Federal Court of Australia

DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 627

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant have leave to file the Amended Notice of Appeal dated 23 April 2024.

2.    The appeal be dismissed.

3.    The Appellant pay the First Respondent’s costs of the appeal, to be taxed if not agreed.

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

REASONS FOR JUDGMENT

BUTTON J:

Background

1    The Appellant is a citizen of Sri Lanka. He arrived in Australia by boat in November 2012.

2    On 12 February 2017, the Appellant applied for a Safe Haven Enterprise Visa. In a statutory declaration made in support of his application, the Appellant stated that if he was forced to return to Sri Lanka, he would be killed or imprisoned indefinitely. In support of that claim, the Appellant referred to frequent visits to his family home in Sri Lanka by the “Criminal Investigation Department” (CID), in which the CID would ask the Appellant’s mother for his whereabouts.

3    The Appellant’s initial statement (dated 22 October 2016) stated that the CID was interested in him because his father had been a member of the People’s Liberation Organisation of Tamil Eelam (PLOTE). He stated that his family had long had difficulties due to his father’s association with PLOTE. The Appellant assisted his father on his election campaign when his father had run for office in 2010. He said that, after the election (which his father lost), the CID was still interested in him and had detained and interrogated him on two occasions.

4    The Appellant’s visa application was refused by a delegate of the Minister on 23 May 2017. The delegate’s decision was referred by the Department of Immigration and Border Protection to the Second Respondent (the Authority) for review under Pt 7AA of the Migration Act 1958 (Cth) (the Act).

5    On 12 March 2018, the Authority affirmed the delegate’s decision. On 8 May 2020, the Federal Circuit Court of Australia (as it was then known) quashed the Authority’s decision and remitted the matter to the Authority for review according to law.

6    On 9 July 2020, the Authority (differently constituted) affirmed the delegate’s decision, a decision which was later quashed by the Full Federal Court of Australia, on 1 September 2022: DNU20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 148.

7    The matter then returned to the Authority for a third time.

8    At the request of Refugee Legal made on 16 September 2022, which indicated an intention to provide further material in support of the Appellant’s claim, the Authority agreed not to make a decision until after 23 September 2022. In conveying its agreement not to make a decision until after that date, the Authority referred the Appellant’s representatives to s 473DD of the Act and the applicable Practice Direction.

9    On 25 September 2022, Refugee Legal sent submissions to the Authority, and noted that they were providing “once off assistance” to the Appellant in relation to the matter. In that email, Refugee Legal also attached a statement made by the Appellant on 12 September 2022.

10    Under the heading “Summary of protection claims”, the submissions included the following:

In summary, our submissions on behalf of the applicant are as follows. The Applicant wishes to provide a number of pieces of new information relating to the CID, his mother, his sister in the United Kingdom and the situation in Sri Lanka.

…

(c)    We appreciate that a statement by the Applicant’s mother, made at the request of the applicant, might not be given much or any weight. However, the applicant explains in his recent statement that his mother talked to him about the Criminal Investigation Department (CID) visits when he was in prison. As he was in prison for committing criminal offences in Australia, his mother would not have had any reason to fabricate evidence in relation to the Applicant’s application for protection. These conversations constitute probative evidence in support of the claim of an ongoing interest by the CID. They are new information that falls within s 473[DD](b)(ii). The IAA can obtain a copy of the recordings he has had with his mother, which would show she told him about CID visits. We cannot obtain the recordings quickly enough for the IAA as FOI requests take a minimum of 35 days to process.

(d)    Furthermore, the IAA can contact the Applicant’s mother and take evidence directly from her in relation to the CID and his fears on return. The Applicant’s mother’s phone number was included in his recent statement.

11    Those submissions were accompanied by the further statement of the Appellant (dated 12 September 2022), two articles about the economic situation in Sri Lanka, a letter from the Appellant’s sister, and medical information relating to his mother.

12    The Appellant was imprisoned from some time in 2017 to some time in 2021. Accordingly, he was not imprisoned when the initial material that was submitted to the delegate was assembled. Nor was he in prison in 2022 when the review of the delegate’s decision returned to the Authority for the third time; at that time he was in immigration detention.

13    In his statement dated 12 September 2022, the Appellant said of visits from the CID to his mother’s home in Sri Lanka:

I think the last time the CID came was in April 2022. My mother wanted to take a video of the CID as evidence, but in the end she was too scared and did not do it. If the IAA Reviewer does not believe my claims about the frequent visits from the CID, he or she can contact my mother by telephone on [number].

As I said in a statutory declaration for the Federal Court, on two or three occasions while I was in criminal custody in Australia, when speaking with my mother over the telephone, my mother told me that the CID came to the home looking for me. She was crying when we had these conversations. These conversations would have been recorded on phones in prison but my mother did not know that. These calls had nothing to do with my visa and my mother had no reason to lie because she was just talking to me, not to the Department of Home Affairs.

14    On 18 October 2022, the Authority delivered (by email to the relevant Immigration Detention Centre, and Refugee Legal) a letter to the Appellant advising him that his case had been remitted to the Authority for reconsideration. The letter asked the Appellant to “act quickly if there is anything further you wish to provide us, as a decision may be made at any time” (emphasis in original). That letter also attached the Practice Direction.

15    On 28 November 2022, the Authority (again by letter emailed to the relevant Immigration Detention Centre) invited the Appellant to provide new information:

(a)    responding to country information reports provided by the Authority, which the Authority considered suggested that the Appellant “would not face a real chance of persecution or real risk of significant harm”;

(b)    in relation to certain claims made by the Appellant in a screening interview conducted on 4 December 2012; and

(c)    in relation to CID visits.

16    In relation to CID visits, the letter stated the following, under the heading “Information about CID visits”:

•    You have stated in your submission of 25 September 2022 that the IAA can obtain a copy of recordings of conversations you had with your mother while in criminal custody. The IAA has no power to compel any body to provide information.

•    Your statement of 12 September 2022 refers to a statutory declaration for the Federal Court. The IAA has the review material given to us by the Secretary of the Department of Home Affairs, which includes your residential address in accordance with the judgment in DNU20 v MICMA [2022] FCAFC 148. However, we have not been provided with any information you may have given to the court.

If you wish to rely on any further information in relation to these matters, you will need to give it to us by the deadline provided in this letter.

The deadline specified by the Authority was 1 December 2022, but it also said that no decision would be made until after 12 December 2022.

17    After receipt of the letter dated 28 November 2022, the Appellant advised the Authority by telephone that he could not read the letter. The Authority then arranged for the Appellant to provide the information at an interview, conducted by videoconference on 15 December 2022. The Appellant was assisted by a Tamil interpreter at the interview. The invitation to attend the interview specified that it would be an opportunity to provide new information relating to matters raised in the invitation letter of 28 November 2022.

18    On 19 December 2022, following an invitation to submit further information extended by the Authority, the Appellant provided it with four videos. The Authority’s reasons for decision record that two of the videos were in Tamil, and depicted media reporting, and two videos were in English and were of a speech in the UK Parliament and a speech by a Canadian member of Parliament respectively.

The Authority’s decision

19    On 21 December 2022, the Authority (again differently constituted) affirmed the delegate’s decision and issued a written decision (AD).

20    The Authority said as follows, in relation to the interview it conducted with the Appellant on 15 December 2022 (AD [12]):

At the interview, which took place by videoconference on 15 December 2022, I discussed with the applicant the matters raised in the invitation letter of 28 November 2022, including inviting him to provide new information in response to new country information obtained by the IAA and to expand on and clarify claims made during the screening interview. I also invited him to provide any additional information about CID visits to his mother that he would like me to consider. Much of the information given by the applicant in relation to his claimed past experiences in Sri Lanka, and the ongoing CID interest in him, was repetition of what he said earlier … There was broad consistency between the information given by the applicant at the IAA interview and his earlier claims and I am satisfied that to the extent he gave new information about his experiences in Sri Lanka, it is credible personal information that was not previously known and may have affected consideration of his claims. Considering these matters, and that the new information was given in response to the IAA’s invitation, I am satisfied there are exceptional circumstances to justify considering the new information given by the applicant at the interview.

21    The Authority noted (AD [13]) that: “The applicant was given time following the interview to submit any further information he wished to rely on. I advised him that if he submitted material that was not in English, I may not be able to understand that information, beyond what might be evident from pictures or videos.” The first and fourth videos were in Tamil, so could not be understood by the Authority. It was not satisfied that there were exceptional circumstances to justify considering them, but did consider that there were exceptional circumstances in relation to the second and third videos.

22    The Authority referred to the request made to obtain recordings of conversations the Appellant had with his mother while he was in criminal custody and noted the indication that the Authority could contact the Appellant’s mother (AD [15]–[16], emphasis added):

The September 2022 submissions request that the IAA obtain a copy of recordings of conversations the applicant had with his mother while in criminal custody which would show that she told him about CID visits. The submissions assert that the applicant cannot obtain the records quickly enough under FOI. The applicant’s statement submitted to the IAA refers to a statutory declaration given by the applicant to the Federal Court in relation to the phone calls in which his mother told him about CID visits. The submissions also indicate that the IAA can contact the applicant’s mother and obtain evidence from her about the CID and the applicant’s fears on return. The submissions further submit that the IAA should consider exercising the discretion under s.473DC(3) to interview the applicant, particularly about the frequency of CID visits and the authorities’ continued interest in him. The earlier 2017 submissions also include a request that the IAA interview the applicant to clarify his claims and obtain evidence about his relationship with ‘LTTE boys’ referenced in his interview with the delegate and how this interacts with his claims for protection.

As indicated in the IAA’s invitation letter to the applicant of 28 November 2022 and at the interview, the IAA does not have the power to compel production of documents such as the recordings of phone calls, and was not given any information the applicant may have given to the court. Even assuming the recordings of these phone calls (which would likely be in Tamil) evidence the applicant’s mother telling him of CID visits and becoming emotional as claimed, this would not necessarily demonstrate that the visits took place, or that they were for the reasons the applicant claims … [the Appellant] has not indicated any other specific additional information his mother or he may be able to provide beyond what has already been given.

23    The Authority accepted the Appellant’s claims about his and his father’s activities and experiences as credible and also considered it plausible that the CID’s interest in the Appellant was partially for the purpose of investigating whether he may have LTTE links (AD [27]–[28]). The Authority expressed concern about the Appellant’s claims as to the CID’s ongoing interest in him, and detailed the facts concerning when he was interrogated, the lack of arrest, and his movements between 2010 and 2012. The Authority said (AD [33]):

On the applicant’s claims, he was briefly detained twice in 2010 while living in [T], [V] and despite claimed frequent CID visits to his home, he managed to avoid any subsequent contact with the CID for a further two years, at least one of which he lived at home in [V] where he also worked for a number of months. He has additionally said at the IAA interview that he engaged in at least some activity for the PLOTE for the council elections in 2011. Even if the CID were unable to locate him with relatives in [M] or [T], I do not accept that they would have been unable to locate him in [V] in the period between when he returned there some time in 2011 and when he departed Sri Lanka in October 2012, if they did in fact have any ongoing serious interest in or suspicion over him after the second detention.

24    The Authority considered the Appellant’s claims about the CID’s ongoing interest in him over a period of 10 years after his departure, as follows (AD [34]–[35]):

On his evidence, his father reduced his own PLOTE activities after 2011. In these circumstances, it seems most remote that some further information about the applicant might have come to light which would have increased or reignited interest in him after his departure.

I consider it implausible that the CID would have such little interest in locating the applicant that they would fail to do so in the period he remained in [V] prior to leaving Sri Lanka, yet would continue to visit his mother, search her home and ask about his whereabouts over a period of almost 12 years after their last interaction with him. While I accept the applicant’s clarification to the IAA that he did not intend to claim that the CID visited his house literally every month, and he has clarified they came perhaps every three to four months, I nonetheless find it implausible that the CID would have continued to pursue the applicant over these matters for a period of ten years after his departure, even if those visits were infrequent.

25    The balance of the Authority’s reasons detail country information, including as to the position of Tamils in Sri Lanka, the Appellant’s health and access to medical care in Sri Lanka, and the position he would be in if he returned to Sri Lanka having regard to his departure having been illegal. The Authority concluded that the Appellant did not meet the requirements of the definition of “refugee” in s 5H(1) and did not meet s 36(2)(a). The Authority finally addressed complementary protection, and concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that he would suffer significant harm and so, the Appellant did not meet s 36(2)(aa).

Decision below

26    The Appellant applied for judicial review of the Authority’s decision, and the matter was heard in the Federal Circuit Court and Family Court of Australia (Division 2) on 21 August 2023. The Appellant was self-represented at that hearing, with the assistance of a Tamil interpreter.

27    Before the primary judge, the Appellant raised three grounds of appeal, the second of which is most relevant to this appeal. By ground two, the Appellant contended that:

The [Authority] constructively failed to review the decision of the delegate, and failed to conduct a review as required under section 473CC(1) of the Act, by failing to inform the applicant of issues arising on review, and failing to consider its discretion under section 473DC to get new information from the applicant.

28    On 24 November 2023, the primary judge dismissed the Appellant’s application. In relation to ground two, the primary judge found that:

(a)    The Authority went beyond what is required in a review under Pt 7AA in the circumstances of this case.

(b)    The Authority’s refusal to obtain further information from the Appellant’s mother or to seek access to recordings of the mother’s telephone calls with the Appellant does not evidence a failure by the Authority to exercise its powers under s 473DC of the Act, which permits but does not compel the obtaining of new information.

(c)    Even if the Authority did or could have requested the recordings, they likely would have been in Tamil and therefore incomprehensible to the Authority absent a translation.

29    The primary judge also declined to hold that, in exercising its discretion under s 473DC, the Authority acted unreasonably. On this point, the primary judge reasoned that “the decision not to pursue further information about the content of the telephone calls between the applicant and his mother or to interview the mother, had … an ‘evident and intelligible’ justification”.

Grounds of appeal

30    On 14 December 2023, the Appellant, who was not then legally represented, filed a Notice of Appeal that advanced the following single ground: “The primary judge erred in failing to find that the Second Respondent failed to afford the Appellant procedural fairness.”

31    On 26 April 2024, the Appellant, then represented by pro bono counsel, lodged a proposed Amended Notice of Appeal for filing, which advanced the following two alternative grounds (omitting lengthy particulars):

1.    The Primary Judge erred in failing to find that the Second Respondent constructively failed to review the decision of the delegate.

2.    In the alternative, the Primary Judge erred in failing to find that the Second Respondent acted unreasonably, as to process and outcome, in failing to exercise its discretion under s 473DC of the Migration Act to obtain information.

32    The Minister did not oppose leave being granted for the Appellant to rely on his Amended Notice of Appeal. I granted leave at the hearing for the Appellant to file and rely on his Amended Notice of Appeal.

The parties’ submissions

Ground one

33    The Appellant submitted that the principle recognised by six members of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (SZIAI) at [25] in relation to review by the Refugee Review Tribunal under Pt 7 of the Act — that “a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could … supply a sufficient link to the outcome to constitute a failure to review” — is “not inconsistent with” and “fits within” the Pt 7AA framework. The central proposition of the argument that the principle set out in SZIAI also applies to Pt 7AA was that the powers of the Tribunal to obtain information are, like the Authority’s power under s 473DC(1), discretionary and not mandatory (Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 74 ALJR 1404; [2000] HCA 50 at [14] (McHugh J)), both Pt 7 and Pt 7AA involve duties to review (citing CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 (CNY17) at [4] (Kiefel CJ and Gageler J)) and, thus, there is no reason to distinguish SZIAI on the basis it applies only to reviews conducted under Pt 7.

34    The Appellant submitted that, by not requesting the recordings of the phone calls with the Appellant’s mother and by not taking evidence from the Appellant’s mother, the Authority had fallen foul of the principle set out in SZIAI, and thereby constructively failed to review the delegate’s decision.

35    In response, the Minister referred to observations of the Full Court of this Court that “it is questionable whether there is a duty imposed by Pt 7AA of the Migration Act on the IAA to make inquiry of the kind described in relation to the Administrative Appeals Tribunal by the High Court in [SZIAI]”: DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69; [2018] FCAFC 222 at [72] (Collier, Middleton and Rangiah JJ) referring to DJF16 v Minister for Home Affairs [2018] FCA 1285.

36    The Minister submitted that, having regard to the features of the statutory scheme in Pt 7AA, “a decision by the Authority not to exercise the power in s 473DC(1) to get new information will not amount to a ‘constructive failure to exercise jurisdiction’ in the sense described in SZIAI”. Instead, the Minister submitted, the relevant question is whether the Authority’s failure to consider exercising the power in s 473DC(1), or its decision not to exercise that power, was legally unreasonable.

37    The Minister submitted that even if SZIAI did have some separate application in the context of Pt 7AA, the Authority did not fail to make an obvious inquiry about a critical fact, because the relevant fact here was not whether the CID had visited the Appellant’s family home, but why.

Ground two

38    The Appellant submitted, and the Minister accepted, that the power in s 473DC(1) must be exercised within the bounds of reasonableness. Both parties referred in this regard to ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (ABT17) at [3] (Kiefel CJ, Bell, Gageler and Keane JJ).

39    The Appellant contended that by deciding not to exercise its power to request the recordings on the basis that they “would not necessarily demonstrate that the [CID] visits took place, or that they were for the reasons the applicant claims”, the Authority engaged in reasoning that was irrational or illogical, being arbitrary or capricious, or lacking an evident and intelligible justification. In support of this contention, the Appellant said that the Authority shut its mind to the possibility that the recordings could provide contemporaneous and objective corroborating evidence of the CID visits and the reasons for them. It was said that the Authority also excluded itself from considering evidence that may have put in doubt certain other findings made by it.

40    The complaint made by the Appellant in relation to the choice by the Authority not to interview the Appellant’s mother was framed as the Authority “ignor[ing] the fact that the Appellant’s mother’s evidence would be direct evidence of the CID visits to her home and anything the CID members said to her about the reasons for those visits”.

41    The Minister framed the issue as being whether the Authority’s reasons disclose an “evident and intelligible justification” for declining to obtain the recordings or interview the Appellant’s mother: citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ). In the Minister’s submission, having regard to the nature of the statutory scheme, and the reasons given by the Authority for declining to obtain the recordings or interview the Appellant’s mother, “it cannot be said that the Authority’s decision … was ‘so devoid of plausible justification that no reasonable person could have taken that course’” (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290; [1995] HCA 20).

Legislation

42    The parties provided extracts of the Act in the version described as Compilation No 160 (with a compilation date of 29 March 2024). I have proceeded on the basis of the provisions in this version of the Act.

43    Part 7AA of the Act is headed “Fast track review process in relation to certain protection visa decisions”. Section 473BA — the simplified outline — explains that the Part “provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country”. Section 473BA also provides that (emphasis added):

In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it. However, in exceptional circumstances the Immigration Assessment Authority may consider new material and may invite referred applicants to provide, or comment on, new information at an interview or in writing.

44    Section 473CA provides that: “The Minister must refer a fast track reviewable decision to the [Authority] as soon as reasonably practicable after the decision is made.”

45    Section 473CB directs the Secretary of the Department to give to the Authority certain information in respect of each fast track reviewable decision at the same time, or as soon as reasonably practicable after, the decision is referred to the Authority.

46    Section 473CC provides:

473CC  Review of decision

(1)     The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

(2)     The Immigration Assessment Authority may:

(a)     affirm the fast track reviewable decision; or

(b)     remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

47    Section 473DA provides that Div 3 of Pt 7AA — which encompasses ss 473DC and 473DD set out below — 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]”.

48    Section 437DB makes it clear that, ordinarily, a fast track review is to be conducted by reference to the material provided by the Secretary, and without new information, or interviewing the referred applicant. It provides as follows (emphasis added):

(1)     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:

(a)     without accepting or requesting new information; and

(b)     without interviewing the referred applicant.

(2)     Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.

49    The words “Subject to this Part” in s 437DB are important, as other provisions do allow for the Authority to get new information, and to consider it, in limited circumstances.

50    Central to the determination of this appeal is s 473DC. It provides:

473DC  Getting new information

(1)     Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

(a)    were not before the Minister when the Minister made the decision under section 65; and

(b)     the Authority considers may be relevant.

(2)     The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)     Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)     at an interview, whether conducted in person, by telephone or in any other way.

51    Section 473DD limits the circumstances in which the Authority may consider new information obtained pursuant to s 473DC:

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.

52    Section 473FA explains how the Authority is to exercise its functions on review:

473FA  How Immigration Assessment Authority is to exercise its functions

(1)     The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

Note:     Under section 473DB the Immigration Assessment Authority is generally required to undertake a review on the papers.

(2)     The Immigration Assessment Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence.

53    Section 473FB(1) provides for the President of the Administrative Appeals Tribunal to issue Practice Directions. Section 473FB(5) provides that: “The Immigration Assessment Authority is not required to accept new information or documents from a person, or to hear or continue to hear a person at an interview, if the person fails to comply with a relevant direction that applies to the person.”

54    The Authority issued (and sent to the Appellant) a Practice Direction. That Direction specified that all documents in a language other than English must be translated into English by a translator with a specified accreditation.

Consideration

55    The issues arising on the appeal must be considered in the context of the nature of the review mechanism involved. As the explanation of the legislative scheme above makes plain, fast track review under Pt 7AA is intended to be a quick review, based on the material supplied by the Secretary following referral of the Minister’s (or his or her delegate’s) decision to the Authority. Section 437DA excludes any further operation of the natural justice hearing rule, and s 437DB makes it plain that reviews by the Authority are generally to be considered on the papers and without obtaining further information. New information can only be considered in “exceptional circumstances” (s 437DD).

56    The limited nature of the fast track review process was confirmed by Kiefel CJ and Gageler J in CNY17 at [4]:

The requirement which the Part imposes for automatic review by the Authority of a fast track reviewable decision is achieved through the imposition of three cumulative and consecutive statutory duties. The Minister has a duty to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. The Secretary of the Department of Immigration and Border Protection then has a duty to give specified “review material” to the Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority. The Authority then has a duty to “review” the referred decision and to do so “by considering the review material” provided to it by the Secretary without accepting or requesting new information and without interviewing the referred applicant. That requirement for the Authority to conduct the review by considering the review material provided to it by the Secretary is expressly made subject to other provisions within the Part which confer power on the Authority to get and in specified circumstances to consider “new information”, being information which was not before the Minister when making the referred decision and which the Authority considers may be relevant.

(Emphasis added, citations omitted.)

57    While the Authority has the power to obtain additional information, it is clear from the statutory scheme that parliament intended that, in general, fast track reviews will be conducted on the papers, and without obtaining additional information. That is not to read down or restrict the operation of s 437DC. Rather, it recognises that, when (as here) it is asserted that the Authority’s refusal to exercise the power to get further information was legally unreasonable, the charge of unreasonableness is to be considered in the context of the statutory scheme under which the power in question has been conferred.

58    The second point of general relevance to the issues arising in this appeal is that the Authority is not required to make out an applicant’s case for him or her. It is for an applicant to assemble and submit for consideration the material it wishes the delegate to consider, and to put forward for the Authority’s consideration any additional material that the applicant wishes the Authority to consider: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] (Gummow and Hayne JJ; Gaudron J and Kirby J agreeing at [90] and [212]). In ERE18 v Minister for Home Affairs [2021] FCA 1346 (ERE18), Stewart J said (at [42]) that “it is not for the Authority to gather information to support an applicant’s claims, or to make inquiries, or to make out an applicant’s case for them”. His Honour cited Abebe in support, and noted that the observation made in that case by Gummow and Hayne JJ was held also to apply to Pt 7AA in AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 at [53] (Farrell J).

59    While the Authority has the power to get (and not merely receive) new information, whether the failure to exercise that power was legally unreasonable is to be considered in light of it not being the Authority’s task to make out an applicant’s case, or follow up any potential source of information that may bolster an applicant’s case on a point of which the Authority is not persuaded (such as, here, the ongoing interest of the Sri Lankan authorities in the Appellant).

Ground one

60    In SZIAI, the plurality stated (at [25]) that the duty imposed upon the Tribunal by the Act was a “duty to review” and that “[i]t may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review”. SZIAI concerned review by the Refugee Review Tribunal under Pt 7 of the Act.

61    Even in the context of Pt 7 of the Act, it is only in “rare or exceptional circumstances” that a failure by the Tribunal to make an inquiry will amount to jurisdictional error: Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60] (Kenny J); Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184 at [33] (Dowsett, Pagone and Burley JJ); DYI16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 612 at [54] (Wheelahan J).

62    The Appellant accepted that there is no authority that the principle stated in SZIAI applies to reviews under Pt 7AA (being fast track reviews by the Authority).

63    In DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69; [2018] FCAFC 222 the Full Court (Collier, Middleton and Rangiah JJ) said (at [72]) it was “questionable” whether there is a duty imposed by Pt 7AA of the Act on the Authority to make inquiry of the kind described in SZIAI.

64    There are also several first instance decisions expressing scepticism about the proposition that the duty to make obvious enquiries on critical facts applies to the Authority in conducting reviews under Pt 7AA. In BJB17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1683, Wigney J considered that it was “at best questionable whether there is any duty imposed on the Authority to make any inquiry of the kind described [in SZIAI]” (at [109]). Similarly, in DTP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 56 (at [59]–[66]), Wigney J set out a number of “fundamental difficulties” in an appeal ground that the Authority made a jurisdictional error in failing to consider making an obvious inquiry, which included the Full Court’s statement in DYK16 referred to above. In ERE18 (at [41]), Stewart J distinguished SZIAI as referring to Pt 7 (and not Pt 7AA) of the Act, and also referred to the Full Court’s statement in DYK16 referred to above.

65    While the Appellant made a valiant effort to point to features shared by Pt 7 and Pt 7AA — principally that they both impose a duty to review — the Appellant’s submissions overlook the significant differences in the nature of the review prescribed by the two legislative schemes. In particular, the submission fails to grapple with the express provisions of Pt 7AA as to the review being a limited, fast review, generally conducted on the papers and without receiving or seeking new information, which put beyond doubt that the nature of the review required by Pt 7AA is quite different from the nature of a review required by Pt 7. I share the scepticism of the Full Court and the single judges noted above as to the application of the statement in SZIAI to a review under Pt 7AA.

66    Be that as it may, even if that duty does apply, I do not consider that the Authority fell into jurisdictional error on that basis.

67    As to the recordings of telephone calls between the Appellant and his mother while he was in prison, the Authority did not, as it explained to the Appellant, have the power to compel production of documents. I do not accept that, even if a duty of the kind described in SZIAI applied, it was incumbent on the Authority to make a request for recordings of the calls under the Freedom of Information Act 1982 (Vic), as the Appellant suggested it should have. Making an FOI request goes well beyond making an “obvious inquiry about a critical fact, the existence of which is easily ascertained”, still less would it have been an inquiry of that character in the context of the quick and limited review prescribed by Pt 7AA.

68    The Appellant asked the Authority to obtain the recordings of the prison phone calls as it was stated that there was insufficient time for the Appellant to obtain the recordings, given the minimum time for the processing of FOI requests. No request was made that the Authority not make a decision until the Appellant had had an opportunity to submit an FOI request (in circumstances where, as set out above, there had been a request that the Authority not make a decision until after 23 September 2022, to allow time for further information to be obtained and submitted).

69    Further, as the calls would have been in Tamil, they would be meaningless to the Authority unless translated. The Authority’s Practice Direction makes it clear that it deals with information in English and does not assume the burden of obtaining translations of material an applicant wishes it to consider. That Practice Direction was made pursuant to the authority conferred by s 473FB of the Act in circumstances where s 473FB(5) states expressly that the Authority is not required to accept new information or documents from a person if the person fails to comply with a relevant direction that applies to the person. While s 473FB(5) is cast in terms of “accepting” information or documents “from a person”, and so does not, on its face, apply to such documents or information that the Authority itself may obtain, the Practice Direction nonetheless makes it clear to applicants that the Authority operates in English and does not assume the burden of translating documents (added to which, as the Minister submitted, any translation obtained by the Authority may well have to be submitted to the applicant for comment).

70    Finally, the “critical fact” in question is whether the CID had an ongoing interest in the Appellant that was of a character such that he would have a well-founded fear of persecution in Sri Lanka (s 5H(1)), would be a person in respect of whom Australia has protection obligations on the basis that he is a refugee (s 36(2)) or would be a person owed protection on the basis that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there was a real risk that the Appellant would suffer significant harm (s 36(2)(aa) and s 36(2A)).

71    All that the Authority was told about the phone calls was that, on two or three occasions, while he was in prison, the Appellant’s mother told him that the CID came to the home looking for him and that his mother was crying when she told him that. It was not suggested that obtaining recordings of the calls would reveal anything more about the conversations than the Appellant had already described, by his statement dated 12 September 2022.

72    The Authority also turned its mind to what the calls might reveal. It said (AD [16]):

Even assuming the recordings of these phone calls (which would likely be in Tamil) evidence the applicant’s mother telling him of CID visits and becoming emotional as claimed, this would not necessarily demonstrate that the visits took place, or that they were for the reasons the applicant claims.

73    For these reasons, I do not consider that, in failing to obtain (by FOI request) the recordings of the telephone calls between the Appellant and his mother on two or three occasions, the dates of which were not specified, while he was in prison, the Authority constructively failed to exercise its jurisdiction.

74    As to the request that the Authority interview the Appellant’s mother, the Minister properly conceded that it was possible that, if interviewed, the mother “might have said something which might have supported the appellant’s version of events, that the CID were looking for him”. However, the Minister went on to submit that:

But both in this context [ie ground one] and in the context of the unreasonableness ground, in my submission, that’s simply not enough to show that what the authority did contravened the limit on its powers, because otherwise we would be in a situation where any time there is material or a witness who might have information that might corroborate a referred applicant’s claims, then the authority must exercise its powers to interview that person or try and get that material.

75    In my view, the Minister’s submissions must be accepted. As set out above, it is well established that it is for an applicant to advance whatever evidence or argument they wish to advance in support of their contention that they have a well-founded fear of persecution.

76    In the present case, if the Appellant wished for the Authority to consider information that his mother could provide regarding the CID’s interest in him and that went beyond the information he was able to provide, he had the opportunity to put such information before the Authority, much as he provided a statement from his sister for consideration by the Authority. In the course of argument, it was suggested that the issue was that the Appellant was in immigration detention and that his mother, unlike his sister, was not “tech savvy” and that there would have been problems translating a statement into English. Whatever might be said of the merits of these points, they were not put before the Authority. It was not suggested by the Appellant that he wanted to provide a statement from his mother, but was experiencing difficulty in doing so.

77    While matters of this kind are more immediately relevant to ground two, they also bear on whether, in the context of Pt 7AA and the general position that it is for an applicant to put forward the information he or she wishes the Authority to consider, I do not consider that the failure to interview the Appellant’s mother and to do so through an interpreter constitutes a failure to make an “obvious inquiry about a critical fact, the existence of which is easily ascertained”.

78    It was possible that the Appellant’s mother may have provided some supporting information, but it was also possible that whatever information she had may not shed light on the CID’s reasons for visiting. The Authority noted that it had interviewed the Appellant regarding the information it had invited him to provide, which extended to information about the CID visits. The Authority said (AD [16]) that the Appellant “has not indicated any other specific additional information his mother or he may be able to provide beyond what has already been given”. In the absence of any indication that the Appellant’s mother could add material further information, and in circumstances where the Appellant could have, but did not, submit a statement from his mother, I do not consider that the Authority’s decision not to interview the Appellant’s mother constituted a constructive failure to conduct a review of the delegate’s decision.

Ground two

79    Ground two proceeds on orthodox legal grounds. The power in s 473DC(1) of the Act is conferred on the implied condition that it must be considered and, where appropriate, exercised within the bounds of reasonableness: ABT17 at [3] (Kiefel CJ, Bell, Gageler and Keane JJ). In explaining when, if at all, compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of the Authority’s powers to get and consider new information would compel the Authority to invite a referred applicant to an interview, the plurality said (at [19]):

The answer is to be found in recognising that “[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made” such that “[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course”.

(Emphasis added, citations omitted.)

80    As may be seen, examining whether the Authority failed to adhere to the implied condition of reasonableness involves considering whether the course taken by the Authority was so devoid of plausible justification that no reasonable person could have proceeded as the Authority did.

81    While the power conferred by s 473DC(1) must be exercised within the bounds of reasonableness, what is reasonable is informed by the nature of the statutory scheme set out in Pt 7AA of the Act. As set out above, while the Authority’s power to obtain and receive new information is preserved, it can only proceed to consider new information in exceptional circumstances. It is clear from the scheme of Pt 7AA that the fast track review is a form of limited review that is, absent circumstances warranting the receipt or obtaining of new information, to be conducted on the material received from the Secretary. Section 473DC(2) expressly provides that the Authority does not have a “duty” to get, request or accept any new information.

82    In ABT17, the plurality stated (at [20]) that compliance with the implied condition of reasonableness necessitates that the decision to which the Authority comes on review have an “intelligible justification” and “also that the Authority comes to that decision through an intelligible decision-making process”.

83    In this case, the explanations given by the Authority for its decision not to seek to obtain the telephone call recordings were intelligible and not so devoid of plausible justification as to be a decision that no reasonable person could have made.

84    As set out above, and as the Authority explained:

(a)    it had no powers to compel production of documents;

(b)    the Appellant had been given an opportunity to say anything further he wanted to about the CID visits during the interview;

(c)    the Authority had offered the Appellant the chance to submit further information before, at and after the interview, including in respect of the CID visits;

(d)    the call recordings would likely be in Tamil; and

(e)    even if obtained, the recordings would only reveal the Appellant’s mother telling him about CID visits and becoming emotional, which would not demonstrate that the visits actually took place or that they were for the reasons claimed by the Appellant.

85    In those circumstances, I do not consider that the Authority’s decision not to try to obtain the recordings of the calls was legally unreasonable. Contrary to the Appellant’s submissions, the Authority did not engage in reasoning that was “irrational or illogical, being arbitrary or capricious, or lacking an evident and intelligible justification”. It did not “shut its mind” to the possibility that the recordings could provide contemporaneous and objective corroborating evidence of the CID visits and the reasons for them, as the Appellant submitted. The Appellant was party to those calls and able to relay their content to the Authority. It was not suggested that the recordings would reveal more than the Appellant had relayed.

86    Nor was the decision not to interview the Appellant’s mother one so devoid of plausible justification as to be a decision that no reasonable person could have made. On the contrary, the Authority set out an intelligible justification for not seeking to interview the Appellant’s mother. The reasons that the Authority gave were as follows (AD [16]):

(a)    the Authority had already given the Appellant the opportunity to say anything further he wished to say about the CID visits;

(b)    the Appellant was given the opportunity before, at and after, the interview to submit any new information about his claims, including the CID visits; and

(c)    the Appellant had not indicated any other specific additional information his mother may be able to provide beyond what had already been given.

87    The Appellant criticised the Authority’s reasoning on the basis that it assumed away matters that could have been established by the mother regarding the reasons for the CID’s visits, without actually having obtained that information. That criticism is not well founded. Of course the Authority could not know what the mother would, or would not, say if it interviewed her. The point the Authority was making was that there was nothing before it to suggest that the mother would have further information, beyond what had already been provided about the CID’s visits.

88    In the context of a quick, limited review, usually undertaken on the papers, and in circumstances where the Appellant had had (and availed himself of) an opportunity to submit further information, and where it is not incumbent on the Authority to seek to make an applicant’s case for him or her by pursuing sources of information that might help support an element of the applicant’s claims, the Authority did not act unreasonably in the requisite sense by determining not to interview the Appellant’s mother. As the Minister submitted, the Appellant’s submissions on this ground invite the Court to accept that, where there is a possibility that further information could be provided, it is legally unreasonable for the Authority not to exercise its power under s 473DC(1) to obtain that information. That is not the Authority’s task.

Associate:

Dated:    14 June 2024