Federal Court of Australia

FJA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1539

ORDERS

THE COURT ORDERS THAT:

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

2.    There be an extension of time to enable the Minister to rely upon the notice of contention dated 6 November 2023.

3.    The appeal is dismissed.

4.    The appellant do pay the first respondent's costs to be assessed by a registrar on a lump sum basis if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1    The appellant's application for a safe haven enterprise visa (often referred to as a SHEV) was refused. His application for review by the Immigration Assessment Authority was unsuccessful. He sought judicial review of the Authority's decision in what was then known as the Federal Circuit Court of Australia. The sole ground of review concerned whether the Authority had misconstrued or misapplied s 473DD of the Migration Act 1958 (Cth) (which is concerned with whether new information could be received by the Authority) with the consequence that the Authority failed to exercise its jurisdiction to consider particular new information.

2    Section 473DD relevantly provided that the Authority must not consider 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.

3    In July 2020, the Circuit Court refused the appellant's review application. It did so on the basis of a view as to the interpretation of s 473DD that reflected the then state of legal authority. That view was to the effect that it is a misconception that the factors in s 473DD(b) must be considered in deciding whether exceptional circumstances exist and that s 473DD(b) actually sets out further conditions that must be considered by the Authority in deciding whether the Authority can consider new information that must be addressed cumulatively upon the precondition set out in s 473DD(a) (as to the existence of exceptional circumstances) being satisfied: see AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [14].

4    Then, in October 2020, the High Court published its decision in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494. In that decision, the construction and operation of s 473DD was explained by Kiefel CJ, Gageler, Keane and Gordon JJ in the following terms at [7]-[11]:

The criteria that must be met if the Authority is to take new information that it has got into account in making its decision on the review vary according to the provenance of the new information that has been obtained by the Authority. All new information is required to meet the criterion specified in s 473DD(a) that the Authority is satisfied of the existence of 'exceptional circumstances' justifying its consideration of that new information.

New information obtained from the referred applicant is required to meet at least one of the additional criteria specified in s 473DD(b). The additional criterion specified in s 473DD(b)(i) is met if the referred applicant satisfies the Authority that the new information meets the bipartite description of information that was not before the Minister at the time of making the referred decision and that could not have been before the Minister at the time of making the referred decision. The additional criterion specified in s 473DD(b)(ii) is met if the referred applicant satisfies the Authority that the new information meets the tripartite description of 'credible personal information', that was not previously known, and that may have affected consideration of the referred applicant's claims to be a person in respect of whom Australia has protection obligations if it had been previously known.

…

Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a).

Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met.

(emphasis added, footnotes omitted)

5    In the meantime, the appellant acting on his own behalf commenced an appeal against the decision of the Circuit Court in which the only appeal ground was that the primary judge 'didn't adequately examine the evidence that was placed and didn't exercise the Court[']s proper [j]urisdiction'. Expressed in those terms, the appeal ground discloses no proper ground of appeal.

6    At the hearing of the appeal, the appellant was unrepresented. He was assisted by an interpreter. He was invited to explain the error or errors that he said the primary judge had made in his case. In response, he claimed that he was depressed and was affected by the fact that a few months ago he commenced formal separation from his wife and that she had obtained a restraining order against him. He invited the Court to examine the terms of the restraining order which was obtained at the end of October 2023. I understood the appellant to be seeking an adjournment based upon these matters. I indicated that I was not persuaded that the matters raised were reasons why the appeal should not proceed. The appellant then was given an opportunity to make oral submissions with the assistance of an interpreter but indicated that he did want to do so and wanted the hearing to conclude as soon as possible.

The position of the Minister

7    Counsel for the Minister accepts (quite properly) that an issue arises as to whether, having regard the reasoning in AUS17, there was error by the Circuit Court in determining that the ground of review advanced before the Circuit Court was not established. Whether there was error is to be determined according to the applicable law as now adjudged by the High Court.

8    The Minister further accepts that there was legal error in the approach by the Circuit Court as to the manner in which s 473DD was to be applied but seeks to uphold the decision of the Circuit Court on the basis of a notice contention.

9    The single ground sought to be advanced by the notice of contention is to the effect that the decision of the Circuit Court to dismiss the review application should be upheld on the basis that the Authority 'did not fail to consider a mandatory relevant consideration or otherwise fall into jurisdictional error in its application of s 473DD … because the Authority did not fail, in substance, to assess satisfaction of the criteria in ss 473DD(b)(i) and (b)(ii) of the Act, and did not fail to take the outcome of its assessment into account in determining whether there were exceptional circumstances within s 473DD(a)'.

Outcome

10    For the following reasons, there should be leave to Minister to rely upon the notice of contention and the contention ground should be upheld. It follows that the appeal must be dismissed with costs.

Application for leave to rely upon notice of contention

11    The notice of contention was filed out of time and for that reason the Minister seeks leave to rely upon the contention ground. The Court may dispense with the time requirement in r 36.24 of the Federal Court Rules 2011 (Cth) for any notice of contention to be filed within 21 days of service of the notice of appeal or, as provided by r 1.39, it may extend the time. I am satisfied that, in the interests of justice, there should be an extension of time. The proposed notice of contention was not delivered until 6 November 2023. However, in substance it is required because of the nature of the legal argument that the Minister seeks to advance in circumstances where the Minister concedes error by the primary judge in a respect not raised by the appellant. The contention ground raises legal argument of a confined nature. It concerns the ground of review considered by the primary judge. It arises because of the decision by the High Court in AUS17 which came after the decision by the primary judge. If the contention point is persuasive then it is preferable for that to be determined in the context of the appeal than to remit the matter for a further hearing at which time the same point could be raised.

The reasoning by the Authority

12    The Authority found that the appellant (then applicant) 'gave new information consisting of one new claim, and extracts from three sources of country information'. As to the new claim, it then reasoned as follows (para 6):

The new claim is that the applicant's father was beaten and threatened by the Sri Lankan Navy (SLN) on a number of occasions. I am not satisfied there are exceptional circumstances to justify considering this new claim. This new claim is vague and a variation on the applicant's existing claims involving what the SLN did to his father. There is no detail included with this new claim about the number of occasions and when they occurred, or any information about the alleged beatings and threats. Previously, the applicant claimed there were two incidents involving his father and the SLN, soon after he departed Sri Lanka in August 2012, and neither description of these incidents involved his father being beaten. While the applicant's claims to fear return to Sri Lanka included that the SLN continued to harass his father forcing him to abandon their traditional fishing waters, the applicant did not describe any harassment or threats after the two incidents which happened between August 2012 and December 2012. If the applicant's father had been beaten and threatened on a number of occasions, the applicant had the opportunity to detail this claim as part of his SHEV application, during his SHEV interview or in his post-SHEV interview submission to the delegate, but he did not. I am not satisfied that s.473DD(a) is met.

13    As to the three sources of country information, the Authority reasoned as follows (para 8):

I am not satisfied there are exceptional circumstances to justify considering this new information. All of it pre-dates the applicant's post SHEV interview submission to the delegate, and pre-dates the delegate's decision. In relation to the information from October 2012, while it is about the presence of the military and its involvement in fishing from the year the applicant departed Sri Lanka, there is other relevant information on these matters before me, in particular the United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines, for December 2012. The second extract is very brief and includes information about impacts on the fishing industry. The third extract is also very brief and it is about the military continuing to occupy high security zones and impact the livelihoods of farmers and fishermen. There is however, other relevant country information contained in full reports already before me about these matters, including in the 174 pages of country information from Amnesty International dated 17 May 2017 which the applicant submitted in support of his application. I am not satisfied that s.473DD(a) is met.

The principal submissions for the Minister

14    The Minister contended that, in substance, the Authority had performed the required task because, on a fair reading of its reasons, it had considered the matters that it was required to consider under s 473DD(b) and had properly proceeded on the basis that it must not consider the new information. In effect, the submission was that even though the Authority was in error in approaching its task on the basis that it could first consider whether there were exceptional circumstances and the matters in s 473DD(b) were only to be considered if the Authority was satisfied that there were exceptional circumstances, in fact it did so by forming the states of satisfaction required by s 473DD(b) and thereby properly undertook the task that the legislation required.

15    As to the new claim, it was submitted that by referring to the opportunity that the applicant had been afforded to detail the claim at the SHEV hearing, the Authority had considered whether the information could not have been provided before the Minister made the decision to refuse the application (as required by s 473DD(b)(i)).

16    Further, it was contended that the Authority had in substance undertaken an assessment of the credibility of the new claim and in doing so had not assessed whether the information was truthful but had adopted an approach which was consistent with evaluating whether the information was 'credible personal information' as required by s 473DD(b)(ii). It was submitted that the absence of an express finding of a lack of credibility was not a reason to find that the Tribunal did not engage with that factor, relying upon what was said by Middleton J in DQI17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 106 at [50].

17    As to the new country information, it was submitted that the reference by the Authority to the information pre-dating the decision by the Minister's delegate demonstrated that the reasoning had begun by addressing what was required by s 473DD(b)(i). Further, there was no need to address s 473DD(b)(ii) because the information was not credible information.

18    For those reasons, it was submitted that although there was error by the primary judge as to what was required by s 473DD, this Court should find that the decision of the primary judge should be upheld on the basis of a finding to be made on appeal that the Authority did comply with s 473DD.

The new claim

19    The primary judge found that the Authority had rejected the information concerning the new claim on that basis that exceptional circumstances did not exist. The finding to that effect was found by the primary judge to be supported by the Authority's reasoning. In those circumstances, the primary judge found that 'it was unnecessary to consider the requirements of s 473DD(b)'. The finding rested on the reasoning in AQU17 the correctness of which was overturned by the High Court's decision in AUS17.

20    In the present appeal, the Minister submitted that it was not necessary for the Authority to refer to s 473DD(b) in order for a court, on review, to be able to conclude that its terms were applied. So much may be accepted. It was also submitted that the express reference by the Authority to s 473DD(a) does not necessarily detract from a conclusion that the Authority formed the states of satisfaction required by s 473DD(b) when addressing what it considered to be exceptional circumstances. That too may be accepted. However, whether it was indeed the case requires careful consideration of the reasons of the Authority, in context.

21    The new claim was included in a letter to the Authority prepared on the appellant's behalf by a lawyer and migration agent acting on his behalf. Within a section headed 'Summary of Claims' the new claim was expressed in the following terms:

Following his departure his father was questioned about the Applicant's whereabouts. His father was beaten and threatened by the Sri Lankan Navy on a number of occasions.

22    The letter did not suggest that there was any particular reason why a claim in those terms had not been presented to the Minister before the delegate's decision was made nor was any matter advanced as to why the claim was supported by credible personal information or that it was information that was not previously known and had it been known it may have affected the consideration of the claims. In short, there does not appear to be any matter (beyond the claim itself) that was before the Authority that might bear upon the states of satisfaction that the Authority was required by s 473DD to form that was not addressed by Authority in its reasons.

23    As has been explained, when it came to the new claim, the Authority was required to form a view as to whether it 'was not, and could not, have been provided to the Minister' or was 'credible personal information' of the kind described before addressing whether there were exceptional circumstances. Significantly, it could not conclude that there was an absence of exceptional circumstances without first forming a state of satisfaction as to the matters stated in s 473DD(b). If it formed a view that was favourable to the appellant (then applicant) as to either of the matters in s 473DD(b), the Authority was required to then form a view as to whether there were 'exceptional circumstances' bringing to account the state of satisfaction it had formed as to the matters in s 473DD(b).

24    In the present case, the reasoning by the Authority began by expressing the view that the new claim was vague and a variation on existing claims. It then observed that there was 'no detail included'. It then observed that previous accounts had not mentioned the applicant's father being beaten, harassed or threatened. These were all matters that were relevant because they might bear upon the credibility of the new claim. The Authority then concluded that the applicant had the opportunity to detail the new claim as part of his application to the Minister.

25    In substance, the reasons of the Authority demonstrate that it formed a state of satisfaction as to whether the new claim was not and could not have been provided to the Minister before the delegate's decision was made and it addressed the matters that might bear upon whether the new claim was credible personal information in the sense that it might be accepted. It did not reach a conclusion as to whether the new claim was true. Rather, it identified various matters that were relevant to whether the claim was credible.

26    Therefore, the reasons given by the Authority as to why there were no exceptional circumstances were founded upon the formation of a state of satisfaction as to the matters in s 473DD(b). That is to say, the Authority formed the states of satisfaction as required by s 473DD(b). They were adverse to the appellant. Therefore, it has not been shown that the Authority proceeded in a manner that was a misapplication of the relevant statutory provision. Put another way, it performed the statutory task as required. In those circumstances, the Authority has not been demonstrated to be in error in not considering the new claim. In order to demonstrate jurisdictional error based upon a misconstruction of the nature or extent of the power being exercised it must be shown that the misconstruction led to the decision maker misconceiving the nature of the function being performed: Craig v State of South Australia (1995) 184 CLR 163 at 194 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); and Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [72] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It is a misconception that is manifest in what is done that demonstrates jurisdictional error. A misconstruction that does not result in a decision that lacks authority because it is of the wrong character or exceeds the boundaries of authority is not reviewable for jurisdictional error on the basis of error of law. It is the non-compliance with the statutory provision that means there is jurisdictional error.

27    Materiality gives rise to a different issue. It is concerned with whether the failure to conform with the statutory requirement was consequential. The Minister expressly disavowed any claim based upon materiality.

Reasoning as to country information

28    As to the additional country information referred to in the letter to the Authority, the claim made in the letter was that the Minister's delegate had failed to engage in relevant country information submitted with the application. Then the letter said:

In addition, we provide the following country information that addresses the adverse findings of the delegate of the Applicant not being a person in respect of whom Australia has protection obligations.

29    The Authority began its reasoning as to this new country information by stating that all of it pre-dates the submission to the delegate and the delegate's decision. Approaching the matter in that way conformed with what was required by s 473DD(i) as explained in AUS17. As the Minister correctly submits there was no state of satisfaction to be formed for the purposes of s 473DD(b)(ii) because the country information was not personal information.

30    It follows that it has not been demonstrated that there was error in the Authority's approach to the additional country information.

Conclusion and orders

31    For the above reasons, there should be an extension of time in which to file the notice of contention and the appeal must be dismissed. There is no evident reason why costs should not follow the event. The appropriate order is for the appeal to be dismissed with costs.

Associate:

Dated:    8 December 2023