Federal Court of Australia

EBP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 332

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit Court (the FCC) made on 3 June 2020 are set aside.

3.    A writ of certiorari be issued quashing the affirmation by Immigration Assessment Authority (the IAA) on 16 September 2019 of the decision of the Minister’s delegate to refuse the Appellants’ applications for Safe Haven Enterprise Visas.

4.    The matter be remitted to the IAA so that another member may undertake the review required by s 473CC of the Migration Act 1958 (Cth) in accordance with law.

5.    The First Respondent is to pay the Appellants’ costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the FCC.

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

REASONS FOR JUDGMENT

WHITE J:

1    The five appellants appeal against a decision of the Federal Circuit Court (the FCC) dismissing their application for judicial review of a decision of the Immigration Assessment Authority (the IAA).

2    The first two appellants are husband and wife. The third, fourth and fifth appellants are their children.

3    The husband and wife are nationals of Sri Lanka as are their first two children who were born in Sri Lanka. The fifth appellant was born in Australia. The first four appellants arrived at Christmas Island on 3 August 2013 as unauthorised maritime arrivals.

4    Following the lifting of the bar, all of the appellants applied for a Safe Haven Enterprise Visa (SHEV) on 15 November 2016. Those applications were refused by a delegate of the Minister on 28 February 2017 and the refusals were affirmed on review by the IAA on 4 April 2017.

5    The appellants then commenced judicial review proceedings in the FCC. They were unsuccessful at first instance (BYA17 v Minister for Immigration [2018] FCCA 865) but successful on their appeal to this Court: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; (2019) 269 FCR 94. The applications then returned to the IAA for the review of the delegate’s decision to be conducted in accordance with law.

6    On 16 September 2019, the IAA (differently constituted) again affirmed the decision of the delegate. The appellants brought an application for judicial review of the second IAA decision in the FCC but were unsuccessful: EBP19 v Minister for Immigration [2020] FCCA 1392. The present appeal is brought against that decision.

7    In these reasons, the IAA decision to which I refer is, unless otherwise indicated, the second IAA decision.

8    The appellants’ Notice of Appeal contains three grounds supported by extensive particulars. However, at the hearing, counsel for the appellants indicated that they did not pursue the particulars [1.18]-[1.23] to the first ground of appeal and did not pursue Ground 3 in its entirety.

9    Ground 1, which was the principal ground argued by counsel, raises the IAA’s application of s 473DD of the Migration Act 1958 (Cth) (the Act) concerning the circumstances in which “new information” may be considered by the IAA.

Factual setting

10    The claims for protection by the second, third, fourth and fifth appellants were based on the claims of the first appellant. That is to say, they did not claim any additional circumstances entitled them to protection and relied on their membership of the same family unit – see s 36(2)(b) and (c) of the Act.

11    As there has been no change in the basis on which the first appellant claims protection, it is convenient to repeat in substance the summary of his claims given by the Full Court in BYA17, at [7].

12    The appellants’ claims to fear harm if returned to Sri Lanka stem from the first appellant’s unknowing involvement in drug smuggling and from him having been wrongfully accused of involvement in people smuggling. The first appellant explained this claim in the statutory declaration lodged with his application for the SHEV:

(1)    in 2013, the first appellant accepted a job on a fishing boat. After the first trip, he became concerned that the owner of the boat, Mr Y, was using the boat for drug smuggling. He declined an offer for further work on the boat because he feared becoming involved in the criminal activity and the danger that it would present to him and his family;

(2)    the first appellant then obtained work which required him to be away from his family for an extended period. During his absence, a number of armed men forced their way into the appellants’ home, searched for the first appellant, and said that they would kill him if they found him. The second appellant was injured in the attack;

(3)    initially the first appellant was confused as to why these men had attacked his home and made threats. However, he later learnt that, on the fishing trip which he had declined to join, the boat had been intercepted by the authorities who had found drugs. As such, he considered that the smugglers must believe that he “dobbed them in”, given the timing and his knowledge of the planned trip;

(4)    the first appellant was afraid that the drug smugglers would carry out their threats against him, given the power exercised by drug smugglers in Sri Lanka. As a result he went into hiding while his family were supported by his wife’s family. He said that his wife and children “saw that they were being watched all the time by men who would drive past, and they could tell that these men were waiting to see if [I] tried to rejoin my family.”

(5)    the first appellant explained that:

I did not go to the police at any point during this time because I knew that drug smugglers have connections and influence with politicians and the authorities and I didn’t know who to trust. It is very easy for the Sri Lankan authorities to make a poor person like me “disappear” and I knew that this happened regularly. I had no proof of what happened and no one could help me.

(6)    the first appellant and his family came to Australia with several other families on a boat operated by people smugglers. He later found out that the boat’s owner, Mr K, had falsely reported that he had stolen his boat so that Mr K would not be connected to the smuggling operation. The first appellant also said that he was told that his details had been given to Sri Lankan airports with an order for his arrest for the theft of the boat;

(7)    the first appellant said that he feared that, if he returned to Sri Lanka, he would be arrested by the Criminal Investigation Department (CID) on arrival and put in jail where he would be at risk of being killed. Specifically he claimed that:

… The corrupt officers and authorities who are working with the drug smugglers will then try and kill me. If the CID or authorities don’t kill me, the drug smugglers in prison will kill me because they think that I am the one who dobbed them in. It is not only [Mr Y] who blames me. In [2013], the Sri Lankan authorities arrested many drug smugglers. The smugglers had been running their operations successfully for many years, and so the timing of my involvement with [Mr Y] and his arrest and my departure to Australia means they are convinced that I am responsible. There are therefore many drug smugglers in prison who want to kill me.

If I am not jailed by the CID and am released into the community, I will be found by the drug smugglers who are not in prison and will be killed. There is no prospect that I can go into permanent hiding with my wife and children to avoid detection. There is nowhere in Sri Lanka that I will be safe.

13    It has not been put in issue at any stage that these claims, if accepted, are capable of supporting a claim for protection under s 36(2)(a) of the Act as elaborated in ss 5H-5L, as well as a claim for complementary protection under s 36(2)(aa).

Statutory provisions and principles

14    Section 473DB(1) of the Act requires the IAA to review fast track reviewable decisions referred to it under s 473CA by considering the same material as was considered by the delegate, without accepting or requesting new information and without interviewing the referred applicant. However, s 473DC(1) of the Act authorises the IAA, subject to the provisions within Pt 7AA, to “get” any documents or information which were not before the Minister when the Minister made the decision under s 65 and which the IAA considers may be relevant (defined as “new information”).

15    Section 473DC(2) indicates that the IAA is not obliged to “get, request or accept” any “new information” and s 473DC(3) indicates that the IAA may “invite” a person to give “new information”. However, s 473DD operates to confine the circumstances in which the IAA may consider new information. It provides:

473DD Considering new information in exceptional circumstances

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

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

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

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

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

16    As is apparent, s 473DD contains two preconditions, both of which must be satisfied before the IAA can consider new information of the kind defined in s 473DC(1). The first precondition is that the IAA be satisfied that there are “exceptional circumstances” justifying its consideration of the new information. The second precondition, which applies only to new information provided by the referred applicant, contains internal alternatives, so that satisfaction of one or other of the alternatives will satisfy it. The first of the alternatives is satisfaction by the IAA that the new information could not have been provided to the Minister before the s 65 decision was made. The second is the IAA’s satisfaction that the new information is “credible personal information” which, had it be known by the decision-maker, might have affected the consideration of the referred applicant’s claims. The effect is that the IAA cannot consider any new information at all unless satisfied that there are exceptional circumstances justifying it doing so and, if the visa applicant is the source of the information, is satisfied as to one or other of the elements in subpara (b): BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; (2020) 273 FCR 170 at [23].

17    Section 473DD has been considered by the High Court in a number of decisions, most recently in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 384 ALR 196 in which the plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) stated a number of propositions of present relevance:

(a)    having regard to its place in the Pt 7AA regime, s 473DD obliges the IAA to assess the new information which it has physically obtained against the criteria in subparas (a) and (b), at [6];

(b)    if satisfied that those criteria have been met, the IAA must take the new information into account in making its decision on the review, assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding, at [4]. Conversely, if the s 473DD criteria have not been met, the IAA cannot take the new information into account in making its decision, at [6];

(c)    the IAA must first assess new information obtained from a referred applicant against each of the subpara (b) criteria, and only then against the subpara (a) criterion of exceptional circumstances, at [11];

(d)    the IAA’s satisfaction of either of the subpara (b) criteria is a circumstance which must be factored into the assessment of the existence of exceptional circumstances for the purposes of subpara (a), at [11]-[12]; and

(e)    a determination by the IAA of the subpara (a) criterion before it has assessed the new information against the subpara (b) criteria is jurisdictional error, constituted by the failure to take account of a mandatory relevant consideration in the application of the subpara (a) criterion, at [12].

18    The plurality in AUS17 confirmed in effect, in [4] and [6], that s 473DD in the context of Pt 7AA contemplates a two stage process: consideration of whether the new information can be considered because it satisfies the s 473DD criteria and, if so, consideration of that information with all the other information on the review in the determination of the visa application.

19    Other settled matters concerning the application of s 473DD include:

(a)    the term “exceptional circumstances” in subpara (a) is to be given a broad meaning and requires that consideration be given to all the relevant circumstances: Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, (2017) 257 FCR 111 at [104]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110, (2018) 264 FCR 249 at [51]. What is required is a contextual evaluation having regard to all the circumstances of the case: BDY18 at [25];

(b)    the matters which will amount to “exceptional circumstances” justifying consideration of the new information for the purposes of subpara (a) are not capable of exhaustive statement. They need not be unique, unprecedented or very rare but cannot be circumstances which are regularly, routinely or normally encountered: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [30];

(c)    the exceptional circumstances may comprise a single factor or be found in a number of matters considered collectively: AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111; (2018) 162 ALD 442 at [13]. Even though no one factor may be exceptional, the circumstances in combination may be such as reasonably to be regarded as exceptional: AQU17 at [7]-[8];

(d)    the IAA’s satisfaction that the new information could not have been provided to the Minister at the time of the s 65 decision may contribute to its satisfaction that there are exceptional circumstances justifying consideration of the new information: CQW17 at [48]; CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192, (2017) 257 FCR 148 at [17]-[18], DYS16 v Minister for Immigration and Border Protection [2018] FCAFC 33, (2018) 260 FCR 260 at [31]-[33]; CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203 at [91];

(e)    subparagraphs (b)(i) and (ii) involve different considerations. The former requires a factual enquiry as to whether or not the new information could have been presented to the Minister, whereas the later requires an evaluation of the significance of the new information in the context of the referred applicant’s claims more generally: BBS16 at [105];

(f)    the “personal” information to which subpara (b)(ii) refers is information about the referred applicant which was not previously known to the Minister, even if known to the referred applicant: Plaintiff M174 at [33]. The plurality in Plaintiff M174 (Gageler, Keane and Nettle JJ) continued by saying that all that the IAA needs to be satisfied about in order that the subpara (b)(ii) criterion be met in respect of new information is that: “(1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information 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, the information may have affected the consideration of the referred applicant’s claims”, at [34];

(g)    an error in the formation of the state of satisfaction as to one precondition may affect the other: BDY18 at [26];

(h)    it is the satisfaction of the IAA which is required by both subparas (a) and (b). Accordingly, it is for the IAA, and not the Court on review, to form the required state of satisfaction: BDY18 at [28]; and

(i)    although the plurality in AUS17 said at [11] that logic and policy demand that the IAA assess new information obtained from a referred applicant before considering the subpara (a) criterion, this does not require a formulaic approach. The compliance or otherwise by the IAA with its duty is to be determined as a matter of substance (APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23 at [79]); AQU17 at [16]) and the evidence of the compliance may be implicit in its reasons (CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [112]).

20    The requirement that the personal information to which subpara (b)(ii) refers be “credible” has been considered in a number of the authorities. In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J said:

[41]    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.

[42]    The criteria 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” … that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

(Citation omitted)

21    This understanding of the requirement that the personal information be credible appears to have been endorsed by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [17]. As the reasons of Mortimer J in ALJ18 v Minister for Home Affairs [2020] FCA 491 at [24]-[25] indicate, the Minister has in other appeals to this Court challenged the correctness of CSR16. However, a majority in a Full Court (Mortimer and Jackson JJ) has held that CSR16 was correctly decided: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159 at [62]. In this case, no submission was made by the Minister to the effect that the approach in CSR16 set out above was wrong and should not be followed. I note that the two stage approach suggested in CSR16 is consistent with the general approach stated by the plurality in AUS17 at [6].

The new information

22    Following the decision of the Minister’s delegate on 28 February 2017, the appellants’ migration agent provided a written submission on 27 March 2017 to the IAA. Much of the submission comprised a critique of the reasoning and approach of the Minister’s delegate, and included a well-articulated complaint that the first appellant had been denied procedural fairness by reason of the delegate’s failure to engage with his evidence at the interview or subsequently, so as to give him the opportunity to respond to the matters relied upon for the refusal of the SHEV. The agent sought an opportunity before the IAA to remedy the position, including by providing new information. The context makes it plain that the agent relied on the denial of procedural fairness as a significant part of the explanation why the new information had not been provided to the delegate.

23    It is not necessary for present purposes to refer to all the new information and documents which the agent provided. Relevantly, the agent said that, following the delegate’s decision, the first appellant’s mother in Sri Lanka had searched for anything that she could find to support her son’s application. As part of this search, she had approached the Sri Lankan Police with a view to obtaining evidence to support the first appellant’s claims that he had been reported to the Sri Lankan authorities and had been charged with stealing a boat. The agent provided a certified translation of a report submitted to the Negombo Magistrate’s Court, saying that this was all the first appellant’s mother had been able to obtain. The report was in the nature of a prosecutor’s presentation of a charge to the Negombo Magistrate’s Court. It concerned two persons who the agent said had travelled on the same boat to Australia as had the first four appellants. The two persons were charged on their return to Sri Lanka in 2014 with having left Sri Lanka illegally. The report set out the circumstances leading to them being charged. It identified two persons who, with the two accused, had acted as “chief pilots” on the boat. Single names only of these two persons were given: the first matched one of the first appellant’s names and the second matched that which the first appellant had given to the delegate on 10 January 2017 as the name of the person who had been in charge of the boat. The report indicated that investigations were continuing to be conducted in relation to the ownership of the boat, as to whether it had departed Sri Lanka without the knowledge of the owner, and as to other persons who “were aiding and abetting in organising” the boat’s journey. The agent submitted that these matters corroborated the first appellant’s claim that he had been accused of stealing the boat and of being a pilot on it.

24    After the Full Court in BYA17 set aside the first IAA decision, the appellants’ agent made a further submission, dated 1 April 2019, to the IAA. This submission included copies of the submissions previously made to the delegate and to the first IAA, and included some new documents, comprising a transcript of the SHEV interview of the first appellant by the delegate on 10 January 2017, the transcript of the hearing before the Full Court on 23 August 2018, the judgment in BYA17, and some new country information. In the 1 April 2019 submission, the agent elaborated a submission that the IAA should have regard to the Negombo Magistrate’s Court report, repeating the submission that the first appellant had been denied procedural fairness by the delegate.

The IAA’s consideration of the new information

25    The IAA addressed its ability to consider the various items of new information at an early stage in the reasons.

26    In relation to the Magistrate’s Court report, the IAA noted, first, that the report referred to the boat having left Sri Lanka on 19 July 2013 from Chilaw, whereas the appellants’ SHEV applications stated that they had departed on the night of 12/13 July 2013 from a different location. The IAA then noted the agent’s submission of 1 April 2019 that the complainant may have been inaccurate deliberately in the report “so as to deflect the police from turning their enquiries to the owner of the boat” but noted that, even if that was the case, the report did not refer to the first appellant as being under any suspicion for the theft of a boat. The IAA then continued:

[10]    … The report refers to a person by the single name "I" (part of the first applicant's name) and a second person (who the first applicant has said was on the same boat as him) having acted as "other chief pilots" but it does not make it clear who those persons are or how they relate to this report. Further, the report does not request the authorities to place the first applicant (or the person with the similar single name) on a watch list at the airport, or direct that any person be arrested if they return to Sri Lanka. I also note that the first applicant has not claimed to fear harm because of his association with any person named in the report. I am not satisfied that this court report indicates any ongoing adverse interest in the first applicant. I am not satisfied that there are exceptional circumstances to justify considering this report.

(Emphasis added)

Ground One – the application of s 473DD

27    By Ground 1 in the Notice of Appeal, the appellants contend that the FCC Judge should have found that the IAA had failed to apply s 473DD properly, when concluding that the Negombo Magistrate’s Court report could not be considered as new information. This was so because the IAA had determined the “exceptional circumstances” criterion in s 473DD(a) without reference at all to the subpara (b) criteria, let alone considering them first, as AUS17 indicates is necessary. The submission was, in effect, that the IAA had failed, in its application of s 473DD, to consider all the relevant circumstances including the question of whether either of the two subpara (b) criteria was satisfied. In addition to AUS17, the appellants relied upon AQU17 at [7]-[8], [11]-[12] and BBS16 at [102], [104].

The reasons of the FCC

28    The FCC Judge said of this Ground:

[32]    The submission of the first applicant … was predicated on the assumption that on an objective view, the Report related to the boat on which the first applicant departed Sri Lanka, at least one of the named suspects was the boat owner and that the reference to a person who had one of the several names of the first applicant must have been a reference to the first applicant himself. In other words, that the Report provided potentially valuable corroborative material. The Reviewer had considerable reservations about all of those matters and for that reason concluded that exceptional circumstances did not exist to consider the court Report. In the reasoning process undertaken, the IAA can be seen to have considered the relevant circumstances in sub-s (b)(ii) because the relevant passages show that the information in the Report was assessed by reference to the claims the first applicant had made. The approach taken by the IAA was similar to that identified in AQU17:

“(T)he Authority, in substance, addressed as a factor bearing upon whether exceptional circumstances existed, whether the new information was credible information that, had it been known to the delegate, may have affected consideration of the appellant’s claims. It is not to the point that no express finding was made under s 473DD(b)(ii), as the exceptional circumstances test did not require an express finding to be made. The Authority plainly based its conclusion that exceptional circumstances did not exist upon its lack of satisfaction that the new information was credible”

(Citation omitted)

29    Earlier, at [31], the FCC Judge accepted that the IAA had not made a formal finding under s 473DD(b)(ii) and said that the position would have been clearer had the IAA made specific reference to the relevant parts of s 473DD being considered. The reasons at [32] indicate that the Judge considered that the IAA had had reservations about the credibility of three matters: first, the assumption that the Magistrate’s Court report related to the boat on which the first four appellants had travelled to Australia, secondly, that one of the persons named in the report was the boat owner and, thirdly, that the name matching that of the first appellant was in fact a reference to the first appellant. On this basis, the FCC Judge concluded that the IAA had made the assessment required by subpara (b)(ii). That is to say, the FCC Judge was satisfied that the IAA had, in substance, applied s 473DD correctly even though it had not referred to subpara (b) in express terms.

30    The FCC Judge delivered judgment before the delivery of the judgment in AUS17, so it was not possible for his Honour to have referred to it.

The Minister’s submissions

31    Counsel for the Minister emphasised that the IAA’s reasons should be read as a whole, citing Baker v Minister for Immigration and Citizenship [2012] FCAFC 145 at [43]-[45]. He also emphasised, in accordance with the authorities to which reference was made earlier, that the IAA’s compliance or otherwise with the duty imposed by s 473DD had to be determined as a matter of substance, so that the mere absence of express reference to the subpara (b) criteria was not material. Counsel submitted that, on a fair reading of [10] in the IAA’s reasons, it was evident that the IAA had made an assessment of the credibility of the matters in the Magistrate’s Court report and its capacity to affect consideration of the first appellant’s claims. That is to say, counsel supported the FCC Judge’s reasoning concerning subpara (b)(ii).

32    Counsel also submitted that it had been open to the IAA to conclude, in the assessment of subpara (b)(ii) criterion, that the Negombo Magistrate’s Court report did not satisfy the element of being information which, had it been known, may have affected the consideration of the appellants’ claims, citing CPP17 at [112]. He submitted that this was what the IAA had done, so that it should be concluded that it had addressed the subpara (b)(ii) criterion.

33    In relation to the subpara (b)(i) criterion, counsel submitted that the IAA’s reasons should be understood having regard to the submissions made to it by the appellants’ agent on 4 April 2019. He submitted that this submission had focused on the subpara (b)(ii) criterion with the consequence, as I understood it, that this made explicable the absence of reference by the IAA to the subpara (b)(i) criterion.

34    In relation to the agent’s submission that the delegate had denied the appellants procedural fairness (which he correctly regarded as a matter bearing on the subpara (b)(i) criterion), counsel submitted that the IAA had addressed this appropriately in [18] of its reasons:

The first applicant asserts that the interview was flawed and that it would be manifestly unreasonable for the IAA to deny the first applicant the opportunity to put his claims fully through interview. He asserts that he was denied the opportunity to present material at the primary stage and that his statutory declaration was never intended to be an exhaustive statement of claims. While not every fact will necessarily be included in a SHEV application, the first applicant in this case was assisted by a migration agent (and interpreter) to make his application and his accompanying statement included a reasonable amount of detail. He was assisted by an interpreter at the interview and his migration agent was present at that interview. Although the delegate did not raise any concerns or issues of credibility or plausibility with the first applicant, the agent did not raise any concerns with the conduct of the interview or indicate that the first applicant had not put his claims and evidence forward. The second applicant has not claimed that she was unable to provide her claims and evidence, or that she has been denied an opportunity to do so.

(Emphasis added)

35    Finally, counsel for the Minister submitted that, even if there had been error by the IAA in its application of s 473DD, that error was not jurisdictional because it had not been material, citing Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

Consideration of Ground One

36    The IAA’s reasons are of course to be read fairly and not in an unduly critical manner: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [38]. However, it is also the case that the IAA’s reasons should be read in light of the content of the statutory obligations imposed by s 473DD pursuant to which they were prepared: ibid. This is especially so having regard to s 473EA(1)(b) to which counsel for the appellants referred, citing Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 at [130].

37    It can be inferred that the IAA was conscious of s 473DD. So much is evident in its repeated references to the existence, or non-existence, of exceptional circumstances in its assessment of whether it could consider the various items of new information provided to it.

38    It is pertinent to note that the IAA’s reasons proceeded on the basis that the Magistrate’s Court report was authentic, that is, that it was a translated copy of a document presented by the prosecuting authority to the Negombo Magistrate’s Court.

39    While the IAA addressed some matters bearing on whether the report did refer to the first appellant, it did not make any finding about that matter. It concluded instead that the Magistrate’s Court report did not indicate “any ongoing adverse interest in the first [appellant]” and it seems that, for that reason, it was not satisfied that there were exceptional circumstances justifying the report being considered. That manner of reasoning leaves unclear whether the IAA did not accept that the Magistrate’s Court report did refer to the first appellant, or whether it reasoned that, accepting that it did, it did not indicate continuing adverse interest in him.

40    However, these matters can be put to one side as, in my view, it should be concluded that the IAA did not address the subpara (b)(i) criterion at all. A number of matters indicate that that is the appropriate conclusion. The IAA did not refer expressly to either S 473DD(b)(i) or (ii). Nor, with one exception, did it refer, in its consideration of the Magistrate’s Court report or in relation to the other items of new information, to the substance of those subparagraphs. The exception is [16] in which the IAA accepted that new country information could be considered because it post-dated the delegate’s decision.

41    The absence of reference to the subpara (b)(i) criterion is particularly remarkable. That criterion had to be considered separately as it was one of the two alternative means by which the appellants could satisfy the second of the two preconditions in s 473DD(b) and, as the authorities indicate, one matter which could inform the IAA’s satisfaction that exceptional circumstances existed for the purposes of s 473DD(a). In those circumstances, the absence of any reference to subpara (b)(i) in the consideration of the Negombo Magistrate’s Court report is strongly suggestive of it not having been addressed.

42    The Minister’s submissions recognised, in effect, that subpara (b)(i) had not been considered and sought to give an explanation for that circumstance, namely, that the IAA’s reasons should be understood in light of the submissions made to it. As the agent’s submission of 1 April 2019 had been directed only to the subpara (b)(ii) criterion, this made explicable, so the submission ran, that the IAA’s focus had been on that criterion and hence its omission to refer to the subpara (b)(i) criterion.

43    While it is commonly the case that reasons have to be understood in the light of the submissions to which the decision-maker was responding, the premise on which this submission was made is not sound. While the agent’s submission of 1 April 2019 had referred to the subpara (b)(ii) criterion, it had also repeated the submission that the first appellant had not been given a reasonable opportunity to present material addressing the concerns of the delegate which led to the refusal of the SHEVs, saying that this constituted a “gross denial of procedural fairness” to him. Moreover, the agent attached to the 1 April 2019 submission the documents which had been provided to the first IAA, including a submission made by the agent dated 10 January 2017, the submission of 27 March 2017 and the Magistrate’s Court report. The agent said expressly that these original submissions were maintained. The effect of these submissions was to provide an explanation for the Magistrate’s Court report not having been provided to the delegate, this being a matter going directly to subpara (b)(i). It indicated that the agent was making a submission directed to the subpara (b)(i) criterion. If the IAA member had not understood that was so, that would have given rise to a jurisdictional error of a different kind.

44    Paragraph [18] of the IAA’s reasons, to which counsel for the Minister referred, is directed to the agent’s submission that the first appellant had been denied procedural fairness. However, it cannot reasonably be regarded as directed to the subpara (b)(i) criterion in relation to the Magistrate’s Court report, first, because the IAA had completed its consideration of s 473DD in relation to the Magistrate’s Court report earlier in its reasons, and, secondly, because, when read in context, [18] of the IAA’s reasons seems directed to the question of whether the appellants had had a reasonable opportunity to present all their submissions on the review before it.

45    Accordingly, it should not be concluded that the agent’s submissions had been directed only to the subpara (b)(ii) criterion. The IAA could not reasonably have understood that that was so.

46    The position with respect to the subpara (b)(ii) criterion is less clear, but a number of matters indicate that the IAA did not apply it in the manner required by s 473DD. First, and most obviously, the IAA does not appear to have assessed, at least directly, the matters which subpara (b)(ii) required to be considered in relation to the Magistrate’s Court report, namely, whether it was “personal information” relating to the first appellant; whether it was personal information which was “credible” in the sense discussed in CSR16; and whether it “may” have affected the consideration of the appellants’ claims.

47    As to the first of these matters, it is true that the IAA noted the discrepancy between the departure points and dates of departure contained in the Magistrate’s Court report and the first appellant’s SHEV interview statement. However, it did not conclude that the report could not be understood (in its reference to the person whose name was abbreviated to “I”) as referring to the first appellant. On the contrary, the balance of [10] in the IAA’s reasons seems to proceed on the basis that the Magistrate’s Court report did contain a reference to the first appellant.

48    As to the second, the IAA did not address the question of whether the information was capable of being accepted as truthful. Perhaps, the IAA should be taken implicitly to have accepted that this was so, given that it did not make any adverse findings concerning the authenticity of the Magistrate’s Court report, or concerning the circumstances in which it was obtained. But the IAA did not make any express finding concerning the credibility of the information in the Magistrate’s Court report. This stands in contrast with its assessment of the account of the visit by the armed men to the first appellant’s mother’s home in 2016. In respect of that account, the IAA said at [11] “I am not satisfied that this information is credible”. With respect to the Magistrate’s Court report, the IAA should have considered whether it contained information which was open or capable of being accepted by it as truthful, or accurate or genuine, and there is no indication that it do so.

49    The impression that the IAA did not consider the credibility of the Magistrate’s Court report in the sense discussed in CSR16 is increased by the absence of any reference in its reasons to matters which were consistent with the first appellant’s account. Such consistency, to the extent that it existed (or did not exist) was an obvious matter capable of bearing upon the credibility of the information in the report.

50    As counsel for the appellants submitted, a number of matters were seemingly consistent with the first appellant’s account, including the number of people who travelled on the boat, the place of arrival of the boat (Christmas Island), the date of its arrival at Christmas Island (3 August 2013), the identification of two persons who had been chief pilots on the boat (one with the name of the first appellant and the other with the name of the person he had identified as being in charge of the boat), and the fact that there were ongoing investigations as to whether the boat had departed without the knowledge of the owner, which was consistent with the police having been informed that the boat had been stolen. An assessment of the credibility of the information in the Magistrate’s Court report in relation to the appellants’ claims should have taken account of these matters. The fact that the IAA’s reasons contain no reference to them supports the inference that the required assessment of the information’s credibility was not undertaken by the IAA. Instead of making that assessment, the IAA addressed a different question, namely, whether the information in the Magistrate’s Court report indicated any ongoing adverse interest in the first appellant. That was a matter appropriate to be assessed at the second stage of the IAA’s consideration, that is, after it had decided, in accordance with s 473DD, whether it could consider the information in the Magistrate’s Court report.

51    As to the third of the above matters, I do not consider that the IAA had been addressing the issue of whether, had the Magistrate’s Court report been previously known, it may affected consideration of the appellants’ claims, as counsel for the Minister submitted. First, it is pertinent that the IAA did not say that that is what it was doing, let alone refer to the terms of subpara (b)(ii). Secondly, it is not readily apparent that, once it be accepted that the Magistrate’s Court report was authentic and did refer to the first appellant, it could not rationally have affected the assessment of the appellants’ claims. Apart from anything else, the matters of apparent consistency with the first appellant’s claims were capable of bearing upon the assessment of the credibility of those claims and that was so, whether or not the Magistrate’s Court report did, or did not, considered by itself, indicate that the first appellant was subject to “ongoing adverse interest”. The fact that the IAA did not refer to this potential use of the Magistrate’s Court report suggests, to my mind, that the IAA was not addressing the question of whether consideration of the Magistrate’s Court report may have affected the consideration of the appellants’ claims.

52    I conclude that the IAA did not consider whether the Magistrate’s Court report “may have affected” the delegate’s consideration. Instead, it proceeded to a conclusion about whether the report did in fact, and by itself, indicate any ongoing adverse interest in the first appellant. This was not the matter which it was required to consider under subpara (b). It was instead in the nature of an ultimate conclusion about one possible significance of the information if it was considered.

53    In summary, it seems that the IAA commenced consideration of the potential utility of the Magistrate’s Court report to an assessment of the first appellant’s claims. However, the IAA concluded that consideration without addressing the terms of either of the subpara (b) criteria. In particular, it did not express any view about whether the Magistrate’s Court report could have been provided to the Minister before the delegate made the decision under s 65 and did not express any conclusion about whether the report contained “credible personal information” in the sense explained by Bromberg J in CSR16 at [41]-[42], nor whether it was capable of affecting the consideration of the first appellant’s claims in the sense discussed by the plurality in Plaintiff M174. As I have said, it is noteworthy that the IAA did not express any conclusion about the Magistrate’s Court report in terms of its credibility. Instead, the matter which seems to have been decisive in its consideration was its view that the report did not indicate “any ongoing adverse interest in the first [appellant]”, as though that was conclusive of the report’s potential significance, when plainly it was not. Having expressed that conclusion, the IAA moved immediately to express its lack of satisfaction that there were exceptional circumstances justifying considering the report.

54    Subject to the issue of materiality, it should therefore be concluded that the IAA decision is affected by jurisdictional error, and that the FCC Judge should have found that that was the case.

55    Both parties accepted that the identified errors by the IAA should be characterised as jurisdictional only if they were material in the sense discussed in SZMTA and in Hossain v Minister for Immigration and Border Protection [2018] HCA 33; (2018) 264 CLR 123 at [24]-[32] and [78]. As Kiefel CJ, Gageler and Keane JJ noted in Hossain, ordinarily the breach of an express or implied commission of the valid exercise of a decision-maker’s power will not be material unless compliance with the condition could have resulted in the making of a different decision.

56    Plainly, that condition is satisfied in this case. Had the IAA considered the subpara (b)(i) criterion, and had found it was satisfied, that would have been a matter to be considered for the purpose of the subpara (a) criterion. Likewise, had the IAA considered the subpara (b)(ii) criterion in the appropriate way, that too may have led to it concluding that that criterion was satisfied so that it too, in accordance with AUS17, should have been considered in the assessment of the existence, or otherwise, of exceptional circumstances for the purposes for the subpara (a) criterion. Contrary to the submission of counsel for Minister, the IAA’s assessment in [10] that there were no exceptional circumstances justifying its consideration of the Magistrate’s Court report is not conclusive of the issue, giving its antecedent errors in the consideration of the subpara (b) criteria.

57    This conclusion makes it unnecessary to consider Ground 2 in the Notice of Appeal. That is particularly so given the concession of counsel for the appellants that Ground 2 was one way of illustrating the materiality of the jurisdictional error arising by reason of the IAA’s misapplication of s 473DD.

Conclusion

58    For the reasons given above, the appeal must be allowed. The orders of the Court are:

(a)    The appeal is allowed.

(b)    The orders of the FCC made on 3 June 2020 are set aside.

(c)    A writ of certiorari be issued quashing the affirmation by the IAA on 16 September 2019 of the decision of the Minister’s delegate to refuse the appellants’ applications for Safe Haven Enterprise Visas.

(d)    The matter be remitted to the IAA so that another member may undertake the review required by s 473CC of the Act in accordance with law.

(e)    The first respondent is to pay the appellants’ costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the FCC.

Associate:

Dated:    8 April 2021

SCHEDULE OF PARTIES