FEDERAL COURT OF AUSTRALIA

BEZ17 v Minister for Home Affairs [2019] FCA 283

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time be allowed.

2.    The application to rely on a ground of appeal not advanced before the primary judge be allowed.

3.    The appeal be allowed.

4.    Order 2 of the Federal Circuit Court of Australia dated 1 August 2018 be set aside.

5.    In lieu thereof, the following orders are substituted:

(a)    The decision of the second respondent of 23 February 2017 be quashed.

(b)    A writ of mandamus issue requiring the second respondent to redetermine the review of the decision of the delegate of the first respondent dated 4 October 2016 according to law.

6.    The first respondent pay the applicant’s costs of the appeal as agreed or assessed.

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

REASONS FOR JUDGMENT

KERR J:

1    This is an application for an extension of time within which to appeal from Orders of the Federal Circuit Court of Australia (FCCA) for which no reasons were given. If an extension of time is granted the parties agreed that the Court should then proceed to consider whether leave to rely on a ground not advanced before the primary judge should be granted and, if so, whether the appeal should be allowed or dismissed.

2    The applicant, BEZ17, is a Sri Lankan Catholic Tamil whose former home was in the Mannar district in the Northern Province.

3    On 7 October 2015, after having entered Australia as an unauthorised maritime arrival, he lodged an application for a Safe Haven Enterprise Visa (SHEV). BEZ17 sought protection. He claimed to have fled Sri Lanka under fear of harm at the hands of either the Sri Lankan Criminal Investigation Department (CID) or at the hands of rival Muslim fishermen.

4    On 4 October 2016 a delegate of the Minister for Immigration and Border Protection (Delegate) refused to grant BEZ17 that SHEV. His failed application was automatically referred to the Immigration Assessment Authority (IAA) for review pursuant to the provisions of Pt 7AA of the Migration Act 1958 (Cth) (the Migration Act). As part of that process BEZ17 was provided with a copy of the Delegate’s decision.

5    Although the decision of the Delegate is not before this Court, the reasons of the IAA at [15] state that the Delegate had had significant concerns about the applicant’s truthfulness.

6    On 25 October 2016 the IAA received material from the applicant’s then representative. No submissions were made with respect to that material, which comprised six letters. It may be inferred that BEZ17 wanted the IAA to consider those letters in the course of its fast track review. All of the letters were dated after the Delegate’s decision and on their face were from persons of high status (church leaders, lawyers, justices of the peace) resident in the Mannar district of Sri Lanka. The several authors all claimed BEZ17 had been well known to them prior to his departure from Sri Lanka.

7    Each of the six letters referred to matters which, had those letters been taken into account by the IAA and given credit, would have been material to BEZ17’s claims to fear harm from rival Muslim fishermen. It is not in dispute that, on the basis of country information, the IAA accepted in the generality that there had been a significant dispute in the Mannar district between Muslim and Tamil fishermen (see at [17] of its reasons).

8    The IAA however did not consider that information. In so determining it reasoned as follows:

New information from the applicant

6    On 25 October 2016 the applicant’s former representative forwarded six documents to the IAA on behalf of the applicant. There is no submission attached. The documents range in dates from 4 October 2016 to 24 October 2016 and all purport to attest to the applicant’s claims. It is apparent from the dates on the documents that they only came into existence on or after the date of the delegate’s decision and therefore could not have been provided to the delegate. However, they deal with the events of July/August 2012 (the period covered by the applicant’s claims). They appear to have been obtained by the applicant for the purpose of his visa application. It is not apparent why these attestations could not have been obtained earlier. I note the applicant was represented by the same registered migration agent before the Department that has now forwarded the documents on his behalf. I am not satisfied that there are exceptional circumstances to justify consideration of the information.

(Footnote omitted.)

9    The reference to the IAA not being satisfied that there were exceptional circumstances to justify it considering the information was, I infer, a reference to the provisions of s 473DD of the Migration Act. That section provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

10    The IAA thereafter rejected elements of BEZ17’s claims relating to the conflict between Muslim and Tamil fishermen. Although it accepted at [18] that the family’s fishing hut had been damaged during an incident on 13 July 2012, the IAA concluded that BEZ17’s claim that he feared harm from Muslim fishermen if he returned was not credible at [29].

11    The IAA affirmed the decision under review.

12    It is unnecessary to set out the terms of the six letters. Counsel for the Minister Mr Kay Hoyle properly accepted that if the IAA had fallen into legal error in rejecting the letters for consideration that error would be material in that it could not be said that there could have been no difference in the outcome (transcript p 43).

13    Mr Kay Hoyle submitted (a) that the IAA had not fallen into error in applying the provisions of s 473DD of the Migration Act; (b) that BEZ17’s appeal had been brought out of time in circumstances in which leave to extend time should not be granted; and (c) that BEZ17 required leave to rely on a ground that had not been advanced before the Court below and leave to do so should not be granted.

14    Whether an extension of time and leave to rely on a ground not pressed in the Court below should be granted are preconditions to determination of the substantive appeal.

15    I therefore turn first to those questions.

Should an extension of time be granted?

16    It is well settled that in considering whether to grant an extension of time in which to appeal pursuant to r 36.03 of the Federal Court Rules 2011 (Cth) (the Rules), the Court will have regard to the length and explanation for the delay; any prejudice that the respondent/s may suffer; and the prospects of success if the extension were granted: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; 3 FCR 344 per Wilcox J at 348-349 and SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 per Flick, Griffiths and Perry JJ at [6].

Length and explanation for delay

17    It is uncontentious that BEZ17 instructed lawyers to appeal the IAA’s decision in the FCCA on grounds distinct from those raised in these proceedings, and that ultimately that appeal came before her Honour Judge Emmett. There is a transcript of that hearing before this Court. It reveals that her Honour was (entirely justifiably) sceptical of the merits of the grounds of appeal then pressed before her. Her Honour having raised the prospect that costs might otherwise be greater, BEZ17’s counsel consented to the Court making orders refusing BEZ17 leave to amend (relevantly not in respect of the ground now pressed) without giving reasons and dismissing the appeal. Costs were ordered in the Minister’s favour fixed in the amount of $5,000.00.

18    If it needs to be said, I accept that all four of the grounds pressed before the FCCA (including those as sought to be amended) were entirely without prospects of success and an adverse costs order was inevitable. BEZ17’s draft amended grounds as ultimately before this Court therefore do not challenge the costs order so made.

19    Both the applicant and Ms Natalia Paliy (a solicitor employed by WLW Migration Lawyers) have sworn affidavits in these proceedings deposing to the circumstances that then followed. In short their evidence reveals that after being notified of the outcome in the FCCA by his former lawyer on 1 August 2018 (the same day his appeal in the FCCA had been dismissed) BEZ17 subsequently attended WLW Migration Lawyers on 6 August 2018 to seek legal advice regarding his prospects of success in an appeal to this Court.

20    WLW Migration Lawyers sent a brief to counsel for merits assessment on 11 August 2018.

21    It is not in dispute that there were then exchanges between WLW Migration Lawyers and BEZ17’s former representative requesting additional information.

22    Ms Paliy deposes that on 22 August 2018, “it was deemed necessary to obtain a full transcript of the FCC hearing,” and that transcript had been requested urgently. It was provided on 24 August 2018 and sent to counsel the same day.

23    Counsel’s advice on merits was received on 1 September 2018. The applicant was advised of counsel’s advice on 3 September 2018. On 5 September 2018 the applicant instructed WLW Migration Lawyers to prepare and lodge an application for an extension of time and leave to appeal. The application for an extension of time and a draft notice of appeal was filed on 20 September 2018, some 15 days later. It is uncontentious that the application was 29 days out of time.

24    The Minister accepts that in those circumstances, the delay in bringing an appeal is adequately explained until 5 September 2018. However Mr Kay Hoyle submits, correctly, that there is no explanation of the delay of 15 days between then and 20 September 2018 when the application for an extension of time and draft notice of appeal were filed.

25    I accept Mr Kay Hoyle’s submission that the delay between 5 September 2018 when BEZ17 gave WLW Migration Lawyers instructions to file an appeal and when it was in fact filed on 20 September 2018 is to be weighed against the Court granting the application. However there was a requirement before making the application prepare the affidavit evidence now before the Court and I accept some of that time would have been needed to prepare the necessary affidavit and documentation. In context the delay is relatively minor.

Prejudice the Minister may suffer

26    The Minister does not submit that he would suffer any prejudice on account of that delay.

Prospects of success

27    The draft notice of appeal contained a single draft ground as follows:

The decision of the IAA is affected by jurisdictional error because the IAA failed to consider s473DD(b)(ii) of the Migration Act 1958 in respect of the six documents given by the applicant to the IAA as “new information”, and thereby failed to perform its statutory task.

28    In the course of the Minister’s oral submissions, Mr Kay Hoyle identified potential difficulties in the legal expression of that draft ground. Ms Garsia appearing for BEZ17 made oral application to amend it to meet those objections. Counsel for the Minister formally opposed that course but did not seek to be heard. Having regard to the submissions before me and the circumstance that the ground as proposed to be amended would put the issue in contest between the parties properly before the Court, I made orders permitting the amendment on terms settled by agreement between counsel. Counsel for the Minister’s approach is to be commended. It was consistent with the duty of a lawyer representing a model litigant. As amended, the single proposed ground of appeal for which leave (if an extension of time is granted) was sought was stated as follows:

The Immigration Assessment Authority (IAA) adopted an unduly narrow construction of s 473DD(a) of the Migration Act 1958 (Cth) by failing to consider s 473DD(b)(ii) in respect of the six documents given by the Applicant to the IAA as “new information” on 25 October 2016, and the decision of the IAA is therefore affected by jurisdictional error.

29    With respect to the necessary consideration of the prospects of success of the proposed appeal, I respectfully adopt the statement of principle set out in DWK17 v Minister for Home Affairs [2019] FCA 66 per Banks-Smith J at [15]:

In considering whether to grant the extension of time, the Court should consider at a ‘reasonably impressionistic level’ whether the proposed ground of appeal is ‘arguable’, ‘reasonably arguable’, ‘sufficiently arguable’ or has reasonable prospects of success: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; (2015) 242 FCR 585 at [62]-[63] (Mortimer J) (approved by the Full Court in MZABP v Minister for Immigration and Border Protection [2016] FCAFC 110 at [38] (Tracey, Perry and Charlesworth JJ)).

30    Part 7AA of the Migration Act provides for a limited form of review of fast track reviewable decisions: s 473FA(1). Generally, the IAA is prohibited from accepting or requesting new information when conducting its review: see s 473DB. However the scheme established by Pt 7AA provides an exception to that prohibition if the preconditions contained in s 473DD are satisfied. That section is in the following terms:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

31    In CMY17 v Minister for Immigration and Border Protection [2018] FCA 1333 (CMY17) Thawley J analysed the authorities relevant to that provision as follows:

25    Section 473DD was recently considered in two Full Court decisions: Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 and AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111.

26    The following principles emerge:

(1)    The requirements of s 473DD(a) and (b) are cumulative. The Authority is prohibited from considering new information unless it is satisfied of the matters in both paragraph (a) and subparagraph (b)(i) or (ii) or both: CQW17 at [36]; AQU17 at [13].

(2)    The words “exceptional circumstances” are not defined and are to be given their ordinary meaning; circumstances are “exceptional” if the circumstances may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon: AQU17 at [13].

(3)    What will amount to “exceptional circumstances” is inherently incapable of exhaustive statement and must depend on the particular circumstances of the visa applicant’s case: Plaintiff M174 at [30]; AQU17 at [14]. There may be a combination of factors which, when viewed together, constitute “exceptional circumstances”, or one factor itself may be sufficient for “exceptional circumstances” to exist: AQU17 at [13].

(4)    The Authority’s satisfaction that there are exceptional circumstances (subparagraph (a)) to justify considering the new information extend beyond, but might be contributed to by, the Authority’s satisfaction that the new information:

(a)    could not have been provided to the Minister at the time of the s 65 decision (subparagraph (b)(i)); or

(b)    is credible personal information which had not previously been known (subparagraph (b)(ii)): CQW17 at [48]-[49].

(5)    Whilst it always depends on the particular facts, a failure by the Authority to turn its mind to the matters in subparagraphs (b)(i) and (b)(ii) in determining whether it is satisfied that there are “exceptional circumstances” for the purposes of paragraph (a) may constitute jurisdictional error: CQW17 at [51]-[53]. However, it is a misconception that the matters in (b)(i) and (ii) must, in all cases, be considered by the Authority in deciding whether “exceptional circumstances” exist under (a): AQU17 at [14]. Nor is there a requirement to make an express finding under (b)(i) or (ii) for the purpose of considering whether “exceptional circumstances” exist under (a): AQU17 at [16].

(6)    It is possible that the Authority’s consideration of the existence of exceptional circumstances under paragraph (a) is relevant to its satisfaction as to the matters in paragraph (b), however it would be necessary to identify:

(a)    the circumstances contended to be exceptional; and

(b)    how consideration of such asserted exceptional circumstances might have informed the Authority’s consideration of the matters in (b): CQW17 at [71] [72].

32    Neither party submits that Thawley J’s analysis ought to be departed from and I respectfully adopt it.

33    The critical principle in contest in this case is point (5) as articulated by Thawley J. In short, what is in dispute is whether, on the particular facts before it, the applicant can establish that the IAA failed to turn its mind to the matters in subpara (b)(ii) such as to constitute jurisdictional error.

34    The IAA’s reasons at [15] reveal that the Delegate had had significant concerns regarding the credibility of the information provided by the applicant himself.

35    I infer that BEZ17 sought and obtained the six letters he submitted to the IAA after he had received the Delegate’s reasons because he had wanted the IAA to consider them having regard to those credibility concerns.

36    In the present proceedings, the nub of the Minister’s submissions was that on a fair reading, in context the IAA’s statement that the six letters “all purport to attest to the applicant’s claims” implied a finding on its part that what had been stated in those letters not only was with respect to evidence which might have been earlier adduced, but also that the content of those letters lacked credibility. The IAA had thus not confined itself too narrowly in its application of s 473DD by overlooking the provisions of s 473DD(b)(ii) (transcript p 39 lines 14-20).

37    Ms Garsia submitted in the context of paragraph [6] that the expression ”purport” to attest was simply the grammatically correct use of that word where it was used by the IAA, “before proceeding to look at whether the documents should be considered”. Ms Garsia submitted that the inference relied on by the Minister should not be drawn ”to the extent there is to be a distinction between inferring and reading in … my submission is that it falls to reading in things that aren’t there” (transcript p 43 lines 36-39).

38    On the reasonably impressionistic level required at this stage of the analysis, I accept as plausible Ms Garsia’s contention that the Minister’s submission places unsustainable weight on the word ”purport” in the context of [6] in which it appears.

Consideration

39    I have accepted Mr Kay Hoyle’s submission that there is a period of some unexplained delay between 5 September 2018 when BEZ17 gave WLW Migration Lawyers instructions to file an appeal and when it was in fact filed on 20 September 2018. However the unexplained delay is relatively minor and in circumstances in which the Minister accepts that he would suffer no prejudice by reason of its late filing and service and where the Court has concluded that the appeal has, on the impressionistic level, prospects of success I would extend time to permit the filing of the appeal.

Should leave be granted to rely on a ground not pressed before the court below?

40    In the ordinary course, a party to an appeal is not to be permitted to rely on a contended error not pressed in the court below: see Coulton v Holcombe [1986] HCA 33; 162 CLR 1 and Coshott v Crouch [2017] FCAFC 135; 254 FCR 413.

41    As was observed in both VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] per Kiefel, Weinberg and Stone JJ and BOZ16 v Minister for Immigration and Border Protection [2018] FCA 418 per Allsop CJ at [66], leave to advance a ground of appeal not run in the court below is to be granted only where it is expedient and in the interests of justice to do so.

42    Mr Kay Hoyle submits that leave to rely on a ground not advanced before the primary judge should not be granted for the following reasons:

If the Court is minded to grant the extension of time, then it will still need to consider whether leave should be granted to rely on a ground not advanced before the primary judge. There are a number of reasons why leave should not be granted:

(a)    the applicant was at all times legally represented (both in the framing of his grounds of review and in the position taken at hearing, including the forensic choices;

(b)    as the ground was not advanced before the primary judge, this Court does not have the benefit of the primary judge’s reasons (notwithstanding that the primary judge did not give reasons in dismissing the application for judicial review);

(c)    the consequence of granting leave is that this Court will be in the position of exercising original jurisdiction. Given that this Court is not ordinarily permitted to exercise original jurisdiction in relation to migration decisions, this Court should be slow to accede to any application that has the practical effect of allowing it to do so;

(d)    the effect of (c) is that the first respondent may be placed in the position where its rights of appeal are circumscribed, given that appeal from a decision of this Court exercising appellate jurisdiction as a Full Court is by special leave to appeal to the High Court and not as of right to this Court (which would otherwise be the case in an appeal from the FCC);

(e)    weighing the matters set out in (a)-(d) above, the applicant’s case should not only have sufficient merit but be a strong case. The present case is of insufficient merit to outweigh the other factors weighing against the grant of leave.

Consideration

Factor (a)

43    In SZSFS v Minister for Immigration and Border Protection [2015] FCA 534; 232 FCR 262 (SZSFS) Logan J made the following observation at [9]:

In cases like the present and in relation to an application for leave to raise on appeal a point not taken below, it is always necessary to remind oneself of a number of matters. The disparity between the resources available to the Minister and an applicant for a Protection Visa is usually likely to be very great. An explanation of the kind proffered by the Appellants may be all that can be proffered. Further, an appeal to this Court is the final means by which, as of right, a Protection Visa applicant may secure a fresh opportunity to press on the merits before the Tribunal a claim for such a visa. Yet further, in terms of the future health, comfort or even life of an appellant, much possibly may turn on whether he or she has that further opportunity, given that the alternative to securing a Protection Visa is leaving Australia.

44    In the present proceedings, it is uncontentious that the applicant was legally represented but as the transcript of the hearing before the FCCA reveals, BEZ17’s former lawyer advanced manifestly unsustainable propositions. The Court should not be unfairly critical of the lawyer(s) then representing the applicant, but with the benefit of hindsight the ground BEZ17 now seeks to press would appear to have been an obvious one that should have been identified by his legal representative(s) in the court below. Having read the transcript of the proceedings before the primary judge which is in evidence before me, I am prepared to infer that the most likely reason for the ground now contended for not having been advanced was a significant want of understanding on BEZ17’s lawyers’ part of the operation of the relevant provisions of Pt 7AA of the Migration Act not a forensic choice. Having regard to the observations of Logan J in SZSFS I proceed on the basis that although factor (a) tends against a grant of leave it does not compel that conclusion.

Factor (b)

45    I give factor (b) no weight. The issue to be raised in the appeal if leave be granted is, as Mr Kay Hoyle later submits at [17], a short point of law turning on the construction of s 473DD of the Migration Act as it intersects with the reasons stated by the IAA at [6]. In those particular circumstances I do not accept that the Court will be disadvantaged by the absence of the primary judge’s reasons.

Factor (c)

46    I reject the Minister’s submission that if the Court were to grant leave it would be in the position of exercising original rather than appellate jurisdiction. If a single judge of this Court grants leave, he or she exercises the Federal Court of Australia’s appellate jurisdiction after having concluded that, notwithstanding the ordinary course, it is expedient and in the interests of justice that leave should be granted to a party to raise a ground of appeal not taken below: AXL16 v Minister for Immigration and Border Protection [2018] FCA 208 per Perram J at [26].

Factor (d)

47    There may be some instances where an absence of a right to appeal a decision made at first instance by a judge of the FCCA might be a relevant consideration in a practical sense but this is not one of them. In the absence of any identified circumstance whereby a substantive difficulty would be occasioned, it cannot be relevant that when a single judge exercises the appellate jurisdiction of this Court an error can be corrected only by way of special leave to appeal to the High Court of Australia.

48    The appellate jurisdiction of this Court is regularly exercised by a single judge in appeals from decisions of the FCCA in relation to migration decisions. The Minister correctly submits that in some circumstances the nature of a proposed ground of appeal not advanced before the primary judge will make it inexpedient for a single judge to exercise the appellate jurisdiction of this Court. However, no submission has been made that any characteristic of the present appeal satisfies such circumstances. It is not suggested that any issue relevant to the issue of leave would take this proceeding outside the course of matters routinely decided by a single judge exercising the appellate jurisdiction of this Court.

49    In this particular instance the relevant principles of law that apply with respect to the proposed ground are well settled on the basis his Honour Thawley J helpfully summarised in CMY17.

50    If the Court grants leave its task will be limited to deciding what Mr Kay Hoyle has identified as a “discrete and narrow point”; that is whether “the IAA failed to consider the application of s 473DD(b)(ii) in relation to paragraph [6] of [its decision]” (submissions at [16]). The absence of reasons in a decision below will not relevantly handicap this Court in the discharge of its appellate functions.

Conclusion on leave

51    I have not been persuaded that BEZ17’s failure to have raised the proposed ground earlier was a matter of his former lawyer(s) actual forensic choice. For the reasons I have given above in relation to an extension of time, BEZ17’s proposed ground of appeal is not without prospects of success. The proposed single appeal point is a concise issue and the absence of a reasoned judgment on that point in the court below presents no practical difficulties to its resolution.

52    Mr Kay Hoyle accepts that if the Court were to find that the IAA fell into legal error as contended for in the proposed ground of appeal, the correction of that error might lead to the IAA reaching a different conclusion on remittal of the matter. At [14] the IAA stated that it had significant concerns about the credibility of the applicant’s account inter alia regarding his account of the harm he had suffered and asserted he still feared as a result of his interaction with Muslim fishermen. The six letters go to that critical finding.

53    I note in that regard that the IAA’s reasons further reflect a want of belief in BEZ17’s general credit. While the six letters he sought to have considered by the IAA go only to one aspect of his testimony, if that doubted aspect were to be reconsidered, and a different conclusion reached, that could potentially lead the IAA to revise its conclusions as to BEZ17’s credibility as a whole.

54    I am satisfied that in the unusual circumstances of this case it is expedient and in the interests of justice that leave be granted to allow the applicant to rely on his proposed ground of appeal.

Should the appeal be upheld?

55    As set out at [28], the amended ground of appeal advanced is as follows:

The Immigration Assessment Authority (IAA) adopted an unduly narrow construction of s 473DD(a) of the Migration Act 1958 (Cth) by failing to consider s 473DD(b)(ii) in respect of the six documents given by the Applicant to the IAA as “new information” on 25 October 2016, and the decision of the IAA is therefore affected by jurisdictional error.

56    Mr Kay Hoyle accepts that there is no explicit finding by the IAA that the six letters did not contain credible personal information but submits that on a fair reading of [6] of its reasons, it may properly be inferred that the IAA had considered the documents and reached the conclusion that because of their nature they were not probative (transcript p 39 lines 17-18). Mr Kay Hoyle very fairly acknowledged that what was said by the IAA in [6] is the only relevant part of its reasons in that regard (transcript p 30 lines 10-19).

57    An administrative tribunal is entitled to considerable latitude as to how it expresses itself. Its reasons must not be subjected to pedantic criticisms or examined with an eye keenly attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at [22].

58    However, it is settled law since the High Court’s decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476, that a Commonwealth administrative tribunal’s decisions cannot be immunised from review for jurisdictional error. And, as the High Court’s decision in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme [2003] HCA 56; 216 CLR 212 at [48] per Gleeson CJ, Gummow and Heydon JJ makes clear, “[s]uch error may be found from what is disclosed by [the tribunal’s] reasons…”.

59    Thus the way a decision-maker sets out his or her findings of fact may reveal that he or she has misconceived his or her statutory function. As McHugh, Gummow and Hayne JJ held in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [69] (applied by a Full Court of this Court in Soliman v University of Technology, Sydney [2012] FCAFC 146 (2012) 207 FCR 277 (Marshall, North and Flick JJ) at [54]):

The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

(Emphasis in original, footnote omitted.)

60    An omission may reveal that a tribunal such as the IAA has made an error of law amounting to jurisdictional error: Yusuf at [10]. Scrutiny enables the courts to supervise the work of tribunals and ensure they act according to law. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 at [86]:

… the importance the courts have placed on the absence from the written statement … of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal’s exercise of a power conferred on it by the Parliament. This transparency is essential … to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error.

61    In Yusuf, McHugh, Gummow and Hayne JJ also held at [69] that where a tribunal has a duty to give reasons a reviewing court is entitled to infer “that any matter not mentioned … was not considered by the Tribunal to be material”. The IAA’s duty to give reasons is provided for by s 473EA of the Migration Act.

62    A party seeking to contend that a tribunal’s stated reasons should be augmented by implied unstated findings therefore faces a difficult task: see Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 per Robertson J at [18] and Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408; 135 ALD 51 per Cowdroy J at [43]-[44].

63    That is not to suggest that what the High Court said in Yusuf elevates, to a rule of law, the proposition that a reviewing court must always conclude that any matter not mentioned by a tribunal was not considered by it to be material. I accept Mr Kay Hoyle’s submission that the way a decision is expressed, read fairly and in context, will sometimes show that a tribunal has made a particular finding despite there being no mention of it in its reasons.

64    Mr Kay Hoyle accepts that there is no explicit finding by the IAA that the six letters did not contain credible personal information but submits that on a fair reading of [6] of its reasons it may properly be inferred that the IAA had considered the documents and reached the conclusion that, because of their nature, they were not probative (transcript p 39 lines 17-18).

65    I proceed on the basis that if such an inference is available to be drawn, then, notwithstanding what might be legitimate criticism of an absence of reasoning in support, it could not be concluded that the IAA had misapprehended its statutory duty and fallen into jurisdictional error by giving the provisions of s 473DD too narrow a construction.

66    Mr Kay Hoyle very fairly acknowledged that what was said by the IAA in [6] is the only relevant part of its reasons in that regard (transcript p 30 lines 10-19).

67    Mr Kay Hoyle’s submission that such an inference should be drawn in the facts of this case necessarily rests on whether the words “purport to attest”, on a fair reading of the IAA’s reasons in [6], entitle this Court to infer that the IAA had reasoned as counsel for the Minister submitted it had.

68    It is therefore convenient to restate that paragraph of the IAA’s reasons:

New information from the applicant

6    On 25 October 2016 the applicant’s former representative forwarded six documents to the IAA on behalf of the applicant. There is no submission attached. The documents range in dates from 4 October 2016 to 24 October 2016 and all purport to attest to the applicant’s claims. It is apparent from the dates on the documents that they only came into existence on or after the date of the delegate’s decision and therefore could not have been provided to the delegate. However, they deal with the events of July/August 2012 (the period covered by the applicant’s claims). They appear to have been obtained by the applicant for the purpose of his visa application. It is not apparent why these attestations could not have been obtained earlier. I note the applicant was represented by the same registered migration agent before the Department that has now forwarded the documents on his behalf. I am not satisfied that there are exceptional circumstances to justify consideration of the information.

69    It is appropriate to make the following initial observations:

70    First, the IAA did not describe, even in the most summary of terms, the nature or content of the documents it had been provided with on the applicant’s behalf.

71    Second, the explicit reasoning of the IAA turned exclusively on whether taking those documents into consideration was consistent with only the first limb of s 473DD(b). The IAA’s reference to a want of explanation for the six letters coming into existence is not a finding as to the credibility or otherwise of their content. It clearly relates to the IAA’s reasoning that it “is not apparent why these attestations could not have been obtained earlier”. Had their content been given attention, the purpose of their production would have been obvious: self-evidently the letters had been sought and obtained by the applicant to address a specific adverse finding of fact (and in relation to that fact, the credit of the applicant) made by the Delegate.

72     Third, I accept Ms Garsia’s submission that in the context of paragraph [6] the expression ”purport to attest” was a grammatically neutral and appropriate use of those words to describe what the IAA had recognised them to be “before proceeding to look at whether the documents should be considered”. That of course is indicative and not dispositive. The IAA’s reasons are to be given a fair reading and not be subjected to pedantic criticisms. Having regard to those observations, what a tribunal can be understood to have meant will not necessarily be consistent with ordinary principles of grammatical construction. However, in the ordinary case, the grammatical reading of a decision can be expected to convey what the decision-maker meant.

73    Fourth, it is implausible that the letters were so inherently wanting in relevance and credit that their possible probative status as might be relevant to the second limb of s 473DD could, giving the IAA’s reasons a fair reading, be reflected in the expression “purport to attest”. Such a suggestion however appears to be made in [28] of the Minister’s submissions:

The applicant sought to rely on six letters provided to the IAA in 2016.3 Those letters all carried dates in October 2016 but dealt with certain incidents alleged to have occurred to the applicant in 2012. The authors of the letters state that they know the applicant. However, the matters that they deal with are a recitation of the applicant’s claims; they are not direct testimony and do not corroborate what occurred but rather relate what happened as a report. There is no indication that any of the writers have first-hand knowledge or acquired knowledge of the incidents other than being told (presumably by the applicant) that they had occurred. The basis of the assertions made is not identified and the applicant provided no explanation in his covering e-mail as to the provenance of the letters or what they could demonstrate (in an evidentially meaningful way). That is the context for the IAA’s consideration of the letters at [6] of the Decision.

74    I reject that proposition. The Minister’s submission that “[t]here is no indication that any of the writers have first-hand knowledge or acquired knowledge of the incidents other than being told (presumably by the applicant) that they had occurred” rests on unsound premises. Each writer of the six letters stated that before he had left Sri Lanka the applicant was well known to them. Each writer was from BEZ17’s home district of Mannar. Each writer appeared to hold a position of some seniority and responsibility.

75    The IAA is not bound by the rules of evidence. It would have been an error of law for it to have dismissed such testimony on the basis that the authors of the six letters did not give direct testimony of events they had actually witnessed but rather of what they had learned of events that had happened in their neighbourhood: see BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463 per Kenny J at [97]. In oral argument Mr Kay Hoyle accepted that a person who lived in a local community where fishing huts had been burnt down in the course of a dispute between Muslim and Tamil fishermen might well know of those events. If it needs to be said, there is nothing at all in the materials before the Court that could justify the use of the words in brackets in Mr Kay Hoyle’s submission.

76    I have noted above that a party seeking to contend that a tribunal’s stated reasons should be augmented by implied but unstated findings faces a difficult task. I am satisfied that that task has not been achieved by the Minister in this instance.

77    While each appeal must turn on its specific facts I respectfully adopt the reasoning process in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 257 FCR 148 as relevantly analogous. In that case a Full Court of this Court (Gilmour, Robertson and Kerr JJ) held as follows:

44    In our opinion, the proper and fair reading of … the Authority’s reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants’ claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context.

45    It follows that, in our view, the primary judge was in error in concluding, … that the Authority did take into account the appellants’ claims in relation to considering whether there were exceptional circumstances to justify considering the new information.

78    I am satisfied that the IAA misapprehended its statutory duty and fell into jurisdictional error by misapplying the law by giving the provisions of s 473DD too narrow a construction.

79    I uphold the appeal. The first respondent is to pay the applicant’s costs of the appeal as assessed or as agreed.

Associate:

Dated:    6 March 2019