FEDERAL COURT OF AUSTRALIA

BHP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1211

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to rely on the ground of appeal formulated by the First Respondent following the hearing of this appeal.

2.    The appeal be allowed.

3.    The decision of the Federal Circuit Court of Australia dated 23 October 2018 be set aside and in lieu thereof the following orders be made:

(a)    a writ of certiorari directed to the Second Respondent to quash the decision of 27 February 2017; and

(b)    a writ of mandamus directed to the Second Respondent to reconsider the review according to law; and

(c)    the First Respondent pay the Applicant’s costs of the judicial review application.

4.    The First Respondent pay 50% of the Appellant’s costs of the appeal as agreed or assessed.

5.    The name of the First Respondent be amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

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 appeal from a decision of the Federal Circuit Court of Australia (FCCA) made on 23 October 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA). The IAA had affirmed a decision of a delegate of the First Respondent (Minister) not to grant the Appellant a subclass XE-790 Safe Haven Enterprise Visa (SHEV).

Background and protection claims

2    The Appellant is a Sri Lankan citizen who arrived in Australia as an Unauthorised Maritime Arrival in October 2012. On 1 July 2016, the Appellant lodged an application for a SHEV. For that purpose he attended an interview with a delegate of the Minister on 21 December 2016.

3    On 3 January 2017, the Appellant’s migration agent forwarded extensive post-interview submissions to the Delegate on behalf of the Appellant. Those submissions addressed, inter alia, why the Appellant had been fearful of disclosing the full details of his and his brother’s involvement with the Liberation Tigers of Tamil Eelam (LTTE) both in his Statement of Claims dated 19 May 2016 and his Entry interview of 29 January 2013. That was said to be because of his understandable lack of trust in state authorities and his reasonable fear that the Australian Security Intelligence Organisation might, if made aware of those activities, make an adverse security assessment resulting in his being detained. His submissions developed his case that there was a real chance that during identification checks on his return to Sri Lanka (or afterwards) he would come to the adverse attention of the Criminal Investigation Department (CID) over and above a person who had only committed the offence of leaving the country illegally.

4    However, notwithstanding the relative short period of time that had elapsed since his interview, those submissions were not received in time to be considered. A decision had already been made.

5    On 29 December 2016, the Minister’s delegate had refused the Appellant’s SHEV application on the basis that the Appellant had not satisfied s 36(2) of the Migration Act 1958 (Cth) (Act). The Minister’s delegate summarised the Appellant’s claims for protection as follows:

… The applicant’s claims for protection are summarised below:

•    The applicant fears serious harm including harassment, persecution and torture if returned to Sri Lanka. He fears that he will suffer this harm from the TMVP-Pillayan and TMVP-Karuna (the Karuna group) paramilitary groups and Sri Lankan government authorities.

The applicant fears this harm on the basis of his Tamil ethnicity, the imputed political opinion of support for the Liberation Tigers of Tamil Eelam (LTTE), the imputed political opinion of opposition to the [TMVP]-Pillayan, the Karuna Group and the Sri Lankan government, and his status as a failed asylum-seeker upon return to Sri Lanka.

In support of these claims the applicant cited in his SHEV application a number of issues which can be summarised as follows:

•    At interview the applicant claimed that his brother worked for the LTTE until his injury and incapacity in 2005

•    The applicant was employed voluntarily and involuntarily by the TMVP-Pillayan as an electrician for over 3 years in Batticaloa from 2008

•    The applicant provided support to the Tamil National Alliance (TNA) in the elections of 2012

•    He received threats from TMVP-Pillayan as a result of his support for the TNA and was forced to work unpaid for them

•    He was kidnapped by the Karuna group in May 2012 for one day and threatened

•    TMVP-Pillayan monitored his movements following the election of 2012 due to their suspicions regarding what the applicant had told the Karuna group.

•    He moved around his town of Kallady for security reasons for several months after May 2012 because of his fears of the TMVP-Pillayan

•    The applicant’s brother in Sri Lanka has been told of threats against the applicant by the TVMP, up to 2016, including to shoot him if they saw him

•    The applicant was part of 101 Sri Lankan nationals who arrived in Australia by boat in 2012, some of whom were returned to Sri Lanka. Due to an Australian court order approximately 23 people including the applicant were prevented from being returned to Sri Lanka and the Sri Lanka government is aware of their status as asylum-seekers.

The applicant also provided a medical certificate dated 19 November 2005 from [Doctor A] of the Teaching Hospital in Batticaloa as evidence of his brother’s accident and injuries.

The Delegate’s findings

6    The Minister’s delegate made the following findings with respect to the Appellant’s claims:

•    the applicant is a Sri Lankan Tamil from the Eastern Province of Sri Lanka

•    the applicant worked as an electrician in Kallady, with his father and independently, between 1999 and 2008

•    the applicant’s brother … worked for the LTTE in a non-combat role and that he suffered an unrelated injury in Colombo in 2005 that left him incapacitated

•    The applicant worked for the TMVP-Pillayan from 2008 and into 2012

•    The applicant was detained for one day by the Karuna group in May 2012 and asked questions about his involvement with and knowledge of the TMVP-Pillayan

•    The applicant worked voluntarily for the TNA during the 2012 election campaign

•    The applicant personally supported, and voted for, the TNA in 2012

•    The applicant was threatened by members of the TMVP-Pillayan during the election of 2012

•    The applicant was compelled to work without pay by the TMVP-Pillayan following the 2012 election

•    The applicant was monitored by men from the TMVP-Pillayan following the 2012 election

•    The applicant moved between the homes of friends and relatives over a period of several months in mid-2012 to avoid detection

•    The applicant obtained new identification cards in mid-2012 when he lost his wallet

•    The applicant’s brother made a complaint to the Human Rights Commission of Sri Lanka concerning threats from the TMVP-Pillayan against the applicant

•    The applicant was part of a successful court action by a group of asylum-seekers in 2012 that prevented their forcible return to Sri Lanka at this time, and the Sri Lanka government is aware of this.

7    The Minister’s delegate rejected the Appellant’s claims that his brother was tortured by the TMVP-Pillayan from 2012 to 2016 and that the Appellant himself had been tortured by the TMVP-Pillayan during 2012. The delegate did not accept that the Appellant had had any substantial involvement in politics prior to 2012.

8    The Minister’s delegate was not satisfied that the Appellant would face a real chance of persecution, or a real chance of serious harm in the reasonably foreseeable future, because of his Tamil race or origins as a Tamil from the Eastern Province. The Minister’s delegate was not satisfied that the Appellant had a well-founded fear of persecution by reason of an imputed political opinion that he supported the LTTE due to family association; that the Appellant faced a real chance of serious harm in the reasonably foreseeable future in Sri Lanka on the basis of alleged family associations with the LTTE; or that the Appellant would be imputed with a political opinion in support of the LTTE.

9    The Minister’s delegate was not satisfied that the Appellant had a well-founded fear of persecution by reason of an imputed political opinion that he supported the TNA. The delegate was not satisfied that the Appellant faced a real chance of serious harm in the reasonably foreseeable future in Sri Lanka from the Karuna group, or on the basis of his support for the TNA.

10    The Appellant’s application for a SHEV as had been rejected by the Minister’s delegate was referred automatically to the IAA for review on 9 January 2017 as a fast track reviewable decision. BHP17’s post-interview submissions of 3 January 2017, received too late to have been taken into account by the Minister’s delegate, were included in the material the Secretary gave to the IAA pursuant to s 473CB of the Act.

The IAA’s decision

11    At [2], the IAA stated that it had had regard to the material referred by the Secretary pursuant to s 473CB of the Act.

12    The IAA’s reasons reveal that it exercised its discretion to obtain new information, being information on the treatment of Sri Lankan Tamils and citizens who had departed Sri Lanka illegally and sought asylum abroad contained in a 24 January 2017 country report of the Department of Foreign Affairs and Trade (DFAT). The Minister’s delegate had relied on an earlier DFAT report (dated December 2015) but the IAA was satisfied that there were exceptional circumstances to justify it giving consideration to the 2017 report.

13    The IAA’s reasons set out the Appellant’s claims for protection at [4].

14    At [6]-[29] the IAA then set out its consideration of whether the Appellant satisfied s 5H(1) of the Act.

15    The IAA noted that, during the SHEV interview, the Minister’s delegate had questioned the Appellant “extensively” about whether the LTTE had ever attempted to recruit him. It noted that the Appellant had consistently replied in the negative, telling the delegate that he had never been involved with the LTTE. It observed that Appellant had stated that, in 2005, his brother had been working for the LTTE as an electrician and had been involved in a train accident in Colombo.

16    The IAA noted that in the Appellant’s written claims, he had said that his brother had been working in a government-run paper factory when the train accident occurred. It recorded that the Appellant’s SHEV application had included a photo of a man with amputated legs and a number of medical documents regarding the accident which bear the Appellant’s brother’s name. The IAA observed that the Minister’s delegate had asked the Appellant what relevance his brother’s accident had to the Appellant’s protection claims, but the Appellant had not answered. The IAA concluded that, despite discrepancies in the Appellant’s evidence, it was prepared to accept that the Appellant’s brother had been working for the LTTE as an electrician at the time of the train accident in 2005.

17    However, the IAA was not satisfied that the Appellant would be pursued or subjected to adverse attention from the Sri Lankan authorities on the basis of his brother’s involvement with the LTTE. In so concluding, the IAA noted that the Appellant had not claimed that his brother had been targeted by those authorities on the basis of his LTTE involvement. The IAA concluded that the chance of the Appellant suffering serious harm because of an imputed political opinion, his Tamil race, or any perceived LTTE links was remote (at [10]).

18    The IAA then considered the Appellant’s claims regarding interactions with TMVP paramilitaries between 2008 and 2012. The IAA accepted that in 2008 the Appellant had begun working for TMVP-Pillayan, an armed paramilitary group as an electrician and that he had been paid intermittently for his work. The IAA accepted that the Appellant was afraid to refuse to work for the TMVP-Pillayan.

19    The IAA did not accept that the Appellant was known to the rival group TMVP-Karuna or that they detained or abducted him for one day in May 2012. The IAA found it implausible that an armed paramilitary group would abduct the Appellant and, if he refused to disclose information, simply release him a day later without attempting to contact him again. The IAA noted that the Appellant had not claimed to fear harm from the TMVP-Karuna if he returns to Sri Lanka.

20    The IAA rejected the Appellant’s claims to have moved around from May 2012 to avoid the TMVP-Pillayan, who were targeting him because they believed he had disclosed details of their operations. The IAA did not find it credible that the Appellant was able to evade the TMVP-Pillayan by staying primarily with his older sisters within a small village, especially given that the Appellant had worked for the TMVP-Pillayan since 2008 and they had his personal details on record.

21    The IAA noted a discrepancy between the Appellant’s claim that in August 2012 the TMVP-Pillayan had confiscated his passport to prevent him from leaving the country and that his details would be on a government watch list if he returned to Sri Lanka, and his claim that the TMVP-Pillayan had threatened to kill him if he went to the authorities to report the taking of his passport. The IAA found that if the TMVP-Pillayan had wanted to seriously harm the Appellant, they would have had the resources to find him and “carry out their threats” (at [13]).

22    The IAA rejected that the Appellant was ever a person of interest to the TMVP-Karuna or that they abducted him in May 2012. The IAA further rejects that the TMVP-Pillayan suspected the Appellant had divulged sensitive information during his abduction or that they ever threatened to kill him for doing so, or for any other reason. The IAA rejected that the Appellant had hidden from either of the paramilitary groups prior to departing Sri Lanka and that the TMVP-Pillayan had confiscated his passport.

23    In respect of the Appellant’s claim that he had assisted the TNA during the 2012 election campaign, the IAA noted that Pillayan, the head of TMVP-Pillayan, was running against the TNA’s main candidate in Batticaloa. The Appellant had claimed that TMVP-Pillayan operatives had seen him working for the TNA and then escalated their threats against him. The IAA concluded that the Appellant’s willingness to work publicly for the TNA in that area indicated that he did not feel the need to keep a low profile in order to avoid the TMVP-Pillayan discovering his location, or that he was assisting the TNA. In coming to that conclusion the IAA stated that it had considered a character reference the Appellant claimed Pillayan had written personally. The IAA noted that the reference was written in English and the dates it contained did not correspond with the timeline of events claimed by the Appellant. The IAA found that those circumstances undermined the Appellant’s claims that the TMVP wished to seriously harm him and detracted from his overall credibility. The IAA found that, given the inconsistencies in the Appellant’s evidence, it could not accept that the TMVP-Pillayan had threatened the Appellant in the lead-up to the 2012 election for any reason.

24    The IAA noted the apparent documentary evidence of a complaint the Appellant’s brother made to the Sri Lankan Human Rights Commission. However, the IAA did not accept this to be a record of a genuine complaint, given its concerns about the Appellant’s credibility and its finding that the Appellant was not threatened prior to his departure in 2012. The IAA also rejected that, since the Appellant’s departure from Sri Lanka in 2012, the TMVP-Pillayan had asked the Appellant’s parents when he would be returning. The IAA was unpersuaded that the Appellant was of interest to the TMVP-Pillayan either prior to his departure in 2012, or since that time.

25    In respect of the claim made by the Appellant during his SHEV interview that Pillayan’s group still existed and was working with the Sri Lankan Army to torture people, the IAA relied on country information that had been before the Delegate indicating that TMVP-Pillayan and TMVP-Karuna were no longer operating as government-aligned paramilitary groups. The IAA noted that Pillayan had been arrested in October 2015 for suspected involvement in the murder of two TNA para-militarians. The IAA noted country information indicating that both groups had become more like criminal gangs since the civil war ended, but concluded that there was no evidence to suggest the Appellant would be targeted by either group. The IAA concluded that there is no real chance that the Appellant would face harm from either TMVP-Pillayan or TMVP-Karuna on the basis of any imputed political opinion.

26    The IAA accepted that the Appellant had worked for the TNA during the 2012 election campaign. The IAA noted country information before the Delegate that indicated that the TNA had become increasingly accepted as a political party in Sri Lanka since 2012, winning 16 seats in the 2015 parliamentary election. Country information also indicated that politically motivated violence occurs in Sri Lanka, particularly around election times, and is seemingly perpetrated by supporters of all major parties against their perceived opponents. However, and notwithstanding, the IAA concluded that it was not satisfied that the Appellant would face harm on the basis of his support for the TNA, given its legitimacy as a mainstream political party.

27    The IAA was similarly unpersuaded that the Appellant faces harm because he had left Sri Lanka illegally and sought asylum in Australia. The IAA accepted that the Sri Lankan government might have the details of the asylum seekers involved in the 2012 High Court injunction, but that there was no evidence to support a finding that the Appellant faces a real chance of serious harm on that basis.

28    The IAA noted that the Appellant left Sri Lanka illegally and as such could face imprisonment of up to five years and a fine, however, country information indicates that passengers on people smuggling vessels have not generally been given custodial sentences. The IAA referred to the processing of illegal departees on their return to Sri Lanka, and found that there was a real chance the Appellant would be held briefly, questioned and fined. The IAA noted that in some cases, a family member had been required to collect illegal departees who were released, or to act as a guarantor if personal surety was not granted. The IAA however concluded that there was nothing to indicate that the Appellant would be detained for any long period even if he pleaded not guilty, and a short period of detention would not amount to serious harm.

29    The IAA further noted that the country information that had been before the delegate indicated that the offences for illegal departure are applied to all Sri Lankan citizens. It reasoned that a generally applicable law will not constitute persecution because the application of the law does not amount to discrimination. Consequently, the IAA rejected that the treatment the Appellant would face amounts to persecution within the meaning of s 5J(4) of the Act.

30    The IAA concluded that the Appellant did not satisfy s 36(2)(a) of the Act because he did not meet the requirements of the definition of a refugee contained in s 5H(1).

31    The IAA further rejected that there was a real risk the Appellant would suffer significant harm pursuant to any complementary protection obligations owed to him. It found there were not substantial grounds for believing there was a real risk the Appellant would suffer significant harm as a necessary and foreseeable consequence of being returned from Australia, pursuant to s 36(2)(aa) of the Act. In reaching that conclusion, the IAA cited its earlier findings that the Appellant did not face a real chance of harm on the basis of the protection claims he had advanced. The IAA expressly rejected that the treatment the Appellant would face upon return would amount to arbitrary deprivation of life, the death penalty, or torture, or that there would be an intention to inflict pain or suffering, severe pain or suffering, or extreme humiliation.

32    On 27 February 2017 the IAA affirmed the decision of the Minister’s delegate.

33    There is nothing in the IAA’s reasons beyond the statement at [2] referred to above as might be understood as a reference to the Appellant’s detailed post-interview submissions.

The FCCA decision

34    The Appellant sought judicial review of the IAA’s decision. He was self-represented before the primary judge. His application raised two particularised grounds as follows (unaltered):

1.    The IAA erred in law by not considering all the information on record available at the time of review before it.

Particulars

The applicant filed several documents and gave evidence before the Delegate in support of his claim. The IAA failed to consider all evidence on record and merely confirmed the delegate findings.

2.    The IAA and the delegate failed to consider the correct social group to which I belong, being (i) ethnic Tamil, middle aged male (ii) Kidnapped by Karuna para military Group (iii) the applicant's brother having worked for LTTE (vi) worked for the Pillayan Group (vii) perceived to have links with para military groups (viii) failed asylum seeker who Illegally departed the country (ix) having family links to L TTE as my brother is a member of LTTE

Particulars

The IAA and the delegate failed to consider the correct social group (PSG) to which I belong, They have considered only some of the characteristics of the social group viz ethnic Tamil and, failed asylum seeker but have not considered others aspects like family having close links to LTTE, tortured for links with Pillayan para military Group by the Karuna Para military Group, Pilliyan Group now seeking to take revenge against me on the assumption I have given some information to Karuna para military group and the fact that Government of Sri Lanka is not able to protect people like me against the threats of well armed para military group of Karuna and Pillayan Group.

It is submitted that the harm that would occur to the this PSG (to which the visa applicant belongs) on their return to Sri Lanka was considered especially after having accepted that the applicant worked for Pillayan Group and was detained and tortured by Karuna group.

35    On 29 March 2018 the Appellant filed submissions in his judicial review proceedings in which he raised three further grounds of review. The Appeal Book does not include that document. However the three additional grounds were referred to by the primary judge in the following terms:

18.    First, it is alleged that the Authority denied the applicant procedural fairness by reaching a particular factual finding different to that of the Minister’s delegate.

…

28.    The applicant’s written submissions secondly contend that the Authority failed to invite the applicant’s comment with respect to whether the applicant or his relatives had the means to provide a financial guarantee, to enable the applicant’s release on bail.

…

30.    Thirdly, the applicant’s submissions allege that the Authority failed to consider an integer of the applicant’s claims. Specifically, it is alleged that the Authority failed to consider the applicant’s claim to fear harm for reason of his Hindu religion.

36    No point was taken as to the validity of that procedure in the court below. The Minister addressed all five grounds in his written submissions.

37    In addition, in his written submissions, counsel for the Minister drew the primary judge’s attention to a “further issue”:

After the delegate’s decision, the applicant’s representative provided the Minister’s Department with a document addressing the applicant’s claims, issues raised by the delegate at the interview, and country information. That document formed part of the referral provided to the Authority by the Secretary of the Minister’s Department (and see, s.473CB(1)(c)). Arguably, this material was potentially “new information” as defined by s.473DC(1)(a) of the Migration Act, because it was a document that was not before the delegate, when the decision was made. The Authority did not expressly refer to the document, nor whether it was (in and of itself) or contained new information.

The primary judge accepted that as having raised an additional ground of review.

38    Neither party made oral submissions at the hearing.

39    On 23 October 2018, the primary judge dismissed the Appellant’s application for judicial review. The primary judge’s reasons for dismissing all of the Appellant’s grounds of review were as set out below:

Ground 1

15.    The applicant’s first ground alleges that the Authority erred by not considering all of the evidence before the delegate. This ground is unparticularised. The Authority in its reasons specifically referred to some items of documentary evidence that the applicant had submitted. It did not purport to exhaustively set out the evidence before it, however it was under no obligation to refer to every item of evidence before it. No case of jurisdictional error is demonstrated by Ground 1.

Ground 2

16.    The applicant’s second ground alleges that the Authority failed to consider the applicant’s correct particular social group. However, rather than articulating a valid particular social group, this ground merely recites aspects of the applicant's claims (including claims rejected by the Authority). This is not a case in which the Authority found the applicant’s claims lacked a Convention nexus. Further, the Authority cumulatively considered those aspects of the applicant's claims that it did accept.

Grounds identified in the applicant’s written submission

17.    As noted above, on 29 March 2018, the applicant filed and served a written outline of submissions raising three further grounds.

18.    First, it is alleged that the Authority denied the applicant procedural fairness by reaching a particular factual finding different to that of the Minister’s delegate.

19.    Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the … Authority”. This provision operates to exhaustively exclude the requirements of the common law procedural fairness hearing rule.

20.    Section 473DC(3) does not impose an obligation on the Authority to put to a referred applicant the dispositive issues arising on the review. The Authority is entitled to affirm a decision under review for reasons different from those given by the Minister’s delegate without having to alert an applicant to those reasons in advance of its decision. As the Federal Court held in DBE16 at [59]:

[t]he Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker.

21.    There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In DBE16, the Federal Court also concluded at [59] that:

there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152… do not apply to reviews under Pt 7AA of the Migration Act.

22.    Further, in so far as the applicant's complaint is construed as being that the Authority acted in a legally unreasonably manner by failing to exercise or to consider the exercise of its power in s.473DC(3) of the Migration Act, no case of jurisdictional error is disclosed.

23.    The issue of the unreasonable non-exercise of the power in s.473DC(3) has now been the subject of examination by the Full Federal Court in Minister for Immigration Protection v CRY16, DGZ16 and Minister for Immigration v DZU16.

24.    In DGZ16, the Full Court considered a factual scenario in which the delegate of the Minister made findings of fact that wholly undermined the referred applicant's central factual claims. The Authority made different factual findings, including accepting a key factual matter rejected by the delegate. The Full Court distinguished CRY16, holding that it was open to the Authority to evaluate for itself the material considered by the delegate and arrive at different factual findings, without notifying the referred applicant that it was considering taking a different view adverse to the applicant. Their Honours rejected at [74]-[76], and [78], that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond.

25.    The decisions of CRY16 and DZU16 are authority for the proposition that there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s.473DC(3). This case is not one of those circumstances; it is clearly distinguishable. Critical to the outcome in CRY16, as is apparent from [82] of the Full Court's reasons, is that:

the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate.

26.    In addition, DZU16 is distinguishable factually. In that case, an issue had arisen on the review, being whether relocation was reasonable, of which it was found that the referred applicant was not aware during the visa application process. The Authority issued to the applicant an invitation to comment on new information (namely, country information) purportedly pursuant to s.473DE(1), notwithstanding that it was not required to do so by reason of s.473DE(3)(a). The Authority not only made an error in setting the time for a response, but it was also in possession of information that suggested, among other things, that the referred applicant was illiterate and required a considerable amount of time to respond to the invitation to comment. It was in those circumstances that the Authority's failure to consider whether to exercise the discretion in s.473DC(3) was held to be legally unreasonable. That, however, is not the present case.

27.    In the present case, assuming that the Authority did not consider the exercise of the power in s.473DC(1) and/or (3) in the manner now suggested by the applicant, such non-consideration was entirely explicable: there was no need for new information including at any interview. The Authority had sufficient material before it, based on the applicant's own claims and evidence, to assess his factual claims. The Authority was under no obligation to alert the applicant where it proposed to depart from findings of fact made by the delegate. On an outcome-focused view of the matter, the Authority's non-consideration and non-exercise of the discretion fell within the area of decisional freedom and did not lack an evident and intelligible justification.

28.    The applicant's written submissions secondly contend that the Authority failed to invite the applicant's comment with respect to whether the applicant or his relatives had the means to provide a financial guarantee, to enable the applicant's release on bail.

29.    The same principles as discussed above apply with respect to both procedural unfairness and legal unreasonableness. Further, the Authority's findings at [25] and [33] do not turn on or otherwise necessitate the applicant or a family member providing a financial surety to enable his release on bail. This is a further reason why the authorities of DZU16 and CRY16 are distinguishable; the ability of any person to provide a financial surety was not dispositive of the Authority's conclusion with respect to the applicant's claim concerning his illegal departure from Sri Lanka.

30.    Thirdly, the applicant's submissions allege that the Authority failed to consider an integer of the applicant's claims. Specifically, it is alleged that the Authority failed to consider the applicant's claim to fear harm for reason of his Hindu religion.

31.    Such a claim was never made by the applicant, and nor did it emerge, clearly or at all, on the material before the Authority. Further, and contrary to any suggestion in the applicant’s submissions, the Authority was under no duty to inquire more broadly. Pursuant to s.473DC(2), the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”. Further and in any event, no duty to inquire arose on the facts of this case by reference to the principles stated in Minister for Immigration v SZIAI.

32.    The Minister has also pointed out a further issue, namely that, after the delegate's decision, the applicant's representative provided the Minister’s Department with a document addressing the applicant's claims, issues raised by the delegate at the interview, and country information. That document formed part of the referral provided to the Authority by the Secretary of the Minister’s Department (and see, s.473CB(1)(c)). Arguably, this material was potentially “new information” as defined by s.473DC(1)(a) of the Migration Act, because it was a document that was not before the delegate, when the decision was made. The Authority did not expressly refer to the document, nor whether it was (in and of itself) or contained new information.

33.    For the reasons that follow, no error arises from that. Specifically, I find that the document was not overlooked and, if it was, the Authority’s having overlooked it does not amount to jurisdictional error and/or ought not to result in the grant of constitutional writ relief.

34.    First, the applicant bears the onus of demonstrating that the document was overlooked. The Authority may have formed the view that the document did not comprise of “new information” as defined by s.473DC(1), specifically, for reason that it was not information the Authority “considers may be relevant”. This then had the consequence that the Authority had no power to consider the document under s.473DD. The Authority is under no obligation to give reasons for deciding whether or not certain information comprises new information. Section 473EA(1)(b) does not require the Authority “to describe or state the procedural steps taken by it in reviewing the [delegate’s] decision”.

35.    I infer from the absence of any express reference in the Authority’s reasons to the document that the Authority considered it not to be relevant. That is because of the nature and content of the document as summarised above. Specifically, the document advanced argument as to factual conclusions it was asserted the delegate should reach including by reference to country information, addressed the applicant’s disclosure of a particular aspect of his claims for the first time at the delegate’s interview and whether any adverse conclusion ought to be drawn by the delegate from this, and addressed concerns that had been put to the applicant by the delegate at interview.

36.    Secondly and in the alternative, if the document contained wholly or in part of new information as defined, and it is assumed that the Authority did not ask itself the questions posed by ss.473DD(a) and (b), the result is not jurisdictional error. For reason of the nature and content of the document as described above, and in circumstances where the Authority did not mention it in its reasons, the Authority’s error would not have affected the exercise of the Authority’s decision-making powers. The application of the principles espoused in authorities such as Minister for Immigration v SZRKT leads to the conclusion that the submission was not corroborative, and did not play an important part in the Authority’s assessment of the applicant’s claims for protection.

(Footnotes omitted, emphasis in original.)

The appeal

40    The Appellant advanced three grounds in his notice of appeal filed on 8 November 2018. They were as follows (unaltered):

Grounds of appeal

1.    The Court below erred in finding that the Immigration Assessment Authority had failed to properly consider the Appellant’s claims under s36(2)(a) and s 36(2)(aa) of the Migration Act 1958 (“the Act”)

2.     Ground 1: The IAA failed to afford natural justice opportunity to the applicant and therefore, it has committed a legal error.

Particulars

a.     It should be noted that the delegate of the Minister in his decision for refusal in relation to the applicant’s application for a protection visa has accepted that the applicant was detained by the Karuna group in 2012 (CB 255). The IAA in its decision came to a conclusion contrary to the events accepted by the delegate of the Minister, namely, that the IAA did not accept that the applicant was detained or abducted by the Karuna group for one day in May 2012 as claimed. The applicant was not aware before the IAA decision that the IAA did not accept claim or information accepted by the delegate of the Minister and therefore, prevented from submitting his view on that. The applicant was under the impression that since the claim or information was accepted by the delegate of the Minister, therefore, the he did not raise that matter further with the IAA and was under the impression that if in case, the IAA had any concerns, it would revert back to him for his response. The IAA failed to afford natural justice opportunity to an adverse concern which was accepted by the delegate of the Minister. Therefore, by failing to invite the applicant to provide his response, the IAA committed a legal error. Accordingly, I submit that the decision of the IAA is infected with a legal error and should be declared null and void.

  b.     The IAA in its decision noted: (CB 315)

‘ .. .in the instance the applicant pleads not guilty, he will be released on his own personal surety. In some cases, a family member is required to collect illegal departees who are released, or to act as a guarantor if personal surety is not granted.’

The delegate of the Minister did not raise any issue whether the applicant has financial capacity to provide personal surety or whether he has any members who is willing to collect me from detention or act as a guarantor to secure his release. However, the IAA formed its own view without advising the applicant and getting his response whether he has the financial surety or whether he has any family members who will collect me or provide financial guarantee and concluded that his family members would secure his release by acting as a guarantor to secure his release.

There is no evidence in the decision to suggest that the Department of Home Affairs discussed with the applicant or in its decision whether the applicant or his relatives have the means to provide financial guarantee for him. The IAA failed to invite the applicant whether he has the means to provide bail money or whether he has relatives who would provide or would travel to Colombo to guarantee any bail surety before forming a view that he would be held for a short period of time.

The IAA failed to invite the applicant to provide his response for the following:

    a)     Whether the applicant has any means to provide bail money?

b)     Whether applicant has any relatives who would travel to Colombo to provide guarantee any bail surety.

c)     Whether the applicant has any relatives who would be able to provide or guarantee any bail surety.

d)     What would happen if the applicant does not have the means or does not have any relatives who would be able to provide financial surety and whether he would face longer imprisonment and if there is longer imprisonment whether he would face significant harm.

The above issues the IAA either did not consider or did not give an opportunity to the applicant to respond.

In CME15 v Minister for Immigration & Anor [2017] FCCA 3042 (8 December 2017), the Federal Circuit Court held that the Tribunal committed a legal error by failing to put to the applicant the question of his family providing surety for his bail.

The IAA formed its decision not on facts but on mere imagination and therefore, committed a legal error.

3.    Ground 2: The IAA failed to consider an integer claim of the applicant.

Particulars

The applicant in his statement mentioned that he belongs to Hindu religion. Though, the claim was not expressly made, but since the applicant made a statement that he belongs to Hindu and as per Country information, Hindus are a minority religious group in Sri Lanka, the IAA failed to assess the above claim. The applicant submits that even though it is an unarticulated claim, the IAA as an inquisitorial inquiry body, should have considered the claim which is noted in the statement of the applicant.

41    Subsequently, the Appellant filed an amended notice of appeal with the intention of raising two further grounds under the heading “Additional Grounds of appeal”.

42    The Minister did not oppose the Court granting the self-represented Appellant leave to rely on those two additional grounds. They are as follows (unaltered except to redact the names of family members):

1.     The Immigration Assessment Authority (hereinafter referred as ‘IAA’) erred in its finding at [para 25 and 33] without evidence that the impecunious applicant's family members could act as guarantors or pay the fines to enable the applicant's release which is an unfounded assumption and is a jurisdictional error.

Particulars

a)     Mortimer J observed in ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [41] (in considering whether there had been a denial of procedural fairness in that case), “the circumstances of families are many and varied, and no stereotypical assumptions can be made about whether a family member is able (and willing) to provide assistance” of a substantial kind.

b)     Applicant’s father died on 23 November 2017. The applicant’s elder brother … faced a train accident on 3 November 2005 where both of his legs were severed and as a result he became totally disabled and have no income. [AB 220-221]. Applicant’s elder sister … was born blind. Hence the applicant has no way to recourse to financial assistance from his family members.

c)     The findings and the conclusion reached by the IAA at [para 25 and 33] involved an unfounded factual assumption about the nature and extent of support that the applicant was able to obtain from his family members in Sri Lanka. (See DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353).

2.     The change off government and the new information of the country information the Immigration Assessment Authority's decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).

Particulars

a)     The delegate’s decision was dated 30 December 2016 when the political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa’s administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa’s return could see Tamil activists and perceived dissidents targeted once again.

b)     The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants’ protection claims in Australia.

c)     According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation.” at [para 55] of the said report.

d)     The Special Rapporteur was told about the surveillance of Tamil civil society, including women’s groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.

e)     The Special Rapporteur said “When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of wide spread institutional stigmatisation of a single community. [para 56] of the said report.

f)     The Special Rapporteur said in his conclusion “The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.

g)     In 2017, the Supreme Court of Sri Lanka ordered the State to pay over Rs. 2 million each to the parents of two Tamil youths tortured and killed in police custody by Batticaloa police, following the filing of a Fundamental Rights case. In this case the petitioners cited the former OIC of Batticaloa Police and four others as respondents. The petitioners stated that their deceased sons' arrest, detention are wrongful and illegal and that they were subjected to torture and killed that their fundamental rights guaranteed by Article 11, 13(1), 13(4) and 17 of the Constitution was violated by the respondents. The appellant is also from Batticaloa in Sri Lanka.

h)     According the above new information as there is a material change in the applicants’ circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants’ country of claimed of protection, such as a change in the political or security landscape.

43    Additionally, in his written submissions counsel for the Minister, Mr Kay Hoyle, drew attention to and addressed the same issue that the Minister had earlier raised before the primary judge. His doing so was an exemplary instance of counsel acting for a model litigant and ensuring that an arguable ground of appeal open to be advanced by his unrepresented opponent would not be overlooked.

44    In the course of the hearing of this appeal, Mr Kay Hoyle and his instructing solicitor subsequently undertook to provide the Court with a draft additional ground of appeal directed to that issue. The draft so prepared was in the following terms:

His Honour erred in not finding that the [IAA] fell into jurisdictional error by:

(a)    failing to consider the document dated 3 January 2017 contained in the material referred to the [IAA] where that failure was material; and/or

(b)    to the extent that the document dated 3 January 2017 contained new information as defined in s.473DC(1) of the Migration Act 1958 (Cth), failing to ask itself the statutory questions posed by s.473DD(a) and s.473DD(b) where that failure was material

45    As might be expected, the Appellant seeks to rely on that additional ground. To the extent leave is required, the Minister did not oppose that course. The Minister did not suggest prejudice would be occasioned by a grant of leave: the ground did not raise a new issue. The Court notes that the primary judge addressed that question as a ground of review in the court below. The Court will grant leave.

Prefatory ground of appeal dismissed

46    The Appellant’s notice of appeal filed on 8 November 2018 commences with a ground (numbered 1) asserting a general un-particularised failure in the Court below to find that the IAA had not properly considered the Appellant’s claims. That prefatory statement is followed by two specific grounds identified as Grounds 1 and 2. As previously noted, the Appellant subsequently was permitted to raise three further specific grounds of appeal.

47    I proceed on the basis that the prefatory ground (numbered 1) does not purport to identify a standalone ground of appeal not encompassed by those more specific grounds. In any event, I do not discern any basis beyond those particularised grounds to support the contention. For the avoidance of doubt I would dismiss numbered ground 1.

Basis of the Court’s addressing the original four grounds raised by the Appellant

48    The Court next addresses the four grounds raised by the Appellant (as distinct from the additional ground adopted by BHP17 as drafted by the Minister’s counsel) on the premise that the IAA either overlooked, or for some other reason did not give regard to, the post-interview submissions dated 3 January 2018 the Appellant’s then migration agent had attempted to provide on his behalf to the Minister’s delegate. The Court’s reasons for reaching that conclusion and its consideration as to whether that circumstance gives rise to jurisdictional error is addressed later in these reasons.

Overlap between grounds

49    Given the significant overlap between the remaining grounds of appeal and their form as articulated in the Appellant’s two notices of appeal, the Minister’s submissions were directed to the issues raised rather than in strict sequential order. I proceed on the same basis.

Failure to afford natural justice

50    This discussion encompasses Ground 1 as identified in the original notice of appeal, and Ground 1 in the additional notice of appeal. Between them, those two grounds assert that there were two flaws in the decision of the IAA, and that the primary judge erred in failing to find that either flaw amounted to jurisdictional error:

(1)    that the IAA denied the Appellant procedural fairness in coming to a different conclusion to the Minister’s delegate about whether the Appellant had been detained by the TMVP-Karuna without first giving him an opportunity to respond; and

(2)    that the IAA had failed to consider the Appellant’s capacity to pay a financial surety to secure his bail, or whether he had family members who were able to act as guarantor to secure his release upon return to Sri Lanka.

The Appellant’s submissions

51    The Appellant did not file written submissions relevant to those questions. However, as may be observed, the extensive particulars of his appeal grounds as set out above (which I infer were drafted with some legal assistance) were in the nature of submissions in support of the contentions the Appellant advanced.

52    To the extent the Appellant’s oral submissions were (perhaps) directed to those grounds, the Appellant submitted that the Sri Lankan government had been provided with the details and photographs of those of the asylum seekers who had been involved in the High Court injunction who had not already been returned to Sri Lanka. As a result, the authorities had visited his house and enquired about him. Militants attached to Pillayan had visited the Appellant’s house and demanded that his family produce him on his return. He had been told that he would face danger if he went back to Sri Lanka. The Appellant noted that his brother had lost a leg and his sister had lost an eye. His father had passed away and it was his duty to look after his family. The Appellant had been in an accident and suffered injuries to his leg, resulting in him being unable to work. The Appellant sought relief on humanitarian grounds. He submitted that he would lose his life he returned to Sri Lanka. He submitted that he would not mind losing his life in the name of this country and he had registered to become an organ donor in Australia.

The Minister’s submissions

Different findings

53    In response to the contention that the Appellant had been denied natural justice in that he was not given the opportunity to respond to the IAA’s conclusion, contrary to that which had been reached by the Minister’s delegate, that the Appellant had not been detained by the Karuna group in 2012, the Minister submitted that the IAA’s task pursuant to Pt 7AA of the Act is to conduct a “fast-track” review of the decision referred to it under s 473CA of the Act. The “primary rule” is that the IAA must consider the material referred under s 473CB without accepting or requesting new information or interviewing the referred applicant (citing Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 (Plaintiff M174) per Gageler, Keane and Nettle JJ at [22]).

54    The Minister submitted at [16(c)]:

The Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 confirmed that the appropriate starting point was the terms of Part 7AA and that s.473DA(1) constituted an exhaustive statement of the natural justice hearing rule; there was no equivalent obligation to s.425 under Part 7AA and the IAA was permitted to depart from a finding of the delegate without informing the applicant: at [75-[76]: see also BSQ16 v Minister for Immigration and Border Protection [2018] FCA 881 at [14]-[23].

55    The Minister submitted that, given the clear authority that Pt 7AA of the Act “abrogates notions of common law procedural fairness”, the IAA was under no obligation to advise the Appellant that it intended to make findings contrary to the Minister’s delegate or to give him an opportunity to respond. The Minister submitted that the primary judge’s findings in that regard were therefore correct.

56    The Minister submitted that the Appellant’s reliance on CME15 v Minister for Immigration and Border Protection [2017] FCCA 3042; 327 FLR 205 (CME15) was misplaced because s 425 of the Act has no application to a review conducted by the IAA pursuant to Pt 7AA. CME15 had relied upon the decision of Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; 148 ALD 507 (SZTQS), which was predicated on a breach of s 425 in a review conducted by the then Refugee Review Tribunal pursuant to Pt 7 of the Act. The Minister relied on the reasons of a Full Court of this Court in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 at [76]-[80] as authority that SZTQS should be confined to its facts rather than expressing any broader principle.

Capacity to secure release upon return to Sri Lanka

57    In response to the Appellant’s contention that he was denied natural justice in that the IAA did not consider his capacity to provide a personal surety, or whether any family members were in a position to act as a guarantor in order to secure his release from custody upon return to Sri Lanka, the Minister submitted that an applicant can be taken to be aware of “the bail issue” if it is contained in country information: BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 at [59]-[60]. Furthermore, the Minister submitted, there was no issue specific to the Appellant about the bail and surety information. The IAA had merely applied country information to the particulars of the Appellant’s claims.

58    The Minister submitted that there was no unfounded factual assumption in the present case. The Appellant’s reliance on ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 (ARK16) and DHK16 v Minister for Immigration and Border Protection [2018] FCA 1353 (DHK16) in his articulation of Ground 1 in his Amended Notice of Appeal was misplaced. The Minister submitted that ARK16 arose in the context of Pt 7 of the Act (rather than Pt 7AA), and that DHK16 arose out of “particular factual circumstances going to an assessment of reasonableness in the context of relocation”.

Consideration

59    The Court accepts, with one significant qualification, the Minister’s submission that the primary judge was correct to conclude that the IAA was entitled to depart from a finding of the Minister’s delegate without providing an opportunity for the Appellant to be heard. The Minister’s submission at [16(c)] correctly states the position:

The Full Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 confirmed that the appropriate starting point was the terms of Part 7AA and that s.473DA(1) constituted an exhaustive statement of the natural justice hearing rule; there was no equivalent obligation to s.425 under Part 7AA and the IAA was permitted to depart from a finding of the delegate without informing the applicant: at [75-[76]: see also BSQ16 v Minister for Immigration and Border Protection [2018] FCA 881 at [14]-[23].

60    The Appellant’s reliance on CME15 is of no assistance to him. That matter dealt with the application of s 425(1) of the Act with respect to a decision of the Administrative Appeals Tribunal (Tribunal). There is no doubt that the provisions regarding the conduct of a review before the Tribunal contained in Pt 7 of the Act have no application with respect to a review conducted by the IAA, which is exclusively governed by Pt 7AA of the Act.

61    I also accept the Minister’s submissions that the Appellant’s reliance on ARK16 and DHK16 in his particulars to Proposed Additional Ground 1 do not assist him. The Minister correctly notes that ARK16 arose in the context of a review conducted by the Tribunal pursuant to Pt 7 of the Act, rather than a review conducted by the IAA pursuant to Pt 7AA of the Act. Given the limited application of the common law natural justice hearing rule to reviews conducted under Pt 7AA, ARK16 is not analogous. I also accept the Minister’s submission that DHK16 arose out of specific factual circumstances relating to relocation that are not presently relevant.

62    The one qualification the Court would make to the general proposition contended for by the Minister is that which relates to legal unreasonableness. The Court accepts that no specific reference to legal unreasonableness is made in either of the grounds presently discussed but that issue was the subject of determination by the primary judge and I do not regard a contention of error in addressing that question as excluded from consideration in this appeal.

63    In that regard the primary judge reasoned as follows:

23.    The issue of the unreasonable non-exercise of the power in s.473DC(3) has now been the subject of examination by the Full Federal Court in Minister for Immigration Protection v CRY16 [2017] FCAFC 16], DGZ16 [v Minister for Immigration and Border Protection [2018] FCAFC 12] and Minister for Immigration v DZU16 [2018] FCAFC 32].

24.    In DGZ16, the Full Court considered a factual scenario in which the delegate of the Minister made findings of fact that wholly undermined the referred applicant's central factual claims. The Authority made different factual findings, including accepting a key factual matter rejected by the delegate. The Full Court distinguished CRY16, holding that it was open to the Authority to evaluate for itself the material considered by the delegate and arrive at different factual findings, without notifying the referred applicant that it was considering taking a different view adverse to the applicant. Their Honours rejected at [74]-[76], and [78], that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.

25.    The decisions of CRY16 and DZU16 are authority for the proposition that there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s.473DC(3). This case is not one of those circumstances; it is clearly distinguishable. Critical to the outcome in CRY16, as is apparent from [82] of the Full Court's reasons, is that:

the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate.

26.    In addition, DZU16 is distinguishable factually. In that case, an issue had arisen on the review, being whether relocation was reasonable, of which it was found that the referred applicant was not aware during the visa application process. The Authority issued to the applicant an invitation to comment on new information (namely, country information) purportedly pursuant to s.473DE(1), notwithstanding that it was not required to do so by reason of s.473DE(3)(a). The Authority not only made an error in setting the time for a response, but it was also in possession of information that suggested, among other things, that the referred applicant was illiterate and required a considerable amount of time to respond to the invitation to comment. It was in those circumstances that the Authority’s failure to consider whether to exercise the discretion in s.473DC(3) was held to be legally unreasonable. That, however, is not the present case.

27.    In the present case, assuming that the Authority did not consider the exercise of the power in s.473DC(1) and/or (3) in the manner now suggested by the applicant, such non-consideration was entirely explicable: there was no need for new information including at any interview. The Authority had sufficient material before it, based on the applicant’s own claims and evidence, to assess his factual claims. The Authority was under no obligation to alert the applicant where it proposed to depart from findings of fact made by the delegate. On an outcome-focused view of the matter, the Authority’s non-consideration and non-exercise of the discretion fell within the area of decisional freedom and did not lack an evident and intelligible justification.

(Footnotes omitted.)

64    An appeal by way of re-hearing requires an appellate court to decide for itself whether the decision of the primary judge is correct or incorrect. Doing so requires a single judge exercising the Court’s appellate jurisdiction to determine, within the boundaries of the grounds of appeal, whether the IAA took a course (as contended by the Appellant) that caused it to fall into jurisdictional error: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 per Gageler J at [20] and [30].

65    The Court must therefore consider for itself whether there might be a proper basis for the contention that it was legally unreasonable for the IAA not to have considered the exercise of its discretionary power in s 473DC(3) of the Act. In that regard I infer, in the absence of any mention of the IAA having considered exercising that power, it did not.

66    That duty acknowledged, I am satisfied that primary judge did not fall into error.

67    Legal unreasonableness is context and fact specific. As Thawley J noted in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (BCQ16), a conclusion as to whether a decision is or is not legally unreasonable must be informed by the subject matter, scope and purpose of the legislation in question pursuant to which that decision is required, or permitted, to be made.

68    The overall context established by the provisions of Pt 7AA of the Act is that, subject to limited exceptions, the IAA must consider the material referred to it under s 473CB without accepting or requesting new information or interviewing the referred applicant: Plaintiff M174/2016 per Gageler, Keane and Nettle JJ at [22].

69    Notwithstanding, as the primary judge correctly acknowledged, Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 (DZU16) and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (CRY16) were and remain binding authority for the proposition that there will be circumstances in which, notwithstanding the abrogation of the principles of procedural fairness in Pt 7AA, it will be legally unreasonable for the IAA to fail to consider exercising the discretion contained in s 473DC(3) of the Act.

70    CRY16 establishes that not everything requiring a party to be given an opportunity to be heard as an aspect of procedural fairness will, seen through the lens of legal unreasonableness, invalidate a decision. Whether a particular circumstance will require a conclusion of legal unreasonableness to be reached is both evaluative and context and fact specific.

71    The IAA’s reasons at [11]-[14] identify a number of factors arising out of the Appellant’s own account which led it to conclude that it was implausible that the Appellant had been detained by the Karuna group in 2012. No challenge is made to those findings.

72    Once that is accepted, the conclusion of the primary judge (at [27]) that the IAA had sufficient material before it, based on the Appellant’s own claims and evidence, to assess his factual claims is unimpeachable. Unlike the circumstances in CRY16, there was nothing else before the IAA to warrant the primary judge (or this Court) finding legal unreasonableness in the IAA not considering the exercise of its discretionary power pursuant to s 473DC(3). The primary judge reached that conclusion by “distinguishing” CRY16. Importantly, nothing turns on that language, but I would prefer to explain the outcome as simply an application of the principles established by CRY16 to the very different facts in this case.

73    Accordingly, there was no error in the primary judge’s reasoning that it was not legally unreasonable (and as such a jurisdictional error) for the IAA not to have given consideration to the exercise of its discretionary power in s 473DC in the particular circumstances and facts that had been before it.

74    With respect to the Appellant’s contention that the IAA failed to consider the capacity of the Appellant to pay a bail surety or his family to act as guarantor, I accept the Minister’s submission that the IAA had made no unfounded factual assumptions. The IAA merely applied country information to the particulars of the Appellant’s claims.

75    The primary judge noted that the IAA’s findings with respect to the process that the Appellant will face upon return “do not turn on or otherwise necessitate the applicant or a family member providing a financial surety to enable his release on bail” (at [29]). Because the IAA’s findings with respect to the Appellant’s claim regarding his illegal departure from Sri Lanka and the likely period of his detention was not dependant on a financial surety or guarantee being paid, I am satisfied that nothing mandated the application of the principles enunciated in DZU16 and CRY16.

76    I would dismiss both Ground 1 as identified in the original notice of appeal, and Ground 1 in the additional notice of appeal.

Failure to consider a claim

77    This contention is articulated in Ground 2 in the Appellant’s original Notice of Appeal. It is as follows (unaltered):

Ground 2: The IAA failed to consider an integer claim of the applicant

Particulars

The applicant in his statement mentioned that he belongs to Hindu religion. Though, the claim was not expressly made, but since the applicant made a statement that he belongs to Hindu and as per Country information, Hindus are a minority religious group in Sri Lanka, the IAA failed to assess the above claim. The applicant submits that even though it is an unarticulated claim, the IAA as an inquisitorial inquiry body, should have considered the claim which is noted in the statement of the applicant.

The Appellant’s submissions

78    The Appellant made no specific submissions going to this ground of appeal.

The Minister’s submissions

79    The Minister accepts that the Appellant had identified his religion as Hindu in his application, but submits that BHP17 had made no explicit claims that he feared harm on the basis of his religion, or any statement at all about his religion. Further, Mr Kay Hoyle submits, there is nothing in the materials before the IAA to suggest a claim not expressly made arose clearly on the basis of established facts. Mr Kay Hoyle submits that no obvious enquiry arose in the circumstances and, in consequence the IAA was under no duty to enquire further, citing Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 83 ALJR 1123.

Consideration

80    The Minister does not suggest that the IAA is not subject to the identical duty as applies with respect to merits review conducted by the Tribunal pursuant to Pt 7 of the Act to give consideration to any unarticulated claim clearly apparent on the materials before it.

81    The Court proceeds on that basis. However, I am unpersuaded that the asserted error is made out. The primary judge’s reasons with respect to this ground were as follows (at [31]):

Such a claim was never made by the applicant, and nor did it emerge, clearly or at all, on the material before the Authority. Further, and contrary to any suggestion in the applicant’s submissions, the Authority was under no duty to inquire more broadly. Pursuant to s.473DC(2), the Authority “does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances”. Further and in any event, no duty to inquire arose on the facts of this case by reference to the principles stated in Minister for Immigration v SZIAI [[2009] HCA 39; 111 ALD 15].

82    His Honour’s analysis is sound. No express claim was made. There was also nothing to suggest a claim not expressly made arose clearly on the basis of the materials before the IAA. In those circumstances there was nothing in the Appellant’s identification of himself as a Hindu to engage any duty upon the IAA to give consideration to a claim that BHP17 might face persecution by reason of his religion.

83    I would dismiss Ground 2 as expressed in the Appellant’s original notice of appeal.

Further information available since IAA’s decision

84    Ground 2 of the Appellant’s Amended Notice of Appeal is follows (unaltered):

2.     The change off government and the new information of the country information the Immigration Assessment Authority’s decision has become legally unreasonable. (See Australian Retailers Association v Reserve Bank 2005 FCA 1707 at [457]-[459]).

Particulars

a)     The delegate’s decision was dated 30 December 2016 when the political situation was drastically changed on 26 October 2018 and the return of the Mahinda Rajapaksa which was not taken to consideration by the delegate. Rajapaksa’s administration was accused of serious human rights violations during the final stages of the conflict between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam (LTTE). It is a matter of record that the Sri Lankan military indiscriminately attacked civilians, hospitals and schools, executed prisoners and interned thousands of Tamils with widespread use of torture and sexual violence. Thousands of Tamils and other minorities with links to the Tigers were also forcibly disappeared. For a beleaguered Tamil population in the north and east of the country, the concern will be that history could repeat itself with the threat of further discrimination and violence looming. With no real accountability processes for previous crimes committed, Rajapaksa’s return could see Tamil activists and perceived dissidents targeted once again.

b)     The new Report of the UN Rapporteur Ben Emmerson QC dated 23 July 2018 (Emmerson Report) in support of the applicants’ protection claims in Australia.

c)     According to the 2018 Emerson report, Tamils also experience pervasive and insidious forms of stigmatisation”. at [para 55] of the said report.

d)     The Special Rapporteur was told about the surveillance of Tamil civil society, including women’s groups and of fear of reporting alleged human rights violations and sexual violence to the authorities. [para 55] of the said report.

e)     The Special Rapporteur said “When viewed side by side with the figures that show that Tamils have been, and still are, overwhelmingly and disproportionately affected by the operation of the Act (PTA), a figure emerges of wide spread institutional stigmatisation of a single community. [para 56] of the said report.

f)     The Special Rapporteur said in his conclusion “The Tamil community remains stigmatised and disfranchised, while the trust of other minority communities is being steadily eroded.

g)     In 2017, the Supreme Court of Sri Lanka ordered the State to pay over Rs. 2 million each to the parents of two Tamil youths tortured and killed in police custody by Batticaloa police, following the filing of a Fundamental Rights case. In this case the petitioners cited the former OIC of Batticaloa Police and four others as respondents. The petitioners stated that their deceased sons' arrest, detention are wrongful and illegal and that they were subjected to torture and killed that their fundamental rights guaranteed by Article 11, 13(1), 13(4) and 17 of the Constitution was violated by the respondents. The appellant is also from Batticaloa in Sri Lanka.

h)     According the above new information as there is a material change in the applicants’ circumstances which occurred after the Minister made a decision under s 65 of the Migration Act 1958 as the significant and rapidly deteriorating conditions emerging in the referred applicants’ country of claimed of protection, such as a change in the political or security landscape.

The Appellant’s submissions

85    The Appellant made no separate submissions in support of this ground.

The Minister’s submissions

86    The Minister submits that the Appellant would require leave of the Court to rely on the additional country information. He submits that the Appellant appears to be contending that it is open to this Court to find that the IAA’s decision to be affected by jurisdictional error on the basis of information since obtained that was not before the decision maker. Mr Kay Hoyle submits that that contention relies on a misreading of Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; 148 FCR 446 (Reserve Bank).

87    With respect to Reserve Bank, the Minister submitted at [24]:

First, in that case the Court noted that the ordinary rule was that material not before the decision-maker was not admissible in proceedings for judicial review (and, it may be inferred, even more so in a case on appeal from a judicial review decision). Secondly, to the extent that the case may be read as an exception to that principle it is very limited. In Reserve Bank reliance was placed on the decision in Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1989) 23 FCR 536 at 539-540. That latter case states that where an issue goes to a legal error relevant to the exercise of a decision-maker’s jurisdiction then it may, depending on the type of error, be appropriate to admit evidence not before the decision-maker (because the jurisdiction is based on the actual state of affairs). In Reserve Bank, the material in question was expert evidence addressing a certain state of affairs (and whether or not it actually existed). Those matters were jurisdictional facts: Chandra v Webber (2010) 187 FCR 31 (Chandra) at [40]-[43].

88    The Minister submitted that no such situation arose in the present appeal: the decision maker was required to reach a state of satisfaction based on the material available. The IAA’s jurisdiction was not predicated upon the existence of a particular state of affairs, it was predicated upon the actual state of affairs that existed at the time of the decision. The contention that material relevant to factual circumstances that arose after the making of the decision could support a finding of jurisdictional error by this Court is contrary to authority. In that regard, the Minister cited Charlie v Minister for Immigration and Border Protection [2018] FCA 607 at [36], Chandra v Webber [2010] FCA 705; 187 FCR 31 at [40]-[43], and Parker v Minister for Immigration and Border Protection [2016] FCAFC 185; 247 FCR 500.

Consideration

89    The Minister’s submissions must be accepted. The Ground (as explained by its particulars) relies on a misreading of the principles discussed in Reserve Bank.

90    The task of judicial review in the FCCA and the task of this Court on appeal are both limited to the identification of legal error. By reason of the existence of s 474 of the Act, only a flaw amounting to jurisdictional error can lead to a finding of invalidity.

91    There will be circumstances in which new evidence properly may be adduced even in such a judicial review proceeding – for example, to prove conduct if it has been alleged a decision is vitiated by fraud. Other examples are discussed by Abraham J in AQK17 v Minister for Immigration and Border Protection [2019] FCA 1176 at [26]. However those few instances are limited and exceptional. None apply in the present instance.

92    It is not suggested in the particulars of the Grounds of Appeal that the IAA’s decision was legally unreasonable by reason of the IAA’s failure to anticipate a change of government in Sri Lanka or that that government would pursue the policies the Appellant alleges it is pursuing. In any event, there is no basis for such a contention on the materials before this Court. Absent legal error, it is not open to the Court to quash the IAA’s earlier decision.

93    This does not mean that no consideration can be given to such changed circumstances. Changed circumstances undoubtedly can have grave consequences. For example, a referred review applicant may have been found by the IAA not to face any real prospect of harm. If, after such a decision, an extremist group such as ISIS were to take control over a place to which the IAA had found a review applicant could safely return, that new circumstance would need to be taken into account.

94    As events subsequent to Tiananmen Square are a clear illustration, the Executive Government and/or the relevant Minister have powers capable of being drawn on to shield those who might otherwise be required to return to a country where it is accepted that a person faces a real risk of persecution by reason of changed circumstances. Successive Australian Governments have committed themselves to act on the basis that no-one will be refouled (returned) to a place where they reasonably fear persecution. That remains so irrespective of the exhaustion of a person’s legal avenues of appeal.

95    It will be for the Appellant to make such a case to the executive arm of government should he be so advised.

96    I would refuse the Appellant leave to adduce new country information on appeal. I would dismiss Ground 2 of the Appellant’s Amended Notice of Appeal.

Additional Ground of Appeal relating to the Appellant’s 3 January 2017 post-interview submission

97    As noted above, given the unusual circumstances of this appeal, the Court has granted leave to the Appellant to rely on the following additional ground:

His Honour erred in not finding that the [IAA] fell into jurisdictional error by:

(a)    failing to consider the document dated 3 January 2017 contained in the material referred to the [IAA] where that failure was material; and/or

(b)    to the extent that the document dated 3 January 2017 contained new information as defined in s.473DC(1) of the Migration Act 1958 (Cth), failing to ask itself the statutory questions posed by s.473DD(a) and s. 473DD(b) where that failure was material.

98    It is convenient first to restate the primary judge’s reasoning as relevant to this ground:

32.    The Minister has also pointed out a further issue, namely that, after the delegate’s decision, the applicant's representative provided the Minister’s Department with a document addressing the applicant's claims, issues raised by the delegate at the interview, and country information. That document formed part of the referral provided to the Authority by the Secretary of the Minister’s Department (and see, s.473CB(1)(c)). Arguably, this material was potentially “new information” as defined by s.473DC(1)(a) of the Migration Act, because it was a document that was not before the delegate, when the decision was made. The Authority did not expressly refer to the document, nor whether it was (in and of itself) or contained new information.

33.    For the reasons that follow, no error arises from that. Specifically, I find that the document was not overlooked and, if it was, the Authority's having overlooked it does not amount to jurisdictional error and/or ought not to result in the grant of constitutional writ relief.

34.    First, the applicant bears the onus of demonstrating that the document was overlooked [citing Minister for Immigration v SZGUR (2011) 241 CLR 594, at 616 [67]-[68] per Gummow J]. The Authority may have formed the view that the document did not comprise of “new information” as defined by s.473DC(1), specifically, for reason that it was not information the Authority “considers may be relevant”. This then had the consequence that the Authority had no power to consider the document under s.473DD. The Authority is under no obligation to give reasons for deciding whether or not certain information comprises new information [citing BCQ16 v Minister for Immigration [2018] FCA 365 at 45; CVS16 v Minister for Immigration [2018] FCA 951 at [29]-[30]]. Section 473EA(1)(b) does not require the Authority “to describe or state the procedural steps taken by it in reviewing the [delegate's] decision” [citing SZGUR at 616 [69] per Gummow J].

35.    I infer from the absence of any express reference in the Authority's reasons to the document that the Authority considered it not to be relevant. That is because of the nature and content of the document as summarised above. Specifically, the document advanced argument as to factual conclusions it was asserted the delegate should reach including by reference to country information, addressed the applicant's disclosure of a particular aspect of his claims for the first time at the delegate's interview and whether any adverse conclusion ought to be drawn by the delegate from this, and addressed concerns that had been put to the applicant by the delegate at interview.

36.    Secondly and in the alternative, if the document contained wholly or in part of new information as defined, and it is assumed that the Authority did not ask itself the questions posed by ss.473DD(a) and (b), the result is not jurisdictional error. For reason of the nature and content of the document as described above, and in circumstances where the Authority did not mention it in its reasons, the Authority's error would not have affected the exercise of the Authority's decision-making powers. The application of the principles espoused in authorities such as Minister for Immigration v SZRKT [(2013) 212 FCR 99] leads to the conclusion that the submission was not corroborative, and did not play an important part in the Authority's assessment of the applicant’s claims for protection.

(Citations omitted except where expressly set out.)

The Minister’s submissions

99    The Minister submitted as follows:

27.     The material in the additional submission was plainly designed to address matters going to the Delegate’s Decision and matters raised by the Delegate during the interview with the appellant. It follows that the material did not directly address matters with which the Authority was concerned.

28.     The absence of a reference to the submission is not determinative. Where a decision-maker makes no reference to an issue or piece of evidence, it may be inferred that the decision-maker considered it not to be relevant: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 at [41]-[47]. It may also be inferred that the Authority, in the context of Part 7AA, determined that the additional submission was new information and did not meet the requirements of s.473DD: BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [45]; CVS16 v Minister for Immigration and Border Protection [2018] FCA 951 at [29].

29.     In these circumstances, respectfully, the primary judge did not fall into error. There was no misapplication of principle. Given the nature of the additional submission, it may properly be inferred that the Authority considered the submission as it stated in the Decision that it had regard to the material referred to it by the Secretary. It may be further inferred that having considered the submission, the Authority found it to be irrelevant.

100    In oral submissions Mr Kay Hoyle referred the Court to SZTMD v Minister for Immigration and Border Protection [2015] FCA 150; 150 ALD 34, in which Perram J observed that “the Yusuf inference” is simply an inference available to be drawn, or not drawn, in the circumstances of each case. Mr Kay Hoyle noted that in the present circumstances, the Minister relied on the fact that the material was not referred to as giving rise to an inference that the IAA had considered BHP17’s submissions but had concluded that they were not material to its review. That had been the inference drawn by the primary judge.

101    Asked if he could defend the drawing of such an inference, Mr Kay Hoyle stated that the highest the Minister could put the position was that the material had been intended as a post-interview submission, so by its very nature it had been directed to matters that were of concern to the decision of the Minister’s delegate. That point of time had passed, and there had been a specific process by which the Appellant could have sought to advance new material before the IAA. That process had not been utilised.

102    The Minister submitted that it had been open to the primary judge to reason that the IAA had properly considered the material not to be relevant on the basis that it was not something that came within its remit, but instead was a post-interview submission directed to the Minister’s delegate. Because it had been directed to that specific purpose, it was not material to the IAA’s review, no matter what it contained.

103    Mr Kay Hoyle however conceded that it would be open to the Court to find that the Appellant would have understood the IAA’s letter of 10 January 2017 to mean that it had received his post-hearing submissions dated 3 January 2017.

104    In so far as that material comprised submissions, the Minister accepted that a Full Court of this Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 had held that submissions, invited as they are by the IAA’s Practice Direction, should have been considered by the IAA.

105    Nevertheless, the Minister submitted the primary judge’s conclusions should be upheld on the basis of Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99. The submissions were not corroborative, and did not play an important role in the IAA’s decision.

106    With respect to the primary judge’s alternative reasoning at [36], Mr Kay Hoyle submitted that his Honour had proceeded on the basis that if the material was wholly or in part new information, no jurisdictional error would results from any failure to consider whether that new information should be received pursuant to s 473DD.

107    Mr Kay Hoyle submitted that the information in the post-hearing submissions going to the Appellant’s brother’s role in the LTTE was of no moment because the IAA had considered and accepted the Appellant’s claims regarding his brother’s involvement in the LTTE. The new information would have added nothing to the IAA’s reasoning.

108    Before the conclusion of the hearing, Mr Kay Hoyle sought and obtained the leave of the Court to file and serve additional written submissions on this ground. Pursuant to that leave the Minister submitted as follows:

3.    The proposed ground identifies two issues, one predicated on the additional submission not being new information for the purposes of s.473DC(1), the other on it being such new information. Each issue is dealt with in turn.

4.     It is not in dispute that: the additional submission was not before the Delegate; it was provided to the Authority; and the Authority did not expressly refer to it. The additional submission dealt with three matters: first, country information in support of the appellant’s claims; secondly, submissions (also by reference to country information) about why a claim not previously advanced about his brother working for the LTTE had only been raised for the first time before the Delegate; and, thirdly, why the appellant’s claims were such that he fitted the risk profile based on country information. The additional submission did not make new claims for protection that had not been made before the Delegate.

5.     The matters contained in the additional submission principally went to factual information unrelated to the appellant (the country information). Assuming it could properly be considered (i.e. it was not new information), the acceptance or rejection of such information was within the purview of the Authority’s fact-finding function. To the extent that the matters involved consideration of the appellant’s claim about his brother working for the LTTE and the appellant being within an accepted risk profile, both of those matters were addressed and dealt with by the IAA in its Decision.

6.     The first issue is dealt with at [34]-[35] of the Judgment. The essence of the primary judge’s reasons turned on the inference that his Honour drew that the Authority considered the additional submission, but found it to be irrelevant. The availability of that inference is not contentious, as the authorities referred to at [28] of the first appeal submission demonstrate. It is submitted that it should also be drawn in the present case, given the matters were addressed to the Delegate and dealt with matters that the Authority considered separately or were within the fact-finding function of the Authority.

7.     The second issue is dealt with at [36] of the Judgment. The reasons proceeded on the assumption that, to the extent the additional submission contained 'new information', the Authority failed to ask itself the questions posed by s.473DD. The primary judge concluded that any such error would not have affected the exercise of the Authority’s decision-making powers due to the nature and contents of the additional submission.

8.     As noted above, the additional submission mostly addressed country information that was not before the Delegate. The weight to be given to country information is a matter for the decision-maker: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]; CRC15 v Minister for Immigration and Border Protection [2018] FCA 218 at [18]-[19]. In those circumstances, nothing turns on any failure to assess whether the information was new information. It may be inferred that the Authority considered, in the context of the other material available to it, that the additional country information was not relevant. In respect of the claim not advanced until the first time before the Delegate, the additional submission addressed matters before the Delegate and which were ultimately considered by the Delegate. As such, it also formed part of the Authority’s review. The Authority considered the claim and accepted that the applicant's brother had worked for the LTTE (at [9]). In addition, the Authority considered the appellant’s risk profile as part of its review (for example, at [10], referring to country information contained both in the Delegate's decision and the additional submission). Nothing in the additional submission was material to the Authority’s discharge of its statutory function.

The Appellant’s submissions

109     The Appellant also filed written submissions pursuant to leave as follows (unaltered):

3.    The First Respondent did not dispute that the said submission was not before the Delegate which was provided to the Authority and the Authority did not expressly refer to it. The Authority’s satisfaction that the new information is credible personal information which had not previously been known. It is also the Authority’s satisfaction that new information could not have been provided to the Minister at the time of the section 65 decision may contribute to the Authority’s satisfaction that there are exceptional circumstances to justify considering the new information.

4.    Therefore, the Authority could be expected to consider such matters when considering whether the circumstances are exceptional. However, the matters which might contribute to a finding that the circumstances are exceptional can extend beyond those specified matters. (see BVZJ 6 v Minister for Immigration and Border Protection [2017] FCA 958 at [9].

5.     The Authority’s decision was also affected by jurisdictional error in those circumstances where the Authority had applied an unduly narrow interpretation of the term “exceptional circumstances” for the purposes of section 473DD(a) of the Migration Act 1958 (Cth) and constructively failed to exercise jurisdiction: see BVZJ 6 v Minister for Immigration & Border Protection [2017] FCA 958 at [46]-[47] and Minister for Immigration & Border Protection v BBSJ 6 [2017] FCAFC at [112].

Consideration

110    It is appropriate to commence the Court’s consideration of the contentions advanced in respect of this Ground with an examination of the materials relevant to it, and the circumstances in which those materials ultimately came before the IAA.

111    It will be recalled that BHP17 attended an interview with the Minister’s delegate on 21 December 2016. His then migration agent sent the Minister’s delegate an extensive post-interview submission on BHP17’s behalf 13 days later on 3 January 2017. Given the Christmas break intervening, that was a very prompt response.

112    Had BHP17’s post-interview submissions been received before the Minister’s delegate had made a decision, the delegate would have been bound to have regard to that material. In its intended context, nothing would have turned on whether or not the post-interview submission contained new information. That is because s 55(1) of the Act provides:

Further information may be given

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

113    However, the Minister’s delegate finalised his decision on 29 December 2016 (there is internal email correspondence in the Court Book to suggest the decision was finalised a day later on 30 December 2016, but the date on the face of the decision is recorded as above).

114    It is not suggested by the Minister that either BHP17 or his then migration agent had been advised of the adverse outcome of BHP17’s application before his post-interview submissions were sent to the Minister’s delegate on 3 January 2107. On receipt of that submission, a senior officer of the Department of Immigration and Border Protection (Department) forwarded it to the Minister’s delegate with the following request:

Please save the email and submission to the TRIM file so that it can be included in the referral to the IAA.

It is not suggested by the Minister that the Delegate took any different course.

115    BHP17’s rejected application was referred to the IAA on 9 January 2017. The IAA sent correspondence to BHP17 dated 10 January 2017 in which it stated that “The Department of Immigration and Border Protection … has provided us with all documents they consider relevant to your case”.

116    The Minister concedes that it would be open to the Court to find that the Appellant would have understood the IAA’s letter of 10 January 2017 to mean that it had received and would give consideration to his post-hearing submissions dated 3 January 2017.

117    The Minister does not submit that the IAA was obliged to have no regard to those submissions. Mr Kay Hoyle properly accepted that it had a duty to consider them.

118    It is not in dispute that BHP17’s post-interview submission had been included in the “review material” (as defined) that had been given to the IAA by the Secretary of the Department. I take it to be self-evident that the Secretary had concluded that BHP17’s post-interview submission fell within the description of “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 [being 9 January 2017]) to be relevant to the review” within the meaning of s 473CB(1)(c) of the Act.

119    Section 473DB provides that, subject to exceptions not presently relevant, the IAA:

…must review a fast track reviewable decision … by considering the review material provided to the Authority under s 473CB…

BHP17’s post-interview submissions were thus required to be considered as part of the “review material” provided to the IAA under that section of the Act.

120     I reject the Minister’s submission that, as a necessary consequence of the fact that the submission was specifically addressed to issues arising out of BHP17’s interview, the content of the 3 January 2017 document “did not directly address matters with which the [IAA] was concerned”. The IAA was tasked with conducting a fast track review of the decision of the Minister’s delegate. The Secretary had included BHP17’s intended post-interview submissions in the review materials given to the IAA. I infer he did so on the basis that those submissions, although received after the Minister’s delegate had made his decision, were, nonetheless relevant.

121    In reviewing BHP17’s fast track reviewable decision, the IAA had a statutory duty to consider the “review material” provided to it under s 473CB.

122    No question of the IAA accepting or requesting “new information” in those circumstances was ever engaged. The material, whether conceived of as submission or new information or some combination of both, was before the IAA in its entirety for all purposes as provided for by s 473DB in its undertaking its fast track referred review.

123    To the extent that the reasons of the primary judge and the submission of counsel for the Minister turn on the possible application of s 473DD of the Act I am satisfied that that question did not, and does not, arise.

124    For the same reason it is not necessary for the Court to consider the correctness of Thawley J’s reasoning in BCQ16 which confines the IAA’s duty to give reasons to exclude procedural questions.

125    An omission may reveal that the Tribunal has made an error of law amounting to jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (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 388 [86]:

Hence, 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.

126    I accept that in Yusuf their Honours also held that where a Tribunal has the 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” (at 346 [69]).

127    That is what counsel for the Minister invited the Court to conclude happened in the present instance. At [2], the IAA had stated that it had had regard to the material referred to it by the Secretary pursuant to s 473CB of the Act. It was to be inferred, Mr Kay Hoyle submitted, that the IAA had concluded that that material was irrelevant, albeit without giving any explanation as to how it might have reached that conclusion.

128    I reject that submissions. The IAA’s decision is entitled to be read fairly, in the context in which it appears, and not parsed cynically to expose error. However, I am unpersuaded that its decision, even beneficially read, can support the construction for which the Minister contends.

129    In SZTMD Perram J had reasoned:

19    The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.

130    In my view, BHP17’s intended post-interview submission was so obviously relevant that it is entirely implausible that the IAA could have considered it and reached an unrecorded conclusion that it was not material to the fast track review the IAA was charged with conducting.

131    The IAA was subject to a duty to give reasons. It had been required to “consider” what had been contained in the review materials. BHP17’s post-interview submission had been included in the review materials. His submissions were plainly directed to matters in respect of which the Minister’s delegate had raised concerns in the course of BHP17’s interview. If it needs be said, the Court is satisfied that the Secretary was correct to have considered BHP17’s intended post-interview submission “to be relevant to the review” within the meaning of s 473CB(1)(c) of the Act.

132    It may be accepted, as Mr Kay Hoyle submitted, that certain parts of the submission refer only to general country information as Mr Kay Hoyle submits, but in most instances even those parts are related back to the individual circumstances of the Appellant. BHP17’s post-interview submission also went to explaining why he had not advanced certain claims at the first opportunity, including those relating to the extent of his brother’s involvement with the LTTE. It is no answer to an asserted want of materiality that the IAA found “despite the apparent discrepancy in the applicant’s evidence … I am prepared to accept that the applicant’s brother was working for the LTTE…”. The IAA’s finding in that regard is not a foundation for the proposition that the Appellant’s submission did not need to be addressed. The Appellant’s case was that his family’s high degree of involvement with the LTTE would make him a target for the Sri Lankan security services if he were forced to return.

133    To adopt Perram J’s language from SZTMD, it is “unthinkable that the [IAA] would not have referred to [BHP17’s post-interview submissions] if it had actually considered [them]”.

134    I have not found it necessary to set out the full text of the Appellant’s carefully advanced post-interview submission. It appears at pages 268-290 of the Appeal Book.

135    In the circumstances applying, I am not prepared to infer that the IAA gave consideration to the Appellant’s post-interview submission but concluded it to be so immaterial as to not require mention in the IAA’s reasons. That is wholly implausible. The highest the Minister could put the position that the submission lacked materiality was that in its nature it had been responsive to and directed towards matters that had been of concern to the Minister’s delegate when there had been a specific, unutilised, process by which the Appellant could have sought to advance submissions and new information before the IAA. I have rejected that contention. It has no bearing upon the duty of the IAA to give consideration to that material.

136    It would impute to the IAA not only a want of basic legal competence but also unjustified caprice for this Court to favour the alternative inference that the IAA had considered BHP17’s post-interview submission, but dismissed it as irrelevant.

137    That the Appellant’s post-interview submission was simply overlooked is a more justified conclusion to draw. I draw that inference.

Conclusion and disposition

138    The Court has concluded that the IAA overlooked or otherwise failed to consider a part of the review materials given to it by the Secretary pursuant to s 473CB of the Act. The part of the review materials which was not considered by the IAA was the Appellant’s intended post-interview submission sent to the Minister’s delegate on 3 January 2017.

139    Accordingly, the IAA did not undertake its review as required by law; s 473DB of the Act required it to undertake its review by considering the “review material” provided to it by the Secretary.

140    That legal error was jurisdictional error. The IAA was subject to a legal duty to consider that submission. By erring in that regard, it failed to conduct its review according to law. The IAA dealt with BHP17’s referred review without regard to his responses to the issues that had been of concern to the Minister’s delegate whose decision it was reviewing. That denied the Appellant the hearing he was, by law, entitled to. It is possible, as Mr Kay Hoyle submits, that had the IAA given attention to that submission, it might yet have reached the same conclusion. However, it is not open to this Court to be sure that, had the IAA given consideration to the post-interview submission, it could not have reached a different conclusion. The findings which the IAA made (and in respect of which this Court has identified no legal error) were made without the benefit of it having had regard to those submissions.

141    The merits were for the IAA not this Court. That remains the case.

142    The outcome is that the Appellant’s final ground succeeds and his referred review must be remitted to the IAA for reconsideration according to law. Orders will be made accordingly.

143    The question of costs is not without difficulty. But for the steps taken by counsel for the Minister representing a model litigant, the sole ground of appeal upon which the Appellant succeeded would not have come to the attention of the primary judge or this Court.

144    Notwithstanding, the Minister has throughout maintained his opposition to that ground both before the primary judge and on appeal. The Court has rejected the legal premises of the Minister’s opposition.

145    I am satisfied that the primary judge erred in law in rejecting the ground of review identified by counsel for the Minister. The Appellant should have his costs in the court below.

146    However, some appropriate acknowledgment must be given to the fact that all of the Appellant’s grounds of appeal, save that drafted by the Minister’s counsel and his instructing solicitors, have been dismissed. In those most unusual of circumstances I would exercise the Court’s discretion to reflect the fact that but for that fact the Minister would otherwise have succeeded. Accordingly, I would award BHP17 only 50% of the costs of his appeal.

147    I would order:

(1)    The Appellant have leave to rely on the ground of appeal formulated by the First Respondent following the hearing of this appeal.

(2)    The appeal be allowed.

(3)    The decision of the Federal Circuit Court of Australia dated 23 October 2018 be set aside and in lieu thereof the following orders be made:

(a)    a writ of certiorari directed to the Second Respondent to quash the decision of 27 February 2017; and

(b)    a writ of mandamus directed to the Second Respondent to reconsider the review according to law; and

(c)    the First Respondent pay the Applicant’s costs of the judicial review application.

(4)    The First Respondent pay 50% of the Appellant’s costs of the appeal as agreed or assessed.

Associate:

Dated:    8 August 2019