Federal Court of Australia

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court made on 19 December 2019 be set aside, and in lieu thereof:

(a)    the amended application for judicial review filed on 30 October 2018 be dismissed; and

(b)    BTW17 pay the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ costs of the application for judicial review.

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

4.    On or before 4 pm on 7 October 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

5.    In the absence of any agreement having been reached, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

BESANKO J:

1    I have had the advantage of reading the reasons of Mortimer and Jackson JJ. I agree that Ground 2 of the appeal must be upheld and I agree with the orders proposed by their Honours on that basis. I agree with their Honours’ reasons for upholding Ground 2. I also agree with their Honours’ reasons for concluding that the notice of contention should be dismissed.

2    I would refrain from deciding Ground 1 of the appeal. On the one hand, it seems to me that there is a good deal of force in the appellant’s submission that there is no one approach to the determination of the issues raised by s 473DD(b)(ii) of the Migration Act 1958 (Cth) once it is accepted that, in determining those issues, the Immigration Assessment Authority (the Authority) is entitled to go beyond the claimed new information itself and consider other information in the review relevant to the issues raised by s 473DD(b)(ii). The first respondent did not suggest that in determining the issues raised by s 473DD(b)(ii), the Authority was restricted to the claimed new information and the authorities in this Court suggest that the Authority is not so restricted (DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; (2018) 260 FCR 260 at [36]–[39] and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 at [5] and [16]). This matter, together with aspects of the text of s 473DD(b)(ii), led the appellant to submit that while in some cases it might be appropriate to proceed by reference to the two stages identified by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (CSR16) at [41]–[42], in other cases it would not be an error not to do so. This, in turn, led to a submission by the appellant that it is difficult to see why an Authority which has properly considered all relevant information and has reasoned without error to a conclusion that it does accept the claimed new information is to be treated as having made no decision at all because it did not ask itself whether the claimed new information was capable of being believed. On the other hand, as the reasons of Mortimer and Jackson JJ make clear, there is a good deal of support in the authorities for the approach taken by Bromberg J in CSR16.

3    It may be that, in fact, the attraction of the appellant’s argument lies in a recognition of a requirement of materiality before jurisdictional error is established. It would seem clear that a threshold of materiality is an element of jurisdictional error in the case of non-compliance with a statutory provision: Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Hossain) at [29]–[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [44]–[45] per Bell, Gageler and Keane JJ; Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32 at [4] per Kiefel CJ and Gageler J.

4    It would seem that materiality was not raised as an issue in CSR16. As I understand Hossain and SZMTA, materiality would need to be established before any non-compliance with a statutory provision was held to constitute jurisdictional error. In this case, that means that Grounds 1 and 3 would need to be considered together.

5    The matters raised in Grounds 1 and 3 are important and, with respect, I consider they should be reserved for a case where they are decisive of the outcome.

Associate:    

Dated:    23 September 2020

REASONS FOR JUDGMENT

MORTIMER AND JACKSON JJ:

Introduction

6    This proceeding has a long history. The first respondent, a citizen of Sri Lanka, arrived by boat at Christmas Island on 16 September 2012. He was taken to Nauru. A little under four years later, on 21 June 2016, he was advised that the Minister had exercised his powers to allow him to make an application for a Safe Haven Enterprise visa. On 13 September 2016, he did so. The application was refused on 6 February 2017 by a delegate of the Minister. The refusal decision was automatically referred to the Immigration Assessment Authority for review, but on 23 March 2017, the Authority affirmed the delegate’s decision.

7    On 26 April 2017, the first respondent filed an application in the Federal Circuit Court for review of the Authority’s decision. On 27 July 2017, the application was dismissed: BTW17 v Minister for Immigration and Border Protection [2017] FCCA 1752. The first respondent appealed from this decision and on 1 February 2018 a Full Court of this Court allowed the appeal, quashed the Authority’s decision, and remitted the matter to the Authority for determination according to law: BTW17 v Minister for Immigration and Border Protection [2018] FCAFC 10; 258 FCR 511.

8    On 28 March 2018, the Authority again affirmed the delegate’s decision. In these reasons we shall refer to this as the second Authority’s decision. On 2 May 2018, the first respondent filed an application in the Federal Circuit Court for review of this decision. On 19 December 2019, the Federal Circuit Court made orders quashing the second Authority’s decision, remitting the matter to the Authority for determination according to law, restraining the Minister and his delegates from making the decision, and requiring the Minister to pay the first respondent’s costs: BTW17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3614. It is from these orders that the Minister now appeals.

9    For the reasons set out below, the appeal will be allowed, and the notice of contention dismissed.

Background

10    The procedural history of this matter has been set out. It is now necessary to address the general basis for the first respondent’s protection claims and the decision of the second Authority.

The first respondent’s claims

11    The first respondent claims that, in his home village, there is a violent gang which, because of its members’ connections with the ruling party in Sri Lanka, operates with impunity. This is the context for his narrative, which it is necessary to set out, in order to understand the Federal Circuit Court’s decision and the grounds of appeal.

12    In 2003, the first respondent spoke out against the gang and was badly assaulted. Six years later, a gang member we will refer to as A asked him for support in local elections. He declined to support A and instead supported a different candidate.

13    In 2010, he saw A assaulting a colleague. He said something that was overheard by one of A’s cousins. He was slashed with a knife. He complained to police but, as far as he knows, the complaint was not followed up.

14    While he was recovering from his injuries in hospital, he learnt from his colleague that A was planning his murder. Not long afterwards, he saw A driving by on a motorcycle. He was scared and, at the time, drunk, so he shot A three times and fled.

15    A survived, and 10 days later the first respondent was apprehended by the police. He was remanded for approximately 13 months. Before the delegate, the first respondent relied on a purported police report endorsed by a Registrar of a local Magistrate’s Court on 15 February 2011, as well as a translation of the same. The translated report states that the first respondent is the main suspect in an attempted murder. The report also states: “This crime is a punishable offence under Guns Act No.22 of 1966.”

16    While in prison, the first respondent heard that A and his associates were planning to kill him as soon as he was released. In March 2012, he was released on bail. He feared for his life and spent time staying with friends and family. In May of the same year, A’s nephew came to his house armed with a gun. The first respondent was not home, but A’s nephew told the first respondent’s wife, who was home, that he was going to kill the first respondent. Later, members of the Sri Lanka Special Task Force came to the first respondent’s home and threatened his wife.

17    Around this time, one of his friends was killed by A’s affiliates. Fearing for his life, he made arrangements to leave Sri Lanka. After he left, his house was shot at three times. His grandmother reported the first incident to the police. Police from another area came, which his wife found suspicious. In March 2013, uniformed police officers visited the first respondent’s house and issued his grandmother with a warrant for his arrest.

18    In his visa application, the first respondent claimed that if he were to be returned to Sri Lanka he would be imprisoned because there is a case pending against him and because he has breached his bail conditions. He claimed that he would be tortured by law enforcement authorities and he claimed that, either while in prison or if he were released, he would be killed by A or his affiliates. He claimed that he would be unable to rely on state protection because of A’s connections with the Sri Lankan authorities.

The second Authority’s decision

19    In its reasons affirming the delegate’s decision, the second Authority noted that the first respondent had provided the first Authority with certain documents that were not before the delegate: namely, a report of the United Nations Committee Against Torture dated 21 January 2017 entitled “Concluding observations on the fifth periodic report of Sri Lanka”; a Reuters article dated 27 February 2017 about gunmen opening fire on a prison bus, apparently as part of a gang dispute; a typed, undated, unsourced page about a person who died in custody; and a Sinhalese newspaper article and apparent translation of the same with the heading “Dinamina Newspaper Tuesday January 13 2015”. The translation was signed:

Translated from the scanned copy of the document in Sinhalese Text by [with a name and a NAATI accreditation number]

20    In a letter which accompanied the documents, the first respondent stated:

The newspaper article was only provided to me by family members in Sri Lanka on 23 February 2017, nearly two weeks after the Department’s decision. Similarly, the human rights report was published one week after the decision made by the Department.

21    The newspaper article was a two-page spread, with photographs and a large headline, all in Sinhalese.

22    The second Authority assessed whether it could consider this information under s 473DD of the Migration Act 1958 (Cth), which is considered in more detail below. In summary, as to the first three documents:

(a)    the Authority found that the Committee Against Torture report was published before the delegate’s decision, was publicly available, and so could have been provided earlier. It also found that it was general country information rather than credible personal information and there were no exceptional circumstances to justify considering the information;

(b)    the Authority found that the Reuters article post-dated the delegate’s decision and so could not have been provided earlier, but it found that the report was general country information and there were no exceptional circumstances to justify considering it; and

(c)    the Authority found that the undated, unsourced page could have been provided prior to the delegate’s decision. It also found that it was not credible personal information.

23    The 2015 newspaper article was the subject of more detailed consideration by the second Authority. The Authority noted that the article named the first respondent and referred to his arrest. The Authority recorded the first respondent’s claim that the article was provided to him by family members after the delegate’s decision, but it rejected this account. The Authority found that the first respondent was in regular contact with his family and it was difficult to believe that they would not have provided the article earlier given that it named him and was apparently published two years before the delegate’s decision. The Authority therefore found that the article could have been provided prior to the delegate’s decision.

24    The second Authority also found (at [15]) that the article was not “credible personal information” (with names replaced by initials):

In respect of the 2015 newspaper article, there is a mention of the arrest of ‘R’ (the applicant’s nickname) for the shooting of ‘SN’. I accept if true this is personal information. However, that the applicant only provided this document so late in the proceedings leads me to doubt the genuineness of the document. As discussed above, I find it difficult to believe that he would not have such a document in possession earlier given his claims it mentioned him and given it was dated January 2015. Secondly, the article mentioned that R gave the weapon to AJ and it was found in a cupboard. However, this inconsistent with other evidence provided by the applicant, such as the magistrates court document, about who the gun was given to and that it was found under the bed. Further, the applicant statement noted that AJ was shot in 2011, which was inconsistent with the article’s account that AJ was released on bail in 2012 and developed a friendship with SD again at the end of 2013. Further, given the long rambling nature of the account it is odd there is no further mention of what happened to R, the claimed bail or that he fled the country. Thirdly, the country information … indicates the prevalence of fraudulent documents which further reinforces my view that the document is not credible.

25    Having rejected the new information, the second Authority turned in its reasons to address the first respondent’s protection claims. For the purposes of this appeal, it is sufficient to note that, broadly speaking, the Authority found the first respondent’s claims lacked detail, were not credible and were difficult to reconcile. It considered the first respondent was “not a witness of truth” (at [52]) and was “making up his account as he went along” (at [30]). It did not accept that he had been assaulted as he described, that he had shot A or that he was wanted by the police.

26    The second Authority found that the purported police report relied on by the first respondent contained anomalies, odd descriptions and was inconsistent with the first respondent’s account of the incidents it described. Some of these might fairly be described as minor. For example, the Authority reasoned (at [45]): “it is odd that the witness statements in the police report indicate the crime occurred around 8pm but the police report states it occurred at 8.30pm”. Others are perhaps more significant. For example, the Authority stated (at [46]):

[W]hile the applicant was very clear that he was arrested 10 days after the shooting, the magistrates court document indicates that on 9 February the police were still investigating and had not caught the applicant. The document indicates they were taken into custody on 10 February, which is 15 days after the incident.

27    The second Authority stated it had considered the first respondent’s response to adverse information put to the first respondent by the Authority shortly before the Authority’s decision: namely, that “a google search showed there was no Guns Act (no. 22 of 1966)” (at [48]). The first respondent’s response, through his representative, was that the relevant Act is the “Firearms Ordinance, Act No 22 of 1966”, which was said to carry the death penalty. The Authority acknowledged that this may have been a translation error. It nonetheless gave the police report no weight.

28    The second Authority proceeded to provide reasons for its decision that the first respondent did not meet the criteria for the protection visa. It found that the first respondent does not have a well-founded fear of persecution. In particular, it found that the first respondent would not face the death penalty on account of his alleged shooting of A if returned to Sri Lanka. It found that the first respondent would not face a real chance of harm because of his status as a failed asylum seeker. It found that the first respondent might be briefly imprisoned for leaving the country illegally, but it found that this did not amount to serious harm.

The Federal Circuit Court’s decision

29    In the Federal Circuit Court, the first respondent submitted that the second Authority had erred in its approach to the 2015 newspaper article as “new information”. He relied on this Court’s decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 and submitted that the Authority had incorrectly asked itself whether the information in the newspaper article was true, rather than whether it was “capable of being accepted … as truthful”: CSR16 at [41]. He also sought leave to rely on two additional grounds, one of which alleged apprehended bias on the part of the Authority.

30    The Federal Circuit Court refused leave to rely on the additional grounds. The Federal Circuit Court then addressed the first respondent’s CSR16 ground.

31    The Federal Circuit Court accepted that the second Authority had rejected the information in the newspaper on the basis that it was not credible personal information. The Federal Circuit said at [38]:

In my view, the Authority misconceived its role in considering the information under the anterior stage of s 473DD(b)(ii) of the Act. All the Authority found was that it was “I am not satisfied the information was credible personal information”. There is no discussion as to whether the information is either true or whether it was capable of belief. Further, the Authority, having determined it was not credible personal information, failed to, as would have been the safer course, to consider whether or not there was exceptional circumstances to warrant its receipt into consideration. Reading the paragraph as a whole, I cannot be satisfied that the Authority did not misapply the test required under s 473DD(b)(ii) of the Act. At no stage did the Authority, for example, say that the information was incapable of being believed. Clear words in my view need to be used. At this stage of the consideration, in order for the information to be deemed “not credible” in circumstances where clear language is not used, in my view, the applicant is entitled to the benefit of the doubt.

32    The Federal Circuit Court considered that the second Authority’s error was material because, taken at face value, the newspaper article corroborated the first respondent’s account that he had been charged with attempted murder and could face the death penalty if returned to Sri Lanka. The Federal Circuit Court noted that if the first respondent might face the death penalty on return, that fact would likely invoke the protection regime in the Migration Act. Accordingly, the Federal Circuit Court was unable to conclude that the error could not have realistically made a difference to the outcome of the review, and it made orders setting aside the Authority’s decision.

The grounds of appeal

33    The Minister relies on three grounds of appeal:

1.    The Federal Circuit Court erred in finding at [38] that the second respondent misconceived its role when it determined that it was not satisfied that information about the first respondent in a Dinamina Newspaper article dated 13 January 2015 (new information) was ‘credible personal information’ for the purposes of s 473DD(b)(ii) of the Migration Act 1958 (Migration Act).

Particulars

1.1.    The Federal Circuit Court erred in applying the decision in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 and finding at [38] that it could not be satisfied that the second respondent did not misapply the test required under s 473DD(b)(ii) of the Migration Act of whether the information was capable of being believed.

2.    Further and in the alternative to ground 1, the Federal Circuit Court erred in finding at [38] that there was no discussion by the second respondent ‘as to whether the information is either true or whether it was capable of belief’.

Particulars

2.1.    The Federal Circuit Court misconstrued [15] of the second respondent’s reasons for decision in finding that all that the second respondent found was that it was not satisfied that the new information was credible personal information, when the second respondent found that the information was not credible because:

(a)    The late provision of the new information caused the second respondent to ‘doubt the genuineness’ of the document;

(b)    Parts of the new information were inconsistent with evidence that the first respondent had already provided in support of his claims; and

(c)    Country information indicating the prevalence of fraudulent documents ‘further reinforces’ the second respondent’s view that the new information is not credible.

3.    Further and alternatively, the Federal Circuit Court erred in finding at [40] that the error identified at [38] of the Court’s reasons was material in that the Court was unable to discount the possibility that it may have realistically made a difference.

Particulars

3.1.    The Federal Circuit Court failed to apply the correct test for materiality, namely whether, if the second respondent had not made the error which it found, that could realistically have resulted in a different decision.

3.2    If the Federal Circuit Court had applied the correct test of materiality it could only have concluded that the error it had identified was not material and therefore did not amount to jurisdictional error.

The notice of contention

34    The first respondent filed a notice of contention containing two grounds. The first ground was abandoned before the hearing. The second was:

2.    The IAA’s decision was vitiated by a constructive failure to exercise jurisdiction because it manifested an apprehension of predisposition, tendency or propensity towards a given result (NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328; 214 ALR 264), or was actuated by a purpose other than genuine fact-finding (NAOX v Minister for Immigration and Citizenship [2009] FCA 1056; 112 ALD 54), or was vitiated by an unspecified error apparent from the outcome.

Particulars

2.1.    A police report purported to corroborate the Respondent’s claim that he is wanted for a crime for which the death penalty attaches. A translation referred to the ‘Guns Act No 22 of 1966’. On 22 March 2018 at 13:52 the IAA caused to be handed to the Respondent a notice also dated 22 March 2019 inviting comment on ‘new information’ obtained by the IAA. A ‘google search’ for ‘Guns Act (No 22 of 1966) Sri Lanka’ returned no results. But there was an ‘Offensive Weapons Act (No 18 of 1966),’ section 4 of which set out a term of imprisonment, but no death penalty.

2.2.    The 2018 IAA foreshadowed the negative ‘google search’ result as ‘the reason or part of the reason for affirming the [refusal] decision’ because it may lead the IAA to conclude that: there is no ‘Guns Act no. 22 of 1966 in Sri Lanka,’ therefore the police investigative report was fabricated, therefore the Respondent’s claims about the shooting, his arrest and bail were fabricated, therefore the Respondent might be disbelieved generally, and that the death penalty would not follow in any event, and therefore there could be no risk of significant harm.

2.3.    The 2018 IAA required a written response by the fixed date Tuesday 27 March 2018[.] On Friday 23 March 2018 at 05:30 Yongah Hill personnel emailed the 2018 IAA and confirmed delivery. Regulation 4.43 of the Migration Regulations 1994 and subsection 473DF(2) of the Act required the response to be given within ‘3 working days after’ notification. The Respondent’s representative nevertheless manages to respond in writing on Tuesday 27 March 2018 at 15:36 AWST by email: Although there was no Sri Lankan ‘Guns Act (No. 22) 1966,’ there was a Sri Lankan ‘Firearms Ordinance, Act No 22 of 1966’ which does in fact carry the death penalty.

2.4.    On Wednesday 28 March 2019 at 14:18 AEST, the 2018 IAA sets out its reasons for affirming the delegate’s refusal on an entirely different basis: the police investigative reports accepted by the 2017 IAA were now unreliable, and therefore warranted ‘no weight.’ At the same time, the 2018 IAA declined to consider the ‘new information’ considered by the 2017 IAA, which would otherwise have provided some corroboration of the police report. The 2018 IAA thus attributed ‘no weight’ to the police report. The 2018 IAA’s reasons were otherwise prima facie immunised in ‘credibility’ and ‘weight’ reasoning.

Section 473DD

35    Central to this appeal are the requirements of s 473DD of the Migration Act. It is appropriate to set this out, as well as a passage from CSR16 construing the section, before summarising the parties’ submissions on how s 473DD should be construed, and on whether CSR16 is wrong.

36    Section 473DD of the Migration Act provides:

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.

37    In CSR16, the Authority had construed the word “credible” as meaning “true”. At [40]-[43], Bromberg J found:

40    An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:

The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].

41    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

43    The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

38    It will be necessary to return to this passage, and how it has been applied, later in these reasons.

The parties’ submissions on the appeal

The Minister’s submissions

Ground 1

39    By ground 1 of his notice of appeal, the Minister challenges the correctness of CSR16. The Minister submits that there is nothing in the text or context of s 473DD(b)(ii) to suggest a decision-maker may not determine whether new information is true, rather than whether it is capable of being believed. The Minister makes five points:

(a)    The word “credible” is not qualified; that is, the question is not whether it may be credible.

(b)    CSR16 effectively inserts the following underlined words into s 473DD(b)(ii) – “is credible personal information which was not previously known and, had it been known and had it been accepted as true” – contrary to ordinary principles of statutory construction.

(c)    It is a matter of Full Court authority that a decision-maker may assess the credibility of new information by reference to other information before the Authority. This is inconsistent with the proposition in CSR16 that the assessment of credibility is an “anterior” stage of the decision-making process.

(d)    The purpose of s 473DD is to limit the circumstances in which the Authority can consider new information. That purpose would be undermined by construing the section as requiring no more than that the information might be believed and might affect the determination of the referred applicant’s claims.

(e)    The word “credible” must be construed in the context of the second part of s 473DD(b)(ii): could the information have affected the consideration of the referred applicant’s claims? CSR16 fails to do this by positing a single standard of credibility that ignores the relationship between credibility and relevance in the wider evaluative task.

40    The Minister contends that CSR16 wrongly introduces a distinction between preliminary and deliberative stages in a Pt 7AA review, when the scheme makes no such distinction and contemplates a single decision-making process.

41    The Minister made no submissions suggesting that the catalogue of cases to which the first respondent referred – where CSR16 had either been adopted or applied with apparent approval, or expressly endorsed – was incorrect or incomplete. However, the Minister did submit that the Court on this appeal only needed to be satisfied that CSR16 was incorrectly decided, not “plainly wrong”, because, although CSR16 was a decision in the Court’s appellate jurisdiction, it was a decision of a single judge, while the Court on this appeal is constituted by a bench of three judges. In support of this position, the Minister relied on Suh v Minister for Immigration and Citizenship [2009] FCAFC 42; 175 FCR 515 at [29]:

The federal magistrate was correct to regard herself as bound by Kim. That would be so whether it was a judgment of a single judge or a Full Court. However, we wish to enter a general caveat against any notion that the authority of judgments of single judges of the Court waxes and wanes according to whether they are sitting as single judges in the Court’s appellate jurisdiction or in the Court’s original jurisdiction and, if the former, on appeal from any particular court or judicial officer. The matter was not the subject of argument and we will, accordingly, do no more than register our concern that the true position may have been misunderstood.

42    Since, as we explain below, we consider that CSR16 is correct, there is no need to address the general question of how a Full Court should treat a decision of a single judge in the appellate jurisdiction. However, we are not confident the Full Court in Suh was making the same point as the Minister seeks to make here. Suh concerned the operation of the doctrine of precedent in the Federal Circuit Court.

Ground 2

43    Ground 2 assumes, against ground 1, that CSR16 is correct. Under this ground, the Minister submits the Federal Circuit Court erred in finding that the second Authority failed to apply the test in CSR16. In short, the Minister submits that the Authority’s findings were directed towards whether the newspaper article was capable of being believed, not whether it was true. He contends that, unlike in CSR16 itself, there was no conflation of the separate assessments of, first, whether the new information should be considered under s 473DD and, second, the substantive merits of the first respondent’s claims.

44    The Minister submits that in making a determination whether the applicant has satisfied the Authority about the matters in s 473DD(b)(ii), the Authority is not required to make that determination in a vacuum, and is entitled to compare the proposed new information against other material before it on the review. In this context, the Minister refers, by analogy, to the High Court’s decision in Gallagher v The Queen [1986] HCA 26; 160 CLR 392 at 397.

Ground 3

45    Under ground 3, the Minister submits that, even if the second Authority did err in refusing to consider the newspaper article under s 473DD, the error was not material, and obviously so. The Authority found that the article was not capable of being believed (or, was not true). It follows, the Minister submits, that the outcome of the review could not realistically have been different if the Authority had considered the article (assuming in the first respondent’s favour that, had it approached s 473DD properly, it would have).

46    The Minister also submits that the Federal Circuit Court applied the wrong test for materiality, asking whether the Authority’s erroneous approach to s 473DD “may have realistically made a difference”, rather than whether, if the Authority had not erred, that could realistically have resulted in a different decision.

The first respondent’s submissions

Ground 1

47    In response to ground 1, the first respondent submits that CSR16 is correct, essentially for the reasons given by the Court. Further, the first respondent submits that CSR16 should only be overruled if it is “plainly wrong”, because it is a decision of this Court made in the Court’s appellate jurisdiction which has been followed by numerous single judges and recently cited with apparent approval by a unanimous Full Court in BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24 at [55].

Ground 2

48    In response to ground 2, the first respondent focuses on the second sentence of the paragraph of the second Authority’s reasons extracted at [24] above: “I accept if true this is personal information” (emphasis added). He contends this establishes clearly that the Authority took the wrong approach. The first respondent also points to the Authority’s statement that it was led to “doubt the genuineness of the document”. The first respondent submits this shows the Authority was asking whether the article was true, not credible. The first respondent also notes that the first Authority, whose decision was not under review by the Federal Circuit Court, had found that the article should be considered under s 473DD.

Ground 3

49    In response to ground 3, the first respondent submits that, had the second Authority properly understood s 473DD(b)(ii), it may then have found that there were exceptional circumstances “staring it in the face”: namely, that the first Authority had decided to consider the article under s 473DD. The first respondent submits that, had the second Authority considered the article, there was a realistic possibility that the outcome of its review would have been different, because the article appears to corroborate the first respondent’s claim that he may be convicted of an offence to which the death penalty applies. The first respondent also submits that, where questions of weight are involved, a Court should be slow to find that an error is not material.

The parties’ submissions on the notice of contention

The first respondent’s submissions

50    In the remaining ground of his notice of contention, the first respondent contends the second Authority’s decision is affected by apprehended bias. The contention is put in terms similar to those contained in one of the grounds he unsuccessfully sought to rely on in the Federal Circuit Court.

51    The first respondent submits that a reasonable bystander might have apprehended the second Authority might not have brought an open mind to the matters it was required to determine, on the following basis. The first respondent contrasts the reasons of the first Authority, which did not doubt the authenticity of the police report, with those of the second Authority, which did. The first Authority found that, notwithstanding the police report, there was no real risk the first respondent would be exposed to the death penalty if returned to Sri Lanka, but the Full Court on review of that decision found there was no reasonable basis for that conclusion. On remitter, the first respondent submits, in both the terms of its reasons and the procedure it undertook, a reasonable apprehension arose that the second Authority sought to “get around” the Full Court’s conclusion by looking for ways to disbelieve his account.

52    The first respondent points to the fact that the second Authority itself searched for the “Guns Act” on Google, and when it found there were no hits it suggested to him that the non-existence of the Act may mean that the police report had been fabricated and that, therefore, he would not face significant harm if returned to Sri Lanka. The first respondent submits the articulation of this chain of reasoning gives rise to an apprehension the second Authority had already made up its mind when it sent the letter out. This is compounded, the first respondent submits, by the objective fact that the second Authority made its decision shortly after the deadline for comment had passed – a matter of nine business hours he contended – which might lead a reasonable bystander to apprehend that the second Authority might not have been “genuinely interested in any response”.

53    The first respondent also contrasted the Google search the second Authority did undertake with one it did not: namely, it did not do any Google search for the Dinamina newspaper, which is the newspaper in which the 2015 article was said by the first respondent to have appeared, to ascertain if the paper existed, and what it looked like. Taken cumulatively the first respondent contends these matters give rise to a reasonable apprehension of bias in the approach of the second Authority.

The Minister’s submissions

54    The Minister submits that, by his notice of contention, the first respondent in substance seeks to challenge and reverse the Federal Circuit Court’s refusal of leave to rely on the same ground in that court without having sought leave in this Court under s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Alternatively, if s 24(1A) does not apply, and the Court on appeal can deal with this contention by reason of s 28(4) of the Federal Court Act, then the Minister submits the first respondent still needs to show error in the approach taken by the Federal Circuit Court. No error can be shown where there is no challenge on the appeal to the discretionary basis for the refusal of leave. Further, the Minister submits that, in any event, the matters referred to by the first respondent do not establish apprehended bias on the part of the second Authority.

Resolution

55    Ground 2 of the notice of appeal should be upheld. Given the numerous ongoing challenges by the Minister to the correctness of CSR16, it is also appropriate to determine ground 1, notwithstanding that if ground 2 is upheld, it is not strictly necessary to do so. In our opinion CSR16 is correctly decided. It is however not necessary to determine ground 3, given ground 2 is upheld. The apprehended bias ground in the notice of contention should be dismissed, for the reasons set out at [88]-[90] below.

Ground 1

56    CSR16 represents the law on the question of the correct approach to s 473DD(b)(ii), unless this Court declares the law differently. The standard that a three-member bench should apply to a challenge to a decision of a single judge, where both are exercising appellate jurisdiction, remains something of a vexed question. However, it is important to commence with the way CSR16 has been treated by other judges on this Court, to this point.

57    The Full Court has referred to CSR16 without disapproval: see BDY18 at [55], although in a context where the Minister did not press the argument which might have required the Full Court to engage with the reasoning in CSR16.

58    CSR16 was also cited with apparent approval by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [17]. As the first respondent’s submissions note, the decision has also been referred to without disapproval by a large number of single judges exercising appellate jurisdiction, and on a number of occasions with express approval or agreement: see BNV18 v Minister for Home Affairs [2018] FCA 1788 at [17]; AYK17 v Minister for Immigration and Border Protection [2019] FCA 1053 at [38]; DUZ17 v Minister for Home Affairs [2019] FCA 1593 at [56]; FBR18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1620 at [60]-[61]; BOS17 v Minister for Immigration and Border Protection [2020] FCA 75 at [43]; ALJ18 v Minister for Home Affairs [2020] FCA 491 at [29]; ABH18 v Minister for Home Affairs [2020] FCA 620 at [43].

59    While CSR16 may not properly be described as a decision of long standing, it is a decision which has been referred to and applied on a large number of occasions, because of the volume of migration cases in this Court. In other areas, it may take a decade for a case to be cited that often. It is therefore relevant to take into account that the decision has been referred to and relied upon consistently since 2018, in the same way the authorities discuss this matter in situations where a court is deciding whether there are compelling reasons to depart from a previous decision: see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2020] FCAFC 122 at [125]-[126]. It is also relevant to note that CSR16 was not the subject of any special leave application.

60    Comity in the exercise of judicial power at levels considered equivalent (intermediate appellate courts, appellate jurisdiction) serves institutional purposes, “uphold[ing] the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges”: see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74]-[76] (affd [2004] FCAFC 114; 138 FCR 475), cited with approval in Batterham v QSR Limited [2006] HCA 23; 225 CLR 237 at [73] and Frugtniet v Australian Securities and Investments Commission [2017] FCAFC 162; 255 FCR 96 at [93].

61    Whatever be the appropriate descriptor for the level of judicial conviction which must be held as between courts exercising appellate jurisdiction but constituted by different numbers of judges, there would need to be, in our respectful opinion, compelling reasons to depart from CSR16 in the present circumstances. Otherwise, principles of judicial comity, institutional integrity and of the settled and consistent application of the law are brought into question.

62    In our respectful opinion, for the following reasons, CSR16 is correctly decided, and Bromberg J’s construction of s 473DD(b)(ii) is correct.

63    A number of points should be made about the legislative scheme in Pt 7AA which inform the proper construction of s 473DD(b)(ii).

64    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22], the plurality described the “primary rule” applicable to the Authority’s review under Pt 7AA:

Within Div 3, s 473DB sets out the primary requirement that, subject to the Part, the Authority is to 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. To that primary rule, subdiv C of Div 3 admits of exceptions. The principal provisions of subdiv C providing for those exceptions are contained in ss 473DC, 473DD and 473DE.

65    At [27], noting that it was possible for the Secretary, in the review material given to the Authority, to provide information that was not before the delegate, the plurality said:

Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.

(Emphasis added.)

66    In that context, the plurality then described s 473DD as imposing “restrictions on when the Authority can consider new information”: at [28]. That position, as the Minister correctly submitted on the appeal, reflects a policy decision articulated in the extrinsic material which introduced Pt 7AA to limit the circumstances in which the Authority can consider new information: see Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [909].

67    Having explained at [29] that the “exceptional circumstances” “precondition set out in s 473DD(a) must always be met”, the plurality then said of s 473DD(b) (at [34]):

Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

(Emphasis added.)

68    Two matters should be noted about this passage, and the proper approach described by the plurality. First, what is contained in s 473DD is described as a “precondition”. That is, although it is part of the review function of the Authority, the exercise of power under s 473DD comes before the Authority can “consider new information that is given to it” by a referred applicant. It is thus part of the Authority’s preliminary decision-making about what is the complete scope of the material it will be considering on its review for the purpose of its statutory task, which is, as the plurality in Plaintiff M174 outlined at [17],

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.

69    As the plurality observed at [32], the precondition in s 473DD(b)(i) needs “[n]o explication”. It is a matter of objective fact, and straightforward. It would be curious if the precondition in s 473DD(b)(ii) were not also treated as involving a relatively straightforward assessment, being, as we have explained, a preliminary step the Authority must take before settling on the scope of the material which is to be before it on its review, so that it can consider afresh the protection visa application, and make its own decision.

70    Thus, the parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.

71    The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.

72    Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.

73    However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.

74    As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.

75    That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.

76    Particularly in a scheme premised on a review “on the papers”, there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant’s explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were “true”). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what “new information” is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.

77    Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).

78    Specifically, as to the Minister’s submissions:

(a)    It is not to the point that the word “credible” is not qualified. What matters is, as we have explained, the meaning of the word Parliament has chosen to use, which is “credible”. As Bromberg J identified, its meaning is not the same as “true”.

(b)    The approach in CSR16 does not require any additional or different text to be implied into s 473DD(b)(ii). It simply requires assigning the appropriate meaning, in context, to the word “credible”.

(c)    There is no inconsistency between the approach in CSR16 and the proposition that the Authority may examine other review material as part of its exercise of power under any of ss 473DC; 473DD or 473DE. However, the Authority must not in substance embark on the conduct of its review – making a fresh decision – by using material to determine a visa applicant’s credibility that it then decides to exclude from the review. The scheme does not intend that this can occur. That would be a substantively unfair process, and there would need to be clear words to give this part of the scheme such an operation.

(d)    The purpose of s 473DD is not undermined at all by construing s 473DD(b)(ii) in the way we have explained. This argument ignores any holistic consideration of s 473DD, which erects a considerable threshold to the receipt of new information. Further, the purpose of the scheme of Pt 7AA would be undermined by an approach that enabled the Authority to make adverse credibility findings against a visa applicant which were material to the outcome of the review on the basis of “new information” which then did not form part of the review material before it. That would be inconsistent with s 473DB.

79    A question which could arise on both ground 1 and ground 2, but which was not advanced by the first respondent, is how it is that the second Authority needed to make a fresh decision about the 2015 newspaper article, and the other material, when the first Authority had exercised its power under s 473DD and considered the material as part of its review. On one view, just as with any new interview conducted, or any information an Authority decided to “get” under s 473DC, material or information admitted into a review by an exercise of power under s 473DD might well thereafter form part of the record of the Authority, for the purpose of the review, including any further review which may occur on remitter. However, that is a question which need not be resolved on this appeal.

80    Ground 1 fails.

Ground 2

81    As we have explained in the consideration of ground 1, the Authority is required to be satisfied the new information is “capable of being believed”. That means, conversely, the Authority is able to decide that the new information is not capable of being believed.

82    As Bromberg J said in CSR16 at [42]:

It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

83    The Minister is correct to contend that the Authority’s reasons in this case should be understood as finding that the 2015 newspaper article was “evidently not credible” or “not capable of being believed”.

84    The second Authority’s invocation of country information about fraudulent documents is one of the indications that, in substance, it was making a finding that this information was not capable of being believed, rather than any final determination that the contents of the 2015 article were not true. The Authority begins and ends [15] of its reasons with findings doubting the genuineness of the document: that was, we find, its primary focus in its reasoning. On the facts and reasoning in this review, the finding that the 2015 newspaper article was not genuine was a finding that the document is not capable of being believed. When the Authority uses the phrase in [15] of its reasons “if true”, it uses the word “if” in the hypothetical sense, to indicate its acceptance of the hypothetical proposition that the contents of the newspaper article would be personal information. It is not using the word “true” in that context as a synonym for credible. When it does turn to consider the criterion in s 473DD(b)(ii), it uses the statutory language by expressing the view that the article “is not credible”.

85    The second Authority certainly made an assessment of the 2015 article which was adverse to the first respondent’s contentions. It would appear its findings about the prevalence of fabrication of documents in Sri Lanka were directed, as the Minister conceded, to the two-page newspaper article in Sinhalese, not to the translation document, which on its face was produced in Australia, by a NAATI-accredited interpreter. There was no challenge to that finding by the Authority on the basis of legal unreasonableness.

86    Ground 2 succeeds.

Ground 3

87    It is not necessary to determine this ground, given ground 2 succeeds.

The notice of contention

88    The short answer to the notice of contention is that given by the Minister in oral submissions. Assuming in favour of the first respondent’s contention that s 28(4) of the Federal Court Act is the source of the first respondent’s entitlement to put the argument contained in the notice of contention on this appeal, without leave, the first respondent must nevertheless establish that the Federal Circuit Court’s orders should be upheld on a ground other than the grounds articulated by the Federal Circuit Court.

89    Here, the putative ground is a point expressly excluded from argument by the Federal Circuit Court, in its ruling refusing leave to the first respondent to raise an apprehend bias ground. That refusal was made on the basis of well-established legal principles found in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [5] and [102]. Those principles were the subject of careful and full consideration and application by the Federal Circuit Court at [20]-[28] of its reasons.

90    There was no attempt whatsoever by the first respondent on the appeal to impugn the approach taken by the Federal Circuit Court to the exercise of its discretion to grant leave. There was no attempt at all to establish error. In this particular context, we do not accept that this Court can find the orders of the Federal Circuit Court should be upheld on a different basis, in the absence of any challenge to the exclusion of this ground in the exercise of the Court’s discretion. The first respondent must establish some error in the Federal Circuit Court’s approach to the discretion, and he has not even attempted to do so.

91    In those circumstances, it is not necessary to consider the substance of the arguments on apprehended bias. Were we to have done so, we would have found them unpersuasive. The first respondent’s complaints are no more than a quarrel with a second and differently constituted Authority taking a different approach to the facts on the review. That was always a possible outcome of the re-performance of the Authority’s task to consider the protection visa application afresh and make a decision for itself.

92    The notice of contention should be dismissed.

Conclusion

93    The appeal will be allowed. There was no submission advanced that costs should not follow the event, and we consider that is the appropriate order.

Associate:

Dated:    23 September 2020