Federal Court of Australia
DDZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 233
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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BURLEY J:
1 The appellant is a citizen of Sri Lanka and a Tamil who arrived in Australia as an unauthorised maritime arrival in 2012. On 22 December 2015, he lodged an application for a Safe Haven Enterprise Visa (SHEV). On 23 March 2016, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs invited the appellant to attend an interview. On 15 July 2016, the delegate notified the appellant that his application had been unsuccessful.
2 The matter was then referred to the Immigration Assessment Authority pursuant to Part 7AA of the Migration Act 1958 (Cth), which affirmed the decision of the delegate. The appellant then made an application to the Federal Circuit and Family Court of Australia (Div 2) (FCFCA) under s 476 of the Act. On 11 March 2022, that application was dismissed; DDZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 157.
3 The appellant now appeals to this Court. He advances three grounds in his amended Notice of Appeal, namely that the primary judge made a jurisdictional error (particulars omitted):
(1) In failing to determine that the Authority acted unreasonably in the conduct of the review;
(2) In determining that the appellant was required to provide submissions to the Authority and that the test of materiality could not be satisfied in the absence of such submissions; and
(3) In failing to determine that the Authority failed to determine an integer of the appellant’s claim, or alternatively failed to take into account relevant information, being the appellant’s mental health and treatment and considering that the appellant did not claim to be vulnerable by reason of his mental health, or that such a claim arose, and did not submit as such.
4 The Minister opposes grounds 1 and 3, but accepts that if ground 1 is made out, then the appeal must succeed. In this context he concedes that the primary judge erred in his application of the test of materiality as set out in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 and accepts that the appellant has discharged his onus of proving materiality.
5 The appellant was represented by Mr G Schipp and the Minister was represented by Ms K Hooper, both of counsel. Both filed written submissions in advance of the hearing.
6 For the reasons set out in more detail below, the appeal must be dismissed.
7 The appellant’s claims for protection were set out in a statutory declaration that formed part of his SHEV application. In broad terms, the appellant claimed that he was a person of interest to the Criminal Intelligence Department (CID) of the Sri Lankan Army because the CID and the Sri Lankan authorities thought that he had assisted the Liberation Tigers of Tamil Eelam (LTTE) in operations against the Sri Lankan Army.
8 On 4 April 2016, the applicant’s solicitor, Mr Sinnarajah, from the firm Sentil Solicitor and Barrister, sent an email attaching a completed Form 956 to the delegate in which the appellant appointed him his migration agent in connection with the SHEV application.
9 When he appeared before the delegate, the appellant made additional claims relevant to his application. He was represented on that occasion by Mr Sinnarajah (or a representative from the same firm).
10 After considering the evidence, the delegate found that the appellant’s profile with the authorities was not such as to be considered a person who presented a risk to the Sri Lankan state or government, or would be of interest to it, or be considered affiliated with the LTTE and, relying on country information, found that the situation for Tamils in Sri Lanka, including former LTTE members, indicates a “marked improvement” including for returnees.
11 On 15 July 2016, the delegate refused to grant the appellant a SHEV and notified him by post addressed to his residential address, as recorded in item 37 of his SHEV application, of the outcome of his application.
12 The appellant provided an affidavit setting out matters relevant to his case in the FCFCA. The primary judge records relevantly that in it he gave evidence that on about 19 July 2016 he received a letter at his residential address dated 18 July 2016 from the Authority (18 July 2016 letter), in which the Authority acknowledged that the Department of Immigration and Border Protection (as it then was) had referred the delegate’s decision to the Authority for review.
13 The 18 July 2016 letter informed the appellant that the Authority had received all the documents that the Department considered relevant to his case, including any material that he had provided before the delegate’s decision. The letter also attached an Information Sheet about the Authority and provided information about how the Authority was to communicate with the appellant. In this regard, the Information Sheet informed the appellant that he could choose to have correspondence sent to himself or he may appoint a person to receive it on his behalf. It said:
If you appointed another person to receive correspondence from the department, that appointment does not apply to the IAA review. If you want another person to receive correspondence from us on your behalf, you will need to advise us of their name and contact details.
14 In addition, the letter contained information about the extent of the power of the Authority to consider “new information” within s 473DD of the Act.
15 On 18 July 2016, the Authority attempted to send an email to the appellant’s email address as set out in his SHEV application (form 956), but it was returned “undeliverable”. This email, the primary judge inferred, was intended to attach the 18 July 2016 letter.
16 In his affidavit, the appellant deposed that on the day he received the 18 July 2016 letter, he telephoned Mr Sinnarajah and told him that he had received the referral and also that his mother had (at an unspecified time) informed him that armed men had visited their home in Sri Lanka in search of the appellant. The appellant’s mother sent him three “police forms in Sinhalese” (police documents) which included a record of a complaint she had made to the local police following the visit by the armed men, and two “message forms” requiring the appellant to attend the CID. The appellant deposed to providing the police documents to Mr Sinnarajah on the understanding that he would organise the translation of them from Sinhalese into English and presentation to the Authority. The appellant also deposed to Mr Sinnarajah later asking him and his mother to provide statements, which they subsequently did based on the understanding that Mr Sinnarajah would provide them to the Authority.
17 On 1 September 2016, Mr Sinnarajah sent an email to the Authority which said, after correctly citing the reference number provided on the 18 July 2016 letter:
I refer to the above matter.
I forward these supporting documents, as [the appellant] instructed me to forward it, in support of review of the IAA and in support of the submission made to the IAA on 7 August 2016.
With kind regards
Sentil Solicitor & Barrister
18 On the same day, a case file note taken by an officer of the Authority records as follows:
On 01/09/2016 at 12:50 I contacted other party (RAJAN, Senthil) to advise that his email lacked submissions that were purportedly attached. Other party indicated that the email would be properly resubmitted to the IAA later this afternoon. I clarified with other party whether they would be representing RA in an official capacity. Other party stated they were uncertain and would clarify with RA before advising the IAA later this afternoon in the aforementioned email. Other party thanked me and I terminated the call.
19 The primary judge notes that the Authority did not take any steps to notify the appellant that Mr Sinnarajah had contacted it or inform him that it had not received any submissions on 7 August 2016 or any of the supporting documents to which Mr Sinnarajah’s email had referred.
20 On 27 September 2021, the Authority proceeded to determine the application in the absence of these materials. The primary judge accurately summarised the findings of the Authority at [28]:
The Authority:
(a) accepted the incidents the applicant claimed occurred did occur;
(b) accepted as plausible that it was the CID that detained the applicant, and was willing to accept the applicant’s mother complained twice to the Human Rights Commission of Sri Lanka;
(c) was not satisfied that the people who harassed the applicant in 2011 and 2012 were the same people who had detained the applicant in 2010, or that they did so in connection with the applicant’s detention in 2010; the later incidents appear to be rather random, and the consequence of the general monitoring of the Tamil population in the post-war period;
(d) accepted the applicant’s father was questioned and detained on two occasions in 2009 on suspicion of helping the LTTE because he was a young Tamil male; and that the applicant’s father left the family home in 2009 because of this harassment; but noted the applicant did not claim he was detained in 2010 in relation to his father;
(e) accepted the applicant fled Sri Lanka in 2012 out of a genuine fear of continued harassment by the Sri Lankan authorities, but found that recent country information reflects that the security and political situation in Sri Lanka has improved since the applicant fled Sri Lanka;
(f) was not satisfied the Sri Lankan authorities have an adverse interest in the applicant, or his father, due to any perceived association with the LTTE, given that the applicant was not again detained after his brief detention in 2010 on any further suspicion of links to the LTTE, and there being no information to indicate the applicant’s father was further detained since 2009 on suspicion of having links with the LTTE;
(g) accepted the CID questioned the applicant’s mother about the applicant’s whereabouts in 2013; but it was not satisfied it was due to the applicant’s previous detention in 2010 or because of any real suspicion of links to the LTTE, or that the CID sought the applicant’s whereabouts in response to complaints the applicant’s mother made to the Human Rights Commission of Sri Lanka;
(h) was satisfied there is a real chance the CID were seeking the applicant’s whereabouts in the context of monitoring activities of all Tamils in the north;
(i) was not satisfied there is a real chance the applicant will be imputed as being a LTTE member or sympathiser by the Sri Lankan authorities or any organisation because he is a young Tamil male from the Northern Province;
(j) was not satisfied the applicant faces a real chance of harm from the PLOTE or any other paramilitary group on his return to Sri Lanka;
(k) was not satisfied the applicant will face a real chance of discrimination or other harm because of his Tamil ethnicity;
(l) was not satisfied the applicant will face a real chance of harm because he considers himself a Catholic;
(m) was not satisfied the applicant will be perceived to be a LTTE member or sympathiser because he sought asylum abroad, or because he is a young Tamil male from the Northern Province; and
(n) accepted there is a real chance the applicant will be questioned by the Sri Lankan authorities on his return and charged with an offence under the Sri Lankan Immigration and Emigration Act; if the applicant pleads guilty he will be fined; if he pleads not guilty he may be granted bail; there is a real chance the applicant may be held by the police at the airport for 24 hours and, if a magistrate is not available, will be detained in a nearby prison for several days; but it was not satisfied that this would constitute serious harm to the applicant.
3. GROUND 1 – UNREASONABLE CONDUCT
21 In ground 1 of the appeal, the appellant contends that the primary judge erred in failing to determine that the Authority acted unreasonably in the conduct of the review. The unreasonableness alleged concerns the manner in which the Authority reached its decision having regard to the communications between it, the appellant and Mr Sinnarajah. In the particulars appended to this ground, the appellant refers to the 18 July 2016 letter, the email of the same day addressed to the appellant which was returned undeliverable and the email sent by Mr Sinnarajah on 1 September 2016, who is described in the particulars as the appellant’s “previous migration agent”. Particular (d) notes that on 1 September 2016 the Authority contacted Mr Sinnarajah without attempting to contact the appellant about the missing submissions of 7 August 2016 and the supporting documents, and also failed to inform the appellant “that someone had contacted the [Authority] on his behalf without appropriate authorisation”. The particulars record that, on 27 September 2016, the Authority affirmed the decision not to grant a protection visa noting that “no further information was obtained or received”.
22 The appellant contends that the Authority acted unreasonably in the review by:
(a) Failing to notify the appellant of the irregularities of which it was aware in relation to the unauthorised person (Mr Sinnarajah) and the missing submissions and documents;
(b) Corresponding with the appellant in a manner other than as specified by the Secretary under s 473CB(1)(d) of the Act and without proper authorisation; and
(c) Failing to delay determining the matter until reasonable attempts were made to determine “the position as to the [Appellant’s] representation and contact details”.
3.2 The reasoning of the primary judge
23 In rejecting ground 1, the primary judge said:
[36] There is nothing to suggest the Authority did not accept as true, or that it was not reasonably open to it to accept as true, the statement Mr Sinnarajah made in his telephone conversation with an officer of the Authority on 1 September 2016 that Mr Sinnarajah was not sure if he would be representing the applicant in an official capacity. The inference is available to be drawn, and I find, that the Authority accepted as true Mr Sinnarajah’s statement. Further, there was nothing to suggest to the Authority that the applicant had not received the Authority Notification Letter; if anything, Mr Sinnarajah’s email of 1 September 2016 was a basis on which the Authority could be satisfied, and I find it was satisfied, the applicant received the Authority Notification Letter; for Mr Sinnarajah otherwise could not have been aware that the delegate’s decision had been referred to the Authority for review. In those circumstances the inference is available to be drawn, and I find, that it was reasonably open to the Authority to proceed on the basis, and it did proceed on the basis, that the applicant had received the Authority Notification Letter; the applicant read and understood the Authority Notification Letter, including those parts of the Authority Information Sheet relating to the applicant’s communicating with the Authority, and the applicant’s ability to make submissions and provide new information; and, therefore, the applicant understood that it was open to him, either through a representative, or by himself, to make submissions, and provide new information, to the Authority. It was also reasonably open to the Authority on 27 September 2016, when it made its decision, to proceed, and I find that it did proceed, on the basis that the applicant did not wish to provide any new information to the Authority, and that he had elected not to make any submissions to the Authority.
[37] Assume, however, the Authority ought reasonably to have contacted the applicant and informed him of the matters the applicant contends it ought to have informed him; and the Authority had done so. What then? The applicant, in his counsel’s written submissions, submits the applicant would have taken the opportunity to provide information and make submissions to the Authority. The basis of this submission is what is said to be the applicant’s “prior conduct in appointing a representative”, and “the correspondence from [Mr Sinnarajah] that submissions had been submitted”.
[38] There are two difficulties with this submission. First, to the extent it relies on the applicant’s “prior conduct in appointing a representative”, the submission is inconsistent with paragraph (d) of the particulars to ground 1, which refers to Mr Sinnarajah as an “unauthorised person”. It is difficult to see how the applicant’s communicating with a person whom the applicant submits was not authorised to contact the Authority on his behalf can be a basis for rationally inferring that the applicant intended to provide new information and submissions to the Authority. Second, and decisively, the applicant is unable to demonstrate that, had the Authority contacted the applicant, as the applicant contends it ought to have done, there is a realistic prospect the Authority could have made a decision favourable to the applicant.
24 The second point identified by the primary judge in [38] concerns ground 2, to which I refer later.
25 The appellant submits that he received the 18 July 2016 letter (referred to by the primary judge as the “Authority Notification Letter”), which described the method of communication with the appellant and the process of appointment of representatives. The Practice Direction attached to the letter provides that any notice regarding representation lodged during the primary (SHEV) application does not apply to the review. The appellant did not lodge a form notifying the Authority of the appointment of a representative, yet on 1 September 2016 Mr Sinnarajah emailed the Authority. When contacted by the Authority on the same day, Mr Sinnarajah said that he was uncertain whether he would be representing the appellant “in an official capacity” and that he would advise the Authority later that afternoon. There is no record of any further communication from Mr Sinnarajah to the Authority in this regard. In Mr Sinnarajah’s email dated 1 September 2016, he purports to forward “supporting documents” as he had been “instructed” by the appellant to do so “in support of the submission made to the IAA on 7/8/16”. The Authority indicated to Mr Sinnarajah that the email “lacked submissions that were purportedly attached”. The appellant submits that there were “two fundamental problems” with the way in which the Authority dealt with this situation: first, that it spoke to an unauthorised representative and, secondly, the content of the information provided to that person. The appellant submits that the Authority misinformed Mr Sinnarajah on the basis that there were no submissions purportedly attached to the 1 September email (they were supporting documents) and the Authority did not inform Mr Sinnarajah that the 7 August submission he referred to had not been received. Furthermore, on 18 July 2016 an email addressed to the appellant was returned as undeliverable.
26 The appellant submits that because the Authority was aware of problems contacting him by email, the contact with Mr Sinnarajah, the missing submission and the missing supporting documents, it was incumbent upon the Authority to contact the appellant by telephone or by mail at his given address or to delay the determination of the matter.
27 The appellant submits that according to s 473CB(1)(d)(iv), if the Minister reasonably believes that the last address for service of documents is incorrect, the Minister must provide such address that it reasonably believes to be correct. He submits that the obligation to provide “relevant” material under s 473CB does not cease at the moment the referral is made, and the correctness of an address for service of documents is “relevant material”. He submits that this is relevant to the assessment of the reasonableness of the conduct of the Authority.
28 The appellant further submits that in the context of Part 7AA of the Act, given the restrictions on the applicability of procedural fairness obligations as outlined in s 473DA, the question often becomes whether any perceived irregularity may also be classed as unreasonableness, citing Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32; (2018) 253 FCR 526 at [99]; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 at [67], [86] and DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 from [36]. The appellant submits that the restrictions in Part 7AA on procedural fairness give heightened importance to reasonable performance of procedural duties and reasonable exercise of procedural powers, citing Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [99], [102], and contends that the facts demonstrate unreasonableness in process of the type referred to in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437. In this regard, he contends that the deprivation of the opportunity to make submissions may give rise to a jurisdictional error in the form of a loss of opportunity for him to advance his case, citing Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627 at [35]. The appellant submits that that the Authority has a procedural power to defer its determination consistent with the objectives of expedition, which was not exercised, and that he was denied a meaningful opportunity to “advance his case, present evidence and argument”. In this regard, he relies specifically on the decision of Flick J in CRW16 v Minister for Immigration and Border Protection [2018] FCA 710 at [38].
29 The appellant alternatively submits that it is also possible that the Authority could have requested further information from the appellant under s 473DC of the Act.
30 The appellant submits that the present case is similar to DZU16. In that case, the Authority refused to defer its decision and grant an extension of time to respond to an invitation to comment. The Court found that the exercise of power in that case was legally unreasonable, because it knew that it did not have, but the appellant was likely to have, relevant information; [92]–[94]. The appellant submits that this comment is “equally applicable to this case”.
31 The Minister submits that the primary judge’s dispositive reasoning in relation to ground 1 was (a) that the Authority proceeded on the basis that the appellant knew he could provide submissions and new information to it, either through himself or through a representative, and (b) that when the Authority made its decision, it was reasonably open to it to proceed on the basis that the appellant did not wish to provide any new information, and that he had elected not to make any submissions to the Authority. He submits that (a) is not in issue, and that having regard to the statutory context and factual circumstances known to the Authority, it was not legally unreasonable for it not to adjourn the review or exercise its s 473DC(3) power to invite the appellant to give it new information.
32 The Minister submits that if the Authority had to do anything upon receipt of the email from Mr Sinnarajah on 1 September 2016, it did enough. Having awaited a response to its inquiry regarding the missing attachment and received nothing a month later, it was entitled as a matter of the reasonable exercise of its statutory procedural discretions, to proceed to its decision.
33 The Minister submits that although there are no fixed categories of circumstances in which legal unreasonableness is demonstrated, this is not a case that is factually analogous to any other in which legal unreasonableness has been found and contends that no relevant statutory duty is engaged on the facts of this case whereby the Authority has an obligation to seek out alternative addresses for a referred applicant.
34 The Authority’s statutory powers are conditioned on a requirement that they be exercised reasonably; Li at [29] (French CJ), [63] (Hayne, Kiefel and Bell JJ) and [88] (Gageler J); Singh at [48]. What is considered to be the legal standard of reasonableness is predicated on the scope and purpose of the statutory functions conferred upon the Authority under the Act; Li at [67], [74].
35 The content of the obligation has been considered in many cases. In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; (2022) 289 FCR 21 at [29]–[35] a Full Court of this Court (Allsop CJ, Besanko and O’Callaghan JJ) addressed the principles relating to illogicality, irrationality and legal unreasonableness. In particular at [32]–[35], their Honours said:
[32] The nature of jurisdictional error and legal unreasonableness was described by Allsop CJ in Stretton at [2]–[13]. See also Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [54]–[65].
[33] The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; 357 ALR 408; 163 ALD 1; [2018] HCA 30 at [11], [52], and [135]; Minister for Home Affairs v DUA16 (2020) 385 ALR 212; [2020] HCA 46 at [26]; SZMDS at [130]–[135]; CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 (2021) 395 ALR 57; [2021] FCAFC 195 at [142].
[34] The task in assessing illogicality is not an exercise in logical dialectic. “Not every lapse of logic will give rise to jurisdictional error. A Court should be slow, although not unwilling, to interfere in an appropriate case”: SZMDS at [130]. It is the ascertainment, through understanding the approach of the decision-maker and characterising the reasoning process, of whether the decision (or state of satisfaction) is so lacking a rational or logical foundation that the decision (or relevant state of satisfaction) was one that no rational or logical decision-maker could reach, such that it was not a decision (or state of satisfaction) contemplated by the provision in question. Some lack of logic present in reasoning may only explain why a mistake of fact had been made which can be seen to be an error made within jurisdiction. As the Chief Justice said in Stretton at [11], the evaluation of whether a decision was made within lawful boundaries is not definitional, but one of characterisation and whether the decision was sufficiently lacking in rational foundation, having regard to the terms, scope and purpose of the statutory source of power, that it cannot be said to be within the range of possible lawful outcomes.
[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: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [52] and [173], 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.
36 Part 7AA of the Act is headed “[f]ast track review process in relation to certain protection visa decisions”. Within Part 7AA, s 473BA expressly sets out in the “[s]implified outline of this Part” what is there referred to as “a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants”. Within Part 7AA, s 473CA provides for the referral of a “fast track reviewable decision” to the Authority “as soon as reasonably practicable after the decision is made”. Division 2 of Part 7AA “sets up a mechanism designed to result in automatic review of a fast track reviewable decision”; Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [15] per Gageler, Keane and Nettle JJ.
37 Section 473DA falls within Division 3 of Part 7AA under the heading “Conduct of Review”. It 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.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
38 Section 473DB provides that the Authority is to review fast track reviewable decisions referred to it under s 473CA by considering the review material provided to it under s 473CB on the papers. However, by s 473DC, the Authority may get any documents or information (defined as new information) that were not before the Minister at the time of the decision under review that the Authority consider may be relevant, although by s 473DC(2), the Authority does not have a duty to get, request or accept and new information, whether it is requested to do so by a referred applicant or by any other person.
39 Section 473DD provides for the circumstances in which the Authority is to consider new information:
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.
40 In CRW16, Flick J made the following observations in relation to the getting of new information:
[17] …The phrase “new information” as used in ss 473DC, 473DD and 473DE “must be read consistently” and “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)”: Plaintiff M174 [2018] HCA 16 at [24] per Gageler, Keane and Nettle JJ. The limited circumstances in which the Authority may consider “new information” were emphasised by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.
41 In CRW16, Flick J also observed in obiter dicta that the rules of procedural fairness and the principle of “unreasonableness” must necessarily be constrained by the statutory context. His Honour could not see how unreasonableness could operate so as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Part 7AA because such an approach would run contrary to the scheme of that Part and would also potentially prejudice the intended legislative intent behind s 473DA(1); at [42].
42 Having regard to the statutory powers that condition the approach of the Authority to reviews conducted under Part 7AA, in my view, nothing in that Part excludes the implication that the Authority is to act reasonably as a condition of the exercise of its powers. As observed in a different context in Li at [99] (Gageler J), the legislative declaration in s 473DA that Division 3, together with ss 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 Authority, gives added significance to the implied requirement for the Authority to act reasonably in the performance of its procedural duties and in the exercise or non-exercise of its procedural powers.
43 In CRW16, the Court left open the possibility that the failure to provide a short adjournment of a review may not be precluded from falling foul of the operation of the rules of natural justice provided that the words “in relation to reviews” in s 473DA(1) were construed as not extending to the operation of the rules of natural justice insofar as they may operate prior to the actual commencement of the review process, and not extending to the preparation by a party of their case; at [30]. It went on to find, in the context of a ground of legal unreasonableness, that the Authority undoubtedly had an ability to defer its consideration of a review, where doing so would be consistent with achieving the objective of expedition set out in Part 7AA; at [38]. However, on the facts of that case, the failure to grant an adjournment did not fall within the reach of legal unreasonableness; at [40]. The Court cautioned, however, that one must be careful in the application of principles falling within the concept of legal unreasonableness so as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Part 7AA; at [42].
44 In the present case:
(1) Mr Sinnarajah was instructed to represent the appellant as his migration agent during the SHEV application process. He, or at least a representative from the same firm, accompanied the appellant at his interview with the delegate on 14 April 2016.
(2) The Authority sent the 18 July 2016 letter to the appellant at his home address and it was received by him. He was thereby informed that he was able to make submissions to the Authority and to seek to provide it with additional information.
(3) The primary judge found at [36] that the Authority proceeded on the basis that the appellant had received, read and understood the 18 July 2016 letter, which was sent to the home address provided by the appellant in his SHEV application. That finding is not challenged. It is supported by the inference, reasonably made, that the appellant supplied Mr Sinnarajah with the 18 July 2016 letter, not least because Mr Sinnarajah used the unique reference number for the matter that had only been communicated to the appellant in that letter.
(4) Some 10 weeks after sending the 18 July 2016 letter, on 1 September 2016 the Authority received Mr Sinnarajah’s email in which he purported to attach supporting documents but which were not in fact attached. The email also referred to a submission that was said to have been supplied to the Authority, but which the Authority has no record of receiving.
(5) The Authority followed up the missing attachments on that day and was informed of two matters, first that the email would be resubmitted later that day and secondly that Mr Sinnarajah was not sure whether he would be acting for the appellant “in an official capacity”, but he would clarify before “advising the IAA later this afternoon”.
45 The challenge advanced by the appellant is that it was legally unreasonable for the Authority not to contact the appellant and separately give him an opportunity to file submissions and supplementary materials. The appellant contends that the Authority, having: (a) been aware that there were problems in contacting him by email; (b) been in contact with Mr Sinnarajah; (c) known that it had not received the submission referred to in Mr Sinnarajah’s email; and (d) missed the supporting documents identified in Mr Sinnarajah’s email; was required to contact the appellant to inform him of the missing materials and/or delay its determination of the matter.
46 I accept that this is one course that the Authority could have taken. Indeed, the appellant had not completed a form indicating that Mr Sinnarajah was his legal representative, and so the communication from Mr Sinnarajah was not definitively authorised by the appellant. However, it was not the only course open to it.
47 I accept the submission advanced by the Minister that it was logical and reasonable for the Authority to take the administrative step of contacting Mr Sinnarajah, and not the appellant, to inquire about the missing attachments to his email. Mr Sinnarajah was the sender of the email. It is true that the Authority’s representative conveyed one inaccuracy, namely that the email “lacked submissions” purportedly attached, when it was supporting documents said to be attached. However, the officer was speaking to the person who was the author of the email, and could reasonably assume that Mr Sinnarajah knew what he had intended to attach to his email. The failure to properly describe the missing documents as “supporting documents” was not significant.
48 Next, it may be noted that the officer of the Authority sought to clarify whether Mr Sinnarajah would be representing the appellant. That request was appropriate because no formal notification of representation had been provided to Authority. The response of Mr Sinnarajah was that he did not know, and that he would clarify whether he was so representing him. The Authority was informed that Mr Sinnarajah would clarify the position.
49 The primary judge concluded that there was nothing to suggest that the Authority did not accept this statement as correct and that Mr Sinnarajah was not sure if he would be representing the appellant in an official capacity; at [36]. The primary judge found that the Authority proceeded on the basis that, as the appellant had received the 18 July 2016 letter (including information about the provision of new materials and information about how to contact the Authority), the appellant understood that it was open to him, either through a representative or by himself, to make submissions and provide new information to the Authority if he chose to. The primary judge also concluded that the Authority had determined that, on 27 September 2016, having received no communication since 1 September 2016 from either Mr Sinnarajah or the appellant, that the appellant had decided not to provide any new information to the Authority and that it had elected not to make any submissions to the Authority.
50 In my respectful view, the approach of the primary judge was logically correct. If the appellant had not authorised Mr Sinnarajah to act on his behalf, then it was incumbent upon the appellant to supply such submissions and further documents as he intended to rely upon to the Authority. He did not do so. If he did authorise Mr Sinnarajah to act on his behalf, then Mr Sinnarajah could be expected to do as he said he would, and supply the missing documents. Either way, as far as the Authority was concerned, the appellant was in a position to elect which course it wished to take. In my view it was not legally unreasonable for it to wait to see what happened, and then proceed some weeks later to make its decision.
51 The appellant advances an alternative case on the basis that the Authority ought to have obtained details of the appellant’s representation as “new information” within s 473DC. He submits that the Authority ought to have exercised this power to clarify the identity of the appellant’s representative, and to ask for his submissions and supporting documents. He contends that it is apparent from the file note of 1 September 2016 that the Authority by implication considered formally utilising this power but it unreasonably failed to ask the right person (the appellant) and failed to request the submissions referred to in Mr Sinnarajah’s email and the supporting documents which he purported, but failed to deliver.
52 I am also unable to accept this aspect of the appellant’s case. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; (2020) 269 CLR 439 at [9] the High Court (Keifel CJ, Bell, Gageler, Keane JJ) said:
"New information", which the Authority can only get and consider in the exercise of its specific powers, comprises any communication of "knowledge of facts or circumstances relating to material or documentation of an evidentiary nature" which was not before the Minister when the delegate made the referred decision that the Authority itself considers might be relevant to the review in the sense that it might be capable directly or indirectly of rationally affecting assessment by the Authority of the probability of the existence of some fact about which the Authority might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met.
53 It is apparent that, whatever else may be said about the operation of s 473DC, it does not of itself include an obligation on the part of the Authority to adjourn a review or inform an applicant of certain matters relevant to the conduct of the review.
54 In this ground, the appellant contends that the primary judge erred in determining that the appellant was required to provide submissions to the Authority and that the test of materiality could not be satisfied in their absence. In particular, the appellant contends that the error arose from the following passage of the reasoning of the primary judge:
[39] The information the applicant appears to submit he would have provided to the Authority, had the Authority contacted him, is the information contained in the documents the applicant annexed to his affidavit of 31 May 2021, and which he says he had sent to Mr Sinnarajah and which, the applicant further says, Mr Sinnarajah said he would send to the Authority. The applicant, however, does not give any evidence of the submissions he says Mr Sinnarajah had prepared, or submissions the applicant would have provided, or would have instructed Mr Sinnarajah to provide, to the Authority, had the Authority contacted the applicant. Nor does the applicant give evidence of submissions he or Mr Sinnarajah intended to make or could have made in relation to the conditions of which the Authority would have had to be satisfied before it could consider the new information the applicant forwarded to Mr Sinnarajah, those conditions being the matters specified by s 473DD of the Act. That means there is no evidence of the submissions and evidence the applicant says he would or could have provided, or which he would or could have instructed Mr Sinnarajah to provide, to the Authority, had the Authority contacted the applicant, in relation to whether:
(a) there were exceptional circumstances to justify the Authority considering the Police Reports and the information contained in the applicant’s and the applicant’s mother’s statements (as provided for by s 473DD(a) of the Act); and
(b) the Police Reports or the information contained in the applicant’s and the applicant’s mother’s statements could not have been provided to the Minister before the day on which the delegate made his decision (as provided for by s 473DD(b)(i) of the Act) or, to the extent the information contained in the documents could be characterised as “credible personal information”, was not previously known and, had it been known, may have affected the consideration of the applicant’s claims for protection (as provided for by s 473DD(b)(ii) of the Act).
[40] It is therefore impossible to find that, had the Authority contacted the applicant, as the applicant claims it ought to have done, that “could realistically have resulted in a different decision”. There is no material before me on the basis on which it could rationally be inferred that the conditions specified in s 473DD of the Act could have been satisfied, and therefore the Authority could have considered the Police Reports, and the information contained in the applicant’s and the applicant’s mother’s statements, and, consequently, the Authority could have made a decision favourable to the applicant.
55 As I have noted, the Minister accepts, in light of established authority, including Nathanson at [33] that the primary judge misdirected himself as to the relevant test for materiality. However, in light of my findings above, it is not necessary to address this question further to dispose of the appeal, save to note that, had I concluded that ground 1 should succeed, I would have accepted that ground 2 is established.
5. GROUND 3 – FAILURE TO TAKE MENTAL HEALTH INTO ACCOUNT
56 In ground 3, the appellant contends that the Authority failed to take into account relevant information, being the appellant’s mental health and treatment, and that the primary judge erred in failing to find that this was so and considering that the appellant did not claim to be vulnerable by reason of his mental health.
57 The appellant submits that it was clear from the materials before the Authority that he was suffering from a psychological condition. He gave evidence before the delegate that he received counselling at a centre in Toongabbie. The Delegate referred to this at [58] in the following terms:
In relation to the applicant’s claim that he received counselling in Australia, he further stated by way of elaboration, that he got upset thinking that neither he nor his father was at home when his mother was visited by the CID after his departure. The applicant could not remember how long he received counselling for, but thought he had sessions about once a week. He stated that at the outset when he was upset, the counsellor offered him more sessions but after a while he stopped attending. As the applicant’s evidence about this claim was vague and lacked detail, and he provided no further documents in support of it, I do not accept that it was in relation to his claimed persecution that he received counselling.
However, the Authority did not refer to the state of the appellant’s mental health in its reasons. The appellant submits that mental health issues may be relevant to the potential seriousness of the effects of the experience suffered by an applicant (citing AGA16 v Minister for Immigration and Border Protection [2018] FCA 628), in determining the question of complementary protection and on an applicant’s ability to present his case and answer questions. He contends that the failure to consider the effect of his mental disorder amounts to a failure to give active intellectual consideration to a claim raised (citing Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FLR 451 and Htun v Minister for Immigration and Multicultural Affiars [2001] FCA 824) and amounts to a jurisdictional error (citing Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99, Minister for Immigration v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 and Minister for Immigration v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67).
58 The appellant submits that the primary judge accepted that the Authority did not refer to his mental health evidence but misstated the effect of the submissions advanced before him as being confined to the question of whether the Authority ought to have considered exercising its powers to get more information under s 473DC. The appellant’s case was not so confined, and extended to alleging jurisdictional error because of a failure on the part of the Authority to consider the appellant’s claims that he was particularly vulnerable in light of his condition and because it had failed to determine an integer of his claim. The appellant submits that the Authority should have considered the availability of services, social stigma and how his mental health might have affected him in short periods of detention on his return. Whilst the Authority was entitled to reject the claim, it ought to have discussed it and failure to do so amounted to a failure to determine an integer of the claim.
59 The Minister submits that the appellant overstates the effect of the evidence concerning his mental health and in fact advanced no claim to fear future harm arising from any mental health issues. He submits that the decision in ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44; (2021) 283 FCR 164 is distinguishable and that the Authority did not overlook any item of evidence in a manner demonstrating jurisdictional error, citing SZRKT. He further contends that legal reasonableness did not compel the Authority to inquire of the medical centre in Toongabbie in relation to the treatment in respect of which he had advanced no claims.
60 Where a Tribunal fails to make a finding on “... a substantial, clearly articulated argument relying upon established facts”, that failure can amount to a failure to accord natural justice and a constructive failure to exercise jurisdiction; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24]–[25] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].
61 Section 473CB(1)(a) of the Act requires the Secretary to provide the Authority with the delegate’s decision. The delegate’s decision forms part of the “review material”. Section 473DB provides as follows:
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[.]
62 In circumstances where the delegate’s decision is “review material” and the delegate addressed a non-articulated claim, the question arises: did the claim now asserted by the appellant arise from the materials before the Authority such that the Authority was required to address it?
63 In ESQ18 at [66], the Full Court accepted that a claim as articulated by a delegate will arise from the materials before the Authority noting that this characterisation is consistent with the reasoning in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35] in relation to a review under Part 7AA of the Act:
[T]he point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
64 In ESQ18, the Full Court considered that the unarticulated claim emerged clearly from the materials, observing that while there is no precise standard for determining whether a claim has been “squarely raised” or “clearly emerges”, it was a matter of significance that the delegate considered that the unarticulated claim to be relevant; at [68].
65 In the present case, the delegate at [58] (set out above) concluded that the appellant had made a claim to have received counselling whilst in Australia, which he had elaborated upon by saying that he became upset thinking that neither he nor his father was at home when in 2013, after he had left Sri Lanka, the CID visited his mother. The delegate recited the appellant’s evidence that he could not remember how long he had received counselling, but thought that he had sessions weekly, but that he had stopped attending “after a while”. The delegate considered that the appellant’s evidence was vague and lacked detail and did not include supporting documentation. The delegate concluded that it “did not accept that it was in relation to his claimed persecution that he received counselling”.
66 It is not in dispute that the Authority in the present case did not in terms refer to this claim.
67 The Minister submits that the Authority did not do so because the appellant did not in fact make any claim to fear future serious or significant harm in Sri Lanka on the basis of his having received counselling in Australia, either expressly or implicitly. He submits that ESQ18 is distinguishable because the delegate’s findings at [58] do not go so far as to assess whether the appellant faced a real risk or real chance of future serious or significant harm, arising from his counselling in Australia. He submits that no such claim can be drawn from that paragraph. Further, in contrast to the position in ESQ18, here, the unarticulated claim now alleged was not one that clearly emerged from the materials.
68 There is force in that submission.
69 The delegate’s decision summarised the protection claims advanced by the appellant, noting that in his protection visa interview the appellant added to his claims a number of points, including that in 2013 his mother told him that after his departure from Sri Lanka that the CID had come to their house asking for him. The delegate’s reasons record at [13]:
After his mother told him about the CID’s visit, he got upset for the reason that neither he nor his father was at home while his mother was being visited by the CID. On account of this he received counselling in Australia at the Bridgeview Medical Centre in Toongabbie NSW.
70 That evidence was advanced as an adjunct to the evidence about the visit from the CID to the appellant’s mother. It was not a clearly articulated claim on the part of the appellant to be particularly vulnerable to future harm upon his return to Sri Lanka because of an absence of health services or to be vulnerable to conditions in any detention on remand should he be returned to Sri Lanka.
71 This is apparent from Part 2 of the reasons of the delegate, prior to its reference in [58] to the claim. There, the delegate made findings preliminary to the assessment of the protection claims and proceeded to make various findings of fact. Under the heading “other issues” the delegate referred to various aspects of the appellant’s evidence which the delegate rejected as not credible or rejected as unsupported by verification. In [56], the delegate rejected the applicant’s claim that the CID visited his mother as a result of any prior profile that he had with the authorities and considered that if the CID did visit his mother (about which the delegate appeared to make no finding) then it “would likely be on account of his illegal departure…”.
72 At [57] the delegate accepted the appellant’s claim that upon return to Sri Lanka he will be considered a failed asylum seeker and, based on country information, accepted that upon his return he will be detained and questioned on return.
73 It was following this finding that the delegate set out his views in [58] in relation to the appellant’s claims of being upset and requiring counselling. The delegate then made further findings of fact, including that he did not receive counselling in Australia in connection with his claimed persecution; at [59].
74 On appeal, the appellant seeks to characterise the delegate’s findings at [58] as a claim to fear serious or significant harm in Sri Lanka arising from his mental health. He contends that this ought to have been considered by the Authority in three potential ways; (a) in considering the potential seriousness of the effects of his experiences which has given rise to a special vulnerability in the sense referred to in AGA16; (b) in determining complementary protection where the availability of mental health services is relevant in determining whether the appellant will suffer significant harm, including that persons with mental health issues are subject to social stigma in the Sri Lankan community; and (c) any psychological condition suffered by the appellant could have impacted his ability to present his case.
75 However, the consideration by the delegate of the appellant’s mental health, which formed part of the review material before the Authority, does not bear this characterisation. Rather, the delegate summarised evidence given to the effect that the appellant had received limited counselling following communication with his mother in 2013. The delegate inferred no claim of a connection between the counselling and a fear of persecution.
76 In these circumstances, I do not accept that the delegate’s findings per se identify a claim advanced by the appellant that he faced a real risk or real chance of future serious or significant harm arising from his counselling in Australia. Nor, having regard to the scant lines of transcript in which his evidence of counselling was given, do I consider that the unarticulated claim made emerged clearly from the materials. In those circumstances, I do not consider that this is a case where the failure on the part of the Authority to refer in terms to the counselling received by the appellant amounts to a failure to address a claim made.
77 Furthermore, having regard to the correct characterisation of the claim identified by the delegate, I do not consider that it may be inferred that the Authority failed to give active intellectual consideration to a claim clearly raised within Tickner. The effect of the requirement for the Authority to give reasons under s 473EA(1) of the Act is that the Court is entitled to infer that a matter not mentioned in the Authority’s reasons was not considered by it to be material; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [69] (McHugh, Gummow and Hayne JJ); BYA17 v Minister for Immigration and Border Protection (2019) 269 FCR 94; [2019] FCAFC 44 at [55] (Rares, Perry and Charlesworth JJ). Equally, it is permissible for this Court to conclude from the absence of any direct consideration of the counselling received by the appellant, the Authority did not consider it to be material to its decision; Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591 at [44] (Greenwood, McKerracher and Burley JJ).
78 The primary judge reasoned, in rejecting this ground:
[46] It is true the Authority did not refer to the applicant’s evidence; but that by itself does not mean the Authority did not consider it. A decision maker who is required by statute to consider a claim or other mandatory criteria is not obliged “to refer in the reasons for decision to every piece of evidence and every contention made by an applicant”; and one reason a decision maker may not do so is because the information is either irrelevant or immaterial, and the decision maker considers it to be irrelevant or immaterial. I find that the evidence the applicant gave in relation to his mental state and the counselling he says he received is information of this nature.
[47] Before the delegate the applicant said that after his mother told him the CID had come looking for him, the applicant got upset because the applicant’s mother “is in this place”, the applicant’s father “is not at the house”, and the applicant is “not there”. The applicant said he had been through some counselling; he was in a very “sad state of affairs”; the applicant identified the place at which he had obtained counselling, noting that “[a]fter some time I did not meet”; and the applicant attended counselling about once a week, but he could not remember how many times he went. This evidence, by itself, is incapable of giving rise to any reasonable claim, a point recognised by the applicant in his counsel’s written submissions which goes no further than submitting that, had the Authority considered the matter, it may have considered exercising its power under s 473DC of the Act to obtain further information.
(emphasis added)
79 The italicised words do not completely summarise the submissions advanced before the primary judge, because, as I have noted, he also contended that the failure to refer to the claim advanced in relation to counselling amounted to a jurisdictional error of itself. Nor, in my respectful view, was it for the primary judge to express a view as to whether or not the he considered that the counselling claim was capable of giving rise to a “reasonable claim”. The relevant inquiry, as identified in Yusuf, is whether or not it may be inferred, by the lack of reference to the claim, that the Authority failed to give proper consideration to that claim. Notwithstanding these errors, in the present circumstances, for the reasons given, I am not satisfied that such an inference may be drawn. The result is that it cannot be concluded that the Authority failed to give proper consideration to the claims advanced or that the primary judge fell into error in reaching that conclusion.
80 Nor, in my view, can it be considered that the primary judge erred in finding that the Authority did not fail to seek more information under s 473DC of the Act concerning the mental health of the appellant.
81 Accordingly, ground 3 of the appeal must be rejected.
82 The appeal must be dismissed with costs.
I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
