Federal Court of Australia

AJN19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1277

ORDERS

THE COURT ORDERS THAT:

1.    The orders of the Federal Circuit Court made on 16 December 2020 are set aside.

2.    A constitutional writ be issued to the Immigration Assessment Authority quashing its decision of 14 January 2019, directing that the application be determined according to law.

3.    The first respondent is to pay the appellant’s costs to be agreed or taxed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1    The appellant is a citizen of Sri Lanka who arrived in Australia from Nauru in October 2013.

2    This is an appeal from a decision of the Federal Circuit Court dismissing an application for a review of the Immigration Assessment Authority’s (Authority) decision made on 14 January 2019 affirming a decision of a delegate of the Minister (respondent) to refuse the appellant a Safe Haven Enterprise Visa (SHEV).

3    In summary, the respondent admitted a breach of s 473CD(1)(c) of the Migration Act 1958 (Cth) in respect to certain documents such that the issue before the primary judge in the Federal Circuit Court was whether jurisdictional error had been established as a result thereof. The primary judge concluded that the breach was not material as the Authority had expressly turned its mind to the exercise of its powers under s 473DC in respect to the documents: AJN19 v Minister for Immigration [2020] FCCA 3432. The appellant appeals that conclusion. The respondent relies on a notice of contention as the reason the primary judge found the breach was not material was different to that advanced by the respondent.

4    For the reasons below, the appeal is allowed.

Background

5    The appellant arrived in Australia at Cocos (Keeling) Islands on 3 September 2012 as an “unauthorised maritime arrival”. The appellant was transported to Nauru, a “regional processing country” under s 198AD of the Migration Act on 13 September 2012.

6    On 20 March 2013 the appellant applied to the Government of Nauru for a Refugee Status Determination (RSD), that is, for recognition as a refugee under the Convention relating to the Status of Refugees (opened for signature 28 July 1951), as amended by the Protocol relating to the Status of Refugees (entered into force 4 October 1967), or otherwise for assessment of any non-refoulement obligations engaged by Nauru’s international obligations.

7    The appellant’s RSD application was supported by:

(a)    a statement of his claims dated 20 March 2013;

(b)    a bundle of documents (the RSD documents) set out in Part D of the RSD application, including at item H a “CID [Criminal Investigation Department] letter requesting my attendance at 2nd Floor, Colombo” (CID letter); and

(c)    submissions and country information from the appellant’s RSD Claims Assistance Provider dated 2 April 2013 (CMN submissions).

8    The RSD documents, the CID letter and the CMN submissions (collectively, the Nauruan documents) are the subject of the admitted breaches of s 473CB(1)(c) of the Migration Act. It appears an assessment or decision was never made under the RSD process.

9    In about July 2013 the appellant’s copy of the CID letter was destroyed in a fire in the appellant’s compound on Nauru. On 23 October 2013 the appellant was brought to Australia.

10    By a letter dated 28 July 2016, a departmental officer notified the applicant that the s 46A bar had been lifted and invited the appellant to apply for a Temporary Protection visa or a Safe Haven Enterprise visa (SHEV). On or about 28 September 2016, the appellant lodged his application for a SHEV. The SHEV application was supported by the same statement of claims dated 20 March 2013 submitted in the RSD process. The applicant did not include any of the Nauruan documents. On 12 June 2018 the appellant attended an interview with a delegate of the respondent.

11    On 13 November 2018 the delegate refused the application for a SHEV. On 16 November 2018 the delegate’s decision as a “fast track reviewable decision” was referred to the Authority for review. On 30 November 2018 the appellant provided a submission to the Authority.

12    On 14 January 2019 the Authority affirmed the delegate’s decision. On 15 March 2019 the appellant commenced proceedings in the Federal Circuit Court for judicial review of the Authority’s decision. By a subpoena issued on 9 April 2020, the appellant sought documents related to the RSD process. On 25 August 2020, the Minister informally produced the RSD application and supporting documents, including the Nauruan documents.

13    On 16 December 2020 the Federal Circuit Court dismissed the application for judicial review.

The Authority

14    Given the argument as to materiality, it is necessary to briefly refer to the reasons of the Authority. This summary is taken from the respondent’s submission, there being no issue with its accuracy.

15    In its decision it is clear that, in relation to the appellant, the Authority accepted:

(1)    the appellant is a Tamil from Mannar, Sri Lanka, and grew up in Liberation Tigers of Tamil Eelam (LTTE) controlled territory during the civil war and as a result he and his family were repeatedly displaced;

(2)    in 1999, members of the appellant’s extended family died in a bomb attack in Mannar;

(3)    in 2008, the LTTE forcibly recruited the appellant who assisted in establishing a camp;

(4)    at the end of the civil war, the army took control of LTTE areas and the appellant was taken by authorities to a camp where he was questioned and mistreated for a three week period, after which he returned to his family in an Internally Displaced Person camp;

(5)    the authorities regularly checked and questioned detainees in the camps to identify those with LTTE connections;

(6)    in 2010, the appellant and his family were released from the camp and returned to Mannar;

(7)    in 2012, the appellant illegally departed Sri Lanka;

(8)    whilst in immigration detention, the appellant attended counselling and may have experienced past mental trauma as a result of growing up during the civil war;

(9)    in 2014, the appellant's details were released in a data breach; and

(10)    the appellant has attended Martyr's Day commemoration ceremonies and celebrates the LTTE’s leader’s birthday.

16    The appellant also gave evidence to the Authority about other topics which it considered inconsistent or implausible, and ultimately did not accept that:

(1)    the appellant was recruited as an informer by the LTTE in 2007;

(2)    the appellant gathered information about Joseph camp which he passed on to the LTTE resulting in its attack in 2008;

(3)    the appellant came to the attention of authorities (such as the CID) for his low level involvement, including assisting in establishing a camp or his status as an LTTE informant;

(4)    the authorities made enquiries about the appellant in 2012 and have continued to do so;

(5)    the authorities have continued to harass his parents and family members about his whereabouts;

(6)    the appellant's cousin was abducted and remains in custody in Sri Lanka, nor that the appellant is linked to the LTTE because of his cousin;

(7)    people attempting to identify LTTE supporters with the Sri Lankan government have attempted to contact him via social media; and

(8)    the appellant has posted pro-LTTE or anti-government material on social media, or that he would do so in the future or that he has any desire to do so.

Federal Circuit Court

17    The reasoning of the primary judge is encapsulated at [16]-[18]:

[16]     In circumstances where there was a breach under s 473CB of the Act by the Secretary, but that the Authority has turned its mind to exercising its powers under s 473DC of the Act in respect of that information, the Court does not accept Mr Gormly’s submission that there is, nonetheless, a jurisdictional error because of the alleged materiality of the information.

[17]     For the reasons the Court has already given, the Court accepts Mr Gormly’s submission that the information would meet that materiality test in terms of giving rise to the possibility of a different outcome in the conduct of the review, had it been before the Authority.

[18]     However, where the Authority has turned its mind to the exercise of its powers, under s 473DC of the Act, to get the information the subject of the alleged breach under s 473CB of the Act, the Court does not accept that there is a jurisdictional error in circumstances where the decision by the Authority under s 473DC of the Act is not, itself, the subject of error. The fact that the information may have been material had the Authority exercised its powers under s 473DC of the Act does not give rise to the power being invalidly exercised or to the determination of the Authority under Part 7AA of the Act exceeding its statutory powers meaning that there was no jurisdictional error in the circumstances of this case.

18    Although the primary judge concluded that the breach of s 473CB(1)(c) was material, his Honour concluded that in the circumstances, it did not give rise to jurisdictional error.

19    Accordingly, the primary judge did not consider it necessary to turn to the argument in respect to the country information.

Legal principles

20    As previously noted, the respondent admitted a breach by the Secretary of s 473CB(1)(c) of the Migration Act in relation to the Nauruan documents. The issue on appeal is whether the breach was material.

21    Before addressing the submissions it is appropriate to consider the relevant aspects of the legislative scheme.

22    This provision is in Pt 7AA of the Migration Act, which provides for a fast track review process in relation to certain protection visa decisions. Section 473CA provides that the Minister must refer a fast track reviewable decision (defined in s 473BB) to the Authority as soon as reasonably practicable after the decision is made.

23    Section 473CC(1) provides that the Authority must review a fast track reviewable decision referred to it under s 473CA. Section 473DB(1) provides that subject to Pt 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material provided to the Authority under s 473CB.

24    Section 473CB of the Migration Act is as follows:

473CB Material to be provided to Immigration Assessment Authority

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

(a)     a statement that:

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

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

(iii)     gives the reasons for the decision;

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

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

(d)     the following details:

(i)     the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)     the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)     the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)     if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)     if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)     The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

25    This review is generally conducted on the papers. The review is to be conducted “without accepting or requesting new information” and “without interviewing the referred applicant”. The concept of “new information” is defined in s 473DC(1) and comprises documents or information that was not before the Minister when the Minister made the decision under s 65 and that the Authority considers relevant.

26    Section 473DD which addresses when the Authority can consider new information, is in the following terms:

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.

27    In AUF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCAFC 222; (2019) FCR 82 at [6], the Court described the effect of s 473CB(1)(c) as follows:

…. s 473CB(1)(c) imposes an obligation on the Secretary to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority) and the Secretary breached this obligation.

28    Given the respondent’s concession as to the breach, it must be accepted that the Nauruan documents were “new information” that the Authority would have at least considered “may be relevant”.

29    Although the Nauruan documents were the basis of the breach, it is the document referred to as the CID letter which was primarily relied on to establish materiality, and primarily the subject of submissions.

Ground of appeal

30    The appellant relied on its sole ground of appeal (with two particulars) that the primary judge erred in failing to find that the decision of the Authority was affected by jurisdictional error in that it materially breached s 473CB(1)(c). It is appropriate to first consider the basis on which the primary judge concluded that, despite finding the breach material, jurisdictional error had not been established.

31    The relevant reasoning by the primary judge is referred to at [18] of his Honour’s reasons, recited above at [17].

32    The relevant aspect of the Authority’s reasons is [8], which is as follows:

    At the SHEV interview the applicant's then representative referred to the applicant's time on Nauru and expressed his opinion that the delegate should access any assessment made by the Nauruan authorities on the applicant's asylum claim in Nauru and in the event of a negative assessment give this information to the IAA. The referred materials do not include information regarding any possible assessment in Nauru. I have considered the utility of information regarding any assessment conducted in Nauru and its relevance to the applicant's SHEV application. I note that the IAA is required to assess whether the applicant meets the criterion for a protection visa under s.36(2)(a) of the Act and the definition of a refugee under s.SH(l) of the Act. I consider any information regarding a possible assessment in Nauru would be of limited relevance to the IAA assessment as it would relate to the provisions of the Refugee Status Determination as applied by the authorities in Nauru. I note that the purpose of IAA review is to assess protection obligations in the context of Australian law and I am not satisfied that any assessment or decision which may have been made within the Nauru Refugee Status Determination process and the jurisdiction of Nauru would be of sufficient relevance to this review and I am not satisfied that the circumstances warrant the IAA getting new information in this regard.

33    The respondent acknowledged that the basis on which the primary judge found that materiality had not been established, was not on a basis it had contended before his Honour. The respondent accepted that for the primary judge’s conclusion on that aspect to be correct, it would require the words of the Authority’s reasons to be read wider than actually phrased.

34    As the appellant submitted, at [8] the Authority describes the appellant’s representative as requesting “any assessment made by the Nauruan authorities on the applicant’s asylum claim in Nauru...”. Not having been provided with “information regarding any possible assessment in Nauru”, the Authority employs language inclusive of the existence or non-existence of an assessment or decision in addressing the representative’s request: “information regarding any possible assessment in Nauru”, “information regarding any assessment”, “information regarding a possible assessment”, and “any assessment or decision”. The appellant’s representative asked only for the RSD decision, if there was one, and the Authority responded to this request.

35    Properly read, given the language used, the Authority’s consideration at [8] did not extend to the Nauruan documents. It follows that the primary judge erred in concluding that the Authority had turned its mind to the exercise of its powers under s 473DC to obtain information the subject of the breach.

Materiality

36    The issue at hand is whether the Secretary’s breach was material. That involves the appellant establishing that there is a realistic possibility that the decision in fact made could have been different had the error not occurred. That is a question of fact: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (SZMTA) at [4], [45]-[47]; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 (MZAPC) at [1]-[4], [38]-[39]. The onus of proving, by admissible evidence on the balance of probabilities, facts necessary to satisfy the Court that the decision could realistically have been different had the breach not occurred lies with the appellant: MZAPC at [39], [60].

Submissions

37    The appellant submitted that the Nauruan documents were probative of the appellant’s claims that he feared harm from Sri Lankan authorities on return because they imputed to the appellant an association with the LTTE. The Authority rejected these claims, finding the Sri Lankan authorities did not have an ongoing interest in the appellant as his involvement with the LTTE had only been at a low level. It was submitted that the CID letter in particular corroborated the appellant’s claims that the Sri Lankan authorities had imputed to him a greater LTTE involvement than he had admitted to them.

38    The appellant submitted that the Authority rejected as “implausible” and “a fabrication” claims that:

(1)    in June 2012 members of the CID came to his home, workplace and his uncle’s house looking for him;

(2)    in November 2012, after the appellant had left the country, the CID conducted a round up in the appellant’s area and discovered he was missing;

(3)    a few days later the CID hand delivered a letter demanding his presence at their offices in Colombo in three days’ time;

(4)    the CID did not believe the appellant’s father’s explanation that the appellant had left for Australia; and

(5)    the CID detained his father, who attended the CID offices in his absence, for two days, interrogating and severely beating him.

39    The appellant also submitted that the Authority made a specific finding that it “was not satisfied that the authorities … issued a demand that [the appellant] attend for questioning”.

40    The appellant submitted that had the Authority been aware of the CID letter, there is more than a realistic possibility that its findings rejecting both the June 2012 and November 2012 incidents may have been different, as may have its consequent finding that the appellant did not have a profile of interest to the authorities in 2012. The translation of the CID letter discloses its consistency with his RSD Statement at [27]-[28], including the date, the identification and address of the appellant, the time for compliance (three days), the place for compliance (second floor of its offices in Colombo) and the sender and addressee. The untranslated CID letter is a template in English of a “Message Form” from the “Sri Lanka Police” dated 27 January 2012, “From Station”: TID Colombo “To Station”: Mannar. Within the handwritten text on the form are the numerals 2012.11.30 and 9.00.

41    It was submitted that the Authority’s rejection of the CID claims allowed it to find that the appellant was not of any interest to the authorities in 2012 only due to his activity with the LTTE being at a low level in 2008 or his LTTE familial links. These findings were a foundation for the Authority’s central finding that the appellant would not be of interest to the authorities.

42    It was also submitted had the Secretary given the Authority the CMN submissions, the Authority may have come to different conclusions about the plausibility of the CID claims it had rejected as a fabrication, and about the risk to the appellant in 2012 originating from his admission to the Sri Lankan Army in 2008 that he had been forcibly recruited by the LTTE for three days.

43    The respondent submitted that his Honour found that the Secretary’s breach was not material. It contended that the breach was not material due to the following. First, as the material was not before the delegate, it would be necessary for the appellant to establish exceptional circumstances under s 473DD(a) for the Authority to consider it. Second, there is detailed reasoning in the Authority’s decision rejecting the proposition that the appellant was of interest to Sri Lankan authorities in 2012 which is unconnected with the content of the CID letter. Third, in relation to the delivery of the CID letter, the reasoning includes the implausibility of the appellant’s and his father’s account. Fourth, on its face, the CID letter is not consistent with the claims. It is not a letter to, but a communication between police stations, of which there is no explanation. The respondent submitted that the combination of those matters gave rise to a question of its veracity. The respondent submitted that although it is not impossible that the presence of the letter would have made a difference, it would not have realistically led to a different outcome. In relation to the country information, it submitted that general information about Tamils would not have found in the appellant’s favour based on that material.

Consideration

44    The appellant’s submission should be accepted.

45    The CID letter, although more properly appearing to be a purported message from Colombo police station to Mannar police station rather than a letter to the appellant, on its face, is consistent with the appellant’s statement of claims as to the date, identification and address of the appellant, the time for compliance being in three days’ time, and the place for compliance being the second floor of its offices in Colombo. In so far as the appellant describes it as a letter, that is incorrect. As the respondent submitted, there is no explanation as to how the appellant came to be in possession of this message. Although the respondent raised issues with the consistency of this document and the appellant’s claim, primarily on the basis it is not a letter, the respondent accepted that it could not contend that the Authority would necessarily find it was not a genuine document. An argument may ensue about that, but it is not for this Court to resolve. I am not the trier of fact. On the material before this Court, there is arguably elements of consistency with the appellant’s claim, apart from its description.

46    As the respondent correctly contended, the Authority made a number of findings adverse to the appellant. However, the respondent’s submission that the reasoning in that regard, including that what was said about the appellant’s account of the events in June 2012 and November 2012 was implausible, are findings unconnected to the CID letter, is not so apparent. The findings include the events to which the CID letter was said to relate. Although the findings did not involve the CID letter, it does not necessarily follow that if the Authority had the material, it would not or could not have affected its assessment on any of those matters. It could not be said that if the Authority had the CID letter, it could not realistically have affected its assessment on those topics. Moreover, if that assessment may have been affected, it may also impact findings in respect to other matters: see for example Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 268 FCR 379 at [39].

47    Given the nature of the CID letter and the significance of the June 2012 and November 2012 events to the appellant’s claims, if the document is ultimately accepted as genuine, it may go to the Authority’s findings in respect to those events. It is a realistic possibility those findings may have been different, which may affect other findings and consequential conclusions.

48    Although submissions were made in respect to the remainder of the Nauruan documents, the appellant focussed most heavily on the CID letter. Given my conclusion in relation to the CID letter, it is unnecessary to further consider those remaining documents.

49    In those circumstances, in my view the appellant has established that the breach is material, that there is a realistic possibility that the decision made could have been different had the error not occurred.

Conclusion

50    The appeal is allowed. The orders of the Federal Circuit Court made on 16 December 2020 are set aside and in lieu thereof a constitutional writ be issued to the Authority quashing its decision of 14 January 2019, directing that the application be determined according to law. The first respondent is to pay the appellant’s costs to be agreed or taxed.

Associate:

Dated:    20 October 2021