Federal Court of Australia

BIR19 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 792

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

2.    The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    The Appellant is a Tamil Sri Lankan who arrived at Christmas Island from Sri Lanka on a boat without a visa. Subsequently, he applied for a Safe Haven Enterprise Visa (‘SHEV’) on 16 December 2016 which is a species of protection visa granted to a person who the Minister, or as here a delegate of the Minister, is satisfied is a refugee within the meaning of s 5H of the Migration Act 1958 (Cth) (‘the Act’). The Appellant claimed to be a refugee from Sri Lanka because he had a well-founded fear of persecution if returned to Sri Lanka on three bases, only one of which remains relevant to this appeal. This was that his father had links to the Liberation Tigers of Tamil Eelam (‘LTTE’), an organisation which during the civil war and afterwards had agitated for an independent Tamil state.

2    The Minister’s delegate concluded that the Appellant’s father had not had any high level involvement with the LTTE and that the authorities would not have any interest in the Appellant by reason of his father’s role. It concluded that he was not a refugee and refused to issue the SHEV. The matter was then referred to the Immigration Assessment Authority which affirmed that conclusion. In its reasons, the Authority accepted that the Appellant’s father had been a truck driver for the LTTE but concluded that he had not been in a managerial or supervisory role. As such, it did not think that the Appellant, merely by being the son of an LTTE truck driver, would attract the attention of the Sri Lankan authorities. It did not therefore accept that the Appellant had a well-founded fear of persecution on this basis.

3    The Appellant sought judicial review of the Authority’s decision in the then Federal Circuit Court. Only two of the grounds pursued in that Court are relevant to this appeal. The first of these concerned the Appellant’s contention that the Authority had failed to treat a submission made by him to it as ‘new information’ for the purposes of s 473DD of the Act. The submission was that his father had for years managed the transportation of goods and equipment for the LTTE. This submission (which explicitly concerns a managerial role for the father) should be contrasted with the Authority’s finding recorded in the previous paragraph that the Appellant’s father had been a truck driver not involved in managerial or supervisory roles. The significance of this is that it is clear that the Authority considered the submission that the Appellant’s father had managed the transportation of goods and equipment for the LTTE and rejected it.

4    The Appellant submits that if the submission had been recognised by the Authority as ‘new information’ for the purposes of s 473DD then it could have exercised its power under that section to consider the information (assuming it was satisfied of the jurisdictional prerequisites set out therein). If it did so, so the argument goes, then the Authority could have exercised a second power in s 473DC(3) to invite him to comment on the information. This would have provided him with the opportunity to put further evidence before the Authority; that is to say, the Appellant submits that he should have been afforded an opportunity to comment on his own written submission.

5    The second ground was that there was a reasonable apprehension that the Authority would be biased against the Appellant. The apprehension of bias was said to arise as follows: before conducting its review of the delegate’s decision, the Authority was provided by the Secretary of the Department with documents considered by the Secretary to be relevant to the Appellant’s review application. These documents included an assessment report prepared by an official within the Department relating to two charges in respect of which the Appellant had been fined and disqualified from driving. The charges were ‘drive under the influence’ and ‘fail to stop and give particulars to persons at crash scene’.

6    The relevance of these charges to the Appellant’s application for the SHEV is that at the time of the events giving rise to them, the Appellant had held an interim visa pending the processing of his application for the SHEV (more precisely, a Bridging E visa). That visa was subject to a condition that he should not breach a code of behaviour which contained a stipulation that the visa holder ‘must not disobey any Australian laws including Australian road laws’. The conduct that led to the imposition of the fine and the Appellant’s disqualification from driving breached this condition.

7    Subsequent to those events, an assessment report was prepared by the Department to consider the significance for the Appellant of these breaches. The report assessed the level of seriousness of the offences as low and recommended that the Appellant be referred for a discussion with his Status Resolution Support Services provider. The Appellant was not informed of the existence of this report and the Authority did not refer to it in its decision. Because of these matters, the Appellant submitted that a reasonable apprehension arose that the Authority would not bring an impartial mind to bear on the resolution of its review of his matter.

8    The learned trial judge rejected both of these contentions. By his appeal from the trial judge’s orders dismissing the Appellant’s judicial review application, the Appellant now contends in this Court that his Honour erred in relation to both conclusions. It is convenient to refer to the first contention as the new information ground and the second contention as the apprehended bias ground and to deal with the two grounds in that order.

The new information ground

9    Following the decision of the delegate, the Appellant’s visa application was automatically referred to the Authority for review without the need for him to file any further application under the auspices of Part 7AA of the Act. Part 7AA provides an apparatus for a limited form of administrative review and is entitled ‘Fast track review process in relation to certain protection visa decisions’. Part 7AA applies to protection visa applicants who are ‘unauthorised maritime arrivals’ (s 5AA). It is not in dispute that the Appellant is an unauthorised maritime arrival. As such, he was not permitted to apply for a protection visa (s 46A(1)) unless the Minister notified him otherwise which, in this case, he did.

10    When the matter is referred to the Authority for a fast track review, the Authority is required to determine the review on the papers provided to it by the Secretary of the Department and without interviewing the applicant. Part 7AA does contemplate, however, that the Authority may receive ‘new information’ in two circumstances. The first of these concerns the ability of the Authority to obtain new information at its own initiative and is not material to this appeal (s 473DC).

11    The second circumstance, which is material to the appeal, concerns its receipt of new information provided by a visa applicant. The power to receive new information from a visa applicant is circumscribed by the limitations erected by s 473DD. It provides:

473DD Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

12    ‘New information’ is defined in s 473BB to have the meaning set out in s 473DC(1). Section 473DC(1) is concerned with the Authority’s own power to obtain new information but nevertheless provides the template for what new information is. Section 473DC(1) provides:

(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.

13    Thus an essential feature of ‘new information’ is that it was not before the Minister or, in this case, the delegate at the time the decision was made. Section 473DD(b)(i) then requires the applicant to show that the information ‘could not have been provided’ to the delegate before the delegate made his or her decision.

14    Once that requirement is met the applicant is then required to show that the information is credible personal information that could have affected the consideration of the applicant’s claims: s 473DD(b)(ii). If each of those requirements is met the applicant must, finally, satisfy the Authority that there are exceptional circumstances justifying its receipt of the information: s 473DD(a).

15    Part 7AA does not define ‘information’. In this case, the information alleged to be the ‘new information’ was contained in a submission provided to the Authority by the Appellant’s migration agent. The submission took issue with the delegate’s earlier conclusion that the Appellant’s father had only a low level involvement with the LTTE. The submission dealt with several topics including alleged factual errors by the delegate. The relevant section of the submission was as follows:

1.    Has been erroneous in consideration of facts provided by the Applicant:

We submit that the Delegate of DHS made an error in finding the fact that the Applicants’ father’s involvement with LTTE as a low level involvement.

The delegate of DHA refers to the fact that the Applicant’s father was a driver working for transporting goods and equipment for LTTE and erred in finding that the Applicant’s father had a low level involvement with LTTE.

We submit that the Applicant’s father was working as a truck driver with LTTE and also was managing the transportation of goods and equipment for LTTE for many years (at least from 1996 till the end of the war, as far as the Applicant knows) (please refer to the Statement of Claims by the Applicant)

We submit that the truck drivers working for LTTE, who managed the transportation of LTTE materials, even though they were not fighting in the battles, were considered as important high positioned persons in LTTE because they were responsible for the transportation of valuable items and weapons.

The delegate of DHA has accepted the facts that the Applicant and Applicant’s father were detained by the CID and enquired several times. The delegate of DHA also accepted the fact that the Applicant’s father went missing from 2012, with the fear of torture by CID.

We submit that the delegate of DHA failed to consider the facts properly around the detention of Applicant’s father and enquiry by the CID and erred in concluding that the Applicant’s father had a low level involvement with LTTE.

We submit that the error in finding that the Applicant’s father had low level involvement has led to many errors in the finding of facts and also has led to dismissing the protection claims of the Applicant.

We submit that the delegate of DHA made a big error in analysing the facts around Applicant’s father’s involvement with LTTE with wrong fact findings and erred in analysing the protection claims of the Applicant. We submit that, the above mentioned reasoning made the delegate to dismiss the important protection claims made by the Applicant.

16    The ordinary and natural reading of this submission is that it was a complaint that the delegate had made wrong findings of fact on the material which was before her. This reading is confirmed by the explicit suggestion in the third paragraph that the submission was supported by the statement of claims lodged by the Appellant with the delegate. It is also supported by the next submission made which was as follows:

2.    Has made assertive statements without giving proper reasoning – Error in finding that the Applicant’s father had a low level involvement with LTTE.

We submit that the Applicant’s father as a person managing the transportation of goods with LTTE, did not have a low level involvement with LTTE. We submit that there is no reasoning provided by the Delegate in dismissing the above mentioned fact and the Delegate simply dismissed the facts around this claim.

17    I do not accept that this submission put forward any new evidence. Rather, it is reasonably clear that the evidence upon which it was based was the Appellant’s own statement of claims which had been provided to the delegate.

18    I accept, as the Appellant observed, that reading the submission this way means that the submission was misconceived for it was advancing an argument which was unsupported by any evidence (there being no evidence before the delegate that the Appellant’s father had a managerial or supervisory role with the LTTE beyond being a truck driver). However, the making of misconceived submissions is a common feature of every species of litigation and, by itself, does not provide a reason for reading the submission other than as what it appears to me plainly to be saying. Nor do I accept that the submission became ‘new information’ precisely because it was not based on any evidence (as the Appellant submitted at [24]). A submission not based on evidence cannot be characterised as having the quality of being the very evidence which is missing.

19    Thus, I do not accept that the submission is ambiguous about this. Even if it were ambiguous, any ambiguity could legitimately be resolved by considering what the author of the submission intended. Two matters suggest that the author did not intend by the submission to be putting forward ‘new information’ for the purposes of s 473DD. The first is that the submission fails to deal with any of the requirements in ss 473DD(a) and (b) for new information to be received which is odd if that is what the author was trying to achieve. The second is that the Authority has a practice direction dictating how new information is to be provided by an applicant. None of the stipulations of that practice direction were complied with in relation to the submission in this case. Whilst the practice direction cannot control the meaning of ‘new information’, it is legitimate to observe that had the author understood himself to be submitting new information then the practice note likely would have been complied with. Thus, if the intentions of the author mattered for the purposes of resolving any ambiguity in the submission then I would infer that the author did not intend to put forward any new information. However, since the submission is not ambiguous it is not necessary to resort to this.

20    The correct characterisation of the submission is that it was a new argument, not advanced to the delegate, based on the same factual evidence which was before the delegate. There is no doubt that the Authority was entitled to consider such a submission: Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; 260 FCR 482 at [34]-[35] per Flick, Griffiths and Perry JJ (‘CLV16’); DNA17 v Minister for Immigration and Border Protection [2019] FCAFC 146 at [22]-[23], [32] per Kerr, Davies and O’Bryan JJ (‘DNA17’). Those decisions are inconsistent with a new submission based on evidence before the delegate being ‘new information’ for the purposes of s 473DD.

21    This case is thus not like BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 269 FCR 94 (‘BYA17’) and EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180; 265 FCR 527 (‘EEM17’) where this Court concluded that the Authority had failed to consider whether material provided to it was ‘new information’ and therefore failed to form a state of satisfaction in relation to the requirements of s 473DD. In BYA17 the new information consisted of newspaper articles and in EEM17 it was a photograph. Neither case concerned a written submission.

22    Thus, the new submission was not new information and the Authority was entitled to deal with the submission on the evidence which was before the delegate. This is exactly what the Authority then did. The learned primary judge reached the same conclusion by reasoning that a submission was not, in itself, information. The Appellant submitted that under s 473DC new information may include a document and that the submission was a document so that this conclusion is not correct. It is not strictly necessary to assess this contention. It is clear from CLV16 and DNA17 that the Authority is not prevented by s 473DD from considering a submission about the significance of evidence which was before the delegate even if that submission was not made to the delegate.

23    The logic of this, it may be accepted, is that a written submission about evidence which is before the delegate is not a document within the meaning of s 473DC. However, it is not open to me to disregard the holdings in CLV16 and DNA17. The resolution of the conundrum raised by the Appellant’s submission is likely that the documents referred to in s 473DC must be documents which the Authority considers are ‘relevant’ to its decision. The concept of relevance imports notions of probative force and submissions do not have probative force but are instead argumentative. On that view, a submission is not a document under s 473DC. However, as I have explained, I do not need to resolve this issue because of CLV16 and DNA17.

24    The first ground of appeal should be rejected.

The apprehended bias ground

25    The facts relating to this ground are set out above in the introduction. The Secretary provided the Authority with the assessment report under s 473CB(1)(c). That subsection obliged the Secretary to provide to the Authority ‘any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review’. It may be inferred from the fact that the assessment report was provided to the Authority that the Secretary considered that it was relevant to the Authority’s review. Further, by s 473DB the Authority was required to conduct its review ‘by considering the review material provided to the Authority under s 473CB’. At [2] of its reasons, it recorded that it had had regard to the material provided by the Secretary.

26    Depending on the nature of prejudicial material provided to the Authority under s 473CB(1)(c), it is established that a reasonable apprehension of bias may arise. Such an apprehension arose in CNY17 v Minister for Immigration and Border Protection [2019] HCA 50; 268 CLR 76 (‘CNY17’) and FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29; 274 FCR 456 (‘FSG17’). In the former case, the material suggested that the visa applicant had a history of aggressive behaviour, had been ‘involved in many incidents while in detention’, and was the subject of ongoing investigations. It also recorded that there had been a recommendation that he be detained in prison whilst there was a police investigation into a ‘riot’ at an immigration detention centre. In FSG17, the material indicated that the Appellant had been charged with sexual abuse of a child aged 13 years over a lengthy period of time.

27    In the course of explaining why an apprehension of bias arose in CNY17, Nettle and Gordon JJ accepted that there ‘may be other cases in which the material given to the [Authority] was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality’ and that ‘the particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract’ (at [101]). Both Justices thought that the material provided to the Authority was such that a fair-minded observer might apprehend that the Authority might be biased against the applicant ‘possibly by thinking that the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community’ (at [96]). Edelman J thought that the fair-minded observer would regard the prejudice arising from the material as ‘substantial’ (at [110]) and that it painted a picture of a ‘man of poor or doubtful character’ (at [124]). See also the helpful analysis of CNY17 given by the Full Court in FSG17 at [28]-[37].

28    The question then in this appeal is which side of the line the material falls on. The learned primary judge thought that it did not give rise to a reasonable apprehension of bias because of the lack of seriousness attributed to the Appellant’s conduct and because the Appellant had himself disclosed the conviction to the delegate during his interview. During that interview the Appellant disclosed that he had been charged with drink driving after trying to park his car and hitting the car in front.

29    I respectfully agree with his Honour. I do not think that a fair-minded lay observer might reasonably apprehend that the Authority might be biased against the Appellant by having in its possession a document containing the same information which the Appellant had himself disclosed to the delegate. It is true the assessment report also contained the statement that the seriousness of the conduct was ‘low’ but, wherever the line in CNY17 is drawn, that statement falls well on the permissible side of it.

30    This ground should be rejected.

Conclusion

31    The appeal should be dismissed with costs.

Associate:

Dated:    14 July 2023