Federal Court of Australia

CLI19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1082

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 6 February 2020 be set aside and in lieu thereof it be ordered that:

(a)    A writ of certiorari issue to quash the decision of the second respondent made on 28 May 2019.

(b)    A writ of mandamus issue requiring the second respondent to conduct its review according to law.

(c)    The first respondent pay the applicant’s costs.

3.    The first respondent pay the appellant’s costs of the appeal.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

RARES J:

1    This is an appeal from the decision of the Federal Circuit Court of Australia to refuse to grant constitutional writ relief in respect of the decision of the Immigration Assessment Authority made on 28 May 2019 that affirmed the Minister’s delegate’s decision not to grant the appellant a safe haven enterprise visa: CLI19 v Minister for Immigration [2020] FCCA 236.

2    The facts are in a narrow compass, as is the issue on appeal, namely whether the finding by the Authority, that it would not consider new information for the purpose of making a decision in the review, was affected by jurisdictional error. There is one ground of appeal, namely that his Honour erred in failing to hold that the Authority fell into jurisdictional error in its application of s 473DD of the Migration Act 1958 (Cth) which provides:

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.

Background

3    The appellant is a citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in May 2013. He participated in an interview with Departmental officers in July 2013. As the Authority found, he claimed that:

    his brother T, had joined the Liberation Tigers of Tamil Eelam (LTTE), as an intelligence group member and was in charge of 18 members in a particular region of Sri Lanka;

    T assisted in carrying out an attack on behalf of the LTTE that killed nine Sri Lankan army soldiers in July 2006, subsequently fled Sri Lanka and travelled to India;

    in September or October 2006, 12 masked officers from the Criminal Investigation Division (CID), the Eelam People’s Democratic Party (EPDP) and the Sri Lankan Army raided his family home looking for T and interrogated, harassed and threatened to kill both the appellant and his family;

    in 2009 he had been subjected to monthly reporting requirements at the Sri Lankan Army camp near where he lived;

    S, a fellow LTTE colleague of T, had joined the Sri Lankan Army in 2007 as an informant, and both S and the CID officials visited the appellant’s family home every month;

    in 2010, S forced the appellant to travel to India to collect information about LTTE weapons from his brother, T, and to pass on a request that T contact S;

    he travelled to India legally, on a Sri Lankan passport with a valid visa, and stayed with his brother for 20 days before returning to Sri Lanka by plane;

    after his return, S visited his home, told him that he had received orders to kill his brother and S asked for T’s phone number;

    subsequently, S and the other officials came to the appellant’s home every month, searched the home, stole money and harassed his family;

    in January 2013, S informed him that he had obtained information about T, again asked for T’s phone number and threatened him and told him that his name would be on his brother’s case;

    subsequently, the appellant had been summonsed by the EPDP in Colombo and threatened by armed men;

    a CID officer had confiscated his passport and other identity documents from his family home;

    T had informed the appellant there was a plan to kidnap him and advised him to flee Sri Lanka;

    the appellant feared that he would be identified and killed by Sri Lankan authorities on his return because there was an open case against his brother, T.

4    In his statement of claims that he lodged with his application for the visa, the appellant referred to the incident in January 2013 when S, together with CID (or EPDP) officers came to his home and told him that the Sri Lankan Army had obtained more information about T and wanted to contact him.

The delegate’s decision

5    On 10 January 2019, the delegate decided to refuse to grant the appellant’s application for the visa.

6    The delegate found that the appellant’s profile would not be of interest to the Sri Lankan authorities for the reason that apart from T, he had two other brothers who had remained in Sri Lanka, one of whom was a government official and the other a bank manager, and that neither they, nor his extended family, had been involved in any activity in support of the LTTE or had any political profiles. She found that there was no evidence that both the appellant’s and his family’s past circumstances would lead to him being suspected on return of being an LTTE member or supporter, particularly in view of the fact that his two brothers had continued to reside in the Northern Province without incident and were employed in the occupations to which I have referred. She also noted that T’s alleged involvement in the LTTE dated back to 2005 and 2006, that, by the time of her decision, the war had been over for 10 years and a new government had taken power in Sri Lanka with the support of Tamil parties and Tamil voters. She found that the new government had replaced the previous military governors in the Northern and Eastern Provinces with civilians and established a special presidential task force on reconciliation.

7    The delegate concluded that there was no real chance that the appellant would be at risk of suffering significant or serious harm in respect of any of his claims were he to return to Sri Lanka.

The proceedings before the Authority

8    The Minister referred the delegate’s decision to the Authority for review under s 473CA and Pt 7AA of the Act.

9    On 25 January 2019, the appellant’s solicitor and migration agent emailed the Authority with a black and white copy of the first page of an uncertified court document purportedly issued as a warrant of arrest by the Magistrate’s Court at Jaffna dated in May 2013, some two days after the appellant had left Sri Lanka by boat to come to Australia. The solicitor told the Authority that this document was an arrest warrant issued against the appellant and that it had not been provided previously to the Department. The email stated that the appellant “has, with the help of his family lawyer in Sri Lanka, procured the document only yesterday on 24 January 2019.” The email promised that a detailed written submission in support of his application would follow.

10    On 4 February 2019, the appellant’s solicitor wrote a submission to the Authority that, among other matters, referred to the fact that the warrant had been issued two days after the appellant had left Sri Lanka illegally by boat. Attached to the submission were colour copies of both pages of the warrant, showing the original handwriting in blue ink and the court stamp in red ink on the first page and the second page that was headed “To be completed by person executing warrant” being left without handwritten details.

11    The submission said that the delegate’s assessment in relation to the appellant’s profile and chances of serious harm, were he to return to Sri Lanka, needed to be reconsidered because of the discovery of the warrant. It referred in numerous places to the significance of the warrant as evidence that supported the appellant’s claims to fear harm were he to be returned to Sri Lanka, saying: “The existence of this court document completely changes the [appellant’s] profile    from just a failed Tamil asylum seeker to a person who provided help to terrorist [sic].” The submission claimed that, pursuant to the warrant, the appellant would be subject to arrest at Colombo Airport, tortured, harassed and imprisoned based on the charge stated in the warrant, namely: “Helping the terrorist [sic] under the Prevention of Terrorism Act.”

The Authority’s reasons

12    The Authority gave detailed reasons for coming to its conclusion that the delegate’s decision should be affirmed. In doing so it did not consider the submission in relation to the warrant because of its procedural decision under s 473DD that there were no exceptional circumstances to justify its consideration as “new information”.

13    At the outset of its reasons, in pars 5–12, the Authority evaluated whether it would consider, as new information under s 473DD, the warrant and the submissions relating to it. It stated at pars 9–12:

9.     I note that the submission states that the applicant has obtained the document with the help of his family lawyer just prior to the submission being made. The applicant has previously stated that he has had regular and frequent contact with his family in Sri Lanka and he has not provided any explanation indicating he has only now become aware of the document and not been able to provide it previously, particularly given it was issued in 2013.

10.     Prior to the SHEV interview the applicant was provided with a document in English and Tamil entitled “Important information about your Protection visa interview”. The document clearly informs the applicant that it is important that all his claims for protection are presented during the Protection Visa interview and that if a refusal decision is made he may not be able to raise new claims. At the beginning of the SHEV interview the delegate reiterated this information telling the applicant that it was important that he provide complete, accurate and personal claims for protection and warned the applicant that he may not have another opportunity to do so. She invited the applicant to provide any new information or correct any information already provided. He did not mention an arrest warrant.

11.     At the end of the interview the applicant stated that he would try to obtain additional evidence although he noted that he has no one to ask in Sri Lanka and everyone fears for their lives and is scared to obtain information. His legal representative who was present at interview stated he would provide the delegate with written submissions relating to the applicant’s claims for protection. The delegate invited the applicant to provide any further information within seven days from interview and reiterated that any information provided before her decision was made would be considered. No further information was provided to the delegate.

12.     I am satisfied that the applicant had sufficient opportunity to present all his claims for protection. The timing of the provision of this information to the IAA is of significant concern to me considering that imputation of Liberation Tigers of Tamil Eelam (LTTE) association by the authorities was critical to his claim and the apparent seriousness of the purported arrest warrant. More importantly, I have serious reservations with regards to the veracity of the document and the claim. I am not satisfied that there are any exceptional circumstances to justify considering the new information.

(emphasis added)

The primary judge’s decision

14    The primary judge dismissed the application below in February 2020, prior to the decision of the High Court in AUS17 v Minister for Immigration and Border Protection (2020) 269 CLR 494, delivered later that year. His Honour rejected the appellant’s argument that the Authority had erred in its application of s 473DD. He found that it had not proceeded on any erroneous understanding of “exceptional circumstances”, and that its adverse finding on that issue was open to it.

This appeal

15    The Minister did not oppose the appellant having leave to rely upon the reasoning in AUS17 269 CLR 494 to support a more developed argument as to why the Authority committed a jurisdictional error in its application of s 473DD. The Minister did not contend that, were the appellant to establish that the Authority made a jurisdictional error in its evaluation under s 473DD of whether to consider the appellant’s new claim about the warrant, as new information, that such an error would not have been material. Accordingly, the Minister accepted that if that finding were made, it would support the issue of a constitutional writ.

The Minister’s submissions

16    The parties debated the way in which the Authority had expressed its ultimate conclusion in par 12 of its reasons. In particular, the Minister urged that its reasons should not be analysed with an eye finely attuned to the perception of error, referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Minister argued that when the Authority said that it had “serious reservations with regards to the veracity of the document and the claim”, it should be understood as saying that it did not regard the warrant and the new claim as “credible personal information” within the meaning of s 473DD(ii). The Minister contended that the Authority clearly was satisfied, for the purposes of s 473DD(b)(i), that the warrant and new claim could have been provided to the Minister before the delegate made the decision. He submitted that, accordingly, no occasion arose for the Authority to give any further consideration as to whether there were exceptional circumstances warranting their consideration in the review. He argued that the Authority was entitled to conclude, as it did in the last sentence of par 12, that it was not satisfied that there were any exceptional circumstances to justify it considering the new information.

17    The Minister argued that, alternatively, the Authority was entitled to find that, despite having found that the warrant and new claim were credible, there were no exceptional circumstances to justify it considering that new information, because of all of the circumstances, including the appellant’s earlier opportunity to have presented it to the Minister.

18    The Minister pointed out that, in AAL19 v Minister for Home Affairs (2020) 277 FCR 393 at 407 [47], Logan, Markovic and Anastassiou JJ held that the Authority had no duty to give reasons in respect of whether or not, for the purposes of s 473DD, it was satisfied, in relation to the determination of whether it would consider new information for the purpose of its review.

Consideration

19    Like the trial judge’s decision, AAL19 277 FCR 393 was decided before AUS17 269 CLR 494. Their Honours drew on what Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ had said in BVD17 v Minister for Immigration and Border Protection (2019) 268 CLR 29 at 39 [16], that when the Authority gave reasons, in accordance with the requirements of s 473EA, for its ultimate decision to affirm or remit a delegate’s decision, it was not required to include any reasons about its exercise or non-exercise of a procedural power, such as that conferred on it in ss 473DC(1) or 473GB(3).

20    In BDF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 401 at [68], Kenny J applied BVD17 268 CLR at 39 [16], saying that, since s 473DD was a, “procedural power”, in Pt 7AA of the Act, the Authority, “is not required to give comprehensive reasons for its determination to exercise or not exercise power to consider new information pursuant to that provision” (see also at [78]). Her Honour followed the reasoning of Besanko J in CPP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2021] FCA 199 at [112], that an analysis of the Authority’s reasons could enable the Court to draw implications as to whether the Authority had addressed the requirements of s 473DD, as explained in AUS17 269 CLR 494.

21    In AUS17 269 CLR at 501–502 [11]–[12], 503–504 [16] and [18], Kiefel CJ, Gageler, Keane and Gordon JJ held that the Authority had to assess whether, first, new information obtained from a referred applicant met one or both criteria in s 473DD(b)(i) and (ii) and, secondly, there were exceptional circumstances under 473DD(a). They said (at 502 [11]):

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).

(emphasis added)

22    They said the same process applied if both criteria in s 473DD(b) were met. They held that the Authority would not perform the procedural duty that s 473DD imposed on it in its conduct of a review under Pt 7AA if it determined, in the purported application of the criterion in s 473DD(a), that exceptional circumstances justifying consideration of new information obtained from the referred applicant did not exist, without first assessing that information against the criteria specified in each of s 473DD(b)(i) and (ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). They held that the performance of the procedural duty in s 473DD was in the nature of a requirement to take a mandatory relevant consideration into account.

23    In Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 (2020) 171 ALD 477, Mortimer and Jackson JJ endorsed the approach of Bromberg J in CSR16 Minister for Immigration and Border Protection [2018] FCA 474 at [40]–[43]. He had held that the criterion in s 473DD(b)(ii) required that the Authority be satisfied that new information is “credible” in the sense that it is open to be, or capable of being, accepted by the Authority, as truthful, accurate or genuine. Bromberg J explained that this assessment should be made without the decision-maker proceeding to arrive at an ultimate conclusion as to that issue. That was because the resolution of whether the information was in fact truthful, accurate or genuine would be left to be done in the review based on all of the material.

24    In Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 96 [17], Gleeson CJ, Gummow, Kirby, Callinan and Heydon JJ discussed what Brennan J had described in Kioa v West (1985) 159 CLR 550 at 628–629 as “adverse information that is credible, relevant and significant to the decision to be made”. Their Honours said that the expression “credible, relevant and significant” had to be understood as referring to information that:

cannot be dismissed from further consideration by the decision maker before making the decision”. And the decision-maker cannot dismiss information from further consideration unless the information is evidently not credible, not relevant, or of little or no significance to the decision that is to be made.

(emphasis added)

25    They held that it is not appropriate for the decision-maker to evaluate the credibility, relevance or significance of new information from the perspective of what the decision maker ultimately might make of it as part of all of the material to be considered in coming to the final decision.

26    The statutory expression: “credible personal information” in s 473DD(b)(ii) is, of course, not the same as the description of the information considered in VEAL 225 CLR 88. Nonetheless, Mortimer and Jackson JJ applied Bromberg J’s view that, in determining whether or not to consider new information under s 473DD, the Authority would look at it through the lens of whether it was capable of being believed, were it to decide that it would receive and consider that information for the purposes of its review of the delegate’s decision.

27    Where an administrative decision-maker does not have to give reasons for a decision, the decision is not unreviewable, as the classic judgment of Dixon J makes clear in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360. He said:

But it is for the commissioner, not for me, to be satisfied of the state of the voting power at the end of the year of income. His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion is liable to review. Moreover, the fact that he has not made known the reasons why he was not satisfied will not prevent the review of his decision. The conclusion he has reached may, on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception. If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law.

(emphasis added)

28    The High Court has not expressly decided that, despite the apparent importance s 473DD has in imposing a procedural duty on the Authority to determine whether or not to consider new information using the process identified in AUS17 269 CLR 494, it does not have to give reasons for such a decision. Whether that is the necessary result of its reasons in BVD17 268 CLR 29 at 39 [16], as AAL19 277 FCR 393 suggests, it need not be decided here. That is because the Authority did give reasons for its decision under s 473DD. The question is whether those reasons, fairly read, reveal jurisdictional error in its approach, or allow the Court to infer that something went wrong in its evaluation so as to warrant granting relief: Avon Downs 78 CLR at 360.

29    The Authority stated in the third sentence of par 12 that it had “serious reservations with regards to the veracity of the document and the claim”. That was a preliminary evaluation under s 473DD(b)(ii) that the warrant and new claim were capable of being (even if unlikely to be) found to be credible, were they considered as new information in the Authority’s review of the delegate’s decision. That is, while the Authority had “serious reservations”, it could not dismiss the warrant and new claim as being incapable of being found to be truthful, accurate or genuine (ie, “credible personal information”), were they to be considered in a review of the delegate’s decision with all of the material available to it.

30    I am of opinion that in stating the conclusion in par 12 (viz: that it had “serious reservations with regards to the veracity of the document and the claim”), the Authority was not making a qualitative evaluation of the kind that it would have to make in a final decision, were it to later take those matters into account in its consideration of all of the other information before it. Rather, by excluding the warrant and the new claim from its review, after finding it to be “credible” for the purposes of s 473DD(b)(ii), the Authority precluded itself from considering the new information.

31    The new information, being the warrant, and the appellant’s solicitor’s submissions in relation to it, if taken into account in the review and ultimately found to be credible, could have made a material difference to the outcome, as the Minister accepted. Accordingly, the Authority erred because it failed to factor into account whether the new information and any other relevant considerations amounted to exceptional circumstances in accordance with s 473DD(a).

32    The Authority’s finding was that the new information satisfied s 473DD(b)(ii), albeit that it had “serious reservations” about it. But, by failing to factor that finding into any subsequent assessment of whether that new information satisfied it that there were exceptional circumstances within the criterion in s 473DD(a), the Authority made a jurisdictional error: AUS17 269 CLR at 502 [11]; see [21] above.

Conclusion

33    For these reasons, I am of opinion that the appeal should be allowed with costs.

Associate:

Dated:    13 September 2022