Federal Court of Australia

BWY17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 860

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be assessed in default of agreement in accordance with the court’s Costs Practice Note (GPN-COSTS).

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

REASONS FOR JUDGMENT

SNADEN J:

1    The appellant is Sri Lankan. He is of Tamil ethnicity and hails from Batticaloa, in Sri Lanka’s Eastern Province. On 26 September 2012, he arrived in Australia as an “unauthorised maritime arrival” (within the meaning given to that phrase by the Migration Act 1958 (Cth)—“the Act”). On 12 April 2016, he made an application under the Act for a protection visa (specifically, a safe haven enterprise visa—“the Visa Application”).

2    The bases upon which the appellant sought protection are outlined below. In short, he claimed that, if he were returned to Sri Lanka, he was at risk of subjection to harm at the hands of Sri Lankan authorities because of his Tamil ethnicity, his illegal departure from Sri Lanka and his having applied for asylum abroad.

3    The appellant’s Visa Application came before a delegate of the first respondent (“the Minister”). By a decision dated 29 September 2016, the Minister’s delegate rejected it. That decision (the “Delegate’s Decision”) was then referred to the second respondent (“the Authority”) for review in accordance with s 473CA of the Act (that review is referred to hereafter as the “IAA Review”).

4    Before the IAA Review was completed, the appellant wrote to the Authority and sought to advance a suite of contentions, not all of which had been advanced before the Minister’s delegate. The nature of those contentions (the “Review Submissions”), or those of them that assume some relevance to the present appeal, is the subject of analysis below.

5    By a decision dated 12 April 2017 (the “IAA Decision”), the Authority affirmed the Delegate’s Decision. It declined to consider much of what was contained within the Review Submissions on the basis that they contained “new information” to which, by reason of s 473DD of the Act, no consideration could properly be given. Again, the ramifications of that course are the subject of analysis in this appeal.

6    On 2 May 2017, the appellant filed an application with the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the IAA Decision. That application (the “Judicial Review Application”) was amended on 22 May 2018 and again on 2 July 2020. By a decision dated 14 August 2020, the FCCA dismissed it: BWY17 v Minister for Immigration & Anor [2020] FCCA 1783 (the “FCCA Judgment”; Judge Driver).

7    By a notice of appeal dated 31 August 2020, the appellant now appeals from the FCCA Judgment. He seeks orders to set that judgment aside and, in its place, seeks relief in the nature of certiorari and mandamus to set the IAA Decision aside and remit the IAA Review back to the Authority for determination according to law. He also seeks orders requiring that the Minister pay his costs, both of the present appeal and of the Judicial Review Application.

8    For the reasons that follow, the grounds of appeal that the appellant advances cannot be sustained. The appeal must (and will) be dismissed, with the usual order as to costs.

The appellant’s protection claim

9    By his Visa Application, the appellant claimed that he did not feel safe in Sri Lanka and feared that he would be targeted as a result of his Tamil ethnicity and his status as a failed Tamil asylum seeker.

10    The appellant’s claimed fears were grounded in certain events that have befallen his family over many years. Specifically, the appellant claimed that, in around 2002, his mother disappeared. He stated that neither he nor his family has seen his mother since that time, and that his father believes that she may have been kidnapped. The appellant also claimed that his maternal uncle was a member of the Liberation Tigers of Tamil Eelam (hereafter, “LTTE”), and was killed sometime prior to his mother’s disappearance.

11    The appellant claimed that he and his family were displaced to an internal displaced persons camp in 2007 due to the fighting between the LTTE and the Sri Lankan Army (hereafter, the “SLA”); and that, when they returned to their home village in 2008, they were confronted with an increased SLA presence, given the existence of a nearby SLA camp. Thereafter, the appellant claimed that he was harassed by the SLA, and was requested to undertake various errands for SLA officials, which he felt he could not refuse. The appellant also claimed that his father was shot on 21 November 2008, and that his family did not know by whom the appellant’s father had been shot or why he was targeted.

12    In light of those circumstances, the appellant claimed that, if forced to return to Sri Lanka, he feared he would be arrested, interrogated, detained and tortured.

13    By the Review Submissions, the appellant sought to advance new information in support of his claims for protection. He also sought to explain his reasons for not proffering that information to the Minister’s delegate in the Visa Application. It is convenient to replicate some of the contentions advanced by the appellant in the Review Submissions (errors original):

I was 16 years of age when I arrived by illegal boat. I was so afraid of being deported back to Sri Lanka like others. I heard while at the detention that the department had deported many detainees back to Sri Lanka and our personal information was released by the department through their Website. I contacted my father and elder brother and they told me not to mention about the problems I had with the army and Karuna and their men at the Pollunnaruwa, where I was detained before I fled from Sri Lanka. My father told me that many detainees who were found to have LTTE connections were sent back to Sri Lanka from Australia and the CID officers are searching for them in Sri Lanka. He said few of them had been arrested and no one knows where they are held. My father and brother said never to mention any of the problems I had with the army. My father said that if I told about the army problems the Australian government will give those information to the Sri Lankan authorities and my siblings and he would be arrested by the army. I did not mention the problems I had with the army and Karuna group. My father said that the Australian government advertisements were broadcasted stating don't come to Australia by illegal boat and if you do you will be sent back.

My father said that the army and CID were visiting Tamil homes and asking for the details of the agents who sent people by illegal boats. I feared to mention the following information to the department during the interview because of the above reason. Before I fled from Sri Lanka, the Karuna group members forced me to take up military training from the army and to join them to work for the army. I was studying at that time and my friends and classmates joined the Karuna group to take military training from the army. The Karuna group said that if I join them we would be given jobs in the department with good pay and my family members will be protected by them. They said that they would protect our family and they would take us to all parts of Sri Lanka and eventually join the Army. I was not eager to join them and my friends and classmates who joined them forced me to go with them. They said that I could find out who took my mother and who shot my father. They said that if I don't join them the Karuna group will get the CID or army to take me by force. I told my father and he said that I should not join the army like my friends. Few days after I refused to go with my friends, I was abducted to Pollunnaruwa and was held in the camp with my friends. I refused to take up training from the army and the army officers asked me whether I was a LTTE supporter. I refused. They said that if I refused to join them they would take me to prison as a LTTE suspect. My friends told me to agree for training as it was dangerous to argue with the army. I agreed to take up training and with the help of my friends, I fled from the camp in the middle of the night and fled by illegal boat. I was afraid to mention to the department as I was young and relied on my father and brother who advised me. Now that my case was rejected by the department my father asked me not to come back to Sri Lanka as it is dangerous. He said that I will be taken away by the Karuna group and the army and could be even killed or imprisoned for escaping from them and for not listening to their orders.

I feared to tell the department about the real fear I had fearing that Australian government will disclose the information through it's Website. My mother disappeared around 2002 because of her family background. My mother's family members supported the LTTE and my uncle was serving a LTTE senior member. My mother along with her brother had been feeding LTTE cadres whenever they came to our village. The villagers are well aware of this fact and people feared for my mother's family members as they had LTTE support and protection. We were very young at that time and we were not aware as to the consequences of being a LTTE supporter. Now that my mother disappeared we are unble to find out the location yet. May be my mother is kept along with her brother in LTTE secret camps in the South of Sri Lanka. If the Australian government released any information to the army or CID from my claims they could be murdered if they are alive. I feared that I could endanger my mother's life if I told anything about the army or CID atrocities towards us. My father had been shot and was treated and up until not we have no information as to the person who shot my father.

Recently my father told me that the neighbours told him that the army in civil shot my father. The army wanted to kill my father as they suspected my father cold take revenge on them and to threaten him they did it. My brother who is at the Eastern University was recently arrested in September 2016 by the CID and was interrogated as to my hiding place. The CID said that the army was searching for me and the CID found out that I had escaped by illegal boat from the agents. The CID had threatened to take my brother behind bars if he failed to let them know when I returned back to Sri Lanka. They said that the Australian government sent all the boat arrivals back to Sri Lanka under the agreement between the Australian government and the Sri Lanka government. Now I am afraid that if I am sent back I would be either killed or would end up working with Karuna group involving in criminal activities with the army.

14    As can be seen, the Review Submissions sought to establish that the appellant’s family had closer links to the LTTE than that which he had advanced in his Visa Application, and that his mother’s disappearance and his father’s shooting were a direct result of those links. The Review Submissions also advance two new matters, namely that the appellant was abducted and forced to undertake military training with the Karuna Group before departing for Australia, and that, in September 2016, his brother was arrested, interrogated and threatened in relation to the appellant’s whereabouts.

The statutory framework

15    Section 5 of the Act relevantly defines a “fast track applicant” and a “fast track decision” as follows:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014…; and

(iii)    who has made a valid application for a protection visa…

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant…

16    Section 5AA defines what is meant by the phrase “unauthorised maritime arrival”. It is not in issue that the appellant qualifies as such.

17    Section 35A defines what is meant by the phrase “protection visa”:

(1)    A protection visa is a visa of a class provided for by this section.

…

(3A)    There is a class of temporary visas to be known as safe haven enterprise visas…

18    It follows that the appellant is a fast track applicant and that the Delegate’s Decision was a fast track decision. Subject to presently irrelevant exceptions, Pt 7AA of the Act provides for a framework pursuant to which fast track decisions are to be reviewed. Relevantly, it provides for:

(1)    the automatic referral to the Authority of fast track decisions (s 473CA);

(2)    a corresponding obligation, conferred upon the Authority, to review what is referred (s 473CC);

(3)    the provision to the Authority of certain material relevant to fast track decisions that are referred to it for review (s 473CB);

(4)    the abolition, in relation to decisions referred to the Authority for review, of what would otherwise be the requirements of the natural justice hearing rule (s 473DA);

(5)    an obligation, conferred upon the Authority, to conduct any such review on the basis of the material provided to it under s 473CB (473DB);

(6)    the procurement of “new information” (s 473DC); and

(7)    the limited circumstances in which regard may be had to any new information so procured (s 473DD).

19    The latter two provisions are of relevance to the present appeal. Sections 473DC and 473DD provide as follows:

473DC   Getting new information

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

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

   (b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

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

   (a)    in writing; or

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

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.

20    Section 36 of the Act stipulates the criteria that an applicant must satisfy in order to qualify for a protection visa. Relevantly for the purpose of this appeal, an applicant must establish that he or she is a refugee (s 36(2)(a)) or otherwise faces a real risk of subjection to “significant harm” (as that term is defined in the Act) if removed from Australia (s 36(2)(aa)).

The IAA Decision

21    Prior to determining the substantive aspects of the IAA Review, the Authority considered what, if anything, it might make of the appellant’s Review Submissions. It is convenient to set out in full the observations that were (relevantly) made on that score:

4.     On 4 November 2016 the IAA received a submission from the applicant (IAA submission). The submission comprises argument that responds to issues arising from the delegate’s assessment, which I consider does not constitute new information. I have considered the submission.

5.     The [appellant] has raised a number of new claims and submitted country information that was not before the delegate. The IAA must not consider any new information from an applicant unless satisfied exceptional circumstances justify considering the new information and the new information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and had it been known may have affected the consideration of the applicant’s claims.

6.     The new claims that were not before the delegate are as follows:

•    the [appellant]’s mother’s disappearance was connected to her family’s well known support for the Liberation Tigers of Tamil Eelam (LTTE)

•    the [appellant]’s maternal uncle was a senior LTTE member and may be detained in a secret LTTE camp in the south of Sri Lanka

•    the SLA was responsible for shooting the [appellant]’s father

•    prior to departing Sri Lanka (date unspecified), the [appellant] was abducted by the Karuna Group and forced to undertake military training in a camp. He escaped the camp in the middle of the night

•    in September 2016, the CID [Criminal Investigation Department] arrested, interrogated, and threatened the [appellant]’s elder brother in relation to his illegal departure

7.     The majority, if not all, of the new claims relate to events that pre-date the delegate’s decision. The [appellant] states he did not disclose this information to the delegate prior to her decision of 29 September 2016 because his father told him that detainees found to have LTTE connections are sent back to Sri Lanka where they are being sought out by CID officers. He was also advised by his father that if he told about his ‘army problems’ that the Australian government would have passed this information to the Sri Lankan authorities which would have resulted in his family at home being arrested by the SLA.

8.     In terms of the new information regarding the [appellant]’s mother’s disappearance being connected to her family’s support of the LTTE and that his uncle may be detained in a secret LTTE camp, I note in his SHEV interview of 9 September 2016, the [appellant] advised the delegate that his mother went missing in around 2002 and that his family did not know what happened to her. The [appellant] further advised that his uncle was killed prior to his mother’s 2002 disappearance and that none of his other family had any affiliations or connections with the LTTE. In terms of the new information regarding the SLA’s involvement in his father’s shooting in 2008, I note that the [appellant] advised the delegate that his father did not know who was responsible for shooting him. In terms of the new information that he was abducted by the Karuna Group and forced to undertake military training, I note that the [appellant] advised the delegate that he was unaware of any armed groups operating in his area. He also advised the delegate that after 2008 his family experienced no other problems in Sri Lanka and aside from the 2008 incident involving his father there was no other incident that caused him to leave Sri Lanka.

9.     With his SHEV application, the [appellant] provided a statutory declaration that outlined his claims for protection (SHEV statement). The SHEV statement was prepared with the assistance of his then representative, a registered migration agent and solicitor, who also assisted the [appellant] to lodge his SHEV application. The [appellant] had been residing in Australia for nearly four years by the time he was questioned by the delegate. The delegate explained to the [appellant] that the IAA can only consider material provided in the application to the Department unless exceptional circumstances apply, and told the [appellant] that it is extremely important that he give the Department full, personal and accurate protection claims as early as possible in the protection visa process. The [appellant] was told that if he did not give the Department all of his claims and any additional relevant information he may have, and the application was refused, he might not have another chance to provide the claims. While the [appellant] has stated he did not disclose this new information because of his fear of being returned to Sri Lanka or the impact that disclosing such information would have on his family, on the basis of the information before me I am not satisfied exceptional circumstances exist to justify considering this new information.

22    Having made those determinations, the Authority then turned to the appellant’s substantive protection claims. It concluded that the appellant, if returned to Sri Lanka, would not face a real chance of subjection to serious harm by reason of “…his Tamil ethnicity, or on account of any actual or imputed LTTE connections, including familial connections”. En route to that ultimate conclusion, the Authority made the following observations:

27.     I have accepted that the [appellant]’s maternal uncle was in the LTTE and that he was killed prior to 2003. The [appellant] has not raised any claim that he or his family have come to the adverse attention of the Sri Lankan authorities or any other group on account of his uncle’s profile or prior LTTE activities, or on account of his uncle’s death at least 14 years ago. I am not satisfied that the [appellant] faces a real chance of serious harm due his uncle’s death or his prior LTTE links, now or in the foreseeable future.

28.     I have accepted that the [appellant]’s mother went missing in around 2002. The reasons for her disappearance are unknown and the [appellant] has not raised any claim that he or his family have come to the adverse attention of the Sri Lankan authorities or any other group on account of his mother’s disappearance. I am not satisfied that the [appellant] faces a real chance of serious harm due his mother’s disappearance, now or in the foreseeable future.

29.     I have accepted that following a period of internal displacement, the [appellant] returned to his home village in 2008 and experienced some low level harassment from SLA personnel who were stationed in a nearby camp. While I am not satisfied that the harassment that the [appellant] previously experienced constitutes serious harm as defined by the Act, I am mindful that the country information overall indicates there have been significant positive developments for Tamils in Sri Lanka since the end of the conflict. Further, the [appellant]’s evidence in the SHEV interview is that the SLA camp near his home is no longer operational. On this basis, I am not satisfied that the [appellant] faces a real chance of serious harm from local SLA personnel, now or in the foreseeable future.

23    The Authority also addressed the significance of the fact that personal details relating to the appellant might have been mistakenly published as part of a “data breach” that occurred within the Department of Immigration and Border Protection in February 2014. Again, it is convenient to set out in full the relevant observations that the Authority made in that regard:

32.     Although not raised as a protection claim by the [appellant], in the SHEV interview, the delegate advised him that his name and date of birth details were ‘possibly’ made available due to a ‘data breach’. Although the delegate explained that no protection claims were published, the [appellant] raised a concern that if the Sri Lankan authorities knew about his claims he may have issues with him if he returned to Sri Lanka.

33.     As noted above, I considered new information in relation to the data breach. That information states that the private details of some people in immigration detention mistakenly were made publically available in a document on the website of the department for a period of approximately 14 days in February 2014. The delegate’s decision concedes the [appellant]’s details were included in the data breach. The facts before the Full Court Federal Court in SZSSJ are that the document was accessed 123 times and in its report to the department following the data breach, KMPG stated it was not possible to discount the authorities in another country may have accessed the document. I therefore accept the possibility the Sri Lankan authorities have accessed the document. The [appellant] has indicated that because of the data breach, he will be identifiable by the Sri Lankan authorities as having applied for asylum in Australia. However, I am satisfied that no asylum claims were published so the Sri Lankan authorities therefore would not know the [appellant]’s reasons for seeking protection. Country information also does not support that persons who have been in immigration detention in Australia or failed asylum seekers are imputed as having committed a crime, apart from potentially, illegally departing (discussed below).

34.     Accordingly, I am not satisfied that the [appellant] faces a real chance of serious harm on account of his details being made available for a short period on the DIBP website in February 2014, now or in the foreseeable future.

24    The “new information” referred to at [33] of the IAA Decision comprised of an article published by the Guardian Australia newspaper on 18 September 2015. That article referred to “a landmark federal court decision” and to “…the names, date of birth, nationalities and other personal identifiers of almost 10,000 asylum seekers held in detention [having] been publicly disclosed by the immigration department on its website”.

25    Having concluded that the appellant did not satisfy the refugee criterion for which s 36(2)(a) of the Act provides, the Authority then turned its attention to his claim for complementary protection under s 36(2)(aa). For equivalent reasons, it concluded that the appellant was not at risk of subjection to “significant harm” (as defined) in Sri Lanka and, therefore, was not somebody in respect of whom Australia owed complementary protection.

26    On those bases, the Delegate’s Decision to reject the appellant’s Visa Application was affirmed.

The Judicial Review Application

27    The Judicial Review Application proceeded upon two grounds, both of which remain extant in this appeal. In short, the appellant submitted before the FCCA that the IAA Decision was a product of jurisdictional error (and, thereby, was susceptible to correction by means of prerogative relief) because:

(1)    by noting that the appellant had not made certain of the claims that, in fact, were made in his Review Submissions, the Authority had misconstrued and misapplied the term “consider” in s 473DD of the Act; and

(2)    the Authority had acted unreasonably (in the sense acknowledged in authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332) by not exercising, or by not considering whether it should exercise, its discretion under s 473DC of the Act to seek new information from the appellant, specifically in relation to the data breach question.

28    The FCCA rejected both of those grounds. Insofar as concerned the first, its reasons for doing so were as follows:

28.     It is certainly arguable that the Authority erred by asserting that no claims were made, as alleged by the [appellant], when such claims were addressed and rejected in accordance with s.473DD of the Migration Act. Importantly, however, the [appellant] does not dispute the analysis undertaken by the Authority for the purposes of the application of that section. Rather, the [appellant] complains that the Authority in its substantive reasoning has improperly asserted that claims raised and rejected at that early stage were not made at all.

29.     The [appellant]’s contention faces several hurdles. First, it does not appear to me that such an error in the interpretation of s.473DD can infect later substantive reasoning on the information that is before the Authority.

30.     I am willing to accept, as a general proposition, that if the Authority receives new claims which it rejects as new information in accordance with s.473DD, it should not assert, in its substantive later reasoning, that no such claims were in fact made. Plainly, they would have been.

31.     The correct approach, in my view, is for the Authority, to the extent that it needs to state anything about the rejected new claims, is simply to say that they were not considered as they did not satisfy the pre-conditions for consideration in s.473DD.

32.     In that regard, I am not attracted to the Minister’s alternative proposition that a claim left unconsidered following the application of s.473DD is somehow taken to have not been made by reason of the operation of that section. That is, in my view, an unduly artificial interpretation of the section.

33.     It is unnecessary to resolve the factual dispute as to whether or not the postulated claims were in fact made. It is sufficient to note that the Authority identified at [6] of its reasons that new claims were advanced which the Authority at [9] and [10] of its reasons declined to consider. Those claims were in fact made but not considered.

34.     To the extent that the Authority erred by later asserting in its reasons that the claims identified at [6], or some claim that might hypothetically be similar to those claims, were not in fact made, the error does not, in my view, go to jurisdiction. That is because the claims could not be considered, by reason of the operation of s.473DD, and the use of different terminology by the Authority, in order to recognise that the claims were in fact made, could not have affected the outcome.

29    Insofar as concerned the other basis upon which the appellant’s Judicial Review Application proceeded, the FCCA’s reasons were stated succinctly:

52.    In any event, the Authority did not in my view err by failing to consider exercising its discretion under s.473DC(3), if it did in fact fail to consider it. The [appellant] had already made submissions to the delegate concerning the 2014 data breach and could have made further submissions to the Authority. The [appellant] does not contend, that because the process put in place by the Minister’s Department to deal with the consequences of the 2014 data breach was found to be unfair, some further process before the Authority was necessary. Rather, the [appellant] asserts that, because new information relating to the 2014 data breach was obtained by the Authority, the [appellant] should have been invited to give new information on it. The new information obtained was, however, simply a commentary on the Minister’s Department’s process. The additional facts revealed about the 2014 data breach were unlikely to be matters on which the [appellant] could usefully comment. The [appellant] had no personal knowledge of what had been revealed and to whom. The Authority proceeded on the basis that the [appellant] would be returning to Sri Lanka as a failed asylum seeker, which would be known to the Sri Lankan authorities.

30    On appeal to this court, three grounds were agitated. It is convenient to replicate them in full:

1.     His Honour erred in finding that, to the extent the second respondent (Authority) erred in asserting that new claims made by the appellant were never made, the error was not jurisdictional.

2.     His Honour ought to have found that, in relying at [27], [28] and [30] on the absence of particular claims and evidence, the Authority misconstrued and misapplied section 473DD of the Migration Act 1958 (Act) and consequently failed to have regarding to material relevant to its actual course of reasoning.

3.     In the alternative, his Honour erred in not finding, and ought to have found, that the Authority had unreasonably failed to exercise or consider exercising its power under section 473DC of the Act to invite the applicant to give new information.

31    As can immediately be seen, the first two of those three grounds concern the Authority’s treatment of the appellant’s Review Submissions. They are, in effect, a reagitation of the first of the two grounds that were advanced before the FCCA. The third ground is a reagitation of the second of the two grounds that were advanced before the FCCA. I will address the grounds accordingly.

Grounds one and two: misconstruction of s 473DD

32    As is set out above, the IAA Decision proceeded upon bases that are the subject of appeal grounds one and two—specifically that:

(1)    the appellant did not raise “…any claim that he or his family have come to the adverse attention of the Sri Lankan authorities or any other group on account of his uncle’s profile or prior LTTE activities”; and

(2)    the appellant did not raise “…any claim that he or his family have come to the adverse attention of the Sri Lankan authorities or any other group on account of his mother’s disappearance”.

33    In both cases, the appellant maintains that his Review Submissions contained such claims; and, insofar as it proceeded upon the erroneous basis that they had not been advanced, the Authority should be understood to have misconstrued s 473DD of the Act and the prohibition upon the consideration of “new information” for which it provides. He submits that the FCCA erred by failing to conclude that that misconstruction bespoke jurisdictional error.

34    The appellant does not cavil with the Authority’s refusal to consider the aspects of his Review Submissions that are relevant in the present context. His submission is that the Authority was wrong to conclude that certain claims were not made when in fact they were. The fact that the Authority could not properly consider them does not, he says, mean that they were not raised.

35    At most, the Authority’s conclusion that certain claims were not raised was an error of fact. An erroneous finding of fact will typically not suffice, in and of itself, to stigmatise a discretionary administrative decision as the product of jurisdictional error: CRU18 v Minister for Home Affairs (2020) 277 FCR 493, 503 [29] (Wigney, Jackson and Snaden JJ) (hereafter, “CRU18”). Mere factual error will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, 16 [53] (Black CJ, French and Selway JJ). In Re Minister for Immigration and Multicultural Affairs; ex parte Cohen (2001) 75 ALJR 542, McHugh J (sitting at first instance) observed (at 548-549 [35]-[36]):

A factual error made in the course of making a determination or decision is unlikely to be a jurisdictional error unless the particular fact is a jurisdictional fact. Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.

36    In CRU18, the full court made the following relevant observations:

31     A discretionary administrative decision that is materially premised upon an error of fact will rarely be beyond the jurisdictional authority of its maker simply because of that error. More needs to be established. It is neither necessary nor prudent to attempt an exhaustive statement of what more would need to be shown but typical circumstances spring readily to mind: for example, that the error gave rise to the consideration of irrelevant material, that it bespoke a failure to take account of a mandatory consideration, that it involved unreasonableness, irrationality or illogicality (in the senses contemplated by authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (French CJ, Hayne, Kiefel, Bell and Gageler JJ) and Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 647-648 [130] (Crennan and Bell JJ; hereafter, “SZMDS”)), that it revealed an impermissible denial of procedural fairness or that it otherwise reflected a failure to discharge the relevant statutory function. Additionally, it would need to be shown that the error was material, in the sense explained in Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123, 134-135 [29]-[31] (Kiefel CJ, Gageler and Keane JJ) and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, 433 [2]-[4] and 445-446 [45]-[50] (Bell, Gageler and Keane JJ).

37    To the extent that the Authority erred in the present case by concluding that the appellant had not raised claims that, in fact, he had raised, that error was within the Authority’s jurisdiction to make. It cannot suffice to taint the IAA Decision as a product of jurisdictional error.

38    That analysis presupposes that the Authority’s error (if there was one) was a product of its misconstruing s 473DD of the Act. That it was is by no means clear. It is, of course, possible that the Authority’s error could be explained in that way. Equally, it could be explained by inadvertence or a misunderstanding of what the appellant had advanced. Divining the cause of the Authority’s error is unnecessary. It is the nature of the error, rather than the circumstances that led to its occurring, that determines whether or not a given administrative decision was one that its maker did or did not have jurisdiction to make.

39    The above analysis also presupposes that the Tribunal’s observation that the relevant claims had not been raised was wrong. By his written submissions, the appellant contended that “…just because section 473DD requires that a new claim or evidence must not be ‘considered’ does not mean that the Authority must pretend for all intents and purposes that that claim had never been made and the evidence had never existed.” That reasoning found favour with the FCCA (above, [28]—in particular at FCCA Judgment, [32] and [34]). Respectfully, I am not convinced that it’s right. If the Tribunal had, in making its decision, taken account of the fact that the appellant had advanced certain things by his Review Submissions, it would be difficult to escape the conclusion that those submissions had been relevantly “considered” (in the ordinary sense of the word). Such a course would offend the prohibition for which s 473DD provides. Whether that should require that the Authority proceed on the pretence that the claims within the Review Submissions had never been made can remain for consideration at another time: given the conclusion to which I have been drawn (namely, that any error on the Authority’s part was one that it had jurisdiction to make), it is not necessary that I should form a concluded view as to whether there was an error at all.

40    The first and second grounds of appeal are not made good.

Ground three: legal unreasonableness

41    By his third ground of appeal, the appellant contended that the IAA Decision was attended by jurisdictional error insofar as it was made without the Authority’s having first obtained, or considered obtaining, new information from him concerning the so-called “data breach”. That failure to obtain, or consider obtaining, new information, he contended, was legally unreasonable, such that the resultant decision should be thought to have been beyond what the Authority had jurisdiction to decide.

42    The principles concerning legal unreasonableness are not presently in doubt. They were set out (in a similar context) in BJK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 272 FCR 15, 24-25 [41]-[43] (Middleton, Bromberg and Snaden JJ):

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

In DPI17, this court considered the boundaries of legal unreasonableness within which the Authority is constrained when exercising power under Pt 7AA of the Act. Griffiths and Steward JJ, referring to the plurality judgment in M174, listed (at [35]) six relevant propositions, namely that:

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

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

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

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

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

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

Their Honours then (at [37]) added a further four observations on that theme:

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

43    At issue presently, is whether the Authority’s failure to get, or consider getting, “new information” from the appellant about the so-called “data breach” was outside of its “decisional freedom”: Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158, 171 [62] (Allsop CJ, Griffiths and Wigney JJ). If the only course reasonably available to the Authority was to get or consider getting new information from the appellant, then its failure to do so will bespeak legal unreasonableness and its ultimate decision might be impugned as the product of jurisdictional error. The task, as Thawley J put it in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (at [51]), is to:

…evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.

44    In the present case, the existence of the so-called “data breach” was a matter of which the appellant had been made aware prior to the Delegate’s Decision. The degree to which it bore upon his Visa Application was, then, a matter in respect of which he had had an opportunity to advance whatever submissions he felt might assist him. His complaint—both now and before the FCCA—was that he was not given any opportunity to do so after the Authority took account of the “Guardian article”.

45    It is to be recalled that the “Guardian article” was of limited significance. It did not add to what was already known: namely, that the so-called “data breach” had not resulted in the publication of individual asylum claims. By his written submissions, the appellant contended that he had been “…denied the opportunity to…comment on what might be the inferences the Sri Lankan authorities could draw based on the names, date[s] of birth, nationalities and other personal identifiers of persons in detention”.

46    In order that its failure to get, or consider getting, new information from the appellant might be impugned as legally unreasonable, it must first be shown that the Authority must have had reason to believe that he possessed some relevant information relating to the data breach that might assist it in conducting its review. Absent some belief, or basis for belief, of that kind, it could not be said that the only course reasonably open to the Authority was to obtain, or consider obtaining, that new information. If all that existed was a mere possibility that the appellant might have something useful to say that had not already been said, the Authority’s failure to extend, or consider extending, to him an invitation to say it would fall short of the threshold of legal unreasonableness. In that circumstance, there would be an evident and intelligible (and, indeed, a fairly orthodox and obvious) basis for not extending an invitation under s 473DC of the Act.

47    Insofar as concerns the information that the appellant might have provided to the Authority had he been invited to provide any, two observations bear noting. First, it is anything but clear that he might have had anything relevant or useful to say about the so-called data breach that he had not already had an opportunity to say. Second, the appellant does not now identify any such information. Not only is there no basis upon which to conclude that the Authority ought to have known or assumed that the appellant had relevant new information, there is also no basis upon which positively to conclude that any information that he did have might have materially assisted the Authority, such that it might have been led to a different conclusion had it been obtained.

48    For at least those reasons, the Authority’s failure to get, or consider getting, new information from the appellant about the so-called “data breach” was not legally unreasonable. The appellant’s third appeal ground is not made good.

Conclusion

49    None of the appellant’s grounds of appeal can succeed. The appeal must (and will), therefore, be dismissed with the usual order as to costs.

Associate:

Dated:    29 July 2021