Federal Court of Australia

EAI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 506

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    This appeal arises out of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister for Immigration and Border Protection. The appellant contends that the decision is affected by jurisdictional error because the Authority relied on information that was not before the delegate when he made his decision but did not give particulars of the information to him in accordance with s 473DE of the Migration Act 1958 (Cth) and/or because it failed to consider a substantial and clearly articulated claim he had made. The primary judge held that there was no merit in either contention and accordingly dismissed the appellant’s application for constitutional writs. In the appeal the appellant alleges that his Honour erred in doing so. For the reasons that follow I am not persuaded that he did.

Background

2    The appellant is a Sri Lankan national, who claims to fear serious harm if required to return to his country of nationality by reason of his Tamil ethnicity, his imputed political opinion amongst other reasons because of his suspected and actual support of the Liberation Tigers of Tamil Eelam (LTTE), and as a failed asylum seeker.

3    The appellant arrived in Australia by boat without a passport in September 2012.

4    On 5 September 2013 the appellant lodged an invalid application for a Protection (Class XA) (Subclass 866) visa under cover of a letter from his migration agents dated 16 August 2013. The application was invalid because the appellant was an “unauthorised maritime arrival” within the meaning of s 5AA of the Act: see ss 46A and 91K. In December 2014, however, the Act was amended to introduce the so-called Fast Track Assessment process and the appellant was invited by the Minister to apply for either a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV). On 21 December 2015 the appellant submitted an application for a SHEV.

5    Attached to the earlier invalid visa application was a statement dated 8 August 2013 apparently signed by him which set out his claims (the 2013 Statement). The 2013 Statement included a claim that in about 2005, when the appellant was in secondary school, he was one of a number of young Tamil boys who were rounded up by the Sri Lankan Army (SLA) on suspicion of belonging to the LTTE, taken to an SLA camp where they were detained for 15 days, tied up, cruelly treated and interrogated. The appellant stated that, for a period of three weeks after he was released, he was constantly asked to return to the camp.

6    Another statement, dated 9 November 2015, was attached to the SHEV application. That statement (the 2015 Statement), also apparently signed by the appellant, referred to the episode in about 2005, expanded upon the allegations of cruel treatment but omitted any reference to the period during which he was required to report to the camp after his release.

7    The 2015 Statement, like the 2013 Statement, also included claims that the appellant’s uncle (V), for whom he worked and to whom he was close, had provided assistance to the LTTE, including financial assistance, and that he had signed cheques “for” the LTTE on his uncle’s behalf.

8    In the 2015 Statement the appellant professed to have witnessed an assault on V by a number of armed men, four of whom were wearing the uniform of the SLA. He claimed that V had escaped from the SLA camp to which he was taken and gave an account of being accosted by several members of the Karuna Group, who supported the Government, and some SLA members who quizzed him about V’s whereabouts. He stated that he was then assaulted by members of the Karuna Group and, after nine days, he was taken to “the Karuna Camp”, where he was beaten as they again pressed him for information as to V’s whereabouts. He claimed that in 2007 another uncle (R) helped to organise a passport for him and arranged for him, V and V’s wife to travel to Malaysia where they, but not he, registered with the UNHCR. He claimed he was afraid his visa would run out before he was interviewed. The appellant said he then returned to Colombo, rather than his home, but was afraid of staying in Sri Lanka at all and, with the assistance of R, he obtained a permit to work in the UAE where he remained until 2012. He said that he then returned to Sri Lanka as his family had told him that the situation had improved but, after his return, members of the Karuna Group visited his home in his absence and told his mother that they would shoot him if they saw him. It was at this point that he claimed that he made arrangements to flee again, finding his way to Australia.

9    The delegate was not satisfied that the appellant was a person to whom Australia owed protection obligations and refused to grant to him a SHEV.

10    On 25 August 2016 the matter was referred to the Authority. The primary judge found that at 2.27 pm the same day a PDF containing the contents of the file held by the Department concerning the applicant was uploaded to a network accessible by the Authority. His Honour also found that that file contained the invalid visa application together with its attachments, one of which was the 2013 Statement.

11    The Authority accepted as true a number of claims made by the appellant but had concerns about the truth of the appellant’s other claims and discrepancies in his evidence. The Authority affirmed the delegate’s decision, finding that the appellant did not face a real chance of persecution and that there was no risk that the appellant would suffer significant harm because he was no longer of adverse interest to Sri Lankan authorities. In reaching these findings the Authority had regard to the 2013 Statement.

The legislative scheme

12    As with any other visa, the power to grant a SHEV is conferred on the Minister. Generally speaking, if the visa is valid and the Minister is satisfied that the relevant criteria prescribed by the Act or the regulations have been satisfied, the visa application charge has been paid and the grant of the visa is not precluded, the Minister is obliged to grant the visa and, if not, the Minister is obliged to refuse to do so (s 65).

13    The purpose of the Fast Track assessment process was described in the Explanatory Memorandum to the Migration and Maritime Powers Bill 2014 (Cth):

The Government‘s purpose in establishing the Fast Track assessment process is two-fold: it will enhance the integrity of Australia‘s protection status determination framework, including by introducing specific measures for responding to unfounded claims for asylum. In addition, it will introduce a new review body for certain cohorts of visa applicants to improve the efficiency and cost effectiveness of merits review for those cohorts. These measures are specifically aimed at addressing the backlog of Unauthorised Maritime Arrivals (UMAs) who entered Australia on or after 13 August 2012 and ensuring their cases progress towards timely immigration outcomes. The Government believes the more efficiently and effectively a case can be resolved, the better outcomes it can deliver for both the applicant and those who support them in the Australian community.

14    The establishment of the Authority was a “key aspect” of the fast track assessment process.

15    The review conducted by the Authority is a limited form of merits review established under Pt 7AA of the Act. In contrast to the comparable review processes for migration decisions in Pts 5 and 7, there is no obligation on the Authority to invite a review applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (cf. ss 360, 425). Reviews are generally conducted on the papers.

16    The operation of Pt 7AA has been discussed in numerous cases: see, in particular, ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 94 ALJR 928; 383 ALR 407 and the cases cited there. It is sufficient for present purposes to provide the following summary.

17    Division 2 of Pt 7AA establishes a mechanism for the automatic review of a fast track reviewable decision. The Minister is required to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made (s 473CA) and the Secretary is required to give to the Authority the “review material”, which includes the decision and reasons, material provided by the referred applicant to the decision maker before the decision was made, and any other material in the Secretary’s possession or control the Secretary considers relevant to the review (s 473CB). The Authority is required to review the delegate’s decision referred to it by the Minister (s 473CC). The Authority may either affirm the fast track reviewable decision or remit it for reconsideration in accordance with such directions or recommendations as the regulations may allow and the Authority considers appropriate (s 473CC(2)(b).

18    Gageler, Keane and Nettle JJ pointed out in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17]:

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

19    In carrying out is functions, the Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Div 3, which deals with the conduct of the review: s 473FA.

20    Division 3 begins with s 473DA. Section 473DA provides that Div 3, together 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 by the Authority. Subsection 473DA(2) states that:

To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

21    The Authority must perform that duty by “considering” the “review material” provided to it by the Secretary of the Minister’s Department at the time of referral “without accepting or requesting new information” and without interviewing the referred applicant (s 473DB) unless the Authority “gets” new information from the referred applicant or some other person under s 473DC and goes on to “consider” that new information under s 473DD. “Information” is a communication of “knowledge of facts or circumstances … of an evidentiary nature” (see AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 384 ALR 196). “New information” is defined in s 473BB by reference to the meaning given by s 473DC(1). Information is “new information” if it was not “before” the Minister at the time of the referred decision and the Authority considers it might be relevant to the review. The Authority must not consider any new information unless it is satisfied that there are exceptional circumstances to justify doing so and the referred applicant satisfies the Authority in relation to that information that it was not and could not have been provided to the Minister before the referred decision or is credible personal information which was not previously known and might have affected the consideration of the referred applicant’s claims (s 473DD).

22    Section 473DE is in the following terms:

473DE Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

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

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

The decision of the Authority

23    It is unnecessary to refer at any length to the Authority’s reasons. The questions raised in the appeal and in the court below arise out of a few discrete paragraphs.

24    In para 5 of its reasons Authority wrote:

The applicant states that in about 2005, when he was 17 and studying for his O-levels at school, there was a round up in his area by the SLA of Tamil boys. He and other students were attending a maths tuition class after school when the SLA arrived and detained them on suspicion of belonging to the LTTE. They were taken to the SLA camp; questioned about LTTE involvement; tied up, beaten and treated cruelly; they were threatened with death; and were detained for about 15 days and released after the SLA contacted their parents who confirmed they were students and their other personal details. For a short period afterwards he and his parents were required to report regularly to the SLA. He attributes his failure to pass his O level exams to the disruption and fear caused by his detention.

(Emphasis added.)

25    A footnote (footnote 1) followed the words emphasised in the above quote. The footnote reads: “See paragraph 7 of the applicant’s 8 August 2013 statement”. Paragraph 7 of that statement (the 2013 Statement) contained the claim that the appellant was “constantly asked to report back to the same SLA camp and this occurred for about three weeks then ended”. It will be recalled that the representation that the reporting requirement was maintained for a finite period of three weeks was not made in the 2015 Statement.

26    In para 6, the Authority went on to say:

He says he started working for his uncle, V, in 2006. V owned a construction company that had government contracts to build schools, hospitals and roads. He worked as a supervisor, allocating workers to the various job sites and acting in his uncle’s place whenever was absent or there was a need. V, through his company provided support to the LTTE in the form of money and sometimes medicines, clothing and the like. The applicant sometimes signed the cheques for the LTTE on his uncle’s behalf. He said the last time the company made a payment to the LTTE was around August 2006. He and his family were not members of the LTTE.

(Emphasis added.)

27    In para 15, the Authority accepted that the appellant was taken by the SLA with other school students in a round up in 2005, “detained and mistreated” for about 15 days on suspicion of LTTE links, and then released “under a short reporting requirement”, apparently picking up again on the representation in the 2013 Statement. This finding was repeated twice in para 33. In para 15, the Authority also accepted that the appellant had worked as a supervisor for V’s company from 2006 to January 2007 and took change in V’s absence or as required, that V’s company provided money and sometimes medicines, clothes and the like to the LTTE up until August 2006, and that sometimes the appellant signed company cheques “that were for the LTTE”. Other claims made by the appellant were also accepted, but they are irrelevant for present purposes.

28    The critical findings appear in para 33. Since those findings are relevant for multiple purposes, it is convenient to set out para 33 in full. It reads:

I accept that area where the applicant’s family home was in Batticaloa may have been LTTE controlled at times during the war; that he was detained and mistreated for a period of 15 days by the SLA in a round up in 2005 and when released was under a short reporting requirement; that his uncle V’s company provided money and sometimes medicine, clothes and the like to the LTTE until August 2006 and on occasion the applicant signed the company cheques to the LTTE; and that the paramilitary Karuna Group held the applicant and his family in house arrest for nine days, the applicant to a further three days of detention, mistreatment and threats, in January 2007, due to the Karuna Group’s interest in V. Having regard to the UNHCR guidelines and the other information before me, I do not consider the applicant to be at risk of harm now or in the reasonably foreseeable future for a number of reasons. First, on the evidence residing in a LTTE controlled area of itself does not give rise to a need for protection. Secondly, the only time the applicant was detained by the Sri Lankan authorities was during a general round up in 2005, he was not specifically targeted by the SLA for any LTTE links. Thirdly, although the applicant occasionally signed company cheques to the LTTE, it was the company and not the applicant that was providing money and other materials to the LTTE. Fourthly, on my findings, since the round up in 2005, and the short reporting period immediately afterwards, the applicant was not subject to any further questioning, detention or other adverse interest from the Sri Lankan authorities. Fifthly, on my findings, the applicant was able to travel to and from Malaysia and the UAE legally through Colombo airport without encountering any difficulties with the Sri Lankan authorities. I am not satisfied that the authorities would have had any adverse interest in the applicant if he had remained in Sri Lanka or that he would be of any adverse interest to the current Sri Lankan authorities on return. Given the above factors, and the country information, I consider any risk of harm to the applicant from the authorities based on his profile, including as a young Tamil male from the east, to be remote.

(Emphasis added.)

29    The Authority went on to record (in para [34]) that it was “satisfied that [the appellant] will not face a real chance of harm from the Sri Lankan authorities due to any links to the LTTE on return to Sri Lanka now or in the reasonably foreseeable future”.

30    The Authority did not specifically refer to the 2015 Statement, although it is clear that it had read it as matters mentioned in that statement and not the 2013 Statement appear in the Authority’s reasons. Nor did the Authority refer to the difference between the two statements with respect to the reporting requirements (or anything else for that matter). I was not taken to anything in the material to indicate what the appellant might say if he had been asked by the Authority to comment on the subject.

In the court below

The application

31    Three grounds of review were pleaded in the appellant’s amended application but only two (grounds 1 and 3) were pressed.

32    First, the appellant alleged that the Authority failed to comply with s 473DE in that the Authority considered information, namely, the 2013 Statement, which had not been before the delegate when he made his decision, may be relevant and would be part of the reason for affirming the delegate's decision, but did not give the appellant particulars of the information or explain its relevance or invite him to comment on it.

33    In support of this ground the appellant pointed to the fact that the delegate had listed the material before him in an attachment to his decision record and that list did not include a reference to the electronic file which contained the invalid visa application or the 2013 Statement.

34    Second, the appellant alleged that the Authority failed to consider the claim he made at the protection visa interview that he, himself, had provided “help and assistance” to the LTTE.

The evidence

35    At the hearing in the court below the appellant tendered a notice to admit facts he had served on the Minister.

36    The combined effect of that notice and the Minister’s failure to deny the fact he was called upon to admit is that the Minister admitted that the 2013 Statement was not on the Department’s file in relation to the appellant’s SHEV application at the time of the delegate’s decision.

37    The Minister relied on an affidavit sworn by Alan John Smith, a longstanding employee of the Department of Home Affairs who at the time was Acting Assistant Director of the National Allocations and Finalisations Section of the Humanitarian Program Operations Branch of the Department. One of Mr Smith’s responsibilities was to oversee review officers who transfer to the Authority files relevant to applications for protection visas by fast track visa applicants and he was the team leader responsible for overseeing the review officer sending the referral portfolio to the Authority in this matter.

38    The appellant also tendered a transcript of the delegate’s interview of the appellant.

The findings

39    Based on the information in that affidavit the primary judge made a number of factual findings none of which are challenged on the appeal. Those findings included that the Department does not maintain paper files with numbered folio entries for fast track reviewable matters and that the Department held an electronic file No CLR2013/220766 in relation to the appellant’s invalid application for a protection subclass 866 visa. His Honour found the electronic file included the appellant’s visa application and supporting documents lodged under cover of the letter from his migration agents dated 16 August 2013 (reproduced at pp 37 to 101 of the Court Book), one of which was the 2013 Statement, and that on 11 May 2016 at 2.17 pm, the day before the scheduled interview with the delegate, the delegate “accessed and viewed the electronic file …”.

The reasons of the primary judge

40    With respect to the first ground, the primary judge rejected the proposition that the information in question was not before the delegate when he made his decision. On the basis of his factual findings his Honour held that the 2013 Statement was before the delegate at that time, so it was not “new information” within the meaning of s 473DC(1). In the result, he concluded that s 473DE did not apply. In any event, his Honour went on to hold that, even if the information was “new information”, it would still not fall within the terms of s 473DE because it would not have been “the reason, or part of the reason, for affirming the fast track reviewable decision”. That was because, having regard to the reasons of the majority in Plaintiff M174 at [9], nothing in the 2013 Statement constituted “a rejection, denial or undermining” of the appellant’s claims to protection.

41    Even if the Authority should have given the appellant the information, the primary judge held that its failure to do so was immaterial because any discrepancy in the reporting period made no difference to the general finding that the appellant was not of interest to the Sri Lankan authorities.

42    With respect to ground 2, the primary judge held that it was “a fair statement” of the appellant’s written claims that, “whilst he had provided help and assistance to the LTTE, such help and assistance was always in connection with, and related to, his uncle V and [his group of companies]. His Honour considered that there was no “substantial, clearly articulated claim or argument” that he, himself, had provided assistance to the LTTE, independent of, and not associated with, his uncle and his uncle’s group of companies. His Honour also considered that there was nothing in the transcript of the appellant’s interview with the delegate to suggest otherwise.

The appeal

43    The issue on the appeal is whether the primary judge was wrong to come to the conclusions that he did. For the following reasons I am not persuaded that he was.

Ground 1

44    The first alleged error is that the primary judge erred in failing to find that the Authority had not complied with s 473DE. To succeed, the appellant needs to establish that s 473DE applied in that the information in the 2013 Statement was “new information” within the meaning of s 473DC; that, if it were, the new information would be the reason, or part of the reason, for affirming the delegate’s decision; and that, had the information been provided to the appellant, it could have made a difference to the outcome of the review.

Was the 2013 Statement “new information”?

45    The answer to this question turns on the meaning of s 473DC(1)(a). The exercise of statutory interpretation starts and finishes with the words in the statute but those words must be read in context and in accordance with the statutory purpose or object. The interpretation that would best achieve the statutory purpose or object is to be preferred to every other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA.

46    It is convenient to start with s 473DB.

47    Section 473DB relevantly provides that, subject to Pt 7AA, the Authority must 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.

48    The “review material” is the material described in s 473CB. It consists of:

(a)    the statement of the Minister or his delegate (the decision-maker) which sets out his or her findings of fact, the evidence on which they were based, and the reasons for the decision (the decision record);

(b)    material provided by the referred applicant to the decision-maker before the decision was made;

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

(d)    certain contact details for the referred applicant.

49    In the present case the Authority stated that it had had regard to the material referred by the Secretary under s 473CB — and failed to mention anything else. It is reasonable to infer, then, that the 2013 Statement was part of that material.

50    The evident purpose of requiring the Secretary to provide the review material to the Authority and of requiring the Authority to consider the review material provided by the Secretary is to ensure that the Authority, in conducting its de novo review of the referred decision, has in its possession, examines and takes into account for itself the same information that was before the Minister when making the referred decision: ABT17 at [8] (Kiefel CJ, Bell, Gageler, and Keane JJ). Since the “review material” is not limited in terms to the material that was before the Minister or delegate, however, it cannot be inferred in this case from fact that the 2013 Statement was part of review material that the 2013 Statement was before the delegate when the decision was made.

51    I now turn to s 473DC. It appears in Subdivision C of Division 3, which is entitled “additional information”. Sections 473DD and 473DE are in the same subdivision.

52    The meaning of “new information” appears from the words of subs 473DC(1), which reads:

473DC Getting new information

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

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

(b)    the Authority considers may be relevant.

53    In other words, “new information” means any document or information that was not before the Minister when the Minister made the decision to refuse to grant the visa which the Authority considers may be relevant to the review. The critical words here are documents or information that were “not before the Minister when the Minister made the decision”.

54    The references to “the Minister” in effect include the Minister’s delegate since the Act confers power on the Minister to delegate any of his powers (s 496) and, where an Act confers such a power of delegation, when exercised by the delegate the power is deemed to have been exercised by the Minister (Acts Interpretation Act, s 34AB).

55    It was common ground that for documents or information to be “before the Minister” (or his delegate) the documents or information had to be in the actual possession of the Minister (or his delegate); it is not enough that the documents or information were in the possession of the Minister’s Department and therefore in the Minister’s constructive possession. In DTK17 v Minister for Immigration and Border Protection (2018) 265 FCR 538 at [38] the Full Court (McKerracher, Gleeson and Burley JJ) held that the words “before the Minister” refer only to material “literally”, that is “physically” before the Minister and did not capture material of which the Minister might have constructive knowledge because of the breadth of material held by the Department”. In that case a review applicant made submissions to the Authority which invited it to have regard to an issues paper, arguing that it was not “new information” because it was written and prepared by the Minister’s Department and was in existence at the time of the delegate’s decision.

56    The mere fact that the delegate did not specifically refer to the 2013 Statement does not mean he did not consider it: see BWO18 v Minister for Home Affairs [2020] FCA 329 at [41] (Perry J), citing WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at [46] (French, Sackville and Hely JJ).

57    In the present case the primary judge determined, in effect, that the 2013 Statement was “before” the delegate when the decision was made because it was in the electronic file he had opened in May 2016, the day before the SHEV interview.

58    Understandably, the appellant relied on what the delegate himself identified as the documents and information that were “before” him. They were described in his decision record in the following way:

Attachment A - Material before the Decision maker

•    Departmental file CLF2015/47295 relating to the applicant.

•    Australian case law as footnoted throughout the assessment record.

•    Country information as footnoted throughout the assessment record including any relevant

•    Country information assessment prepared by the Department of Foreign Affairs and Trade specifically for the purpose of assessing protection obligations (see Direction No.56).

•    The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Re-issued, Geneva, December 2011 (the UNHCR Handbook).

•    Procedures Advice Manual 3: Refugee and Humanitarian – Refugee Law Guidelines

•    Procedures Advice Manual 3: Refugee and Humanitarian – Complementary Protection Guidelines

•    Procedures Advice Manual 3: Refugee and Humanitarian – Common Processing Guidelines

•    Procedures Advice Manual 3: Refugee and Humanitarian – Temporary Protection and Fast Track Assessment Process

59    The Departmental file mentioned in the first dot point was the file relating to the SHEV application (the SHEV file). The Minister admitted that that file did not contain the 2013 Statement. In the absence of evidence to indicate that the 2013 Statement was omitted in error, the inference to be drawn from the delegate’s decision is that the 2013 Statement was not before him when the decision was made. Mr Smith’s affidavit does not prove otherwise.

60    I respectfully disagree with the primary judge that the fact that on the day before the SHEV interview the delegate accessed the file containing the 2013 Statement meant that the 2013 Statement was before him when the decision was made. The reason given by the primary judge to support his conclusion are set out in [37] of his judgment:

The Delegate responsibly prepared for the interview which he was scheduled to have with the Applicant on the following day. He accessed the electronic file and made himself conversant with a body of evidence which would make the interview with the Applicant on 12 May 2016 meaningful. The Delegate would have been at liberty to take any notes of the material in the electronic file of the invalid Protection (Subclass 866) visa application, for use either at the interview or subsequently at the time of writing his decision.

61    The findings in this paragraph were not supported by the evidence. Contrary to his Honour’s findings the evidence did not disclose that the delegate made himself conversant with “a body of evidence” or took any notes at the time. Indeed, it did not even disclose that the delegate had regard to anything in the file. All the evidence disclosed was that the delegate had opened the file at 2.15 pm on the day before the interview. It did not reveal for how long the file was open and therefore the extent to which it was “viewed”. For all we know, the delegate opened the file inadvertently, in the mistaken belief that it was the SHEV file, which was the relevant file, and immediately closed it upon discovering his mistake. Without more, I do not see how the fact that the delegate opened the file on his computer that contained the document establishes that the 2013 Statement was “before” him at that time, let alone when the decision was made, any more than the fact that any other file was on his computer (but not opened) at the time he was preparing for the interview or at the time of his decision would mean that it was “before” him within the meaning of s 473DC. Having regard to the quality of the evidence, there is no good reason why the delegate should not have been taken at his word.

62    It seems that the, or at least a, reason the primary judge did not take the delegate at his word was that his Honour believed that the 2013 Statement was not only on the file but that the delegate had read it and referred to it in his decision, for at [38] he said this:

In light of the strong body of evidence that does show that the electronic file of the invalid Protection (Subclass 866) visa application was “before” the Delegate, the fact that he omitted to refer to it in his list of material does not establish that it was not “before” him. After all, he had expressly referred to the August 2013 Statement in footnote 1 to [5] of his Decision Record: see [28] above. In other words, the list of material is not to be taken as exhaustive of the material he had “before” him.

63    The primary judge was mistaken, however, in thinking that the delegate had referred to the 2013 Statement in his decision. It was the Authority that referred to the 2013 Statement in footnote 1 to [5] of its reasons, not the delegate.

64    For these reasons I am persuaded that the primary judge erred in determining that the 2013 Statement was before the delegate when the decision was made. Without more, I do not accept that the fact that the document was on an electronic file on a computer which the delegate accessed on the eve his interview with the appellant means that the document was before the delegate when the decision was made.

65    There being no question that the 2013 Statement was relevant, it necessarily follows that it was “new information” within the meaning of s 473DC(1).

66    But that is not the end of the matter.

Would the new information be the reason, or part of the reason, for affirming the delegate’s decision?

67    It is apparent that the purpose of s 473DE is to ensure that the referred applicant has an opportunity to address new information that has been, or is to be, considered by the Authority, but only if that information “would be the reason, or part of the reason, for affirming the fast track reviewable decision”. Section 473DE does not apply unless, relevantly, the new information satisfies that description. The primary judge held that the 2013 Statement did not because nothing in that Statement constituted a rejection, denial or undermining of the appellant’s claims to protection. If anything, his Honour said, it supported and was intended to support them. Rather, his Honour continued, it was “merely information which might be relied upon to find inconsistency with other material submitted by [the appellant]”. The appellant submitted that the relevant passage from the 2013 Statement was not only relevant as a prior inconsistent statement going only to credibility. Rather, he argued that the length of the reporting period was significant “because the Authority gave weight to [it] as showing that the appellant was not a person of interest to the Sri Lankan authorities so as to justify extended or repeated questioning and detention” and was one of the cumulative reasons given by the Authority for its conclusion that the appellant was not at risk of harm now or in the reasonably foreseeable future.

68    In support of the proposition that s 473DE did not apply because nothing in the 2013 Statement constituted a rejection, denial or undermining of the appellant’s claims to protection, the primary judge relied on the following passage taken from the joint judgment of Gageler, Keane and Nettle JJ in Plaintiff M174 at [9]:

… For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant’s claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa …

69    The paragraph begins by observing that s 57 is located within subdiv AB (of Div 3, which is entitled “Visas for non-citizens”) and deals with “relevant information”, pointing out that “relevant information” is defined in subs (1), subject to “immaterial exclusion”, to mean information that the Minister considers meets three conditions, the first condition relevantly being that the information “would be the reason or part of the reason … for refusing to grant a visa”.

70    The appellant was critical of the primary judge for relying on Plaintiff M174 because the remarks his Honour quoted were made about s 57 of the Act. That is obviously true. But the remarks were far from irrelevant.

71    Section 57 is an analogue of s 473DE. It relates to all visa applicants, including fast track review applicants. It reads:

Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or part of the reason:

(i)    for refusing to grant a visa; or

(ii)    for deciding that the applicant is an excluded fast track review applicant; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

Note:    Excluded fast track review applicant is defined in subsection 5(1).

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

72    The relevant part of s 57 considered in Plaintiff M174 was materially identical to the relevant part of s 473DE(1)(a): “The [IAA] must … give to the referred applicant particulars of any new information … if the new information … would be the reason, or part of the reason, for affirming the fast track reviewable decision”.

73    The “materially identical provision” to s 57 to which their Honours were referring was s 424A(1) of the Act, which deals with the obligation of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) to give to a visa applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” and invite the applicant to comment on it. Section 57 is concerned with the obligation on the Minister to give particulars of “relevant information” to a visa applicant and invite the applicant to comment on it. The High Court authorities cited in support of the emphasised proposition in Plaintiff M174 were Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at [22], [25] which itself cited SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at 615 ([17]). Their Honours also cited SZTGV v Minister for Immigration and Border Protection (2015) 229 FCR 90 at 100 [18] and SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109 at 133 [104].

74    In SZYBR at [17] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said:

The statutory criterion does not … turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

75    SZJBD was a case about a visa applicant who claimed to fear persecution in China as a Falun Gong practitioner. The appellant alleged that s 424A(1)(a) imposed an obligation on the Tribunal to give her certain information about the Falun Gong movement and its founder which were the subject of questions put to her by the Tribunal at the hearing when the Tribunal relied upon her answers to evaluate her knowledge of Falun Gong and her credibility in general (see [90]–[93]). At [104] Buchanan J relevantly indicated that “any process of comparison between the applicant’s answers and the factual statements with which those answers were compared” should be excluded from the concept of information in s 424A. His Honour went on to observe that:

That left only the factual statements themselves but, shorn of the analytical context in which they played their part, they have … no feature or attribute which makes them disclosable under s 424A. The primary facts about the Falun Gong movement and its founder are neutral. They do not tend for or against affirmation or rejection of the decision of the delegate as pieces of information in their own right. They only have that significance when matched with answers given by the applicant.

76    In SZTGV at [18] Perram, Jagot and Griffiths JJ observed:

What is clear from SZBYR and SZLFX is the High Court’s endorsement of the proposition that “information” within the meaning of s 424A(1) of the Act does not extend to the “prospective reasoning process” of the Tribunal. Further, the information must be information that “would”, not “could” or “might”, be the reason or part of the reason for affirming the decision under review. Such information necessarily involves a rejection, denial or undermining of the applicant’s claim.

77    In the present case, the primary judge’s reliance on M74 was not misplaced. Where the same expressions are used in the same legislation, one would ordinarily expect them to be construed in the same way. After all, “the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” and the meaning of any provision must be determined having regard to the language of the legislation “viewed as a whole”: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ).

78    Here, the “appropriate criterion” was to be found in s 36(1A) of the Act, which was the section under which the appellant sought his protection visa, in this case a SHEV. Thus, having regard to the terms of s 36(2),“the reason, or a part of the reason, for affirming the fast track reviewable decision” was that the appellant was a non-citizen in Australia in respect of whom the Minister (and the Authority standing in the Minister’s shoes, so to speak, on the review) was not satisfied Australia has protection obligations because he is a refugee (as defined in s 5H) or because the Minister (or the Authority) did not have substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. When viewed in this light, it is difficult to see why the appellant’s 2013 Statement (or the relevant part of it) would be “information” that “would be the reason, or part of the reason, for affirming the fast track reviewable decision”. Independently of the Authority’s reasons, neither the 2013 Statement nor the specific information in question answers this description as neither contains a rejection, denial or undermining of the appellant’s claims. Shorn of the context in which they are referenced in the Authority’s reasons, the 2013 Statement and the information in question do not deny or undermine the appellant’s case.

79    For these reasons I am not persuaded that the Authority was under an obligation to give to the appellant particulars of the new information.

80    It is common ground that the error would not be jurisdictional unless it were material. The primary judge determined that any error was immaterial because giving the 2013 Statement to the appellant “would not have resulted” in a different decision. But an error is material to a decision if, had it not been made, if it could have made a difference to the outcome (Hossein v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [29]–[30] per Kiefel CJ, Gageler and Keane JJ) or, put another way, there is a realistic possibility of a different decision (Minister for Border Protection v SZMTA (2019) 264 CLR 421 at [45] per Bell, Gageler and Keane JJ). In argument, counsel for the Minister acknowledged that the primary judge erred in this respect but sought to defend his Honour’s decision on the basis that the error was not material although no notice of contention had been filed. When the absence of a notice of contention was drawn to his attention, the Minister sought the Court’s leave to file one and over the objection of the appellant leave was granted. As it happens, having regard to the view I have taken about the alleged error, it is not necessary to deal with this question.

81    Ground 1 must be dismissed.

Ground 2

82    At the outset of its reasons, in its summary of the appellant’s claims, the Authority mentioned a claim made by the appellant “contained in the information referred to [it]”, to fear harm because of his imputed political opinion “due to the significant financial support he and his named uncle (V) provided to the Liberation Tigers of Tamil Eelam (LTTE)”.

83    In ground 2, the appellant alleges that the primary judge “erred in not finding, and ought to have found that [the Authority] failed to consider [his] claim to have himself [that is, independently of V’s company] provided help and assistance to the LTTE”.

84    The primary judge reviewed the appellant’s statements, his visa application form, a letter from his migration agents dated 27 May 2016, and the transcript of the delegant’s interview with the appellant. The relevant parts of these documents are discussed in his Honour’s judgment and need not all be repeated here. It is sufficient to note the summary of the claim that the appellant had supported the LTTE which appeared in the letter from his migration agents and fairly captured the substance of the claim made in his two statements:

While working for his uncle, [the appellant] became involved with facilitating his uncle’s financial support of the LTTE. [The appellant] would sign checks on behalf of his uncle that went towards financing the LTTE and assisted his uncle’s company in providing the LTTE with food, vehicles, materials needed and construction equipment.

85    His Honour observed that “a fair statement” of the appellant’s written claims was that, while he had provided “help and assistance” to the LTTE, it was always in connection with, and related to, his uncle V and his company. His Honour said that the appellant had not raised a “substantial, clearly articulated claim or argument” that he, himself, had provided such aid independently of, and not associated with, V and his company. In substance, his Honour held that what was said at the interview took the matter no further.

86    I am unable to discern error in his Honour’s conclusions.

87    Even if a claim that the appellant independently of V’s company provided “help and assistance” to the LTTE (the distinction between the synonyms is opaque) can be said to arise from material before the Authority, as his Honour recognised a failure to deal with a claim will only amount to a jurisdictional error if it represents “a substantial clearly articulated argument relying upon established facts”: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68] (Black CJ, French and Selway JJ).

88    In the present case, the appellant does not suggest that the supposed claim was made either expressly or implicitly in any of the written material before the delegate or the Authority. His contention was based only on the following portion of the transcript of the interview with the delegate. After a series of questions about the appellant’s role in his uncle V’s company in which the delegate explored the relationship between the company and the LTTE, the transcript reads (without alteration):

Department Officer:    Did this company have any association with the LTTE?

Interpreter:        Yes

Department Officer:    Can you explain that?

Interpreter:    Yeah so we do help the LTTE because the LTTE fighting for the Tamil people so we do provide money, food and everything.

Department Officer:    Okay was there anything else?

Interpreter:    Okay we help LTTE if they need any clothing or if need a building construction material or they need any vehicles or whatever help they need, just we provide, we’ll help them out.

Department Officer:    Okay anything else besides providing like basic support and, and materials?

Interpreter:        No.

Department Officer:    Okay. Now most Tamils who have lived in the North and the East of Sri Lanka are likely to have paid taxes and provided low level support to the LTTE during the conflict. DFAT assesses that you may be monitored as a result of this but that you are at a low risk of being detained or prosecuted on that basis.

…

Interpreter:    Okay actually the what he is saying is a lot of people helping LTTE generally they’re helping the LTTE but what we did was a little bit further like we went there and helped in war, injured in the war, on the war, so we help, we helped them in medical help and actually we gave a lot of help than normal people. So but I didn’t take the weapon to fight for them but I we do help them, I did help them. Like who are injured in the war, so who are disability or had some medical help, that bit more than the normal average people.

89    The appellant submitted that “this” was “reinforced” by the fact that he had said he had provided the medical help until 2006, whereas his uncle’s company operated until 2007 and, besides, it was unlikely that a construction company would be involved in carrying or supplying medication.

90    There are a number of problems with this submission.

91    First, the mere fact that the appellant said he had provided medical help until 2006 and his uncle’s company operated until 2007 does not mean that the help he provided was independent of the company.

92    Second, I see no reason to conclude that it was unlikely that the company would be involved in carrying or supplying medication.

93    Third and most importantly, the submission ignored the exchange immediately following that extracted at [88] above in which the delegate sought to clarify whether the appellant was referring to himself or the company:

Department Officer:    Are you talking about yourself or are you talking about the, the role the company played?

Interpreter:    Yeah actually the company belongs to my uncle, it’s my family business, he got some rights in the company as well. He had some shares in the company as well.

94    Counsel for the appellant conceded in argument that the appellant’s response was “ambiguous”. The concession was properly made. If the appellant was in fact making a claim that, independently of his uncle’s company, he had provided aid to the LTTE, there were no established facts to support it and certainly no substantial, clearly articulated, argument relying upon such facts.

95    Ground 2 should be dismissed.

Conclusion

96    While I am persuaded that the 2013 Statement was “new information” within the meaning of s 473DC of the Act, I am not satisfied that the primary judge erred in concluding that the Authority did not comply with the obligation in s 473DE. Neither am I satisfied that his Honour erred in his disposition of the appellant’s allegation that the Authority failed to consider a claim that he had provided aid to the LTTE, independently of his uncle.

97    It follows that the appeal must be dismissed. Costs should follow the event.

Associate:

Dated:    14 May 2021