FEDERAL COURT OF AUSTRALIA

AWV18 v Minister for Home Affairs (No 3) [2020] FCA 365

ORDERS

THE COURT ORDERS THAT:

1.    Leave is granted to raise Ground 2A of the proposed amended notice of appeal dated 15 October 2019.

2.    There be no order as to costs in respect of the application to raise a new ground on appeal.

3.    Leave is granted to adduce on the appeal the additional evidence in the affidavits of Mr Ganasan Arujunan dated 15 October 2019 and AWV18 dated 6 August 2019.

4.    The appeal be allowed.

5.    Orders 1 and 2 of the decision of the Federal Circuit Court of Australia made on 28 February 2019 be set aside and in lieu thereof it be ordered:

(a)    a writ of certiorari be issued to quash the decision of the Immigration Assessment Authority dated 31 January 2018;

(b)    the matter be remitted to the Immigration Assessment Authority to review the Minister’s decision of 12 June 2017 according to law;

(c)    the first respondent pay the appellants’ costs of the application.

6.    The first respondent pay the appellants’ costs of the appeal.

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

REASONS FOR JUDGMENT

DERRINGTON J:

Introduction

1    There are six appellants to this appeal who are all members of the one family. AWV18 is the father of the family group and AWW18 is the mother. The remaining four appellants are their children. They are all Sri Lankan, although the sixth appellant was born in Australia.

2    On 25 November 2016 the appellants made a combined application for a Safe Haven Enterprise Visa (protection visa) (SHEV). In that application, the appellants relevantly claimed they feared harm from the Sri Lankan authorities by reason of their imputed connection with the Liberation Tigers of Tamil Eelam (LTTE). This connection was alleged to arise because AWW18’s two brothers, MA and JA, had been members of the LTTE.

3    On 28 March 2017 the first and second appellants attended an interview with the Minister’s delegate in relation to their application. At that interview, they brought several documents with them to support their claims. Amongst them was a document which has come to be referred to as the “obituary document”. It was written in Sinhalese but may not have been accompanied by any translation. It appeared to be a newspaper clipping, which was said to be an obituary notice for MA. It showed a picture of a man in civilian clothing. Two dates were recognisable on it as 30.12.1977 and 20.01.2009. It appears from the material that the delegate was shown the document but was not given it or a copy to retain.

4    On 12 June 2017 a delegate of the Minister for Immigration and Border Protection refused to grant SHEV visas to the appellants. Pursuant to s 473CA of the Migration Act 1958 (Cth) (the Act) the application was referred to the Immigration Assessment Authority (the Authority) by the Secretary of the department. Importantly, in the course of its review the Authority sought from the Secretary a copy of the obituary document but the Secretary was not able to provide it. The Authority did not attempt to obtain a copy from the appellants.

5    On 31 January 2018 the Authority affirmed the delegate’s decision not to grant the protection visas sought by the appellants.

6    On 26 February 2018 the appellants filed an application for review in the Federal Circuit Court of Australia (FCC). It was heard on 28 February 2019 and dismissed on that day. An appeal from the decision of the FCC to this Court was filed on 11 March 2019.

7    The appellant has sought leave on several occasions to amend its original notice of appeal. The grounds of appeal now sought to be agitated are:

2A.    The learned primary Judge erred in not finding that that the decision of the IAA was vitiated by an unreasonable failure to exercise, or consider whether to exercise, the power under subsection 473DC(1) of the Migration Act 1958 (Cth) to ‘get’ from the Appellants the ‘obituary’ document referenced at paragraph [39] (AB 339) which the IAA requested unsuccessfully from the First Respondent…and which failure denied the Appellants a realistic possibility of persuading the IAA of the claim that the Second Appellant’s brother was an LTTE intelligence operative.

2B.    The learned primary Judge erred in not finding that the decision of the IAA was vitiated by an unreasonable failure to exercise, or consider whether to exercise, the power under subsection 473DC(3) of the Migration Act 1958 (Cth) to invite the Appellants to an interview, or to provide in documentary form, the ‘obituary’ document or the information it contained referenced at paragraph [39] (AB 339), which the IAA requested unsuccessfully from the First Respondent, and which failure denied the Appellants a realistic possibility of persuading the IAA of the claim that the Second Appellant’s brother was an LTTE intelligence operative.

8    At the hearing on 24 February 2020, both parties agreed that the Court ought to determine the question of leave and, if granted in relation to either or both grounds, it ought to proceed to determine the appeal. The parties addressed the Court on that basis. At the hearing the appellants indicated that they no longer relied upon Ground 1 in respect of which leave had previously been given. In effect, the questions for the Court were whether leave should be given to raise Grounds 2 and 2A and, if so, whether the appeal should be allowed.

Background

9    AWV18 is a citizen of Sri Lanka who arrived on Christmas Island as an unauthorised maritime arrival on 13 April 2013. He had travelled to Australia with his wife, AWW18, and three daughters being AWX18, AWY18 and AWZ18. The sixth appellant, AXA18, was born in Australia in September 2015.

10    AWV18 made the application for a SHEV or a temporary protection visa on 25 November 2016. The second to sixth appellants were included in the application as members of AWV18’s family unit and they did not raise their own claims for protection.

11    On 28 March 2017 AWV18 and AWW18 were each interviewed by the delegate in the presence of their representative. It is apparent that some documents were provided to the delegate, however, relevant to the present matter, the document referred to as the “obituary document” was not. In the first appellant’s affidavit of 6 August 2019 he deposed that the document was shown to the delegate but, so it seems, no copy was provided and such that no record of it was retained on the Department’s file. The Minister submitted that the transcript of the interview leaves it unclear whether the obituary document was shown to the delegate and there is certainly no express mention of it by the delegate. However, the first appellant was not cross-examined and his evidence should be accepted for the purposes of the appeal. The first appellant also deposed that a translation of the obituary document was produced to the delegate but that document is not produced in his affidavit. A subsequently obtained translation is produced.

12    On 12 June 2017 the delegate refused to grant the appellants the SHEV visas which they had sought. The delegate’s decision was referred to the Authority for review on 19 June 2017.

13    The appellants, via their legal representatives, provided further information and submissions to the Authority on a number of occasions; being on 31 July 2017, 3 September 2017 and 25 September 2017. They did not provide or seek to provide to the Authority the document referred to as the “obituary document” or any translation of its contents.

The decision of the Authority

14    The Authority considered at length the additional information which the appellants had provided to it. It went through each new document and considered whether it could properly rely upon it as “new information” within the meaning of Part 7AA of the Act. There is no complaint that any information was wrongly excluded or included.

The claims made by the appellants

15    The Authority summarised the first appellant’s claims to the following effect:

(a)    AWV18 is a Tamil male born in a central province of Sri Lanka. He and the members of his family are practising Roman Catholics. He claimed that after moving to Colombo and marrying the second appellant he encountered many difficulties with the Sri Lankan authorities.

(b)    In 2008 AWW18’s brother, MA, was abducted and disappeared.

(c)    AWV18 claimed there was a long period of harassment and threats against him and his family because he was suspected of having LTTE sympathies. He said that he was arrested on 2 July 2009 and detained for 25 days during which time he was questioned about his connection to the LTTE and was assaulted.

(d)    He claimed that, after his release, the harassment continued and so he went to live in the place of his birth. He says that he was further questioned by the authorities and that AWW18 contacted him and told him that she was facing problems in Colombo as a result of which, he returned.

(e)    In 2010 he went to Malaysia where he stayed for two years. He exited and entered Sri Lanka on his own passport. He claimed that on his return in 2012 he was arrested because he had left the country without being registered and on suspicion of his connections with the LTTE. He was subsequently released.

(f)    He claimed that, thereafter, he was continuously harassed. He says that he then arranged for his family to leave Sri Lanka which they did legally using their own passports. They travelled to Singapore and on to Malaysia before travelling by boat to Indonesia.

16    The second appellant, AWW18, is a Tamil female born in the northern district of Sri Lanka. She claimed that her two brothers were members of the LTTE. One of them, JA, was forcibly recruited and died in around 1991. She also claimed that she and members of her family would regularly be checked and questioned by the Sri Lankan authorities about their perceived involvement with the LTTE. She said that in 2007 her cousin was abducted in Colombo. She also said that in 2008 her brother, MA, was abducted and that it was only when she was in Australia that she found out that he was a member of the intelligence wing of the LTTE. Further, she claimed that whilst her husband had returned to his place of birth she was regularly questioned by the authorities as to his whereabouts and that she received “a lot of harassment” from Sinhalese people who regarded the family as supporters of the LTTE.

17    In summary, the first and second appellants claim they fear that if they return to Sri Lanka they will be harmed on the basis of their ethnicity, the first appellant’s failure to report to the authorities, an imputed pro-LTTE or anti-Sri Lankan government political opinion because of their familial association to members of the LTTE, and because they paid money to a friend to help them leave the country. For the purposes of this appeal the central issue was the alleged imputed LTTE connection arising from the claim that AWW18’s brothers were members of that organisation.

18    As mentioned, the third, fourth, fifth and sixth appellants are Tamil females. They rely on the claims of their parents.

The Authority’s consideration of the claims

19    The Authority accepted the appellants were who they claimed to be. It accepted that the first and second appellants had registered complaints with the police and Human Rights Commission in 2008 about the abduction of AWW18’s cousin. It was not, however, satisfied that the documents advanced to support that claim were, in fact, corroborative. Further, it was not satisfied that the registrations of the complaints concerning the second appellant’s cousin would have any repercussions for them in Sri Lanka.

20    The Authority had regard to the available Country Information as well as the lack of any claims of past harm suffered by any of the appellants due to their religion to conclude that it was not satisfied that they face any real chance of serious harm on their return for that reason.

21    It accepted that the second appellant’s brother, JA, was forcibly recruited by the LTTE and that he had subsequently died. It also accepted that, as a result, the second appellant’s family were checked and questioned about their level of involvement. However, the Authority did not accept that there was any continuing interest in the appellants arising from JA’s membership of the LTTE. In particular, it relied upon the fact that JA had died in 1991.

22    The Authority accepted that between 2001 and 2008, MA, the second appellant’s other brother, resided with them in their family home. He was working in a “communications shop” which was a place where people would go to make telephone calls. It also accepted that he was abducted from the shop in 2008 and that he had since died. However, it did not accept the suggestion that he was a member of the LTTE or associated with it. It formed the view that this particular allegation had evolved over time. It noted that on 15 April 2013, being approximately two days after the appellants arrived in Australia, the first appellant participated in an enhanced screening interview during which he stated that in 2008 MA had been taken from the shop in which he had been working and remained missing. Approximately two months later, the first and second appellants participated in an entry interview. In her interview the second appellant stated that MA had been abducted and remained missing but made no mention of his involvement with the LTTE. In contrast, in his entry interview, the first appellant stated that both JA and MA were members of the LTTE and, because of that, he was also suspected of involvement with that organisation and had been questioned by the authorities on that basis. Although the second appellant claimed they only became aware of MA’s alleged membership of the LTTE on their arrival in Australia, the Authority considered it unlikely that, prior to their arrival, the first appellant was aware of MA’s alleged involvement in the LTTE, but that he had not told the second appellant about that. The Authority remained unconvinced that, if MA had any involvement with the LTTE, the first and second appellants would not have been aware of it given that he was living in their house for seven and a half years. The Authority also did not accept that MA had been associated with or had been a member of the LTTE. It concluded that the appellants had not been truthful in relation to these claims and they had been made to enhance their claims for protection.

23    The Authority accepted that one year after MA went missing, AWV18 was required to record all the names of the people living in his family home and give that list to the police. It also accepted that AWV18 and AWW18 were subjected to a curfew and regularly questioned about their connections to the LTTE. However, it did not accept that AWV18 had been abducted on 2 July 2009 or that, thereafter, he sought refuge at his place of birth. In general terms, the Authority rejected the proposition that the abduction was somehow connected to JA’s death or MA’s alleged involvement with the LTTE. The abduction of JA had occurred 18 years earlier and the Authority concluded that it had nothing to do with any alleged complaint about MA’s disappearance. It identified that, as it had rejected the claim that MA was associated with or was a member of the LTTE, it was difficult to find any plausible basis that unknown people would abduct, detain and question AWV18 on the basis of alleged connections to the LTTE. The Authority also relied on AWV18’s failure to raise at the enhanced screening interview the claims that he had gone to live at his place of birth to avoid the authorities and that his family had been branded a Tamil Tiger family. He also had not made mention of his alleged change of residence when he provided his address history. It found that the only connection with the LTTE was JA’s death in 1991.

24    The Authority concluded that it was not satisfied the appellants were truthful witnesses in relation to the first appellant’s alleged abduction and alleged subsequent stay in his birth place. It found that these claims had also been advanced to enhance the claims for protection.

25    It also rejected the claim that AWV18 had been subjected to harassment and threats by armed gangs at his work place in Colombo. That claim had been raised for the first time at the temporary protection visa interview and was identified as being implausible and devoid any meaningful detail.

26    The Authority regarded as significant that AWV18 departed Sri Lanka using his own government issued passport in 2010 and went to Malaysia. He did not claim he had been required to pay money to anyone for that to be arranged. It took the view this evidenced that he was not of interest to the Sri Lankan authorities for any reason as at that time. It did not accept that after his departure, the Sri Lankan authorities threatened and questioned the second appellant as to his whereabouts. Whilst it accepted that AWV18 had been fined for overstaying his visa in Malaysia, it concluded that he was able to return to Sri Lanka without difficulty. It accepted that in Malaysia he had been detained for three months before being released with the assistance of the UNHCR and that he had registered with the UNHCR as an asylum seeker. That was supported by a UNHCR letter. However, after paying the overstay fee he voluntarily returned to Sri Lanka using his own passport and his re-entry was not impeded in any way at the airport. For that reason also the Authority was satisfied that AWV18 was not of any interest to the Sri Lankan authorities as at the date of his return in 2012.

27    Although AWV18 claimed that, on his return from Malaysia, he was arrested and detained for three months, the Authority disbelieved that evidence and found it was contrived. Its reasons for that conclusion included that the alleged circumstances of his arrest had evolved over time, that it did not accept the cash receipts or police reports he produced in support of that claim were genuine, that it was not satisfied the author of a reference letter had any personal knowledge of the appellant or his claimed experiences, and that it did not corroborate his claim in any event. It was also of the view, on the basis of the Country Information before the delegate, that document fraud was prevalent in Sri Lanka due to the lack of computerised databases to store information.

28    The Authority did not accept that AWV18 was required to pay money in order to leave Sri Lanka in 2013. That suggestion had not been made at the entry interviews of AWV18 and AWW18. Both had stated they departed legally using their own passports. Similarly, no such information had been included in the protection visa application. Although some articles concerning corruption at the airport in Colombo were produced, nothing related to the particular claims advanced by the appellants.

29    Whilst the Authority accepted the first and second appellants had experienced difficulties in Sri Lanka in the past, including some harassment, monitoring and questioning by the authorities, it was not satisfied that they would give rise to a real chance of harm. Nor was it satisfied that their past circumstances would lead to any real chance of adverse interest or consequences for them or that they would be imputed with any type of profile given their past circumstances.

30    It also concluded that, whilst the appellants would be questioned on their return to Sri Lanka and might be identified as persons who had sought asylum in Australia, they did not face any real chance of serious harm as Tamil asylum seekers who departed illegally and, it further concluded, any detention and questioning would be brief.

31    The Authority further found that the appellants did not meet the criteria in relation to the complementary protection provisions. It did not accept that any detention on return would amount to significant harm and relied on its previous findings in that respect.

Proceedings before the Federal Circuit Court

32    Before the FCC the grounds of the application to review the decision of the Authority pursuant to s 476 of the Act were:

1.    The IAA committed jurisdictional error because there was no logical pathway between the evidence relied upon and its finding that the Second [Appellant’s] brother MA was not associated with or a member of the LTTE. FTZK v MIBP [2014] HCA 26; (2014) 310 ALR 1.

2.    The IAA committed jurisdictional error in that it made findings that were capable of providing support for the [Appellants’] claim but which it otherwise ignored in it decision making process.

33    Ground 2 was not pursued.

34    As none of the grounds now relied upon were agitated before the primary judge there is no need to provide any explication of the reasons for dismissing the application.

Leave to amend and raise new grounds not argued before the FCC

35    The original notice of appeal contained only one ground which alleged, “jurisdictional error due to not following or facts presented”. The matter was listed for hearing on 8 August 2019.

36    On 20 July 2019 the appellants sought an adjournment at the hearing. That application was dismissed with costs on 31 July 2019: AWV18 v Minister for Home Affairs [2019] FCA 1202.

37    On 6 August 2019, the appellants filed a further interlocutory application. It sought leave to amend the notice of appeal. The proposed amended notice of appeal contained seven new grounds.

38    That application was heard on 8 August 2019, effectively, in lieu of the hearing of the appeal. On 22 August 2019, leave was given to advance the newly proposed ground 1, however none of the other grounds were considered to have sufficient merit to warrant the granting of leave to raise them for the first time on appeal: AWV18 v Minister for Home Affairs (No 2) [2019] FCA 1315 (AWV18 (No 2)). Ground 1, absent the particulars, was in the following terms:

1.     The primary judge erred in not finding that the decision of the Authority was vitiated by jurisdictional error in that it committed jurisdictional error because there was no logical pathway between the evidence relied upon and its finding that the Second Applicant’s brother (MA) was not associated with or a member of the LTTE. FTZK v MIBP [2014] HCA 26; (2014) 310 ALR 1.

39    On 30 August 2019, the appellants filed yet a further application for leave to amend the notice of appeal along with a draft notice of appeal and supporting written submissions dated 29 August 2019. By it they sought to raise an additional new ground of appeal.

40    On 5 September 2019 they filed a further interlocutory application seeking leave to further amend the notice of appeal.

41    On 15 October 2019 they served on the respondent a further proposed further amended notice of appeal. By it they indicated that they wished to amend the proposed ground 2 by adding a supplementary ground.

42    Grounds 2A and 2B which the appellants now seek to agitate were not advanced before the primary judge. For that reason leave is required to raise them on this appeal. They are similar to proposed grounds 4 and 5 in respect of which leave to raise them on appeal was sought by the application of 6 August 2019 and refused on 22 August 2019 in that they related to the absence of consideration of the obituary document. The terms of those grounds were as follows:

Ground 4

The Authority committed jurisdictional error for not giving weight to the cut out obituary advertisements provide to the delegate in assessing second appellant’s claim that her brother (MA) was in the LTTE.

Ground 5

Alternatively, there was a breach of s 473CB of the Migration Act 1958 (Cth) when the first respondent failed to provide the Authority with the second appellant’s brother’s (MA) obituary advertisement referred to at the Authority’s decision at [39].

Principles on which leave to raise a new ground will be allowed

43    In AVW18 (No 2) the principles on which this Court will permit an appellant to raise a ground of appeal which was not agitated before the primary judge were discussed. In particular, reliance was placed upon the careful reasons of Bromwich J in Han v Minister for Home Affairs [2019] FCA 331 (Han) at [8]–[18]. There is no need to repeat those principles here. In summary, leave may be granted if the ground of appeal clearly has merit and there is no real prejudice to the respondent in permitting it to be agitated; however, leave should be refused where there is no adequate explanation for the failure to raise the grounds below and they seem to be of doubtful merit.

44    The Minister submitted that the “interests of justice” – which are required to be considered as per VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] – do not equate either necessarily or even primarily to the interests of the appellants. Instead, the court must consider the interests of other litigants and the administration of justice generally. The Minister also submitted that a court will more readily permit a new ground to be raised on appeal where it turns only on a question of construction or a point of law or where the facts are not controversial: CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [35] per Murphy, Mortimer and O’Callaghan JJ. It was emphasised by the Minister in this case that the new grounds sought to be raised carry with them the requirement that additional evidence be adduced and considered.

45    There was no substantial dispute by the Minister about the above principles nor with the proposition that, in order to make good the new proposed grounds, additional evidence will be required.

46    Although in her submissions Counsel for the Minister recognised the particular sensitivity of the courts in relation to refugee cases (CGA15 at [36]–[37]), it was submitted that the merit of a proposed new ground alone is not sufficient. Counsel for the Minister further submitted that the weaker the merit in the proposed new ground, the greater the need for other discretionary criteria to weigh in favour of the exercise of discretion to allow an amendment.

Should leave be given to raise a new ground of appeal

Explanation for failure to raise grounds in the FCC

47    It was contended on behalf of the Minister that the Court has already refused leave to raise the grounds now being advanced as Grounds 2A and 2B. While the grounds in respect of which leave was refused on 22 August 2019 arose from the same general factual issues, the legal issues surrounding the proposed new grounds are substantially different. Whilst those previously advanced grounds relied on the absence of the “obituary document” before the Authority, neither relied on its failure to exercise its power to obtain it. It is that latter issue which is at the heart of the proposed new grounds.

48    The Minister also directed attention to the absence of any explanation for the failure to raise any grounds of appeal before the Federal Circuit Court. It was emphasized that the appellants were represented by an experienced immigration lawyer in that forum such that it might be expected that any valid grounds would have been agitated there. This factor does weigh in favour of refusing the present application. At least at a prima facie level, it can be thought that the lawyers representing the appellants before the FCC did not perceive these grounds to have any significant bearing on the matter.

49    To that it can be added that no explanation has been provided as to why there was no attempt to agitate these proposed new grounds in the first application to amend the notice of appeal. Again, it might be thought that they would have been raised then if they had any merit.

Prejudice to the Respondent

50    The Minister further submitted that allowing the appellants to agitate the proposed new grounds denies him of any real right of appeal, with the consequential undermining of the review and appeal scheme established in the Act. This issue was averted to by Bromwich J in the passage from his Honour’s decision in Han which is set out in the reasons for judgment in relation to the earlier proposed amendment. There is force in this submission as, if the new grounds are allowed to be raised and one or some of them succeed, the Minister will have no practical right of appeal. Whilst he may have a right to seek special leave from the High Court, that is a rather limited right. Even if the High Court thought that the decision of this Court contained an error it may well legitimately refuse leave on other grounds. The Minister agitated this as indicating that he will or might suffer prejudice if the new grounds are permitted.

51    Whilst there is force in that submission, the counter-factual is that if leave is not granted for an appellants to pursue an arguably meritorious ground, it may well be that they will be deported and possibly returned to perilous circumstances on the basis of a defective administrative decision. For the appellants that will amount to irreparable damage including a substantial risk to their safety. Further, if a meritorious ground does exist and it ultimately succeeds, the matter will be returned to the Authority where the application can be dealt with according to law.

52    A further submission made by the Minister was that he will suffer prejudice if the new grounds of appeal are permitted to be raised because, had they been raised in the FCC, he would have been able to call evidence and cross-examine the appellant on his affidavit. It is true that the new grounds raise factual issues in relation to which evidence might have been called. However, the real question is the nature and extent of the detriment that the Minister might sustain by not being able to adduce that evidence before the FCC. Here, the Minister refrained from demonstrating that he was likely to suffer any actual, as opposed to theoretical, prejudice. Firstly, it was said that, if the ground had been raised earlier, he might have obtained evidence from the delegate about what occurred at the interview and what documents were shown. However, there was no evidence before the Court to suggest that such evidence was not now available if it was required. The delegate had not been approached to ascertain whether she could recall the events in question or whether she retained notes so as to be able shed light on matters. If it transpired that she is now unable to assist, it is also probably unlikely that, had the matter had been raised at the time of the FCC hearing, she would then have had any independent recollection of whether she had been shown a photograph in the course of the interviews: cf CVV16 v Minister for Home Affairs [2019] FCA 1890 at [56] per Mortimer J.

53    It is a matter worthy of comment that although the Minister submitted that he would suffer prejudice if leave was given to raise the new grounds, no attempt was made by those acting for him to adduce evidence that such was the case. It is unusual, to say the least, for a submission to be made that actual prejudice will be suffered by the party in possession of information which would establish that fact and that party chooses not to disclose it.

54    Ultimately, it can be accepted that there is a theoretical possibility that the Minister will suffer prejudice if the new grounds are allowed to proceed, but it is probable that any such prejudice is more chimerical than real. On the other hand, it is necessary to keep steadily in mind that the mere absence of prejudice to the Minister is not, of itself, a sufficient factor to justify granting leave: SZQHK v Minister for Immigration and Citizenship (2012) 125 ALD 458 at 471 [67] per Murphy J.

Merits of proposed new grounds

55    Ultimately, in ascertaining whether it is expedient in the interests of justice to allow a new ground to be agitated on appeal, the criteria of the veracity of the new ground sought to be advanced assumes considerable importance. The Minister quite properly recognised that, in considering this issue, the Court’s assessment takes place on a “reasonably impressionistic basis”, and it does not effectively conduct a de facto final hearing. The threshold for allowing a ground to be raised, assuming other factors support the granting of leave, is that it be arguable or, “not fanciful, illogical, impermissible or devoid of merit” and have a level of rationality based on the material such that the Court can be satisfied that full arguments should be heard: CAL15 v Minister for Immigration and Border Protection [2016] FCA 1344 at [5]–[6] per Mortimer J. Whilst that principle appears to be unquestioned, it does not follow that a real and genuine consideration of the decision of the primary judge and of the reasons of the body in respect of which review was sought, does not have to be undertaken.

The relevant legislative provisions

56    The substance of the appellants’ new grounds is the alleged unreasonableness of the failure of the Authority to exercise its discretion to “get” from the appellant the obituary document which it had unsuccessfully tried to obtain from the Secretary, or to invite the appellant to an interview so as to provide in documentary form. In one way or another the appellants rely upon ss 473DC(1) and (3). The whole of that section provides:

473DC    Getting new information

(1)    Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

    (b)     the Authority considers may be relevant.

(2)    The Immigration Assessment 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.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

    (a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

57    Mr Crowley of Counsel for the appellant submitted that this section has work to do beyond providing an avenue for the reception of “new information”. He submitted that it had a secondary operation in relation to information or documents which did not fall within that description. That is a somewhat surprising submission given the title to the section, the natural and ordinary meaning of the words used and the nature and scope of the process which the Authority is required to undertake. Those submissions were, however, predicated on the view that the obituary document was not “new information” as described by that section. As is discussed below, a relevant document which was not before the Minister when the Minister made the decision, prima facie, qualifies as “new information”.

58    The appellants also submitted that there had been a failure by the secretary to provide all the necessary information to the Authority pursuant to the obligations in s 473CB. Relevantly that section provides:

473CB    Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

   (a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

    (iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

…

59    There was some difficulty with the submissions made in relation to the alleged non-compliance with this section, not the least being that it was not the subject of any ground of appeal. The other substantial difficulty was that there was no evidence that the obituary document had been provided to the delegate as opposed to merely being shown to her.

The status of the “obituary document”

60    For the purposes of determining the existence of any merit in the appellants’ proposed new grounds it is appropriate to identify the status of the obituary document in the context of Part 7AA.

Was the obituary document “provided” to the delegate?

61    The first and second appellants attended at an interview with the Minister’s delegate on 28 March 2017. In the delegate’s decision it is recorded that the appellants showed the delegate a photograph of a person in fatigues which was said to be MA:

The applicants fear returning to Sri Lanka on the basis that Applicant’s Two’s [sic] brothers were members of the LTTE. The applicant showed a copy of photograph of man they claimed to be [MA] wearing the LTTE combat uniform (copy not on TRIM). The applicants claimed that the photograph depicted [MA] and was evidence that the he was member of the LTTE. Whilst on the basis of this photograph I cannot discount the possibility that [MA] was a member of the LTTE, I do not accept as plausible based on the account provided by Applicant One that [MA] was an intelligence officer with the LTTE…

62    There is no explicit reference in the delegate’s decision which is suggestive that she was shown the obituary document. However, at page 8 of her decision reference is made to the appellants having provided to the delegate death certificates for JA and MA. Reference is made to document “CLD2016/33832058” which can be taken to be a document which has been received by and maintained on the departmental records. However, it does not appear that any death certificate relating to MA was in fact provided. Those which appear on the departmental file and are contained in the appeal book are referable to the first appellant’s cousins and mother. None refer to MA. The appellants submitted that the only logical conclusion is that the delegate must have been referring to the obituary document as being MA’s death certificate. Certainly, it identified a date which could be taken to be the date of his death, but otherwise there is little about that document which might cause it to be described as a death certificate. Nevertheless, it is the only known document which might fit the description.

63    In any event the first appellant filed an affidavit on 6 August 2019 in which he swore that the obituary document was shown to the delegate. That evidence was not challenged and no objection was made to its reception on the appeal. Further, the appellant adduced evidence of what is said to be an accurate transcription of part of the interview between the delegate and the first and second appellants recording that multiple photographs of MA were discussed. The Minister made no objection to that evidence being received on the appeal. That transcript establishes that the delegate was shown more than one photograph and, it can be inferred, that they were the one depicting MA in army fatigues and the obituary document which contained a photo of him. The revised accurate transcript is more fully discussed later in these reasons.

64    The consequence is that, on the evidence before this Court, the only conclusion which can be drawn is that the obituary document was shown to the delegate in the course of the interview. It, along with a photo said to be of MA in army fatigues, were said to have been produced to establish that MA was in or was associated with the LTTE and that he had died.

What significance was placed on the obituary document by the Authority?

65    The appellants’ representative sent to the Authority three sets of submissions, some of which included additional documents. In the first set of submissions dated 31 August 2017, the following statements were made:

From the decision record, it appears that the delegate was under an impression that the Sri Lankan authority had MA’s death certificate or knew that MA was dead at the time the [first appellant] was interrogated about MA. We submit that the [Sri Lankan Security Forces] neither had the death certificate nor knew MA was dead. It was only in the protection visa interview the delegate was shown by the applicant a cut-out obituary advertisement of MA. This obituary cut-out was in the possession of the applicant’s brother who lives in Perth. Prior to arriving in Australia the applicant didn’t know MA was dead.

Therefore, the delegate’s comments that the applicant’s claim that the applicant was abducted and interrogated for 25 days in 2009 was unconvincing – was made whilst the delegate was under the incorrect impression that the Sri Lankan authorities knew that MA had died. The delegate did not say why she found it unconvincing but it appears from the decision record she was influenced by this mistake in arriving at this conclusion.

66    At paragraphs [39] and [45] of the Authority’s decision reference was made to the documents which were before the delegate:

39.     At the protection visa interview, the second applicant provided a document to the delegate detailing the death of her brother, MA. Other than to mention that the document advises of MA’s death the applicants made no mention of what the document detailed nor was a translation provided. The IAA submission refers to the document as a “cut-out obituary advertisement of MA”. This document was not included the referred materials [sic] and in response to the IAA’s request for this information the Department advised that it was not available on the Department files. In any event, I have accepted that the second applicant’s brother, MA is deceased.

…

45.     At the protection visa interview, the second applicant provided a copy of a photograph which she claimed to depicted [sic] her brother, MA. The photo is time stamped “10:51pm” but it is not date stamped. It depicts two men, one is wearing fatigues. Other than the second applicant’s claims that the person in the fatigues is her brother, MA, there is no other information or photographs to verify that it is him as claimed and nor am I satisfied that in light of the evidence above, that the photograph substantiates the applicants’ claims that the second applicant’s brother, MA was associated with or a member of the LTTE.

Did the failure to provide the obituary document breach s 473CB(1)(b) of the Act?

67    In the previous application for leave to amend the notice of appeal the appellants submitted that the department’s Secretary had breached s 473CB(1)(b) because the obituary document was “review material” and had not been provided to the Authority. As has been mentioned, that argument was lightly advanced on the appeal. However, the only evidence is that the document was shown to the delegate, not that it was given to or retained by her or that she had possession of it at any time. In the context of s 473CB(1), which is set out above, the word “material” appears to refer to physical “material” which can be transferred to the Authority. It does not appear to refer to the visual perceptions of the delegate, whether that be in the nature of photographs shown but not given or the nature of the mannerisms or conduct of the persons being interviewed by the delegate. Here, the obituary document could not be classified as “review material” as it had not been provided to the decision-maker in the sense used in s 473CB and, therefore, the Secretary had no duty to provide it the Authority.

Should the Minister have exercised the power under s 473DC?

Was the obituary document “new information” for the purposes of s 473DC?

68    It is appropriate to turn to the question of whether the document was “new information” within the meaning of ss 473DC and 473DD.

69    On the facts as they are now known the obituary document was not “before” the Minister’s delegate when the original decision was made on 12 June 2017. It was not explicitly referred to in her reasons and it does not appear that a copy was given to or retained by her. Whilst the document had been shown to the delegate on 28 March 2017, there is no evidence that she retained any memory of it or had made any note of the information contained in it other than it recorded the date of MA’s death.

70    The Minister submitted that the obituary document was not “new information” within s 473DC because the information in it had been shown to the delegate at the interview. That submission cannot be accepted. Firstly, it is sufficient satisfaction of meaning of “new information” in s 473DC(1)(a) that a document was not “before the Minister when the Minister made the decision”. That remains so regardless of whether “information” about the document or contained in the document was in the Minister’s possession at that time. The temporal reference in sub-paragraph (a) is specific in referring to the occasion when “the Minister made the decision”. That means that the concept of “new information” will include any material which the Minister may have seen in the period leading up to the making of the decision but which he no longer had when the decision was made. Second, there is nothing in the reasons of the delegate to suggest that she had recalled the information in the obituary document at the time of making the decision on 12 June 2017 apart from, perhaps, the date of MA’s death. So, assuming that some “information” was derived from the obituary document when it was shown to the delegate, apart from the date of MA’s death it is not apparent that any other information remained with the delegate such that it could be said, when the decision was made, it was “before the Minister”.

71    It should be observed that the Minister offered no alternative construction to s 473CB(1) which would suggest that a document shown to but not given to the decision-maker could be said to be “before” him or her when the decision was made.

Was the information “relevant”?

72    In order to enliven the discretion in s 473DC(1) or (3) the information must also be that which the decision-maker considers to be “relevant”.

73    The appellants submitted that the Authority must have considered that the document was “relevant” to the claim or an integer of a claim raised by the appellants in their written submissions, because it sought it from the Secretary. In other words, because the Authority sought to “get” the document it had reached the conclusion that it was relevant and, therefore, the discretion was enlivened. In support of this submission the appellants referred to Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526 where the Court inferred from the Authority’s conduct that it had formed views as to the existence of “exceptional circumstances” in relation to new information. There is no correlation between the facts in that case and those in the present. Whilst it might be accepted that in a fact finding context it is possible for a Court to infer from the purported exercise of power that the repository of that power had reached certain conclusions about the existence of matters on which the exercise of the power is conditioned, that is necessarily a fact specific consideration.

74    Here the Authority obviously believed the obituary document to exist and that it had been considered by the delegate. An impression to that effect may well have arisen from the submissions made by the appellants on 31 August 2017 where reference is made to the “cut-out obituary advertisement” which was shown to the delegate. On that basis it may well have been under the impression that not all documents which had been before the delegate had been provided to it as required under s 473CB(1)(c). But whether that was so, it is apparent that it saw the document as something which it ought to consider in its review. In that sense it must have considered it to be “relevant” within the meaning of s 473DC(1)(b).

75    In any event, the obituary document was objectively relevant to the determination to be made and, as such, would be one which the Authority, acting reasonably, would have considered to be so. When considering what material was relevant, attention must be paid to the issues which the Authority was required to consider in the course of its evaluative task. The general nature of the task undertaken by the Authority pursuant to s 473CC was articulated in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17] per Gageler, Keane and Nettle JJ where it was said:

Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority’s determination.

76    In considering the application afresh the Authority will necessarily keep in mind the claims made or advanced by the applicants or on their behalf. It will also have to consider any other claim which clearly arises on the material even if it were not expressly articulated. The nature of the Authority’s task as articulated, defines or delimits questions of what is relevant to the determination and, for present purposes, it colours the manner in which the discretion under s 473DC(1) or (3) might be exercised.

77    On one view it could be thought that the appellants’ submissions to the Authority of 31 August 2017, might have limited the relevance of the obituary document to the issue of whether the delegate had misunderstood the perception of the Sri Lankan Security Forces as to whether MA was alive or dead. The relevant paragraphs of those submissions are set out above. No suggestion was made in them that the Authority should compare the photograph on the obituary document with the photograph of MA in army fatigues to demonstrate that MA was associated with the LTTE. On that basis, the Authority might have reasoned that the issue actually raised was nonsensical and founded upon a misunderstanding of the delegate’s reasons. That being so, the document might not have been seen to be relevant to the specific ground agitated. Further, to the extent to which the document related to the issue of whether MA was deceased, the Authority concluded that he was and, so it seems, it concluded that it was not necessary to view the obituary document because that issue was determined in favour of the appellants “in any event”.

78    However, the difficulty is that part of the first appellant’s primary claim was that his wife’s brother, MA, was a member of the LTTE and that, as a result, he had an imputed association with it as well. The delegate had accepted that MA was a member of the LTTE even though it was not satisfied that he was an intelligence officer. That claim or integer of the first appellant’s claim remained part of the grounds of his application which was to be reviewed by the Authority. It appears on multiple occasions in the submissions of 31 August 2017. Before the delegate the appellant had relied upon certain photographs which he produced to establish the existence of MA and that he was a member of the LTTE. Although it appears that there were at least two photographs, the transcript as produced for the Authority, mistakenly only referred to one. For the purposes of the appeal the appellants obtained a translation of what was actually said before the delegate. The accurate transcript was produced by a NAATI-accredited translator and accepted by the Minister as being accurate. Relevantly it provided:

Officer: So what happened when you moved to Colombo?

[1A]: After I went to Colombo in 2000…, I worked from 1996 until 2001 in a bar…. After I got married to her and her brothers all were LTTE… er… her brothers all were…, they joined the LTTE to fight while they were living with me. Photos are here for them. …

Officer: Who is this person in this photo, in uniform?

[2A]: it’s my younger brother … it’s him.

Officer: So that’s your younger brother, [MA]?

[2A]: It was when we were in Colombo that they kidnapped him, in 2008. We informed this to all… to police and all… but they did not respond in any way.

Officer: Do you know anything about your brother’s role in the LTTE?

[2A]: I don’t know much about those things.

Officer: And where is [MA] now?

[2A]: He is not alive… we were… that he was no longer alive … that’s why we were given these photos.

79    In the transcript used by the Authority, the reference to photos (plural) was mistranslated into the singular. On the evidence which has been tendered on the appeal without objection, it is apparent that the photos consisted of the obituary document and the photo of MA in army fatigues. As Mr Crowley for the appellants submitted, the obituary document can be regarded as evidencing that MA was the brother of the second appellant because it correctly identified MA’s date of birth as that recorded in the visa application. It is significant that the delegate who viewed both photographs concluded that MA was a member of the LTTE and that the Authority, which viewed only one, was not satisfied that he was.

80    Therefore, before the delegate an integer of the first appellant’s claim was that he would have an imputed connection to the LTTE as his brother-in-law, MA, had been a member and that he had been killed. The first appellant had produced at least two photos to establish MA’s connection with the LTTE and his death. The delegate accepted the correctness of these assertions but only received and retained one of the photographs. It is now submitted for the appellants that had the Authority sought and obtained the obituary document it would have been able to compare the photograph on it to the photograph which was said to be of the first appellant and MA, the latter in army fatigues, and could have determined that they both depicted images of MA and that MA was involved with the LTTE. It was submitted that this would have prevented the Authority concluding that it was not satisfied that MA was associated with the LTTE despite the photo of him in army fatigues. The appellants fasten on the observation of the Authority in [45] of its reasons which is set out above and, in particular to the observation, “[o]ther than the second applicant’s claims that the person in the fatigues is her brother, MA, there is no other information or photographs to verify that it is him as claimed”. There is a reasonably good argument that had the Authority viewed the obituary document, it would not have reached that conclusion. In these circumstances, a document about MA and his death was relevant to a central integer of the first appellant’s claim and that should have been apparent to the Authority acting reasonably.

81    It follows that, even if the Authority had not sought the obituary document as it did and thereby indicated its perception that it was relevant, the document was objectively relevant to the issues to be considered by the Authority in carrying out its statutory task.

82    In summary, the matters on which the exercise of the powers in s 473DC(1) or (3) are conditioned had been satisfied; the obituary document was new information and it was relevant.

83    Although it is not necessary to determine for the purposes of ascertaining whether the requirements of s 473DC were met, it is reasonably arguable that “exceptional circumstances” existed which would have warranted the consideration of the obituary document by the Authority had it received it. It is far from usual, as well it should be, that a delegate views and considers material relevant to their deliberations but does not retain a copy for the purposes of the review process.

The principles of legal unreasonableness

84    Mr Crowley for the appellants submitted that, in the circumstances described above, the Authority’s failure to exercise its discretion under s 473DC to “get” the obituary document was legally unreasonable. That submission requires consideration of the principles identified in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (SZVFW) which concerned the scope of the principles of “legal unreasonableness” in the exercise of discretionary administrative powers. In that case Kiefel CJ (at 550–551 [10]) in reliance on the majority in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76], identified that legal unreasonableness exists where the exercise of power lacks an evident and intelligible justification such that no reasonable person could have arrived at that decision in the sense that it is irrational. In addition, her Honour said (at 551 [11]) that the test is necessarily stringent and the courts will not lightly interfere with the exercise of a statutory power involving an exercise of discretion. In SZVFW it was also held that whether the exercise of an administrative decision is unreasonable requires close attention to the scope, purpose and objects of the statutory source of the power in question: at 565 [54] per Gageler J, at 572 [79] per Nettle and Gordon JJ, and at 586 [135] per Edelman J.

85    The reluctance of a court to conclude that a discretionary power has been exercised unreasonably was recently emphasised in Minister for Immigration and Border Protection v Haq (2019) 365 ALR 202 at 211 [37] per Griffiths J:

It is also well established that a statutory discretionary power contains an area of decisional freedom (see, for example, Li at [28] per French CJ and at [66] per Hayne, Kiefel and Bell JJ). The “courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”, and an important question “is where that area lies” (see SZVFW High Court at [11] per Kiefel CJ). As Gageler J stated in SZVFW High Court at [58], a judicial review should not enter the zone of discretion committed to the administrator, by the judicial review judge forming his or her own conclusion (see also Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; 329 ALR 491; [2016] FCAFC 11 (Stretton) at [21] per Allsop CJ and at [76] per Griffiths J). In applying a standard of legal reasonableness the Court should not substitute the Court’s view as to how a discretion should be exercised for that of the decision-maker. Moreover, depending upon the terms of the relevant discretionary power, the decision-maker will generally have “a degree of latitude in determining what is fair and just in a given case” (SZVFW High Court at [13] per Kiefel CJ). More recently, the High Court has described the standard of legal unreasonableness which is implied as a condition of the exercise of a statutory power as “a demanding standard” (see TTY167 v Republic of Nauru (2018) 362 ALR 246; [2018] HCA 61 (TTY167) at [24] per Gageler, Nettle and Edelman JJ).

86    The issue of whether the Authority’s failure to exercise or to consider exercising its discretion under s 473DC to “get” new information was legally unreasonable arose in BJK17 v Minister for Immigration and BJJ17 v Minister for Immigration [2019] FCAFC 171. In that context the Full Court (Middleton, Bromberg and Snaden JJ) observed (at [41]):

Powers conferred by statute must, ordinarily, be exercised reasonably: Li, 351 [29]-[30] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370 [88]-[89] (Gageler J). The power conferred upon the Authority by s 473DC to get “new information” is subject to that requirement: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 (“M174”), 607 [21], 613 [49], 618 [71] (Gageler, Keane and Nettle JJ), 620-621 [86] (Gordon J), 624 [97] (Edelman J); DPI17 v Minister for Home Affairs (2019) 366 ALR 665 (“DPI17”), 667 [36] (Griffiths and Steward JJ), 689 [91] (Mortimer J). There are no fixed categories of circumstances by reference to which a failure to exercise, or consider exercising, the discretion might be impugned as legally unreasonable: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42] (Thawley J). Rather, an assessment of whether, in any given case, the exercise or non-exercise of the discretion is attended by legal unreasonableness must, of necessity, be case-specific: Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [42] (Allsop CJ, Robertson and Mortimer JJ). A decision will not be impugned as legally unreasonable simply because it is one about which different minds might form different views: Plaintiff S111/2017 v Minister for Immigration and Border Protection (2018) 263 FCR 310, 328 [66] (Perry J, with whom McKerracher and Charlesworth JJ agreed).

87    The context of the exercise of the power or the omission to consider exercising the power in s 473DC(1) was that the Authority was to review the fast-track decision on the papers provided to it under s 473CB of the Act (under s 473DB of the Act) without accepting or requesting additional information and without interviewing. Whilst the Authority was entitled to obtain “new information”, it was not obliged to do so: s 473DC of the Act. The provisions of Part 7AA are intended to provide an expedited consideration of the visa application. That said, such a review must conform to the natural justice requirements expressed and implied in the part. In EVS17 v Minister for Immigration and Border Protection (2019) 163 ALD 422 at 430 [33] the Full Court (Allsop CJ, Markovic and Steward JJ) identified the purpose of the Part in the following terms:

The intent of Pt 7AA is to provide an efficient, but fair, process of review in accordance with the terms of the Act: see [18]–[19] above. The Authority is expressly required to pursue that objective by providing a “mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3”: s 473BA. Division 3 sets out the way in which the Authority is to conduct the review. It expressly confines the material to which the Authority may have regard in undertaking its review to the material provided by the Secretary under s 473CB and, except in the limited circumstances set out in Subdiv C of Div 3, without accepting or requesting new information or interviewing the applicant. Further, in undertaking its review, the Authority is not concerned with the correction of error on the part of the Minister or delegate but undertakes a de novo consideration of the merits of the decision referred to it. It is required to consider the application afresh and determine for itself whether the criteria for a protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 481; 353 ALR 600; [2018] HCA 16 at [17].

88    In DPI17 v Minister for Home Affairs (2019) 366 ALR 665 Griffiths and Steward JJ identified the manner in which the context of Part 7AA demarcates the scope of legal unreasonableness in connection with the Authority’s powers conferred by it. Their Honours listed six relevant propositions at 676 [35]:

(1)     as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);

(2)     the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);

(3)     the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) (at [21]);

(4)     the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);

(5)     although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and

(6)     s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).

89    Subsequently, their Honours emphasised the fact specific nature of any analysis directed to ascertaining whether the exercise or non-exercise of a power was legally unreasonable (at 677 [37]):

… First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error.

Was the failure to exercise the power to get the obituary document unreasonable?

90    Whilst keeping steadily in mind the fact that the review conducted by the Authority is limited and efficient, it is necessarily one that involves a fair process in which the application is considered afresh: EVS17 (at 430 [33]). Here, the unusual confluence of unfortunate circumstances as they arose before the Authority, had the consequence that its failure to consider exercising the power to get the obituary document or its non-exercise of the power, lacked any intelligible justification. It must be emphasised that this conclusion is reached on the basis of the facts as they are known to be, which differ from the facts which were apparent to the Authority.

91    On the other hand, the most significant matter is that the Authority was aware, or at least believed, that the obituary document had been viewed by the delegate in relation to that integer of the first appellant’s claim concerning MA. Those circumstances included MA’s involvement with the LTTE and his subsequent death. At some stage in the Authority’s deliberative process it must have understood that it would reach a different conclusion to that of the delegate as to MA’s involvement with the LTTE and would therefore be making a contrary finding on that central integer. Importantly, that different conclusion would be reached without consideration of all the information relevant to that issue which had been viewed by the delegate. In undertaking its statutory task of assessing the application for a visa afresh, there were compelling reasons for it to obtain possession of a document relevant to that central issue and which, although not before the delegate when the decision was made, had been considered in the inquisitorial process.

92    The fact that the obituary document had been viewed by the delegate on the issue of MA’s identity and his alleged connections with the LTTE even though a copy was not retained, is important. The scheme of the Act tends towards a process whereby material which has been provided by an applicant in support of their claim and considered the delegate is retained for review purposes: cf ss 352(4) and 473CB(1). It would undermine the integrity of the review entitlements provided to visa applicants if decisions were made by delegates on the basis of material shown to them but which they did not retain. A de novo consideration of the application by the Authority “on the papers”, would be denied validity if the initial determination was made after the consideration of materials which were not included in those considered by the reviewer.

93    To a degree that is what occurred in this case. The obituary document was used by the first and second appellants before the delegate to advance their contention that MA was a member of the LTTE. It was used in conjunction with a second photo, purportedly of MA in army fatigues however, this was not made clear in the delegate’s reasons. Compounding that was that a mistranslation of the statements made by the first appellant in his interview effectively concealed from the Authority the manner in which the documents were used. Despite that, it is well-established that jurisdictional error can arise even though the decision-maker is unaware of the facts and circumstances giving rise to it: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at 193–194 ([3]–[7]) and 206 [51]–[52]); DVO16 v Minister for Immigration and Border Protection [2019] FCAFC 157 at [4] per Greenwood and Flick JJ.

94    It is also significant that the Authority was alive to the existence of the document, that it had been shown to the delegate, and that consideration of it had been relevant to the assessment of the application before it. After being informed of the document’s existence the Authority sought a copy from the department but was informed that it was not available. That exhibited a consciousness that it was a document which ought to be examined. Again, the erroneous transcript had the effect of concealing from the Authority the importance of the document to the appellants’ primary claim. The correct translation of the words spoken by the first appellant reveal that it was relied upon for establishing that connection in addition to the fact that MA was deceased.

95    Despite the above it must not be forgotten that the somewhat erroneous submissions filed on behalf of the appellants on 31 August 2017, would not have assisted the Authority to understand the relevance of the obituary document. It was said:

From the decision record, it appears that the delegate was under an impression that the Sri Lankan authority had [MA’s] death certificate or knew [MA] was dead at the time the applicant was interrogated about [MA]. We submit that the SLSF neither had the death certificate nor knew [MA] was dead. It was only in the protection visa interview the delegate was shown by the applicant a cut-out obituary advertisement of [MA]. This obituary cut-out was in the possession of the applicant’s brother who lives in Perth. Prior to arriving to Australia the applicant didn’t know [MA] had died.

96    The delegate had not proceeded on the basis that the Sri Lankan authorities had believed that MA was dead when the first appellant was allegedly questioned, but on the basis that he was missing. This may have made the submission somewhat difficult to follow.

97    To the above it can be added that the written submissions made to the Authority only identified that the obituary document advised of MA’s death. There was no mention of what other information the document detailed and nor was any translation of it provided. That may well have been because the delegate had not been able to discount the possibility that MA was a member of the LTTE and the appellants’ advisors may not have seen that question as an issue for the Authority.

98    Despite the Authority not having been greatly assisted by the submissions filed by the appellants, in the highly unusual circumstances of this case where evidence of an essential issue was concealed from the Authority there was no intelligible justification for it not exercising its power to get the obituary document from the appellants or not considering whether to exercise that power. That jurisdictional error in the course of the inquisitorial process similarly vitiated the Authority’s conclusion that the first appellant did not satisfy the criteria for the grant of a protection visa.

A different characterisation of the jurisdictional error

99    It is not infrequently the case that a mistake by the repository of power in the decision-making process can give rise to different jurisdictional errors. Here it was also suggested that the failure to exercise or to consider exercising the power to get the obituary document amounted to a constructive failure to undertake the review task required by the Authority. That may well be an accurate way in which to characterize the consequences of the events which occurred in the course of the decision-making process. At least, characterising the error in that manner has less pejorative overtones.

100    Reliance was also placed on the observations of the High Court in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 342–343 [60]:

Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

101    It was submitted that the right to make submissions in relation to the claims which the appellants advanced was substantially diminished because the Authority failed to obtain all of the information which had been shown to and relied upon by the delegate before whom the claims were first agitated. That diminution of the appellants’ rights was exacerbated by the fact that the Authority was aware that the appellants were making submissions with respect to that document despite it not having a copy to consider. Again, there appears to be some not-insubstantial force in that submission and it is possible that the misstep which occurred in the administrative process might well be characterised as a denial of natural justice.

102    Ultimately, it is not necessary to reach a concluded view on any alternate characterisations of the error. It is sufficient to observe that in the unique circumstances of this case as they are now known to be, the Authority’s failure to exercise or to consider exercising its power to get the obituary document lacked any evidence and intelligible justification.

Materiality of alleged breach

103    The Minister submitted that even if there was a failure by the Authority to exercise its discretion in the manner alleged by the appellants, any such breach was not “material” in the sense referred to in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (Hossain), because it did not have a realistic possibility of depriving the appellants of a different outcome. Whilst it is true that the Authority relied on a number of other matters in reaching its conclusion that the criteria for the granting of a protection visa were not satisfied, a not insignificant part of its reasoning was that, as MA was not a member of the LTTE, the first appellant would have no imputed LTTE connection. Had it accepted that integer of the claim it might have been more disposed to accept the allegation that the first appellant had been abducted in 2009 and that he was otherwise of interest to the authorities in Sri Lanka. It cannot be doubted that even if it is determined that MA was a member of the LTTE, it would still have been open to the Authority to determine that he did not satisfy the criteria for a protection visa. That was, essentially, the conclusion reached by the delegate. However, that is not the application of the relevant test. It is necessary to inquire whether, absent the procedural error, there was a realistic possibility of a favourable outcome for the appellants: Hossain at 134–135 [29]–[31] per Kiefel CJ, Gageler and Keane JJ and 147–148 [72] per Edelman J; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (SZMTA) at 445 [45] per Bell, Gageler and Keane JJ. In this case that test is satisfied such that the error was “jurisdictional”: SZMTA at 445 [45] per Bell, Gageler and Keane JJ; or the jurisdictional error was of a nature that relief should be granted: SZMTA at 456–460 [84]–[95] per Nettle and Gordon JJ.

Conclusion on ground 2

104    It matters not how the jurisdictional error is characterised; it is plain that the procedural errors had the consequence that the Authority failed to undertake the statutory review task required of it. That occurred by reason of its failure to get and consider the obituary document in the context of considering the appellants’ assertion that MA was a member of LTTE. The failure to do so denied the process before the Authority of the character of a review as required by s 473CC. Having come to the realisation that a document relied upon by the delegate but not retained on the departmental file was not available to it, there is no evident and intelligible justification for its failure to exercise its power under s 473DC to obtain it. The fact that the Authority was unaware that translation errors in the transcript of the interview with the delegate concealed the fact that the document had been shown to the delegate is beside the point.

105    It follows that there is substantial merit in proposed Ground 2A. Indeed, it establishes the existence of a jurisdictional error on the part of the Authority when it affirmed the fast track reviewable decision. It is not insignificant that this ground was not raised before the primary judge and no explanation has been offered as to why that was so. On the other hand issues were raised which called into question the finding that MA was not a member of the LTTE which had some connection with the point now sought to be raised. I can infer that it was only after Mr Crowley of Counsel was engaged to consider the circumstances of this case that the true nature of the jurisdictional error was properly articulated.

106    It must also be kept in mind that if leave is not granted to raise the new ground, all six of the appellants, including four children, will be deported to Sri Lanka on the basis of an invalid determination. That is a not insubstantial consideration given the claims which the appellants have made.

107    On balance, the interests of justice weigh in favour of granting the appellants leave to raise Ground 2A of the proposed new grounds of appeal. The appeal should succeed on that ground.

Ground 2B

108    Ground 2A alleges the existence of a jurisdictional error by the Authority arising by its alleged unreasonable failure to exercise the discretion under s 473DC(3) to invite the first appellant to an interview and, in that context, obtaining a copy of the obituary advertisement.

109    As the appeal will succeed on ground 2A there is no need to consider the submissions advanced in support of this ground. However, it might have been thought somewhat unusual for the Authority to use the power to interview for the indirect purpose of obtaining documents when it was able to obtain them exercising the power granted specifically to achieve that end.

Conclusion

110    The Appeal should be allowed on Ground 2A. The Authority committed a jurisdictional error and the primary judge erred in not detecting it.

111    The Minister opposed the application for leave and was unsuccessful with the result that there should be no order for costs in that respect. The appellants should have their costs of the appeal generally.

Associate:    

Dated:    18 March 2020

SCHEDULE OF PARTIES