Federal Court of Australia

EBP19 v Minister for Immigration and Multicultural Affairs [2025] FCA 262

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The orders of the Federal Circuit and Family Court of Australia made 10 June 2022 are set aside.

3.    A writ of certiorari issue quashing the affirmation by the Immigration Assessment Authority on 31 May 2021 of the decision of the Minister’s delegate to refuse the appellants’ applications for Safe Haven Enterprise visas.

4.    The matter be remitted to the Administrative Review Tribunal for reconsideration according to law.

5.    The first respondent is to pay the appellants’ costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the Federal Circuit and Family Court of Australia.

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

REASONS FOR JUDGMENT

O’SULLIVAN J:

1    This appeal concerns the application of s 473DD of the Migration Act 1958 (Cth).

2    The first appellant, EBP19, is a citizen of Sri Lanka who arrived in Australia on 3 August 2013 as an unauthorised maritime arrival. He was accompanied by his wife (the second appellant, EBS19) and two children (the third and fourth appellants, EBT19 and EBR19 respectively). In 2015, the first and second appellants’ third child (the fifth appellant, EBU19) was born in Australia (together the appellants).

3    On 11 November 2016, the appellants applied (applications) for a Safe Haven Enterprise visa subclass XE-790 under the Act (SHEV). On 28 February 2017, the applications were refused by a delegate of the first respondent.

4    The appellants’ applications were dealt with as part of the “fast track” provisions under Part 7AA of the Act such that the delegate’s decision was referred to the second respondent, the Immigration Assessment Authority for review: ss 473CA and 473CC of the Act.

5    On 4 April 2017, the Authority affirmed the decision of the delegate.

6    On 14 March 2019, that decision was set aside by the Full Court which remitted the appellants’ visa applications to the Authority for reconsideration: BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44.

7    On 16 September 2019, the Authority once again affirmed the delegate’s refusal of the appellants’ visa applications.

8    On 8 April 2021, that decision was also set aside by this Court and remitted to the Authority for reconsideration: EBP19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 332 (White J) (EBP19 No 1).

9    On 21 May 2021, the Authority again affirmed the refusal of the visa applications (Decision).

10    The appellant sought judicial review of the Decision before the Federal Circuit Court and Family Court of Australia which dismissed the application for judicial review on 10 June 2022.

11    It is from that dismissal that the appellants now appeal.

Grounds of appeal

12    Although the notice of appeal sets out two grounds, ground two is not pressed such that there is a single ground which contends that the primary judge erred in failing to find jurisdictional error on the part of the Authority in failing to apply the correct test for considering “new information” pursuant to s 473DD of the Act, including by:

(a)    Finding at [20] that the second respondent had “implicitly” accepted that the information in question “may have affected the consideration of the referred applicant’s claims” (sic) and was “information not previously known by either the Minister or the applicant”.

(b)    Finding at [22] that the Tribunal did (or did not have to) apply the ‘two stage process’ stated by Bromberg J in CSR16 v Minister for immigration and Border Protection [2018] FCA 474.

Issues

13    There are three issues arising on appeal:

(a)    Was the primary judge correct to find the Authority had implicitly accepted the matters identified?

(b)    Was the primary judge correct in finding that the Authority applied the criteria in s 473DD correctly?

(c)    If no, to either (a) or (b), was the error material?

14    It is for the reasons which follow that:

(a)    the primary judge erred in finding that the Authority applied the criteria in s 437DD correctly; and

(b)    the error was material; such that the primary judge’s error was jurisdictional.

Principles

15    Section 473DD provides:

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.

16    This section has been the subject of judicial consideration on a number of occasions.

17    In CSR16 [41]-[43] (Bromberg J) observed:

41.    In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.

42.    The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.

43    The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).

18    CSR16 was cited with apparent approval by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW 17 [2020] FCA FC 159; (2020) 294 FCR 150 at [75] (Mortimer J as her Honour then was and Jackson J).

19    In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 254 CLR 217 at [33]-[34] (Gageler J (as his Honour then was), Keane and Nettle JJ) said:

33.    The circumstance of which the Authority needs to be satisfied in order to meet s 473DD(b)(ii) does require some explication. … The Full Court of the Federal Court has correctly recognised that the identified purpose is best achieved by reading the reference to personal information which was not previously known as encompassing personal information which, although previously known to the referred applicant, was not previously known to the Minister.

34.    Accordingly, all that the Authority needs to be satisfied of in order to meet the precondition to its consideration of new information given, or proposed to be given, by the referred applicant set out in s 473DD(b)(ii) is that: (1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.

(Citations omitted)

20    In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; (2020) 269 CLR 494 at [10]-[11] (Kiefel CJ, Gageler, Keane and Gordon JJ) identified a number of propositions in relation to s 473DD which were summarised helpfully by White J in EBP19 (No 1) in the following terms: at [17]

…

(a)    having regard to its place in the Pt 7AA regime, s 473DD obliges the IAA to assess the new information which it has physically obtained against the criteria in subparas (a) and (b), at [6];

(b)    if satisfied that those criteria have been met, the IAA must take the new information into account in making its decision on the review, assigning the new information such probative weight as it thinks the new information deserves in its assessment of the probability of the existence of some fact about which it actually makes a finding, at [4]. Conversely, if the s 473DD criteria have not been met, the IAA cannot take the new information into account in making its decision, at [6];

(c)    the IAA must first assess new information obtained from a referred applicant against each of the subpara (b) criteria, and only then against the subpara (a) criterion of exceptional circumstances, at [11];

(d)    the IAA’s satisfaction of either of the subpara (b) criteria is a circumstance which must be factored into the assessment of the existence of exceptional circumstances for the purposes of subpara (a), at [11]-[12]; and

(e)    a determination by the IAA of the subpara (a) criterion before it has assessed the new information against the subpara (b) criteria is jurisdictional error, constituted by the failure to take account of a mandatory relevant consideration in the application of the subpara (a) criterion, at [12].

21    White J continued in relation to the considerations required in s 473DD(b)(i) and (ii) by observing: at [19(e)] that whereas s 473DD(b)(i) requires a factual enquiry as to whether or not the new information could have been presented to the Minister, (b)(ii) requires an evaluation of the significance of the new information in the context of the applicant’s claims generally (citing Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176, (2017) 257 FCR 111 at [105].

The primary judge’s reasons

22    The primary judge commenced by setting out the appellants’ claims which had been summarised by the Full Court in BYA17 at [7]. I do not repeat it.

23    Before the Authority, the appellants sought to rely on new information.

24    The Authority accepted some new information but did not consider other new information, (which is the subject of this appeal) and which the Authority dealt with at [10] of its Decision.

25    The primary judge set out [10] of the Decision at Reasons [16]. It is necessary to set it out again:

The applicants provided new information that in 2016 applicant 1’s mother and brother were visited by a group of people looking for the applicant. The applicants further state: the group was armed but were not Sri Lankan officials; they interrogated the family about applicant 1’s whereabouts and they told them he was in Australia; the family reported the incident to the police but the police refused to give them a copy of the report; and applicant 1’s mother had not told him about this earlier because she did not want to worry him. The applicants say they could not have provided this information to the delegate before the decision was made because the delegate had not notified them of the issues with the evidence and applicant 1 did not know he should contact his mother to obtain new information. I have some concerns about this explanation as I consider that if the mother and brother thought the visits (sic) by the group of men was serious enough to go to the police about it [it] is unlikely they never mentioned this to applicants 1 or 2. Also, given applicant 1’s claims are to fear revenge from drug smugglers, I do not accept he would not ask his family in Sri Lanka for news on such matters when he spoke with them, particularly around the time he was gathering information to lodge his SHEV application or preparing for his SHEV interview. For the following reasons I also have concerns about the credibility of this information. The information is vague and without detail of exactly when this incident happened beyond being sometime in 2016. If the mother and brother could make a report to the police, I do not accept they could not provide more detail to the applicants, even if they couldn’t send a copy of the police report. As referred to earlier, I do not accept applicant 1’s mother and brother would not have told the applicants about the incident if it was serious enough that they would go to the police about it. It is also not credible the alleged group would not already know he was in Australia if they maintained an adverse interest in him. For these reasons I am not satisfied the information is credible personal information that may have affected the consideration of the claims. Even if I am wrong regarding s. 473DD(b), given my concerns about the credibility and vagueness of the new information, the failure to mention it in the SHEV application or at the SHEV interview, and the lack of satisfactory explanation for not providing it earlier, I am not satisfied there are exceptional circumstances to justify considering this new information.

26    The primary judge noted: Reasons [17], that the appellants had submitted that the Authority had erred in principle in two respects:

(a)    First, the Authority had not carried out an evaluation of the significance of the new information in the context of the [appellants] claims more generally, contrary to the judgment of White J in EPB19 (No 1); and

(b)    Second, the Authority had failed to comply with the two-stage process described in CSR16.

27    As to the first, the primary judge found: Reasons [20], that whilst [10] of the Decision did not contain an evaluation of the appellants’ claims “more generally”, nonetheless in that passage the Authority focused on whether the new information was credible (the first element identified by the High Court in Plaintiff M174/2016 at [34]) but implicitly accepted that the second and third elements identified by the High Court were present.

28    As to the second, the primary judge: Reasons [21]-[22], found that although the Authority did not expressly refer to the two-stage process, there was no requirement for it to do so and whether the Authority had complied with the statutory requirements is to be determined as a matter of substance. In particular, the primary judge did not accept the appellants’ submission that the Authority did not assess the credibility of the new information but “instead moved to a different and final analysis”.

29    The primary judge continued:

… The Authority said it had “concerns about the credibility of this information”. The Authority then listed four characteristics of the information relevant to its credibility, that is, to whether it was capable of belief:

(1)    it was vague and without detail about when the incident happened, beyond that it was in 2016;

(2)    there was an implausible lack of other detail given that the mother and brother were said to have made a report to the police;

(3)    it was implausible that the mother and brother would not have told the applicants about the incident if it was serious enough that they would go to the police about it; and

(4)    it was implausible that the alleged group would not already know the applicant was in Australia if they maintained an adverse interest in him.

The Authority assessed, using appropriate language, matters going to the plausibility and internal consistency of the new information, that is, to its credibility. If it was not satisfied that the new information was credible it was not required to move on to the second, deliberative stage. I am not persuaded that the Authority failed to properly perform its statutory task. This ground is not made out.

The parties’ submissions and consideration

30    The appellants engaged in a detailed analysis of [10] of the Decision highlighting a number of sentences within the passage.

31    The Minister submits that the Authority’s reasons must be read fairly and not in an unduly critical manner nor should they be construed with an eye keenly attuned to finding error. Further, the Authority’s reasons must be read in light of the content of the statutory obligation pursuant to which it was prepared: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (2019) 268 CLR 29, [38]. Still further, a court should not be concerned with “looseness in the language” or “unhappy phrasing”: FGI18 v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 57 at [27] (O’Callaghan J).

32    As to this last point, the Minister submits that the Authority is not obliged to articulate its reasoning in a comprehensive way or in any great detail and that it is “difficult to draw an inference that a decision has been attended by an error of law from what has not been said”: BVD 17 at [39]-[44].

33    I accept the Minister’s submissions, however I do not consider that the appellants’ approach was one keenly attuned to finding error. The analysis embarked upon by the appellants in this matter necessarily focused upon the approach taken by the Authority in its reasons read in light of the content of the Authority’s statutory obligations. Such an exercise was necessary so as to gain an understanding of the approach taken by the Authority.

34    I deal first with the appellant’s submissions that the Authority failed to adopt the two-stage process identified in CSR16.

35    The appellants submit that in considering whether the new information was credible personal information, the primary judge erred in not finding that the Authority failed to apply the appropriate standard of satisfaction. The appellants point to the primary judge’s extraction from Decision [10], the Authority’s identification of four characteristics of information relevant to its credibility and whether it was capable of belief.

36    The appellants also referred to the Authority expressing its “concerns” about the credibility of the new information.

37    The appellants submit that the requirement in s 473DD(b)(ii) that the new information be “credible” is a filtering mechanism and has a relatively low bar and that mere doubts about its reliability will not suffice as a basis for not being satisfied as to credibility.

38    They submit that by the Authority expressing its view that, “For the following reasons I also have concerns about the credibility of this information” as a basis for it to find it was “not satisfied the information is credible personal information” arose from it applying a higher standard of satisfaction than that which was required at an anterior stage.

39    The Minister submits that the appellants’ focus on the word “concerns” in the context of s 473DD seeks to read the Authority’s reasons in an unduly critical manner and focuses on a single word in the Authority’s statement of reasons. The Minister refers to the four characteristics identified by the primary judge arising out of Decision [10], as revealing information that supported the Authority’s conclusion based on the plausibility and consistency of the information and the lack of detail within it. On that basis, the Minister submits that the Authority went beyond mere “concerns”.

40    The Minister submits that the expression of doubt by the Authority that information was sufficient for s 473DD(b)(ii) and did not reveal error: FGI18 at [26]-[28].

41    As to the appellants’ submission that the Authority applied the wrong standard of satisfaction, a consideration of [10] of Decision and of the four characteristics identified by the primary judge as arising out that paragraph, reveals clearly the Authority engaged in a deliberative assessment of the new information under the auspices of “credibility”. In doing so, it considered the truthfulness or otherwise of the new information before determining it was not satisfied the information is “credible personal information”. It reached that state of satisfaction by imposing a higher standard of satisfaction than the criteria requires: CSR16 at [43].

42    Further, whereas I accept the Minister’s submissions that reasons are “not to be construed minutely and finely with an eye keenly attuned to the perception of error”, the reference by the Authority to having “concerns” goes beyond that. In BTK19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 658 at [65], Perry J observed that the authorities dealing with s 473DD(b)(ii) establish that when considering whether the information in question has a character “capable of being believed”, “mere doubts or concerns about the veracity of the new information alone will not suffice”. In that context, her Honour was observing that such doubts or concerns were not a basis for determining that the information is not capable of being believed.

43    Further, it is not simply the use of “concerns” as a single word, it is the use of the word in the overall context of the paragraph. In the context of the entire paragraph, those concerns were not a basis for determining that the information would not be capable of being believed.

44    The primary judge found: Reasons [22], that “The Authority assessed, using appropriate language, matters going to the plausibility and internal consistency of the new information, that is, to its credibility”.

45    With respect to the primary judge, it is not so much a question of language but rather a question of the substance of what exercise the Authority engaged in.

46    That said, whereas I accept there is a fine line between the consideration of whether information is credible as opposed to whether it is truthful and that each case will depend on its own particular circumstances, nonetheless such a line exists.

47    It is for these reasons that I accept the appellants’ submission that the Authority engaged in a deliberative exercise and that the primary judge erred in not finding that to have been the case.

48    The application of a higher standard of satisfaction than that required by s 473DD(b)(ii) is a jurisdictional error.

49    On the issue of materiality, the Minister submits that the reference in s 473DD(b)(ii) to the information “may have affected the consideration of the referred applicant’s claims” has the practical effect that the information would have been considered against the whole of the material before the Authority. The Minister submits that under the circumstances, it is difficult to see how the Authority could realistically have come to a different decision had it taken the new information into account.

50    The appellants submit that the difficulty of that submission proceeds on a flawed basis because it is not clear how the information would fit with the rest of the information before the Authority.

51    I accept that submission. It cannot be said that the information would not have resulted in a different decision had it been taken into account.

52    It is for these reasons that the primary judge erred in not finding the Authority engaged in jurisdictional error.

53    That is sufficient to determine this matter, however I also deal with the second matter raised by the appellant which is that the Authority did not engage in the tripartite assessment required for s 473DD(b)(ii) as explained by the High Court in Plaintiff M174/2016. In particular, the Authority did not assess the second and third elements in that provision as identified by the High Court, i.e. whether the information was not previously known by either the Minister or the referred applicant and whether it may have the affected the consideration of the referred applicant’s claims.

54    Insofar as the primary judge found that it appeared from the Authority’s silence that it implicitly accepted the second and third elements were present, the appellants submit that read as a whole, the Authority’s reasons reveal the Authority did not consider anything beyond the first element in s 473DD(b)(ii), i.e. the issue of credibility.

55    When read as a whole, there are parts of the Decision dealing with new information where the Authority embarked upon the required tripartite exercise, such that the Authority was satisfied that exceptional circumstances existed to justify considering the new information: see for example Decision [9].

56    At Decision [13], the Authority proceeded on the basis of being satisfied that the requirements in s 473DD(b)(i) were met.

57    At Decision [11] and [12], the Authority engaged in the tripartite exercise but did not consider that the new information the subject of these paragraphs (news reports and “reports” respectively) comprised credible personal information that may have affected the consideration of the appellants’ claims but were more akin to country information regarding violence in Sri Lanka against persons in custody and so determined there were no exceptional circumstances.

58    Decision [10], when read as a whole, reveals the Authority first considered s 473DD(b)(i) as to whether the new information was not and could not have been provided to the Minister before the Minister made a decision under s 65 of the Act, determining it had “concerns” about whether the new information was not previously known.

59    Next, the Authority turned its attention to s 473DD(b)(ii) and considered whether the new information was credible personal information, thereby addressing the first element in that provision. Since the authority was not satisfied as to the first element, it did not engage with the second or third elements, that is: whether the credible personal information was not previously known, and had it been known, may have affected the consideration of the referred applicant claims.

60    The primary judge found: Reasons [20], that it appeared from the Authority’s silence that it implicitly accepted that the second and third elements (in s 473DD(b)(ii)) were present.

61    With respect to the primary judge, however the Authority’s silence does not indicate that the Authority implicitly accepted the second and third elements of the provision since I do not consider any inference can be drawn in the particular circumstances of this matter.

62    Rather, it seems that the Authority did not engage with the second and third elements in s 473DD(b)(ii), because of its finding there was no credible personal information. Under those circumstances it was not necessary to embark on the process and there is no need for the Authority to engage in any particular formulaic consideration of s 473DD(b): APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 23, [79] (Markovic J).

63    However, since I have found the primary judge erred in concluding the Authority applied the correct standard of satisfaction in relation to the credibility element, this ground also succeeds and the Authority erred in not assessing the second and third elements. That amounted to jurisdictional error and the primary judge erred in not finding jurisdictional error on this point.

Conclusion

64    It is for these reasons that the appeal should be allowed. The orders of the Court are:

(1)    The appeal is allowed.

(2)    The orders of the Federal Circuit and Family Court of Australia made 10 June 2022 are set aside.

(3)    A writ of certiorari issue quashing the affirmation by the Immigration Assessment Authority on 31 May 2021 of the decision of the Minister’s delegate to refuse the appellants’ applications for Safe Haven Enterprise visas.

(4)    The matter be remitted to the Administrative Review Tribunal for reconsideration according to law.

(5)    The first respondent is to pay the appellants’ costs of and incidental to the appeal to this Court and of and incidental to the judicial review proceedings in the Federal Circuit and Family Court of Australia.

Associate:

Dated:    27 March 2025

SCHEDULE OF PARTIES