Federal Court of Australia

DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15

ORDERS

THE COURT ORDERS THAT:

1.    There be leave to the appellant to amend the grounds of appeal in terms of the draft further amended notice of appeal dated 6 December 2021.

2.    The appeal be dismissed.

3.    The appellant do pay the costs of the first respondent to be assessed on a lump sum basis by a registrar if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant arrived in Australia by boat in 2012 claiming to have escaped persecution in Sri Lanka resulting from his suspected association with the Liberation Tigers of Tamil Eelam. He applied for a safe haven enterprise visa. In the course of consideration of his visa application, the appellant has been accepted to be of Tamil ethnicity and to be a citizen of Sri Lanka.

2    The consideration of the appellant's visa application has a long history. His application was first refused by a delegate of the Minister in 2016. The decision to refuse his visa application was then affirmed by the Immigration Assessment Authority in 2017. His application to review the Authority's decision for jurisdictional error was refused by a judge of what was then the Federal Circuit Court in 2018. An appeal in respect of the decision of the Circuit Court was then upheld by a decision made by a judge of this Court in 2019. The matter then went back to the Authority and was considered by a different reviewer. In 2019, the second reviewer also determined that the decision to refuse the application should be upheld. An application to review the second decision for jurisdictional error was brought in the Circuit Court. It was refused.

3    Acting on his own behalf, the appellant commenced an appeal in this Court. A major difficulty for his appeal was that his grounds of review before the Circuit Court were expressed in the most general terms and for that reason were properly dismissed by the primary judge. However, since the appeal was commenced, the appellant has obtained the assistance of pro bono counsel and, with the benefit of legal advice not previously available, he now seeks leave to amend to advance a ground that was not before the primary judge.

4    The proposed appeal ground concerns 'new information' (being information that was not before the Minister that the Authority considers may be relevant) that the appellant sought to present on the second review conducted by the Authority. The new information was put to the Authority on the basis that it supported claims that the appellant is politically active and deeply committed to achieving a separate Tamil homeland and has been an active and vocal participant in the Tamil diaspora community in Australia.

5    The Migration Act 1958 (Cth), by s 473DD, provides that the Authority must not consider 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.

6    The terms of s 473DD give rise to a statutory duty on the part of the Authority to form the required states of satisfaction for the purposes of establishing whether new information must not be considered in making its decision. If the Authority is so satisfied then it is empowered to consider the new information. The construction and operation of s 473DD was explained by Kiefel CJ, Gageler, Keane and Gordon JJ in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [7]-[11] in the following terms:

The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of 'exceptional circumstances' justifying its consideration of that new information.

New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of 'credible personal information', that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.

…

Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

(footnotes omitted)

7    Therefore, in order to validly perform the duty imposed by s 473DD it is not enough for the Authority to simply conclude that it is not satisfied that there are exceptional circumstances and, on that basis, not accept the new information for the purposes of making its decision concerning the visa. Rather, it must first consider whether the visa applicant has satisfied the Authority as to one or both of the criteria in s 473DD(b)(i) and (ii) (referred to in these reasons as Criterion (i) and Criterion (ii)). If it is satisfied as to one or both of those two criteria then that matter must be brought to account by the Authority in forming its state of satisfaction as to whether there are exceptional circumstances.

8    Further, those aspects of the legislative scheme must be considered in a context where s 473DC refers to new information as information that the Authority considers relevant that was not before the Minister. Therefore, in the circumstances of the present case, the question is not whether the information could have been provided to the Authority at the time of its first decision (since quashed) but whether it could have been provided at the time of the original decision by the delegate. It appears that, having regard to the context, the same would apply to the time at which it was necessary to consider whether the information was 'previously known' for the purposes of Criterion (ii).

9    At the hearing of the present appeal, the contentions for the appellant and the Minister were developed with close regard to the written reasons provided by the Authority on the second review concerning the new information. Therefore, it is necessary to set out that reasoning in full. It was as follows (with key parts highlighted in italics):

8.    Attached to the response dated 9 August 2019 that I had invited, there was a further 10 pages of submissions containing legal argument, responses to the delegate's decision, and new information. The representative also sent 387 pages of country information consisting of reports referred to in the new submissions.

9.    I have considered whether to accept the submissions. In this case submissions containing legal argument and addressing the delegate's decision have already been provided, on 29 April 2017. Those submissions were provided by an agent from the same firm as the current representative and were provided in a format complying with the Authority's Practice Direction. In the new submissions the representative has not complied with the Authority's Practice Direction which requires submissions to be no longer than 5 pages and to be provided within 21 days of the case being referred by the Department. The submissions are double the acceptable length and it is more than 33 months since the referral date. Section 473FB(5) provides that the Authority is not required to accept new information or documents from a person if the person fails to comply with a direction that applies to them. I acknowledge the unusual circumstances of this case where, as a court remittal, there is a considerable time difference between the initial referral and my review. I acknowledge there may be instances where significant new circumstances have arisen during such a period that an applicant would want to put forward. I consider the provisions in s.473DD allow me to accept and consider such new information should it meet the criteria, and to this end I have separately considered below the new information in the submissions. Taking into account that submissions have previously been provided, the applicant is represented by a migration agent who is also an agent from the same firm that previously represented him, and the current submissions do not comply with the Practice Direction, I have decided not to accept the submissions contained in [14] to [45] of the document dated 9 August 2019.

10.    The representative provided 387 pages of country information, which consisted of reports referred to in the 10 page submissions dated 9 August 2019. The representative has compiled a document stating the reports are all new information, except for 1 report that was considered by the delegate and 3 reports which the representative submits are not new information as earlier versions of the reports were before the delegate. I respectfully disagree with the representative's conclusion that these 3 reports are not new information and I find that they are. Whilst the representative has identified most of the country information reports as new information, they have not explained why there may be exceptional circumstances to justify considering the new country information. They have not provided any explanation on why the report that pre-date[s] the delegate's decision could not have been given to the Department or whether it contains credible personal information not previously known that may have affected the consideration of the claims. I have decided not to consider the new country information because, in taking into account the following, I am not satisfied there are exceptional circumstances to justify considering this new information: I have not accepted the submissions that refer to these reports; there is no explanation why the reports could not have been provided or contain credible personal information or why there may be exceptional circumstances to justify considering them; there is already relevant country information before me; and the fact that this is very large amount of country information that, apart from it being footnoted in the submissions, has been provided without explanation of which parts are specifically relevant to the applicant's particular case. I find s.473DD(a) is not met and therefore I must not consider the new information in the form of the new country information.

11.    I have considered whether to consider the new information contained in the submissions. This new information includes the following assertions, claims, and documents:

•    the applicant is politically active and deeply committed to achieving a separate Tamil homeland;

•    the applicant has been an active and vocal participant in the Tamil diaspora community in Australia;

•    the applicant has been a member of the Western Australian chapter of the Australian Tamil Congress (ATC) since 2014;

•    a letter from the ATC is provided, attaching 2 photographs of the applicant purportedly showing him at Tamil political events;

•    the applicant participated in a protest in early 2017 against the Sri Lankan authorities, with a screenshot from Facebook as evidence of this; and

•    a new claim that the applicant fears harm in Sri Lanka for his actual political opinion as a Tamil separatist, and his expression of that opinion in Australia, and his inability to freely express that opinion in Sri Lanka.

12.    I have concerns about the credibility of this new information as no such political profile has been raised before. There is also no explanation why the applicant has never before raised it. Although some of the activity may post-date the application, his claimed involvement with the ATC pre-dates it. There is no mention of political activity or a fear of harm because of his political opinion as a Tamil separatist in his written application. He also did not raise any such claims in his SHEV interview. When asked at the SHEV interview if he had any political affiliations in Sri Lanka or Australia he answered 'no'. There was no mention of any political activity or fear of harm because of a political opinion as a Tamil separatist in the submissions provided to the Authority by his representative on 29 April 2017. The only submission made regarding a political opinion was that he would be imputed as being anti-government because he departed illegally and sought asylum in Australia.

13.    I consider it significant that there is no hint in his SHEV application that this applicant might be a vocal activist committed to advocating for Tamil separatism. I consider it highly unlikely that an activist who is now described as 'deeply committed to the aim of achieving a separate Tamil homeland' could fail to mention this in his written claims and in his SHEV interview. If it could be argued this political view is a new development, there is no explanation in the submissions how he has become politically active only in the last 2 years. There is also a lack of detail about where, when and how the applicant has been politically active as a Tamil separatist or as an opponent of the Sri Lankan regime. The new information provided to support this assertion, in the form of the letter from the ATC, 2 photographs and 1 screenshot from Facebook, are unconvincing and insufficient to demonstrate he is as politically engaged as the new claim asserts. The letter from the ATC, which while stating the applicant has been an active member since 2014, merely describes his activity for the organisation as decorating their venue for events. I accept he may have some engagement with the ATC since 2014, but it may have been only to attend cultural events. His failure to raise earlier that he was a member of or attended events at the ATC indicates his association with them was of little relevance to his claims to fear returning to Sri Lanka. The two undated photographs provided with the ATC letter are of limited use. One photograph shows only he was present or posed for a photograph at a Tamil Heroes Day celebration. The other photograph shows him with 2 other men but it is not clear from the photograph where or when it was taken or what it is mean to show. The Facebook screenshot appears to show him holding a protest sign with three other men in February 2017, but there is no information of whose Facebook account this photograph is posted on or why it was posted. The photograph shows no more than 4 men holding a protest sign. There is no crowd in the background. Without more information or context it is difficult to see whether this was just a 4 man protest, or whether it was staged for some other purpose. I note also this photograph was taken some months prior to the submissions being provided to the Authority in April 2017 and prior to the first decision by the Authority. Again, there is no explanation why the photograph was not provided earlier.

14.    I note in the 9 August 2019 submissions at [25] the representative writes 'the First and Second Applicants will be perceived by the Sri Lankan authorities as part of the Tamil diaspora working for Tamil separatism'. This clearly does not refer to the applicant, who is a single applicant, and raises doubts about whether some of this new information about political activity is genuinely about this particular applicant.

15.    Taking into account the lateness of the political claim, the minimal evidence provided to support it, the lack of any suggestion before from the applicant that he held such political views, his failure to raise this claim or even raise any information suggesting he might have such a claim in his SHEV application or at his first review, the error in the submissions which suggest some of this alleged political profile may not even be about this applicant, the lack of any submissions on why this information could not have been provided earlier, and the general lack of credibility of this new information for the aforementioned reasons, I am not satisfied there are exceptional circumstances to justify considering the new information including the political opinion and activity claims or the documents associated with this new claim including the letter from the ATC, the 2 photographs and the Facebook screenshot. I find s.473DD(a) is not met and therefore I must not consider this new information.

10    The Authority has no obligation to provide reasons for the formation of the states of satisfaction required by s 473DD: CAQ17 v Minister for Immigration and Border Protection [2019] FCAFC 203; (2019) 274 FCR 477 at [119] (Derrington and Steward JJ). It follows that if reasons are given it could not be necessary for the Authority to refer to the statutory provisions in terms at the relevant point in the reasons in order to fulfil the statutory duty imposed by s 473DD. However, the required state of satisfaction must in fact be formed and it must be formed in the manner described in AUS17. The reasons that have been given by the Authority are significant evidence in that regard.

The proposed ground of appeal

11    The only appeal ground that the appellant seeks to pursue is the proposed appeal ground which is as follows:

The learned primary Judge erred in not finding that the second respondent's decision was vitiated by a constructive failure to exercise jurisdiction in the exercise of s 473DD of the Migration Act 1958 (Cth), or a failure to take into account a mandatory consideration.

Particulars

[a]    The second respondent failed to bring to account the criterion under 473DD(b)(i) in its evaluation of 'exceptional circumstances' under 473DD(a), alternatively that both 473DD(b)(i) and 473DD(b)(ii) (properly construed) could have been brought to account in its evaluation of 'exceptional circumstances';

[b]    At [11]-[15] of the decision record the second respondent applied a standard of 'truthfulness' in considering whether there was 'credible personal information' under 473DD(b)(ii), whereas the correct standard was merely 'capable of being believed';

Application for leave to amend

12    Leave to amend the grounds of appeal was opposed by the Minister, principally on the ground that its merits are weak. It was also submitted that to allow the amendment was not expedient in the interests of justice because the case to be advanced was entirely new, would give rise to prejudice because it would deny the Minister of the ability to appeal as of right and did not give rise to a question of public importance. It was also said that the lack of legal representation for the appellant before the primary judge was not an adequate explanation for not having raised the point at all in the Circuit Court. In my view, the significance of the lack of legal representation for the failure to raise a point before the primary judge depends on the circumstances, particularly the nature of the point and the personal circumstances of the appellant. However, mere lack of legal representation is not, of itself, an adequate explanation.

13    I considered the authorities concerned with leave to appeal in cases which are concerned with the migration status of an appellant in CHZ19 v Minister for Home Affairs [2019] FCA 914 at [31]-[39]. Although various matters are identified in the decided cases (including those relied upon by the Minister), the Court will grant leave if satisfied that it is expedient and in the interests of justice for arguments which were not before the primary judge to be considered for the first time on appeal: O'Brien v Komesaroff (1982) 150 CLR 310 at 319.

14    Matters counting in favour of leave in the present case are:

(1)    the proposed ground does not require any evaluation of the evidence beyond the content of the reasons;

(2)    the appellant did not have the benefit of legal advice in the conduct of his application in the Circuit Court;

(3)    the appellant speaks broken English but is illiterate in English and requires assistance to understand what to do in respect of written communications concerning court proceedings;

(4)    the subject matter of the appeal is the migration status of the appellant;

(5)    having regard to the reasoning in AUS17 and the reasons as expressed by the Authority the first particular of the proposed appeal ground is arguable because it appears, at least, that the Authority did not consider separately whether the new information could not have been provided to the Minister (as distinct from the Authority at its first hearing);

(6)    AUS17 was not delivered until after the decision by the primary judge and therefore was not a matter which might have been considered as displaying self-evident error of the kind that might have been considered by the primary judge in undertaking the course described by McKerracher J in COS16 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 112 at [20] as appropriate where an applicant appears without legal assistance;

(7)    there is support in the cases for the proposition that the Authority fails to perform its duty for the purposes of Criterion (ii) if it approaches the question of credibility on the basis that it must determine whether the new information is true and there is some basis for contending that the Authority adopted such an approach; and

(8)    the proposed appeal ground is very confined as to the issues that it raises and the materials to be considered in order to determine those issues.

15    Balancing these matters with the considerations raised by the Minister, I am persuaded that it is expedient in the interests of justice for there to be leave to advance the proposed ground of appeal.

Particular [a]: Alleged failure to conform to the requirements of s 473DD(b)

16    For the following reasons, I am persuaded that the Authority failed to understand and apply the two criteria in s 473DD(b) in the manner explained in AUS17.

17    The Authority commenced its consideration of the new information in para 9 of its reasons. When the nature of the Authority's task in doing so was first stated by the reviewer it was expressed in the following terms (para 9):

I consider the provisions in s.473DD allow me to accept and consider such new information should it meet the criteria, and to this end I have separately considered below the new information in the submissions.

18    Significantly, the Authority identified that s 473DD allows the acceptance of the information 'should it meet the criteria'. The use of the term 'criteria' indicates that the Authority may have understood that its duty was to consider all the criteria in the provision. However, the language used is equally consistent with a view that if the criterion concerning exceptional circumstances was not met then it was not necessary to form a view as to whether each of Criteria (i) and (ii) was met. In any event, the Authority at this point is indicating that its consideration as to whether those criteria are met is undertaken in the following paragraphs of its reasons. It is to those paragraphs that the reader is directed in order to understand the Authority's reasoning concerning the criteria.

19    In the next paragraph (para 10), the Authority focussed on whether additional country information should be received as new information. At this point, the Authority used the language of s 477DD to explain what it had concluded by stating:

Whilst the representative has identified most of the country information reports as new information, they have not explained why there may be exceptional circumstances to justify considering the new country information. They have not provided any explanation on why the report that pre-date[s] the delegate's decision could not have been given to the Department or whether it contains credible personal information not previously known that may have affected the consideration of the claims.

20    The passage explains that the view of the Authority is that none of the criteria in s 477DD are met. However, to the extent that the passage reveals the Authority's view as to the nature of the task that it was undertaking, the sequence suggests that the consideration of exceptional circumstances was not approached as a matter that was to be informed by whether Criterion (i) or Criterion (ii) or both had been met. Rather, exceptional circumstances were first to be considered. If the Tribunal had indeed approached the matter in the manner required by AUS17 then once it had found that neither of Criteria (i) or (ii) was met then that would be the end of the matter. There would be no need to consider whether there were exceptional circumstances. However, it is to be noted that the reference to Criterion (i) correctly identified the issue as being whether the information could have been provided to the delegate (rather than to the Authority at the first review).

21    Significantly, the adoption of a sequence whereby exceptional circumstances are first considered is reflected in the conclusion reached concerning the country information. It is expressed in the following terms:

I find s.473DD(a) is not met and therefore I must not consider the new information in the form of the new country information.

Expressed in those terms by reference to s 473DD(a), it appears that the whole conclusion rests on a view that the requirement for exceptional circumstances expressed in s 473DD(a) is not met.

22    The Authority then considered the new information contained within the submissions (para 11). It began by stating its concerns about the credibility of the information (being an issue that forms part of Criterion (ii) but is also a matter that would be relevant to exceptional circumstances). After considering various aspects of new information in paras 12-14, the Authority then expressed its conclusion in terms that it was not satisfied that there were exceptional circumstances and concluded ultimately that:

I find s.473DD(a) is not met and therefore I must not consider this new information.

23    Counsel for the Minister contended that consideration of Criteria (i) and (ii) was evident in the matters considered within paras 12-14. In particular, it was submitted that those paragraphs considered whether there was an explanation as to whether the new information contained in the submissions could have been provided earlier (being the relevant inquiry for the purposes of Criterion (i)) and whether the new information was credible (being the relevant inquiry for the purposes of Criterion (ii)). It may be accepted that the Authority did reason principally by considering the credibility of the new information. As was submitted for the Minister, the language of the reasons is consistent with the Authority addressing the credibility of the personal information that was presented as new information. In particular, the Authority stated that it had concerns about the credibility of the new information, that certain matters were 'highly unlikely', 'unconvincing' and 'insufficient' and that there was a 'general lack of credibility' about the new information. However, in doing so the Authority did not frame the inquiry in terms of the language of Criterion (ii). Given the formulation in reasons that information was not new information because s 473DD(a) (exceptional circumstances) was not met, this aspect has some significance when concluding what the reasons show concerning the way in which the Authority formed its required states of satisfaction.

24    Further, it is to be noted that the Authority did not deal with the new information by inquiring whether it could have been provided to the Minister's delegate before the original decision was made (as required by Criterion (i)). Rather, it dealt with the new information by considering the more general question whether there was any explanation as to why it had not been raised before (that is before it was provided with the submission as part of the second review by the Authority as distinct from whether it could have been provided to the Minister before the delegate's decision). Indeed in para 12, the Authority reasoned by reference to the failure to raise certain matters at the time of the Authority's first decision (not at the earlier time of the delegate's decision) when it said:

There was no mention of any political activity or fear of harm because of a political opinion as a Tamil separatist in the submissions provided to the Authority by his representative on 29 April 2017. The only submission made regarding a political opinion was that he would be imputed as being anti-government because he departed illegally and sought asylum in Australia.

25    Therefore, I am not satisfied that in considering whether the information could have been provided earlier and whether the new information was credible, the Authority was first considering whether Criterion (i) or Criterion (ii) or both had been met and then bringing those matters to account (if established) as part of considering whether there were exceptional circumstances. Rather, the whole of the reasons indicate that the Authority acted upon a misunderstanding of what was required by s 473DD and approached the matter on the basis that if it was not satisfied that there were exceptional circumstances it did not have to form a separate view as to the particular criteria in s 473DD(b).

26    For those reasons, subject to the issue of materiality (see below), I would uphold the matters the subject of particular [a].

Particular [b]: Alleged application of a standard of truthfulness

27    Much of the reasoning by the Authority as to why the new information did not satisfy s 473DD concerned the credibility of the new information. It was submitted for the appellant that the Authority adopted an approach of testing the new evidence and in doing so undertook an analysis that involved an evaluation as to whether the claims to which the new information related were true. It was said that the logical premise of the reasoning was to the effect that if the claims were true then they would have been made earlier. Reasoning of that kind as a basis for not considering the information was said to involve peremptory disbelief rather than an assessment of credibility.

28    Reliance was placed upon the reasoning of Mortimer and Jackson JJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159. Their Honours undertook a detailed analysis of the state of the authorities concerning the nature of the task to be undertaken when considering whether new information was required to be excluded from consideration by s 473DD and concluded at [76]-[77] as follows:

Particularly in a scheme premised on a review 'on the papers', there is a real difficulty with the Authority undertaking some kind of substantively evaluative process at this point, and weighing the new information, the visa applicant's explanation of why it should be considered, and the existing review material together, and then reaching some relatively definitive findings about the credibility of the visa applicant (which would occur in deciding if the new information were 'true'). That difficulty is that the Authority is, in substance, taking into account material that is not before it on the review in determining the credibility of the visa applicant. That is neither what the legislative scheme of Pt 7AA contemplates nor what it permits. Fresh decisions on the review must be based on the review material before the Authority: they cannot be based on extraneous material, which is what 'new information' is, until it is admitted. That, in our opinion, is an important reason why the approach identified by Bromberg J in CSR16 is correct.

Viewed in its context, as Bromberg J identified at [42], the terms of s 473DD(b)(ii) operate as a filter, which the Authority is required to apply to 'new information' proposed to be presented by a visa applicant. The subsection sets a threshold, requiring a visa applicant to satisfy the Authority the new information has that character, or, if it does not have that character, that it was not and could not have been provided to the Minister or her or his delegate prior to the s 65 decision (s 473DD(b)(i)). In either case the Authority must still be satisfied there are 'exceptional circumstances' justifying including the new information in the material to be considered by the Authority on its review. Considering s 473DD as a whole, there is no basis to suppose Parliament intended some kind of intensive and final analysis of the probative value of new information to occur within the confines of s 473DD(b)(ii) …

29    In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Bromberg J concluded at [42]-[43]:

The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word 'credible' is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is 'evidently not credible' (VEAL v Minister for Immigration and Multicultural Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

The Authority determined that the 'new information' that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the 'new information' was true when all that the s 473DD(b)(ii) criteria requires is the Authority's satisfaction that the new information is capable of being believed at the deliberative stage of the Authority's review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error …

30    The approach in BTW17 was followed by Kerr and Mortimer JJ (Allsop CJ agreeing) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AWT19 [2021] FCAFC 58 at [87] where their Honours referred to s 473DD(b)(ii) as not involving an inquiry as to truth but as to credibility.

31    Logically, the matters that will bear upon whether information is capable of being believed will also bear upon whether it is actually to be accepted as truthful for the purposes of the exercise of a decision-making power. The distinction lies in how far the consideration of the information is taken for the purposes of s 473DD(b)(ii). Further, it would be inconsistent with the terms of s 473DD if the Authority formed a conclusion that credible personal information was not truthful for the purposes of considering whether there were exceptional circumstances. The nature and extent of what may be brought to account in determining whether there are exceptional circumstances must be informed by the context of the provision which, as was determined in AUS17, requires Criterion (i) and Criterion (ii) to be considered first and those matters to be brought to account in determining whether there are exceptional circumstances.

32    The matters advanced in support of particular [b] focus upon the analysis in paras 12-15 of the Authority's reasons. They begin by stating: 'I have concerns about the credibility of this new information as no such political profile has been raised before'. Then there is a finding that there is no explanation as to why the political profile has not been raised before. The reasons then deal with the circumstances in which it might have been raised but was not (paras 12-13).

33    In para 13, the reasons go on to state that the reviewer considers it 'highly unlikely' that a person who was an activist of the kind now described in the claims of the nature now advanced would not have mentioned those claims in earlier written claims and the appellant's interview with the Department for the purposes of his visa application. There is also regard to the lack of detail to support the claims.

34    Next, photographs and a screenshot are described as 'unconvincing and insufficient' (para 13). This is the language of evaluation of the persuasiveness of the evidence when it comes to establishing the claim. It is not indicative of a consideration as to whether the information itself is credible such that it might be received as relevant information for the purposes of deciding whether the claims should be accepted as true.

35    In para 14, there is regard to a part of the submissions which refers to two applicants being perceived as part of the Tamil diaspora working for separatism. This was said to raise doubts about whether some of the information is genuinely about this particular applicant. This observation is directed towards the credibility of the information.

36    Matters are brought to a conclusion in para 15. There is a summary of matters identified in the earlier reasoning to support the view that the Authority is not satisfied that there are exceptional circumstances to justify considering the new information. The summary ends with the following statement by way of conclusion: 'the general lack of credibility of this new information for the aforementioned reasons'. Thus, all of the previous reasons are brought together to conclude that there is a general lack of credibility in respect of the information. So, the conclusion, in terms, focusses upon credibility.

37    Accordingly, whilst there are aspects of the reasons that might be read as indicating that the Authority undertook an evaluation as to whether to accept the information as true, having regard to the reasons as a whole, the focus was on the credibility of the information and the articulation of the Authority's concerns as to why the information, in the view of the reviewer, was not capable of being believed.

38    To the extent that the conclusion as to credibility is reached as part of a consideration as to whether there are exceptional circumstances rather than as to whether Criterion (ii) is met, that aspect further supports the earlier conclusion that particular [a] has been established by the appellant.

39    However, as to particular [b] for the reasons that have been given, the appellant has not made out that claim.

Materiality

40    There was no dispute that any failure to meet the requisite statutory requirements as to the formation by the Authority of the requisite states of satisfaction had to be material before there would be jurisdictional error that would invalidate the action by the Authority as the repository of the relevant statutory duty. Therefore, an issue arises as to whether the result arrived at by the Authority could realistically have been different had the irregularity described in particular [a] not occurred.

41    In MZAPC v Minister for Immigration and Border Protection [2021] HCA 17, Kiefel CJ, Gageler, Keane and Gleeson JJ described the nature of the inquiry to be undertaken in determining whether there was a material breach of the relevant statutory requirement in the following terms (at [37]-[39]):

Subsequently, in CNY17 v Minister for Immigration and Border Protection, Kiefel CJ and Gageler J referred to the determination of materiality by a court as involving 'a question of counter-factual analysis to be determined by the court as a matter of objective possibility as an aspect of determining whether an identified failure to comply with a statutory condition has resulted in a decision that has in fact been made being a decision that is wanting in statutory authorisation'. The same point was made in different language by the Full Court of the Federal Court in BDY18 v Minister for Immigration and Border Protection, where it said that '[m]ateriality is concerned with the significance of the failure to conform to the statutory task entrusted to the decision-maker' and that '[t]he inquiry is backward looking and concerns what the decision-maker did in the particular case'.

The counterfactual question of whether the decision that was in fact made could have been different had there been compliance with the condition that was in fact breached cannot be answered without determining the basal factual question of how the decision that was in fact made was in fact made. Like other historical facts to be determined in other civil proceedings, the facts as to what occurred in the making of the decision must be determined in an application for judicial review on the balance of probabilities by inferences drawn from the totality of the evidence. And like other counterfactual questions in civil proceedings as to what could have occurred - as distinct from what would have occurred - had there been compliance with a legal obligation that was in fact breached, whether the decision that was in fact made could have been different had the condition been complied with falls to be determined as a matter of reasonable conjecture within the parameters set by the historical facts that have been determined on the balance of probabilities.

Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.

(footnotes omitted)

42    Particular [a] was advanced to support a claim that there was a constructive failure to exercise the jurisdiction conferred by s 473DD or a failure to take into account a mandatory consideration (being the relevant criteria). Therefore, the case for the appellant depended upon demonstrating a material failure in undertaking what was required to perform the statutory duty imposed by s 473DD. What was required to perform that duty was the formation of states of satisfaction by the Authority. So, the question is whether the formation of the required states of satisfaction for the purposes of s 473DD could realistically have been different such that the Authority would have been empowered to consider the new information.

43    Had there been compliance with the requirements of s 473DD then the Authority would have considered each of Criterion (i) and Criterion (ii) before considering whether there were exceptional circumstances. Further, if either or both had been met then that was a matter that the Authority would have brought to account in deciding whether there were exceptional circumstances.

44    Significantly, much of the Authority's reasoning as to the lack of explanation as to why the information was not provided before would have been invited in considering Criterion (i). Further, the reasoning as to credibility would have been applied to Criterion (ii). Therefore, although the Authority did not undertake its consideration by first considering each of Criterion (i) and Criterion (ii) and then bringing to account the extent to which it was satisfied that either or both had been demonstrated in considering whether there were exceptional circumstances, it did address the subject matter that was relevant to each of the two criteria in reaching its conclusion it was not satisfied that there were exceptional circumstances.

45    Further, the appellant points to no aspect of what might have been considered under the two criteria (but was not considered) that may have had sufficient significance to support the conclusion that the outcome could realistically have been different. The submissions in that regard tended to focus upon the possible significance of the information for the decision to be made on the review as to whether to affirm the decision of the delegate. For reasons given below, in my view, that is not the correct approach. Rather, it is necessary to consider whether the states of satisfaction required to be formed for the purposes of s 473DD might have been formed differently with the result that the field of information that must not be considered could realistically have been different. In short, a material failure to conform to the requirements of s 473DD does not depend upon any analysis of the substantive reasons on the review.

46    It is the case that part of the Authority's reasoning as to the lack of any explanation as to why the information had never been raised concerned the failure by the appellant to raise the same claims at the first Authority hearing when Criterion (i) required there to be a focus on whether it could have been raised before the delegate who made the initial decision. However, the failure to raise the claims before the Authority prior to the first review is a matter that could be brought to account in determining whether there were exceptional circumstances. Therefore, it is not the case that it was a matter that should have been disregarded.

47    It follows, in my view, that the appellant has not shown that the failure to conform to the requirements of s 473DD(b) by first considering Criterion (i) and Criterion (ii) if corrected would have led to a different result. If that course had been followed, there is no additional matter that would have been considered and no matter that was considered that would have been excluded. The matters to be brought to account in deciding whether there were exceptional circumstances would have been the same. There is no factual basis for concluding that the Authority may have adopted a different approach to considering the same information. Therefore, materiality has not been demonstrated.

48    As has been noted, for the appellant, reliance was placed upon the fact that there were parts of the substantive decision to affirm the delegate's decision to refuse the visa application to support the conclusion that the failure to conform to the requirements of s 473DD was material. For the Minister it was contended that even if the new information had been considered by the Authority then it had not been demonstrated by the appellant that it could realistically have resulted in a different outcome on the review.

49    In my view, it is not proper to approach the question of materiality is that way. This is not a case where the complaint made is of a procedural error in the course of the substantive review. In such cases, procedural decisions (such as whether to accept new information not excluded from consideration by s 473DD) form part of the performance of the statutory duty to make a substantive decision. In the present case, the extent of procedural power depends upon the operation of s 473DD. It does not authorise the receipt of information that must not be considered by reason of s 473DD. However, no part of the substantive review (or the procedure to be followed in undertaking that review) involves forming the states of satisfaction that must be formed to determine whether new information cannot be considered. Rather, the review is conducted within the limit established by s 473DD.

50    Put another way, the formation of the states of satisfaction for the purposes of s 473DD were a necessary preliminary statutory step that determined the extent of the information in respect of which the Authority then had a procedural power to decide whether to 'get, request or accept' new information (see s 473DC). The formation of the views required by the terms of s 473DD were not part of the procedure for the substantive adjudication to be undertaken by the Authority. Rather, they determined the scope of the information that the Authority must not consider. Once the requisite states of satisfaction had been formed, there was no procedure that the Authority could adopt (validly) to receive that excluded information. By operation of s 473DD it was out of bounds. Therefore, s 473DD established a jurisdictional limit upon the Authority's decision-making power in undertaking a review under Part 7AA.

51    In consequence, a material failure to conform to the requirements of s 473DD did not form part of the review. Likewise, a material consequence of such failure for the review could not be said to be a material failure to conform to s 473DD. It was only the extent of the failure to conform to s 473DD that had to be material in order for there to be invalidity in the actions that purported to discharge the statutory duty imposed by the provision (which was not a duty to determine the review).

52    Materiality is a principle of statutory construction by which a statutory provision is 'ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance': Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 (Kiefel CJ, Gageler and Keane JJ). The present case concerns the proper construction of s 473DD(b). It incorporates a threshold of materiality. If the correct application of s 473DD could realistically have resulted in the consideration of the new information by the Authority then there has been invalidity in the discharge of the statutory duty. It is no less material if it might be concluded that the failure to comply with s 473DD was not likely to have affected the ultimate decision by the Authority.

53    The present case must be distinguished from the circumstances that arise in cases like ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439. In that case, the plurality (Kiefel CJ, Bell, Gageler and Keane JJ) found that in performing its duty to review, the Authority acted unreasonably in failing to use the procedural powers at its disposal when undertaking the review to get and consider new information in order to be able to assess the credibility of the visa applicant in the same way as the delegate: at [30]-[31]. Here, the issue is whether there was any such procedural power in respect of new information which, by reason of the states of satisfaction formed by the Authority), must not be considered.

54    Therefore, the invalidating effect of any failure to conform to the requirements of s 473DD would concern the operation of that provision in curtailing the information that the Authority might receive. The invalidating effect, if it arises in consequence of a failure to satisfy a condition for the operation of the statutory provision, must relate to the operation of the statutory provision in respect of which there is a failure to meet the condition for the valid operation of the power: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[93]. If it is a condition precedent to the operation of a further statutory provision that confers a decision-making power then there may be consequences for the validity of any decision made in circumstances where the requirements of the precedent provision were not met: Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 at [85] (Kiefel CJ, Bell, Gageler and Keane JJ). Therefore, a question may arise as to whether, as a matter of statutory construction, a material failure to comply with s 473DD will affect the validity of the ultimate decision irrespective of whether it was demonstrated that the ultimate outcome on the review could realistically have been different if there was compliance with the requirements of s 473DD. However, neither party put the issue in that way and given the conclusion I have reached to the effect that the failure to conform to the requirements of s 473DD was not material to the performance of the statutory duty that it imposed, the issue need not be addressed.

55    There may also be an issue as to whether relief should be granted in respect of a demonstrated material failure to conform to the requirements of s 473DD if it was shown that the relief would be futile because the correction of the failure could not lead to a different outcome. The grant of relief is discretionary and may be refused if no useful result would ensue: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [28] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Lee v Minister for Immigration and Citizenship [2007] FCAFC 62; (2007) 159 FCR 181 at [46]-[48] (Besanko J, Moore and Buchanan JJ agreeing); and Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; (2017) 250 FCR 309 at [95]-[98] (Griffiths and Moshinsky JJ). However, that gives rise to very different factual issues and would require the Minister to demonstrate that was the case. No such attempt was made by the Minister in the present case.

Conclusion

56    For those reasons, there should be leave to amend the grounds of appeal to raise the new ground but the appeal should be dismissed. It was accepted by both parties that costs should follow the event. Therefore, there should also be a costs order in favour of the Minister.

Associate:

Dated:    20 January 2022