Federal Court of Australia
DBX16 v Minister for Immigration and Border Protection [2021] FCA 238
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appellant have leave to rely on his proposed further amended notice of appeal dated 7 March 2019.
2 The appeal be allowed.
3. Order 1 of the orders made by the Federal Circuit Court of Australia on 8 November 2017 be set aside and in lieu thereof it be ordered that:
(a) a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 21 September 2016 to affirm the decision not to grant the appellant a Temporary Protection (Subclass 785) visa;
(b) a writ of mandamus be issued to the Immigration Assessment Authority requiring it to consider and determine the conduct of the review and the review referred to it on 15 August 2016 according to law and in accordance with these reasons.
4. The first respondent pay the appellant’s costs of the appeal, to be assessed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KENNY J:
1 This is an appeal from a judgment of the Federal Circuit Court of Australia, which was delivered on 8 November 2017, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (the Authority).
2 On 21 September 2016, the Authority affirmed a decision of the delegate of the respondent Minister to refuse the appellant’s application for a Temporary Protection (Subclass 785) visa (protection visa). In making this decision, the Authority determined not to have regard to three documents titled “Warrant of Arrest” accompanying a statutory declaration made by the appellant and provided by him to the Authority before it made its decision. The issues raised by this appeal concern this aspect of the Authority’s decision-making.
Background
3 The appellant is a Tamil citizen of Sri Lanka. He arrived in Australia in September 2012 as an “unauthorised maritime arrival”, as defined in s 5AA of the Migration Act 1958 (Cth).
4 On 24 December 2015, the appellant applied for the protection visa. The appellant’s representatives provided additional documentation on 22 February 2016. The delegate interviewed the appellant on 20 April 2016. By a letter dated 12 August 2016, the delegate informed the appellant that his application had been refused.
5 In the decision record accompanying the 12 August 2016 letter, the delegate summarised the appellant’s protection claims as follows:
• He will be targeted because of his Tamil ethnicity.
• He was suspected of being a member of [the] Liberation Tigers of Tamil Eelam (LTTE).
• He resided in former LTTE controlled areas.
• It was unsafe in Sri Lanka and he was in fear of the Sri Lankan Army (SLA) and Criminal Investigation Department (CID).
• He claimed he was detained by the SLA for one week and physically tortured.
• He claimed he attempted to relocate in Sri Lanka and stayed in various places around Batticaloa and Trincomalee for three years before departing Sri Lanka illegally.
• He will be targeted as a failed Tamil asylum seeker who left Sri Lanka unlawfully.
6 The delegate accepted that the appellant was a Tamil person from the Northern Province of Sri Lanka. The delegate noted that the appellant claimed not to have been involved in the Liberation Tigers of Tamil Eelam (LTTE) and did not know anyone who was a LTTE member, but that in 2000 his brother was seen speaking with LTTE members. After accepting the appellant’s claim that in March 2009 he had been detained by the Sri Lankan Army (SLA) and Criminal Investigation Department (CID) at an army camp, the delegate stated:
The fact [he] was only detained for one week and had no reporting requirements suggests he is not a person of interest to the Sri Lankan authorities.
7 The delegate accepted that the appellant had departed Sri Lanka illegally and would therefore be regarded as a failed asylum seeker who left Sri Lanka unlawfully if returned. The delegate did not accept, however, that the appellant was “a person of interest to the Sri Lankan authorities or suspected of having LTTE links”, or that he had been “targeted because his brother used to talk to members of the LTTE”. After considering the matter, the delegate concluded that the appellant failed to satisfy the criteria in ss 36(2)(a) or (aa) of the Migration Act.
8 On 15 August 2016, the decision of the delegate was referred to the Authority. On the same day, the Authority notified the appellant the delegate’s decision had been referred to it for review. The Authority said:
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.
The Practice Direction provided that “new information” could only be considered in “very limited circumstances” as set out in s 473DD of the Migration Act.
9 On 9 September 2016, the appellant sent the Authority an email stating that he had “received new evidence”. The email attached his statutory declaration of the same date, declaring that:
l. I received PROTECTION VISA DECISION RECORD around 23rd August 2016.
2. I contacted my family. I asked them whether it is safe for me to return to Sri Lanka.
3. I was informed that CID came to my house and enquired about me.
4. CID wanted to arrest me and gave ‘Warrant of Arrest’ documents to my family.
5. I requested my family to send those documents. I have attached the same.
6. The authorities suspect that I was supporting LTTE and helped LTTE in the past.
7. If I return to Sri Lanka, I will be arrested and tortured, due to these arrest warrants.
8. I request that because of this new evidence, a protection visa may please be granted.
10 There were certified copies of three documents attached to the appellant’s statutory declaration, each of which were headed “Warrant of Arrest (Section 84 of the Administration of Justice Law)” and were in terms directed to the appellant’s arrest. The “complainant” in each case was stated to be the “T[errorism] I[nvestigation] D[epartment]” in Vavuniya. The form of the documents appears to be identical, with each completed with slightly different details. I shall refer to these three documents as “the arrest warrants”.
11 The arrest warrants are dated 9 August 2012, 20 October 2012 and 17 November 2015 respectively. The 9 August 2012 arrest warrant specifies the “particulars of the alleged offence or reasons for issue of warrant” as “[h]e was involved [in] supporting activities [of] LTTE groups”. The other two arrest warrants specify the “particulars of alleged offence or reasons for issue of warrant” as “[f]ailed to attend to Court”. The arrest warrants are apparently signed above the stamp of a “District Judge and Magistrate” although there are differences between the stamp on the 9 August 2012 warrant and the other two warrants. All three arrest warrants provide that the relevant officer is “required and authorized to arrest the above named person and to produce him before this Court”.
The decision of the Authority
12 Under the heading, “Information before the [Authority]”, the reviewer stated that regard had been had to the material referred by the Secretary under s 473CB of the Migration Act, although the reviewer had not had regard to the Warrant of Arrest documents that had accompanied the referred applicant’s 9 September 2016 statutory declaration. In connection with these documents, the reviewer stated:
4. On 9 September 2016 the [Authority] received an email from the applicant forwarding a statutory declaration and copies of three documents titled Warrant of Arrest. The statutory declaration states that the applicant contacted his family after receiving the decision of the delegate and asked if it was safe for him to return. He states he was informed that the CID came to the family home to arrest him and “gave Warrant of Arrest documents to my family”. He requested that copies of these documents be forwarded to him …
5. The applicant states that he received these documents after the delegate decision. However, the documents themselves are dated between 2012 and 2015, before the date of the delegate decision. I note that the applicant had the benefit of representation to assist with his TPV application. I am not satisfied that the documents could not have been provided to the Minister before the decision was made.
6. In considering whether these documents contain credible personal information I have had regard to the authenticity of these documents. I have considered the applicant’s statement that the CID gave these to his family. I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents were given to his family by the CID. I am not satisfied that these documents are genuinely issued arrest warrants. Therefore, I find that these documents do not contain credible personal information about the applicant. Nor am I satisfied that any exceptional circumstances exist that justify considering the new information. I have not had regard to this information.
13 Under the heading “Factual findings”, the reviewer accepted (at [10]) some of the referred applicant’s claims including that “his older brother had been seen talking to LTTE cadres … and that he was detained in 2008”. Further, the reviewer accepted (at [12]) that he came to the attention of the authorities during the civil war and in the months afterwards and was “rounded up and questioned by the authorities”.
14 The reviewer did not accept that the referred applicant’s older brother was now missing as a result of attention from the authorities in 2011. The reviewer also had “significant concerns” about his claims that he was detained, tortured and wanted by the CID and, as a result, to have been in hiding from the CID for the three years before he departed from Australia. The reviewer stated (at [13]) that “some aspects” of this account were “inconsistent with country information”; and further there were “a number of internal inconsistencies in his account”, which brought his “general credibility into doubt”. The reviewer said:
14. I do not accept that the applicant was detained in February 2009, and detained and tortured in March 2009, nor that he was regularly pursued by the CID and/or PLOTE from 2009. I find that the applicant has fabricated these claims in order to enhance his protection visa claims.
15 The reviewer also did not accept (at [15]) that the scars on the referred applicant’s body were the result of torture. It followed from the above findings that the reviewer did not accept (at [18]) that he “has an imputed LTTE profile, nor that he was detained and tortured in 2009”.
16 The reviewer did not accept that the referred applicant, if returned to Sri Lanka, would come to the attention of the Government. The reviewer said (footnotes omitted):
19. The applicant’s claims to have come to attention during the civil war are consistent with country information. The civil war ended in 2009 and since the cessation of hostilities in 2009 the security situation in Sri Lanka has improved. In 2011 the Government lifted the Emergency Regulations that had provided the security authorities broad powers to arrest and detain suspects. DFAT advises that monitoring of Tamils from the former LTTE areas has decreased under the new government.
20. The applicant has stated that although the government has changed, things have not changed in Sri Lanka for Tamils and I accept that he has an ongoing subjective fear as a young Tamil. However, having regard to the referred country information, I am not satisfied that there is a real chance that the applicant will face any harm on return to Sri Lanka. I accept that there continue to be reports of arbitrary detention and harm perpetrated by the security forces in Sri Lanka, particularly of Tamils. … The UNHCR guidelines advise that family members of LTTE members may come to attention and I have considered whether the detention of his older brother in 2008 would raise such a profile for the applicant. I note that the applicant’s brother was released without charge and did not come to further attention in 2009 when people with LTTE profiles were being detected and those found to have links were admitted to rehabilitation programs. I have rejected that his brother went missing in 2011. This leads me to find that the applicant’s brother was not considered to be seriously linked to the LTTE and that the applicant does not have a profile as a person who is the family member of an LTTE member or a person with LTTE links. I have not accepted that the applicant has a real or imputed LTTE profile. The DFAT and UNHCR reports demonstrate that Tamils from the former LTTE areas are at low risk of being questioned or detained by the authorities simply for being Tamil. According to the current UNHCR guidelines, being of Tamil ethnicity alone does not give rise to protection needs.
17 On this basis, in considering the risk that the referred applicant would be arrested and charged upon his return to Sri Lanka, the reviewer said that, since the reviewer was satisfied that he did not have an adverse profile with the Sri Lankan authorities, the reviewer was “not satisfied the applicant would be subject to further investigation or prolonged detention, or mistreatment during questioning and investigative procedures carried out under the [Immigrants and Emigrants] Act” (at [26]).
18 Consistently with the above, the reviewer found that “because of the lack [of] any LTTE profile or other reasons to come to [the authorities’] attention”, there was not a real chance that the referred applicant would face serious harm on return to Sri Lanka (at [29]), and therefore did not meet the requirements of the definition of refugee in the Migration Act (at [30]).
19 For similar reasons, the reviewer was also not satisfied that the referred applicant satisfied the criteria for complementary protection (at [33]–[39]). On 21 September 2016, the Authority wrote to the appellant, notifying him that it had decided to affirm the delegate’s decision.
The Federal Circuit Court proceeding
20 By an application filed on 18 October 2016, the present appellant sought judicial review of the Authority’s decision in the Federal Circuit Court. The grounds of review were:
1. The Minister erred in law by taking into consideration facts not relevant to the matter in making the decision.
2. The Minister erred in law by not taking into consideration[] relevant facts in making the decision.
3. The Minister erred in not taking into consideration relevant Country information in making the decision.
4. The Immigration Assessment Authority erred in law by taking into consideration facts not relevant to the matter in making the decision.
5. The Immigration Assessment Authority erred in law in failing to ask [a] reasonable number of questions in order to ascertain the credibility of the Applicant and make a fair decision.
6. The Immigration Assessment Authority erred in not taking into consideration under the Complementary Protection Provision of the Migration Act 1958 [] the information provided by the Applicant.
On 8 November 2017, he appeared in person at a hearing before the primary judge. His Honour dismissed the application the same day.
21 The primary judge proceeded on the basis that grounds 1–3 were intended to refer to the Authority’s decision. With respect to grounds 1 and 4, the primary judge said that no irrelevant considerations were identified as having been taken into account by the Authority: see DBX16 v Minister for Immigration [2017] FCCA 3410 at [18] and [24]. With respect to ground 2, the primary judge said that there was no articulation of any fact or circumstance to which this ground referred: DBX16 v Minister at [20]. With respect to ground 3, the primary judge held that there was no identified country information that should have, but had not, been considered: DBX16 v Minister at [22]. The primary judge held that ground 5 misconceived the limited statutory basis for review under Part 7AA of the Migration Act: DBX16 v Minister at [26]. The primary judge rejected ground 6 on the basis that the Authority had specifically considered the complementary protection aspect of the claim: DBX16 v Minister at [28].
22 The primary judge also addressed a submission at the hearing that the Authority had erred in not considering the arrest warrants (mistakenly referred to by his Honour as “search warrants”), observing (at [29]) that:
Not surprisingly the [Authority], at the very least, thought that this was not new information within the meaning of the statutory provisions. Even if the [Authority] were wrong in this regard, their reasons indicate that the material was of no weight.
The proceeding in this Court
23 The appellant filed a notice of appeal against the judgment of the primary judge on 22 November 2017. On 7 March 2019, the appellant filed an amended notice of appeal, which was dated 6 February 2019. The appellant, represented at the hearing by Mr Kelsey-Sugg of counsel, subsequently sought to rely on a further amended notice of appeal dated 7 March 2019. Mr Kelsey-Sugg acknowledged that the proposed grounds had not been raised before the primary judge, noting the appellant’s lack of legal representation in the Federal Circuit Court, and accepted that the appellant required the leave of this Court to advance them.
24 It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”. At the hearing of the appeal, the Minister, represented by Mr Hill of counsel, did not oppose the grant of leave to the appellant to rely on his proposed further amended notice of appeal. The Minister did not dispute that the Authority did not have regard to the arrest warrants that the appellant had sought to place before it, and did not contend that the grant of leave would work an injustice on him. In all the circumstances, including the potential merit of the new grounds, the Court determined to grant the appellant leave to further amend his notice of appeal as he sought and to raise grounds that were not before the primary judge.
25 The grounds set out in the further amended notice of appeal were as follows:
1. The learned Federal Circuit Court Judge erred in failing to find that the Immigration Assessment Authority’s (IAA) decision was tainted by jurisdictional error on the ground that it was legally unreasonable for the IAA not to have considered the exercise of its discretionary power under s 473DC of the Migration Act 1958 (Cth).
Particulars
(a) By email dated 9 September 2016, the appellant sent the IAA a statutory declaration together with copies of three warrants for his arrest (“the new information”).
(b) The IAA decided at [6] of its Decision and Reasons not to have regard to the new information because it was not satisfied that the documents were genuine.
(c) The IAA’s Decision and Reasons did not disclose any evaluative process, judgment or rational explanation for rejecting the authenticity of the new information.
(d) Had the IAA been satisfied that the documents were capable of being accepted by the IAA as genuine, its overall decision to affirm the decision not to grant a protection visa may have been different.
(e) Section 473DC(3) relevantly provided that the IAA may invite a person, orally or in writing, to give new information in writing or at an interview.
(f) In circumstances where the IAA knew that the issue of authenticity was important, and there were persons likely to have relevant information which the IAA did not have, it ought to have considered exercising the power under s 473DC to afford the appellant an opportunity to address the conditions in s 473DD.
2. The learned Federal Circuit Court Judge erred in failing to find that the IAA's decision was tainted by jurisdictional error on the ground that there was no logical, rational or probative basis for the IAA’s lack of satisfaction that three arrest warrants produced by the appellant were genuinely issued.
Particulars
(a) The authenticity of the arrest warrants was rejected by the IAA on the basis that: “I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents were given to his family by the CID”.
(b) In circumstances where:
(i) there was no evidence before the IAA as to the likelihood of someone in the appellant’s position having access to arrest warrants;
(ii) the IAA made no attempt at all to explain why it considered such access unlikely;
(iii) the IAA offered no real reason for rejecting the appellant’s account that the arrest warrants had been given to his family by the CID;
(iv) there was no attempt by the IAA to analyse the documents themselves and explain why the IAA believed them to lack authenticity – no logical, rational, or probative basis can be discerned for the IAA’s lack of satisfaction that the documents were genuinely issued arrest warrants.
3. The learned Federal Circuit Court Judge erred in failing to find that the IAA’s decision was tainted by jurisdictional error on the ground that the IAA misapplied the statutory criteria for the consideration of “new information” provided by an applicant as set out in s 473DD(b)(ii) of the Act, alternatively took into account an irrelevant consideration and/or made a critical finding of fact for which there was no evidential support.
Particulars
(a) The IAA made a positive finding at [6] of its Decision and Reasons that “these documents” (being copies of three arrest warrants), did not contain credible personal information about the applicant.
(b) The sole stated basis for that finding was that the IAA was not satisfied that the documents were “genuinely issued arrest warrants”: [6].
(c) However, all that the s 473DD(b)(ii) criteria required was the IAA’s satisfaction that the documents were open to be or capable of being accepted as truthful, accurate or genuine.
(d) By requiring satisfaction that the documents were “genuinely issued arrest warrants” and/or by requiring that the “new information” was true, the IAA imposed upon itself a higher standard of satisfaction than the criteria in s 473DD(b)(ii) required.
Relevant statutory provisions
26 Division 3 of Pt 7AA of the Migration Act governs the conduct of a review by the Authority of a “fast track reviewable decision”, relevantly defined to include, subject to an exception which is not presently relevant, a decision to refuse to grant a protection visa to a “fast track applicant”. It is common ground that the appellant was properly characterised as a “fast track applicant” and that the delegate’s decision was therefore a “fast track reviewable decision”.
27 Within Div 3 of Pt 7AA, s 473CC requires the Authority to review a “fast track reviewable decision” referred to it by the Minister under s 473CA. Division 3 of Pt 7AA (with ss 473GA and 473GB) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted” by the Authority: see s 473DA.
28 Also within Div 3 of Pt 7AA, s 473DB “sets out the primary requirement that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22] (Gageler, Keane and Nettle JJ). Subdivision C of Div 3 provides for exceptions to the general rule that the Authority is not to accept or request new information. The central provisions providing for these exceptions are ss 473DC, 473DD and 473DE. Sections 473DC and 473DD are most relevant in this case.
29 Section 473DC is facultative. It is concerned with the circumstance in which the Authority can get (“in the sense of seek out”: Plaintiff M174 at [23]) “new information”, being information that the Authority considers may be relevant and that was not before the Minister or delegate at the time of deciding to refuse to grant the protection visa: Plaintiff M174 at [24]. Section 473DC provides:
(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.
30 As Gageler, Keane and Nettle JJ said in Plaintiff M174 at [24], “new information” is 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”.
31 Section 473DD imposes restrictions on when the Authority can consider new information, as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the [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.
32 In their joint judgment in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 at [6]; 384 ALR 196, Kiefel CJ, Gageler, Keane and Gordon JJ stated at [11]:
Logic and policy…demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a).
33 In order to meet s 473DD(b)(i), the Authority must be satisfied that the new information given, or proposed to be given, by the referred applicant was not, and could not have been, provided to the Minister before the Minister or delegate made the decision to refuse to grant the protection visa. To meet the requirement in s 473DD(b)(ii), the Authority must be satisfied that the new information given, or proposed to be given, by the referred applicant: (1) is credible information about an identified individual, or an individual who is reasonably identifiable; (2) was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, may have affected the consideration of the referred applicant’s claims: see Plaintiff M174 at [34].
34 The criterion in s 473DD(a) must always be met before the Authority can consider new information. Citing R v Kelly [2000] 1 QB 198 at 208 as quoted in BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958; 254 FCR 221 at [40], Gageler, Keane and Nettle JJ said in Plaintiff M174 at [30]:
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word “exceptional”, in such a context, is not a term of art but “an ordinary, familiar English adjective”: “[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare: but it cannot be one that is regularly, or routinely, or normally encountered”.
35 In AUS17, the plurality said, with respect to the two limbs of 473DD, at [12]:
[T]he Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a).
36 Furthermore, having assessed the new information against the criteria in s 473DD, “the Authority must take that new information into account in making its decision on the review if those criteria are met and must not take that new information into account in making its decision on the review if those criteria are not met”: see AUS17 at [6].
The parties’ submissions
Ground 1
37 In support of his first ground, the appellant contended that it was legally unreasonable for the Authority not to have considered whether to exercise its discretionary power under s 473DC to get new information, relying on Plaintiff M174 at [21] and [86] and Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 at [82]. Counsel for the appellant submitted:
[T]he unreasonableness is the non-engagement with the power that it has. … [T]he appellant’s argument is not that power must necessarily have been exercised to invite the appellant to give further information. It could have been exercised in relation to anyone, for example, the first respondent’s document examination department.
38 The appellant submitted that the failure to consider the exercise of its s 473DC power to give him an opportunity to address s 473DD was unreasonable, having regard to the facts that: (1) the appellant had not had the opportunity to address the question of the authenticity of the arrest warrants, since this was not an issue before the delegate, and the question was not raised in the Authority’s 15 August 2016 letter or the Practice Direction; (2) the Authority should have known that the authenticity of the arrest warrants was an “important, potentially decisive issue” for the referred applicant, given its finding that he did not have actual or perceived links to the LTTE and would not be of concern to the Sri Lankan authorities if returned to Sri Lanka; (3) the Authority’s finding that the arrest warrants were not genuine was not supported by evidence, such that the Authority’s failure to consider exercising its power in s 473DC lacked an evident and intelligible justification; and (4) there was no evidence before the Authority as to the likelihood of someone in the appellant’s position having access to arrest warrants. In this connection, counsel submitted that the Authority had not referred to any feature of the arrest warrants that indicated that they were not genuine. The appellant submitted that the Authority “knew or ought to have known that there were persons available who were likely to have information that the [Authority] did not have relevant to the issue of access to arrest warrants and the authenticity of the warrants before it”.
39 In response to the appellant’s submissions in support of this ground, the Minister submitted that whether it was legally unreasonable for the Authority not to have considered exercising the power in s 473DC to invite the appellant to address the authenticity of the arrest warrants must be assessed against the relevant statutory framework. In support of this submission, the Minister referred to BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114; 261 FCR 35 at [31]; appeal dismissed: [2019] HCA 34; 373 ALR 196 (BVD17 (HCA)); BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 at [71]; Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [7], [16], [62]; and Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [13], [59], [68]–[69] and [90]–[98].
40 The Minister submitted that the statutory scheme indicated that the Authority was not required to seek further information under s 473DC to test the veracity of new information: (1) s 473DA provides that Div 3 is an exhaustive statement of the requirements of the natural justice hearing rule; (2) s 473DB provides that the Authority is to conduct its review on the papers; (3) s 473DC provides the Authority has the power, but is under no duty, to get more information; and (4) s 473DD provides that new information is only received in exceptional circumstances. Counsel for the Minister submitted that these features imposed substantial barriers to getting new information and made Pt 7AA a “stringent” scheme, which was relevantly different from Pt 7, citing DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222; 267 FCR 69 at [68] and [74]. The Minister noted that the Authority is not under an obligation in a Pt 7AA review to invite the referred applicant to appear before it and give evidence and present arguments in respect of the issues arising in the review. That is, in a Pt 7AA review, there is no equivalent obligation to the Tribunal’s obligation under s 425 in a Pt 7 review: see DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [68], [74]–[75]. Furthermore, so the Minister submitted, a procedural fairness obligation could not be introduced into Pt 7AA under the rubric of unreasonableness.
41 The Minister also relied on ANO16 v Minister for Immigration and Border Protection [2019] FCA 59 at [33]–[40] in submitting that it is implicit in s 473DD that the referred applicant must demonstrate the exceptional circumstances warranting the Authority receiving the new information and that requiring an interview to determine whether the information should be received would be contrary to the streamlined process that Pt 7AA is intended to facilitate. In this connection, the Minister noted that a Practice Direction provided to the applicant had provided that an explanation should accompany any new information.
42 The Minister submitted that CRY16 should be distinguished. The Minister accepted that there were instances when it would be unreasonable for the Authority to conduct a review without seeking further information under s 473DC, but that those cases were rare, arising, for example, when a new issue arose before the Authority, which was dispositive, and in respect of which the Authority had no information: see CRY16 at [82]; Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; 253 FCR 526 at [66]; DYK16 at [65] and BJI18 v Minister for Home Affairs [2019] FCA 266 at [29], [35]–[36], [38]–[39], [40], [42], [47], [49].
43 The appellant filed short submissions in written reply pursuant to leave. Amongst other things, the appellant submitted that his argument was consistent with the scheme of Pt 7AA for the reasons set out in CRY16 at [66]–[87]. The appellant noted that, unlike ANO16, his argument did not depend on a failure by the Authority to seek a further explanation from the appellant, referencing ANO16 at [33]. In any event, the appellant submitted that Plaintiff M174 at [24] indicated that a broader view should be taken of “new information” than that taken in ANO16 at [35]. Referring to CRY16 at [83], the appellant argued that CRY16 should be understood as an application of Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [82].
Ground 2
44 In support of his second ground, the appellant contended that the primary judge erred in failing to find that there was no logical, rational or probative basis for the Authority’s failure to accept that the arrest warrants were genuine.
45 The appellant submitted that there was no evidence before the Authority regarding the practices and procedures concerning arrest warrants in Sri Lanka; and, specifically, there was no evidence as to whether a family member could, as the referred applicant account indicated, receive an arrest warrant on behalf of another person in the same family. Referencing DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175, counsel for the appellant further submitted that, as in that case, the Authority “had, effectively, been poisoned in its attitude to evidence and documents because of the view it took as to the appellant’s credibility”. The appellant submitted that the Authority did not analyse the relevant documents and did not identify any features that it considered to be inconsistent with their authenticity (noting that the Authority apparently accepted the authenticity of the dates appearing on the arrest warrants).
46 In response to the appellant’s submissions in support of the second ground, the Minister submitted that the Authority was not required to analyse the documents in light of the basic implausibility of the documents being received by the appellant’s family. Citing CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], DAO16 at [30](5), Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [130]–[131], Stretton at [21], and Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45], the Minister submitted that, like unreasonableness, irrationality is a demanding standard, which requires that the decision as a whole must be one at which no rational or logical decision-maker could arrive on the same evidence. Given this standard, the Minister submitted that it was open to the Authority to find that it was unlikely that the CID would leave the warrants with the appellant’s family. This was, so the Minister said, simply an application of common sense to the evidence. In written submissions, the Minister contended that “[a]n arrest warrant is not legal service – it is completely contrary to the coercive nature of such a document that it could be accepted by an agent of the person to be arrested”.
47 The Minister argued that, in light of this implausibility, the Authority was not compelled to have regard to positive, specific evidence of Sri Lankan practices and procedures relating to arrest warrants to reject the referred applicant’s account as not credible, citing CQG15 at [65] and The Republic of Nauru v WET040 (No 2) [2018] HCA 60; 362 ALR 235; 93 ALJR 102 at [26]–[29]. The Minister submitted that, in the circumstances of the case, it was unnecessary for the Authority to engage with the details of the documents in its reasons. In the Minister’s submission, the fact that arrest warrants cannot be accepted by an agent of the person to be arrested was an aspect of “popular perception and everyday experience,” to which the Tribunal could have regard in assessing the plausibility of the applicant’s claims.
48 In his reply filed with leave, the appellant submitted that (footnotes omitted):
The [Minister’s] appeal to “common sense” should be treated with caution. It relies upon assumptions about the Sri Lankan criminal justice system, including, for example, the tendency of Sri Lankan police to follow relevant protocols. The basis on which such assumptions ought be made is not identified by [the Minister].
Ground 3
49 In support of ground 3, the appellant submitted that, in declining to have regard to the new information constituted by the arrest warrants on the ground that they were not “genuinely issued arrest warrants”, the Authority made a jurisdictional error of the kind identified in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [31]–[44]. That is, the Authority understood “credible” in s 473DD(b)(ii) to require a state of genuineness or truth when all that was required by that aspect of the statutory criteria was that the information be capable of being genuine or true. The Authority therefore erred, so the appellant submitted, by imposing a higher standard of satisfaction than was called for by the provision. In this connection, the appellant’s counsel drew attention to Bromberg J’s statement in CSR16 at [42].
50 The appellant’s counsel further submitted that the fact the Authority concluded there were no exceptional circumstances for the purposes of s 473DD(a) provided no answer to this ground, as the Authority’s consideration of that criterion was also infected by the same error. The appellant contended in this regard that the Authority gave no reason for its lack of satisfaction as to there being “exceptional circumstances” and that “if there’s an error in its consideration of [s 473DD(b)], it would appear that that flows into the consideration of exceptional circumstances”.
51 In response to the appellant, counsel for the Minister submitted that the authorities accepted that “exceptional circumstances” was a very broad criterion and that “often the specific matters in [s 473DD(b)(i) and (ii)] go towards an assessment of exceptional circumstances”. Counsel for the Minister submitted that the Authority addressed s 473DD(b)(ii) at [6] of its reasons for decision (see [12] above) where the Authority said in substance that “the information is not credible because the Authority considered it unlikely that the [referred] applicant (through his family) would have access to arrest warrants and it didn’t accept his accounts”. This was, in the Minister’s submission, a sufficient statement of the Authority’s reasons.
52 Counsel for the Minister agreed with the appellant that the finding that the arrest warrant documents were not credible was central to the Authority’s conclusion as to its lack of satisfaction that there were exceptional circumstances. This led counsel for the Minister to make the submission that:
If [the arrest warrants] were genuine, they’re centrally relevant. If they’re not genuine, there’s … nothing else that would justify receiving the documents. So I have to concede in this case there’s no independent finding about exceptional circumstances, even though as a statutory matter the applicant has to satisfy both.
53 Referring to AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [16], counsel for the Minister submitted that, having regard to the substance of the Authority’s reasons, it was clear that the Authority addressed the relevant statutory criteria. Counsel submitted that, in CSR16 at [41], Bromberg J provided the relevant context for his statement at [42] (which was specifically relied on by the appellant).
54 Counsel for the Minister observed that, in CSR16, the new information was that the referred applicant faced a real risk of being seriously harmed by the Muttahida Qaumi Movement (MQM). The Authority had said that it was “not satisfied that the applicant does have a genuine fear of this kind and [was] therefore not satisfied that [the new information was] credible personal information”: see CSR16 at [35]. Having regard to this statement, counsel submitted that, in that case, there was “clearly a misunderstanding of this two-stage process” to which Bromberg J referred in CSR16 at [41], as the Authority had tried to “jump ahead to the result”. Referencing EAA16 v Minister for Immigration & Anor [2018] FCCA 2624, (citing Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 at [17]), DJY18 v Minister for Home Affairs [2019] FCCA 185 at [10], [16]–[17], [19]–[20], and DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33; 260 FCR 260 at [23] and [37]–[39], counsel for the Minister submitted there was no necessary dichotomy between information that is believed and information that is capable of being believed, for the purposes of s 473DD(b)(ii); and that in deciding whether the new information is capable of being believed, it is permissible to consider the factual context in which the information arose. In this case, so counsel submitted, if it were permissible for the Authority to conclude that the referred applicant’s account of how he got the documents was improbable on its face, then it was open for it to conclude that the information was not capable of being believed.
55 In his reply with leave, the appellant contended that the Authority’s process of reasoning indicated that it construed the word “credible” in s 473DD(b)(ii) to mean “actually true or genuine”; and that in this way the Authority imposed a higher standard of satisfaction than s 473DD(b)(ii) required, citing CSR16 at [31]–[44] and Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [17]. The appellant also referred to BNV18 v Minister for Home Affairs [2018] FCA 1788 at [17]: see subsequently, BNV18 v Minister for Home Affairs (No 2) [2019] FCA 378.
Consideration
Ground 1
56 As we have seen, under his first ground, the appellant argued that it was legally unreasonable for the Authority not to have considered whether to exercise its discretionary power under s 473DC to get new information, and that this gave rise to jurisdictional error.
57 It is established that the powers conferred on the Authority by Div 3 of Pt 7AA (including the power to get new information under s 473DC) were “conferred on the implied condition that they are to be exercised within the bounds of reasonableness” in the sense explained in Li: see Plaintiff M174 at [21] (Gageler, Keane and Nettle JJ), [86] (Gordon J); BVD17 (HCA) at [15]; and ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 383 ALR 407 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). In ABT17, their Honours there said:
The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness.
(Citations omitted)
58 Whether the Authority’s failure to exercise the power in s 473DC to get new information is outside these bounds has fallen for consideration in a number of cases in this Court. CRY16 is one such significant case. The Full Court in CRY16 held that, in the particular circumstances of that case, it was legally unreasonable for the Authority not to consider getting information from the referred applicant concerning the impact on him of relocating to Beirut: CRY16 at [82]. The Authority had affirmed the delegate’s decision to refuse the referred applicant a visa, although it had reached this decision on a different basis to the delegate. Contrary to the delegate, the Authority found that the referred applicant faced a real chance of persecution or real risk of significant harm from sectarian violence in his place of habitual residence in Lebanon, but that this risk did not extend to Beirut, to which he could reasonably relocate. On appeal, the Court upheld the judgment of the primary judge, who had found the decision to be affected by jurisdictional error on the basis that it was legally unreasonable for the Authority not to consider whether to exercise the power in s 473DC, in order to get information from the referred applicant about his relocation.
59 In upholding this finding, the Full Court relied on the fact that the Authority knew that the delegate had not considered the relocation issue; that this issue depended on the particular circumstances of the referred applicant; and that there was nothing in the referred applicant’s interview with the delegate that concerned the impact on him of relocating to Beirut: see CRY16 at [76]. The Court explained that (at [82]):
…The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut... The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of “practicable”, in terms of relocation…
Accordingly, the Court in CRY16 concluded that the review by the Authority was affected by jurisdictional error. Plainly enough, however, CRY16 is distinguishable from the present case: see below at [66] and [72].
60 As noted earlier, the Minister relied on the subsequent cases, DYK16 and ANO16, to support his submission that the Authority was not required to seek further information regarding the authenticity of the arrest warrants in this case. In DYK16, a Full Court of this Court rejected the submission that the Authority had acted unreasonably in the exercise of its power under s 473DC(3) by not inviting the referred applicant to an interview. Although not required to explain its refusal to exercise its s 473DC(3) discretion in DYK16’s favour, the Authority chose to give reasons for this determination. The Court held that these reasons were “reasonable and rational” in the circumstances of the case, and provided an intelligible basis for its refusal: see DYK16 at [67]. As the Court noted, however, the circumstances in DYK16 were fundamentally different from CRY16: see DYK16 at [71]. A moment’s reflection also shows that DYK16 is very different from this case: see below at [72].
61 ANO16 is also of limited assistance here. The Court’s focus in ANO16 was on whether the referred applicant had been given an opportunity to satisfy the Authority that the criteria in s 473DD had been met, in order to allow the Authority to consider the new information: its focus was not on whether the Authority had failed to act reasonably with respect to an exercise of the power in s 473DC to get new information. In this context, Charlesworth J rejected ANO16’s submission that the Authority’s decision was affected by legal unreasonableness because it had failed to consider an exercise of the power in s 473DC to seek an explanation from him concerning his failure to provide the new information to the delegate before the delegate made the original decision: see ANO16 at [33]–[34]. Her Honour held that it was implicit in s 473DD that it is for the referred applicant to satisfy the Authority that the pre-conditions for the Authority’s consideration of the new information had been met: see ANO16 at [35]. In this context, her Honour said, at [35]–[36]:
Turning first to the application of s 473DC, it may be accepted that there may be circumstances in which it is legally unreasonable for the Authority not to consider the exercise of the discretionary power in s 473DC(3) to get new information: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [70] (Reeves, Robertson and Rangiah J); Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ). However, an explanation that may be given by a referred applicant as to why “new information” was not previously provided cannot, of itself, be “new information” to which the discretionary power conferred by that provision may apply. The suggestion that the Authority erred by failing to consider the exercise of the discretion to “get” an explanation from the appellant or his agent is simply not in accordance with the statutory scheme. In my view, the obligation to afford a referred applicant an opportunity to provide material relevant to the condition in s 473DD(b) is necessarily implicit in the provision itself. The provision anticipates that where the applicant gives the Authority “new information” as defined, the referred applicant is to be afforded an opportunity to make submissions and adduce evidence to satisfy the Authority that the pre-conditions for the Authority’s consideration of the new information are fulfilled. Whether or not the applicant may make submissions and give evidence for that purpose is not a matter for the Authority’s discretion under s 473DC.
Whether or not a review applicant has in fact been afforded an opportunity to address the conditions in s 473DD(b)(i) or (ii) in respect of the new information is a different question. It is a question of fact, upon which this ground of appeal turns.
62 Referring to the fact that a Practice Direction, which had accompanied a letter sent by the Authority to the referred applicant, had set out the conditions to be satisfied before new information could be considered, Charlesworth J ultimately held that it was open to the Authority to conclude, without any legal unreasonableness, that the referred applicant had been offered an opportunity to make submissions in respect of the conditions in s 473DD(b) and had failed to satisfy it that those pre-conditions had been met.
63 In this case, as the Minister submitted, the referred applicant was also given a copy of the relevant Practice Direction, which set out the conditions to be satisfied before the Authority could consider new information. ANO16 would therefore support the conclusion that the appellant here was also afforded an opportunity to make submissions in support of the fact that the conditions in s 473DD were satisfied. Indeed, paragraph [23] of the Practice Direction specifically informed the appellant that “[i]f you want to give us new information, you must provide an explanation as to why: … the information is credible personal information …”. If the reasoning in ANO16 is accepted, it would apparently support the view that the appellant in this case had already been afforded an opportunity to satisfy the Authority that the arrest warrants were “credible” personal information, including that they had been “genuinely issued” and that they were in this sense “authentic”. This view would tend to the conclusion that, contrary to ground 1, it was not legally unreasonable for the Authority not to have considered whether to exercise the power in s 473DC to give the appellant an opportunity to address s 473DD(b)(ii), including the issue of authenticity, since the appellant had already been given an opportunity to address the matter. I would not, however, decide this ground on this basis. As indicated below, there is another obstacle in the path of success for this ground.
64 Also of relevance to this appeal is the decision of the Full Court in DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134, in which it was held that the Authority’s failure to consider whether to exercise its power under s 473DC to get new information in respect of the referred applicant’s claimed sexual assaults was “unreasonable or plainly unjust”: see DPI17 at [45] (Griffiths and Steward JJ) and [115] (Mortimer J).
65 In their joint reasons, Griffiths and Steward JJ specifically noted that the Minister did not contest the proposition that the Authority had in fact failed to consider the exercise of the power under s 473DC in relation to the issue whether the sexual assaults had in fact occurred or in relation to the relevant inconsistencies. Their Honours noted, at [44], that:
…This is an important concession, which was properly made. In other cases, an applicant may confront some difficulty in discharging the onus of proof of demonstrating on the balance of probabilities that the [Authority] did not consider the exercise of the power in relation to the relevant issue. …
Their Honours also held that the consequent error in not considering the possible exercise of power under s 473DC was material and involved jurisdictional error: see DPI17 at [53].
66 The circumstances in DPI17 and CRY16 are evidently very different from those in the present case. In CRY16, the Authority had no information before it concerning a dispositive issue, which had not previously been considered by the delegate. In DPI17, the Court held that the Authority could not reasonably have come to a different finding to the delegate about whether the sexual assaults had occurred without an independent evidentiary basis to support that finding, with the consequence that it was legally unreasonable for the Authority not to have considered whether to exercise its power under s 473DC. This case is also very different in its facts and circumstances to DYK16, a case in which the Authority clearly turned its mind to whether to exercise the s 473DC(3) power and gave sufficient reasons for its determination not to do so. Each of these cases can be distinguished from the present case.
67 It must be accepted, however, that the issue of legal unreasonableness is “invariably fact dependent … [and] will require careful evaluation of the evidence”: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [42]. It must also be accepted that, as Griffiths and Steward JJ said in DPI17 at [37], “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”. Reference has already been made to some of the facts and circumstances that may be considered relevant in this matter. In this particular case, however, the relevance of these and other facts and circumstances to the outcome of this ground is doubtful. This is due to the nature of some relevant provisions in Pt 7AA.
68 It is well accepted that the question of legal unreasonableness must be considered by reference to the relevant statutory framework: see, for example, SZVFW at [13] (Kiefel CJ); [68]–[69] (Gageler J); [90]–[98] (Nettle and Gordon JJ) and Stretton at [8] (Allsop CJ); [62] (Griffiths J). Under Pt 7AA, except in limited circumstances, the Authority must review de novo a fast track reviewable decision referred to it on the material provided to it by the Departmental Secretary, and conduct the review without accepting or requesting new information or interviewing the referred applicant: see s 473DB. I have already mentioned the limited circumstances in which the Authority can get new information, which are set out in s 473DC, and the fact that the consideration and disclosure of such new information is governed by s 473DD and s 473DE. Reference has already been made to s 473DA, pursuant to which Div 3 of Pt 7AA is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority.
69 It may therefore be accepted that, as the Minister submitted, the legislative scheme in Pt 7AA is different from the scheme in Pt 7 in a number of significant respects: see also the discussion in DGZ16 at [69], [74]–[76]. Further, as a consequence of s 473DA(1), except to the extent that procedural fairness overlaps with legal unreasonableness, “procedural fairness analysis is not the ‘lens’ through which the content of procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined”: see BVD17 (HCA) at [34].
70 It may also be noted that s 473EA, in Div 4 of Pt 7AA, requires a decision of the Authority on a Pt 7AA review to be accompanied by a written statement setting out both “the decision of the Authority on the review” and “the reasons for the decision”. In giving its reasons for its ultimate decision, to affirm or remit a decision upon review, the Authority is not, however, required to give reasons for the exercise or non-exercise of a procedural power such as that conferred by s 473DC(1) or s 473GB(3): see BVD17 (HCA) at [16]. In that case, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ rejected the contention that it might be inferred from the Authority’s failure to refer in its reasons to its statutory discretion in s 473GB(3) that the Authority had failed to consider the exercise of its discretion under that provision. Their Honours stated in BVD17 (HCA) at [40]:
Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered.
71 Apart from the absence of any reference in the Authority’s reasons concerning the arrest warrants to its statutory discretion in s 473DC, there is nothing else in the present case that might support the inference that the Authority failed to consider whether it should exercise its s 473DC(3) discretion to get further information regarding their authenticity. Since the Authority is not obliged to give reasons for its exercise or non-exercise of a procedural power of this kind, BVD17 (HCA) establishes that it cannot be inferred merely from the absence of a reference to the provision that the Authority failed to consider the exercise of its discretion under that provision. The circumstances were relevantly different in DPI17 because the Minister accepted that the Authority had in fact failed to consider the exercise of the power under s 473DC and, as the Court noted in that case, without the Minister’s concession, a referred applicant might have some difficulty in discharging the onus of proof of establishing that the Authority did not consider the exercise of the power in relation to the relevant issue.
72 The situation in DYK16 was also different because the Authority stated that it had considered the exercise of the power in s 473DC(3) and decided for the reasons it stated not to exercise it. CRY16 was also different because of the palpable absence of evidence on the critical issue, with the consequence that it was unable to make a finding about the appellant’s relocation to Beirut that was within “the bounds of reasonableness”, unless it in fact exercised its statutory power to get information about the impact of the relocation on the referred applicant.
73 For the foregoing reasons, ground 1 is not made out.
Ground 2
74 The joint judgment of Crennan and Bell JJ in SZMDS shows, jurisdictional error may be established on the basis of an irrational or illogical finding or illogical reasoning “on the way” to the ultimate conclusion: SZMDS at [132]. As we have seen, the appellant’s contention here was that there was jurisdictional error in the Authority’s decision because there was no rational or probative basis for the Authority’s failure to accept that the arrest warrants were genuinely issued. The appellant has a high standard to satisfy if he is to succeed. A finding cannot be said by a reviewing court to be irrational, illogical or unreasonable simply because it would have preferred a different finding to have been made: see SZMDS at [131]; CQG15 at [61]; Sabharwal at [45].
75 The relevant principles were summarised by a Full Court of this Court in Sabharwal at [45] as follows:
Illogicality, irrationality or legal unreasonableness in the reasons for an administrative decision may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. An illogical or irrational administrative decision, or an illogical or irrational finding of fact or reasoning along the way to making the decision, may establish jurisdictional error if, for example, the decision or finding is not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. Making a finding on a fact or issue in the application by drawing an inference or a conclusion which lacks a logical connection with the evidence might also be described as failing to give proper, genuine and realistic consideration to the fact or issue. However, any such decision or finding will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: SZMDS at [130]-[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J. As Allsop CJ observed in Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [21] the question is “whether a decision-maker could reasonably come to the conclusion” reached. If the conclusion is one upon which reasonable minds can differ, it will not be legally illogical, irrational or unreasonable.
76 It must also be borne in mind in considering the appellant’s submissions with respect to the Authority’s finding about the authenticity of the arrest warrants that a reviewing court, including a court deciding an appeal from a reviewing court, must be careful not to turn judicial review proceedings into a vehicle for a wholesale reconsideration of the finding.
77 In considering the irrationality issue raised by the appellant in ground 2, it is also necessary to have regard to the relevant statutory provisions that may bear on this issue before giving consideration to the relevant facts and circumstances in this particular case. In their joint judgment in DPI17 at [35], Griffiths and Steward JJ set out their understanding of the propositions that had been accepted in the plurality’s judgment in Plaintiff M174. In so doing, their Honours also helpfully identified and summarised the statutory provisions that bear on the irrationality issue, as follows:
The plurality’s judgment in M174 (Gageler, Keane and Nettle JJ) establishes the following propositions:
(1) as stated in the simplified outline of Pt 7AA in s 473BA of the [Migration 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 [Authority] 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 [Authority] “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The [Authority] 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 [Authority] 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 [Authority] considers the information to be relevant (at [24]);
(5) although there is no general requirement for the [Authority] to give to the applicant material provided to the [Authority] by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the [Authority] 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 [Authority] 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 [Authority] under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
See also [68] and following above.
78 In addition, as Griffiths and Steward JJ noted in DPI17 at [43]:
… In performing its overarching duty to review a referred decision, the [Authority] is exhorted “to pursue the objective of providing a mechanism of limited review that is efficient quick, free of bias and consistent with Division 3 (conduct of review)” (see s 473BA of the [Migration Act]. Performance of that duty is conditioned upon the [Authority] observing the obligations imposed upon it by Pt 7AA and by considering, in appropriate cases, whether or not to exercise the discretions which are conferred upon it. As the plurality noted in SZMTA at [9], with reference to the scheme of review under Pt 7 of the [Migration Act], some conditions “are implicit in the statutory scheme and some of which are implied through the operation of common law principles of interpretation”. Although those observations were directed to the review regime under Pt 7, we consider that they apply equally to the review regime under Pt 7AA. One of the implied conditions, which arises from the operation of common law principles of statutory construction, is the condition that consideration of the exercise of the statutory discretionary power of the [Authority] under s 473DC is subject to the test of legal reasonableness.
79 Accepting that irrationality and illogicality can be properly regarded as akin to the ground of legal unreasonableness, then the condition that statutory power is subject to the test of legal rationality and logicality also applies to the review regime in Pt 7AA: see SZMDS at [130]; Stretton at [2].
80 The general principles to which I have referred fall to be applied to the particular circumstances of the case, recognising that tests of rationality and logicality, like reasonableness, are fact dependent and call for a careful evaluation of the evidence before the Authority and of its reasoning process.
81 Notwithstanding the Authority’s advice that it could only consider new information in very limited circumstances, the appellant emailed the Authority that he had “received new evidence”, attaching his 9 September 2016 statutory declaration and the warrants of arrest: see [9]–[11] above. The declaration and the arrest warrants attached to it were apparently addressed to the delegate’s finding that the appellant was not “a person of interest to the Sri Lankan authorities or suspected of having LTTE links”.
82 The appellant’s failure to satisfy the Authority that the arrest warrants were “credible personal information” within the meaning of s 473DD(b)(ii) meant that s 473DD barred the Authority from considering them on its review of the delegate’s decision. The appellant failed to satisfy the Authority that the criteria in s 473DD(b)(ii) were met because he failed to satisfy the Authority that the arrest warrants were authentic, in the sense that they were “genuinely issued arrest warrants”. Regarding this lack of satisfaction, the Authority said no more than it had considered the referred “applicant’s statement that the CID gave these to his family”, and that:
I consider it unlikely that the applicant would have access to arrest warrants and I do not accept his account that these documents are genuinely issued arrest warrants.
83 This statement apparently referenced the appellant’s own statement about the provenance of the documents. It may be recalled that he had said in his statutory declaration that the “CID wanted to arrest me and gave ‘Warrant of Arrest’ documents to my family”. I accept that, as the Minister submitted, the Authority declined to accept that the arrest warrants were “credible” personal information in the sense they were capable of being seen as genuinely issued, because the Authority found the appellant’s statement that his family had received them from the CID to be implausible.
84 Bearing in mind the following considerations, I would uphold ground 2.
85 It may be accepted that the Authority does not need to have rebutting evidence before it to determine not to accept a factual assertion of a referred applicant: see CQG15 at [65]. The appellant did not in fact challenge this proposition. It may also be accepted that the Authority is not required to provide reasons in every instance for accepting or rejecting an item of evidence: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405; 168 ALR 407 at 423. It may further be accepted that the Authority’s reasons will not be insufficient if it finds that a factual claim is “implausible” on the basis that the claimant has repeatedly changed his evidence and the claim is inconsistent with the evidence concerning the conduct of other relevant actors: see WET040 at [28]–[29]. The reference in that case to “[p]opular perception and everyday experience” about the tendency of police officers “to act on significant inculpatory information” irrespective of its admissibility is to be understood to refer to the evidence in that particular case regarding the conduct of the police in coming to the complainant’s home when he reported the attack made on him. In any event, the appellant’s challenge here does not relate to the sufficiency of the reasons given by the Authority but to an absence of rationality in its reasons. This was not at issue in CQG15, Durairajasingham or WET040.
86 Plainly enough, “ordinary human experience” as it is sometimes called cannot take the place of evidence or rational analysis where that is needed. The law reports are littered with cases that illustrate this proposition. It was applied recently in DQM18 v Minister for Home Affairs [2020] FCAFC 110, a case in which the appellant challenged a decision of the Minister under s 501CA(4) of the Migration Act. In their joint judgment, Bromberg and Mortimer JJ rejected the Minister’s contention relying on WET040 that a finding – that the appellant, if returned to Sudan, could derive assistance from his sisters who were living in a refugee camp there – was open on the basis of “ordinary human experience” that siblings will endeavour to help each other, observing, at [52], that the respondent Minister “engaged in nothing more than speculation, without a probative basis”. As their Honours went on to say, at [53] and [58]:
None of this is to suggest such fact finding was out of the question. However, it needs a probative basis, and some intellectual engagement that is beyond stereotyping and speculation.
…
However… without some factual basis, or more detailed reasoning, it is not possible to describe the Assistant Minister’s reasoning as being based on the probabilities of ordinary human experience. There is no evidence the Assistant Minister was equipped (by any probative material) to assess what “ordinary human experience” in Sudan or South Sudan might look like in any way, let alone in the particular way or circumstances in which a sibling might be able to help or support another sibling. The situation was not that of a sibling arriving into Heathrow airport and having family in a relatively proximate part of the United Kingdom, a developed country familiar to an Australian decision-maker, where it might be said most people have a reasonable standard of living and can access other parts of the United Kingdom, including having reasonable freedom of movement. There was no “popular perception” or “everyday experience” for the Assistant Minister to draw on about Sudan and South Sudan: at least, none which is apparent on the evidence. …
87 A similar analysis was made in Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 144, which also concerned a challenge to a decision under s 501CA(4) of the Migration Act. The appellant’s submission was that it was not open to the Minister to conclude that English was widely spoken in American Samoa and Samoa and the appellant and his family could access suitable health and welfare services there, in the agreed absence of any objective evidentiary material to support the finding: see Viane at [31]. In accepting this submission, Kerr and Charlesworth JJ said, at [44], that:
[I]t cannot be said that the facts stated by the Minister are commonly known. Unlike the cultural, linguistic and political circumstances in America Samoa and Samoa, the circumstances in countries such as New Zealand and the United Kingdom are matters of common knowledge …. [T]he proposition that there are comparable welfare systems as between Australia and the United States of America is neither notorious nor patently correct… Similarly, it is not a notorious fact that English is widely spoken in American Samoa and Samoa. …
88 As already noted, the Minister’s contention was that the Authority could have regard to “popular perception and everyday experience”, which was relevantly that, on account of their coercive nature, arrest warrants cannot be accepted by an agent of the person to be arrested, citing WET040. As I have said, however, the statement in WET040 on which the Minister relied must be read in context, and that context shows that the referenced statement had nothing to do with this case.
89 I accept, however, that as the Minister submitted, the Authority declined to accept that the arrest warrants were “credible” personal information in the sense they were capable of being seen as genuinely issued, because the Authority found the appellant’s statement that his family had received them from the CID to be implausible. The issue is whether this preliminary finding under s 473DD(b)(ii), which had the effect of excluding the arrest warrants from consideration in the review, was irrational or illogical in the legal sense. As we have seen, the Minister contended that the Authority’s finding was not relevantly irrational or illogical because it was a matter of “ordinary human experience” or “popular perception and everyday experience”. For the following reasons, I do not accept this contention.
90 In Australia there is, I accept, a general familiarity with the fact that a police officer may arrest a person under the authority of an arrest warrant; and that the warrant authorises the use of proportionate force by the police officer against the suspected offender in order to arrest and detain him or her. In this sense, an arrest warrant authorises a degree of coercion. This much perhaps can be accepted as a matter of “ordinary human experience” of the operation of arrest warrants in Australia. As we shall see, however, it does not follow from this that a third party having some connection with the suspected offender cannot be informed of the outstanding warrant, perhaps even being provided with a non-executory copy. It is important to note in this context that, in his statutory declaration, the appellant merely stated that the arrest warrants had been given to his family, and not that they had been given to his family as his agent or to give to him.
91 Beyond this general familiarity, there is no reason to believe that the operation of specific aspects of the law with respect to arrest warrants in Australia forms part of the “popular perception and everyday experience” to which the Minister referred in support of his submission that the Authority’s assessment about the plausibility of the appellant’s account about the provenance of arrest warrants said to be issued in Sri Lanka was simply a matter of common sense.
92 The following brief discussion of the law in Victoria regarding warrants to arrest shows that knowledge of an outstanding warrant is in fact on occasion conveyed to a third party with an interest in the welfare of the suspected offender, notwithstanding the coercive nature of the authority that it confers. I turn to the Authority’s position with respect to the law and practice regarding arrest warrants in Sri Lanka thereafter.
93 I interpolate here that the law relating to arrest warrants in Australia is broadly similar across all Australian jurisdictions although this law varies in its details from state to state, and in federal and territory jurisdictions. The following account focusses on the law in Victoria merely by way of example. I acknowledge, of course, that this law has no application to the facts and circumstances in the appellant’s case.
94 Like the applicable law in other Australian jurisdictions, much of the law in Victoria with respect to warrants to arrest is derived from statute. The Magistrates’ Court Act 1989 (Vic) applies to warrants generally and to warrants to arrest specifically: see ss 57 to 59 and ss 61 to 65. A review of this field of the law indicates that over time specific practices and procedures developed to take account of local conditions and community expectations: see, for example, Richard G Fox and Nadia M Deltondo, Victorian Criminal Procedure: State and Federal Law (The Federation Press, 2019), at [4.2.3] referring to statutory amendment to allow the electronic transmission of warrants from the relevant courts to Victoria Police to overcome delays in paper work. In Victoria too, a practice developed whereby police officers informed the Victorian Aboriginal Legal Service (VALS) of the existence of outstanding arrest warrants for the arrest of indigenous persons: see Parliament of Victoria, Law Reform Committee, Warrant Powers and Procedures, (Government Printer, Melbourne, November 2005), pp lvii, 475. The Committee recommended that the Police and the VALS formalise an agreement to notify the VALS of all outstanding arrest warrants for indigenous people where practicable and reasonable to do so: see p 475.
95 Furthermore, although one cannot make too much of this here, under the law in Victoria the attendance in court of an alleged offender can be secured by either a warrant to arrest, or by a summons that may be served by leaving a copy for the alleged offender at his or her last or most usual place of residence with a person who apparently resides there and is aged 16 or more: see Fox and Deltondo, at [4.3.6.1]. Respecting the practice in Victoria, Fox and Deltondo state that, generally speaking, the issuing officer has discretion whether to issue an arrest warrant or summons to answer allegations in court, and that there is a legislative preference to proceed by summons: see Fox and Deltondo at [4.2.3.1]. Finally, it may be noted that, in Victoria, there can be more than one copy of a warrant to arrest, with not all being execution copies, and a warrant to arrest may be executed even though not in the possession of the person making the arrest at the time: Fox and Deltondo at [4.2.3.3].
96 This brief excursion into the law of one Australian jurisdiction indicates that, notwithstanding the warrant authorises a degree of coercion, there are circumstances in which a police officer may notify a third party on the suspected offender’s “side” of an outstanding warrant. Although not relevant to Sri Lankan practice regarding arrest warrants at the relevant time, this excursion indicates that no decision-maker acting rationally could determine that a statement to the effect that a copy of an arrest warrant had been left with a third party connected to the suspected offender was implausible unless the decision-maker had specific knowledge or some relevant evidence about the relevant law and practice.
97 Even if well informed about law and practice in the decision-maker’s home country, this information cannot reliably inform an assessment of the law and practice with respect to arrest warrants in a very different legal system, such as that of Sri Lanka. As Hathaway and Foster observed “[r]eliance on plausibility is prone to inferences based on assumptions of rationality often at odds with conditions in the country of origin”: see James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd ed, 2014), at p 148. This is especially so when assumptions are made about the operation of a legal system with a different legal heritage to that with which the decision-maker is familiar.
98 The complexity of Sri Lankan history over the last 400 years, including Portuguese, Dutch and British colonial interests, and the diversity of its people, their languages and religious beliefs, is well-known. This complexity of the Sri Lankan legal system is elegantly described by Kankani Tantri Chitrasiri, Sajini Fernando and Aslesha Weerasekara, “Sri Lanka” in Anselmo Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Hart, 2019), at p 272 as follows:
The legal, political and administrative fabric of the republic reveals its colonial underpinnings and the plurality of laws in the country. The personal and territorial legal systems of the country include the Kandyan law, Tesawalamai law and Muslim law which are reflective of the inherent diversity in the country. Persons who are governed by these personal laws are governed in other respects by Roman-Dutch law, which is the common law of the country applicable to everyone. Additionally, the laws of Sri Lanka have been influenced greatly by English law as well as the Indian and Anglo-American legal systems, particularly in relation to commercial litigation.
Although the laws of Sri Lanka with respect to criminal procedure have apparently also been influenced by English law, they have also apparently evolved over time to meet local conditions: see G L Peiris, Criminal Procedure in Sri Lanka (Pannipitiya: Stamford Lake Private Ltd, 1999), chapters 1 and 5, especially, pp 113 and following.
99 This is not an occasion to attempt to understand and describe the law of Sri Lanka relating to arrest warrants at the time they were seemingly issued in respect of the appellant. The contents of that law are not in fact at issue in these proceedings, and would in any event be a matter to be proved on admissible evidence: see, for instance, Staindl v Frydenberg [2020] FCAFC 41; 276 FCR 301 at [144].
100 It suffices to note that reference to the work of G L Peris indicates that the applicable law in Sri Lanka is no less complex than that of the relevant law of Victoria and is also evolutionary in nature, depending on local conditions and community responses: see, for example, G L Peiris, , chapter 5.
101 In its reasons (which are thus the focus of this ground): see Singh at [46]–[47]; BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170 at [51]) the Authority held that the arrest warrants apparently issued for the arrest of the appellant were not “credible” personal information for the purpose of s 473DD(b)(ii) in the sense they were not capable of being seen as genuinely issued because the Authority held his statement that the CID gave the arrest warrants to his family to be implausible. There is nothing that might indicate that the Authority made this finding on the basis of any objective evidence. The Minister defended the finding on the only basis that was open to him in the circumstances of the case: that is, on the basis of “popular perception and everyday experience” or “ordinary human experience”. The law and practice with respect to arrest warrants in Sri Lanka, including in the region where the warrants in question purported to be issued, are not, however, matters that can be determined by the Authority by reference to anything resembling everyday experience. These are not matters of common, everyday knowledge. The fact that the warrant authorises a degree of coercion against the suspected offender says little, if anything, about any practice of notifying third parties connected in some way to the suspected offender, perhaps by leaving a copy of the arrest warrant with them, about the existence of an outstanding warrant. The Authority’s finding that the warrants were not capable of being seen as credible because the appellant’s account of the provenance was implausible was based on mere speculation and conjecture. There was no logical or rational connection between this finding and the evidence before the Authority because there was no such relevant evidence. There was no logical or rational connection between this finding and “popular perception and everyday experience” or “ordinary human experience” because there was no relevant “everyday experience” or “ordinary human experience” about the practice and procedure regarding arrest warrants in Sri Lanka. The result was an illogical or irrational finding along the way to the Authority’s ultimate decision.
102 It seems to me that this finding was material in the sense explained in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [31]. As counsel for the Minister said with respect to the arrest warrants at the hearing, “[i]f they were genuine, they’re centrally relevant. If they’re not genuine, there’s … nothing else that would justify receiving the documents”. This is evidently correct. If the Authority were satisfied that the criteria in s 473DD(b)(ii) were met, it may be inferred, as the Minister suggested during the hearing, that it might also have been satisfied that the criterion in s 473DD(a) was met. Had the Authority considered and proceeded to receive the new information constituted by the arrest warrants, then it might have assessed the appellant’s claim differently that he was a person of interest to the Sri Lankan authorities, with suspected links to the LTTE. In this event, the Authority’s ultimate decision could have been different. In this circumstance, the primary judge should have held that Authority’s finding had no logical, rational or probative basis and that its decision was affected by jurisdictional error. There was error in this regard.
103 As the Full Court indicated in Sabharwal at [45], making an illogical or irrational finding or an error this kind “might also be described as failing to give proper, genuine and realistic consideration to the fact or issue”. I note in passing that in BNV18 at [25]–[43], Murphy J accepted the appellant’s submission in that case that the Authority had made an error of the latter kind with respect to an arrest warrant not dissimilar to warrants in this case and said to be issued in Sri Lanka to authorise BNV18’s arrest. His Honour was also satisfied that the relevant errors were material in the relevant sense.
104 For the foregoing reasons, I would uphold ground 2.
Ground 3
105 There was little dispute about the law relevant to ground 3. As will be apparent, the parties accepted that within the framework created by Pt 7AA the Authority conducts a review, generally speaking, on the basis of the “review material” provided to it by the Secretary under s 473CB: see s 473DB(1). There are only limited circumstances when the Authority can consider “new information”, being information that the Authority considers relevant and that was not before the Minister when the decision to be reviewed was made. That is, the Authority may consider “new information” only if it meets the “exceptional circumstances” test in s 473DD(a) and the criteria in either ss 473DD(b)(i) or (ii): see AUS17, discussed above at [32]–[35].
106 In the present case, the Authority’s reasons record at [5] that it was not satisfied that the documents could not have been provided to the Minister before the decision was made. In consequence, the referred applicant did not satisfy the Authority that the “new information” met the criteria in s 473DD(b)(i). There is no challenge to this finding. Rather, the appellant’s submission is that the Authority applied the wrong test in deciding that the criteria in s 473DD(b)(ii) were not met. This provision requires the Authority to be satisfied, amongst other things, that that the “new information’ is “credible personal information”. The Authority was not so satisfied in this case. Rather, it found, at [6], that the arrest warrants did not contain “credible personal information” about the referred applicant.
107 In CSR16 at [41]–[42], Bromberg J explored the s 473DD(b)(ii) criteria, stating as follows:
In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
The criteria [in s 473DD(b)(ii)] is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
108 In CSR16, Bromberg J held that the Authority had misconstrued s 473DD(b)(ii), as it had assessed whether the “new information”, which was relevant to the referred applicant’s claims to fear harm from the MQM, was “credible” by reference to the “review material” provided to it by the Secretary under s 473CB, including submissions made by his legal representative after his protection visa application interview, and in so doing imposed “a higher standard of satisfaction than the criteria requires”: CSR16 at [43]. The Authority stated that it was not satisfied that the applicant had a genuine fear of the kind claimed as the review material did not include a claim to fear harm from the MQM because the MQM would know he had made complaints against the MQM in Australia: see CSR16 at [35]. This led Bromberg J to say, at [43]:
…The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error. …
In this way, the Authority’s assessment of the credibility of the new information was, in substance, an assessment of the referred applicant’s claim that he feared harm from the MQM, rather than an assessment of whether the new information was capable of being believed.
109 The analysis of s 473DD(b)(ii) in CSR16 was referred to with apparent approval by the Full Court of this Court in CLV16 at [17] and without disapproval in BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24 at [55]. Single judges exercising appellate jurisdiction have also expressed approval: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [58].
110 In BTW17, the Court (Besanko, Mortimer and Jackson JJ) upheld the Minister’s appeal on the ground that the Federal Circuit Court erred in finding that there was no discussion by the Authority in its reasons as to whether the new information was capable of being believed: BTW17 at [84]. Besanko J declined to address the Minister’s alternative ground challenging the correctness of CSR16: see BTW17 at [5]. Under this alternative ground, the Minister submitted that CSR16 had wrongly introduced a distinction between the preliminary and deliberative stages in a Pt 7AA review when the scheme makes no such distinction: see BTW17 at [40]. In their joint judgment, Mortimer and Jackson JJ did consider this question, however.
111 In BTW17, Mortimer and Jackson JJ expressed the clear view, at [55] and [62], that CSR16 was correctly decided, and that Bromberg J’s construction of s 473DD(b)(ii) should be accepted. Their Honours’ ultimate conclusion depended on the statutory framework created by Pt 7AA. Of this scheme, Mortimer and Jackson JJ said, at [70]–[75], that:
…[T]he parameters for the Authority’s review task are set by the “primary rule” in s 473DB, read with the additional powers conferred on it by ss 473DC, 473DD and 473DE. The purpose of each of those additional powers is the same: it is to regulate the circumstances in which the Authority can depart from the “primary rule” in s 473DB. In each case, in deciding whether or not to exercise those powers, the Authority is doing so for the purposes of deciding what should be the scope of the material available to it for its review task.
The precondition in s 473DD(b)(ii) is but one aspect of these powers, and the approach taken to its construction should reflect its purpose as we have described it. In substance, it is no different to the Authority deciding whether to invite a person to an interview under s 473DC(3)(b): in both cases, the Authority is deciding what material should be before it on its review.
Just as when a Tribunal decides whether to receive evidence or information, the exercise of these powers can and should occur in the context of the review material already before the Authority, and on which according to the primary rule it should conduct its review. Whether to invite a person to an interview, whether to “get” new information of its own motion, or whether to accept “new information” proffered to it by a visa applicant – in all these circumstances the Authority is entitled to reflect on and assess the review material already before it – but for the purpose of deciding whether to depart from the primary rule and, importantly, bearing in mind its function of considering the protection visa application afresh and for itself. Assessing the proposed new material (or interview) in this context will assist the Authority in assessing relevance, in assessing how critical the additional information is to its review, and in assessing whether the preconditions laid out by Parliament can be established. To take an obvious example from the suite of provisions – in order to decide if new information could have been put before the delegate, the Authority is likely to have to consider what was put before the delegate.
However, there comes a point at which such an assessment will go too far, and in reality will equate to, or become indistinguishable from, the Authority’s reasoning on its own – fresh – consideration of the protection visa application. That would not be the correct approach, because that is not the purpose for which the power is conferred.
As procedural powers designed to permit the Authority in specified and limited circumstances to depart from the primary rule in s 473DB and to have available to itself more material than the delegate did, the Authority is confined to a consideration which is compatible and consistent with this purpose.
That is why, in our opinion, Parliament has used the word “credible” in s 473DD(b)(ii) to describe the character of the information a visa applicant seeks to put forward. As Bromberg J said, “credible” means capable of being believed: it is the decision whether the information has that character, as well as the character of being “personal” to the visa applicant, which is to be made at this procedural stage, for the purpose of deciding what the scope of the review material should be, and whether there should be a departure from the primary rule.
112 Their Honours concluded, at [77]:
Viewed in its context, as Bromberg J identified [in CSR16] at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to “new information” proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are “exceptional circumstances” justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii). As the Full Court observed in BDY18 at [23]-[26], there is some overlap, and the factors in (b) may well inform the factors in (a).
113 Section 473DD(b)(ii) of the Migration Act required the Authority to decide whether the referred applicant had satisfied it that the arrest warrants were credible personal information that was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims. It was not in dispute that the arrest warrants were “not previously known” to the Authority. They were first provided to the Authority as part of the referred applicant’s statutory declaration of 9 September 2016. The Minister accepted that, the arrest warrants, if accepted to be genuine, may have affected consideration of the referred applicant’s claims. There was also no real question that the arrest warrants were “personal” information in that they specifically concerned the referred applicant (being the appellant in the appeal).
114 In deciding that it was not satisfied that the arrest warrants were “credible” information, the Authority addressed the issue of their authenticity. The Authority was not satisfied that the warrants were “genuinely issued arrest warrants” because it did not accept the referred applicant’s account that the CID gave them to his family. It does not seem to me that the Authority erred in the way claimed by the appellant in his third ground. Information will not be credible, in the sense of “capable of being believed” if it is not genuine. Thus, the Court in BTW17 held that the Authority’s finding that the 2015 newspaper article was not genuine was a finding that the document was not capable of being believed: see BTW17 at [84] (Mortimer and Jackson JJ, with whom Besanko J agreed at [1]). In this case, the Authority was not satisfied that the arrest warrants were authentic: it was therefore not satisfied that the information in them was credible. The Authority did not determine that the documents were not credible based on any broader assessment of the applicant’s credibility arising from the review materials. It did not therefore “jump ahead”; rather, it considered whether it was satisfied the information was “credible” personal information for the purpose of deciding whether to depart from the primary rule, which limited its consideration to the review material provided to the Authority under s 473CB.
115 For these reasons, I would reject ground 3.
Disposition
116 For the reasons stated, the appellant has established that the Authority’s decision was affected by jurisdictional error of the kind identified by the appellant in ground 2 of his further amended notice of appeal dated 7 March 2019.
117 Accordingly I would make the following orders:
1. The appellant have leave to rely on his proposed further amended notice of appeal dated 7 March 2019.
2. The appeal be allowed.
3. Order 1 of the orders made by the Federal Circuit Court of Australia on 8 November 2017 be set aside and in lieu thereof it be ordered that:
(a) a writ of certiorari be issued to the Immigration Assessment Authority quashing the decision made on 21 September 2016 to affirm the decision not to grant the appellant a Temporary Protection (Subclass 785) visa;
(b) a writ of mandamus be issued to the Immigration Assessment Authority requiring it to consider and determine the conduct of the review and the review referred to it on 15 August 2016 according to law and in accordance with these reasons.
4. The first respondent pay the appellant’s costs of the appeal, to be assessed if not agreed.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kenny. |
