FEDERAL COURT OF AUSTRALIA

DFP16 v Minister for Immigration and Border Protection [2018] FCA 1901

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge be set aside and in lieu thereof it is ordered that:

(a)    the decision of the second respondent made 30 September 2016 be quashed;

(b)    the matter be remitted to the second respondent for determination according to law.

3.    The first respondent pay the appellant's costs of the appeal to be assessed if not agreed.

4.    There be liberty to apply in relation to the costs of the proceedings before the primary judge.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellants are father and son. They are of Tamil ethnicity. They came to Australia from Sri Lanka in January 2013 arriving on Christmas Island. Their applications for protection visas were refused by a delegate of the Minister. The Immigration Assessment Authority affirmed the refusal of their visa applications. Their application for judicial review in the Federal Circuit Court was unsuccessful. They now appeal from that decision.

2    The appellants advance a single ground of appeal to the effect that the primary judge erred in failing to find error by the Authority in not considering certain new information.

3    The appellants say that the new information they sought to rely upon before the Authority was 'an unsigned statement to the effect that: (i) [the father] had formally trained for six months with the Liberation Tigers of Tamil Eelam (LTTE); and (ii) he had not disclosed that fact to Departmental officials or his migration agent because he was scared it would create trouble for him both in Australia and Sri Lanka'.

4    The contention advanced for the appellants is to the effect that the primary judge should have found that the Authority displayed a misunderstanding of the nature and extent of the statutory prohibition in s 473DD of the Migration Act 1958 (Cth) in considering whether to refer to the new information.

5    Section 473DD prohibits the Authority from considering new information unless two requirements are met. The first of those requirements is that the Authority is satisfied that there are exceptional circumstances (requirement (a)): s 473DD(a). The second requirement is that new information either (i) was not and could not have been provided to the Minister before the decision on the visa application; or (ii) is credible personal information not previously known and had it been might have affected the consideration of the applicant's claims (requirement (b)): s 473DD(b).

6    In this case, the Authority found that there were no exceptional circumstances to justify considering the new information. It did not consider, in terms, the elements of either of the limbs of requirement (b).

7    In forming a view whether it is satisfied that there are exceptional circumstances the Authority undertakes an evaluative judgment: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [75]. To be exceptional 'a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered': Plaintiff M174/2016 at [30]. Plainly, whether that is so depends upon the particular circumstances and the evaluation of those circumstances is entrusted to the Authority by the requirement that it be satisfied as to the exceptional character of the circumstances. This aspect is significant for present purposes because s 473DD conditions the exception to the prohibition in s 473DD upon the state of satisfaction of the Authority, not the view of the Court or the application of an objective standard.

8    In Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 at [51], it was said that matters relevant to requirement (b) will usually form part of the consideration of all relevant circumstances required for the purposes of forming the state of satisfaction as to whether there are exceptional circumstances for the purposes of the first requirement. That is because those matters may assist in determining whether there are exceptional circumstances. Even so, 'it is a misconception that the factors in [requirement (b)] must, in all cases, be considered by the Authority in deciding whether "exceptional circumstances" exist as [requirement (a)] does not codify what constitutes "exceptional circumstances"': AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14].

The reasoning of the Authority

9    In this case, the Authority reviewer reasoned in the following way in recording why he was not satisfied that there were exceptional circumstances.

10    The reviewer began by describing the new information (para 4). In the course of doing so he described the new information as being a statement in which the father 'makes a new protection claim'. The new claim was said to be that he had trained for six months with the LTTE prior to his arrest 'and therefore his profile and links to the LTTE were greater than he disclosed to his representative'. It is significant that the information was described in this way for two reasons. First, the information is assessed as raising a new claim. Second it is a claim that the father's LTTE profile and links were greater. In this regard, I note that the Authority in its substantive reasons affirming the decision not to grant the visa applications went on to examine in some detail the nature of actual and perceived links with the LTTE that may expose Tamils in Sri Lanka to a risk of harm (paras 41 to 48). So profile and links to the LTTE were a significant part of the claim to protection considered by the Authority. The Authority reviewer concluded:

I am not satisfied that [the father] was of ongoing interest to the Sri Lankan authorities at the time he left Sri Lanka, except as the subject of routine, intermittent monitoring.

11    A person who was found to have actual links through having participated in training over an extended period may have been found to be in a different risk category. Even if the Sri Lankan authorities did not know about the participation, it may have been that the prospect that such participation may be discovered would be considered relevant.

12    Returning then to the reasons, the Authority reviewer next recognised that fear of adverse consequences is not uncommon among protection visa applicants (para 5). This was a reference to the explanation that had been given by the father for the failure to provide the information any earlier. The reviewer noted that the information pre-dated the decision by the Minister's delegate and that there were three previous occasions when there was an opportunity to disclose the information. As to the third of those occasions the Authority dealt in some detail with the fact that at the father's interview for the purposes of the decision by the Minister's delegate it had been explained that it was extremely important that all information be provided because on a review by the Authority it can only consider information provided to the Department unless exceptional circumstances apply. This too is a consideration of the explanation in the sense that it is adverting to matters that stand against the explanation.

13    The Authority then found: 'The applicant's reasons for non-disclosure do not satisfactorily explain his failure to provide the information before the delegate made a decision'. The Authority then amplified the reasoning to support that finding by referring to what had occurred before the Minister's delegate and the fact that the appellants had been represented by a migration agent. The reviewer then concluded: 'Considering all of the above factors, I am not satisfied there are exceptional circumstances'.

14    The new information was of a character that might fall within the terms of the language used in s 473DD to describe the second limb of requirement (b) on the basis that it was 'credible personal information which was not previously known and, had it been known, may have affected the consideration of the … claims' of the father and therefore the son. (The reference to 'not previously known' is a reference to not previously known to the Minister: Plaintiff M174/2016 at [33]). However, more significantly for present purposes, it was information that the Authority itself identified as giving rise to a new protection claim of a kind that may have affected the outcome. Accordingly, it was a matter that a decision-maker with a proper understanding of the requirements of s 473DD would be expected to have brought to account in forming the required state of satisfaction as to whether there were exceptional circumstances. The question is whether the Authority did so.

The competing contentions of the parties

15    For the appellants, it was contended that the reference to the statement raising a new claim was no more than a brief restatement or recitation of what comprised the new information. It was submitted that the Authority considered only whether the information could have been provided at an earlier time. Further, it was said that there had been no consideration in express terms as to whether the claim may have affected the outcome. These matters were said to disclose a failure to properly understand the nature of what was required by s 473DD when forming the state of satisfaction as to whether there were exceptional circumstances.

16    For the Minister, it was said that there was engagement with the required task. It was emphasised that the Authority did not need to address the second limb of requirement (b) when determining whether there were exceptional circumstances. The requirements in (a) and (b) are cumulative and there is no obligation to consider (b) if (a) is not met. Further, it was a matter for the Authority as to whether it was satisfied and provided it formed that satisfaction with a proper understanding of what was required by s 473DD then there was no jurisdictional error. As the Authority had considered matters that might be relevant to whether the new information was outside the routine or normal and did so in a manner that did not indicate that it misunderstood the required task there was no error. It was for the appellants to demonstrate jurisdictional error by the Authority on the basis that it acted on an incorrect understanding of what was required by s 473DD and they had failed to discharge that onus.

Evident failure to act on a proper understanding of s 473DD

17    The Authority began by identifying the matters in the statement as raising a new claim. Although the Authority then said 'and there his profile and links to the LTTE were greater than he disclosed to his representative or the Department of Immigration', those were the words actually used in the statement which said:

Before my arrest in Sri Lanka, I had participated in six months of formal training with the LTTE. My profile and links to the LTTE were greater than I had advised my agent and the Department.

18    Therefore, having regard to the context, I accept that the reasons of the Authority were simply identifying the claim as new and reciting the nature of the claim. There was no consideration by the Authority at this point in the reasons of the significance of the claim for the visa applications by the appellants.

19    The balance of the reasoning is focussed only on the previous opportunities that had been afforded to the appellants to raise their claims, including the specific reference to the fact that new information would only be able to be presented to the Authority in exceptional circumstances. The purpose of that reasoning may be considered to go beyond considering whether there were earlier opportunities to raise the new claim to also raise questions about the credibility of the information. However, the reasons do not engage with the significance of the information and whether it was information that may have affected the result had it been known to the Minister's delegate.

20    Given that the Authority had identified the claim as new and recited how it may be significant (and given that the claim by the appellants was based on the father's profile or links with the LTTE), the failure to consider those aspects in the reasons indicates that they were not matters brought to bear by the Authority in forming the required state of satisfaction as to whether there were exceptional circumstances.

21    For those reasons, I infer that the Authority was guided by an unduly narrow view of what may constitute exceptional circumstances in reaching the view that requirement (a) had not been met.

22    It was not argued for the Minister that this matter should be approached on the basis that the reasons did not disclose all of the reasons of the reviewer so it is not necessary to consider the issues that arise concerning the inferences that might be drawn from a failure to refer to a matter where reasons do not have to be provided on a procedural matter: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [50] (Thawley J) and CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29] (Bromwich J). In that regard, I note that given the form of the reasons there would have been difficulties in presenting such a position as the reasons dealt with the matter in some detail. In that context, it is unlikely that such an important aspect was considered but went unexpressed in the reasons.

Materiality

23    It was submitted for the appellants that if it was demonstrated that the Authority acted on the basis of a misunderstanding of s 473DD it was not necessary to establish materiality, alternatively if there was, materiality was demonstrated.

24    In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [29], the plurality said:

That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.

25    In a case like the present, the question whether materiality is required before there is jurisdictional error is perhaps devoid of practical significance in the context of s 473DD. It will only be where a material matter that ought to have been considered if a proper approach to what is required to form the state of satisfaction as to whether there are exception circumstances has been shown to have been disregarded that it will be possible to infer that the Authority has been guided by an incorrect understanding of what is required by s 473DD.

26    Therefore, where (as here) it is to be inferred that there was an incorrect understanding because of a failure to consider a new claim that may have affected the outcome that, of itself, will satisfy any requirement for materiality.

Approach of the primary judge

27    The primary judge found that 'the Authority considered the nature and content of the new information, the explanation why it was not submitted to the Delegate, and the satisfactoriness of that explanation in the circumstances': DFP16 v Minister for Immigration and Border Protection [2018] FCCA 1586 at [139]. On that basis the primary judge found that it was open to the Authority to conclude that that it was not satisfied that there were exceptional circumstances: at [140]. However, that reasoning fails to recognise the significance for the question whether a proper understanding of the statutory provision guided the decision of the failure to engage with whether the information had any significance for the visa applications.

28    The primary judge at [133] also found that the case appeared to be 'on all fours' with Plaintiff M174/2016. However, the reasons of the Authority in Plaintiff M174/2016 (recorded at [64]-[65]) show a close engagement with whether the information had significance for the applicant's claim and is to be contrasted in that respect with the present case. Therefore, the present case is not factually analogous to the circumstances considered in Plaintiff M174/2016.

Conclusion

29    For those reasons, the appeal should be allowed, the orders of the primary judge set aside and in lieu thereof the decision of the Authority should be quashed and the matter remitted to the Authority to be dealt with according to law. No reason having been advanced as to why costs should not follow the event, the first respondent should pay the costs of the appeal.

Associate:

Dated:    30 November 2018