FEDERAL COURT OF AUSTRALIA

EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The decision of the Federal Circuit Court of Australia be set aside, and in lieu thereof:

(a)    there issue absolute in the first instance:

(i)    a writ of certiorari directed to the second respondent to quash the decision of 25 September 2017; and

(ii)    a writ of mandamus directed to the second respondent to exercise the power under s 473CC of the Migration Act 1958 (Cth) according to law;

(b)    order that the first respondent pay the applicant’s costs.

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

THE COURT DIRECTS THAT:

4.    Within 14 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the appellant’s costs.

5.    In the absence of any agreement pursuant to paragraph 4 of these orders, within 21 days the appellant file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS).

6.    Within a further 14 days, the first respondent file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (GPN-COSTS).

7.    In the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the appellant’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THAWLEY J:

1    On 21 March 2018, the Federal Circuit Court of Australia (FCC) delivered five judgments in relation to the appellant’s application for judicial review of a decision of the Immigration Assessment Authority made on 25 September 2017. The Authority had affirmed a decision of the delegate of the Minister for Immigration and Border Protection to refuse the applicant a Safe Haven Enterprise Visa (SHEV).

2    The principal judgment resulted in the judicial review application being dismissed: EMJ17 v Minister for Immigration and Anor (No 5) [2018] FCCA 727. The other judgments dealt with issues raised during the hearing, namely:

(1)    an objection raised by the Minister to compliance with paragraph 4 of a subpoena served on the Minister, which objection was rejected;

(2)    an application by the judicial review applicant (the appellant) for an order for “further compliance” with paragraph 4 of the subpoena;

(3)    an application for a three day adjournment; and

(4)    a further application for an adjournment.

BACKGROUND

3    The appellant is a citizen of Sri Lanka of Tamil ethnicity and of Hindu faith. He was born in the Eastern Province. He departed Sri Lanka illegally in August 2012, arriving on Christmas Island on 6 September 2012.

4    The Department of Immigration and Border Protection sent a letter to the appellant dated 17 August 2016, from “IMA Protection Support”. The letter included:

You have been identified as someone who is eligible to receive the Primary Application and Information Service (PAIS) to assist you in making an application for protection.

The PAIS is government-funded migration assistance provided by a registered migration agent to assist you with your application for a protection visa. The PAIS is only provided to a limited number of applicants who are identified as eligible by the Department.

A migration agent and PAIS provider is someone who can:

•    Advise you on the visa that may best suit you;

•    Explain the documents you need to submit with your application;

•    Help you fill in the application and submit it;

•    Attend your interview with you; and

•    Communicate with the immigration Department on your behalf.

Migration agents in Australia must be registered with the Office of the Migration Agents Registration Authority (Office of the MARA). Further information on migration agents is available from MARA’s website www.mara.gov.au.

To accept the offer of PAIS assistance you must indicate your acceptance on the attached Consent to Release Information to a PAIS Provider form and return it to the Department in the envelope provided. Without your consent, the Department is not able to allocate you a PAIS provider.

5    The appellant did not accept the offer of PAIS assistance.

6    The appellant lodged an application for a SHEV on 31 August 2016, some four years after arriving in Australia.

THE DELEGATE

7    The appellant provided a written statement of his claims in a document dated 23 August 2016. His claims were summarised by the delegate, accurately, in the following way:

•    He claims to be born … in [place name] of the Eastern Province, and the area he grew up in had a navy camp in the vicinity, and was subjected to cordon and search round-up activities on more than 30 occasions and displaced during the first few years of age.

•    Claims in 1997, his brother, [M], was detained by [the Criminal Investigations Department (CID) of the Sri Lanka Police] on suspicion of being a LTTE member for seven days in various locations. The applicant claims he provided support to the LTTE by transporting goods such as food supplies and batteries, from Alas Garden to the sea, during 1999 to 2000, and he transported flags to commemorate Pongu Thamil day, in 2003.

•    Claims he sought employment in Qatar to earn money and returned to Sri Lanka because he thought it would be safe to return. He operated his own business from early 2009 and his business was doing well but the Singhalese owner, [S], of the neighbouring business became jealous, and would pose as CID and threaten him for money. Claims, as he believed that he was a genuine CID officer, money was extorted from him on three occasions.

•    Claims towards the end of 2009 his brother was taken into custody as a suspected supporter of the LTTE, and he was imprisoned in Boosa jail until 2011, when he was released after paying a bribe. The applicant claims that after he was taken into custody, [S] threatened him for money and told him to leave otherwise he would be imprisoned like his brother.

•    Claims that he found out that [S] was not CID and that he reported the applicant as a LTTE supporter to the CID as they would investigate the area for suspicious activity before Ministers and MPs would visit the area.

•    Claims that [in] approximately 2009, he was jailed on suspicion of being an LTTE member, as the police found a claymore bomb planted in the area and he was one of ten Tamils arrested. Claims he was detained and interrogated for seven days before being released, as [S] had paid a bribe to the police, as he had connections with the police. Claims he paid [S] a bribe for his release.

•    Claims, in February 2010, he was assaulted by army officers while attending a Hindu temple, as he had become a member of the Hindu Temple committee, in 2009, and he volunteered to transport goods for the temple from the shops.

•    Claims around 2011, his brother ran for the Council elections with the Ilankai Tamil Arasu Kadchi (ITAK) party, a constituent party of the Tamil National Alliance (TNA) and the applicant helped him with the campaign, putting up posters and using his van to transport party supporters. As the Singhalese were against the Tamil parties, and they believed these parties were under the instruction of the LTTE, they did not want him or others to be involved in Tamil parties. As they did not want Tamil parties to contest against their parties, he was threatened by members of the Tamil Makkal Viduthalai Pulikal (TMVP), and they threw stones at his vehicle and broke the windows and they tried to harm them. They were advised by the TNA leader to stop actively campaigning so they would not be harmed.

•    Claims the Terrorist Investigation Division (TID) members spied on their meetings and after the elections his brother fled to India with his family. He claims he was targeted by them because he had assisted his brother and he is a Tamil. Although TNA is now in government they do not protect TNA supporters and they refused to assist his brother when he was in Boosa.

•    Claims, in September 2011, TID came to his house and asked about his brother’s whereabouts as they suspected he had hidden additional explosives as he was previously suspect [sic] of this. The applicant told them that he did not know and they threatened him with a gun that he had to tell them when they returned.

•    Claims, in July 2012, he attempted to flee Sri Lanka by boat but he was caught and detained for around 24 hours, he paid a bribe and was released. He did not attend court as previously stated, and he attempted to flee again, in August 2012. Claims he fears he will be seriously harmed because he would be returning as a Tamil who departed illegally.

•    Claims he fears, if he were to return to Sri Lanka, he will be seriously harmed and/or detained and/or killed by the TID and/or TMVP and/or Sinhalese individuals/thugs who are against him because he is Tamil with suspected links to the LTTE, and because of his successful business. He was previously threatened and imprisoned as claimed above.

•    Claims the authorities cannot protect him as they are targeting him and the groups he fears are powerful and can get away with anything. As a Tamil, the authorities do not want to protect him.

•    Claims he may be subject to torture and/or cruel and inhuman treatment and punishment if [he] is returned to Sri Lanka.

•    Claims he is unsafe anywhere he goes because Tamils are targeted and attract the attention of the security forces, TID and TMVP, a political paramilitary group which has influence throughout the country.

•    Claims he fears he will be seriously harmed or killed because of his Tamil ethnicity and status as a failed asylum seeker who has been refused a Protection visa. He fears that he will be arrested by the police because he would be returning as a Tamil who departed illegally.

•    Claims he was held in detention on Christmas Island and then transferred to Nauru, in October 2013, and his data was breached by Department of Immigration while he was in detention and he had lodged a complaint with the Privacy Commissioner.

8    The delegate interviewed the appellant on 7 February 2017.

9    On 12 February 2017, the appellant’s migration agent provided a written submission. This included:

The Applicant was physically assaulted for accidentally driving through the security zone while carrying out volunteer activities for the Hindu temple. …

The Applicant identifies the CID, TID and members of the TMVP operating under the sanction of the security forces and the [Government of Sri Lanka] as those responsible for his detention, threats, harm and physical assault he has been subjected to. He refers to these agents and non-agents of Government as responsible for his jailing and the jailing of his brother leading him to believe that the threats aimed at him and his brother who is hiding in India, would result in a similar fate. …

His fears are genuine and well-founded. They are informed by his experiences of interrogation, detention, harm and mistreatment at the hands of the security forces and pro-government paramilitary groups. They are supported by independent country information.

10    Whilst it is evident from the foregoing that the appellant claimed he had been physically mistreated, he did not expressly claim to have been “tortured” in the past.

11    The delegate accepted the following:

•    I accept the applicant is a Tamil and a Hindu.

•    I accept that his parents died of natural causes when he was very young and his sister raised him.

•    I accept the applicant’s sisters and their families are currently residing in [district name in Sri Lanka] and the applicant is in regular contact with them.

•    I accept that the area the applicant resided in was a government controlled area.

•    I accept the applicant’s passport is with his older sister in Sri Lanka.

•    I accept his brother is living in India with his family.

•    I accept the applicant has relatives living in [Town A] and [Town B].

•    I accept the applicant had worked in a shop that he had built and owned, in 2008/2009.

•    I accept the applicant’s brother lives in India and he has not been in contact with him since August 2012.

•    I accept the applicant obtained a passport, issued in 2003, which he used to travel to Qatar and worked, from 2004 to 2008, when he returned to Sri Lanka.

•    I accept the applicant travelled through checkpoints, between Trincomalee and Colombo, and departed and returned to Sri Lanka, during the conflict without any problems.

•    I accept the applicant departed Sri Lanka illegally and if a protection visa is not granted he will be considered a failed asylum seeker.

12    The delegate also accepted that:

(1)    the appellant was subjected to cordon and search round-up activities on more than 30 occasions and displaced during the first few years of his life;

(2)    the appellant was assaulted in February 2010 by army officers while attending a Hindu temple and that he became a member of the Hindu temple committee in 2009 and volunteered to transport goods for the temple;

(3)    the February 2010 assault was constituted by him being slapped in the face by army officers;

(4)    the appellant’s brother, X, was detained by CID in 1996 on suspicion of being a LTTE member;

(5)    the appellant supported LTTE activities by transporting goods such as batteries and food during 1999 to 2000 and that he transported flags to commemorate Pongu Thamil Day in 2003;

(6)    the appellant’s brother was taken into custody in 2009 as a suspected supporter of the LTTE and imprisoned in Boosa jail until 2011 when he was released after paying a bribe;

(7)    the appellant’s brother has lived in India with his family since 2012;

(8)    the appellant had various problems with a Singhalese shopkeeper who operated a neighbouring business and would pose as CID and threaten him for money;

(9)    the appellant was jailed for seven days in 2009 on suspicion of being an LTTE member when police found a claymore bomb and arrested ten Tamils;

(10)    the appellant suffered mistreatment during the period of detention;

(11)    the appellant was questioned in 2011 by the TID about the whereabouts of his brother and he was mistreated by the TID;

(12)    the appellant attempted to flee Sri Lanka by boat in July 2012 and was detained but released when he paid a bribe; and

(13)    the appellant was held in detention on Christmas Island and then transferred to Nauru in October 2013 and his data was breached by the Department of Immigration and Border Protection.

13    The delegate did not consider that the appellant had a profile that was of adverse interest to the Sri Lankan authorities at the time of his departure. The delegate thought the chance of the appellant being imputed with an LTTE connection for reasons of his Tamil ethnicity was remote.

14    The delegate was not satisfied Australia had protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth).

THE AUTHORITY

15    The matter was referred to the Authority on 15 March 2017.

16    On 30 March 2017, a solicitor and migration agent for the appellant sent a written submission. This included (at A[13]):

On the basis of the arrangement that was in place between both states, it is likely that DIBP would have access to information relating to an outcome of the applicant’s application made in Nauru. In the event a final outcome had not been made by the Nauru decision makers regarding the applicant’s claims for protection at the time the applicant was transferred back to Australia, it is possible that a decision may have been made subsequently. Any information regarding the assessment of claims even if such information does not relate to a final decision, may be relevant when assessing the applicant’s claims for protection in Australia at the present time.

The department could access such information form the Nauru authorities, as the applicant provided consent (i.e. by signing the “AUTHORITY TO SEEK PERSONAL INFORMATION IN RELATION TO EFFECTIVE (PRIOR) PROTECTION”) to seek such information if required from countries other than Sri Lanka.

It is submitted that should aspects of the applicant’s claims [have] been accepted / should the applicant have been found to engage the protection obligations of Nauru, such a finding would be relevant for the purpose of assessing the applicant’s claims for protection in Australia.

17    The Authority affirmed the delegate’s decision on 25 September 2017. The Authority’s reasons, when dealing with the submission that inquiries should be made in relation to the appellant’s application in Nauru, stated (at A[7]):

The submission contends that information regarding the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia at the present time. The IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.5H(1) of the Act. I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant’s application for protection in Nauru.

18    The Authority accepted that the appellant, as a young Tamil male from the East of Sri Lanka, had experienced harassment, violence and mistreatment in the past.

19    The Authority addressed the claims made and concluded (at A[44]):

Having regard to all of the evidence, information and my findings above, I am not satisfied that the applicant faces a real chance of harm on the basis of, or from any combination of: any real or imputed association, including familial association with the LTTE; his involvement in his brother’s political campaign; extortion at the hands of S; any previous interactions with the SLA or police; his previous attempt to depart Sri Lanka; the data breach; any medical condition; for being a young Tamil male from the East, or a Hindu; or for being a returned asylum seeker. I am not satisfied that the applicant faces a real chance of serious harm for having departed Sri Lanka illegally.

20    The Authority also found that the applicant did not face a real risk of significant harm for any of these reasons.

21    The Authority accepted the appellant would be detained for departing Sri Lanka illegally by reason of the Immigrants and Emigrants Act 1948 (Sri Lanka) but that the consequences were not such as to attract a protection obligation under s 36(2)(aa) of the Act.

FEDERAL CIRCUIT COURT

22    The appellant sought judicial review of the Authority’s decision in the FCC by an application filed on 5 October 2017.

23    On 8 March 2018, a subpoena addressed to the Minister was filed. It required production of:

2.    The version of Primary Application Information Service [PAIS] Eligibility guide (Primary Application Information Service [PAIS] Eligibility Checks Standard Operating Procedures) used in respect of deciding to grant the applicant PAIS.

3.    A particular document published by the department titled “Additional guidance on PAIS eligibility criteria and assessment process”.

4.    Primary document/ documents received or produced by the First Respondent upon which a decision to grant the applicant PAIS eligibility was based.

24    On 22 March 2018 a “second amended application” was lodged for filing. This raised four grounds (and abandoned certain others which had been contained in earlier applications):

Ground 1

The Secretary failed in its statutory obligation to provide the IAA relevant information received or produced by the First Respondent upon which a decision to grant the applicant PAIS was based.

Ground 3

The IAA failed to consider an essential integer of the applicant’s claims and future harm the applicant would face due to having unsuccessfully attempted to depart Sri Lanka on two previous occasions.

Ground 4

The IAA conflated the “relevance” (s 473DC (1) (b)) of the request to “get” new information with the need to satisfy itself “that there are exceptional circumstances to justify considering the new information” (s 473DD (a), thereby failing to consider if request made by the applicant representative to get new information “may be relevant”.

Ground 7

The IAA erred in its assessment at [CB 143, 7], as it failed to consider that “the assessment of claims that the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia…”

25    Each of these grounds was supported by particulars.

26    The hearing took place on 21 March 2018. At the hearing, the Minister objected to paragraph 4 of the subpoena. The Minister had filed a “Notice of Objection – Subpoena” on 19 March 2018. The objection was identified as “relevance” in that notice.

27    The primary judge required production under paragraph 4 of the subpoena, stating (at J[2] of EMJ17 v Minister for Immigration and Anor [2018] FCCA 722):

In order to prevent an evidentiary issue giving rise to a problem in another forum, if a different Court were to take a different view, the Court is of the view that the preferable course is to require production under paragraph 4 of the documents that have been able to be identified as falling within the same, notwithstanding the Court’s concern as to the irrelevance of the material.

28    The Minister then produced two documents in answer to paragraph 4 of the subpoena. The first was an email dated 15 August 2016 from the Manager of IMA Protection Support, TPV Assessment Branch, Refugee and Humanitarian Visa Management Division, Visa & Citizenship Services Group in the Department of Immigration and Border Protection. This was addressed to “PAIS”. It stated that the appellant, referred to as the “client”, had been “reassessed … based on additional information received”. The email referred to “T & T Treatment 24+ Months Ago”. It contained the word: “Eligible”.

29    The second document was a “Case Plan”. Page 3 of the Case Plan contained the following question and answer:

Detail any mental health issues identified through information provided on referral, medical reports, discussion with the recipient and observations. Include any changes or concerns that require escalation and evidence of new condition if applicable.

Mr [EMJ17] has disclosed a history of Torture and Trauma and in the past accessed specialist services while in detention. At this stage client has not consented to mental health services in the community. CM to monitor and assess mental health needs on an ongoing basis.

30    As noted in paragraph [5] above, two days after the 15 August 2016 email from the Manager of IMA Protection Support, the appellant was offered PAIS assistance, which he later refused. The letter offering that assistance had been included in the Court Book before the FCC and presumably informed or motivated the request to issue the subpoena.

31    The FCC recorded in the principal judgment at J[22] and J[23]:

22.    The first respondent informed the Court that the assessor was no longer in the first respondent’s employment and that it is possible that there are other documents considering the torture and trauma treatment 24 months ago in the email dated 15 August 2016. This was the basis upon which Mr Tambimuttu [the appellant’s legal representative] argued there must be other documents and a further order should be made requiring the first respondent to produce all of the records falling within ground 4. The Court declined to make such an order and identified that the applicant had the material in exhibit C and it was admitted subject to relevance. The information that referred to a history of torture and trauma and having been provided insofar as the applicant’s grounds sought to develop a relevant error in ground 1 by reason of the alleged breach of s 473CB of the Act by the Authority, it is difficult to see how any of the information as to the history of torture and trauma was relevant or material.

23.    Mr Tambimuttu argued that there may be other records in relation to the torture and trauma treatment that may further advance the applicant’s assertion of a breach of s 473CB of the Act and that may have been relevant to the assessment of the applicant’s claims. The Court was not satisfied that any further documents, even if they did identify torture and trauma treatment, would further or advance the issue raised by ground 1. The Court was not satisfied that any such further documents were necessary to develop the argument contended by the applicant in relation to ground 1, nor that any such further documents are relevant in the circumstances of being probative of a relevant fact in issue given the information was produced the subject of exhibit C.

32    The refusal to order further compliance was also the subject of an ex tempore decision: EMJ17 v Minister for Immigration and Anor (No 2) [2018] FCCA 724.

33    The primary judge concluded that the PAIS documents which had been admitted subject to relevance as Exhibit C “were not documents that were suggested to the Authority were relevant to the applicant’s claims or the conduct of the review” and were ultimately rejected as irrelevant: J[27] to J[30].

34    The primary judge dealt with the substance of ground 1 in the following way:

29.    Mr Tambimuttu argued that the reference to the history of torture and trauma was relevant to the applicant’s claims and accordingly that there had been a breach of s 473CB of the Act giving rise to a jurisdictional error or alternatively that the failure by the Secretary to provide the relevant material to the Authority had disabled the Authority from being able to conduct the review required under Part 7AA of the Act. I do not accept that the guidelines or the documents that were the subject of exhibit C that was admitted subject to relevance were either relevant, credible and significant documents in respect of the applicant’s claims. In fact, the applicant advanced no claim of torture in the present case to the delegate or to the Authority.

30.    Neither the guidelines in the additional guideline or the documents the subject of exhibit C that have been rejected identify any breach of s 473CB(1)(c) of the Act by the Secretary. The Court does not accept that the documents in exhibit B, being the guidelines and additional guideline, or the documents that the Court admitted into evidence marked exhibit C subject to relevance and which has been rejected were relevant, credible, and significant to the applicant’s claims.

31.    In the present case the Authority was not disabled from conducting the review required under Part 7AA of the Act. Further, the Court is of the view that even if a different view was taken as to whether or not the PAIS guidelines and material are ones that should have been found by the Secretary to be relevant, that is an error within jurisdiction and not a jurisdictional error. No jurisdictional error as alleged in ground 1 is made out.

35    The primary judge found that grounds 3, 4 and 7 were also not made out. It is unnecessary to set out his Honour’s reasons in respect of grounds 3 and 7. In relation to ground 4, his Honour reasoned (at J[37] to J[39]):

37.     In relation to ground 4, Mr Tambimuttu argued that the Authority had conflated the test under s 473DC(1)(b) of the Act with a need to be satisfied that there are exceptional circumstances to justify considering new information under s 473DD of the Act and that the Authority accordingly erred in the exercise of its power under s 473DC(3) of the Act. In this regard Mr Tambimuttu took the Court to the Authority’s reasons in paragraph 7, which was concerned with the submission advanced to obtain the information in relation to the protection claim made whilst in Nauru.

38.     It is apparent on a fair reading of the Authority’s reasons that the Authority understood that the Authority was being invited to consider whether information should be obtained by the Authority under s 473CD of the Act and that the invitation to obtain or to get information was made by the applicant’s representative. In those circumstances, before the Authority could consider the information, the requirements of s 473DD of the Act would have to be met. Accordingly, it was relevant for the Authority to take into account whether or not the Authority thought there were exceptional circumstances in determining whether to get the new information.

39.     There is no conflation or misunderstanding of the statutory provisions on the face of the Authority’s reasons. It is apparent that the Authority understood the nature of the submission. The Authority gave the submissions genuine and meaningful consideration and made a decision that was open to the Authority which cannot be said to be legally unreasonable in relation to the exercise of their power under s 473DC(3) of the Act. No jurisdictional error as alleged in ground 4 is made out.

the appeal

36    By his notice of appeal, the appellant raised twelve grounds of appeal. The appellant was represented by counsel at the hearing and nine of the grounds were abandoned. This left grounds 1, 4 and 7 which raised the same issues as grounds 1, 4 and 7 before the FCC.

Ground 1

37    Ground 1 was in the following form:

The Secretary failed in its statutory obligation to provide the Immigration Assessment Authority (IAA) relevant information received or produced by the First Respondent upon which decision to grant the applicant PAIS was based. Judge Street failed to hold that it was a jurisdictional error.

38    Despite the terms of ground 1, the written submissions filed for the appellant and the oral submissions made by counsel appearing for him made it clear that ground 1 included a challenge to the decision of the primary judge to refuse to order further compliance with the subpoena. It is therefore necessary to understand the relevance of category 4 of the subpoena.

39    Section 473CB of the Act provides:

(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;

…

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

40    Ground 1 centres on s 473CB(1)(c) which requires the Secretary to give to the Authority material in the Secretary’s possession or control which is considered by the Secretary, at the time of referral to the Authority, to be relevant to the review.

41    As a matter of principle, it was at least arguable that a breach of s 473CB(1)(c) by the Secretary could, in an appropriate case, have the consequence that the Authority’s decision was affected by jurisdictional error:

(1)    Section 473CB(1)(c) requires the Secretary to form a view as to which documents are relevant to the review to be conducted by the Authority – see, in a different context: WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at [64].

(2)    The view so formed is the subjective view of the Secretary as to relevance: Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [73] (Griffiths J).

(3)    The Secretary’s view as to relevance must be formed in a reasonable manner and on a correct understanding of the law – see, albeit in a different context: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection (2017) 91 ALJR 890 at [57]; NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 551 at [41] (Tamberlin J).

(4)    An unreasonable failure or refusal to identify documents which might be relevant might arguably also constitute a breach of s 473CB(1)(c).

(5)    A breach of s 473CB(1) by the Secretary might arguably establish jurisdictional error on the part of the Authority if it could be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA. It not a question of whether the Authority is to blame. The question is the effect of the anterior breach on the Authority’s decision-making process – cf: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [47]. The anterior breach might be such as to have the consequence, for example, that the Authority’s jurisdiction is, through no fault of its own, “constructively unexercised”: SZFDE at [52].

42    In amplification of the last proposition:

(1)    If, for example, in breach of s 473CB(1)(b) the Secretary failed to give to the Authority material provided to the delegate by the visa applicant before the delegate made his or her decision, the Authority might well be prevented from conducting the very “review” which Part 7AA contemplated and jurisdictional error might, accordingly, be established.

(2)    A breach of s 473CB(1)(c) might also have that consequence. The statutory scheme contemplates limited merits review on the “review material” provided by the Secretary to the Authority. The “review material” must include material which the Secretary considers to be relevant: s 473CB(1)(c). It is implicit that the statute contemplates that the Secretary’s view as to relevance be reasonably formed on a correct understanding of the law – see: Kruger v The Commonwealth (1997) 190 CLR 1 at 36 (Brennan CJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [63] (Hayne, Kiefel and Bell JJ). If a critical piece of relevant information were unreasonably treated as irrelevant, it is possible that jurisdictional error could be established because of the effect of that error on the Authority’s decision-making process and whether it conducts a “review” of the kind authorised.

(3)    The reasoning in cases such as WAGP at [62]-[64], in relation to a breach of s 418(3) (found in Part 7), does not easily translate to a breach of s 473CB(1) in light of the quite different scheme contemplated by Part 7AA; see also: SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123 and BBS15 v Minister for Immigration and Border Protection (2017) 248 FCR 159. A Part 7 review is triggered by the making of a valid application by the applicant, not by the receipt of material under s 418(3). The review body is not prevented from receiving new material. By contrast, under Part 7AA, the review is automatic: the Secretary “must refer a fast track reviewable decision” to the Authority: s 473CA. Subject to the terms of Part 7AA, the Authority must (s 473CC(1)) conduct its review “by considering the review material” and “without accepting or requesting new information” or “interviewing the referred applicant”: s 473DB(1). Part 7AA does not contemplate the Authority affording procedural fairness in a manner equivalent to Part 7. The s 473CB(1) “review material” is, accordingly, a critical part of the process and errors under that provision are not as likely to be corrected or rendered immaterial by reason of an opportunity to be heard being provided in the review, as may occur under Part 7.

43    The appellant’s case under ground 1 before the FCC was that there was critical material before the Secretary which the Secretary failed to give to the Authority in breach of s 473CB(1)(c). To make good that case, the appellant had to establish at least:

(1)    the existence of such (critical) material;

(2)    that the Secretary’s failure to give that material to the Authority constituted a breach of s 473CB(1)(c); and

(3)    that the consequence of the breach of s 473CB(1)(c) was such that the decision of the Authority was affected by jurisdictional error.

44    In support of ground 1, the appellant was only able to identify the two documents provided in answer to category 4, being the email dated 15 August 2016 from the Manager of IMA Protection Support and the “Case Plan”. If further compliance had been ordered, further documents may have been located. The failure to give to the Authority (as part of the “review material”) the two documents identified did not cause the Authority’s decision to be affected by jurisdictional error. It was not shown that the failure to give those two documents had the consequence that the Authority’s review was, for example, unauthorised or constructively unexercised.

45    However, it is one thing to form a view that an isolated reference to mistreatment is not relevant to the Authority’s review; it would be quite another to form a view that a large file of credible documents conclusively establishing severe torture was irrelevant. What further material, if any, existed is not known.

46    It is against that background that the appellant contested the decision not to require further compliance with the subpoena.

47    The decision not to require further compliance with the subpoena was a discretionary decision on a matter of practice and procedure. A discretionary decision can be shown to be erroneous (and liable to be set aside) in various ways, including that the primary judge failed to take into account a relevant consideration, took into account an irrelevant consideration, asked himself the wrong question or mistook the facts. In House v The King (1936) 55 CLR 499 at 504-5, Dixon, Evatt and McTiernan JJ expressed the principles to be applied in an appeal against the exercise of a discretion as follows:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

48    It has been said that “particular caution” is to be exercised by an appellate court when reviewing a discretionary decision on a matter of practice and procedure: Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177.

49    For the reasons which follow, the primary judge’s discretion miscarried.

50    The primary judge’s reasons for refusing to order further compliance with paragraph 4 of the subpoena can be found in two judgments. First, there is his Honour’s judgment in EMJ17 v Minister for Immigration and Anor (No 2) [2018] FCCA 724 which comprised the following three paragraphs:

1.    The applicant’s representative has asked the Court to order that there be further compliance with paragraph 4 of the subpoena on the ground that there is a reference in the email dated 15 August 2016 to torture and trauma treatment 24 months ago. Mr Tambimuttu submitted that documents relating to the history of the applicant involving torture and trauma in the context of the Primary Application and Information Service (“PAIS”) assistance scheme are relevant to the argument sought to be developed under ground 1. The documents already produced identify the applicant asserting a history of torture and trauma in relation to the PAIS assistance scheme.

2.    It is not apparent to the Court why further production in those circumstances should be ordered, as any argument to be advanced can be advanced on the material presently before the Court. Further, the material on its face would not materially alter the identification of the alleged history of torture and trauma that is identified on page 3 of the case plan document and the reference already made to torture and trauma treatment 24 months ago. In those circumstances, the Court is not satisfied that there is any further relevant document that is required to be produced in order for the applicant to be able to advance the applicant’s arguments in respect of ground 1.

3.    Further, the Court has been informed by the first respondent that the steps that have been taken so far are not ones in respect of which there was a time limitation, but rather that the relevant officer has left the department and that the steps taken to date to identify the material have not identified any other material relating to the assessment. For that further reason, the Court refuses the application to require further compliance with paragraph 4 of the subpoena.

51    Second, there are paragraphs J[22] and J[23] of the principal judgment:

22.    The first respondent informed the Court that the assessor was no longer in the first respondent’s employment and that it is possible that there are other documents considering the torture and trauma treatment 24 months ago in the email dated 15 August 2016. This was the basis upon which Mr Tambimuttu argued there must be other documents and a further order should be made requiring the first respondent to produce all of the records falling within ground 4. The Court declined to make such an order and identified that the applicant had the material in exhibit C and it was admitted subject to relevance. The information that referred to a history of torture and trauma and having been provided insofar as the applicant’s grounds sought to develop a relevant error in ground 1 by reason of the alleged breach of s 473CB of the Act by the Authority, it is difficult to see how any of the information as to the history of torture and trauma was relevant or material.

23.    Mr Tambimuttu argued that there may be other records in relation to the torture and trauma treatment that may further advance the applicant’s assertion of a breach of s 473CB of the Act and that may have been relevant to the assessment of the applicant’s claims. The Court was not satisfied that any further documents, even if they did identify torture and trauma treatment, would further or advance the issue raised by ground 1. The Court was not satisfied that any such further documents were necessary to develop the argument contended by the applicant in relation to ground 1, nor that any such further documents are relevant in the circumstances of being probative of a relevant fact in issue given the information was produced the subject of exhibit C.

52    The appellant has established error in accordance with House v The King:

(1)    First, the primary judge did not understand the relevance of the documents sought under paragraph 4 of the subpoena:

(a)    at J[22] and J[23], the primary judge stated, in substance, that he could not see the relevance of the documents;

(b)    the primary judge ultimately rejected as irrelevant the tender of the two documents which had been produced: J[27]. However, whilst the two documents produced may not have made out ground 1, they were clearly relevant to ground 1.

(2)    Secondly, the primary judge did not understand that further documents might advance the case under ground 1; the primary judge did not appreciate that whether ground 1 could be made out depended on the quality and nature of the material it was contended that the Secretary failed to give to the Authority under s 473CB(1)(c). At J[23], the primary judge stated:

… The Court was not satisfied that any such further documents were necessary to develop the argument contended by the applicant in relation to ground 1, nor that any such further documents are relevant in the circumstances of being probative of a relevant fact in issue given the information was produced the subject of exhibit C.

The primary judge approached the matter at J[2] of [2018] FCCA 724 by saying that “any argument to be advanced can be advanced on the material presently before the Court”, which demonstrates the same error. As noted above, his Honour in fact rejected the tender of the “material presently before the Court” (namely Exhibit C) on the basis that the material was irrelevant: J[27].

(3)    Thirdly, the primary judge approached the matter on the basis that “the material on its face [which, in context, can only be a reference to documents which might have been produced had further compliance in fact been ordered] would not materially alter the identification of the alleged history of torture and trauma that is identified on page 3 of the case plan document and the reference already made to torture and trauma treatment 24 months ago” and therefore that he was “not satisfied there is any further relevant document that is required to be produced”: J[2] of [2018] FCCA 724. This reasoning is illogical and circular. The primary judge could not have known the content of the documents not produced or whether that content would “materially alter the identification of the alleged history of torture and trauma that [was] identified” in the two documents produced. That illogical conclusion was then used, circularly, as the basis for the primary judge’s lack of satisfaction that there were further relevant documents to produce.

53    It should be noted that the Minister acknowledged before the FCC that further documents might exist: J[22]. On appeal it was stated that it was not possible to ascertain whether further documents could be provided because the person who did the PAIS assessment was no longer in the employ of the Department. This appears to reflect the submission made to the FCC recorded at J[22] of the principal judgment, and J[3] of [2018] FCCA 724. However, one of the documents which was produced made it clear that more than one person was in some way connected with the PAIS assessment. The email from Mr Wales (who was said possibly to be the relevant person no longer in the employ of the Department) was sent to “PAIS”. There are numerous searches which can be conducted in the absence of a person who was involved in a particular event; to name a few: date range searches, key word searches and inquiries of people to whom the absent person made communications. The Minister could not say, on the appeal, whether other people were involved in the assessment process, or whether “PAIS” was a single person or a team of people, or whether inquiries were made of “PAIS”. The nature of searches which were undertaken was not identified. The primary judge recorded that “the relevant officer has left the department and … the steps taken to date to identify the material have not identified any other material relating to the assessment”: J[3] of [2018] FCCA 724. It does not appear from the material before this Court that any inquiry was made as to what steps had been taken.

54    There may have been discretionary reasons not to require further compliance with the subpoena, but the basis upon which the application for further compliance was refused was affected by error. If the errors had not occurred, further compliance may have been ordered. The consequence of not ordering further compliance was that the appellant was disabled from putting ground 1 of his application for judicial review otherwise than by reference to the two documents produced (the tender of which were rejected).

55    The Minister submitted that the documents sought were irrelevant because the appellant had not made a claim of “torture”. There are two answers to that submission:

(1)    First, whilst the appellant had not made a claim using the word “torture”, he had made a claim of physical mistreatment, as set out above at paragraph [10].

(2)    Secondly, if the material before the Secretary very obviously raised the fact that the appellant had been tortured, a question might arise whether an unreasonable failure on the part of the Secretary to give that material to the Authority gave rise to a breach of s 473CB(1)(c) which affected the Authority’s review, notwithstanding that the appellant had not expressly made a claim of “torture” – cf: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.

56    Whilst ground 1 is not made out, the subsidiary attack on the primary judge’s exercise of discretion in refusing to order further compliance with the subpoena is made out. If this were the only error, the matter should be remitted to the FCC, differently constituted, for determination according to law.

Ground 4

57    Ground 4 was in the following terms:

The IAA conflated the “relevance” (s 473DC(1)(b)) of the request to “get” new information with the need to satisfy itself “that there are exceptional circumstances to justify considering the new information” (s 473DD(a)), thereby failing to consider if request is made by the applicant’s representative to get new information “may be relevant”. The Judge Street failed to hold that it was a jurisdictional error.

58    This ground related to the submission made to the Authority that it was likely that the Department could access information relating to the outcome of the appellant’s application for protection made in Nauru and also the assessment of those claims, even if no final outcome had been reached.

59    As mentioned, the Authority stated at A[7]:

The submission contends that information regarding the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia at the present time. The IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.5H(1) of the Act. I am not satisfied that there are exceptional circumstances to justify the IAA getting new information regarding the applicant’s application for protection in Nauru.

60    The statutory scheme so far as it concerns getting (s 473DC) and considering (s 473DD) “new information” can, for present purposes, be summarised as follows:

(1)    Section 473DC(1) gives the Authority a discretion to get “new information” which it considers “may be relevant” and which was not before the Minister when the s 65 decision was made.

(2)    In considering whether the documents “may be relevant”, the Authority is necessarily engaged in an exercise which is speculative to some degree.

(3)    Section 473DD prevents the Authority from considering any new information unless satisfied that there are “exceptional circumstances” in accordance with the terms of the provision. The Authority can only consider new information if it has first got it.

(4)    The discretion to get new information under s 473DC(1) does not expressly turn on whether there are “exceptional circumstances” within the meaning of s 473DD(a). The requirement for there to be “exceptional circumstances” only arises when the Authority addresses whether it is prevented by s 473DD from considering the “new information” it has got.

(5)    The nature and content of the “new information” would ordinarily, or at the least may, be relevant to whether there are “exceptional circumstances” under s 473DD(a) justifying considering the “new information” – see, or example: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [59].

(6)    The discretion to get new information under s 473DC(1) is only confined by the terms of the section read in its statutory context, in particular the context of Part 7AA as a whole. That context includes that there is no duty to get information in any circumstance: s 473DC(2).

(7)    The discretion in s 473DC(1) is to be exercised having regard to the particular circumstances of the case. It may well be permissible, having regard to s 473DC(2) and the statutory scheme more generally, to decline to exercise the discretion to get information because the circumstances were not perceived to be sufficiently unusual or exceptional, so long as it was understood that the section did not necessarily require that there be “exceptional circumstances” within the meaning of s 473DD before the discretion to get new information was exercised.

61    The appellant’s complaint is that the Authority approached its consideration of whether to exercise its discretion to “get” the “new information” by introducing a statutory hurdle which did not exist; namely that it had to be satisfied there were “exceptional circumstances” then existing which would later permit the Authority to “consider” any new information which it decided to get. The introduction of that hurdle is significant because the question of whether there were “exceptional circumstances” under s 473DD(a) might be affected by the nature and content of the material and that could not be known in any precise way because the Authority had not yet got the material – see paragraph [60(5)] above.

62    The Authority’s reasons are to be read in a practical common-sense manner and not be construed with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. The last sentence of A[7] indicates that the Authority approached the task of whether to get new information under s 473DC on the basis that it was required to be satisfied there were “exceptional circumstances” within the meaning of s 473DD. That was erroneous. Whether “exceptional circumstances” exist for the purposes of s 473DD may depend in part on the nature and content of the new information which has been obtained; the question whether to get new information arises before the information has been obtained.

63    If the Authority had taken the view that the circumstances were not sufficiently unusual or exceptional to warrant getting the information, that may not have been erroneous (it is strictly unnecessary to decide that question) – the error lies in the Authority thinking the discretion in s 473DC(1) was confined by a requirement that there exist, at the time of considering whether to exercise the discretion to get new information under s 473DC(1), “exceptional circumstances” within the meaning of s 473DD(a) which would justify the Authority later considering the new information. That issue only arises once the Authority has got the “new information”. The determination of that issue might depend in part on the nature and content of the material so obtained. It is not known what approach the Authority would have taken if it had not thought there was a requirement for it to be satisfied that, at the time it considered its discretion under s 473DC(1), there then existed “exceptional circumstances” within the meaning of s 473DD(a).

64    It follows from the foregoing that the FCC erred in its analysis at J[37] to J[39], set out at paragraph [35] above.

65    Ground 4 is made out with the consequence that the matter should be remitted to the Authority.

Ground 7

66    Ground 7 was in the following terms (emphasis in original):

The IAA erred in its assessment at [CB143,7], as it failed to consider that “the assessment of claims that the applicant made in an application for protection whilst in Nauru may be relevant when assessing his claims for protection in Australia ...” The Judge failed to hold that it was a jurisdictional error.

67    As noted in the terms of ground 7, this complaint also focusses on A[7]. It is not clear from its reasons what view the Authority took of the potential relevance of the Nauru documents. It recorded the submission that the documents were relevant but then did not state what view it took. It may be that the Authority concluded the documents were only of marginal potential relevance given the appellant had made claims in Australia. It may be that it concluded the documents were irrelevant. It is difficult to see how the documents would be completely and necessarily irrelevant – they may have, for example, corroborated the appellant’s claims or contained additional detail or evidence. The Authority may have been justified in deciding not to exercise its discretion to get the documents if it perceived that the documents were likely to be of limited utility in circumstances where the appellant had made claims in Australia. However, the Authority expressed no view about the relevance of the documents and decided not to get them because of the lack of “exceptional circumstances” which would enable it to consider the documents if obtained. This approach was erroneous for the reasons given in relation to ground 4.

68    In circumstances where ground 4 is made out, it is not necessary to reach a concluded view in respect of ground 7.

CONCLUSION

69    Ground 4 is made out and the Authority’s decision was affected by jurisdictional error.

70    The decision of the FCC was affected by error in dismissing ground 4 and in the way identified above in respect of ground 1.

71    The matter should be remitted to the Authority.

Associate:

Dated:    27 September 2018