not perform, a search of the Department’s electronic database using the appellant’s client identification number, and this would have yielded the Human Rights Documents. It is not suggested that carrying out a search using the appellant’s client identification number would have been difficult or particularly time-consuming. It would seem to be an obvious way of checking whether there were other client files for the appellant, potentially containing relevant documents. As the circumstances of this case show, it could not be assumed that the client file associated with the appellant’s visa application was the only client file for the appellant, or that it contained all documents relevant to the review.

72    Alternatively, the delegate could have carried out a search using the appellant’s nominal roll number (or Boat ID). This too would have yielded the Human Rights Documents. Again, it is not suggested that carrying out a search using the appellant’s nominal roll number would have been difficult or particularly time-consuming. To the extent that the Minister’s submissions suggest that this search would have involved considering all of the documents associated with the boat that the appellant arrived on, that does not appear to be correct. As the cross-examination of Mr Lochland (referred to above) makes clear, the nominal roll number or Boat ID (i.e. QVA056) is specific to the appellant. That number could, therefore, have been used to locate documents specific to the appellant.

73    In his supplementary submissions following the appeal hearing, the Minister submits that there was no unreasonableness in the Secretary not considering the relevance of the Human Rights Documents for three reasons. The first reason is that “the [Human Rights] Documents could not be found simply by searching the appellant’s name or unique [client identification number] in [the Department’s electronic database]”. However, this submission has been overtaken by the Second Griffith Affidavit, which makes clear that: a search of the Department’s electronic database using the appellant’s client identification number would have identified 97 records, including the 2012 Client File; and, if the 2012 Client File had been opened, 31 records would have been identified, including the January 2013 email and attachments (and thus, the Human Rights Documents).

74    The Minister’s second reason is that nothing the appellant said to the delegate, the Department or the Authority could have put anyone on notice that he had previously given the Human Rights Documents to the Department. While this may be accepted, it needs to be borne in mind that the process established by Pt 7AA, whereby the Authority usually conducts its review on the papers, does not provide the same opportunity as a hearing for clarification of matters such as whether or not the Human Rights Documents had been previously provided to the Department. In the context of a hearing, it would be commonplace for a matter such as this to be raised by the decision-maker, giving the applicant an opportunity to respond. This type of interaction is less likely to occur in the course of a review on the papers. This underlines the importance of the Secretary’s delegate taking reasonable steps to identify potentially relevant documents as an antecedent step to determining what documents to provide to the Authority.

75    The Minister’s third reason is that the systems in place to identify documents were not inherently unreasonable. The Minister submits that it was not unreasonable for the Secretary (or his or her delegate) to focus on the file that was before the delegate exercising power under s 65 of the Migration Act. While it may be accepted that it was not unreasonable for the Secretary’s delegate to focus on the file that was before the delegate, this does not answer the question whether the Secretary’s delegate took reasonable steps to locate other potentially relevant documents. Further, insofar as the systems in place involved the person who made the decision on the visa application completing the Referrals Checklist, and the Secretary’s delegate relying on that checklist, that was insufficient to constitute the taking of reasonable steps to locate potentially relevant documents in the circumstances of this case.

76    For these reasons, in our view, the Secretary failed to take reasonable steps to identify potentially relevant documents in the Department’s possession or control for the purposes of considering whether the documents were relevant to the review to be conducted by the Authority, amounting to a breach of the obligation in s 473CB(1)(c).

77    There is no real issue between the parties that, if the Secretary breached the obligation in s 473CB(1)(c), this could have the consequence that the Authority failed to carry out the review required by Pt 7AA of the Migration Act. In EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 (EVS17), the Full Court held that a contravention of s 473CB(1)(b) could give rise to a jurisdictional error: see at [35], [40]-[42] per Allsop CJ, Markovic and Steward JJ. This reasoning was approved in the context of s 473CB(1)(c) in CQR17 at [29] per Jagot J (with whom Reeves J agreed). In the present case, it was implicitly accepted by the Minister that a breach of s 473CB(1)(c) by the Secretary could have the consequence that the Authority failed to carry out its statutory task: see, eg, the Minister’s supplementary submissions following the appeal hearing at [11].

78    In the circumstances of this case, the breach of the obligation in s 473CB(1)(c) was material in the sense discussed in EVS17 at [40]-[42]. It may be assumed that, if the Secretary (or his or her delegate) had considered the Human Rights Documents, they would have been considered relevant and provided to the Authority: the Human Rights Documents, on their face, supported the appellant’s statement in his statutory declaration that a complaint had been made to the Human Rights Commission of Sri Lanka about a number of the incidents referred to in that declaration. Had the Authority received the Human Rights Documents from the Secretary, they would have been considered and the Authority may well have come to a different conclusion on the appellant’s credibility and his claims more generally. In these circumstances, the Secretary’s breach of s 473CB(1)(c) had the consequence that the Authority failed to carry out the review required by Pt 7AA.

79    We note for completeness that we consider BLA16 (Federal Court) to be distinguishable on the basis that, in that case, it had not been demonstrated that, had the 2013 statutory declaration been given to the Authority under s 473CB(1)(c), it could realistically have resulted in a different decision: at [31].

80    It follows that the appeal is to be allowed. The appropriate orders include that the orders of the primary judge be set aside and, in lieu thereof, it be ordered that: a writ of certiorari be issued quashing the decision of the Authority; and the matter be remitted to the Authority for determination according to law. It may also be necessary to deal with the provision of the Human Rights Documents to the Authority, so that they do not need to be considered through the prism of “new information”. In these circumstances, rather than making substantive orders at this stage, we will provide an opportunity for the parties to formulate orders to give effect to these reasons (and in relation to costs, both of the proceeding at first instance and the appeal). As requested in the Minister’s written submissions, we will make an order that the name of the first respondent be changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

Associate:

Dated:    10 December 2019