FEDERAL COURT OF AUSTRALIA

BHM17 v Minister for Immigration and Border Protection [2019] FCA 1396

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

O’BRYAN J:

Introduction

1    By notice of appeal filed on 18 December 2018, the appellant appeals from a decision of the Federal Circuit Court of Australia made on 20 November 2018 in BHM17 v Minister for Immigration & Anor [2018] FCCA 3452. The appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth).

2    The appellant is a citizen of Sri Lanka. In 1997, when the appellant was about seven years old, his family departed Sri Lanka and travelled to India. Between 1997 and 2012, the appellant resided in refugee camps in India. In 2012, the appellant departed India and travelled to Australia. The appellant arrived in Australia in November 2012 as an unauthorised maritime arrival. On 14 January 2016, the Minister notified the appellant that the statutory bar in s 46A of the Migration Act 1958 (Cth) (Act) had been lifted and invited the appellant to apply for a Safe Haven Enterprise Visa, which the appellant did on 21 March 2016. On 12 January 2017, a delegate of the Minister refused that application on the basis that the appellant did not meet the criteria in ss 36(2)(a) or (aa) of the Act. In accordance with s 473CA of the Act, the Minister referred the decision to the second respondent, the Immigration Assessment Authority (Authority), for review under Part 7AA of the Act. The Authority affirmed the delegate’s decision on 2 March 2017.

3    By application filed on 28 March 2017, the appellant sought judicial review of the Authority’s decision in the Federal Circuit Court pursuant to s 476 of the Act, which grants the Federal Circuit Court the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. As such, review by the Federal Circuit Court was confined to jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The appellant filed a further amended application on 17 September 2018 which added a fifth ground of review concerning an aspect of the Authority’s decision under s 473DD of the Act. The fifth ground of review is maintained in this appeal while the other grounds of review raised before the Federal Circuit Court are not pursued on this appeal. The Federal Circuit Court dismissed the application for review on 30 November 2018.

4    The appellant’s ground of appeal in his notice of appeal to this Court is expressed in a prolix manner. Nevertheless, the ground is in substance the same as the fifth ground of review raised before the Federal Circuit Court. It concerns the Authority’s decision under s 473DD of the Act not to consider new information provided by the appellant to the Authority, specifically a document in the French language purportedly being the decision record for the grant of refugee status to the appellant’s brother in France. The appellant contends that the Authority’s decision was legally unreasonable and constituted jurisdictional error.

5    For the reasons that follow, I find that the appeal should be dismissed.

Decision of the Authority

6    The Authority summarised the appellant’s claims as follows (at [8] of its reasons):

•     The applicant lived originally in the Vanni district in Sri Lanka's north. Many of his relatives joined the LTTE. His father was forced to join the LTTE, but as he was not willing to take up military training, he was forced to work for the LTTE. His mother was also forced to work for the LTTE.

•     In 1997 when he was aged around seven, the applicant and his family left Sri Lanka illegally by boat and travelled to India. They were held initially at Mandapam Ceylon Refugee Camp in Tamil Nadu and three years later were moved to Valavanthan Kottai Camp.

•     In 2007 the applicant's maternal uncle was abducted in Sri Lanka in a white van and has not been seen since.

•     The applicant's brother-in-law, Yogaraja, who was also in India, was accused by the Q Branch of the Indian police to be a member of the LTTE. Yogaraja was arrested and then acquitted by the Madras High Court. Authorities in Sri Lanka may be aware of the applicant's connection with Yogaraja because although it is not widely known, Q Branch exchanges information with Sri Lankan authorities.

7    The Authority accepted that the appellant is a Sri Lankan citizen of Tamil ethnicity and that he resided in a refugee camp in India from 1997 to 2012 (at [11] of its reasons). The Authority accepted that the appellant’s maternal uncle may have disappeared in 2007 and is presumed dead but did not accept that the appellant now, some 10 years later, faces a real chance of harm as a result (at [13] of its reasons).

8    The Authority accepted that the appellant originates from an area of Sri Lanka previously controlled by the LTTE, was displaced from his home area during Sri Lanka’s civil conflict and that he experienced personal upheaval. The Authority also accepted that the appellant’s parents were under pressure to perform work for the LTTE (at [14] of its reasons). However, the Authority recorded that, at the protection visa interview, the appellant had clarified that while his parents were under pressure from the LTTE to work for them, his parents did not actually do so. It was the pressure that was the catalyst for the family’s departure from Sri Lanka to India. On that basis, the Authority found that the appellant’s parents did not work for the LTTE, were not associated with the LTTE and there was no evidence that they were imputed to have worked for or been associated with the LTTE (at [16] of its reasons).

9    In relation to the appellant’s claims concerning his brother in law, Yogaraja, the Authority was not satisfied that Sri Lankan authorities would impute the appellant with an LTTE profile or links by association with his brother in law given his acquittal of charges by the Madras High Court (at [19] of its reasons).

10    The Authority concluded that the available evidence gives no indication that the appellant has any links to the LTTE and it was not satisfied that the appellant has any imputed LTTE links through family members to the extent that his profile would fall within any of the categories that the country information suggests would make him a potential person of interest. For that reason, the Authority considered that the appellant did not face a real chance of harm from Sri Lankan authorities due to any imputed links to the LTTE (at [21] of its reasons).

11    The Authority accepted that the appellant’s brother has travelled to France and that his sister has travelled to Australia. However, the Authority was not satisfied that their experiences in India and motives for departure reflected a real chance of harm to the appellant if he were to be returned to Sri Lanka in the reasonably foreseeable future (at [22] of its reasons).

12    The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) of the Act and accordingly did not meet s 36(2)(a) (at [40] of its reasons). The Authority also concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm and, accordingly, the appellant did not meet s 36(2)(aa) of the Act (at [48] of its reasons).

13    The aspect of the Authority’s decision with which this appeal is concerned is the Authority’s conclusion in relation to a submission made on behalf of the appellant to the Authority on 20 February 2017, prior to the making of its decision on 2 March 2017. Under the heading “Information before the Authority”, the Authority said:

3.    I have had regard to the material referred by the Secretary under s.473CB of the Act.

4.    On 20 February 2017 a submission was received from the applicant. The submission in part responds to issues arising from the delegate’s decision. I do not consider this to be new information and have considered these aspects of the submission.

5.    The submission also includes new information that was not before the delegate regarding a cousin being in the LTTE, a land acquisition problem in Sri Lanka caused by the Sri Lankan Army, an untranslated document in French purporting to show that the applicant’s brother’s (sic) has been granted refugee status in France and a series of hyperlinks to internet web sites and text extracts from country information regarding the LTTE.

6.    The new information pre-dates, or relates to events that pre-date, the delegate’s decision. The applicant did not provide any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the applicant’s claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act.

14    As the Authority recorded at [5] of its reasons, one of the documents attached to the appellant’s submission to the Authority was a document in the French language which appeared to be dated 9 November 2016 and which was described in the submission as the decision record in which the appellant’s brother was granted refugee status in France. The appeal concerns the Authority’s conclusion, in respect of that document, that it was not satisfied that the requirements in s 473DD(b) of the Act had been met on the basis that the appellant had not provided any explanation as to why the information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the appellant’s claims.

The French document

15    In a letter to the appellant dated 18 January 2017, the Authority confirmed that the delegate’s decision had been referred to the Authority for review. The Authority said:

The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The Authority will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.

16    The attached document, titled “Practice Direction for Applicants, Representatives and Authorised Recipients” (Practice Direction), was issued pursuant to s 473FB of the Act and came into force on 24 October 2016. Relevantly, the Practice Direction provides:

Submissions and new information

20    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

22    We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department.

23    If you want to give us new information, you must also provide an explanation as to why:

•    the information could not have been given to the Department before the decision was made, or

•    the information is credible personal information which was not previously known and may have affected consideration of your claims, had it been known.

24    Your explanation should be no longer than 5 pages and must accompany any new information you give to us.

25    All documents that are not in English should be translated into English by a translator with a ‘Translator’ level accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI). Both the documents and the translations should be provided.

26    Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.

17    No doubt conscious of the 21 day timeframe stated in the Practice Direction, on 7 February 2017 at 11:17am, the appellant sent an email to the Authority, with the subject line “Extension”, stating:

Can you please give me more time to put my submission. Am waiting for some documents.

18    Later that same day at 11:57am, the Authority replied by email attaching a letter in which the Authority acknowledged receipt of the appellant’s email of 7 February 2017. The letter stated:

As per your extension request, the Authority has attempted to contact you on your mobile phone with no success. Please provide more information that will enable the Authority process (sic) the extension request. What documents are you waiting for and when do you anticipate you will receive the documents?

19    The appellant replied to the Authority’s letter by email at 12:15pm that same day stating:

Am waiting for my brother documents who was in France recently accepted his refugee status in France. There is possible means I kindly request Please grant me 2 weeks time sir…

20    The Authority replied by email at 4:41pm that same day and noted that the Practice Direction requires any new information to be provided to the Authority within 21 days of the date on which the case is referred to the Authority, which period expired that day (7 February 2017). The Authority also said:

However, no decision on this review will be made before close of business 20 February 2017. Any submission should be received by that date and should be no more than 5 pages in length. Any new information that is received prior to a decision being made may be considered subject to it meeting the requirements of s.473DD of the Migration Act 1958.

21    On 16 February 2017, the appellant sent an email to the Authority attaching his submission. Amongst other things, the appellant provided the following information about his brother:

My brother [name redacted] has been granted Refugee Status in France and with his permission I have attached his decision record for your perusal. That decision is in the French language and if required I will arrange a Translation from the French language.

22    The submission attached (or provided links to) a number of documents that were not before the Minister’s delegate, including relevantly a document in the French language which appears to be dated 9 November 2016 and which the submission described as the decision record in which the appellant’s brother was granted refugee status in France. As noted earlier, the delegate’s decision had been made on 12 January 2017. Accordingly, the French document appears to pre-date the delegate’s decision.

Ground of appeal

23    The appellant’s sole ground of appeal is that the Federal Circuit Court erred in failing to find that the Authority’s decision was affected by jurisdictional error. The alleged error was the Authority’s conclusion, in relation to the French document, that the appellant did not provide any explanation as to why the document was not and could not have been provided to the delegate, or why the document may be regarded as credible personal information that was not known and, had it been known, may have affected the consideration of the appellant’s claims (at [6] of its reasons).

24    The appellant contends that it did provide such an explanation. By his email sent at 12.15pm on 7 February 2017, the appellant had explained that he was waiting to receive documents from his brother in France who had recently been granted refugee status in France. By his email dated 16 February 2017, the appellant provided the French document stating that it was the decision record for the grant of refugee status to his brother and was being provided with his brother’s permission. The inference that arises from those statements is that, as at 7 February 2017 (and, by implication, as at the date of the delegate’s decision on 12 January 2017), the appellant did not have the French document in his possession (as he was waiting to receive it from his brother) and was therefore unable to provide it to the delegate.

25    Counsel for the appellant correctly acknowledged that the contentions raised on the appeal can only apply to the French document attached to the appellant’s submission dated 16 February 2017 and not to the Tamil document or the electronic links included in that submission. The appellant did not provide the Authority with any explanation as to why the latter documents fell within either limb of s 473DD(b) of the Act.

26    The appellant contends that, by concluding that the appellant had not provided any explanation as to why the French document satisfied either limb of s 473DD(b), the Authority misunderstood or misapplied s 473DD of the Act or the Authority made a decision that was legally unreasonable. Section 473DD of the Act provides as follows:

Considering new information in exceptional circumstances

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

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

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

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

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

27    It is common ground that the French document was new information within the meaning of s 473DD and that the Authority could not consider the document unless it was satisfied of the matters set out in s 473DD.

Federal Circuit Court’s reasons

28    In respect of the fifth ground of review (which is in substance replicated in the ground of appeal) and after referring to [6] of the Authority’s reasons for decision, the primary judge summarised the relevant principles concerning s 473DD as follows:

[23] The applicant contends that the Authority made a number of errors in this paragraph. I will deal with each of those matters in turn. First it is necessary to outline the relevant principles concerning s.473DD:

i)     the requirements in ss.473DD(a) and (b) are cumulative so that both must be satisfied before the Authority can consider the new information: Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [31];

ii)     there is no requirement to give reasons for any consideration of the application of s.473DD: BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [50]; BVD17 v Minister for Immigration & Border Protection [2018] FCAFC 114 at [42];

iii)     given that s.473DD(b) casts an onus on the applicant to satisfy the Authority of the matters before it, the failure by an applicant to explain why he was relying on information for the first time can be sufficient to justify the Authority’s conclusion that s.473DD(b) is not met: AUH17 v Minister for Immigration & Border Protection [2018] FCA 388 at [33]; ABC17 v Minister for Immigration & Border Protection [2018] FCA 254 at [9] – [10].

29    The primary judge then addressed the appellant’s arguments, which had seven components, and rejected those arguments (at [24]). It is only necessary to refer to two of the components of the appellant’s argument, on which I have come to a different view than the primary judge (although I do not differ on the outcome).

30    Before the primary judge, the appellant argued that the Authority erred by:

(a)    not taking into account why the new information was not brought forward before the delegate; and

(b)    not addressing itself as to whether the material was credible personal information which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellant’s claims,

being the applicable criteria in s 473DD(b)(i) and (ii).

31    The primary judge rejected those arguments (at [24(a)] and [24(b)]), agreeing with the conclusion of the Authority that the appellant did not provide any explanation in relation to either limb of s 473DD(b)(i) or (ii). Accordingly, there was no explanation for the Authority to consider and the Authority did not err in reaching the conclusion that it was not satisfied as to either of the matters set out in s 473DD(b)(i) or (ii).

32    For the reasons discussed below, in my view the appellant had provided an explanation in relation to the matters raised by s 473DD(b)(i), but not (ii). The explanation may not have satisfied the Authority as to those matters, but the Authority was wrong to proceed on the basis that the appellant had not provided any explanation. However, as discussed below, I do not consider that that error was material to the outcome and for that reason I do not consider that the Authority’s decision involved jurisdictional error. On that basis, the primary judge was correct to dismiss the application for review.

Consideration of the appeal

33    Section 473DC(2) of the Act stipulates that the Authority does not have a duty to get, request or accept any new information whether the Authority is requested to do so by an applicant or by any other person, or in any other circumstances. Notwithstanding that section, acting in accordance with its Practice Direction, the Authority informed the appellant that he may provide a written submission. The Practice Direction also advised the appellant that the Authority could only consider new information (information that was not before the Department) in very limited circumstances as set out in s 473DD, but if the appellant wanted to give the Authority new information, he must also provide an explanation of the matters referred to in s 473DD(b)(i) or (ii).

34    As set out above, on 16 February 2017 the appellant provided a submission to the Authority which included new information, and specifically the French document. Having invited the submission, the Authority was required to consider whether to take the submission and attached new information into account, and for that purpose it was required to comply with s 473DD. It was common ground that the Authority may not consider new information unless satisfied of the matter in s 473DD(a) and one of the two matters stated in s 473DD(b): Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 at [31] per Gageler, Keane and Nettle JJ, [78] per Gordon J and [100] per Edelman J; Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [102]; AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [13].

35    As noted earlier, the Authority concluded (at [6]) that it was not satisfied of either of the limbs of s 473DD(b) in relation to the French document because that document pre-dated the delegate’s decision and the appellant had not provided any explanation as to why the new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the appellant’s claims.

36    In my view, the Authority’s conclusion that the appellant had not provided any explanation as to why the new information was not and could not have been provided to the delegate (being the consideration referred to in s 473DD(b)(i) of the Act) was wrong. I accept the appellant’s submission that he had provided an explanation by the combined effect of the emails sent to the Authority on 7 February 2017 and the submission made on 16 February 2017. The clear inference to be drawn from the emails and submission is that, as at 7 February 2017 (and therefore as at the date of the delegate’s decision on 12 January 2017), the appellant did not have the French document in his possession and was therefore unable to provide it to the delegate. Indeed, the Authority acknowledged this clear inference when, in its letter to the appellant sent later the same day as the emails, the Authority asked the appellant when he expected to receive the documents referred to in his emails.

37    The Minister acknowledged that the appellant’s emails and submission may be regarded as going some way towards providing an explanation of why the French document could not have been provided to the Minister’s delegate prior to the decision (because it was not in the appellant’s possession at that time). However, the Minister submitted that the fact that the document was not in the appellant’s possession as at 7 February 2017 did not provide an explanation as to why the appellant could not have obtained the document prior to 12 January 2017, given that the document was dated 9 November 2016. On that basis, the Minister submitted that the Authority was correct to conclude that the appellant had not provided an explanation as to the consideration referred to in s 473DD(b)(i).

38    I do not accept the Minister’s submission. The communications between the appellant and the Authority were sufficient to give rise to an inference that s 473DD(b)(i) was satisfied; that is, the fact that the document was dated shortly before the delegate’s decision and was being sought from the appellant’s brother gave rise to a plausible inference that the appellant was unable to procure the document before the delegate’s decision. The Authority did not find that the appellant’s explanation was incomplete or unsatisfactory; the Authority found that the appellant did not provide any explanation. In my view, that conclusion is wrong and is contradicted by the communications between the appellant and the Authority. It was not a conclusion that was rationally open having regard to the communications between the appellant and the Authority. The available inference is that the Authority overlooked the content of the emails sent by the appellant and the responding letter sent by the Authority. In the circumstances, the finding expressed at [6] of the Authority’s reasons was legally unreasonable in respect of the enquiry required by s 473DD(b)(i) in relation to the French document.

39    Although I have come to the view that the Authority erred in that respect, in my view the error did not constitute jurisdictional error because it was not material to the Authority’s decision: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [29]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 163 ALD 38 at [45] per Bell, Gageler and Keane JJ (SZMTA). The onus is on the appellant to satisfy the Court of jurisdictional error including that the error was material in the relevant sense: SZMTA at [4], [41] and [46] per Bell, Gageler and Keane JJ. Speculation as to how taking into account an applicant’s submission “may” have affected a decision is not enough to discharge the onus of demonstrating materiality. The court must decide whether the failure to consider the submission has operated to deprive the visa applicant of the possibility of a successful outcome; i.e. whether the decision could realistically have been different: SZMTA at [68], [69] and [71] per Bell, Gageler and Keane JJ.

40    The document that was excluded by the Authority was in the French language and no translation had been provided. The appellant made the submission to the Authority that the document was the decision record of the grant of refugee status to his brother in France. That could not be determined from the document itself because the document was in the French language. The Authority’s Practice Direction required that all documents provided to the Authority for consideration that were not in English be translated into English. The appellant had not complied with that requirement, merely offering to provide a translation if the Authority requested one. Therefore, the position as before the Authority was that it had received an untranslated French document together with a submission from the appellant that the document constituted the record of the grant of refugee status to his brother in France. The Authority could not determine from the document whether that submission was correct. Even more significantly, the Authority could not determine from the document whether it had any relevance to the appellant’s claims, and the appellant’s submission did not otherwise address the content of the document. In those circumstances, it is not possible to find that the document had any relevance to the appellant’s claims and it is not possible to find that there was a prospect that the Authority could have made a finding of exceptional circumstances for the purposes of s 473DD(a) in order to consider the document. For those reasons, the Authority’s decision not to consider the document under s 473DD did not involve jurisdictional error.

41    The same conclusion must be reached in relation to the Authority’s second finding (at [6] of its reasons) concerning s 473DD(b)(ii) that the appellant had not provided any explanation as to why the French document may be regarded as credible personal information which was not previously known and, had it been known, may have affected the consideration of the appellant’s claims. I am not satisfied that this finding was made in error. While the appellant submitted to the Authority that the French document was the decision record in respect of the grant of refugee status to the appellant’s brother in France, the appellant did not address the question of whether and how the document may have affected the Authority’s consideration of the appellant’s claims. The Authority was correct to find that the appellant had not provided any explanation that addressed that issue. Further, even if that finding were made in error (based on the correspondence between the appellant and the Authority about the French document), for the reasons expressed at paragraph 40 above, the appellant has not discharged its onus of showing that the error was material to the Authority’s decision.

42    For the foregoing reasons, in my view the appellant has failed to establish that the Authority’s decision to exclude the French document under s 473DD of the Act involved jurisdictional error. The Federal Circuit Court was correct to dismiss the application.

Associate:

Dated:    30 August 2019