Federal Court of Australia

EMS18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 174

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

3.    On or before 27 October 2020, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs referred to above.

4.    In the absence of any agreement in accordance with Order 3, the matter of an appropriate lump sum figure for the first respondent’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

MURPHY AND MORTIMER JJ:

Introduction

1    The appellant is a Tamil man who came to Australia from the Northern Province of Sri Lanka via India in April 2013. The appellant came to Australia by boat, and for that reason has been considered an “irregular maritime arrival” by Australian immigration authorities, and after delays amounting to some years his visa application has progressed through the “fast track” review process under Part 7AA of the Migration Act 1958 (Cth).

2    The appellant’s personal and family history relevant to his claims for protection is set out in the Federal Circuit Court decision from [2]-[16]. It is unnecessary to set out the detail, save to the extent it is relevant to the grounds of appeal. They centred on his, and his family’s, involvement with the Liberation Tigers of Tamil Eelam, and his fears of retributive treatment by Sri Lankan authorities because of that involvement (actual and imputed). The appellant contended to the Immigration Assessment Authority, and the Authority substantially accepted, that he had been afraid to disclose the real extent of his involvement with the LTTE in his Safe Haven Enterprise visa (SHEV) application and before the delegate. He did not make that disclosure until the review before the Authority. The Authority accepted that the appellant fled to India in June 2012 after a period of hiding in Sri Lanka, and then after about 10 months spent in hiding in India, travelled to Australia by boat.

3    The relevant procedural chronology is as follows. Relevantly to the grounds of review, the appellant’s entry interview was conducted in two parts. Part 1 was conducted on 15 June 2013 and Part 2 was conducted on 23 August 2013.

4    It was not until 3 August 2016 that the Minister exercised his power under s 46A(2) to lift the bar imposed by s 46A(1) of the Migration Act, and to allow the appellant to apply for a SHEV. On 7 March 2017, the appellant applied for a SHEV, with some limited pro bono assistance from the Humanitarian Group, a non-profit community legal centre in Western Australia.

5    On 14 November 2017, a delegate of the Minister refused to grant a SHEV. On 17 November 2017, the decision was referred to the Authority for review under Part 7AA. The appellant was legally represented during the Authority’s review. It was this legal assistance which led to the filing with the Authority of additional submissions, a statutory declaration from the appellant and a number of supporting documents. On 21 August 2018, the Authority affirmed the delegate’s decision.

6    On 30 August 2018, the appellant applied for review in the Federal Circuit Court. The appellant was represented in the Federal Circuit Court by the same lawyers he retains before this Court. On 12 February 2020, the Federal Circuit Court dismissed the appellant’s judicial review application.

The Authority’s decision

7    As we have noted above, there was a considerable amount of material filed with the Authority which had not been before the delegate. After giving an account reflecting what the appellant explained in his statutory declaration to the Authority was the true extent of his involvement with the LTTE (being far greater than the narrative given to the delegate), the appellant’s legal representative submitted:

Much of the above is ‘new information’ (within the meaning of s 473DC of the Migration Act 1958 (Cth) (Act)) which was not before the Delegate at the time of decision. However, it is credible, personal information which was not previously known and, had it been known, may have affected the consideration of the Applicant’s claims: s 473DD(b)(ii). This information is directly relevant to assessing whether the Applicant satisfies the requirements for the grant of this visa and the IAA should find that there are exceptional circumstances to justify considering this information.

The Applicant’s reason for not previously disclosing this information is that he feared that since Australia considers the LTTE to be a terrorist organisation, he would either be returned to Sri Lanka to face punishment for his LTTE involvement or be punished by the Australian authorities. The Applicant’s prior experiences of mistreatment during detention have caused him to have an intense fear of further torture during any kind of detention. The Administrative Appeals Tribunal’s Guidelines on the Assessment of Credibility (Credibility Guidelines) provide general guidance concerning the assessment of credibility of visa applicants. The Credibility Guidelines advise Tribunal Members that situations often arise whereby Protection visa applicants ‘may not reveal the whole of his or her story because of feelings of shame, for fear of endangering relatives or friends or because of mistrust of persons in positions of authority’. In Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126, O’Connor, Branson and Marshall JJ reflected on the guidance provided by Professor James Hathaway who explained that despite having previously provided incorrect information, an applicant should still be allowed the opportunity to provide credible testimony at a later date. Importantly, the IAA should acknowledge that the Applicant’s situation has been exacerbated by the fact he did not have legal representation at the primary stage of his application process and he does not speak English. Upon receiving legal advice, the Applicant now understands the significance of this new information and that it will not be shared by the Australian authorities with the authorities in Sri Lanka. Taking into account the above information, the IAA should find that there are exceptional circumstances justifying the consideration of this new information.

8    The Authority accepted this explanation to some extent, but not entirely. It refused to accept some of the new material under s 473DC of the Act, but did accept other parts. It is not necessary to set out in detail its reasoning on the various aspects of the new information. However, on the critical matter of the appellant’s account of the real level of his own involvement with the LTTE, the Authority concluded at [14]:

For all the above reasons, I have found it difficult to identify any exceptional circumstances to justify considering the new information in relation to his supporting information and new claims he was member of the Sea Tigers, was injured in a canon blast in 2007 and was detained and sent to rehabilitation at the end of the war, and I consider, in the context of this information, whether exceptional circumstances exist, to be borderline. However, looking at the circumstances overall and in combination, including the significance of the new information, which I consider is credible in the relevant sense and tends to explain some of the anomalies in his previous evidence, the corroborative documentary evidence provided in support, and the circumstances in which he lodged his application, I am satisfied that the circumstances are exceptional such as to justify considering it.

9    From [21] of its reasons the Authority turned to consider the appellant’s claims for protection. Having outlined the appellant’s claims, it then made a series of factual findings. One of the issues on the review was the difference between the amount of information provided by the appellant at his entry interview, and the amount of information he had subsequently provided, which was quantitatively and qualitatively different. At [22] of its reasons, the Authority described the appellant’s entry interview in the following terms:

The applicant’s arrival interview was in two parts, the first part was conducted on 15 June 2013 and the second part on 23 August 2013. I have a transcript for both parts and have listened to the audio for the second part (the audio for the first was not available) and it does not appear that the applicant was asked to be brief.

(Emphasis added)

10    The part in bold reflects what the Authority was told when it inquired of the Secretary about Part 1 of the entry interview not having been given to the Authority pursuant to s 473CB(1)(c). The Authority was informed:

The delegate has advised that the Entry Interview Recording (PART1) is not available. He is however, satisfied that the hard copy of Entry Interview which was enclosed with the IAA portfolio is a true and accurate recording of what was discussed at the applicant’s Entry Interview.

11    As counsel for the appellant pointed out, what the Authority had before it in relation to Part 1 of the entry interview was not a “transcript” as that word might usually be understood. Rather, the Authority had the form completed by the interviewer, which recorded the questions asked of the appellant and the answers given.

12    The appellant contends the Authority’s statement at [22] of its reasons (see [9] above) that “it does not appear that the applicant was asked to be brief” was a positive and adverse finding which then informed or affected some of the Authority’s other adverse findings against the appellant on the review. The absence of Part 1 of the entry interview was the factual basis for the first of the four grounds of review before the Federal Circuit Court and is the factual basis for the only ground of appeal in this Court.

13    The Authority’s further factual findings are not the subject of any ground of appeal in this Court but they were on any view a core aspect of the Authority’s review and should be described. From [26] the Authority makes and explains its finding for the appellant’s claim that he was part of a family which, because of the involvement of his mother, himself and his sister, would be identified as an “LTTE family” by the Sri Lankan authorities and that he faced a real chance of persecution because of that. The submission made to the Authority on his behalf was:

DFAT and UNHCR also identify a risk profile for ‘persons with family links or who are dependent on or otherwise closely related to persons with the [other LTTE connection] profiles’. At interview, the Applicant attempted on multiple occasions to provide evidence of his family’s involvement with the LTTE. The Delegate did not allow the Applicant a fair opportunity to present this information.

14    The latter contention was then expanded upon, in terms it is not necessary to repeat.

15    The Authority did not accept this claim. It dealt at [26] with the appellant’s mother’s circumstances and concluded:

While I am willing to accept she may have been detained some 23 years ago on suspicion of LTTE involvement I do not accept she continued to be of interest to the authorities after her release some 21 years ago.

16    At [27], it dealt with the appellant’s brother’s circumstances, and rejected the claims his brother had been harassed by the authorities or had any adverse security profile.

17    At [28] the Authority dealt with the circumstances of the appellant’s sister. It stated:

The applicant claims his sister was engaged to the personal assistant of a high level LTTE member and that her fiancé was killed in a bomb blast in 2007 that she fled Sri Lanka in 2013 and is in the UK seeking asylum, and that while in the UK she has attended protests about Tamil rights and in the SHEV interview she told the delegate she had had given an open interview to the media about her circumstances. He has not said that she was ever arrested or detained after the end of the war on suspicion of LTTE involvement. He has consistently stated his sister’s ex-fiancé was killed in a bomb attack and that her ex-fiancé was part of the LTTE and that his sister was now in the UK seeking asylum and has spoken out about Tamil rights.

18    The Authority then described the documents and photographs supplied by the appellant to support his claim, and found at [30]:

The applicant has also provided an obituary with a large photo of an LTTE member (who appears to be leadership) and much smaller images of six other LTTE members in support of his claim his sister’s ex-fiancé, personal assistant to an LTTE leader, died in a bomb blast in 2007 (photo 7). A photo claimed to be of his sister standing behind Prabhakaran was also provided (photo 8). The woman claimed to be his sister in photo 8 bears a resemblance to the woman claimed to be his sister in photos 3, 4 and 5. One of the men claimed to be his sister’s ex-fiancé in photo 7 bears a very strong resemblance to the man claimed to be his sister’s ex-fiancé in photos 3 and 4, which I am satisfied also contain images of his sister. Further, an LTTE obituary of a man who bears a striking resemblance to the man claimed to be his sister’s ex-fiancé in photos 3 and 4 appears to state the man’s death was in 2007. In light of the above, given the consistency of the claim and the obituary provided I am willing to accept his sister’s ex-fiancé may have been an LTTE member and may have died in a bomb blast in 2007 but I do not accept he was a high ranking LTTE member. I am willing to accept his sister is in the UK and that she has protested about Tamil rights while over there.

19    At [31] the Authority dealt with the circumstances of the appellant’s ex-partner, accepting she had been killed during the civil war but finding her death was not linked to the appellant in any way. The Authority explained its conclusion on the “LTTE family” claim at [32]:

In the arrival and SHEV interviews the applicant repeatedly stated that his whole family was targeted because of links to the LTTE and that they were branded an LTTE family. However based on the applicant’s evidence detailed above, including that his parents and brother still currently live in Sri Lanka, and other than his mother’s detention some 21 years ago, there is no credible evidence before me to indicate they have been detained or harassed by the authorities (other than in connection with him and his sister). I do not accept this claim.

20    From [33]-[44] the Authority then dealt with the appellant’s own involvement with the LTTE, as the Authority accepted it to have been. At [47] the Authority then summarised its conclusions on the factual aspects of the appellant’s claim for the purposes of s 5H(1) of the Act and the circumstances in which a person is a refugee:

I accept the applicant is from the Northern Province, that his mother was detained on suspicion of LTTE involvement more than 20 years ago. I accept his brother may have been a photographer for the LTTE Peace Secretariat. I do not accept his brother has ever been of interest to the authorities or that his mother has, since her release. I accept his sister was engaged to a former low level LTTE member who was killed in a bomb blast some 11 years ago. I also accept she is currently in the UK seeking asylum and has been involved in protests for Tamil rights. I accept the applicant is a former member of the Sea Tigers, and that he was detained because of his involvement after surrendering at the end of the war and subsequently underwent rehabilitation for 10 months and was released from this in November 2011. I also accept he was briefly detained again in connection with the discovery of weapons near his family farm in November 2011 but was released after 10 days and find that he was no longer of interest in connection with this. I also accept he legally travelled to India in June 2012 on his own passport but I do not accept officials at the airport were bribed. I do not accept his family is viewed as an ‘LTTE family’ by the authorities. I do not accept the applicant was wanted by the authorities in connection with an adverse security profile when he left Sri Lanka some six years ago.

21    The Authority then went on to make findings about what it considered to have been the political, social, justice and security changes in the situation in Sri Lanka, and found at [54]:

Based on the country information the conditions for Tamils, and in particular former low level LTTE members and rehabilitees, in Sri Lanka have significantly improved since the current government came into power, but the conditions are still not ideal. Those who come to the adverse attention of the authorities may be severely mistreated by them. However, the authorities are specifically interested in those with separatist, criminal and certain political backgrounds, former LTTE members who have not undergone rehabilitation or former LTTE leadership. Having regard to the country information and the applicant and his family’s profile, including his Tamil ethnicity and origin, his mother’s detention some 21 years ago, his brother’s work for the Peace Secretariat, his sister’s activities in the UK and that he was a former low level LTTE member, underwent rehabilitation some seven years ago and does not have a political profile I do not accept he faces a real chance of harm on his return.

22    It made similar findings in relation to the appellant’s claim for complementary protection.

The Federal Circuit Court’s Decision

23    The Federal Circuit Court delivered its reasons ex tempore at the hearing, and after an appeal had been filed, the judge concerned provided written reasons. Indeed, the Court’s orders have the following notation beneath them:

IT IS NOTED:

(A) That the Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged and the Court has received a request in writing from either party seeking that written reasons be produced.

24    The appellant has not contended that this practice impeded the exercise of his right of appeal. Since he was legally represented during the judicial review, it is fair to infer that his lawyers explained the Court’s oral reasons to him; it would be a neglect of their professional duties if they did not.

25    In its subsequent written reasons dated 16 March 2020, the Federal Circuit Court’s reasoning on the grounds of review begins at [43], where the four grounds of review are set out:

1A. The Second Respondent’s (IAA) decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction, because the Secretary failed to fulfil her duty under paragraph 473CB(1)(c) to provide relevant material to the IAA.

2A. The IAA’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction because the IAA’s misconstrued or misapplied its discretion under section 473DD in declining to receive so-called “new information”.

3.A The IAA’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction because the IAA unreasonably failed to exercise its discretion under subsection 473DC(3), or to consider whether to exercise its discretion, to invite the Applicant to give the IAA information or to attend an interview.

4.A The IAA’s decision to affirm the delegate’s refusal was vitiated by a constructive failure to exercise jurisdiction because its finding that the Applicant’s deceased fiancé was not a ‘high ranking LTTE member’ (CB 188 [30]) or its failure to be satisfied that it was so, did not have an intelligible justification, or was capricious.

26    These grounds are in substance the same as those originally in the Notice of Appeal to this Court, although only ground 1 is now pressed. The Federal Circuit Court identified at [44] that “even though there are four grounds, there are really only two factual matrices that underpin those four grounds” and that was, with respect, correct.

27    It then set out the first of the relevant “factual matrices” from [45]-[47]: that the appellant had completed his entry interview on arrival into Australia in two parts, on two different days, and that the Authority was provided with the audio recording of Part 2 but not Part 1 of the interview.

28    It is s 473CB(1)(a)-(c) of the Migration Act which imposes an obligation on the Secretary to “give” material to the Authority:

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;

…

29    There was no further evidence before the Federal Circuit Court as to why the Part 1 entry interview recording was not given to the Authority The fact that no further evidence was adduced on judicial review to clarify what “unavailable” meant is not irrelevant to the prospects of the success for the ground of appeal. The Federal Circuit Court found at [47]:

What is actually meant by “unavailable” is not certain, other than the audio recording is not produced to the IAA. It could be speculated the recording has been lost, or erased, or damaged, but that is only speculation. The fact is, it has not been given to the IAA.

30    At [51]-[54], the Federal Circuit Court rejected the contention that the Authority made a positive finding the Applicant “was not told to be brief”. It also rejected the contention that any such positive finding (even if made) was the principal or operative factor in the Authority’s refusal to accept some of his factual claims:

However, the IAA does not actually say that the Applicant was definitely not told to be brief. The IAA says that, in listening to the second part, “it does not appear that the applicant was asked to be brief” and then says that they “do not accept that inconsistencies or gaps were due to him being asked to be brief or as a result of the Department not telling him what they needed to know.” There is no positive finding that the Applicant was not told to be brief.

I also note that the relevance of this observation seems to amount to nothing when one considers the rest of the paragraph, and the fact that the IAA accepted the late claims of the Applicant that had never been raised before. The IAA said this, at the rest of paragraph 22:

… After the delegate’s decision was made, the applicant told the IAA that he had not told the complete truth to the Department and provided a number of new claims; I consider it more plausible that any inconsistencies or gaps in his evidence at the arrival interview are attributable to this rather than the issues he claims.

The Applicant points to the credibility findings that the IAA has made about the family’s LTTE connections. The Applicant’s submission is that if the Applicant had actually been told to be brief, it would have made the claims regarding his family easier to accept. I do not accept that submission. The aspect about “being brief” played no further role in the assessment made by the IAA, especially when it had accepted the late claims of the Applicant as to his time with the Sea Tigers and why it was that he had not made those claims before.

Even if there were a credibility corollary to the LTTE family claims, the most telling blow to the credibility of the Applicant was that the Applicant only had 10 months in “rehabilitation” and was able to obtain a passport and a driver’s licence so soon after his “rehabilitation”. The Applicant’s claim was that he was of very high rank within the LTTE and so were his family, and this is why he fears going back to Sri Lanka. Those objective matters, that is the fact he spent 10 months in “rehabilitation”, was able to obtain a passport, and was able to obtain a driver’s licence, as I say, are the most telling blows to the credibility of that claim.

31    The Court also notes at [55]-[56] that, as there was “no record of the Applicant saying his brother had bribed an official” at the entry interview, it was open to the Authority to reject the (then) applicant’s evidence on this point.

32    The Federal Circuit Court then concluded (at [58]-[60]):

All of those points, whether they be able to be answered or not, only go to materiality. And they only go to materiality if it is that there was a failure by the Secretary to comply with s.473CB of the Act.

I do not find that there was such a failure. The recording was “unavailable”, which means that it is not in the possession and control of the Secretary, even though it may once have been in that person’s control. The Secretary cannot give to the IAA something that it actually does not have.

The legislation does not say that the Secretary must give to the IAA all relevant material that it “should have”. But instead, says it must give all the relevant material that it “does have.” As I am not of the view that there has been a failure by the Secretary, I do not find that s.473CB of the Act has been breached. Therefore, I do not find that ground one has illustrated a jurisdictional error.

33    Since this is the only ground pressed on appeal, there is no need to set out the Federal Circuit Court’s reasoning on the other three grounds.

34    The Federal Circuit Court dismissed the judicial review application with costs.

The Appellant’s Submissions in Summary

35    The only ground of appeal which is pressed is framed as follows:

1. The learned primary Judge erred in not finding that the Second Respondent’s (IAA) decision to affirm the Second Respondent’s (Minister) refusal was vitiated by a constructive failure to exercise jurisdiction because the Secretary failed to fulfil her duty under paragraph 473CB(1)(c) of the Migration Act 1958 (Cth) to provide relevant material to the IAA.

Particulars

a. The Secretary failed to provide the IAA with ‘Part 1’ the ‘entry interview taking place on 15 June 2013,’ but only provided a recording of ‘Part 2’ taking place on 23 August 2013.

…

36    The appellant relies on EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20; 268 FCR 299 for the proposition that failure by the Secretary to provide material to the Authority as required by s 473CB(1) is capable of giving rise to jurisdictional error. We return to EVS17 below.

37    The appellant submits the so-called “transcript” of Part 1 of the entry interview should not have been relied upon by the Authority as though it were a full transcript of the interview. The appellant submits that, while the delegate in correspondence with the Authority stated that he was “satisfied that the hard copy of Entry Interview … is a true and accurate recording of what was discussed at the applicant’s Entry Interview”, this statement cannot be accepted, because:

Unless the delegate had in fact listened to the audio, it was more than a little misleading to offer such an assurance. On the other hand, it seems improbable that it was, literally, a ‘true and accurate recording’ because: it was not the recording, and the brief answers appearing in Part 1 apparently took about 2 hours to elicit.

(Emphasis in original)

38    The appellant further submits that the Federal Circuit Court’s finding at [59] that “the Secretary cannot give to the Authority something that it actually does not have” was an erroneous finding, for two reasons. First, when the department stated the Part 1 recording was “not available”, this did not establish the recording did not exist at the time of the departmental response. Second, it also did not establish that the Part 1 recording had not existed when the matter was referred to the Authority some two weeks’ earlier, which the appellant submits is the relevant time. He contends the departmental response demonstrates a failure to comply with s 473CB(1)(c) because first, there was a duty to retain a copy of the recording and second, it is not necessary to find fault to find that there has been a failure. The appellant relied on EVS17 and CVV16 v Minister for Home Affairs [2019] FCA 1890 at [80] in support of the last proposition. Therefore, in any case where relevant material considered by the delegate is not provided to the Authority, or at least any case where there is no satisfactory explanation for why it cannot be provided, there will be a contravention of the obligation in s 473CB.

39    Accepting, in accordance with EVS17, that in order to establish jurisdictional error the appellant must establish that if Part 1 of the entry interview had been before the Authority it could have affected the outcome of the review, the appellant’s counsel properly conceded in submissions that the circumstances were “close to the borderline of immateriality”. However he contended that the failure to provide Part 1 was material because:

(a)    Even if not a “finding”, the Authority did at least adopt in its reasoning an adverse position to the appellant, in finding “it does not appear the applicant was asked to be brief” and this was likely to have affected the rest of its reasoning;

(b)    In the SHEV interview the appellant had insisted he did state in his entry interview that his brother had bribed officials at Colombo airport to allow the appellant to travel from Sri Lanka to India, whereas at [42] the Authority found he had made this claim for the first time during his SHEV interview. It did not accept the bribery account, and this, the appellant contends, was an important issue because it went to whether he really did leave Sri Lanka legally (that is, without the Sri Lankan authorities being troubled by his departure);

(c)    Some of the matters which became “new information” before the Authority only had that character because he was not able to expand upon them in his entry interview;

(d)    The Authority’s refusal to interview the appellant, combined with the contravention of s 473(1)(c) meant the review proceeded on incomplete materials;

(e)    The delegate relied in his interview with the appellant on discrepancies between what was and was not said in the entry interview; and

(f)    Part 1 of the interview was the primary source of the information about the appellant’s claims, whereas Part 2 of the entry interview was more about biographical details and how the appellant travelled to Australia.

The Minister’s response in Summary

40    The Minister accepts that the proper inference in the circumstances is that the Secretary would have considered Part 1 of the recording to be relevant to the review, and would not have overlooked its provision. Rather, the “stronger inference” is that the sole reason the Secretary did not provide the recording to the Authority was that the recording was not available at the time the referral was made to the Authority, just as the departmental email stated.

41    Contrary to the appellant’s submissions, the Minister submits the Federal Circuit Court assessed the question of availability at the correct point in time: that is, at the time of the referral. The Court’s findings at [59]-[60] should be understood to be a finding that:

given the recording of Part 1 was unavailable two weeks after the referral, and given it was not included in the referred material, the recording was also unavailable at the time of the referral…

42    The Minister contends that there was therefore no obligation to provide Part 1 because:

As s 473CB(1)(c) only requires the Secretary to give relevant material in his or her ‘possession or control’, it did not require the Secretary to provide material which is not available to him or her. As the primary judge correctly held, the Secretary cannot give the Authority something which he or she does not actually have...

43    The Minister draws the Court’s attention to BEL18 v Minister for Home Affairs [2018] FCA 2103 at [81] and DWA17 v Minister for Immigration and Border Protection [2019] FCAFC 160; 272 FCR 152 at [14]-[15] and [51]-[52] as examples of other cases where part of the entry interview audio recording was unavailable and the Authority’s decision was not found to have been affected by jurisdictional error.

44    If, contrary to the Minister’s contention, there was a contravention of s 473CB(1)(c), he contended it was not material to the outcome of the review. The Authority was aware that although it did not have the recording of Part 1, it did have a form which recorded the appellant’s answers given during that section of the interview. Relying on DWA17 and Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 345 at [72], the Minister submits that “there was nothing preventing the Authority from relying on the written record of the interview.” The Minister then responded to the appellant’s specific contentions about materiality. We generally agree with those responses and refer to them below.

Resolution

Applicable principles

45    As the plurality explained in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [17], the Authority’s function or task 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.

46    Whether the Authority can perform that task as the statute requires may well depend on whether or not it has all the information Parliament expects it to have.

47    In EVS17, the Full Court explained at [35] how a contravention of the obligation in s 473CB could lead to the conclusion that the Authority’s task had miscarried in a way which affected its jurisdiction:

A failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the Authority from conducting the “review” contemplated by Pt 7AA such that jurisdictional error on the part of the Authority is established. But the parties were agreed, and we accept, that not every breach of s 473CB(1) of the Act will result in jurisdictional error. Rather, whether that is so will depend upon the gravity of the breach.

48    In assessing “gravity”, the Full Court explained at [41] that no overly technical approach should be taken:

The reduction of the assessment of the character of the documents to any overly precise textual formula is fraught with the risk of literalism and over-refinement. The conduct of the review is intended to be, to a degree, restricted, but fair. Natural justice requirements are circumscribed by the terms of Div 3 of Pt 7AA. One aspect of the context of this is the mandatory provision to the Authority of the material (implicitly, all the material) provided by the applicant to the decision-maker: s 473CB(1)(b). An aspect of fairness is the appearance of fairness. Thus, it is an important consideration, in assessing the gravity of the error or defect in the review caused by the Secretary’s failure to give to the Authority certain documents, that the applicant apparently considered them to be relevant. He wanted these documents considered. In that context, the assessment of the gravity of the failure should be by reference to assumptions of fairness, and the natural justice hearing rule that are taken to be exhaustively stated by Div 3, on the assumption of compliance with s 473CB.

49    And at [54], the Full Court applied this approach to the documents not provided to the Authority in the review before it, in a way which in our respectful opinion provides sound guidance on the approach to materiality in the present appeal:

The Medical Documents could have affected the outcome of the Authority’s review given their content, the claims made by the appellant and the reasons given by the Authority for rejecting those claims. That is, they could have led to the Authority drawing different conclusions in relation to some of the appellant’s claims which may, in turn, have affected the ultimate conclusion reached by the Authority. Here, there was no independent basis on which the Authority’s decision might otherwise have been upheld such that the breach of s 473CB(1)(b) could have made no difference to the outcome, namely the Authority’s decision to affirm the delegate’s decision: cf Hossain at [35].

50    EVS17 establishes how the Authority’s review decision might be affected by jurisdictional error through the non-provision of information by the Secretary, where the non-provision means that relevant information is not before the Authority. Where, as here, there is other contemporaneous material available to the Authority from the entry interview, an applicant would need to establish clearly what was the deficiency in the Authority’s ability to conduct the review. In BEL18 at [81] (per Middleton J):

Another way of looking at the question of the gap in the audio recording is to consider it in the context of the fast track process. There could be no suggestion that if no audio recording of the Interview was made that the Authority would be unable to undertake its statutory task. The Authority would have the reasons of the Minister and the other review material as described in s 473CB of the Act. The Authority would assess that review material and undertake its de novo review as contemplated by the legislative scheme. Where there is a gap in the audio recording of the Interview, the Authority can still undertake its task, but will simply need to undertake it on the available review material before it. In this sense, the Authority did consider the review material provided to it and which it received being, among other things, the audio recording of the Interview with the gap.

51    His Honour’s observations were not, in our respectful opinion, intended to suggest that a gap in the recording of a previous interview (whether of the delegate, or an entry interview) can never be sufficiently grave as to affect the outcome of the review. These matters are highly fact dependent. However, what his Honour’s observations make clear, is that the existence of a gap (or the absence of a recording entirely) is not, of itself, enough. We respectfully agree. A visa applicant must establish how that gap affected the Authority’s conduct of its review.

52    In DWA17 at [51]-[52] the Full Court emphasised the use to which the Authority could put the form which constitutes the contemporaneous written record of an entry interview:

The Authority's request for the audio recordings of Part 1 of the interview showed that it knew it did not have a complete record of the interview. This, it was said, followed from the request for the audio recording of the first part. Then, knowing that the written record might not have been exhaustive, the Authority proceeded as if it were. The appellant claimed that the statutory task of review did not authorise the Authority to rely on the written record as if it were an exhaustive transcript.

We do not accept that there is any jurisdictional error in the reasoning of the Authority as we have described it. As we have said, nothing inherent in the statutory task prohibits the Authority from relying, even relying heavily, on the absence of a claim from the record of an initial interview in order to reject a particular claim. Any formulation to that effect would go further than the dicta in MZZJO allow, and such formulations are to be avoided. The Authority's task was to review the materials provided to it and (with limited exceptions) no more than those materials, and to come to its own decision as to the appellant's protection claims.

53    The Full Court’s reference is to MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80; 239 FCR 436.

Consideration of the appellant’s argument

54    The appellant submitted, and we accept, that there were two steps in his argument. First, whether there was a contravention of s 473CB(1)(c), and second, if so, whether that contravention affected the outcome of the review in the way described in the authorities, including EVS17.

There was no contravention of s 473CB(1)(c)

55    We accept the Minister’s submission that the appellant did not establish before the Federal Circuit Court, and has not established on appeal, that the Secretary contravened the obligation in s 473CB(1)(c).

56    The appellant bore the onus of proof in his judicial review application. On the ground of review now under consideration, he needed to establish it was more likely than not that the Secretary had not given to the Authority “any other material that is in the Secretary’s possession or control”. Those are, relevantly, the terms of the obligation in s 473CB(1)(c). In order to prove that fact, he needed to establish that the Part 1 entry interview recording was, at the time the referral was made to the Authority, in the “possession or control” of the Secretary.

57    The evidence before the Federal Circuit Court, and before this Court, went no higher than the email from the Authority and the response from the Department which we have extracted at [10] above. That email proved the Part 1 entry interview was, after a specific inquiry from the Authority, “not available” to the Department (and, it can be inferred, to the Secretary). The delegate’s reported opinion which followed in the next sentence was irrelevant to the discharge of the Secretary’s obligation.

58    No additional steps were taken by the appellant in the Federal Circuit Court to clarify by way of further evidence whether “not available” meant lost, misplaced, destroyed or whether it meant (perhaps more helpfully for the appellant) that no-one within the Department had actually undertaken a search and this was some kind of formulaic response. A notice to produce the Part 1 recording could have been served, a Notice to Admit Facts could have been served; a subpoena could have been issued to the departmental officer who wrote the email for her to give evidence about what inquiries were made, and what she meant when she used the phrase “not available” in her email.

59    Therefore, the effect of the evidence before the Federal Circuit Court remained that the Part 1 entry interview recording was “not available” to the Secretary, with no clarity about what that meant. That is an insufficient basis for a finding that it was more likely than not that the Part 1 entry interview recording was in the possession or control of the Secretary, and the Secretary had not given it to the Authority. In the circumstances of this appeal, whether the critical time was at the time of the referral, or two weeks’ later when the Authority made its inquiry, does not affect this conclusion.

60    The Federal Circuit Court’s conclusion that the Secretary had not contravened s 473CB(1)(c) was correct, albeit that our reasoning is different.

61    Ground 1 must be rejected on the first step.

If there was a contravention, it could not have affected the outcome of the review

62    Despite our conclusion on the first step, since the matter was fully argued, we will explain why we also accept the Minister’s submissions that even if there was a contravention of s 473CB(1)(c), it was not material to the outcome of the review.

63    As the Full Court emphasised in EVS17, the threshold at which materiality is to be assessed is a relatively low one: could the provision of the missing information have affected the outcome of the Authority’s review?

64    Unlike in EVS17, the Authority here did have a contemporaneous record of Part 1 of the appellant’s entry interview; namely the form which had been filled out with his answers to various questions. The Authority was not without any basis to compare what the appellant said in later interviews or statements with what he was recorded to have said in the entry interview.

65    Subject to what we explain at [69] below, this was not a circumstance where the visa applicant contended there were whole segments, or critical aspects, of a factual account or narrative which were not written on the form, but which had been given in the Part 1 entry interview. This was a circumstance where the visa applicant gave an account of something the interviewer said to him, which he contended affected how he gave his answers. In theory, it is not impossible to see how, if an interviewer intervened and said to a visa applicant “keep your answers as brief as you can”, it might well be important for the Authority to know that that was said, if the reliability or credibility of a visa applicant’s account at the entry interview is later to be called into question. However, theory must always give way to the facts of a given case.

66    The difficulty for the appellant here, as the Authority itself identified, was that the appellant had told the Authority he did not give a truthful, let alone complete, account of his connections to the LTTE at the entry interview. He was too afraid to disclose his full involvement, and he gave a quite different, and inaccurate, narrative that did not place him with anything like a combatant role in the Sea Tigers wing of the LTTE, which is what the Authority accepted was in fact the true account. That is why, in our opinion, it was plainly open to the Authority to conclude (at [22]) that:

I do not accept inconsistencies or gaps in his arrival interview were due to him being asked to be brief or a result of the Department not telling him what they needed to know. After the delegate’s decision was made the applicant told the IAA that he had not told the complete truth to the Department and provided a number of new claims; I consider it more plausible that any inconsistencies or gaps in his evidence at the arrival interview are attributable to this rather than the issues he claims.

67    In the somewhat unusual circumstances of this particular review before the Authority, the outcome of its review could not have been affected by any failure to give the Authority the Part 1 entry interview recording: fundamentally, the Authority was being asked to, and did, conduct its review on the basis of a very different factual narrative given by the appellant, one that on his own admission he did not give at the entry interview.

68    To the extent they have not already been addressed, in relation to the specific contentions made by the appellant, we generally accept the Minister’s responses. In particular:

(a)    Aside from the bribery account which we address below, no link was identified between the other “new information” not accepted by the Authority and the appellant’s allegation he had been told to be “brief” in his entry interview. As we have noted above, this is not a case where the appellant was contending there were substantial accounts given by him at the entry interview which were not recorded on the form.

(b)    The delegate’s reasoning about discrepancies between the entry interview and the SHEV interview with the delegate was, again aside from the bribery account, based on what was in the written Part 1 form answers.

(c)    The Authority’s decision not to interview the appellant after his legal representatives had requested an interview did not compound any absence of information before the Authority, because the request for an interview centred on the fact, accepted by the Authority, that the appellant was only now on the Authority review giving a full account of his combatant role with the LTTE.

69    Finally, in argument on the appeal the appellant’s counsel relied on the appellant’s evidence to the Authority that he was not permitted by the Sri Lankan authorities to travel to India from Sri Lanka in the ordinary way on a legally obtained passport but had to obtain his passport through bribery so as to avoid detection. The Authority rejected this account at least partially on the basis of listening to the “audio” of his entry interview and the “transcripts”, but plainly the “audio” is a reference to the Part 2 audio recording only. At [34] of its reasons the Federal Circuit Court records:

In the hearing before me, the representative of the Applicant eventually conceded that the Applicant did not say anything in the arrival interview that was not recorded, but still maintained that he did not make more detailed claims in that interview because he had been asked to be brief.

70    On the appeal, it was not suggested this concession was not made. Counsel for the appellant on the appeal also appeared before the Federal Circuit Court. In the face of that concession, the appellant cannot use the bribery account as a basis to contend the outcome of the Authority’s review would have been different had the Authority been given the Part 1 entry interview.

71    If, contrary to our conclusion above, a contravention of s 473CB(1)(c) had been established, ground 1 would have been rejected at the second step of the appellant’s argument.

Conclusion

72    The appeal must be dismissed, with costs. The Court’s Practice Notes make it clear the Court’s preference is for lump sum costs orders, and we consider such orders are appropriate in this appeal.

73    Despite the dismissal of the appeal, it is appropriate to make a further observation. While there was no challenge to the Authority’s finding that the appellant would not face a “real chance” of persecution on removal to Sri Lanka, the country information accepted by the Authority combined with its findings in respect of the true level of the appellant’s involvement with the LTTE, and his sister’s activities in the United Kingdom, might give cause for some further executive reflection on the appellant’s circumstances.

Associate:

Dated:    13 October 2020

REASONS FOR JUDGMENT

THOMAS J:

74    I have had the benefit of reading in draft the reasons of Murphy and Mortimer JJ, for which I am most grateful. I agree with the Orders proposed and the reasons outlined for making those Orders.

Associate:

Dated:    13 October 2020