Federal Court of Australia

DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 857

ORDERS

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The judgment of the Federal Circuit Court of Australia in DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1531 is set aside.

3. The decision of the second respondent made on 23 May 2018 affirming a decision of the delegate of the first respondent refusing to grant the appellant a Safe Haven Enterprise Visa is quashed.

4. The second respondent review the decision of the delegate of the first respondent according to law.

5. The first respondent pay the appellant’s costs of the proceeding before the Federal Circuit Court and the appeal.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    On 23 May 2018, the Immigration Assessment Authority (the Authority) affirmed a decision of the delegate of the first respondent (the Minister) refusing to grant the appellant a Safe Haven Enterprise Visa (SHEV).

2    The appellant appeals from the judgment of the Federal Circuit Court of Australia (DCF18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1531) dismissing his application for judicial review of the Authority’s decision. In order to give context to the grounds of appeal and parties’ submissions, it is necessary to begin by describing the factual background, the decisions of the Authority and the Federal Circuit Court and the legislative scheme.

Factual background

3    The appellant is a citizen of Sri Lanka. He arrived by boat in Australia in November 2012. On 14 December 2016, he applied for a SHEV.

4    On 27 April 2017, the appellant attended an interview with the Minister’s delegate in respect of his application (the SHEV interview). The appellant explained that he identifies as Tamil, but is from a Telugu-speaking ethnic group considered to be of low caste and described as “untouchable”.

5    The appellant claimed that he and his wife had faced discrimination in Sri Lanka because of their ethnicity. The appellant asserted that, prior to their marriage, his wife had been a member of the Liberation Tigers of Tamil Eelam (LTTE). The appellant claimed they had faced harassment from the Sri Lankan authorities and the LTTE. The appellant had been abducted and beaten as a suspected member of an anti-government group. His son was severely harassed, including because of, “some issues following the death of his wife”. The appellant also stated that he feared a group called “the Grease Men” who, in 2011, had threatened and harassed people in his village.

6    The appellant claimed to fear harm at the hands of the Sri Lankan authorities on the basis of a political opinion imputed to him, namely that he supported the LTTE, and the Tamil and Telugu ethnicity imputed to him. He also claimed to fear discrimination from the general population on the basis of his membership of a particular social group, namely “the untouchables”. These were his principal claims for protection.

7    On 2 November 2017, the delegate refused the appellant’s application for a SHEV. In respect of the appellant’s claim to fear harm from the Sri Lankan authorities, the delegate considered that the security situation for Tamils had generally improved. The delegate was satisfied that there were no outstanding court matters such as warrants or summons that would result in further questioning or detention of the appellant. The delegate found that the appellant did not have a profile of interest to the Sri Lankan authorities, and the chance he would face serious harm because of any real or perceived links to the LTTE was remote. The delegate accepted that the appellant had faced some harassment in the past because he was Telugu, but did not consider that amounted to “serious harm”. The delegate determined that the appellant was not a refugee and was not owed protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

8    On 3 November 2017, one day after the delegate’s decision was made, the Department received a letter dated 31 October 2017 from the appellant’s migration agent. The letter had been sent on 31 October 2017 by registered post. The letter enclosed the appellant’s statutory declaration (the October Declaration) raising matters that had not been mentioned during his SHEV interview. Those matters were:

(a)    In 2011, the appellant’s son was arrested in Sri Lanka and charged with the murder of his wife. The son had spent eight months in prison before he was released on bail with the condition that he report monthly to the Sri Lankan authorities.

(b)    The appellant and his son had then fled Sri Lanka. The Sri Lankan authorities have issued an arrest warrant for the appellant and his wife and son.

(c)    The appellant fears that if he is returned to Sri Lanka, he will be detained and, due to his senior age and ethnicity, will face a real risk of harm through harassment and discrimination from the Sri Lankan authorities.

(d)    The appellant claimed to fear this harm based on the persecution he had faced in the past as detailed in his previous statement and at his SHEV interview.

(e)    The appellant did not disclose this information at the SHEV interview because he was feeling fearful, stressed and anxious and believed that he would be deported and reported to the Sri Lankan authorities.

9    On 6 November 2017, the Secretary referred the decision, which was a “fast track reviewable decision”, to the Authority for review pursuant to Part 7AA of the Act. The Secretary did not give the October Declaration to the Authority.

10    On 21 November 2017, the appellant’s legal representatives provided written submissions to the Authority. They also provided a further statutory declaration to the Authority (the November Declaration) giving an additional explanation for why the arrest warrants had not been disclosed by the appellant during his entry interview in 2012 or at the SHEV interview. It is common ground that the October Declaration and other material posted to the Department on 31 October 2017 was also provided to the Authority by the legal representatives. The submissions noted that the matters set out in the October Declaration appeared not to have been considered by the delegate and asked that they be considered on the review. The appellant’s legal representatives submitted that the October Declaration was not “new information” within the meaning of s 473DC(1) of the Act as it had been provided to the delegate before the decision was made, or, alternatively, that the Authority was not precluded from having regard to it by operation of s 473DD of the Act.

11    On 14 May 2018, the Authority, on its own initiative, made a “post-referral request for documents” to the Department, as follows:

Can you please check your records to see if additional information was sent prior to the delegate’s decision date of 2 November 2017? If so can you please send that additional information to the IAA?

12    In its response of 14 May 2018, the Department confirmed that the October Declaration had not been received until the day after the delegate had made the decision. The Department provided the October Declaration to the Authority by uploading it to a shared database.

13    On 23 May 2018, the Authority affirmed the delegate’s decision. In so finding, the Authority noted that it, “had regard to the material given by the Secretary under s 473CB of the [Act]”, and to the appellant’s submissions, “to the extent that they argue errors and/or omissions in the delegate’s decision based on the information that was before the delegate”.

14    The Authority found that the information contained in the October Declaration was “new information” that was not before the delegate. The Authority found, by reference to s 473DD of the Act, that it was not permitted to consider the October Declaration for the following reasons:

12.    At the beginning of the SHEV interview, the delegate advised the applicant that it was his responsibility to raise all his claims and that, if his application was refused, he may not be able to raise additional claims or change the details of his claims at a later date. The applicant confirmed that he understood his obligations. Given the applicant was put on notice that he needed to raise all his claims and may not have another opportunity to do so, I find it incredible that he would not disclose having a son charged with murder, having—presumably—another son in prison until 2015, having a son perceived to be an LTTE member and having an arrest warrant issued in his, his wife and his son’s names in Sri Lanka. The applicant attested that he didn’t raise these new claims during his SHEV interview because of fear, stress and the anxiety he felt at the time. He did not disclose that an arrest warrant had been issued in his name because he had heard the Australian government had been returning people of Tamil descent to Sri Lanka and he thought he would be deported immediately. He was very anxious and didn’t know if he could trust the DIBP not to pass on his whereabouts to the Sri Lankan government. I note that during the SHEV interview the delegate told the applicant that none of his information would be given to the Sri Lankan authorities while his protection claims were being assessed.

13.    The applicant’s representative submitted that the applicant’s mental health is declining...I do not accept that the applicant failed to raise his new claims prior to the delegate making his decision because he was fearful, stressed or anxious. In the absence of corroborating evidence, I do not accept that the applicant’s mental health is declining or that he is often unable to remember specific dates or recall past statements. I do not accept that the applicant failed to disclose he had an arrest warrant issued in his name because he thought the Australian government would tell the Sri Lankan government or deport him. I find that the applicant has no valid reason for not providing his new claims prior to the delegate making his decision. These claims were within his personal knowledge and related to events that had happened prior to his SHEV application and interview.

14.    The applicant provided a copy of a document that looked to be the back pages of a Sri Lankan passport with some hand writing on it. Some of the hand writing included B3409/11 and 0728622912. There is a hand written notation at the bottom of the page that states B3409/11 is the case number for the murder charge. During the SHEV interview the applicant provided the delegate with an Emergency Certificate issued in the applicant’s name and valid from 1995 to 1997. On page 1 of that Emergency Certificate appears some writing that included B34509/11 (sic) and 0728622912. If the applicant’s son’s case number related to his charge of murder is B3409/11 there is no plausible reason for this number to appear in a document that was issued in the applicant’s name and expired in 1997. Given the chance of the same sequence of seven numbers and one letter of the alphabet representing something other than the applicant’s son’s case number in 1995/1997 is so low, I do not accept that it is a mere coincidence. I find that the same number appearing in the applicant’s Emergency Certificate that was valid between 1995 and 1997 severely undermines the credibility of the applicant’s claim that the number of his son’s murder case is B3409/11.

15.    The applicant provided a translated cash receipt dated 19 October 2015 stating that 100,000 Sri Lankan Rupees (LKR) was paid for bail charges in relation to High Court case number 54/15…Based on the evidence before me, I am not satisfied that the cash receipt supports the applicant’s claim that his wife paid 100,000 LKR to have one of their sons released from prison.

16.    The applicant’s new claims are that an arrest warrant was issued in his name because his son – who was charged with the murder of his wife – breached his bail conditions and fled Sri Lanka via boat. In his October Statutory Declaration he stated that it was issued after he left Sri Lanka. In his November Statutory Declaration he stated that it was issued before and after he left Sri Lanka. The applicant has not provided details about why the arrest warrant was issued to him and his wife or whether his wife—who purportedly has a Sri Lankan lawyer and posted bail for one of their sons to be released from prison—still has an outstanding warrant or has, in fact, been arrested and taken before a judge. Despite having more than five months to do so, the applicant has failed to provide the evidence he referred to in his Statutory Declarations’ dated 31 October 2017 and 21 November 2017.

17.    The applicant’s claims about his son getting out of prison on bail in 2015, his son being perceived to be a member of the LTTE and his claim that he will be denied bail and kept in prison for many months because of his previous dealings with the SLP are vague and general.

18.     I have found that the applicant had no valid reason for not providing his new claims prior to the delegate making his decision. The documents he provided to support his new claims either undermined those claims or have no probative value. Likewise, despite having five months to do so, he has failed to provide the evidence he referred to in his Statutory Declarations. Some of his new claims are vague, general and lacking detail. Overall, I am not satisfied that there are exceptional circumstances to justify considering the applicant’s new information. Nor has the applicant satisfied me that the requirement of either s 473(b)(i) or (ii) (sic) is met. I have not had regard to the new information.

15    The Authority went on to uphold the delegate’s findings that the appellant would not face a real risk of suffering significant harm if returned to Sri Lanka and that he was not owed protection obligations. The Authority did not accept the appellant’s evidence concerning his wife’s involvement with the LTTE. The Authority was satisfied, based on country information and his history, that his profile as a Tamil male would not give rise to any adverse interest by the Sri Lankan authorities on account of real or perceived links to the LTTE. Although the Authority was satisfied that there were, “difficulties associated with being a Telugu in Sri Lanka”, it was not satisfied that the appellant would face a real chance of serious harm on that basis.

16    The Authority noted that as a returnee, the appellant would be processed at the airport by Sri Lankan Authorities who would check for identity and any outstanding criminal matters. A small number of allegations of torture or mistreatment had been raised by asylum seekers who had been returned to Sri Lanka. The Authority noted that in his SHEV application, the appellant stated that he had never been charged, convicted or wanted for an offence in Sri Lanka. The Authority was satisfied that the appellant had no identity concerns, or criminal or security records that would raise the concern of the authorities. The Authority was not satisfied, having regard to the appellant’s profile, that he faced, “a real chance of any harm as a returning asylum seeker.”

17    On 24 August 2020, the appellant applied for judicial review of the Authority’s decision to the Federal Circuit Court. The appellant raised seven grounds of review, each of which supported the broader contention that the Authority had erred by failing to properly consider the material contained in the October Declaration. On 8 July 2021, the primary judge dismissed the application for judicial review.

18    The primary judge succinctly summarised his findings at [4] as follows:

The application should be dismissed. In summary, I have concluded as follows: (1) it has not been established that the Secretary failed to consider the applicant’s statutory declaration made on 31 October 2017 for the purposes of par 473CB(1)(c); (2) for the purposes of par 473DD(a), the Authority did not fail to consider what were described as the highly unusual circumstances in which the October declaration had been posted to, but not received until after, the delegate made a decision. The circumstance that the Secretary may have considered the October declaration to be relevant was not a factor that could have realistically effected the Authority’s consideration of the matter; (3) for the purposes of par 473DD(b)(i), nor did the Authority fail to consider whether, before the delegate’s decision was made, the applicant could not have, but had not, provided the October declaration; (4) for the purposes of par 473DD(b)(ii), the Authority did not assess the new information on the basis of whether it was capable of being believed but instead decided that it was not capable of being believed or evidently not credible; (5) an impugned finding that the applicant had concocted one claim was not in fact made. Rather, the Authority, which found the claim to be inherently implausible, was a finding for which there was an intelligible basis; (6) it was not legally unreasonable for the Authority to decline the applicant’s request for an interview; (7) if there was error in the approach taken by the Authority in relation to the matters the subject of the grounds of review, objectively, the new information could not realistically have made a difference to the process of review.

19    The primary judge found that the material contained in the October Declaration was “new information”. His Honour was not satisfied that the Authority had failed to consider whether the circumstances in which the October Declaration was provided to the delegate were “exceptional circumstances” to justify considering the new information under s 473DD(a) or that the Authority had failed to have regard to the requirements of s 473DD(b) of the Act.

20    The primary judge also found that the Authority had not failed to consider whether the appellant could have provided the October Declaration before the delegate’s decision was made. His Honour held at paragraph [116]:

… The Authority did not fail to consider whether the applicant could not have, but had not, provided the October declaration before the delegate’s decision. Nor…did the applicant establish error by reason of any failure in the Authority to be satisfied by him that the information in that declaration could not have been provided by him before the delegate’s decision was made.

21    The primary judge found that the Authority had erred in that it had, “merged the task required by par 473DD(b)(ii) into the ultimate task required by s 473CC(1)” by proceeding, “past the threshold and consider[ing] the information on the basis of a final assessment.” However, his Honour considered that the error was not material, and the finding made was one that was reasonably open on the evidence, holding at [196]:

… I am not satisfied that the applicant has discharged the onus of proof in establishing to the requisite standard the historical facts necessary to support an inference that, had the ‘new’ information been considered in the manner which is required by par 473DD(b)(ii), there is a realistic possibility the Authority could have reached any different decision upon whether he had satisfied it that such information was credible personal information which, had it been known, may have affected the consideration of his claims.

22    The primary judge further held that the Authority had not acted unreasonably in declining to afford the appellant an opportunity to expand upon the further materials provided in an interview, pursuant to s 473DC of the Act.

The legislative scheme

23    Part 7AA of the Act is entitled, “Fast track review process in relation to certain protection visa decisions”.

24    Section 473CA provides:

473CA    Referral of fast track reviewable decisions

The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

25    The delegate’s decision was a “fast track reviewable decision”, reviewable by the Authority under Pt 7AA of the Act.

26    Section 473CB provides, relevantly:

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;

…

27    Section 473DB provides:

473DB    Immigration Assessment Authority to review decisions on the papers

(1)    Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

(2)    Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

…

28    Subdivision C of Div 3 is entitled “Additional Information”. It consists, relevantly, of the following provisions:

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.

Consideration

Ground 1: Whether the Secretary’s failure to provide the Authority with the October Declaration was legally unreasonable

29    The first ground of the Amended Notice of Appeal asserts, relevantly:

1.     The Secretary failed to provide the Authority with a statutory declaration dated 31 October 2017 (October Declaration) pursuant to s 473CB of the Migration Act 1958 (Cth) (Act). In the circumstances, that was unreasonable. The Federal Circuit Court erred in failing to so find.

30    The appellant’s oral argument upon the first ground diverged from the expression of the ground in the Amended Notice of Appeal. The appellant’s argument involves two strands.

31    The first strand asserts that by failing to give the Authority the October Declaration, the Secretary contravened s 473CB(1)(b) of the Act. That provision requires the Secretary to give the Authority:

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

32    The appellant contends that he “provided” the October Declaration to the delegate on 31 October 2017 when it was placed in the post by his migration agents. The delegate’s decision was made on 2 November 2017 and the October Declaration was received by the Department on 3 November 2017. However, the appellant argues that the obligation of the Secretary under s 473CB(1)(b) to give it to the Authority was enlivened because the document was provided when it was posted.

33    Although the appellant had conceded before the primary judge that s 473CB(1)(b) was not applicable, he revived that submission in oral argument in the appeal. The Minister did not object to that course. Neither party referred to any authority upon the issue. In the absence of considered argument, I do not propose to determine when a document is provided to a decision maker, but will only determine the correctness of the appellant’s argument that a document is provided at the time it is posted.

34    The appellant has not explained precisely how or why s 473CB(1)(b) should be construed as enacting some kind of “postal rule” which deems a decision-maker to have been provided with a document at the time it was posted. The language of the section is inconsistent with such an interpretation. The Macquarie Dictionary defines “provide”, in this context, as “to furnish or supply”. The past tense must be “furnished or supplied”. It seems unlikely that a document can be said to have been furnished or supplied to a decision-maker at the time when it is despatched.

35    There is no contextual basis for the appellant’s construction of s 473CB(1)(b) such that a document is “provided” at the moment when it is posted or otherwise despatched to the decision-maker. The purpose of a visa applicant providing a document to a decision maker must be to have the document taken into account in the decision. Section 473CB(1)(b) has a connection with s 55(1) of the Act, which states that until the Minister has made a decision whether to grant or refuse to grant a visa, the visa applicant may “give” the Minister any additional relevant information and the Minister must have regard to that information in making the decision. The expression “provide” in s 473CB(1)(b) and “give” in s 55(1) must be understood to have an at least similar meaning. Section 55(2) of the Act provides that the Minister is not required to delay making a decision because the referred applicant might give, or has told the Minister the applicant intends to give, further information. The appellant’s construction would mean, however, that where a document is posted by an applicant and a decision is made shortly afterwards, the Minister could be in breach of the obligation to have regard to the document although the Minister was not even made aware the document had been posted. That seems an absurd consequence that cannot have been intended.

36    The language and content of s 473CB(1)(b) alludes to the dichotomy under s 473DC(1)(a) between material that was before the Minister when the decision under s 65 of the Act was made and “new information” that was not before the Minister when the decision was made. The Authority can only consider the latter where the conditions in s 473DD are satisfied. The requirement of information having been “before” the Minister is inconsistent with information being “provided” to the Minister at the moment it is put in the post.

37    The parties did not refer to s 29(1) of the Acts Interpretation Act 1901 (Cth), which provides, relevantly, that where an Act authorises or requires any document to be served by post, whether “serve”, or “give”, or “send”, or any other expression is used, then the service shall be deemed, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. This provision may apply: cf s 52(1) of the Act and reg 2.14 of the Migration Regulations 1994 (Cth). If it does, it is inconsistent with the appellant’s argument that a document is served when it is posted.

38    This is not an appropriate occasion to determine whether material that is posted is “provided” for the purpose of s 473CB(1)(b) when it is received by the decision-maker or when it would be delivered in the ordinary course of post. It is enough to reject the appellant’s submission that s 473CB(1)(b) should be construed such that the October Declaration was provided to the decision-maker at the moment when it was posted.

39    The second strand of the appellant’s submission concerns s 473CB(1)(c) of the Act, which requires the Secretary to give to the Authority:

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

40    The appellant submits that the Secretary’s assessment of whether material is relevant must be made reasonably. The appellant argues that the October Declaration was obviously relevant to the review by the Authority, and that the Secretary’s determination to the contrary was legally unreasonable. It is submitted that the Secretary’s failure to provide the October Declaration to the Authority vitiated the Authority’s decision. The appellant also argues that the error was material to the Authority’s decision.

41    Section 473CB(1)(c) is principally directed at material in the Secretary’s possession or control which was not provided by the visa applicant. That material may include country information and Departmental records. However, the provision also encompasses material provided by the appellant to the decision-maker after the decision that is considered by the Secretary to be relevant to the Authority’s review.

42    Section 473DC(1) describes documents or information as “new information” if it was not before the Minister when the Minister made the decision under s 65 of the Act and the Authority considers that the material may be relevant. The October Declaration was not before the delegate when the decision was made. The Authority implicitly accepted that the October Declaration may be relevant by expressly finding that it was “new information”.

43    The Secretary’s obligation under s 473CB(1)(c) was to consider what “other material” in the Secretary’s possession or control was relevant to the Authority’s review, and to give to the Authority any such relevant material.

44    In CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, Keifel CJ and Gageler J held at [6]:

…To consider material that is in the Secretary’s possession or control to be relevant to the review within the meaning of the provision, the Secretary (who can be expected ordinarily to act through a delegate) obviously needs to form the opinion that the material is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. Compliance with the duty to provide such material to the Authority accordingly necessitates that the Secretary or delegate of the Secretary turn his or her mind to the range of material that is in the Secretary’s possession or control which pertains to the referred applicant in order to determine whether or not to form that opinion in relation to the whole or some part of that material. The opinion of the Secretary that material is relevant to the review (so as to be required to be given to the Authority) or is not relevant to the review (so as not to be required to be given to the Authority) must be formed reasonably and on a correct understanding of the law.

(Citations omitted.)

45    In CQR17 v Minister for Immigration and Border Protection (2019) 269 FCR 367, Jagot J (with whom Reeves J agreed) at [28] and Derrington J at [82]-[83] accepted that a breach of s 473CB(1)(c) may establish jurisdictional error on the part of the Authority if it can be shown that the breach had the consequence that the review conducted by the Authority was not a “review” of the kind authorised by Part 7AA.

46    In CQR17, Jagot J at [39] described the test for whether a determination by the Secretary under s 473CB(1)(c) was unreasonable:

… The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review.

47    In the same case, Derrington J observed at [87]:

… In relation to the question at hand, the appellant must establish that the exercise of power, assuming that it occurred, was unreasonable in the sense that no reasonable person might have reached the conclusion that the material was not relevant.

48    When the Secretary referred the delegate’s decision to the Authority on 6 November 2017, the October Declaration was in the possession or control of the Secretary, having been received by the Department on 3 November 2017. The Minister did not adduce evidence explaining why the October Declaration was not given to the Authority. There are two possible explanations: either the Secretary did not realise that the document was within his or her possession or control; or the Secretary considered that the October Declaration was not relevant to the Authority’s review. Since the Department had the October Declaration for some three days before the referral was made and it was readily located when requested by the Authority, the appropriate inference is that the Secretary considered the October Declaration not to be relevant to the review. The Minister accepted in the course of argument that this is the appropriate inference.

49    The reasonableness of the Secretary’s determination that the October Declaration was not relevant to the Authority’s review turns on whether there was any evident or intelligible explanation available for that decision, or whether no reasonable person in the Secretary’s position could have reached that conclusion.

50    Assessing the reasonableness of the Secretary’s determination initially requires consideration of two issues: first, the scope of the Authority’s review; and, second, whether the October Declaration was objectively irrelevant to the review. If the October Declaration only addressed issues outside the scope of the review or was objectively irrelevant, the Secretary’s exercise of power cannot be considered legally unreasonable.

51    As to the scope of the review, s 473CC(1) provides that the Authority, “must review a fast track reviewable decision referred to the Authority under s 473CA”. In Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, Gageler, Keane and Nettle JJ held at [17] that the Authority’s task under s 473CC(1), “is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met”.

52    The manner in which the Authority approaches its consideration of whether the criteria for the visa are met is prescribed in Div 3 of Pt 7AA (ss 473DA-473DF), entitled, “Conduct of review”. The Authority is required by s 473DB(1) to only consider the review material given by the Secretary to the Authority under s 473CB, subject to other provisions of Pt 7AA. Section 473DD allows the Authority to consider new information if satisfied that the conditions set out in that provision are satisfied.

53    In AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, Kiefel CJ, Gageler, Keane and Gordon JJ held at [6], “s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria”. The scope of the review conducted by the Authority encompasses assessment of whether it is empowered to consider any new information obtained by, or given to, the Authority. The Authority is obliged, as part of its review, to determine whether it is satisfied that the conditions in s 473DD are met.

54    Accordingly, for the purposes of s 473CB(1)(c), material provided by the visa applicant to the decision-maker after the decision was made may be, and may be considered by the Secretary to be, relevant to the Authority’s review.

55    The Minister relies on the analysis of the primary judge at [72] that:

…[A]n evident and intelligible justification for the conclusion that the October declaration was not relevant to the review, could have been that as it had not been before the delegate, it was for the applicant to supply a copy of it and to advance submissions pursuant to the invitation to do so that was made on 7 November 2017. Being an inquisitorial process, the applicant was conferred an entitlement to make such submissions and, for that reason, it was not for the Secretary to do so on his behalf.

56    This passage suggests that an explanation for the Secretary’s determination that the October Declaration was not relevant to the Authority’s review may have been that because it was not before the delegate when the decision was made, it was up to the appellant, not the Secretary, to give the document to the Authority. The passage seems to suggest that the inquisitorial nature of the process could override the Secretary’s direct obligation under s 473CB(1)(c) to, “give to the Immigration Assessment Authority”, material in the Secretary’s possession or control, “considered by the Secretary…to be relevant to the review”. However, the Secretary’s obligation depends upon whether the Secretary considers the material to be relevant to the review, not whether the Secretary considers that the referred applicant should give the material to the Authority. If that was the Secretary’s reasoning, it was made upon an incorrect understanding of the law. As it should be assumed that the Secretary understood the law, that process of reasoning should not be attributed to the Secretary.

57    In Minister for Immigration and Border Protection v CED16 [2020] HCA 24; 380 ALR 216, Gageler, Keane, Nettle and Gordon JJ, citing CNY17 at [6], explained the meaning of “relevant” in s 473CB(1)(c) and s 473DC(1)(b):

[23]    …Documentation or information of an evidentiary nature that the Authority considers may be “relevant” is documentation or information of an evidentiary nature that the Authority considers “capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision”.

58    The October Declaration contained further information that, if accepted, would support the appellant’s claim to have a well-founded fear of persecution on the basis of imputed ethnicity and imputed political opinion. The appellant asserted that he had been persecuted by Sri Lankan authorities in the past because, relevantly, he was imputed to be Tamil and to support anti-government organisations. The October Declaration sought to demonstrate that he would come to the attention of the authorities if returned to Sri Lanka since a warrant had been issued for his arrest, and that he would then be detained and be at heightened risk of harm at the hands of the authorities by reason of his imputed ethnicity and imputed political opinion. In other words, the October Declaration, if accepted, was probative of whether, within s 36(2)(a) (taken with ss 5H and 5J) of the Act, the appellant had a well-founded fear of persecution, and whether, within s 36(2)(aa), he would be at real risk of significant harm if he were returned to Sri Lanka.

59    The October Declaration was objectively relevant to the Authority’s function in the review of assessing new information against the criteria in s 473DD to decide whether the information could be considered in determining whether the criteria for a SHEV were satisfied.

60    The Minister relies upon the following passage from the judgment of Derrington J in CQR17:

106    However, the requirement is of what the Secretary considers will be relevant to the review and does not require any degree of prescience. The Secretary is not required to guess at what additional issues the applicant might seek to raise by way of new information or new claims. The consideration is based on the circumstances as they exist as at the date the decision is referred to the IAA.

61    Contrary to the Minister’s submission, the Secretary was not required to exercise, “any degree of prescience”, or, “guess at what additional issues the applicant might seek to raise by way of new information or new claims”, in considering whether the October Declaration was relevant to the review. There was nothing to predict. The appellant had already raised the claims or information contained in October Declaration, albeit too late for the delegate to consider. The Authority would be required to assess whether it could consider relevant “new information” it was given by the Secretary under s 473CB(1)(c): cf AUS17 at [6]. The Secretary was not required to engage in any form of guess-work to understand the relevance of the October Declaration to the review.

62    The Secretary must be taken to have correctly understood the law and, accordingly, to have correctly understood the scope of the Authority’s review. Further, the Authority must be taken to have understood that the Authority was required to assess any new information to consider whether it was able to be considered. The October Declaration was objectively relevant to the Authority’s review. Despite that, the Secretary’s evident subjective consideration was that the October Declaration was not relevant to the Authority’s review. There is no evident and intelligible justification for the Secretary’s view. The Secretary’s determination under s 473CB(1)(c) was legally unreasonable.

63    The next issue concerns the materiality of the Secretary’s unreasonable omission or refusal to provide the October Declaration to the Authority. This involves consideration of the role the Secretary’s failure may have played in the outcome of the review conducted by the Authority. There are two aspects of the review to be considered. The first is the Authority’s determination that it could not consider the October Declaration as the requirements of s 473DD were not satisfied. The second was the Authority’s ultimate decision to affirm the decision under review on the basis that the criteria for the grant of a SHEV were not satisfied.

64    As to the first aspect, it is convenient to repeat the terms of s 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.

65    It may be observed that the Authority is only required to be satisfied of the matters in para (b) where the new information is given, or proposed to be given, to the Authority by the referred applicant. If the Authority is given new information by the Secretary, or gets the new information itself, the Authority is only obliged to be satisfied of the matter in para (a). The Authority determined that it had to be satisfied of para (b), as well as para (a), of s 473DD on the basis that the October Declaration was provided to the Authority by the appellant. The appellant’s representatives had sent the October Declaration to the Authority on 21 November 2017 when they realised that the Secretary had not given that document to the Authority.

66    The Authority was not satisfied, within s 473DD(b), that: (i) the October Declaration could not have been provided to the Minister before the decision was made, or (ii) that it was credible personal information not previously known and, had it been known, may have affected consideration of the appellant’s claim. In addition, the Authority was not satisfied, within para (a) of s 473DD, that there were exceptional circumstances to justify considering the new information.

67    It can be accepted that if the Secretary had not contravened s 473CB(1)(c) and had given the October Declaration to the Authority, the Authority would only have had to decide whether para (a) of s 473DD was satisfied, not para (b). The appellant argues that if the Authority had considered para (a) alone, it may have been satisfied that there were exceptional circumstances, namely that the October Declaration had been posted before the decision was made and had failed to reach the delegate until after the decision, through no fault of the appellant.

68    The Authority’s approach was to focus first upon para (b) and to use its findings upon that paragraph in finding there were no exceptional circumstances under para (a). That approach was consistent with AUS17, where it was held at [11] that the Authority should first assess new information obtained from the referred applicant against the criteria in both s 473DD(b)(i) and s 473DD(b)(ii), and only then against the criterion in s 473DD(a). The Authority’s approach may be seen from its conclusion upon s 473DD:

18.    I have found that the applicant had no valid reason for not providing his new claims prior to the delegate making his decision. The documents he provided to support his new claims either undermined those claims or have no probative value. Likewise, despite having five months to do so, he has failed to provide the evidence he referred to in his Statutory Declarations. Some of his new claims are vague, general and lacking detail. Overall, I am not satisfied that there are exceptional circumstances to justify considering the applicant’s new information. Nor has the applicant satisfied me that the requirement of either s 473(b)(i) or (ii) (sic) is met. I have not had regard to the new information.

69    If the Secretary had given the October Declaration to the Authority, then the Authority would only have considered whether, within para (a) of s 473DD, it was satisfied there were exceptional circumstances to justify considering the new information. However, consistently with the reasoning in AUS17, in deciding whether it was satisfied that there were exceptional circumstances, it would have been open to the Authority to consider whether the new information could have been provided to the Minister before the decision was made, or whether the new information was credible personal information. The Authority would not have been obliged to consider the matters in para (b) (as would be required if the new information were given by the appellant), but they were not considerations the Authority was precluded from taking into account. Even if the Secretary had provided the October Declaration to the Authority in compliance with s 473CB(1)(c), it seems quite improbable that the Authority would not have taken into account the matters set out in para (b) when considering para (a) of s 473DD.

70    However, the primary judge found that the Authority had erred in its consideration of what was “credible personal information” under para (b)(ii) of s 473DD, and that finding has not been challenged by the Minister in the appeal. His Honour found that the Authority had evaluated whether the new information was “reasonably able to be believed” rather than applying the statutory test of whether the new information was “credible”. I accept that if the Secretary had not erred in failing to provide the October Declaration to the Authority, and if the Authority had not erred in its approach to the credibility of the October Declaration, there was a realistic chance that the Authority would have found that there were exceptional circumstances within s 473DD(a). That would have left it open to the Authority to consider the October Declaration, including determining whether or not its content should be accepted, in determining whether the Authority was satisfied that the criteria for a SHEV were met.

71    The remaining question is whether the Secretary’s error was material to the Authority’s determination that the appellant did not satisfy the criteria for a SHEV. As several of the grounds of appeal turn upon that question, it is best left until later in these reasons.

Ground 2: Whether the Authority erred by failing to have regard to the October Declaration having been posted before, but arriving after, the delegate’s decision, in considering whether there were exceptional circumstances within s 473DD(a)

72    The appellant’s second ground asserts that:

2.    The Authority erred in applying s 473DD(a) of the Act to the October Declaration, in that it failed to have regard to the exceptional circumstances of this case: viz., the fact that the October Declaration was provided to the Delegate before (but arrived after) the Delegate’s decision. The Authority’s finding with respect to s 473DD(a) was unreasonable or irrational, or demonstrated a misconstruction of that provision or a failure to consider the appellant’s claims. The Federal Circuit Court erred in failing to so find.

73    The appellant submits that in deciding whether exceptional circumstances exist for the purposes of para (a) of s 473DD of the Act, a failure to consider all relevant circumstances may constitute jurisdictional error, citing Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [102]–[104] and BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [41]. However, those cases do not support any general proposition that a failure to take into account a matter that is objectively relevant to the question of exceptional circumstances must, of itself, constitute error or jurisdictional error.

74    The appellant submits that, on any view, it was an exceptional circumstance that the appellant had posted the October Declaration before the delegate’s decision was made but that, due to events outside his control, the October Declaration was not considered by the delegate. It is highly doubtful that the provision of the October Declaration after the delegate’s decision was beyond the control of the appellant or his migration agents: it could, for example, have been emailed on the same date it was posted.

75    In any event, it is apparent from the Authority’s reasons that it was aware of, and took into account, that the October Declaration had been posted prior to the delegate’s decision but had been received after the decision was made. The Authority referred at para [8] to the submission of the appellant’s representative that the October Declaration was not before the delegate through no fault of the appellant. The Authority considered the appellant’s professed reasons for not providing the October Declaration prior to the delegate making his decision, finding that the appellant, “had no valid reason for not providing his new claims prior to the delegate making his decision”. The second ground of appeal cannot succeed.

76    However, the appellant raised another argument in conjunction with the second ground. The argument was to the effect that the Authority erred in applying s 473DD(b) to the October Declaration in circumstances where the Authority had itself obtained that new information from the Department. Even though the appellant’s legal representatives had already provided the October Declaration directly to the Authority, the Authority wrote to the Department and asked for the document, and it was then given to the Authority by the Department. The appellant submits that the Authority was bound to apply para (b) of s 473DD to the October Declaration insofar as it was obtained by the Authority. Although this was not an argument raised before the primary judge, the Minister raised no objection to the argument being made in the appeal.

77    In written submissions provided after the hearing, the Minister accepted that if new information comes to the Authority from a visa applicant, it does not follow that para (b) of s 473DD will apply to the same information that has come to the Authority through another route. The Minister conceded that the Authority was not necessarily precluded from considering the October Declaration even though it had been provided by the appellant to the Authority and even though it did not satisfy para (b). That is because the Authority also got the October Declaration from the Department, and only para (a) needed to be satisfied in respect of the new information obtained in that way. The Secretary’s concession was correctly made for the following reasons.

78    There are three ways new information might come before the Authority. First, the Secretary may give the information to the Authority pursuant to s 473CB(1)(c). Second, the Authority may get new information pursuant to s 473DC(1). Third, the referred applicant may give new information to the Authority.

79    In a given case, the same piece of new information may come to the Authority through more than one source. For example, the Authority may obtain an item of country information through its own research, while the referred applicant may also provide the Authority with the same item. Section 473DD plainly distinguishes between the test to be applied to new information provided by the referred applicant (both paras (a) and (b)), and where new information is obtained from another source (para (a) only). There is no circumstance where para (b) must be satisfied where new information comes from a source other than the referred applicant.

80    In the present case, the Authority considered that para (b) of s 473DD applied on the basis that the appellant had given the new information, the October Declaration, to the Authority. However, the Authority overlooked the fact that it had also obtained the October Declaration from the Department. In respect of the new information obtained in that way, the Authority was not required to be satisfied of the matters in para (b). It was an error to apply para (b). The Minister does not dispute that such an error would be, subject to the question of materiality, jurisdictional error. It should be acknowledged, as a matter of fairness, that no such point was taken before the Authority.

81    However, it is necessary to consider the materiality of the Authority’s error. As I have indicated in respect of the first ground, I accept that the Authority could realistically have been satisfied that it could consider the October Declaration on the basis that exceptional circumstances existed if it had not considered that it had to be satisfied of the matters in para (b) of s 473DD. However, there remains the question of whether the error could realistically have made a difference to the Authority’s ultimate conclusion that the appellant did not satisfy the criteria for a SHEV. That will be considered later in these reasons.

Ground 3: Whether the Authority’s failure to be satisfied that the October Declaration was not, and could not have been, provided to the Minister before the decision was made involved jurisdictional error

82    The appellant’s third ground asserts:

3.    The Authority erred in its application of s 473DD(b)(i) of the Act to the October Declaration, in that it failed to consider whether the Appellant could have, but did not, provide the October Declaration before the delegate’s decision; and in that it found that the October Declaration did not satisfy s 473DD(b)(i) of the Act. The Authority’s finding with respect to s 473DD(b)(i) was unreasonable or irrational, and/or demonstrated a misconstruction of that provision or a failure to consider the Appellant’s claims. The Federal Circuit Court erred in failing to so find.

83    The appellant’s argument principally focuses on the contention that the appellant had provided the October Declaration before the delegate’s decision was made. That argument has already been rejected.

84    The appellant also contends that it was unreasonable for the Authority to find that s 473DD(b)(i) was not satisfied. The appellant submits that he intended to supply the October Declaration to the delegate and did everything he could to effect that intention, but that it could not have been provided to the delegate before the decision. The appellant submits that the Authority’s conclusion that it was “incredible” that he would not disclose the matters in his October Declaration in the interview with the delegate and that there was “no valid reason” for failing to do so makes little sense in circumstances where the appellant did send those claims to the delegate. The appellant submits that if the Authority meant that the appellant ought to have provided the information during or before the interview with the delegate, then it was addressing an irrelevant consideration.

85    The question under para (b)(i) of s 473DD was whether the appellant had satisfied the Authority that the new information contained in the October Declaration could not have been provided to the delegate before the decision to refuse the SHEV was made. The Authority rejected the appellant’s claim that he had not raised the information in the October Declaration in the interview before the delegate because of his fear, stress and anxiety, because he thought that he would be deported immediately and because he feared the Department would make his whereabouts known to the Sri Lankan authorities. The Authority was not prepared to accept, in the absence of corroborating evidence, that the appellant’s mental health was declining. The Authority found that the appellant had “no valid reason” for failing to disclose that information to the delegate.

86    The appellant submitted that the phrase, “could not have been provided”, in para (b)(i) of s 473DD should be understood to mean, “could not reasonably have been provided”. The appellant cited no authority, nor suggested any contextual basis, for the submission.

87    Section 473DD has the heading, “Considering new information in exceptional circumstances”. It is evident from s 473DB that the Authority is ordinarily to conduct its review based on the material provided to the Authority by the Secretary under s 473CB and is to consider new information only in exceptional circumstances. That is consistent with the nature of the “fast track review process” established under Part 7AA. In AUS17, it was observed at [9] that s 473DD(b)(i) is part of a suite of provisions aimed at, “casting responsibility on the applicant for a protection visa to provide evidence to establish his or her claims to be a person in respect of whom Australia has protection obligations at the time of making the application”. One of the limited exceptions requires the Authority’s satisfaction that the new information, “could not have been provided”, to the Minister before the decision was made. The purpose of Part 7AA described in AUS17 is inconsistent with construing the phrase by adding a qualification to the effect that it applies only where the applicant could not reasonably have provided the new information to the Minister before the decision was made. While there may be scope for argument as to whether the phrase “could not have been provided” should be construed literally and without any qualification, it is enough for present purposes to conclude that the appellant’s construction of the provision should be rejected.

88    The Authority’s failure to be satisfied that the new information, “could not have been provided”, to the Minister before the decision was made was reasonably open to the Authority.

89    The appellant did not develop his submission that the Authority’s view that the appellant ought to have raised the information in the October Declaration during the interview with the delegate was irrelevant. In any event, the question of whether the appellant could have raised the information before the delegate during the interview was plainly relevant under para (b)(i) of s 473DD of the Act.

90    The appellant’s third ground of appeal must be rejected.

Ground 4: Whether the Authority’s finding in respect of s 473DD(b)(ii) that the October Declaration was not credible personal information involved misconstruction of the Act

91    The appellant’s fourth ground asserts:

4.    The Authority erred in its application of s 473DD(b)(ii) of the Act to the October Declaration, and to information provided by the Appellant to the Authority on 2 November 2017 (Post-referral Materials). In particular, the Authority failed to consider whether these materials were ‘credible’ in the sense that they were capable of being believed. The Authority’s finding with respect to s 473DD(b)(ii) was unreasonable or irrational, and/or demonstrated a misconstruction of that provision or a failure to consider the Appellant’s claims. The Federal Circuit Court erred in failing to find that this error was material.

92    The appellant argued before the primary judge that the Authority’s reasons at [12] – [17] demonstrated a misunderstanding of the word “credible” in s 473DD(b)(ii). The primary judge accepted that the meaning of “credible” was that given by Bromberg J in CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [33]–[43], namely, “capable of being believed”. His Honour concluded:

139    … [T]he Reasons do not suggest that par 473DD(b)(ii) was applied as a filter to make a threshold or preliminary assessment whether the information was credible or may have affected consideration of the applicant’s claims. Instead, the Authority found that the information was vague, general, incredible or implausible or otherwise not of a kind that would have persuaded it to remit the application.

140    In my view, the Reasons confirm that the Authority merged the task required by par 473DD(b)(ii) into the ultimate task required of it by s 473CC(1). Expressed in other terms, in the approach taken by the Authority, it proceeded past the threshold and considered the information on the basis of a final assessment. Viewed in that way, the Authority did not confine itself by making a preliminary assessment whether it would accept the information in the October declaration. This was not the correct approach…Whether this error was jurisdictional in nature turns on the issue of materiality considered below.

(Citations omitted.)

93    However, the primary judge considered that the appellant’s error was ultimately immaterial. His Honour found:

196    Upon the principles considered in ABH18 ([2020] FCA 620), I do not accept there could realistically have been any different outcome in the Authority’s conclusion that the applicant had not satisfied it the new information may have affected the consideration of his claims on the material that was before it. Particularly is that so in light of the failure to supply the further documents from Sri Lanka and the otherwise vague, general or implausible nature of the information that had been put forward. For those reasons, I am not satisfied that the applicant has discharged the onus of proof in establishing to the requisite standard the historical facts necessary to support an inference that, had the ‘new’ information been considered in the manner which is required by par 473DD(b)(ii), there is a realistic possibility the Authority could have reached any different decision upon whether he had satisfied it that such information was credible personal information which, had it been known, may have affected the consideration of his claims.

94    The Minister has not filed a notice of contention or otherwise challenged the conclusion of the primary judge that the Authority erred in its approach to credibility under s 473DD(b)(ii). The Minister argued that the primary judge was correct to hold that the error was immaterial.

95    Again, the issue of materiality of the Authority’s error will be considered later in these reasons.

Ground 5 and Ground 6: Whether the Authority’s findings about criminal proceedings were reasonably open and whether the Authority’s failure to consider exercising its discretion to get new information was legally unreasonable

96    The appellant dealt with his fifth and sixth grounds together. The fifth ground asserts:

5.    In declining to consider the Appellant’s claims and evidence about criminal proceedings involving his son, the Authority made findings that were not reasonably open on the evidence. The Federal Circuit Court erred in failing to so find.

97    The sixth ground asserts:

6.    Further to ground 5, in circumstances where the Appellant had not been given an opportunity to comment on the recurrence of the sequence of letters and numbers described, and where an evidentiary or logical basis to support (or proscribe) the Authority’s finding may have been furnished by the Appellant or may have been sought from elsewhere, the Authority’s failure to consider exercising its discretion to get new information pursuant to s 473DC was legally unreasonable. The Federal Circuit Court erred in failing to so find.

98    Grounds 5 and 6 concern the appellant’s claim in the October Declaration that when his son was released on bail on a charge of murder, he and his son had fled Sri Lanka, and arrest warrants had been issued for both of them. The appellant stated, amongst other things, that “[t]he number for my son's case is B3409/11”.

99    The Authority did not accept the appellant’s account. The Authority found at [14] that a handwritten reference to the appellant’s son’s police case number in his expired Emergency Certificate, “severely undermines the credibility of the [appellant’s] claim that the number of his son’s murder case is B3409/11”. In respect of Ground 5, the appellant submits that the Authority assumed that because his Emergency Certificate was valid from 1995 to 1997, the alpha-numeric sequence must have been written on the Emergency Certificate between those dates. It is submitted that this finding was not reasonably open and was simply illogical.

100    As to Ground 6, the appellant submits that in circumstances where getting further evidence from the appellant may have filled the gap in its reasons and allowed it to make a finding about the appellant’s son’s case number, the Authority ought to have exercised or considered exercising its discretion to do so under s 473DC of the Act.

101    In para [14] of its reasons, in the context of considering whether para (b)(ii) of s 473DD was satisfied, the Authority found:

14.    The applicant provided a copy of a document that looked to be the back pages of a Sri Lankan passport with some hand writing on it. Some of the hand writing included B3409/11 and 0728622912. There is a hand written notation at the bottom of the page that states B3409/11 is the case number for the murder charge. During the SHEV interview the applicant provided the delegate with an Emergency Certificate issued in the applicant’s name and valid from 1995 to 1997. On page 1 of that Emergency Certificate appears some writing that included B34509/11 (sic) and 0728622912. If the applicant’s son’s case number related to his charge of murder is B3409/11 there is no plausible reason for this number to appear in a document that was issued in the applicant’s name and expired in 1997. Given the chance of the same sequence of seven numbers and one letter of the alphabet representing something other than the applicant’s son’s case number in 1995/1997 is so low, I do not accept that it is a mere coincidence. I find that the same number appearing in the applicant’s Emergency Certificate that was valid between 1995 and 1997 severely undermines the credibility of the applicant’s claim that the number of his son’s murder case is B3409/11.

(Underlining added.)

102    It may be seen that the Authority rejected the appellant’s claim in the October Declaration that, “[t]he number for my son's case is B3409/11”. The appellant had provided a copy of his Emergency Certificate for 1995 to 1997 which had the notation “B3409/11” handwritten onto the document together with some script in another language and what appears to be a telephone number. A document which appeared to be the appellant’s passport also had “B3409/11” and the same telephone number handwritten onto that document. The handwriting appears similar on both documents. The handwriting is not obviously any official record or official part of each document, but appears to be an informal record of the numbers.

103    The Authority found that, “[i]f the [appellant’s] son’s case number related to his charge of murder is B3409/11 there is no plausible reason for this number to appear in a document that was issued in the [appellant’s] name and expired in 1997”. The Authority found that this matter severely undermined the credibility of the appellant’s claim that the number of his son’s murder case is B3409/11.

104    The Authority’s finding that, “there is no plausible reason for this number to appear in a document that was issued in the [appellant’s] name and expired in 1997”, was, in my respectful opinion, illogical and unreasonable. The Authority proceeded from a premise that the number B3409/11 must have been handwritten into the document before 1997 and then considered that it would be too much of a coincidence for the very same number to have been assigned to the appellant’s son’s murder case some 20 years later. It was not, however, evident that there could be no other plausible reason why the number was handwritten into the Emergency Certificate before 1997. An obvious reason why same number appeared on the Emergency Certificate might have been that the appellant or someone else had recently written the number in that document, as well as the appellant’s passport. It is not difficult to suppose that a person fleeing their country with limited documentation might write down an important number in a document, or even in two documents that they were taking with them. Whether this was in fact the explanation is not apparent from the material. The Authority never asked the appellant why and when the number B3409/11 was handwritten in the expired Emergency Certificate, having simply assumed that there could be no plausible explanation other than that it must have been written before 1997.

105    In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ held:

130    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131    … But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

106    In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 397 ALR 1, the Full Court held at [35]:

Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds, such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.

(Citations omitted.)

107    In Minister for Home Affairs v DUA16 [2020] HCA 46; 95 ALJR 54 the High Court at [27], describing the Authority’s power under s 473DC to get new information, referred to the, “usual implication that it must be exercised within the bounds of legal reasonableness”.

108    In this case, the relevant issue was, under para (b)(ii) of 473DD, whether the referred applicant had satisfied the Authority that the new information was, “credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims”. The Authority’s erroneous process of reasoning started, as the primary judge identified, with applying an incorrect test for what was “credible” information and considering whether that information should be accepted, rather than merely whether the information was capable of being believed. It then found that the October Declaration should not be accepted based, in part, upon reasoning that was illogical and unreasonable. The Authority’s illogical and unreasonable assumption that there could be no plausible reason for the number to appear in a document that had expired in 1997 led it to fail to consider asking the appellant why the number appeared in the Emergency Certificate.

109    It is enough to hold that the Authority made the error described in Ground 5. Having done so, it is unnecessary to consider Ground 6.

110    However, again, it is necessary to consider the materiality of the Authority’s error by reference to its ultimate decision.

Materiality of errors

111    The conclusions reached in respect of Grounds 1, 2, 4 and 5 make it necessary to consider the materiality of the errors made by the Secretary and the Authority. More specifically, it must be considered whether the errors were material to the Authority’s ultimate decision to affirm the delegate’s decision on the basis that the Authority was not satisfied that the appellant satisfied the criteria for a SHEV.

112    In Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell, Gageler and Keane JJ held at [45]:

A breach is material to a decision only if compliance could realistically have resulted in a different decision.

(See also MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 390 ALR 590 at [2] (Kiefel CJ, Gageler, Keane and Gleeson JJ)).

113    The Minister relies upon ABH18 v Minister for Home Affairs [2020] FCA 620, where Charlesworth J held that the Authority had erroneously made a substantive, rather than preliminary assessment of the credibility of the new information, but that:

45    Even if that were an erroneous approach…, I am not satisfied that it materially affected the ultimate outcome of the Authority’s review. If the new information satisfied the requirements of s 473DD of the Act, the appellant was entitled to have that material assessed against the whole of the material before the Authority. The obligation to consider the information would have included an obligation to make a finding as to whether or not the claimed recent events had in fact occurred in light of all of the circumstances of the appellant’s case. That is substantially what the Authority did, albeit purportedly under the procedural framework of s 473DD. In the unusual circumstances of the appellant’s case, the Authority did give substantive consideration to the information of the kind it would have been obliged to give, had it not determined that it was precluded by s 473DD from doing so.

46    To the extent that the Authority’s approach was erroneous, the errors were not material and hence not jurisdictional.

114    The appellant submits that if the Secretary had complied with s 473CB, or if the Authority had properly assessed the October Declaration against the requirements of s 473DD, the Authority may have found that it was entitled to consider the new information. The Authority would then have considered the new information, which, it is said, substantially added to the appellant’s claims and evidence. The appellant submits that this may have led to a different conclusion as to whether he faced a real chance or risk of serious or significant harm.

115    The appellant also submits that the Authority’s error meant that the Authority impermissibly drew conclusions about the appellant’s truthfulness and reliability on the basis of material that was, as a matter of law, not before it. In the balance of its reasons, some adverse conclusions were drawn about the truthfulness or reliability of aspects of the appellant’s evidence. The appellant submits that the Authority’s adverse conclusions in its purported application of s 473DD(b)(ii) may have affected its conclusions as to other aspects of the appellant’s claims.

116    The Authority found, for the purposes of para (b)(ii) of s 473DD, that the appellant’s claims in the October Declaration were not credible and should not be accepted. The Minister argues that even if the Authority erred in the standard of credibility it applied at that stage, it would inevitably have made the same finding at the later stage when considering whether it was satisfied that the appellant met the criteria for a SHEV. Whether the Authority made that finding at the stage of determining whether the new information could be considered, or later when determining the weight that should be given to that information, the outcome would have been the same. The Minister submits it is unrealistic to suppose that there may have been a different outcome if the October Declaration had been considered together with the material before the delegate.

117    I would have accepted the Minister’s argument but for my findings upon the fifth ground of appeal. The Authority found the new information contained in the October Declaration, including the appellant’s statement that “[t]he number for my son's case is B3409/11”, was not “credible”. That finding was based, in part, upon an illogical and unreasonable finding that there was no plausible reason for the number B3409/11 to appear in the appellant’s Emergency Certificate which had expired in 1997. If that finding had not been made, the Authority may have found the content of the October Declaration to be credible and that, for example, an arrest warrant had been issued for the appellant. It may be noted that the Authority’s rejection of the appellant’s evidence that a warrant had been issued for his arrest led to a finding that the appellant had no criminal or security record that would raise the concern of the Sri Lankan authorities upon his return.

118    Further, the Authority’s finding that the October Declaration was not credible is likely to have influenced the Authority’s findings that other parts of the appellant’s evidence were not credible. In particular, the Authority found at [41] that:

… I was not satisfied that the applicant’s wife was ever a member of the LTTE. I was not satisfied that the LTTE asked the applicant’s wife to re-join them or that the LTTE threatened to take their son in her place. I was not satisfied that the applicant’s wife was detained for two to three days because of her perceived links with the LTTE. I was not satisfied that the applicant’s wife is in hiding from the LTTE or the Sri Lankan authorities.

119    The Authority did not explain why it was not satisfied of these aspects of the appellant’s evidence. It is reasonable to infer that the Authority was influenced by its views as to the lack of credibility of the appellant’s October Declaration.

120    If the Authority had not made the illogical and unreasonable finding that there was no plausible reason for the number B3409/11 to appear in a document that was issued in the appellant’s name and expired in 1997, its assessment of the appellant’s credibility upon other issues concerning whether the criteria for a SHEV were met may realistically have been different. In my opinion, the error made by the Authority was material to the outcome of the review before the Authority.

Conclusion

121    The appeal should be allowed on the basis of the appellant’s fifth ground. The judgment of the Federal Circuit Court should be set aside.

122    The decision of the Authority should be quashed and the Authority required to determine the review according to law.

123    The Minister should pay the appellant’s costs of the appeal and the proceedings before the Federal Circuit Court.

Associate:    

Dated:    22 July 2022