Federal Court of Australia

BRH18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 74

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    By 4pm on 27 May 2021, the parties file any agreed proposed costs orders.

3.    In the absence of agreement on costs orders, the parties file submissions limited to two pages as to appropriate costs orders.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    These are joint appeals from orders made by the Federal Circuit Court dismissing each of three judicial review applications, in relation to three decisions of the Immigration Assessment Authority.

2    The appellants are related. They were all accepted to be nationals of Sri Lanka, and of Tamil ethnicity. They had all invoked Australia’s protection obligations in relation to their fears of persecution and serious harm in Sri Lanka, principally by reason of their Tamil ethnicity and their and their extended family’s actual or imputed support for and involvement in, the Liberation Tigers of Tamil Eelam. The first three appellants are siblings: two brothers and a sister. In order to make the reasons more understandable, and we intend no disrespect to the appellants, it is appropriate to refer to them by their relationship to one another, which is how the appellants were sometimes identified during the appeal hearings. We refer to BRH18, who is the first appellant, as the “unmarried brother”. BRG18, the second appellant, is the sister of BRH18 and BQU18. BQU18, who is the third appellant, is referred to as the “married brother”. The fourth through sixth appellants are the family unit members of the married brother, being his wife and two children.

3    The legal issues before the Federal Circuit Court and now on appeal to this Court arose from a claim that the married brother was forcibly recruited by the “Sea Tigers”, and that his involvement in the Sea Tigers would be a significant part of the reason that he, and his extended family, would face persecution or serious harm on return to Sri Lanka. His claimed involvement in the Sea Tigers, and the fear of being associated with a part of a terrorist organisation (the LTTE) was also the explanation proffered by the three appellants for the late disclosure of his involvement to Australian authorities after the family’s arrival in Australia.

4    The description given by the Minister’s delegate in the sister’s decision provides a convenient summary of the context in which the delegate (and the Authority) came to assess the married brother’s claim to have been a member of the Sea Tigers:

I acknowledge the area the applicant originates from [redacted] is considered the birthplace of the LTTE leader and that it is considered that the LTTE evolved from the smuggling/fishing community of this area and it is often described as the cradle of Tigerhood. The LTTE initially functioned as a centrifugal organisation where decisions were made collectively by a central committee. With rapid expansion this structure became impracticable and according to the Research and Analysis Wing (RAW) of the Indian intelligence agency a hierarchical structure emerged and was in place by the end of 1987. At the apex of the LTTE was the supreme leader and military commander, Prabakaran, and a committee made up of close associates. Under this structure was the Central Committee followed by regional commanders, district leaders, area leaders and the fighting cadres. At the bottom of the rung potiyans – young boys and girls who carry out a variety of assignments ranging from carrying messages and supplies to treating patients of abductions and assassinations. The LTTE had a number of highly specialised wings including military, political, naval, intelligence, women’s, communications, finance, arms and ammunition manufacture, research and development, rehabilitation and suicide squad.

The Sea Tigers are recorded as being established as a separate unit to the Tiger Navy in 1990, their responsibilities being for military operations on the seas, protecting the arms and ammunitions line, as well as running a passenger service and having a political unit working among the fishermen. The Sea Tigers sank many Sri Lankan navy boats; 8 major vessels; 20 fast attack craft and 28 inshore patrol craft causing much loss of life as well as disruption of trade routes by attacks on merchant ships.

(Footnotes omitted.)

5    The legal issues agitated before the Federal Circuit Court and on the appeals do not however concern the Authority’s decision about the married brother. They concern the Authority’s decision about the sister. The recording of the sister’s protection visa interview was not given to the Authority. The Authority decided the sister’s review without exercising any of the powers given to it in s 473DC of the Migration Act 1958 (Cth). It is that course of conduct which is impugned in each appeal, including by way of a new proposed ground of appeal that was not put to the Federal Circuit Court.

6    It was not disputed by the Minister that the identification of jurisdictional error in the course of the sister’s review was capable of affecting the lawfulness of the Authority’s other two reviews, because of the interrelatedness of the three appellants’ claims. In other words, the fate of all three appeals rests on the arguments about the sister’s review before the Authority.

7    Similar legal arguments were raised and considered in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58, which was initially listed for hearing on the same day as these appeals. The Court’s reasoning in AWT19 informs the outcome of these appeals.

8    The parties’ written and oral submissions were of considerable assistance to the Court. Although each appeal must be dismissed, the appellants’ counsel ably explored and developed all arguments which could be put on the issues raised by the appeals.

Background

9    Each appellant was accepted by the Authority to be of Tamil ethnicity from Northern Province, Sri Lanka. The unmarried brother and sister arrived in Australia on 18 June 2010 via boat from Indonesia.

10    The married brother and his wife arrived in Australia on or around 20 March 2010 via boat from Malaysia. Their children, the fifth appellant and sixth appellant, were born in Australia.

11    The unmarried brother, sister and married brother and his wife each fell within the definition of “unauthorised maritime arrival” in s 5(1) and s 5AA of the Migration Act, which in substance resulted in them not being able to apply for any visa, including a protection visa, unless the Minister exercised a personal power allowing them to do so. It also resulted in their protection visa applications being progressed through the “fast track” review process in Part 7AA of the Migration Act.

12    The Minister did not exercise any personal power in respect of the appellants for a considerable period of time, and it appears from the evidence before the Federal Circuit Court that around 23 August 2017 the appellants were invited to make Safe Haven Enterprise Visa (SHEV) (Class XE, Subclass 790) applications. Each appellant lodged their SHEV application in September 2017 with the Department. The protection claims were broadly as we have summarised above, and it is not necessary for the purposes of the appeals to set them out in any more detail.

13    On 20 September 2017, the appellants each appointed the same migration agent to act on their behalf. Subsequently, on 4 October 2017, each appellant submitted supplementary statutory declarations to the delegate in relation to the married brother’s involvement with the Sea Tigers and the LTTE during the 1990s. Each appellant indicated that the reason they had not previously disclosed this information was due to “anxiety and fear”. The detail given about the married brother’s involvement with the Sea Tigers varied. Unsurprisingly, the married brother gave more detail, since the factual narrative related to him, and his statutory declaration ran to six pages. The sister’s evidence in her statutory declaration was brief. She stated she was eight years old when her brother was forcibly recruited by the LTTE and had very little memory of him being taken away. She stated she was also living elsewhere with her grandparents. She stated that she has “had no knowledge that my brother went through any training or about his day-to-day activities with the LTTE”.

14    Also in October 2017, the appellants were invited to attend SHEV interviews before a delegate of the Minister. Prior to the SHEV interviews, the sister provided a detailed report from an organisation supporting survivors of trauma and torture. The report was written by the sister’s treating counsellor, who stated in the report that it was

written with the purpose of providing an opinion about the relationship between [the sister’s] previous traumas, as described by [the sister], and her current psychological state. In addition, this report will explore how [the sister’s] current psychological state may impact on her presentation during her refugee status assessment interview.

15    Counsel for the appellants highlighted aspects of this report in oral argument, such as the counsellor’s opinion that:

When she becomes distressed, she appears uncomfortable and she will look away and apologise to the counsellor. [The sister] can present at times smiling and laughing but has noted through counselling that she will “smile to hide how I feel”.

…

More recently, [the sister] has described the need to “hold in” her emotions otherwise she worries she will become overwhelmed with emotions, thoughts about the past and fears about her future. When the past is brought up in counselling, her responses tend to be short, direct and with little to no emotional content. This can be understood as a form of emotional numbing or avoidance, which can be indicative of past trauma.

…

[The sister] has further described how, in past interviews with the Department of Immigration and Border Protection (DIBP), she has been unable to continue thinking clearly or speaking once she becomes distressed. [The sister] has identified that she is most easily triggered into emotional distress when she is asked to speak about her mother’s death and her father’s well-being.

16    On 26 October 2017, the sister attended a SHEV interview before the delegate. It was the audio recording of this interview which was subsequently not provided to the Authority.

17    The affidavit of Ms Lorilee Ann Lockhart affirmed 1 July 2019 deposes to what happened to the recording. Ms Lockhart was the delegate who decided each of the appellants’ SHEV applications. In summary, her evidence was that she accidentally deleted the interview recording. In relation to the original ground of appeal, the Minister placed considerable emphasis on the uncertainty about when the audio recording had been deleted, this being said by the Minister to affect the understanding of whether the Secretary to the Department “contravened” the duty in s 473CB of the Migration Act. For reasons we explain below, this factual issue, and the Federal Circuit Court’s own factual findings about it, are not relevant to the resolution of the appeal. The only fact which matters is that the audio recording of the interview was not given to the Authority by the Secretary. Ms Lockhart was not cross-examined and there is no suggestion what occurred was anything other than an accident.

18    On 5 December 2017, the delegate refused each appellant’s SHEV application. On 8 December 2017, the delegate’s decisions in respect of each of the appellants were referred to the Authority for review under Part 7AA of the Migration Act.

19    On 18 December 2017, the sister sent an email to the Authority requesting a copy of the “CD of the latest DIBP interview” so that she could make submissions. We infer the reference to a “CD” is to the audio recording of the interview. The Authority responded by telephone, informing the sister that “DIBP have not provided a copy to the IAA and DIBP have indicated they do not have a copy, but are still looking”. Subsequently, an email was sent to the married brother in the following terms:

The Department of Immigration and Border Protection (DIBP) have not provided a copy of [the sister’s] protection visa audio recording to the IAA. The IAA has requested the recording from DIBP but they have indicated they do not have a copy. They advised if they are able to locate a copy, they will provide it to the IAA … I have phoned [the sister] to advise her of this and she requested that you be notified.

20    Submissions were provided to the Authority by a different migration agent retained by the family. The migration agent made separate submissions in relation to each appellant, but asked that each set of submissions be considered by the Authority together with the submissions made on behalf of the other review applicants. The migration agent emphasised the claims were interrelated.

21    In the submissions on behalf of the sister, the migration agent stated in the first paragraph that the sister fears returning to Sri Lanka “because of her brother [name redacted – the married brother’s] involvement in the LTTE”. He then repeated in substance the contents of the sister’s statutory declaration described at [13] above and contended the delegate “left out” this evidence. The migration agent submitted (noting the incorrect references to the sister as a male person):

The Applicant wishes to state that she had reiterated during the interview with the case officer that her brother mentioned to her about his involvement in Sea Tigers and had requested her to abstain from telling that information to the department as we all could be deported back to Sri Lanka along with others who were deported at that point of time.

…

During the interview, the case officer continued to question the applicant and seemed to insist the applicant to provide the answers as to why she failed to disclose the new information during his interview with the Department during previous occasions. The applicant during the interview had specifically reiterated that her brother asked him not to mention about his involvement in the Sea Tigers which the applicant came to know from his brother after arriving with her brother in Australia. When the applicant came to know from her brother about his involvement as a Sea Tiger after arriving in Australia, the applicant questioned the brother and he explained in detail as to the LTTE code where no one were permitted to mention about their involvement in the LTTE including the family members. The case officer failed to consider the above relevant fact before rejecting the applicant’s claims.

22    Absent from the submissions is any reference to the lost audio recording of the delegate interview, despite the sister (and the brother) having been specifically informed by the Authority that it was lost, and despite their own inquiries about it. Aside from the two passages we have extracted above, there was nothing in the migration agent’s submissions about what the sister said during the SHEV interview.

23    In the submissions on behalf of the married brother, the migration agent understandably focussed on the Sea Tigers claim, if we may call it that. In those submissions the migration agent sought to explain the raising of the Sea Tigers claim for the first time some months after the SHEV application was lodged:

The applicant was of the view that if he intimated this information as to his involvement with the sea tigers to the Department, he would have been deported immediately along with the other detainees who were deported at that point of time.

24    In contrast to the migration agent’s submissions on behalf of the sister, in the migration agent’s submissions on behalf of the married brother, a considerable number of points were made about what the married brother did, or did not, say during his interview with the delegate.

25    The submissions on behalf of the unmarried brother similarly focussed on the appellant’s fears relating to his family’s claimed and imputed involvement with the LTTE, and repeated many of the claims made in the submissions on behalf of the married brother.

26    In summary then, the point to be drawn from this for the purposes of the appeal is that in the comprehensive submissions made on behalf of the appellants, it was only the contents of the married brother’s delegate interview which was emphasised as significant to the Authority. In none of the submissions was the absence of the audio recording for the sister’s interview said to affect the ability of the Authority to conduct its review.

The Authority’s decision

27    On 8 March 2018, the Authority made its decisions in relation to each appellant. The same Authority member had conducted and determined each of the three reviews. It is not necessary to set out all the detail of the Authority’s decision in each review, and it is appropriate to focus only on its reasoning for rejecting the Sea Tigers claim in each review. However it should be noted that the Authority accepted the migration agent’s submissions that it should consider and take into account all three sets of submissions in relation to the whole family: see [7] of the reasons in relation to the sister, [5] of the reasons in relation to the unmarried brother and [8] of the reasons in relation to the married brother.

Relevant aspects of the decision about the married brother

28    At [15] in the reasons for the married brother, the Authority recorded this explanation, given by the married brother during his SHEV interview, as to why he did not disclose his connection to the Sea Tigers earlier:

At the SHEV interview he said that when he first arrived in Australia people told him that if you said you were involved with the LTTE you would be sent back to Sri Lanka. Asked why, notwithstanding any such concern when he first arrived in Australia, he had not put forward the claim in the course of his numerous subsequent dealings with the Department, he said that he has had so many lawyers and he had been wondering to whom he should open up and tell this story. He said that the burden of not telling the full story had affected him and now he has decided that this is the last opportunity to disclose these things.

29    From [35]-[45], the Authority made its core findings about what aspects of the narrative of the married brother it accepted, and what aspects it did not. It is fair to say there were several key aspects of his narrative which were accepted – including that the LTTE attempted to recruit him at one stage when he was living in Vanni, and that he was injured by shelling during the Sri Lankan Army’s final assault on the LTTE. However at [37]-[39], the Authority gave detailed reasons about why it did not accept the married brother’s claim to have fought with the Sea Tigers, either as a volunteer or a forced recruit. Much of that reasoning concerned discrepancies in various accounts or between some assertions and other facts, and a rejection of the explanation for the late volunteering of the Sea Tigers claim.

Relevant aspects of the decision about the unmarried brother

30    In its summary of the unmarried brother’s claims, the Authority recounted at [21] of its review reasons the unmarried brother’s explanation for why he did not earlier mention that the married brother had been forcibly recruited to the Sea Tigers:

The applicant was asked why he had been prepared to say initially that [the third, deceased, brother], had been forcibly conscripted to the LTTE, but not his other brother, [the married brother]. He said that [the married brother] had not told immigration about his involvement so the other siblings did not want to mention it. Asked why it had never been mentioned in over seven years of dealings with the Department, he repeated that [the married brother] had instructed them not to mention it. According to their IAA submissions, the applicant and [the married brother] and their sister (the applicant in IAA17/4041) have provided essentially the same explanations for their failure to reveal this information.

31    At [26]-[30], the Authority explains why it rejects the Sea Tigers claim. At [28] and [29], the Authority expressly rejects specific evidence given by the unmarried brother which was said to support the Sea Tigers claim.

Relevant aspects of the decision about the sister

32    At [8], the Authority noted the migration agent’s submissions about why the sister did not initially disclose the Sea Tigers claim.

33    At [23], the Authority referred to the sister’s October 2017 statutory declaration. It then found:

According to the delegate’s decision record, the applicant further stated at the SHEV interview that [the married brother] had not disclosed his involvement with the LTTE and directed the applicant and [the unmarried brother] not to disclose the information because they would be either sent back to Sri Lanka or imprisoned. According to their IAA submissions, [the married brother] and [the unmarried brother] have provided the same explanations for their failure to reveal this information. According to the decision record, the applicant also stated at the SHEV interview that she had not disclosed this information because they were “separated”: she said that she did not see [the married brother] from the time of his recruitment until their arrival in Australia.

34    The appellants’ counsel accepted in oral argument during the second hearing that there was no submission by the migration agent that this was an incomplete or inaccurate summary of what had been said to the delegate. Nor was any such submission put to the Federal Circuit Court.

35    At [32] and [33], the Authority accepted other claims made by the sister – about another one of her brothers being forcibly recruited to the LTTE and killed, and about what it was like living under the control of the Sri Lankan army. The Authority found:

I accept that living for many years in fear and constant insecurity would have had a profound impact on her.

36    At [35]-[36], the Authority rejected the Sea Tigers claim. In doing so, the Authority expressly rejected the explanations given by the sister, and by her two brothers. It found (at [35]):

The applicant arrived in Australia in 2010 and underwent several refugee status and removal assessments, all of which resulted in unfavourable decisions. It is evident that at the time of the ITOA assessment in 2015 the applicant was aware that she was facing imminent removal to Sri Lanka, and that this would possibly involve the separation of her family unit. In my view, the applicant has not satisfactorily explained why, at least at that point when she apparently knew that she was facing imminent removal and when the integrity of her own newly established family unit was threatened, she would have failed to provide this information which she now suggests is fundamental to her fear of return, even if it were the case that her brother may have instructed her not to reveal it. It is equally inexplicable, in my view, why her brother [the married brother] would have maintained his silence about his claimed membership of the LTTE until such a late stage in the processing of his multiple applications – as is clear from the information included in his submission to the IAA about his immigration history as set out in the delegate’s decision record in relation to his SHEV application - and long after he too must have been aware that he was facing removal to Sri Lanka. It also makes little sense, in my view, that the applicant would be prepared to declare that one brother, [the third, deceased, brother], had been forcibly recruited into the LTTE, but not [the married brother]. In my view, this logical inconsistency undermines the applicant’s claim that she did not reveal [the married brother’s] involvement with the LTTE for fear that she would be deported to Sri Lanka if it were known.

37    The Authority rejected all other bases put forward by each of the appellants for the grant of a SHEV, and affirmed each decision under review. The appellants sought judicial review of each of the Authority’s three decisions.

The Federal Circuit Court’s decision

38    There were two grounds of review raised by the appellants in the Federal Circuit Court, each of which involved the missing interview recording for the sister, and the Authority’s response (or lack of response). It is not necessary to set out the grounds of review, and it is sufficient to note two matters:

(a)    No legal unreasonableness argument was made about the failure to conduct an interview with the sister; and

(b)    No other grounds of review were put forward; notably no grounds of review were put forward impugning the Authority’s decision on the review about the married brother and its rejection of the Sea Tigers claim.

39    The judicial review applications were each dismissed. The three matters were heard together before the Federal Circuit Court, but separate reasons were given for dismissing each application. Each decision notes at [1] the interrelated nature of the proceedings and that, as a result “to the extent that similar issues were necessarily addressed in each matter, identical, or almost identical reasons, were in part handed down on the issues which were common to all”. Accordingly where we make references to paragraph numbers in the Federal Circuit Court’s decision, we refer to the pinpoint in the reasons relating to the sister, but can be taken to be referring to reasoning common to all three decisions unless otherwise noted.

40    A considerable amount of the Federal Circuit Court’s reasoning was occupied by findings about whether the audio recording was, on Ms Lockhart’s evidence, in “the possession or control of the Secretary” as at the date of referral of the decision of the delegate to the Authority, and therefore whether it was correct to find that there was a “contravention” of s 473CB(1)(c) of the Migration Act. As we explain below, this matter has little relevance after the Full Court decision in AWT19. That is not to be critical of the Federal Circuit Court; rather it is to explain why it is not necessary to discuss those findings in any detail.

41    In the alternative, the Federal Circuit Court considered (from [32] onwards) the legal consequence (if any) of the non-provision of the audio recording to the Authority. It found (at [32]) there was nothing before the Authority to suggest that the content of the audio recording was substantially different from the content of Ms Lockhart’s notes. It further found (at [33]) that it was “unable to arrive at any conclusion” on the question of materiality. It found that even if there was a “procedural unfairness error” in the non-provision of the recording, the Authority had “closely considered the [sister’s] claims”, and went on to explain, by reference to several High Court authorities, why it found there was no error in the Authority’s reasons in any broader sense (outside the audio recording issue). In this part of its reasons (and outside the grounds of review before it), the Federal Circuit Court did consider whether the Authority’s “decision” was legally unreasonable: see at [40]. It did not do so by reference to the specific legal unreasonableness argument now put in the appeals.

Conduct of the appeal

42    Initially only one ground of appeal was relied upon. That ground was framed around a “contravention” of the Secretary’s obligation in s 473CB (by the non-provision of the sister’s SHEV interview audio recording). In the ground of appeal as expressed, it was contended that:

(a)    provision of the audio recording to the Authority “could realistically have resulted in a different decision” by the Authority; and

(b)    as a result of the Secretary’s non-compliance with s 473CB(1) of the Migration Act, the Authority’s review miscarried and it did not properly conduct the “review” required by s 473CC of the Migration Act.

43    It can be seen that the focus of this ground is on the fact of the non-provision of the audio recording, and the asserted legal consequences.

44    As we noted earlier, these appeals were initially listed on the same day as AWT19, because they raised similar issues. The appeal commenced, and argument proceeded for the balance of the available time that day.

45    During argument, the Court raised with counsel for the appellants that submissions had been made in AWT19 to the effect that in the absence of a recording, it may in some circumstances be appropriate for the Authority to invite a review applicant to an interview, with the interview not necessarily having to be confined to what is recorded in any notes of the interview. In so doing the Authority might “cure” any “informational gap” it considered was created by the non-provision of an audio recording. Counsel for the appellants adopted those submissions, and sought leave to file short additional written submissions and an amended notice of appeal.

46    The Court gave directions at the hearing providing for discussion between the parties and communication to the Court as to their respective positions on the leave sought. Subsequently the Court made orders timetabling the filing of any application for leave to amend the notice of appeal, and for submissions from each party on the application.

47    On 8 March 2021 the appellants filed interlocutory applications in each proceeding seeking leave to rely on the amended notices of appeal, supported by an affidavit of Mr Angus James Francis, affirmed 4 March 2021, annexing the proposed amended notices of appeal.

48    The hearing of the appeals resumed on 30 April 2021. Counsel read the affidavit of Mr Francis without objection, and sought leave to rely on an amended notice of appeal. That amended notice incorporated the following new ground of appeal:

The second respondent’s review under s 473CC miscarried due to the second respondent proceeding without having before it the material required for it to properly exercise its review function.

a.    The second respondent did not have before it the audio recording at the time it undertook its review.

b.    The audio recording contained relevant information that could possibly have affected or changed the mind of the second respondent in relation to the outcome of the review.

c.    There is a statutory implication arising from the operation of s 473CC of the Act that matters referred to the second respondent will be determined properly and having regard to the circumstances of the applicant that were before the delegate at the time the delegate made her decision.

d.    The second respondent proceeded in such a way that it deprived the applicant of the possibility of a successful outcome.

49    The Minister opposed leave being granted. Both parties referred the Court to a number of supplementary authorities and each filed supplementary written submissions.

Leave to raise a new ground of appeal

50    The principles to be applied in considering whether to grant leave to rely on a new ground of appeal are well established: see for example Haritos v Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [79], and NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [29]-[31].

51    Ultimately in a situation such as this, the question of leave to raise a new ground will be determined on a consideration of the merits of the new ground. There is much at stake for all the appellants. As a regular litigant in this jurisdiction, well-resourced and represented by capable counsel, in the absence of any particular considerations of prejudice in a given case, and where reasonable notice has been given, the Minister is likely to be able to accommodate argument on a new ground, and any extra time or resources can be compensated with an order as to costs. However, it will rarely be in the interests of the administration of justice (even where much is at stake for an appellant) for the Court to grant leave to raise a ground that has little or no merit: see Marharjan v Minister for Immigration and Border Protection [2017] FCAFC 213; 258 FCR 1 at [31]-[32] and the cases there cited.

52    Here the appellants relied on the recent decision in AWT19 and submitted that the Full Court had “developed” the law in a way which justified the grant of leave to raise a new ground essentially based on the reasoning in that decision.

53    AWT19 was an important case in clarifying how the Authority should approach a review where there is an “informational gap” before it. In particular, it clarified how the Authority should approach the absence of material such as the audio recording of the interview before the delegate. However, as other cases have demonstrated, there may be other kinds of “informational gaps”: see AAZ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 407 at [38]-[41]; BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 at [84]-[86]. See also the summary of previous cases at [49] in AWT19.

54    Whether or not what is said in AWT19 should be seen as a “development” of the law, it is certainly a clarification. That clarification occurred by the acceptance of the Minister’s submissions in that appeal. In AWT19, the Minister had submitted, in writing, in chief (at [26]-[27]):

The effect of the primary judge’s decision is that the failure to provide a transcript, recording or other reliable record of the Delegate’s interview prevented the Authority from conducting its review. That is contrary to the authority of BEL18 at [81] where Middleton J said “[t]here 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 conclusion of the primary judge overlooks the importance of the interview conducted by the Authority. It was entirely correct and appropriate for the Authority to fashion its procedure in such a way to ensure that where it had formed the view that it required further information, it could exercise its discretion under s 473DC to get new information.

55    And in reply submissions:

The primary judge’s query at [68] whether the information provided to the Authority at the interview could be new information is answered by the High Court in ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928 at [16]. The absence of a recording of the delegate’s interview created an ‘informational gap’ and ‘the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview’.

56    And orally:

KERR J: I take it that your submission is that, where a document simply does not exist at all, for whatever reason, you would rely on what we’ve said in DWA17 at paragraph 55, that it cannot be a breach of an obligation to do that which is capable of being discharged. I mean, there may be consequences of..... but the secretary is not in breach of the duty when he fails or she fails to provide a document - - -

MR KNOWLES: Yes, with - - -

KERR J: - - - which they don’t have.

…

MR KNOWLES: May it please. To return to Justice Kerr’s question, yes, that is my submission. It’s consistent with DWA, it’s consistent with Middleton J and BEL18. And I do embrace, even though it may be contrary to my client’s interest in different cases, I do embrace the proposition that it may have consequences because, if there is no recording of an interview available, that will be a matter which will bear heavily on what discretion should be exercise by the authority in conducting the de novo review. That’s not to say that it can’t conduct a review. In this case, there were materials. We have the interview notes but the authority itself didn’t feel – or felt that it was sufficiently compelling reason to conduct a fresh interview and I accept that a consequence of having incomplete review material may be discretions are exercised in circumstances where they otherwise wouldn’t be.

(Emphasis added.)

57    The Court generally accepted those submissions.

58    At [76]-[80], Kerr and Mortimer JJ said:

The open-ended nature of “new information”, compared to the closed category of “review material”, together with the Authority’s function to review the delegate’s decision for itself afresh, on the merits, means that it is not possible to be prescriptive about the kinds of circumstances in which an “informational gap” may arise in a review before the Authority.

It will be for the Authority itself to determine the significance of any such gap to the conduct of its review, acting reasonably and rationally, as it must. The Authority itself can also determine the form in which it may consider filling any informational gap – it may ask for further information in writing. It may conduct a telephone interview. It may interview a visa applicant in person: see s 473DC(3). Again, much will depend on the facts and circumstances, and the Authority’s perspective of what is significant for, and relevant to, its review.

Where the majority in ABT17 says at [7], referring to CNY17, that the Authority’s task is to “consider” the review material provided to it by the Secretary, it explains this means the Authority must

“examine the review material... to form and act on its own assessment of the relevance of that material to the review of the referred decision”

Where material which ordinarily would be provided, and would be relevant, is missing from the review material, it will be consistent with this characterisation of the Authority’s task that it will need to assess the likely importance of the missing material to its task, and what should be done about the fact of missing material. In some circumstances, it may not need to do anything: see EMS18 at [67]-[70].

If the Authority determines there is an “informational gap” which needs to be filled in order for it to conduct its review lawfully, then the reality that an interview may involve a visa applicant giving a narrative which overlaps with aspects of what she or he told a delegate, will not prevent the exercise of the interview power. The words spoken to the Authority, the demeanour and reactions of a visa applicant, these are all capable of rendering the interview as a whole, “new information”.

59    Allsop CJ agreed (at [1]), and his Honour added at [4]:

The concept of information as identified by the plurality in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at 228 [24] is sufficiently open to encompass the notion of the interview as a whole being “new information”. The interview is the communication of knowledge about particular facts, subjects and events. It is not possible to break down each aspect of the interview into respective individual pieces of information conveyed and analyse whether each individual piece is new or not. Such would be a process of likely complexity and incoherence. Parliament should not be taken to have required such a course.

60    The legal unreasonableness argument put by the appellants based on AWT19 has merit. There is no real prejudice to the Minister. The reliance on AWT19 sufficiently explains why it could not have been put to the Federal Circuit Court, and the applicability of the principles set out in AWT19 still merit further exploration, in appeals such as the present ones.

Resolution

61    Despite our conclusion that the new ground of appeal has sufficient merit to warrant the grant of leave, we have concluded that both grounds of appeal should ultimately be rejected.

Ground 1

62    The Full Court’s decision in AWT19 answers this ground adversely to the appellants. It can be accepted that a consequence of the non-provision of material such as an audio recording, created by a delegate through the delegate’s decision-making process, is whether the Secretary has complied with the duty imposed by s 473CB(1). In the absence of some kind of allegation of a conscious attempt to mislead the Authority or to withhold information from it, the legal consequence on judicial review (if any) of the Secretary’s non-compliance with the s 473CB(1) duty will rest upon the effect of the absence of the material concerned on the Authority’s conduct of the review. That is what the Full Court said in AWT19 at [78]-[79], extracted at [58] above. Not every instance of non-compliance will have an effect, or a possible effect, on the Authority’s performance of its statutory task.

63    In the present appeals, the absence of the audio recording of the sister’s SHEV interview was said by the appellant to affect the Authority’s conduct of her review in the following way. Relying on the counsellor’s report, which we have extracted at [15] above, the appellants submitted that it was clear from its reasons that the Authority had made adverse findings against the sister in relation to what it considered to be the late raising of the Sea Tigers claim. In a context where, the appellants submitted, the sister had explained the lateness in her original statutory declaration as being based in “anxiety and fear”, the Authority may have more readily accepted that explanation in the light of the counsellor’s report if it had been able to hear how the sister answered the questions put to her during the interview.

64    The appellants’ submissions on ground 1 must be rejected. The principal reason for this is that the Authority rejected the married brother’s own account of the Sea Tigers claim. That is, it wholly rejected the account of the person who said he had been forced to join the Sea Tigers. The sister’s claim was at best derivative of the married brother’s claim. There is no basis in the Authority’s reasons, or in the other materials before it (such as the migration agent’s submissions) to consider that the sister’s explanation may have been differently assessed by the Authority if it had access to her SHEV interview recording. It was not suggested to the Authority in the migration agent’s submissions that there was material evidence given by the sister during the SHEV interview that had been overlooked by the Authority. The only evidence the submissions contended had been overlooked was what was in the sister’s October 2017 statutory declaration, which was before the Authority. The contents of that statutory declaration were limited, and it was not suggested to the Authority (nor on judicial review) that she had expanded upon this statutory declaration during the delegate interview.

65    To adopt the language used in AWT19 at [79], the missing audio recording had no material importance to the Authority’s task, given it had rejected the principal claim of the married brother.

66    Contrary to the Minister’s submissions on these appeals, where material such as the audio recording of a delegate interview is not given to the Authority, the question whether the Authority’s task has miscarried in a way which affects its jurisdiction is not decided by a technical focus on the words “possession or control” in that provision, nor on evidence about why the material was not provided. The key fact is that the material was not given to the Authority. And, thereby, there was an “informational gap” in the material before the Authority for the purposes of its review.

The new ground

67    The appellants’ submission on this ground also relies on what was in the counsellor’s report, together with what was in the sister’s 2017 statutory declaration, but does so in a different way. The appellants contend that, in the context of the counsellor’s report, the Authority was aware the sister displayed hesitancy in answering questions during interviews, and in disclosing information. The Authority referred to this report at [17] of its decision in the sister’s review and largely accepted the contents of the report. The appellants submit that the sister’s reported characteristic of hesitancy was relevant to any assessment of whether or not to accept her explanation for the late raising of the Sea Tigers claim.

68    We pause to note here that although the adjective “late” might be used, the Sea Tigers claim was advanced well within the first instance process of considering the SHEV applications of all appellants. It was not “late” in that sense; indeed it was raised only a few months after the visa applications were lodged and only a few weeks after the appellants retained their migration agent. It was described as “late” relative to the amount of time the appellants had been in Australia, and the earlier opportunities (prior to their visa applications) they had to raise this claim. There was no challenge on judicial review to this characterisation, or its consequences for the way the Sea Tigers claim was assessed.

69    The appellants submitted that, where the Authority knew it could not listen to the sister’s interview so as to assess how any hesitancy and reluctance to disclose matters should be factored into its fact-finding, but also knew (and accepted) she had such tendencies because of prior trauma, the Authority was required to consider whether or not to exercise its power in s 473DC(3)(b) to interview the sister. The appellants submitted the Authority did not consider whether to do so. They also submitted that even if the Court inferred the Authority did consider whether or not to do so, the failure to exercise the power was legally unreasonable.

70    The appellants relied on [77] of the reasons of Kerr and Mortimer JJ in AWT19 (with which Allsop CJ agreed):

It will be for the Authority itself to determine the significance of any such gap to the conduct of its review, acting reasonably and rationally, as it must. The Authority itself can also determine the form in which it may consider filling any informational gap – it may ask for further information in writing. It may conduct a telephone interview. It may interview a visa applicant in person: see s 473DC(3). Again, much will depend on the facts and circumstances, and the Authority’s perspective of what is significant for, and relevant to, its review.

71    In oral argument, counsel for the appellants accepted the two inquiries – whether the Authority did not even consider exercising the interview power; or considered exercising the interview power and decided not to – collapsed into one inquiry in the present circumstances. That is because the real issue is whether or not it could be said that no Authority acting reasonably would have failed to invite the sister to an interview.

72    Without the added factor of the married brother himself being a review applicant, this submission may have had more force. However that factor, as we have explained above, is determinative against the appellants. In circumstances where the Authority was constituted by the same reviewer, and that reviewer had decided (for reasons that are not impugned) entirely to reject the married brother’s account of being a member of the Sea Tigers, it was peripheral to the outcome of the sister’s review whether or not she was to be believed on why she, personally, said nothing about the Sea Tigers claim until October 2017. It could not possibly have made a difference to the outcome of the sister’s review, given the decision on the married brother’s review.

73    Further, in the migration agent’s submissions to the Authority, there was no reference to the missing recording, despite the evidence being that the married brother and the sister had been told by the Authority that it was lost and would not be available to the Authority. No submissions were made about anything said by the sister during that interview that was not in the delegate’s notes or in her decision. The migration agent did not contend to the Authority that it should invite the sister for an interview – for this reason, or for any other reasons.

74    In those circumstances, it cannot be said that no Authority member acting reasonably would have failed to exercise the power in s 473DC(3)(b). To the contrary, there is a reasonable explanation about why the Authority did not do so.

75    Ground 2 must be rejected.

Conclusion

76    The appeal must be dismissed. It has taken 11 years for the appellants’ pursuit of visas for themselves and their families to reach this point, not through any delays on their part. Their overall circumstances as revealed in the materials before the Authority might now commend a more positive outcome for the family as a whole.

77    The parties should be given an opportunity to make brief submissions on the question of costs, given the adjournment, in light of the reasons of the Court and the grant of leave in relation to the second ground of appeal.

Associate:

Dated:    20 May 2021

SCHEDULE OF PARTIES