Federal Court of Australia

DMO18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 61

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be changed to the Minister for Immigration, Citizenship and Multicultural Affairs.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

1    The appellant is a Sri Lankan citizen who arrived in Australia on 28 October 2012. He lodged an application for a Safe Haven Enterprise subclass 790 Visa (SHEV) on 11 August 2016. On 3 November 2017 a delegate of the then Minister for Immigration and Border Protection refused the visa application. On 7 June 2018, the Immigration Assessment Authority affirmed the decision not to grant the appellant a SHEV. The appellant sought judicial review of the Authority’s decision in what was then the Federal Circuit Court of Australia. His application was dismissed on 14 May 2021: DMO18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1028 (hereafter “J”).

2    The appellant appeals from the orders dismissing his application for judicial review. The appellant’s two grounds of appeal mirror his two grounds of judicial review. It is unnecessary to set out the facts in detail; they are referred to only to the extent necessary to address the grounds of appeal.

GROUND 1

Summary of Ground 1

3    As put in written and oral submissions, the appellant contended that the primary judge erred in failing to find that the Authority did not properly consider a claim about threats made against the appellant to the appellant’s family who were residing in Sri Lanka.

4    Ground 1 was put in two ways:

(a)    the Authority evaluated a claim which was different to that made by the appellant and rejected it by reference to a criterion of a different and more specific claim;

(b)    alternatively, if the Authority was to be understood as addressing the appellant’s actual claim, then its reasons were unreasonable in the sense that they had no evident or intelligible justification because they did not engage with the appellant’s claim.

Factual background

5    The background relevant to Ground 1 can be summarised as follows. The appellant had been charged on 4 March 2017 in South Australia with the murder of a Sri Lankan citizen living in Australia. On 29 March 2017, the charges against the appellant were withdrawn when his (false) accuser was charged with the murder. The accuser was later convicted.

6    The appellant participated in a protection visa interview on 10 October 2017. The appellant gave evidence to the effect that the victim’s family were threatening the appellant’s family. The appellant was asked by the delegate how the victim’s family found the appellant’s family. The appellant is recorded as having responded:

My short name is … , so I don’t know how they got my overseas address from here. But they had someone from here has spied me, got it and given there. So they are following her. On the seventh month, they visited her house and looked at the house and said that I’m not at this person.

7    Later in the interview, the appellant’s representative was asked by the delegate whether she had anything to add, apparently after time had been permitted for instructions to be obtained. The representative stated:

The charges were widely reported in Sri Lanka. And [DMO18] has advised that his name and his address in Australia were also published in the Sri Lankan newspaper and that his family have suffered considerably since these allegations. They’ve been isolated and socially marginalized in the community. [DMO18] has explained that he is struggling to find an arranged marriage for his daughters because of these allegations, which is obviously very culturally significant in Sri Lanka. It was briefly mentioned by [DMO18], and I’d like to just provide a few extra details about the incident that occurred approximately one month ago.

During this occasion, what is presumed to be family members or members of the Muslim community of the victim found out where [DMO18’s] family lived and drove a vehicle to the home. They threatened [DMO18’s] wife and family …

8    In a written submission provided to the delegate on 12 October 2017, the appellant’s representative submitted that the appellant’s involvement in the murder was publicised by media reports in Sri Lanka:

… [DMO18] has explained that the murder was widely reported in Sri Lanka and that he was identified by name and his Australian address as being involved. Approximately one month ago, the murder victim’s family visited [DMO18’s] family in Sri Lanka and threatened that they would kill [DMO18] ‘in the same way that the victim was killed’ should he ever return. [DMO18] has explained that due to the high-profile nature of the murder and his implication as a suspect despite his innocence, he will be in grave danger of being killed by the Muslim community in Sri Lanka in retaliation for the victim’s death.

9    No media reports identifying the appellant had been provided by the appellant to the delegate and the delegate was not able to find any. Notwithstanding, the delegate accepted that it was nonetheless possible that the appellant was identified in media reports but rejected the finding that the appellant was in danger:

Part 5: Findings of fact

…

Death threats from family of murder victim

The applicant was charged with the murder of another Sri Lankan man while in the Australian community. The charges were subsequently withdrawn by the South Australian Police. The applicant claims that he was identified in the Sri Lankan media as one of the murderers. I have not been able to locate any media reports that name the applicant. The applicant claims that the family of the victim in Sri Lanka have made death threats against him.

The applicant’s agent provided a post interview submission with Sri Lankan detailing that the victim’s family had visited the applicant’s home and made death threats against him. The applicant claims this has been reported to the Sri Lankan Police.

I accept that the applicant was charged with murder and was subsequently eliminated from the investigation and charges withdrawn. I accept that the applicant has received threats via his family in Sri Lanka.

…

Part 6: Australia’s protection obligations

Refugee criteria assessment—s36(2)(a) of the Act

…

Assessment - Death threats from family of murder victim

The applicant claims that he has received death threats from the Sri Lankan family of a murder victim.

The applicant was charged with murder along with two other men by the South Australian Police on 4 March 2017. The charges were withdrawn by the South Australian Police on 29 March 2017.

The applicant claims that as a result of the media coverage of the murder, his name was released in Sri Lanka. I have not been able to locate a media report that names the applicant. The applicant claims that his wife made a police report concerning the threats.

I have considered if the reports of a murder in Australia involving Sri Lankan nationals would receive wide media coverage in Sri Lanka. I consider it very likely that such an event would gain significant media attention in Sri Lanka. The South Australian Courts suppressed the names of the accused to protect the investigation.

I consider it feasible that the applicant’s name may have be[en] reported in Sri Lankan media at some stage. I also consider that it is likely that someone in Australia communicated the name of the applicant to the victim’s family.

The applicant claims that the victim was from Colombo, around two hours by car from where the applicant originates. The applicant also claims that the people who made the threats visited his house twice and have now stopped visiting since the police report was made.

I consider that the applicant’s home is not located near the family of the victim and that any threats have stopped since the Sri Lankan police became involved.

I do not accept the claim that the applicant is in danger from the family of the murder victim.

10    In affirming the decision to refuse the appellant’s application, the Authority made different factual findings to the delegate on this aspect of the appellant’s claims.

11    The Authority accepted that rumours may have circulated in the Sri Lankan community but not that the appellant had received death threats from the family of the murder victim. The Authority’s reasons (hereafter “A”) included:

Factual findings

[24]     … I am prepared to accept the applicant was charged with murder and that those charges were subsequently withdrawn.

[25]    However, I have difficulty accepting that some months later the victim’s family visited his wife in Sri Lanka and threatened to kill him if he returned to Sri Lanka. The applicant has claimed that the murder charges were widely reported in Sri Lanka, and he has been advised that his name and address in Australia were published in a Sri Lankan newspaper. However, he has not provided any copies of any Sri Lankan media reporting these allegations and naming him. The delegate said he was not able to locate any media reports that name the applicant. The applicant also claimed that despite his innocence, the word spread very quickly in the community in Australia and in Sri Lanka. He said the justice system in Sri Lanka is different to Australia and because he spent time in prison while there was an investigation, this is enough evidence to indicate to some members of the Sri Lankan community that he is guilty. The applicant claimed that about a month before his interview in October 2017, family members of the murder victim (who is from Colombo according to the applicant), or members of the Muslim community of the victim, found out where the applicant’s family lives in [Z], and drove there and threatened his wife and family because they said they had received information that the applicant was responsible for the victim’s death. His wife explained the charges were dropped and he was falsely accused, but they did not believe her and that if he returns he will be killed in Sri Lanka. Afterwards, persons in a similar car were seen driving past the family house on two occasions, which prompted his wife to complain to the police about the harassment and threats, but at the time of the interview, there had been no follow-up. The delegate accepted that the applicant’s family had received threats via his family in Sri Lanka. The applicant has not provided a copy of a police report. He said the police put it as an entry, but they did not give his wife a slip, it is [Z]police. The applicant said, he is a Hindu and the murder victim was Muslim, so this has raised religious issues. However, the applicant did not give any information to support his assertion, and I am not satisfied that it is.

[26]     I accept that rumours may have circulated in the Sri Lankan community about the murder in March 2017. However, given it was reported in Australia that the South Australian police were satisfied the three persons arrested (but not named) were falsely accused, and the investigation against them discontinued, and given the absence of any copies of Sri Lankan media naming the applicant, I am not satisfied the victim’s family or members of the victim’s Muslim community, found the applicant’s family in [Z], and threatened to kill him because they have information the applicant was responsible for the death of this person. I find the applicant has not received death threats from the family and / or community of the murder victim.

Summary of the appellant’s submissions

12    Before the primary judge, and on this appeal, the appellant submitted that the Authority incorrectly rejected his claims by evaluating a different and narrower claim.

13    It was submitted on appeal that the “appellant’s claim correctly described was that he did not know how the murder victim’s family knew [his family’s address in Sri Lanka], but only that they knew”.

14    The appellant submitted that the Authority did not address the appellant’s claim that the victim’s family knew how to find the appellant’s family, but not how they knew. The appellant submitted that this inference should be drawn because, so it was submitted, the Authority only relied on the lack of media reports in Sri Lanka identifying the appellant in coming to the conclusion that the appellant’s family did not receive death threats against the appellant from the murder victim’s family.

The primary judge’s conclusions

15    The primary judge rejected the appellant’s contention that the Authority evaluated a different claim, stating at J[14]:

It was submitted on behalf of the applicant that the Authority had evaluated a claim which was different than that made by the applicant. The Court does not accept such submission. The Authority appropriately addressed the question of the applicant’s having been falsely accused of murder. It dealt in a logical and considered way with the different possibilities concerning whether or not the identity of the applicant, relative to the murder charges, might have become known in Sri Lanka, and more specifically, if his identity had become known, whether or not that would give rise to his having a well-founded fear of persecution from members of the murder victim’s family in the event of him being returned to Sri Lanka.

Consideration

16    It is an oversimplification to describe the appellant’s claim as being “that he did not know how the murder victim’s family knew [his family’s address in Sri Lanka]”. The appellant positively asserted not only that the victim’s family knew of his family’s address, but that “his name and his address in Australia were also published in the Sri Lankan newspaper and that his family have suffered considerably since these allegations”. He asserted (by his representative) that “the murder was widely reported in Sri Lanka and that he was identified by name and his Australian address as being involved”. In his protection visa interview, he also asserted that he was spied on in Australia and information was provided to people in Sri Lanka. It was implicit in what the appellant said, either directly or through his representative, that he was claiming that the publication in Sri Lanka of his name and Australian address in connection with the murder likely enabled the victim’s family to find the appellant’s family’s address.

17    The Authority’s reasons show that there were various matters contributing to its conclusion that the appellant’s family in Sri Lanka did not receive death threats against the appellant from the family of the murder victim.

18    The Authority at A[24] observed that there were doubts as to whether the victim’s family in Sri Lanka could have become aware of the appellant’s identity directly from the police, as his identity was never referred to in any police media releases:

I accept that in March 2017, the applicant was arrested in Australia in connection with the murder of a Sri Lankan man. The applicant has not given any documentation from the police or the prison to demonstrate that he was one of three men arrested and charged with murder … The media release does not name the applicant, nor does it give any other identifying information about the applicant. There is no mention of the victim or any accused coming from Sri Lanka.

19    The Authority considered the appellant’s submission that “word spread very quickly in the community in Australia and Sri Lanka” and it accepted that rumours “may have circulated” in the Sri Lankan community about the murder in March 2017: A[26].

20    Nonetheless, the Authority was not satisfied that the victim’s family had made threats to the appellant’s family. The Authority reached this conclusion because it did not accept that the victim’s family had information that the appellant was responsible for the death of the victim. This conclusion was reached in light of the following:

(a)    it was reported in Australia that the South Australian police were satisfied that the three persons arrested (but not named) were falsely accused;

(b)    the investigation against them in Australia was discontinued; and

(c)    there was no evidence that Sri Lankan media named the applicant A[26].

21    It follows that the fact that the appellant’s name was not shown to have been reported in any media publication in Sri Lanka was just one reason for the Authority’s conclusion that threats were not made by the victim’s family.

22    I am satisfied that the Authority considered the claim as advanced by the appellant.

23    As mentioned, the appellant’s alternative submission on Ground 1 was that the Authority’s consideration of the appellant’s claim had “no evident or intelligible justification because they did not engage with the claim”. This was put in the following way in the notice of appeal:

In the alternative, if the respondent did determine the applicant’s claim (that the victim’s family and associates knew his identify by unknown means) its decision was unreasonable in that it lacked an evident and intelligible justification because:

•    the Authority’s finding that the applicant’s identity was not published in the media in Sri Lanka did not answer the substance of that claim;

•    there were legislated duties and rights, namely s 8 of the Victims of Crime Act 2001 (SA), which provides in part that a victim has a right to be informed by Police of the name of the alleged offender upon request, which the Authority could be assumed to know and which provided a direct means by which the victim’s family could have learned of his identity.

•    there was no rational basis upon which to conclude that generally retribution would not be sought once it was publicised in Australia that the applicant was no longer a suspect.

24    As to the first bullet point, the Authority’s finding did respond to the appellant’s claim and, in any event, did not constitute the whole basis upon which it rejected the appellant’s claim concerning death threats made to his family.

25    The matter in the second bullet point was not put to the delegate or the Authority. The basis on which the Authority “could be assumed to know” about the particular South Australian provision is unclear. The mere fact that there was a means by which the victim’s family might theoretically have come to learn of the appellant’s identity does not mean that the victim’s family did learn by that means.

26    The appellant’s submission contains an unstated assumption that the victim’s family in Sri Lanka was aware of the South Australian provision and availed itself of its use or that some other person answering the legislative description of “victim” (see s 4 of the Victims of Crime Act 2001 (SA)) availed him or herself of the provision and then made that information available in some undefined way such that it came to the knowledge of the victim’s family. None of this is particularly likely. There was no error in not considering the unlikely hypothetical implicit in the second bullet point.

27    As to the third bullet point, it was plainly rational to conclude that the victim's family would not seek to exact revenge upon a person in respect of a murder of which that person was falsely accused. The attempted exacting of 'revenge' (although this word would be inapt) on a person for something of which the person was known to be falsely accused might conceivably occur, but that does not make irrational a conclusion that it was unlikely to have happened.

28    The Authority considered the appellant’s claims and addressed the claims by a review of the kind authorised by the statute. Its decision had a rational and intelligible justification. It is not to the point that other conclusions were also open.

29    Ground 1 of the appeal is not made out.

GROUND 2

Summary of the appellant’s case

30    By Ground 2 of the appeal, the appellant contended that the primary judge erred in not finding that the Authority’s failure to exercise the discretion under s 473DC(3) to invite the appellant to give new information “or other submissions” to the Authority was legally unreasonable.

31    The appellant’s submissions focussed on two claims, namely that:

(1)    the murder charges laid against the appellant had been withdrawn but that, notwithstanding such withdrawal, the appellant had received threats via his family in Sri Lanka; and

(2)    the appellant had attempted to depart Sri Lanka twice in 2012 but was arrested and detained for two or three days after the first attempt when his vessel was intercepted and then, on the second attempt, after being released on bail successfully departed before the Sri Lankan court case was heard.

32    The appellant submitted, correctly, that the Authority reached conclusions inconsistent with those of the delegate in relation to these matters.

33    The appellant argued that the Authority should have exercised its power under s 473DC to:

(1)    obtain “submissions about why the family members of the murder victim in South Australia could have learned from a variety of sources that he was for a time a suspect, and why they would not desist even if it was publicised later in Australia that he was not involved”; and

(2)    obtain “new information at an interview and provide submissions about whether there was an inconsistency between his entry interview and his protection interview on the issue of his attempted departure from Sri Lanka, and if so, why”.

34    It is necessary to say at this point, that s 473DC does not furnish a power to obtain submissions. It is concerned only with “new information”. There was no power under s 473DC to obtain submissions.

35    The Information Sheet provided to the appellant with the delegate’s decision included:

Can I make a submission to the IAA?

You can provide a written submission on:

•    why you disagree with the department’s decision, and

•    any claim or matter you presented to the department that was not considered.

Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department.

36    The Practice Direction, also provided to the appellant with the delegate’s decision, included:

About this direction

…

3.     This direction sets out the requirements to be followed by applicants (you) and their representatives and authorised recipients when dealing with the IAA (us).

…

Submissions and new information

20.    For the purposes of the review, you may provide a written submission on the following:

•    why you disagree with the decision of the Department

•    any claim or matter that you presented to the Department that was overlooked.

21.    Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:

•    be no longer than 5 pages,

•    be easily legible using a font size of at least 11 point with standard margins of at least 2.54cm, and

•    should be provided to us within 21 days of your case being referred to us by the Department.

22.    We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.

37    The appellant expressly did not contend that there was an obligation of procedural fairness or an obligation arising from the terms of the Practice Direction or any provision of Part 7AA apart from s 473DC to invite submissions. Rather, Ground 2 was confined to legal unreasonableness in failing to consider the exercise of the power in s 473DC or in not exercising the power. The content of the Practice Note was only relied upon as a circumstance relevant to the question of whether such legal unreasonableness had been made out. The appellant noted, correctly, that although the primary judge decided Ground 2 on procedural fairness grounds this was not the way the appellant had put the case at trial.

Relevant principles

Section 473DC

38    Section 473DC of the Act provides:

    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.

39    Section 473DA(1) (to which neither party referred in written submission) provides:

Exhaustive statement of natural justice hearing rule

(1)     This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

40    Although the Practice Note was central to the submissions made on the application for judicial review and this appeal, neither party referred in written submissions to s 473FB or contended that it had any relevance to the issues to be determined. Section 473FB is contained within Division 5 of Part 7AA and thus is not a provision which falls within s 473DA(1).

41    The power of the Authority under s 473DC to invite a person to give new information is conferred on the implied condition that the power must be considered and, where appropriate, exercised within the bounds of reasonableness: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [3].

42    As to whether consideration was given to the exercise of the power in s 473DC:

(a)    it cannot be inferred from the mere absence of any reference in the Authority’s reasons to a consideration of the exercise of the power that the Authority failed to consider exercising the power – see: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [40]; and

(b)    the onus is on the judicial review applicant to establish that there was a failure to consider exercising the discretion where such a contention is made (as it is here) and this might be proved, for example, through a process of inference from all relevant facts.

43    As to the legally unreasonable exercise of the power in s 473DC:

(a)    The question whether a failure to exercise a statutory power is legally unreasonable must be assessed in the context of the particular statutory scheme. Pt 7AA provides “a limited form of review” of a “fast track decision” constituted by a refusal to grant a protection visa to a “fast track applicant”: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [1]. The Authority is required to consider the application afresh, by reference to the statutorily mandated material provided to it and that which it might obtain pursuant to express (and confined) statutory powers (including s 473DC, and to determine for itself whether the criteria for the grant of the visa have been satisfied – see, generally: M174 at [17]. Division 3 of Part 7AA (together with ss 473GA and 473GB) exhaustively states the natural justice hearing rule: s 473DA(1).

(b)    The implied condition of reasonableness encompasses both why a statutory decision is made and how a statutory decision is made such that “[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course”: ABT17 at [19], citing Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273 at 290, in turn citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170.

(c)    Compliance with the implied condition of reasonableness in the performance of the duty to review the decision requires not only that the decision to which the Authority comes on the review has an intelligible justification but also that the Authority comes to that decision through an intelligible decision-making process: ABT17 at [20], citing Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] and [105].

(d)    The question whether a failure to exercise the power was unreasonable, or whether compliance with the implied condition of reasonableness might compel the Authority to exercise the power, “is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA”: APT17 at [18]; BVD17 at [34]; s 473DA(1). In answering the question, however, one must have regard to the statutory scheme which includes the natural justice hearing rule as exhaustively stated by Division 3 (and ss 473GA and 473GB).

(e)    There can be circumstances in which the Authority transgresses the bounds of reasonableness by treating particular information as part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant: ABT17 at [20].

(f)    Although the circumstances in any given case may be such that a decision not to get new information might be shown to be unreasonable, the mere fact that the Authority might take a different view of the conclusions to be drawn from the material before the delegate does not oblige the Authority to request new information: BDJ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1074 at [49]; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [76]; DPI17 at [41], [118].

44    As is to be expected, the factual context in ABT17 was different to the present case. In ABT17, the review material, which the Authority was obliged to consider in making its determination, left out information that was available to, and required to be considered by, the delegate. Specifically, the Authority did not have available to it a visual impression of how the referred applicant appeared during the protection visa interview, relevant to demeanour. The plurality concluded:

[25]    [T]he Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.

45    Their Honours reasons included:

[29]    Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant’s account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.

[30]    To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.

46    The appellant relied heavily on DPI17 v Minister for Home Affairs [2019] FCAFC 43; 269 FCR 134, submitting that “much [could] be drawn from the factually cognate circumstances in DPI17” and noting that it had been relied on before, but not referred to by, the primary judge.

47    In DPI17, the applicant had applied for a protection visa which was refused by a delegate of the Minister. The delegate:

(a)    stated in her reasons that she accepted that the appellant had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions: DPI17 at [9]; and

(b)    in relation to various inconsistencies which were not later referred to by the delegate in her reasons, advised the applicant at his protection visa interview that she would not put a lot of weight on various discrepancies she had found between certain accounts given by the applicant because, on the whole, the appellant had been consistent.

48    Despite accepting the appellant in relation to the sexual assaults, the delegate did not accept the appellant’s fear of persecution on return to Sri Lanka was well-founded. She was also not satisfied that there were reasonable grounds to believe that there was a real chance he might suffer serious harm in the reasonably foreseeable future.

49    On review, the Authority affirmed the delegate’s decision. The plurality in the Full Court (Griffiths and Steward JJ) observed that the appellant’s submissions on that review addressed certain aspects of the delegate’s reasons for decision, but no submission was made in respect of:

(a)    the sexual assaults, presumably because the delegate had accepted the appellant’s claims on that matter; and

(b)    the inconsistencies which were not mentioned in the delegate’s reasons for decision, presumably because they were not mentioned in those reasons: DPI17 at [11].

50    The Authority took a different view from the delegate on the issues of: (a) the sexual assaults; and (b) the inconsistencies in the appellant’s claims to which the delegate had not referred in her reasons.

51    It is important to understand that the Minister conceded in the full court that the Authority had failed to consider whether or not to exercise the power under s 473DC: at [44] (Griffiths and Steward JJ); at [56] (Mortimer J). The issue was not, therefore, whether a considered exercise of the power was unreasonable; rather, the issue was “whether consideration should have been given to its exercise”: at [64] (Mortimer J; emphasis in original).

52    Griffiths and Steward JJ concluded that the Authority’s failure to consider whether to exercise the power under s 473DC was legally unreasonable. Their Honours stated:

[45]    For the following reasons, we consider that the IAA’s failure to consider whether or not to exercise its power under s 473DC in respect of either the issue of the sexual assaults or the relevant inconsistencies was legally unreasonable because, in the circumstances, the failure was unreasonable or plainly unjust (see Li at [76] per Hayne, Kiefel and Bell JJ and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [10]-[11] per Allsop CJ, [76] per Griffiths J and at [101] per Wigney J). It is convenient to deal with each of those matters in turn.

53    Griffiths and Steward JJ continued (emphasis in original):

[46]    As to the sexual assaults:

(1)     It would have been evident to the IAA from the extracts from the transcript of the appellant’s interview with the delegate (see [14] above) that the delegate’s acceptance of the appellant’s claim that he had been tortured and sexually assaulted by Sri Lankan officials on at least two occasions (as stated in the decision record), was based primarily on the delegate’s assessment of the appellant’s demeanour and credibility when this matter was discussed in the course of the interview with the delegate.

(2)     The IAA must have been aware of the delegate’s positive assessment of the appellant’s demeanour because the IAA member stated at [20] of his reasons for decision that he had listened to the recording of that interview.

(3)     In those circumstances, if the IAA was minded to come to a different determination on the central question whether it was satisfied that the sexual assaults had occurred, unless there was available to the IAA a sufficient independent evidentiary basis to support such a determination without the IAA itself inviting the appellant to attend for an interview and conduct its own assessment of his demeanour, it was legally unreasonable for the IAA to fail to consider whether or not it should exercise its powers under s 473DC.

(4)     As the plurality observed in Fox v Percy (2003) 214 CLR 118 at [30]-[31], demeanour is not the only aspect of a witness’s evidence which may lead to credibility findings. Such findings might result from inferences drawn from probative evidence or material. This is not the case here. That is because part of the IAA’s reasons for its adverse finding on the appellant’s credibility, as summarised in [35] of its reasons for decision, was based on the cumulative effect of inconsistencies and implausibilities in the appellant’s evidence, as set out by the IAA in [22]-[34] inclusively. Those inconsistencies, together with the other matters referred to in [35] of the IAA’s decision record were viewed as undermining the appellant’s credibility. That adverse finding then flowed through to the IAA’s rejection in [36] of its decision record of the appellant’s claims to have been the victim of sexual assault.

(5)     For reasons which will shortly be stated, some of the inconsistencies as found by the IAA were at odds with the delegate’s separate statement to the appellant and his representative that those particular inconsistencies were, in effect, inconsequential. Consistently with what they were told by the delegate at the end of the interview, the delegate placed no weight on them. As will shortly be explained, in the particular circumstances here, while it was open to the IAA to come to a different view on the significance of those and other inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential (the relevant inconsistencies), it was legally unreasonable for the IAA to fail to consider whether or not to exercise its power under s 473DC in relation to those relevant inconsistencies.

[47]    As to the relevant inconsistencies:

(1)     Although it is true that, during the course of the appellant’s interview with the delegate, the issue arose of inconsistencies between what was stated in the statutory declaration dated 23 September 2013 and other evidence given by the appellant, the delegate explicitly stated that the “discrepancies aren’t major” and she would not put “a lot of weight on those discrepancies” because, on the whole, she viewed the appellant’s evidence as being consistent.

(2)     Presumably in reliance upon those statements, the appellant did not address the inconsistencies in his post-interview submissions. According to what the delegate said at the end of the interview, she viewed the relevant inconsistencies as inconsequential and they did not figure in the delegate’s reasons for refusing to grant the appellant a SHEV.

(3)     It is also relevant that the transcript of interview indicates that the appellant’s migration agent raised with the delegate the issue of inconsistencies and indicated to the delegate that these inconsistencies may be attributable to the fact that the agent did not have access to all the appellant’s prior statements, potentially leading to some misunderstanding.

(4)     It was open to the IAA to take a different view as to the significance of the relevant inconsistencies (bearing in mind the nature of the IAA’s review function), but in view of the matters described immediately above, the IAA was obliged to consider and determine whether or not it should exercise its discretion under s 473DC and invite the appellant to provide any “new information” relating to the relevant inconsistencies, whether at an interview or otherwise. There is nothing to suggest that the IAA turned its mind to this requirement. In the particular circumstances, it was legally unreasonable for it not to do so.

54    Mortimer J also concluded that the failure to consider the exercise of the power was legally unreasonable. Her Honour confined her analysis to the way in which the Authority dealt with the appellant’s claims of rape: at [114]. Her Honour accepted that a reasonable decision-maker might have decided that it was not appropriate to exercise the power under s 473DC, but that it was not reasonable not to have considered at all whether to exercise the power: at [116]; [122], [126].

55    Her Honour stated:

[124]    The question is then what tips this case into a category where the IAA’s failure to consider exercising the s 473DC power can properly be described as an “abuse of statutory power” (SZVFW at [80] (Nettle and Gordon JJ)), or a course “that ‘no sensible [Tribunal] acting with due appreciation of its responsibilities’ could have taken” (SZVFW at [69] (Gageler J), citing Li at [71], in turn quoting Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064).

[125]    Essentially, it is the following factors:

(a)    the subject-matter of the impugned narrative – two sexual assaults and a rape (graphically and specifically described by the appellant), said to have been committed by Sri Lankan State actors (namely, members of the Sri Lanka CID);

(b)    the importance of that narrative to the appellant’s claims for protection, even accepting there may still have been other reasons he might have been found not to satisfy the protection criteria. The appellant’s narrative regarding the sexual assaults and rape was capable of constituting a particularly strong indication that his fear of returning to Sri Lanka might be well-founded, or that there were substantial grounds to believe he was at risk of serious harm if returned to Sri Lanka;

(c)    the well-established importance of observing and hearing an individual recounting such events to the assessment of that individual’s reliability and credibility; and

(d)    the fact the delegate had accepted this narrative on the basis of her impression of the appellant’s presentation and demeanour during the interview, and that the appellant and his advisers had assumed (to the knowledge of the IAA because it was stated in the submissions made on the appellant’s behalf to the IAA that the delegate had accepted that the applicant was “tortured and sexually assaulted by Sri Lankan officials on at least two occasions”), that this aspect of the appellant’s narrative would be treated as accepted by the IAA.

[126]    A “due appreciation” by the IAA of its responsibilities in determining whether it believed the appellant’s account concerning such a serious issue, in the knowledge it had the power, under s 473DC, to decide to interview him, would have led any IAA acting reasonably to consider whether to exercise that power.

56    The decision of the Full Court in DPI17 pre-dates the decision of the High Court in APT17. Some of the reasoning in DPI17 is affected by what was later said in APT17, in particular in respect of the extent to which notions of procedural fairness assist in the determination of whether a decision was legally unreasonably in this particular statutory context – compare: APT17 at [18]; DPI17 at [78] to [95].

Materiality

57    It is ordinarily necessary to prove materiality in order to establish that a breach of an express or implied condition of a conferral of statutory decision-making authority resulted in jurisdictional error: MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 at [1] (Kiefel CJ, Gageler, Keane and Gleeson JJ); Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123.

58    A breach of a condition of a decision-making power will be material if there is a realistic possibility that the decision in fact made could have been different had the breach of the condition not occurred: MZAPC at [2], [39]; Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421. The party who bears the onus of proving jurisdictional error bears the onus of proving that the breach was material: MZAPC at [2], [39].

59    The majority in MZAPC at [33] explained the significance of the qualification “ordinarily” to the principle that materiality must be proved:

The qualification “ordinarily”, and the focus on conditions required to be observed in the course of a decision-making process, are important. The threshold of materiality was not expressed to be additionally required to be met for every breach of every condition of a conferral of statutory decision-making authority to result in a decision-maker having exceeded the limits of the authority conferred by statute in the absence of an affirmative indication of a legislative intention to the contrary. There are conditions routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality, non-compliance with which will result in a decision exceeding the limits of decision-making authority without any additional threshold needing to be met. The standard condition that a decision-maker be free from actual or apprehended bias is one example: see CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 151 [47], 155 [70], 164 [129]; 375 ALR 47 at 59, 64, 76. The standard condition that the ultimate decision that is made lie within the bounds of reasonableness is another: Tsvetnenko v United States of America (2019) 269 FCR 225 at 245-246 [96]-[101].

60    In Tsvetnenko v United States of America [2019] FCAFC 74; 269 FCR 225 – to which the High Court referred with apparent approval in the last sentence of the passage extracted above – the Full Court observed that it was unnecessary to consider materiality as a separate issue after determining that a decision was legally unreasonable, because the decision must be found to be unreasonable in a material respect for the conclusion to be reached that it was legally unreasonable: at [94]. The Full Court stated at [96]:

… It is not possible to conceive of an instance in which it might be demonstrated that the decision itself is unreasonable, but not in a material way. Rather, in a case where unreasonableness is sought to be demonstrated by reference to the reasons given by the decision-maker the application of the requirement for materiality involves a consideration as part of evaluating whether the decision is unreasonable as to whether any illogicality or other defect in the reasoning was material to the decision.

61    The Full Court considered that the reasoning of Mortimer J, and the joint reasoning of Griffiths and Steward JJ, in DPI17 was consistent with their conclusion:

[99]     In DPI17, Griffiths and Steward JJ first concluded that certain aspects of the reasoning of the administrative decision-maker were legally unreasonable because the failure to consider certain matters was unreasonable or plainly unjust: at [45]. Then, consideration was given by their Honours to whether that error was material and involved jurisdictional error: at [48]. It was found that the error was material because the ultimate decision might have been different if the matters had been considered: at [53]. Expressed in that way their Honours recognised that the conclusion of unreasonableness depends upon demonstrating that there was an effect on the result.

[100]     Mortimer J adopted a different path in reaching a similar conclusion. In the course of doing so her Honour expressed the following view at [106] (having noted that reasonableness is an implied condition on an exercise of statutory power):

However, as the law currently stands, I do not understand that the ratio of the decisions in Hossain and SZMTA require that where an exercise of power has been found to be legally unreasonable (a ground not addressed in either of those decisions), the supervising court must conduct a separate assessment of “materiality”, before being able to characterise the error as jurisdictional in character.

[101]    For reasons already given the error alleged in this case was not of a kind that could support a conclusion that the decision by the magistrate was legally unreasonable ...

62    As mentioned, these paragraphs of Tsvetnenko were specifically referred to by the majority of the High Court in MZAPC at [33], with apparent approval.

63    It follows from what the majority of the High Court in MZAPC said at [33] and from what the Full Court said in Tsvetnenko, that:

(1)    the importance or “materiality” of the alleged defect in the reasoning or the decision or the process by which the decision was reached is relevant in determining whether legal unreasonableness has been established – legal unreasonableness will not be established where the defect is not material; and

(2)    questions of “materiality” therefore do not need to be addressed again if it is concluded that the failure to exercise, or consider the of, a power was legally unreasonable.

Consideration

Was there a failure to consider exercising the power under s 473DC?

64    The appellant submitted that there was nothing to suggest that the Authority had considered exercising the power under s 473DC and that it should be inferred that the Authority did not.

65    It is clear from the Authority’s reasons that, at least in general terms, it considered whether or not to exercise the power in s 473DC: the Authority decided to get new information in the form of a country information report: A[8].

66    It is true that there was no mention of a consideration of the exercise of the power in s 473DC in relation to the two specific matters identified by the appellant as matters in respect of which the Authority should have requested new information (or invited submissions). However, there was no obligation to include such a statement in the reasons and, as noted at [42] above, an absence of such a statement is not, at least of itself, sufficient to infer a failure to consider exercising the power. One would not expect a decision-maker in this statutory context or in these circumstances to record such a matter in its reasons.

67    The appellant has not discharged its onus of establishing that the Authority did not consider exercising the power. Accordingly, the issue is whether the Authority’s failure to exercise the power in s 473DC was legally unreasonable.

68    I should record that, even if I had concluded that the Authority failed to consider exercising the power in s 473DC in relation to the particular matters identified by the appellant, I would have reached the same conclusions as expressed below for substantially the same reasons.

Death threats made to appellant’s family

69    The appellant submitted that “the failure to use the power under s 473DC was unreasonable” because “the [Authority] must have understood – or should have understood – that there had not been an opportunity afforded to the appellant to” (appellant’s emphasis):

make submissions about why the family members of the murder victim in South Australia could have learned from a variety of sources that he was for a time a suspect, and why they would not desist even if it was publicised later in Australia that he was not involved. That matter was “positively accepted” by the delegate.

70    As mentioned, the power under s 473DC is a power to get “new information”. It is not a power to invite further submissions.

71    The appellant knew from the delegate’s decision that no Sri Lankan media reports had been located and knew that his assertion that they existed was not established. If he had wanted to provide such media reports to the Authority as “new information” he could have sought to do so without an invitation.

72    Part 7AA does not provide a direct statutory entitlement to make submissions to the Authority. Section 473FB authorises the President of the Administrative Appeals Tribunal to issue directions which are not inconsistent with the Act. The Practice Note was expressed to have been issued under that provision.

73    Paragraph 20 of the Practice Note provided that the appellant “may provide a written submission on …. why you disagree with the decision of the Department”. Paragraph 20 did not expressly, or by necessary implication, prevent or prohibit submissions: (a) as to why particular aspects of the delegate’s decision were correct; or (b) which provided further, alternative or different reasons why a particular favourable conclusion reached by the delegate should also be accepted by the Authority.

74    The appellant disagreed with the delegate’s decision. It was open to him, in making submissions about why he disagreed with the delegate’s decision, to emphasise, support or give alternative reasons as to why the Authority should accept aspects of the delegate’s decision which were in his favour. Indeed, the appellant did provide submissions which emphasised various aspects of the decision which were in his favour.

75    If the Authority considered that submissions so provided did not comply with paragraph 20 it could have rejected them in accordance with paragraph 22 of the Practice Note and given the appellant “a short deadline by which to provide a revised submission that complies with” the Practice Direction.

76    The inconsistency relied upon by the appellant was that the delegate had accepted that the appellant’s family had received threats, but the Authority had not.

77    The appellant, who was represented, must have known that the Authority might take a different position to the delegate, even on issues which the delegate had accepted. As Mortimer J observed in DPI17 at [118]:

The failure to consider whether to exercise the s 473DC power does not become legally unreasonable by reference to what the delegate said during the interview, nor by reference to any “representations” she might be said to have made to the appellant during the interview process: cf Muin v Refugee Review Tribunal [2002] HCA 30; 68 ALD 257. The appellant, and more particularly his adviser, should have been well aware that the IAA might take a different view of the “PV statement” and other evidence, and put that material to different use. They should have been well aware that the IAA might give different weight to parts of the material, and might place emphasis on variations in the appellant’s narrative which were of no concern to the delegate. This is precisely the kind of difference that arises between two tiers of merits review, and is commonplace.

78    The issues concerning the death threats were the same before the Authority as they had been before the delegate. It was the Authority’s task to make its own assessment on the basis of the review material. The Authority was entitled to reach a different view on the material provided. Its different view was based on the same material as had been before the delegate. The appellant did not contend that there was an “informational gap” as there had been in APT17.

79    The circumstances in the present case are far removed from, and not analogous to, those in DPI17. The particular issue concerning the alleged threats made to the appellant’s family was not of such central or dispositive importance that a failure to get new information about it was unreasonable. The delegate stated that he considered it “likely that someone in Australia communicated the name of the applicant to the victim’s family”. The Authority accepted at A[26] that rumours may have circulated in the Sri Lankan community about the murder. Both the delegate and the Authority made findings that they did not accept that the appellant was at risk of harm from the murder victim’s family. One reason for this, on the Authority’s analysis, was that the victim’s family would also be aware that the appellant had been falsely accused. This conclusion was open and reasonable.

80    The appellant’s case must fail on this point because s 473DC does not contain a power to invite submissions. It cannot be unreasonable not to exercise a power to do something which the power does not authorise.

81    If it had been argued that the decision not to get “new information” in relation to the alleged death threats was legally unreasonable, it would not have been made out for the reasons given above. The Authority’s failure to get “new information” was not outside its “decisional freedom”: BJK17 at [44]. It did not have the character of being legally unreasonable in lacking a rational foundation or an evident or intelligible justification or in being plainly unjust, arbitrary, capricious, or lacking in common sense: BJK17 at [44]; CCQ17 at [51]. It cannot be said that no decision-maker, acting reasonably, could decide not to exercise the power in this statutory context and in the factual circumstances as they were at the time: ABT17 at [19].

Appellant’s arrest in 2012

82    The appellant’s case in respect of the arrest and detention in 2012 was founded upon an asserted inconsistency between the decision of the delegate and the Authority. The asserted inconsistency was that the delegate had accepted that the appellant was arrested and detained in relation to an attempted illegal departure from Sri Lanka in 2012, but the Authority had not. The Minister submitted that there was no such inconsistency.

83    The Authority understood the delegate to have accepted that the appellant was arrested and detained. The Minister submitted that the Authority was mistaken. The Authority stated at A[21] (emphasis added):

[21]     I do not accept that in 2012, the applicant attempted to depart Sri Lanka illegally and was arrested and detained by the authorities in [Z] Navy Camp for three days, attended court, and his wife and mother paid his bail. The applicant did not raise this claim when he arrived. At the entry interview, the applicant said that since July 2012 he was trying to leave Sri Lanka, but they said it was postponed or delayed. The applicant did not provide any documentation in relation to the charges for illegal departure, attending court and being released on bail. I note the delegate accepted this claim because it has been consistently presented and there was no evidence to dispute it. However, I have concerns about the consistency in information from the applicant on this matter, and the lack of documentation to support the claim. I do not accept that when the applicant departed Sri Lanka by boat in October 2012, he had outstanding charges for a prior attempted illegal departure.

84    The Minister’s submissions rely upon the following passage of the delegate’s reasons:

Illegal departure from Sri Lanka and failed asylum seeker

The applicant claimed to have departed Sri Lanka illegally in October 2012 by boat and without travel documentation. This information has been consistently presented by the applicant throughout his dealings with Department and there is no evidence to dispute this claim.

The applicant claims that he attempted to leave Sri Lanka illegally previously and was apprehended by the Sri Lankan Navy and arrested. He claims he was released from prison after two days and then successfully departed the country illegally.

I accept that the applicant left his country of nationality without the knowledge of the Sri Lankan authorities. I also acknowledge that the applicant would be returning to Sri Lanka as a failed asylum seeker.

85    In the first paragraph, the delegate accepted that the appellant left Sri Lanka illegally in 2012. This claim had been “consistently presented by the applicant”. The Authority also accepted this claim.

86    After accepting this claim (in the second paragraph above), the delegate referred to an earlier attempt (also in 2012) to leave Sri Lanka and the appellant’s claims in that regard, namely that he had been arrested and detained. The delegate did not, in this passage, accept or reject that claim or say anything about whether that claim had been consistently presented by the appellant. Later in his reasons, the delegate stated:

In regards to the applicant’s illegal departure, the applicant’s identity is likely to be checked and he would be questioned at the airport on arrival. However, noting the applicant does not have a criminal background and was not of interest to the authorities when he left the country, I find he would not be exposed to harassment or any type of harm that would amount to serious harm on his return.

87    The Minister’s submissions did not refer to the following passage of the delegate’s reasons:

Supporter of the LTTE

The applicant claims that he was a supporter of the LTTE. The applicant claims that in 2006 he was arrested by the Sri Lankan army at [X] Army Camp. He claims he was detained and beaten by army officers and questioned about his involvement with the LTTE.

The applicant claims that in 2009 his brother in law was killed in shelling. He claims that he arranged for the funeral and was accused by the CID of arranging the funeral of a LTTE member. He claims he was arrested and beaten by the CID.

The applicant claims that in 2012 he had arranged to leave Sri Lanka illegally by boat from [Location Y]. He claims that the Sri Lankan Navy intercepted the boat and arrested him. He claims he was detained for three days. He claims that his wife paid bail to release him.

I accept that the applicant was a low level LTTE supporter and that he was arrested and questioned on three occasions as claimed.

88    The third and fourth paragraphs of this passage make clear that the delegate did accept that there was an arrest and detention in relation to an earlier 2012 attempted departure from Sri Lanka. Accordingly, I accept that the Authority reached a different view to the delegate. I reject the Minister’s submission to the contrary.

89    The appellant submitted that “the failure to use the power under s 473DC was unreasonable” because “the [Authority] must have understood – or should have understood – that there had not been an opportunity afforded to the appellant to” (appellant’s emphasis):

provide new information at an interview and make submissions about whether there was an inconsistency between his entry interview and his protection interview on the issue of his attempted departure from Sri Lanka, and if so, why that was the case. The [Authority] was entitled to identify the inconsistency, but the issue was what did it need[ed] to do having identified this new issue.

90    The question of whether there were inconsistencies between the entry interview and protection visa interview was not a “new issue” as such. The appellant’s claims were a central issue which both the delegate and the Authority were bound to consider. It was obvious that the various accounts of what had occurred would be considered by the Authority. It was not in dispute on the appeal that the entry interview did not record a claim that the appellant had been arrested and detained upon attempting to depart Sri Lanka. Indeed, the entry interview did not suggest that there had been two attempts at departing Sri Lanka. The delegate did not refer to the absence of the claim in the entry interview.

91    The Authority considered the absence of the claim in the entry interview and drew conclusions from the absence of the claim. Those conclusions were open to it.

92    The circumstances were not such that the only reasonable available course open to the Authority was to request new information on the issue. Indeed, a decision not to request new information on this topic was well within the Authority’s decisional freedom. The issues concerning departure from Sri Lanka in 2012 were the same before the Authority as they were before the delegate. The appellant must have known that the Authority might reach a different view from that reached by the delegate. The appellant had provided information and made submissions to the delegate on the topic. The Authority’s role was to review that material and reach its own conclusions.

93    The delegate and the Authority both accepted that the consequences on return to Sri Lanka would not be sufficient to substantiate a well-founded fear of persecution. For the delegate, this included the hypothesis that the appellant had been arrested and detained in 2012 following an attempted departure.

94    The appellant has not established that the circumstances were such that a decision by the Authority not to get new information in relation to the alleged attempted departure or the successful departure in 2012 could be characterised as legally unreasonable.

CONCLUSION

95    The appeal must be dismissed with costs.

Associate:

Dated:    8 February 2023