This is an appeal from the orders of a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing an amended application for judicial review of a decision of the second respondent (Authority) affirming a decision of a delegate of the first respondent (Minister) refusing to grant the appellant a Safe Haven Enterprise (Class XE) (Subclass 790) visa. The appeal raises three principal issues concerning whether the Authority was not 'satisfied' that certain 'new information' was not 'credible personal information 'in the exercise of a procedural power under s 473DD of the Migration Act 1958 (Cth) according to law and, thereby, made an unauthorised decision in the exercise of its substantive power of review under Pt 7AA of the Act.
The appellant is a citizen of Sri Lanka. On 8 November 2012 he arrived in Australia without a visa making him an unauthorised maritime arrival within the meaning of s 5AA of the Act. On 28 September 2017 he lodged an application for the grant of the visa. The relevant 'new information' was a blurred photograph of a man in military uniform that the appellant claimed depicted him in the uniform of the Liberation Tigers of Tamil Eelam (LTTE). The photograph was of significance to the appellant's claim that he feared persecution should he return to Sri Lanka on grounds that included that he was targeted by Sri Lankan authorities and the Tamil Makkal Viduthalai Pulikal (TMVP) due to his involvement in the past with the LTTE, a separatist organisation based in Northeast Sri Lanka, and that, amongst other things, he had carried weapons for the LTTE. The Authority said it was not satisfied that the photograph is that of the appellant as claimed and that the requirements of s 473DD were not met. Therefore, the photograph was excluded from the materials the Authority considered in the exercise of its substantive review power.
The first issue is whether the Authority applied the wrong test when considering if the photograph was 'credible personal information'. The appellant contends that rather than considering whether the photograph that allegedly depicted the appellant was capable of being believed, the Authority considered if it was satisfied that in truth it was a photograph of the appellant. That is, the Authority was not satisfied that it was a genuine or actual photograph depicting the appellant. The appellant contends that was an erroneous application of s 473DD(b)(ii). The second issue is whether, assuming that the Authority concluded that the claim that the photograph the appellant claims depicted the appellant was not capable of being believed, that conclusion, on the material before the Tribunal, was legally unreasonable. There are a number of elements to that contention. In substance, the appellant contends that conclusion is legally unreasonable because the Authority only had regard to factors that tended to support its conclusion and failed to have regard to factors that supported the credibility of the claim including, importantly, a statement of the appellant to the effect that the photograph depicted him which the Authority had otherwise accepted was a credible statement and 'new information' which it was required to consider in the exercise of its review power. The appellant contends that the Authority's conclusion, in those circumstances, is unreasonable, illogical, irrational or otherwise lacking an evident and intelligible justification resulting in an erroneous application of s 473DD(b)(ii).
The last issue concerns the materiality of the asserted errors. The appellant contends the errors were material and jurisdictional because absent error the procedural decision that the photograph was not credible personal information could realistically have been different requiring the photograph to have been considered in the exercise of the substantive power of review. Further, if the photograph had been considered in the substantive review, the outcome of that review could also realistically have been different because the photograph depicts a person in military uniform which supported his claim to have been a member of the LTTE. The respondent contends that, as the Authority was not satisfied that the photograph was 'credible' or depicted the appellant and there were not exceptional circumstances, the outcome of the substantive review could not realistically have been different. It is not realistic that the Authority could have been satisfied of the criteria in s 473DD or, if so, that it could have concluded that the photograph depicted the appellant in its consideration of the photograph in the substantive review.
For the reasons that follow, the Authority made the errors the appellant asserts and those errors were material in that, if they had not been made, the outcome of the substantive review could realistically have been different. Therefore, the primary judge was in error and his orders and judgment should be set aside and in lieu thereof orders should be made setting aside the Authority's decision and remitting the matter to the Authority for determination according to law. I will hear the parties on the question of costs.
[2]
Legislative Framework
Division 3 of Pt 2 of the Act confers power on the Minister to grant a non-citizen a visa that permits the visa holder to do either or both of travelling to and entering Australia, or remaining in Australia. The Act prescribes a number of different classes of visa, including, in s 35A, a class of visa known as a protection visa. Section 35A provides for a number of different categories of protection visas including, in s 35A(3B), a class known as Safe Haven Enterprise visas.
A person may apply for a protection visa under s 36 of the Act. Section 36 and Sch 2 to the Migration Regulations 1994 (Cth) set out the criteria that an applicant for a protection visa must meet. An applicant for a visa must meet, amongst other things, one of the criteria set out in ss 36(2)(a), 36(2)(aa), 36(2)(b) or 36(2)(c). That is, he or she is either a person in respect of whom Australia has protection obligations under the refugee criterion, or on other complementary protection grounds, or is a member of the same family unit as such a person and that person holds protection visa of the same class. If satisfied of all the relevant criteria for the grant of a visa, the Minister is to grant the visa under s 65 of the Act. The Minister's power to grant a visa under ss 29, 36 and 65 of the Act may be (and usually is) exercised by a delegate of the Minister under s 496 of the Act.
Subdivision AB of Div 3 of Pt 2 of the Act contains provisions setting out a code of procedure for dealing fairly, efficiently and quickly with visa applications. Section 51A provides that Subdiv AB is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. The code of procedure makes provision for communicating with the Minister and providing information to the Minister. The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all the information in the application: s 54. That includes information the applicant gives to the Minister until the Minister has made a decision: s 55. The Minister may 'get in' information, but if he or she does, he or she must have regard to that information: s 56. The Minister must give an applicant particulars of certain adverse information: s 57. Sections 58 to 64 deal with the mechanics of the provision of information an applicant is invited to give or comment on, medical examinations, periods within which steps are to be taken, the making of decisions if information or comment is not given within time, the time for making decisions and visa application fees.
As already mentioned, where the Minister makes a decision under s 65 to refuse to grant a visa, Pt 7AA of the Act provides an automatic, but limited, form of review of certain 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. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions. Fast track reviewable decisions made in relation to some applicants are excluded from the fast track review process. These applicants are known as excluded fast track review applicants. Fast track review applicants and excluded fast track review applicants are collectively known as fast track applicants: see, ss 473BA, 473BB, 5(1) of the Act.
The Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made: s 473CA. A person cannot make an application for review directly to the Authority.
The Secretary of the Department of Home Affairs is required to give certain review material to the Authority in respect of each fast track reviewable decision referred to the Authority: s 473CB. The review material must include material provided by the referred applicant to the person making the decision before the decision was made (that is, material given to the Minister or delegate in accordance with the visa application code of procedure): s 473CB(1)(b). The review material must also include any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review: s 473CB(1)(c). The Authority must review a fast track reviewable decision referred to it and may affirm a referred decision or may remit the decision for reconsideration in accordance with directions: s 473CC.
Subject to Pt 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material without accepting or requesting new information and without interviewing the referred applicant. The Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority: s 473DB(2).
The Authority, in carrying out its functions under the Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Div 3 (conduct of review). The Authority, in reviewing a decision, is not bound by technicalities, legal forms or rules of evidence: s 473FA(2). The President (of the Authority) may issue directions as to the operation of the Authority and the conduct of reviews by the Authority: s 473FB. At the relevant time, the President had made a practice direction relating to Pt 7AA reviews indicating that a referred applicant was able to make submissions and request that the Authority consider new information.
Division 3 of Pt 7AA is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority. Nothing in Pt 7AA requires the Authority to give a referred applicant any material that was before the Minister when the Minister made the decision under s 65: s 473DA.
While the Authority is not required to give the referred applicant any material that was before the Minister, the referred applicant should know what material he or she provided to the Minister or delegate in accordance with the visa application code of procedure and should have been given notice of the decision to refuse to grant the visa and written reasons together with a statement that it has been referred for review under Pt 7AA: s 66(1). The applicant should also have received notice and an invitation to comment on adverse material that was before the Minister: s 57. Therefore, the applicant should be in a position, in accordance with the practice direction made under s 473FB, to make submissions to the Authority based on that material.
The applicant should also be in a position to request the Authority to 'get in' new information in accordance with s 473DC and consider it in accordance with s 473DD. If the requirements of s 473DD are met, the Authority is to consider the new information in the review carried out under s 473DB. Therefore, ss 473DC and 473DD provide a limited exception to the requirement that the Authority must review the delegate's decision by considering the material provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant.
[3]
The Authority's decision
On 16 May 2018 a delegate of the Minister refused to grant the appellant a visa. That decision was referred to the Authority for review in accordance with the provisions of Pt 7AA of the Act. On 16 November 2018 the Authority affirmed the delegate's decision. The appellant applied to the Federal Circuit Court of Australia, as that court was then known, for judicial review of the Authority's decision. On 27 January 2022 a judge of the Federal Circuit Court made orders dismissing the application for review. On 21 October 2022 an appeal to this Court from that order was upheld and the matter was remitted to the Authority for determination according to law. On 16 February 2023, on remitter, the Authority affirmed the delegate's decision not to grant the appellant a visa.
As already mentioned, on remitter, the Authority affirmed the delegate's decision to refuse to grant the appellant a visa. The Authority made a written statement setting out its decision on the review and the reasons for its decision in accordance with s 473E(1) of the Act (AR).
The appellant's claims about his involvement with the LTTE changed over time: AR [52], [80]. After his initial SHEV interview the appellant made additional claims and elaborated on existing claims in a manner that represented a major shift in his claims about the seriousness of his involvement with the LTTE.
The appellant submitted 'new information' to the Authority before the first review and further 'new information' before the second review and requested the Authority to consider that information in its review. Certain statements of the appellant and others were among the 'new information'. The facts stated in these documents changed the nature of the appellant's claims about his involvement with the LTTE in significant respects. These included that he was more heavily involved in that organisation than he had stated in his original interview and the new allegations included that he had carried weapons, was a driver for pistol gangs who were involved in arresting and killing members of a faction, and was involved in forcible recruitment of others as members of the LTTE.
The Authority considered the statements as 'new information' and was satisfied that these met the requirements of s 473DD: AR [12]-[13], [20]. The Authority also considered and was satisfied that photographs of scars relating to injuries the appellant claimed he had suffered as a result of torture by authorities in Sri Lanka met the requirements of s 473DD: AR [21].
Amongst the 'new information' the appellant submitted to the Authority were emails dated 3 July 2022 sent by the appellant's legal representative to an email address of the Department of Home Affairs attaching a photograph of a man in a military uniform and a mobile telephone screenshot of an email with the same photograph dated 31 May 2022. The email attaching the photograph included a statement by the appellant's legal representative to the effect that the appellant 'puts the Minister on notice that he recently received this photograph of him in LTTE uniform sent by his nephew'. The email attaching the screenshot included a statement, by the appellant's legal representatives, to the effect that the appellant's mobile telephone had frozen and been reset and, as a consequence, he was not able to provide the screenshot of when the appellant received the photograph from his nephew. However, the appellant said that as soon as he had received it from his nephew he had forwarded it to the appellant's legal representative.
The significance of the photograph for the appellant's augmented claims is that it depicts a man in a camouflage military uniform wearing webbing or a vest with what appear to be full ammunition pouches. If it were accepted that the photograph depicts the appellant, it would support his claim to have carried weapons and, to some extent, of heavier or more serious involvement with the LTTE than he had originally claimed.
Amongst the 'new information' the appellant submitted to the Authority was a statutory declaration he made on 14 January 2023. That statement was one of the documents the Authority accepted met the requirements of s 473DD. In that statement the appellant said:
I initially said to the Australian government that I didn't agree to use weapons for the LTTE. I was frightened to tell about what I had been forced to do in Sri Lanka by the LTTE. I was frightened that I would be returned to Sri Lanka as a terrorist, and that I would be killed there. I said at the start to the LTTE that I did not want to use weapons and they basically told me ok but they had no intention of sticking to that.
…
When I came to Australia, many times the Karuna/TMVP went to my house looking for me and bashed my father. My mother was saying 'many times they come looking my house everywhere'. They sent letter to my family "you have to come". My family know that they want me to come and give information and then they will shoot me.
There were many letters but when my mother sent those documents to me they burnt all the documents. The photo of me in LTTE uniform was also destroyed for safety. I had so many photos but because when Government come and check my house if they see all that we'll be in big trouble so they burnt all those photographs. Because when they do the roundup it happens suddenly and if they see these photographs and documents its dangerous so nobody keeps those things with them. If they suspect people and take them to a particular place, nobody comes back.
…
The Authority addressed the photograph at AR [22] and said:
The photograph said to be of the [appellant] in LTTE uniform during the conflict appears to be a photograph/screenshot of a photo of a man in what is claimed to be the LTTE uniform. The photograph was not provided with the [appellant's] SHEV application alongside other documents provided in support of his claims nor provided to the delegate. It is claimed that the [appellant] received the photo from his nephew but is unable to confirm when he received the photo because his phone had to be reset. There is no notation of when the photograph was taken, and I cannot verify that the photo (which appears blurry) is that of the [appellant]. I also note the [appellant's] evidence in his statement dated 14 January 2023 which indicates that the [appellant's] photos in LTTE uniform were destroyed and burnt by his family due to government authorities visiting and searching their home. While it is possible that this refers to other photographs/documents or that the screenshot was taken some time ago, I am not satisfied that the photograph is that of the [appellant] as claimed. Given these matters, I am not satisfied that either limb of s.473DD(b) of the Act is met or that there are exceptional circumstances to justify its consideration.
[4]
The primary judge's decision
By ground 2 of the appellant's fourth amended originating application he sought orders, in effect, for writs of certiorari and mandamus to issue quashing the Authority's decision and requiring it to determine the review of the delegate's decision according to law for jurisdictional error in the following terms.
In finding that s.473DD was not met in relation to the photograph at CB343/345 [at IAA- 22] the Authority (a) failed to apply the correct tests, (b) applied the wrong test, (c) made unreasonable findings; and (d) failed to have regard to the new information "in the whole". [BVZ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1803 at 60]
There were 18 particulars (enumerated i-a to xv) set out under ground 2. These were lengthy and detailed and were set out in part as assertions of fact and in part as assertions of law.
Particular v addressed (a) and (b) of ground 2 and was as follows:
In finding that s.473DD(b)(i) was not met, [t]he Authority applied the wrong test in that it made a substantive assessment of whether it was satisfied that the claim that the photograph showed the [appellant] was true, rather than applying the correct test of whether the clam that photograph showed the [appellant] in LTTE uniform was capable of being believed [CB343, (and CB345), CB346, CB1403 paragraph 129]
BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24[; (2020) 273 FCR 170] at [55]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159[; (2020) 294 FCR 150]; CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41]-[42]
(Emphasis in original.)
The other particulars largely addressed (c) and (d) of ground 2. Broadly, these asserted that the Authority's conclusion that the relevant photograph was not 'credible personal information' was legally unreasonable by reason of alleged failings to intellectually engage with the appellant's submissions regarding the relevance of the photograph [particulars i-b, i-c]; failings to have regard to the new information as a whole or, in substance, employing an illogical, irrational and (or) unintelligible reasoning process [particulars i - iv, vi - xi, xiv and xv]. The other particulars also addressed materiality [particulars xii and xiii].
After setting out ground 2, in substance, the facts referred to at para [22] of these reasons and AR [22] (PJ [56]-[60]), the primary judge then addressed the substance of the appellant's contentions. The primary judge was of the view that it was open for the Authority to not be satisfied that the photograph was a photograph of the appellant because there was no evidence from the appellant that the photograph depicted him, para [129] of the statutory declaration does not identify the photograph and there was no explanation of how, when, or the circumstances in which it was taken, it is a blurry photograph unlike other clear photographs of the appellant in the materials before the Authority and the appellant had stated that all photographs and documents relating to him in the LTTE had been destroyed and burnt: PJ [62]-[66]. For similar reasons, the primary judge rejected the appellant's submission to the effect that for the 'new information' to be considered credible, all that was needed was that the information 'could be true' and that the credibility of the information, in that sense, had to be assessed in relation to the whole of the evidence including the appellant's claims of more heavy involvement with the LTTE: PJ [70]-[71]. The primary judge then concluded:
72 It cannot be said that the [Authority] did anything other than to apply the correct test as laid out in s. 473DD. The decision not to accept the photograph as new information cannot be said to be unreasonable, as it was clearly open for the [Authority] to conclude the issue as they did. The [Authority] did consider the new information "in the whole" by looking carefully at paragraph 129 of the [appellant's] new statement.
73 There has been no jurisdictional error illustrated by ground 2 and it, therefore, fails.
[5]
Ground of appeal
The appellant's notice of appeal contains four grounds of appeal. By the appellant's written submissions, he abandons grounds 1, 2 and 4 and seeks leave to amend ground 3 of the notice of appeal in terms of a draft amended notice of appeal attached to his submissions. The Minister has made no formal objection to the proposed amendments, but in his written submissions, notes that the proposed ground 'is confusing and not easily understood' and that he seeks to address what he understands is the substance of the proposed grounds; namely grounds 2 and 2A of the appellant's amended originating application for judicial review.
Subsequently, on 10 May 2024 and after the oral hearing of the appeal, the appellant filed an interlocutory application by which he formally applied for leave to amend his notice of appeal. The minute of proposed amended notice of appeal is consistent with the document attached to the appellant's written submissions except that it adds two additional proposed particulars to ground 3.
Without intending any disrespect, it is fair to say that the appellant's grounds of appeal, whether as articulated in the original notice or one of the proposed amendments, are unorthodox. Nonetheless, it emerged through the course of the appellant's oral submissions, that the substance of ground 3 of the notice of appeal is a contention that the primary judge erred in law in failing to conclude that the Authority's decision was vitiated by jurisdictional error by reason of the matters set out in ground 2 of the amended originating application. The proposed new particulars of ground 3 of the appeal, in part, take issue with the primary judge's reasons for concluding that the Authority had not made the jurisdictional error alleged and, in part, articulate alleged reasons that the Authority's decision was affected by jurisdictional error. None of the particulars is expressed in a form that precisely coincides with any of the particulars given to ground 2 of the originating application. The extent to which the particulars to the proposed amended ground of appeal are, in substance, the same, augment or are, in substance, new is virtually impossible to determine from the proposed notice of appeal and (or) the appellant's written and oral submissions. For these reasons, I do not consider it fair to permit the appellant to amend ground 3 of his notice of appeal in the terms proposed.
Nonetheless, I am prepared to grant the appellant leave to amend ground 3 of his notice of appeal, or to treat it as if it were amended, in the following terms:
The primary judge erred in failing to find jurisdictional error in the determination of the Authority to the effect that the LTTE uniform photograph at CB343, CB345, and information in the covering emails at CB342, CB344 and CB346 of 3 July 2022 was not 'a document' for the purposes of s 473DC which was credible personal information or that there were exceptional circumstances warranting its consideration.
Particulars
a. The Authority's reasoning and finding that the photograph claimed to be of the appellant in LTTE uniform at CB343 and CB345 was not credible personal information was not legally reasonable.
b. In requiring the appellant to satisfy the Authority at the anterior stage of the review that the photograph at CB343 and CB345 was of him as claimed, the Authority imposed a higher standard of satisfaction than the test imposed by s 473DD(b)(ii).
c. The appellant refers to and relies upon the matters set out in ground 2 of the appellant's originating application in the Federal Circuit and Family Court of Australia (Division 2).
The number and breadth of the particulars to ground 2 of the originating application provide the appellant with ample scope to raise most, if not all, of the matters addressed in his written and oral submissions in the appeal. Moreover, approaching the appeal in that manner would not result in any unfairness to the Minister as he has said in his written submissions that he has addressed the ground of appeal as if it were, in effect, restating ground 2 of the originating application. Particulars a. and b. are, in substance, the two additional particulars in the proposed amended notice of appeal filed 10 May 2024. Those particulars most closely reflect and align with the written and oral submissions the appellant made in the appeal and identify the real issues in the appeal. Particular c. 'picks up' the contention in ground 2 of the originating application.
[6]
Appellant's case in the appeal
The appellant's case in the appeal is founded on four main contentions.
The 'credible' element of the s 473DD(b)(ii) criteria required the Authority to be satisfied that the photograph of the man in the military uniform was capable of being accepted by the Authority as a truthful (or accurate or genuine) photograph of the appellant in LTTE uninform: CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 at [41] (Bromberg J), accepted as the correct construction of s 473DD(b)(ii) in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150 at [37], [56]-[62], [75]-[76] (Mortimer and Jackson JJ). However, the Authority concluded (at AR [22]) that it was 'not satisfied that the photograph is that of the [appellant] as claimed' and, thereby, applied the wrong test and determined whether the photograph was in fact a truthful, accurate or genuine photograph of the appellant in LTTE uninform.
The Authority was required to form (or not form) the state of satisfaction required by s 473DD(b)(ii) reasonably. The Authority's conclusion that the requirements of s 473DD(b)(ii) were not met with respect to the relevant photograph was legally unreasonable because the Authority employed a defective process of reasoning. There are a number of elements to that contention which are summarised in more detail below.
The Authority's conclusion that there were not exceptional circumstances to justify considering the photograph as 'new information' was legally unreasonable in circumstances in which it had accepted that the appellant's statutory declaration (including the statement in para [129]) met the requirements of s 473DD, including s 473DD(a) that the Authority was satisfied that there were exceptional circumstances to justify considering that statement. This aspect of the appellant's submission appears to be an extension of the preceding contention regarding unreasonableness.
The Authority's error was material because, if the Authority was satisfied that the photograph met the requirements of s 473DD, the outcome of the review could have been different. The appellant submits, as already mentioned, that the photograph was significant because it depicts a man in military uniform with webbing or a vest that is typically associated with carrying ammunition which lends support to the appellant's claim that he carried weapons which the Authority rejected: AR [80].
The first contention corresponds with ground 2, particular v, of the appellant's amended originating application. Broadly, the second contention falls within ground 2, particulars i-c, i, ii, iii, vi, vii, viii, ix, xiv and xv. The third contention corresponds with ground 2, particulars i-c, ii and, possibly, xi. The fourth contention corresponds with ground 2, particulars xii and xiii.
There are a number of elements to the appellant's contention regarding unreasonableness that require elaboration.
The primary judge was of the view that the appellant had not said that the photograph depicted him and there is no identification of the photograph referred to in para [129] of the appellant's statutory declaration: PJ [62]-[63]. The appellant submits that the primary judge's reasoning was erroneous because the statements of his legal representative in the emails of 3 July 2022 (referred to in para [22]) were not 'submission' (or perhaps more accurately not only submission), but included 'hearsay' statements of fact about the circumstances in which the photograph came into the appellant's possession.
The appellant submits that, by reason of the hearsay statements in those emails, there were statements of fact before the Authority to the effect that the photograph depicted the appellant in LTTE uniform and that the appellant received the photograph from his nephew in or about May 2022. That is, the appellant had not had in his possession the photograph at the time of his initial interview.
The appellant submits that the reference to: 'The photo of me in LTTE uniform was also destroyed for safety' in para [129] of his statutory declaration was plainly a reference to the photograph that had already been provided to the Authority as an attachment and screenshot to the emails. Further, it is obvious that para [129] is providing an explanation for the absence of other photographs and the original of the photograph he claimed to be of himself.
The primary judge's observation that how, when and what circumstances the photograph was taken are not explained in the emails or the statutory declaration is correct. Nonetheless, it is self-evident that if it is a photograph depicting the appellant, it was taken at a time when he was involved with the LTTE as claimed. The provenance of the photograph, which may have been the point of the primary judge's observations, is of more significance to the issue of credibility. In that regard, how, in the circumstances referred to in para [129], the nephew came to have a photograph of the appellant in LTTE uniform is not explained in the statutory declaration or emails. Notwithstanding the absence of a direct explanation, in substance, the appellant submits that an inference that is open, and cannot be excluded, is that the nephew obtained a 'copy' of the photograph before it was destroyed as stated in para [129] of the statement and the nephew retained that copy and sent it to the appellant.
The appellant submits that the Authority made the same error as the primary judge (treated the emails as submission and not evidence of fact) in its reasons for concluding that the photograph had not met the requirements of s 473DD: AR [22]. Further, in substance, the appellant contends that the matters to which reference has been made in paras [40] - [41] was the appellant's submission to the Authority regarding the relevance and importance of the photograph to his claims about his more significant involvement with the LTTE contained in his statutory declarations and the other documents submitted as 'new information'. The Authority's reasoning (at AR [22]) reveals that the Authority failed to assess the appellant's claim that the relevant photograph was the photograph referred to in para [129] of his statutory declaration (i.e., a failure to identify, understand and evaluate his submission and the whole of the material in support of his claim that the photograph depicts the appellant in LTTE uniform). Amongst other authorities, relying on BDY18 v Minister for Immigration and Border Protection [2020] FCAFC 24; 273 FCR 170 (at [80]-[81]), in substance, the appellant contends that it was legally unreasonable for the Authority to reach the required state of satisfaction by an approach to fact-finding of that kind.
Further, in substance, the appellant contends that the Authority's conclusion was unreasonable because the Authority had accepted (AR [13]) that, amongst others, the statutory declaration made on 14 January 2023 contained 'new information' in respect of which the Authority was satisfied that the criteria in s 473DD had been met. Amongst the statements that the Authority had, in effect, accepted as 'capable of being believed' was a statement to the effect that '[t]he photo of me in LTTE uniform was also destroyed for safety'. It is implicit that the Authority had accepted as credible that there was, relevantly, a 'photo' of the appellant 'in LTTE uniform' to which he made reference in his statutory declaration and that statement was capable of being believed. In those circumstances, the rejection of the relevant photograph was unreasonable. That is, it was illogical, irrational or otherwise lacked intelligible justification.
The appellant also appears to contend that the appellant's statement in para [129] of his statutory declaration (made in reference to the photograph of the man in military uniform) so obviously makes the fact stated (that relevant photograph is in fact a photograph of the appellant) capable of acceptance that to reach the opposite conclusion was manifestly unreasonable. That is, no reasonable decision-maker applying the correct legal principles could have reached the conclusion that the photograph was not credible personal information on the materials before the Authority.
[7]
The Minister's response in the appeal
The Minister submits that it is clear from the Authority's reasons (AR [22]) that it was not satisfied that the photograph was credible personal information [s 473DD(b)(ii)] because, due to the blurry nature of the image, the Authority could not verify that it was, in fact, the appellant depicted in the photograph. Further, the Authority was not satisfied that there were exceptional circumstances to justify consideration of the photograph (as new information) [s 473DD(a)].
As to the Authority's conclusion that it was not satisfied that it was the appellant depicted in the photograph the Minister contends that conclusion was open and does not reveal error. Put another way, the photograph was not credible personal information because the Authority was not satisfied that photograph depicted the appellant. The Minister submits there was no error in that approach and it was consistent with the Authority concluding that the photograph was not capable of being accepted as an accurate or genuine photograph of the appellant consistently with the proper construction of s 473DD(b)(ii) articulated in CSR16 at [41]-[42].
The Minister submits that there was also no error in the Authority's approach to treating the statutory declaration, which the Authority was satisfied met the requirements of s 473DD, as separate and distinct 'new information' from the photograph, which the Authority was not satisfied met the requirements of s 473DD. Put another way, it was open to the Authority to be satisfied that one source of 'new information' was credible while, at the same time, not being satisfied that another source of 'new information' about the same subject matter was credible.
Otherwise, in the Minister's written submissions, he submits that no ground of legal unreasonableness is made in the appeal. However, that submission is inconsistent with his earlier submission to the effect that he would address the ground of appeal on the footing that it restated ground 2 of the appellant's amended originating application which, as noted earlier, included an assertion that the Authority made unreasonable findings and failed to have regard to the new information on the whole. It is also inconsistent with the particulars i-c, i, ii, iii, vi, vii, viii, ix, xiv and xv of ground 2 which, directly or indirectly, invoke the concept of legal unreasonableness in fact-finding or reasoning.
Additionally, the appellant's written submissions make specific reference to the 'unreasonable exclusion' of the photograph from the Authority's consideration of para [129] of the appellant's statement and, as already mentioned, the appellant's written submissions also refer to BDY18 at [80]-[81] (McKerracher, Colvin and Jackson JJ). In BDY18 the Court considered legal unreasonableness in fact-finding and reasoning in the context of s 473DD. The Court concluded that the Authority's determination in that case that certain documents were not 'credible personal information' was legally unreasonable due to the manner in which the Authority had approached its consideration of the materials and its reasoning process that resulted in its conclusion. In essence, the Authority's reasoning in that case was defective because it had failed to take into account all relevant material to the assessment of the credibility of the documents and, instead, had collected reasons for a particular result. That was a legally unreasonable way to reach the required state of satisfaction under s 473DD. Accordingly, I reject the Minister's submission to the effect that the ground of appeal does not raise legal unreasonableness. As already mentioned, I would allow the notice of appeal to be amended, or treated as amended, to address the real issue raised in the appeal.
As to materiality, the Minister submits that the photograph is described as being of the appellant in an LTTE uniform. At no time was it contended that the photograph depicted anything more than that and no further claim or assertion was made with respect to the photograph. The Minister submits that, in these circumstances, the appellant's submission to the effect that if the Authority had considered the photograph, it could have influenced the outcome of the review should not be accepted. The Minister submits the Authority's conclusion that the photograph did not depict the appellant is a complete answer. That is, having regard to that conclusion, there is no realistic possibility that the Authority could have come to a different conclusion in a substantive review that included the consideration of the photograph as new information.
[8]
Preliminary matters
The parties initially approached the question of materiality from the perspective of whether the outcome of the substantive review could realistically have been different if the asserted errors were made and if the photograph was required to be considered in the substantive review.
In DPT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 15 Colvin J expressed the view that the correct approach to materiality is to consider whether the error is material to the exercise of the procedural power conferred under s 473DD not to the exercise of the substantive power of review. Further, there may be a separate question as to whether an erroneous and material non-compliance with s 473DD, as a matter of statutory interpretation, renders the exercise of the substantive review power unauthorised and affected by jurisdictional error: DPT17 at [45]-[54]. At the conclusion of the parties' oral submissions on 9 May 2024, I made orders by which the parties were to file supplementary written submissions on the question of the correct approach to a material failure to comply with s 473DD.
The Minister filed supplementary written submissions on 16 May 2024. The appellant filed supplementary written submissions on 24 May 2024.
The appellant also filed an interlocutory application on 14 May 2024 by which, in effect, he sought to re-open the appeal and amend his notice of appeal. On 18 June 2024 orders were made dismissing that application insofar as the appellant sought to re-open the appeal: AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 707. However, the application for leave to amend the grounds of appeal was stood over to be determined in the reasons given in the appeal. That part of the application was stood over because the manner in which the appeal was argued departed somewhat from the grounds of appeal in the notice of appeal and the appellant's written submissions. The Minister resists any expansion of the grounds of appeal and contends that the appellant is seeking to raise new issues in the appeal that were not raised before the primary judge. For the reasons given earlier, leave to amend the notice of appeal in the form of the proposed amended notice of appeal lodged on 10 May 2024 (and accepted for filing on 16 May 2024) will be refused, but I will allow it to be amended, or treated as amended, in the form described earlier in these reasons.
The written submissions the appellant filed on 24 May 2024 addressed issues that the appellant wanted to raise if leave to re-open had been granted. These submissions went well beyond the scope of the leave the Court granted to the parties to make written submission concerning the correct approach to materiality for the purposes of s 473DD. Therefore, I record that I have disregarded the appellant's supplementary submissions except to the extent that they address the issue of the correct approach to materiality.
[9]
The proper construction of s 473DD
The legislative scheme of Pt 7AA has been explained and addressed in many judgments of the High Court and this Court.
The primary requirement and overriding duty of the Authority under Pt 7AA is that, subject to the Part, the Authority is to review a fast track reviewable decision referred to it under s 473CA accompanied by a procedural duty to conduct that review 'considering' the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant: s 473DB. There are certain exceptions to that primary rule: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217 at [22]; DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 273 CLR 177 at [16]-[17].
One of the principal exceptions is contained in s 473DD, which provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the [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.
In AUS17 v Minister for Immigration and Border Protection [2020] HCA 37; 269 CLR 494 (at [6]) the plurality explained that, although expressed to prohibit the Authority from considering new information if the criteria it specifies are not met, s 473DD must be construed to impose a duty on the Authority to assess new information that it has got against the specified criteria and must take (or not take) that new information into account if the criteria are met (or not met). Further, '[l]ogic and policy … 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': AUS17 at [11]. Additionally, 'the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a)': AUS17 at [12].
Regarding 'exceptional circumstances' for the purposes of s 473DD(a), in Plaintiff M174/2016 Gageler, Keane and Nettle J said (at [30]):
Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".
(Footnote omitted.)
After citing the above passage, in BDY18 the Full Court (McKerracher, Colvin and Jackson JJ) said:
25 Whether a particular instance is exceptional requires a contextual evaluation by reference to all the circumstances of the case. The requisite state of satisfaction as to whether there are exceptional circumstances cannot be formed by focussing upon a particular aspect to the exclusion of other matters. Section 473DD(a) requires all the circumstances to be evaluated together to determine whether they are exceptional. The phrase "exceptional circumstances" is to be given a broad meaning and matters that form part of those circumstances may overlap with those referred to in s 473DD(b). As to these matters, see Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [104] (Kenny, Tracey and Griffiths JJ); AQU17 v Minister for Immigration and Border Protection (2018) 162 ALD 442 at [14] (McKerracher, Murphy and Davies JJ); Minister for Immigration and Border Protection v CQW17 (2018) 264 FCR 249 at [51] (McKerracher, Murphy and Davies JJ); and the analysis by Mortimer J in CVV16 v Minister for Home Affairs [2019] FCA 1890 at [23]-[27].
Regarding 'credible personal information', in BTW17 at [37], [56]-[62], [75]-[76] (Mortimer and Jackson JJ) said that the following passages from the judgment of Bromberg J in CSR16 correctly represent the law on the question of the correct approach to s 473DD(b)(ii):
40 An alternative construction for the use of the word "credible" in the phrase "credible personal information", is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of "credible" when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:
The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: [VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117] at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as "credible, relevant and significant". "Credible, relevant and significant", is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is "evidently not credible, not relevant, or of little or no significance to the decision that is to be made": [VEAL v Minister for Immigration & Multicultural Affairs (2005) 225 CLR 88] at [17] and see at [20].
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).
[10]
Power in s 473DD to be exercised reasonably
The effect of s 473DA is that the provisions of Div 3 are to be construed as a codification of the incidents of the Authority's obligation of procedural fairness. 'The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness.' However, '[t]he consequence of the codifying effect of s 473DA(1) … is that, except to the extent that procedural fairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined': BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 268 CLR 29 at [33]-[34].
In general, Parliament is taken to have intended that powers conferred on administrative decision-makers are to be exercised reasonably: Abebe v Commonwealth [1999] HCA 14; 197 CLR 510, per Gaudron J at [116]; Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332, per French CJ at [29]; per Hayne, Kiefel and Bell JJ at [63]; per Gageler J at [88]. Like for other established categories of jurisdictional error, review for legal unreasonableness is concerned with enforcement of laws governing the limits of the power in question, and not the manner in which that power was exercised. A failure to exercise power reasonably, subject to materiality, amounts to jurisdictional error. The exercise of the Authority's decision-making powers, including the procedural powers in ss 473DC, 473DD and 473DE to 'get in' and consider new information are subject to an implied requirement of legal reasonableness in the exercise of those powers: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34; 269 CLR 439 at [20]-[22] (Kiefel CJ, Bell, Gageler and Keane JJ); Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26]-[29] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ); DVO16 at [20]-[21], [31], [43]; BDY18 at [29]-[30].
Here, the ascertainment of the relevant jurisdictional error, if there be one, must fix upon the treatment of the requirement mandated by s 473DD(b)(ii) that the referred applicant 'satisfies' the Authority that the new information is 'credible personal information'. In dealing with that issue there is a distinction between a power involving the exercise of a discretion by a decision-maker and a power that involves the formation of a state of satisfaction by the decision-maker as a precondition to the exercise of the power: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 at [37]-[39]. As already mentioned, if the Authority reaches the state of satisfaction described in s 473DD, there is no discretion and the Authority is to consider the new information as part of the review.
There is a conceptual difference between the formation of a state of satisfaction as a precondition to the exercise of power and the exercise of power once the precondition is met. The exercise of power may also involve formation of states of satisfaction or opinion or other kinds of evaluative judgments, but formation of those states of satisfaction are not preconditions to the exercise of power because they are involved in the actual exercise of the power. The conceptual distinction is important and has implications for the proper approach to the identification of 'jurisdictional error'; namely, whether the error involves 'subjective jurisdictional fact error' or 'jurisdictional error' in the exercise of power after any precondition to the exercise of power is met: EHF17 v Minister for Immigration and Border Protection [2019] FCA 1681; 272 FCR 409 at [57]-[61] (Derrington J). The difference has particular significance where the asserted error involves fact-finding. Where it is asserted that a decision-maker has made an error in fact-finding in the exercise of power, in the absence of no evidence in support of the finding, such 'intra-mural' fact-finding is not generally subject to judicial review as it involves 'merits review': Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357. However, apprehensions about 'merits review' assume that there was jurisdiction to embark upon determination of the merits. Thus, the same degree of caution as to the scope of judicial review does not apply where the question is whether the jurisdictional threshold has been crossed: SZMDS at [37]-[38] (Gummow A-CJ and Kiefel J); see, also, EHF17 at [62]-[64].
For the purposes of Pt 7AA of the Act, the formation of the state of satisfaction (or non-satisfaction) under s 473DD is not a precondition to the exercise of the substantive power of review, but does however condition the exercise of that power. In effect, formation of the state of satisfaction (or non-satisfaction) in s 473DD determines the scope of the information to which the Authority is required or permitted to consider in the exercise of the substantive power of review. A failure to form the state of satisfaction (or non-satisfaction) correctly may result in the Authority failing to take into account a relevant consideration or taking into account a consideration it was bound to disregard. In that sense, formation of the state of satisfaction (or non-satisfaction) under s 473DD is akin to a subjective jurisdictional fact because the existence of the state of satisfaction (or non-satisfaction) - the Authority's state of mind - is a fact that precedes and conditions the exercise of the Authority's power within the statutory limits of its jurisdiction. Thus, fact-finding errors in the formation of a state of satisfaction under s 473DD does not involve an error in the formation of a state of mind in the actual exercise of the substantive power of review and are of the kind that are not generally amenable to review for jurisdictional error.
Relevantly, a subjective jurisdictional fact does not exist if it is founded upon findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [145], [147] (Gummow J); Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; 198 ALR 59 at [34]-[37], [52] (McHugh and Gummow JJ); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at [38] (Gummow and Hayne JJ); SZMDS at [40] (Gummow A-CJ and Kiefel), [102]-[105], [121]-[131] (Crennan and Bell JJ). As Derrington J explained, that formulation of the principle taken from the judgment of Gummow J in Eshetu operates at two levels in the evaluative process. First, findings or inferences of fact not supported by probative material or not based on logical grounds will result in an error in determining whether the decision-maker is or is not satisfied of the statutory criterion. Second, where the facts are not apparent or established an irrational or illogical state of mind based on those facts will result in error: EHF17 at [75].
After surveying the relevant authorities, Derrington J summarised the prevailing state of the authorities concerning irrational or illogical jurisdictional fact-finding as follows in EHF17.
84 The prevailing view on the above authorities indicates that the assessment of the fulfilment of a subjective jurisdictional fact is, in essence, a matter of whether the state of mind of a designated person accords with that which the legislature requires, and that it is reached in accordance with the implicit requirements of, inter alia, an absence of illogicality or irrationality, and it is not based upon illogical fact finding. If the state of mind actually reached by the repository of power could be reached by a logical or rational person on the same material and complies with the other requirements, it is a state of mind which will enliven the relevant power. That will be so even where the probative evidence can support different reasoning processes by logical or rational people resulting in a different conclusion. But, if the actual state of mind reached was arrived at by a path which was illogical and irrational, the required state of mind will not have been attained. That remains so even if there were an alternative path to the same conclusion, because the state of mind will not have been formed in accordance with the implicit requirements of the Parliament. In other words, Parliament can be taken to have required that the person who may be affected by the exercise of power founded upon the subjective jurisdictional fact is only to be so affected where the exercise is preceded by the formation of a state of mind in the manner required. It can be fairly assumed that the Parliament intended the person is to be given the chance of a favourable outcome (at least in the sense of overcoming the initial jurisdictional hurdle) by the repository's engagement in a process that is not illogical or irrational. Even where the application of logic and rationality might permit of diverse outcomes, it is difficult to accept the Parliament intended that the pre-requisite to the exercise of power could be satisfied through a capricious process. In simple terms, if the state of mind is reached by the toss of a coin, it will not satisfy the subjective jurisdictional fact even if, through a proper evaluation of the evidence and appropriate reasoning, the same conclusion could be reached. The process by which the subjective jurisdictional fact is reached is important. That is especially so in provisions such as s 65 of the Act where the formation of a state of mind actually dictates the exercise of statutory power.
85 A similar approach applies in relation to the examination of the factual findings by the repository of power. If there is only one conclusion which can be drawn from the material before the person whose state of mind is relevant, a conclusion to the contrary will be illogical and not based on probative material. However, where there is room for logical persons to reach the finding actually reached by the repository of power, the state of mind formed is effective. Some doubt remains as to the circumstances in which an alleged inadequacy of material to support a finding of fact by the repository of power will suffice to vitiate the state of mind formed. In S20/2002, McHugh and Gummow JJ suggested that the decision in [R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Pty Ltd (1953) 88 CLR 100] supported the view that inadequacy of material to support a finding was, alone, insufficient to warrant the grant of a writ of prohibition, but it may support an inference that the wrong test is being applied or the repository of power is not in reality satisfied of the requisite matters.
It is important to emphasise that not every lack of rationality or lapse of logic results in an error in subjective jurisdictional fact-finding. In SZMDS (at [130]-[131]) Crennan and Bell JJ characterised the nature of the required error as follows:
130 In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131 What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision-maker does not come to that conclusion, or if the decision is one to which the decision-maker came was simply not open on the evidence or there is no logical connection between the evidence and the inferences or conclusions drawn.': SZMDS at [135]; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; 258 FCR 175 at [30(4)]. However, 'to establish jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality must be demonstrated "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to difference conclusions"': DAO16 at [30(5)] (and the authorities cited therein). Further, describing reasoning as irrational, unreasonable or illogical must be more than a mere emphatic way of expressing disagreement with it: Eshetu at [40] (Gleeson CJ and McHugh J): Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; 237 FCR 1 at [92] (Wigney J, Allsop CJ agreeing). Likewise, it must mean more than that, on the material before the decision-maker, the court would (or would not) have reached the required state of satisfaction: S20/2002 at [9] (Gleeson CJ). In short, to meet the description of illogical, irrational or unreasonable reasoning in the relevant sense it must be a process of reasoning that results in the equivalent of an arbitrary or capricious decision.
Nonetheless, '[r]easonableness is not exhausted by rationality': Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at [59] (Gageler J). A legally unreasonable decision is one that is beyond power if the statutory power properly construed, having regard to the scope, purpose and objects of that power, has been abused by the decision-maker. The manner in which abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. It is not limited to specific errors or labels such as 'manifestly unreasonable' or 'irrational' or 'bizarre' so that no reasonable person could have arrived at it. In a review that is outcome focussed, it is not necessary to identify any particular error to find a conclusion of unreasonableness. The question is whether the result is so unreasonable that it could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances. That does not involve undertaking merits review, but rather whether asking if the purported exercise of the power was beyond the permitted scope because it was legally unreasonable. That exercise is fact dependent, requires a careful evaluation of the evidence and, where reasons are provided, they will form the focal point for that assessment: SZVFW at [78]-[84] (Nettle and Gordon JJ). As Allsop CJ explained in Stretton (at [12]-[13]):
12 Crucial to remember, however, is that the task for the Court is not to assess what it thinks is reasonable and thereby conclude (as if in an appeal concerning breach of duty of care) that any other view displays error; rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable whether because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.
13 The relationship between the conclusion or outcome and the reasoning process revealed by reasons to reach it is one that should not be rigidly set. Reasons may fail to disclose an evident and intelligible justification or may not be sufficient to outweigh the inference that the decision is so unjust as to be (in the context of the statutory source of the power) beyond a lawful exercise of the power.
BDY18 provides an example of the application of the principles to the exercise of the procedural power in s 473DD. In BDY18 the Full Court considered a factual conclusion of the Authority was legally unreasonable because it fell outside the range of conclusions that were open to a decision-maker undertaking the fact-finding task of the Authority for the purpose of forming the states of satisfaction required by s 473DD. The defective nature of that reasoning rendered the Authority's decision on the credibility of relevant new information also defective and legally unreasonable: BDY18 at [53], [73]-[81].
[11]
Did the Authority consider the truth of the information the photograph conveyed?
The Minister submits that it is clear from the Authority's reasoning with respect to other 'new information' it considered that it understood and had applied the correct test concerning credibility to that information. For example, when considering statutory declarations given by certain individuals who had known the appellant in Sri Lanka, the Authority said 'on their face, they contain information that is capable of being believed': AR [20]. Therefore, the Authority's reasoning at AR [22] must be read in that context.
The Minister submits that AR [22] also describes a number of reasons why the Authority did not consider that the photograph was capable of being believed. First, it is clear from the opening sentence that the Authority understood the appellant to be claiming that the photograph depicted him in LTTE uniform. Therefore, the Authority was addressing itself to the credibility of that claim. Next, the Authority addressed itself to the provenance of the photograph. It noted that it was not provided with the appellant's SHEV application, not provided to the delegate, it was claimed to have been received from his nephew, but he was not able to confirm when it was received, there was no information about when it was taken and due to the blurry nature of the image the Authority could not 'verify' that the photograph was that of the appellant. The Authority also addressed itself to para [129] of the statutory declaration and noted that the appellant stated that all photographs of him in LTTE uniform had been destroyed. The Authority adverts to the possibility that the photograph survived notwithstanding that statement but was 'not satisfied that the photograph is that of the [appellant] as claimed'. In substance, the Minister submits that the last words are to be understood, in context, as a conclusion that the Authority was not satisfied that the claim that the photograph depicted the appellant was capable of being believed.
The difficulty for the Minister's submission is, of course, that the words that the Authority has used to give its reasons make no mention of the credibility of the appellant's claim. Rather, the reasons indicate that the Authority was 'not satisfied that the photograph is that of the [appellant] as claimed'. The natural and ordinary meaning of those words convey a final conclusion, in effect, that the Authority was not satisfied (did not believe) that the photograph was that of the appellant. Therefore, on the plain meaning of AR [22], irrespective of the reasons given for the conclusion, the Authority has expressed itself in a form that reveals that it determined the truth of the claim rather than whether the claim is capable of being believed.
The Minister emphasises that, as the High Court has said, 'the reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed': Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272. However, that observation is not a panacea for all and any deficiency in the reasons of a decision-maker. It cannot be used to fill gaps in the reasoning or to infer or imply reasoning that the reasons given cannot bear. For example, '[j]ust as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error … eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party's case.': Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277 at [57].
I accept that other parts of the Authority's reasoning indicate that it was aware of or understood the nature of the test to be applied to determining whether new information is 'credible personal information'. However, a correct understanding of legal principle does not mean that it was correctly applied with respect to the relevant photograph. The best evidence of the Authority's reasons are the words it has used to explain why it was not satisfied that either limb of s 473DD(b) was satisfied. Those words reveal that it went too far and imposed a higher standard of satisfaction than s 473DD(b)(ii) requires. That was an error in the application of s 473DD(b)(ii) on its proper construction.
[12]
Was the Authority's process of reasoning legally unreasonable?
The appellant's contention that the Authority's conclusion was legally unreasonable is, in effect, predicated on an assumption that the Authority applied the correct test under s 473DD(b)(ii) and AR [22] is to be read as expressing its reasons for not being satisfied that the appellant's claim the photograph depicted him in LTTE uniform was capable of being believed. As I have concluded that the Authority did not apply the correct test, it is not strictly necessary to consider if the conclusion was legally unreasonable. Nonetheless, in the event I am wrong, I set out below my reasons for concluding, on the assumption that the Authority applied the correct test, that its conclusion that the appellant's claim was not capable of being believed was legally unreasonable.
The relevant 'new information' was the appellant's statement to the effect that the relevant photograph depicted him in LTTE uniform. That statement cannot be separated or divorced from object of the statement; namely, the relevant photograph. That statement was found in the hearsay statements of the appellant's legal representatives when the photograph was provided to the Authority. That statement was also implicit, if not explicit, in the appellant's statutory declaration (at para [129]) where he said that '[t]he photo of me in LTTE uniform was also destroyed for safety'. In context, that statement is plainly a reference to the photograph provided to the Authority earlier as attached to the legal representative's emails to the Department of Home Affairs. It could not be referring to any other photograph with the definite article and in the singular. Self-evidently, for the photograph to which reference is made to be the photograph provided to the Authority, para [129] must be referring to the copy of the photograph (provided to the Authority) and to the original (destroyed). Further, the statement is predicated on the assumption that it is a photograph of the appellant in LTTE uniform.
The Authority was satisfied that the statutory declaration (including para [129]) met the requirements of s 473DD. The Authority said: '[o]n its face, I am satisfied that the new information presented in the [appellant's] statement is capable of being believed': AR [13]. A statement by a person that a photograph (albeit an image that is not in focus) is a photograph of that person is inherently capable of being believed. The inherent credibility of that statement is consistent with the Authority's conclusion about the appellant's statutory declaration at AR [13].
The provenance of the photograph, when, where and in what circumstance it was taken, is a different question. It depicts a person in military uniform. If the relevant photograph depicts the appellant, much of the provenance of the photograph can be inferred from the photograph taken with other material before the Authority. It may be inferred that it was taken at a time when the appellant claims he was involved in the LTTE.
How the relevant photograph came to be in the appellant's possession is explained. It was provided to him by his nephew. From the appellant's legal representative's emails it can be inferred that the appellant claims that his nephew provided it to him in or around May 2022. That is a partial explanation for the appellant's failure to provide the relevant photograph (or information like it) at the time of his SHEV interview or to the delegate is given in his statutory declaration (in particular para [38]). How the photograph came to be in the nephew's possession in circumstances in which the original was destroyed is not explained. However, it can be inferred or is implicit that a copy of the original was made and the nephew acquired and retained it before the original was destroyed.
The quality of the relevant photograph (it is blurred or out of focus) and the absence of an explanation of when the copy was taken, how the nephew obtained the copy and why the copy was not destroyed along with the original are matters that affect the plausibility of the appellant's statement that it is a photograph of him. That is, these are matters that diminish the credulity of an otherwise inherently credible statement. However, having regard to the whole of the materials before the Authority, these are not matters that a decision-maker exercising power under s 473DD, properly construed, could logically, rationally or reasonably consider so diminish an otherwise credible statement to the point that the appellant's statement is not 'capable of being believed'. That is, the Authority's conclusion that the relevant photograph was not 'credible personal information' was not legally reasonable and, therefore, its conclusion that the requirements of s 473DD were not met with respect to the photograph were also not legally reasonable. I have reached that conclusion based on the outcome, having regard to the material before the Authority, and the Authority's process of reasoning which was deficient in ways that rendered the outcome legally unreasonable.
First, while it is clear that the Authority understood that the appellant claimed that the relevant photograph depicted him in LTTE uniform, it is not clear that the Authority had identified, understood and evaluated that his claim was supported by evidence. In particular, for the reasons already given, I accept the appellant's submission that, in context, the reference in para [129] of his statutory declaration to '[t]he photo of me in LTTE uniform' is manifestly a reference to the photograph attached to the emails of his legal representative that had been provided to the Authority before the statutory declaration. I also accept the appellant's submission to the effect that the emails from his legal representatives are more than mere submissions or claims and are hearsay statements of fact to the effect that the relevant photograph depicts the appellant in LTTE uniform.
The Authority accepted that the appellant's statutory declaration was 'new information' that met the criteria in s 473DD. As a consequence, it must be taken to have accepted that 'credible personal information' about the appellant included his statement that '[t]he photo of me in LTTE uniform was also destroyed for safety'. That statement can only be understood if the photograph to which reference is made is identified. As already mentioned, that was clearly the relevant photograph of the person in military uniform. It is logically inconsistent to accept as capable of belief that a photograph depicting the appellant was destroyed and, at the same time, not accept as capable of belief that a copy of the photograph in question depicts the appellant. No justification, let alone one that is intelligible, is provided in the Authority's reasons for that inconsistency.
A second, and related reason, is that no reference is made at AR [22] to the self-evident proposition that the appellant's statement that the photograph is of him is 'on its face' capable of being believed. The Authority has considered the credibility of the photograph as a depiction of the appellant divorced from his otherwise inherently believable statement that it is a photograph of him. The Authority has only considered factors that diminish the 'claim' that the photograph depicts him rather than his evidence or statement that it depicts him. Therefore, the Authority has only considered the credulity of the photograph as a depiction of the appellant in isolation and without regard to factors that indicate that it was believable that the photograph was a photograph of the appellant.
Third, while the Authority alludes to the possibility that para [129] of the statutory declaration refers to the destruction of other photographs or that the relevant photograph was taken some time earlier, the Authority does not engage with that self-evident explanation on the hypothesis that the appellant's statement to the effect that it was a photograph of the appellant was in and of itself capable of being believed. Put another way, the self-evident explanation that the nephew obtained a copy of it before its destruction or, at least, that a copy of the photograph survived that process is a plausible explanation that was open on the material before the Authority that it evidently failed to take into account as a factor in favour or, at least, neutral to credibility of the photograph as depiction of the appellant.
Fourth, the Authority's statement to the effect that it could not 'verify that the photo (which appears blurry) is that of the [appellant]' underscores the Authority's orientation towards considering factors in isolation from the otherwise credible statement of the appellant. The appellant 'verified' that the person depicted in the photograph was the appellant. Therefore, what the Authority may have meant at AR [22] is that it was not able to independently verify that the photograph depicted the appellant. If so, the Authority has not explained why it was not able to so by reference to the materials that were before the Authority. Further, an inability to verify is, in point of detail, a neutral factor. That is, it does not suggest that the photograph was not of the appellant and, therefore, is not capable of displacing otherwise credible evidence that it was a photograph of the appellant.
Further, while the photograph is clearly out of focus it is in colour and not all features of the person in the photograph are completely indistinct. For example, it is possible to identify aspects of the person's facial features, the colour of the person's hair and skin, the approximate age of the person, and the person's general physique. As already mentioned, the photograph also indicates that the person is wearing a camouflage military uniform and webbing or a vest with pouches that appear to be ammunition pouches and (or) otherwise that has the appearance of equipment that is typically used in combat operations or roles of infantry soldiers. It is possible to undertake a general comparison between the relevant photograph and black and white photocopies of photographs (which are also somewhat indistinct) on the appellant's Sri Lankan identity card and passport that were in the materials before the Authority. A comparison is also possible with the photograph taken for the appellant's entry interview and a photograph of the appellant with a Sri Lankan politician that were also in the materials before the Authority. Photographs known or accepted to be those of the appellant provide information about his age, facial features, skin and hair colour and physique all of which are capable of comparison with the more general information about those features of the person in the relevant photograph. While a comparison between the images in the photographs of appellant's identity and other documents with the relevant photograph is not straightforward, it is not impossible. That is, it is possible to undertake a comparison so as to discern the extent to which photographs known or accepted to be of the appellant may be used to assist to identify the person depicted in the relevant photograph or exclude it as a photograph of the appellant. The Authority's reasons at AR [22] do not indicate if and the extent to which the Authority undertook or attempted to undertake that comparison process and whether that assisted, or not, in identifying the person in the relevant photograph or, at least, not exclude the possibility that it depicted the appellant. In context, there is no intelligible justification for the Authority's conclusion that it was not able to 'verify' that the photograph was that of the appellant.
Last, the Authority's reasons at AR [22] make no reference to any factors that are consistent with or not inconsistent with, the truth of the claim that the relevant photograph depicts the appellant in LTTE uniform. There is no reference to the appellant's evidence to the effect that the photograph is of him. There is no reference to the reasons the appellant gave for not providing the Minister with information about the extent of his involvement, including carrying weapons, at the time of his SHEV interview and to the delegate that would provide a partial explanation for not providing the photograph earlier. There is reference to the possibility that the appellant's nephew did obtain a copy of the relevant photograph before its destruction therefore providing a plausible explanation for the existence of the relevant photograph notwithstanding the destruction of the original. There is no reference to the manner in which the Authority was unable to verify that the photograph was of the appellant in the context of the other evidence and information before the Authority. Also, there is no reference to any evidence that positively excluded the possibility that the relevant photograph depicts the appellant. There is no reference to how, if at all, the Authority reconciled its acceptance as credible evidence that the original of the photograph was destroyed and that it was a photograph of the appellant with its failure to accept as credible that a copy of the very photograph it accepted as credibly destroyed was not credible personal information.
The Authority's apparent focus only on reasons for concluding that it was 'not satisfied that the photograph is that of the [appellant]' and failure to consider any reasons, including the appellant's direct evidence, for concluding that the fact the photograph depicted the appellant was capable of belief reveals that it failed to identify, understand and evaluate all the material before it when considering if it was satisfied that the requirements of s 473DD(b)(ii) were met. It also employed a process of reasoning regarding satisfaction that the appellant's statutory declaration (in particular para [129]) as credible personal information while not being satisfied that the object of that declaration was credible personal information that was illogical, irrational and without intelligible justification.
For all these reasons, the Authority employed a defective process of reasoning that resulted in the Authority reaching a legally unreasonable conclusion that it was not satisfied that the requirements of s 473DD(b)(ii) were met. As in BDY18, 'it failed to approach its task as requiring an evaluation of all the relevant material and instead simply collected reasons for a particular result'. Its conclusion was logically inconsistent with its satisfaction that the statutory declaration was 'credible personal information' and no logical, rational or intelligible explanation or justification was given in the reasons to overcome that inconsistency. Further, the result was legally unreasonable, in that no logical, rational or reasonable decision-maker could have concluded that the appellant's statement that the relevant photograph depicted him in LTTE uniform was not capable of being believed on the materials before the Authority if proper reasoning had been applied.
[13]
Overview
The High Court recently restated and clarified the principles applicable to the question of materiality in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12. A statute which contains an express or implied condition of a conferral of decision-making authority is not always interpreted as denying legal force and effect to every decision that might be made in breach of that condition. In some cases, where an error is established, it will be jurisdictional irrespective of any effect the error might or might not have had on the decision that was made in fact (e.g., bias), or it will be jurisdictional because the potential for an effect is inherent in the nature of the error (e.g., unreasonableness in the final result). In most cases an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because generally a statute which contains an express or implied condition to be observed in decision-making is to be interpreted as incorporating a threshold of 'materiality' in the event of non-compliance. The question in these cases is whether the decision could, not would, 'realistically' have been different had there been no error. Realistic is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable: LPDT at [2]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ). The majority concluded (at [16]):
16 In sum, unless there is identified a basis on which it can be affirmatively concluded that the outcome would inevitably have been the same had the error not been made, once an applicant establishes that there has been an error and demonstrates that there exists a realistic possibility that the outcome of the decision could have been different had that error not been made, the threshold of materiality will have been met (and curial relief will be justified subject to any issue of utility or discretion).
In substance, the appellant contends that there was a realistic possibility if the errors had not been made that the Authority could have concluded that the new information was 'credible personal information' and could have been required to consider that information in the substantive review. The appellant contends that if it had been considered in the substantive review there is a realistic possibility that the outcome of that review could have been different. The Minister contends that the outcome could not realistically have been different because the Authority concluded that it was not (or could not be) satisfied that the photograph, in fact, depicted the appellant. Therefore, the appellant and the Minister each approached the question of materiality from the perspective of whether the error could have realistically resulted in a different outcome on the substantive review.
As to the question of the correct approach to materiality, in his supplementary written submissions the Minister submits that the approach of Colvin J in DPT17 is inconsistent with the approach taken by other first instance decisions of judges of this Court. The Minister submits that the correct approach is first to consider if an error in relation to the exercise of the procedural power in s 473DD is material to the exercise of that power: ABH18 v Minister for Home Affairs [2020] FCA 620 at [36]. If not, that is the end of the enquiry. If so, then it is necessary to consider whether the ultimate outcome of the substantive review could realistically have been different if the error had not occurred: ABH18 at [45]; EAC16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1657 at [58]; CDJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 345 at [39]-[41]. The Minister submits that the approach in these authorities is correct because the procedural power in s 473DD conditions the exercise of the substantive review power. Further, the Minister submits that a material non-compliance with s 473DD is not an error of a kind that renders the exercise of the substantive review power unauthorised irrespective of the effect that error might or might not have had on the ultimate outcome. The Minister submits, at most, it would amount to a failure to take into account a relevant consideration and then, it is necessary to consider if that failure was material to the outcome of the substantive review.
The Minister also submits that it is unnecessary for the purposes of this appeal to determine which approach is correct because, on any view, the error was not material. Relying on DLB17 v Minister for Home Affairs [2018] FCAFC 230 (at [22]), the Minister submits that the Authority was permitted to consider the credibility of the personal information in reaching its conclusion that there were not exceptional circumstances (AR [22]). Therefore, so the Minister submits, even if the Authority erred in its approach to s 473DD(b)(ii), it could not realistically have changed the outcome that the Authority was not satisfied that there were exceptional circumstances. Consequently, the error was not material to the exercise of the procedural power under s 473DD nor to the substantive review power under s 473CC because the Authority had not accepted that the photograph depicted the appellant.
The appellant's supplementary written submissions are not addressed to the specific questions upon which leave was granted but more to the question of materiality generally. The appellant refers to AZT22 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 90 at [76], [78]-[89] (Banks-Smith and Jackson JJ) and BDY18 at [49], [51], [80]-[81] (McKerracher, Colvin and Jackson JJ) evidently as authority for the proposition that non-compliance with s 473DD may be material to the ultimate outcome and may result in an order setting aside the substantive review decision. It appears, therefore, that both the appellant and the Minister submit that the correct approach to materiality for non-compliance with s 473DD is to consider whether the error could realistically have resulted in a different outcome in the exercise of the substantive review power under s 473CC.
[14]
Approach to materiality
Having regard to the parties' submissions on the question of materiality and that the appellant seeks an order setting aside the substantive decision of the Authority, not the procedural decision to reject the 'new information' per se, I accept that it is not necessary to decide in this appeal whether the approach of Colvin J in DPT17 is correct. The relevant question is whether, as a matter of statutory interpretation, non-compliance with the requirements of s 473DD renders the exercise of the substantive power of review unauthorised. However, due to the manner in which Pt 7AA of the Act operates, determining the extent to which non-compliance with s 473DD results in an unauthorised exercise of the substantive review power is not straightforward.
As the authorities to which reference has been made earlier make clear, there are two stages to the exercise of power under Pt 7AA. In the first stage, the Authority is called upon to make procedural decisions about the information that it must and must not consider in the substantive review. In the second stage, the Authority then must only consider the information it is permitted or required to consider in the substantive review.
The exercise of the procedural power in s 473DD requires the Authority to form states of mind. Those states of mind must be formed correctly and according to law. An incorrect formation of the states of satisfaction in s 473DD may mean that 'new information' the Authority was required to consider in the substantive review was not considered or that 'new information' the Authority was required to disregard was considered in the substantive review. That is, non-compliance with s 473DD could, but need not, result in the Authority failing to take into account a relevant consideration or taking into account an irrelevant consideration in the exercise of the substantive power of review. Therefore, it stands to reason, that mere non-compliance with s 473DD could not be regarded as an error that, irrespective of the nature of that error, would render the exercise of the substantive review power unauthorised. Thus, non-compliance with s 473DD must be material to the exercise of the substantive review power in order for such a non-compliance to render the Authority's ultimate decision unauthorised.
What then is the nature of the enquiry into whether the outcome of the exercise of the substantive review could realistically have been different if error in the formation of the s 473DD state of satisfaction had not been made?
There are two points of the decision-making process at which non-compliance with s 473DD could have affected the ultimate outcome of the substantive review. First, if the absence of error could not realistically have resulted in the Authority forming the states of satisfaction in s 473DD(a) and s 473DD(b) differently, then plainly it could not have affected the substantive outcome because it could not have resulted in the Authority failing to take into account a relevant consideration or taking into account an irrelevant consideration. On the other hand, if the absence of error could realistically have resulted in the Authority forming the states of satisfaction differently, then obviously there could have been a failure to take into account a relevant consideration or an irrelevant consideration could have been taken into account. Second, if that relevant consideration or irrelevant consideration could not realistically have resulted in a different outcome in the substantive review, then, again, the error would not be material and result in an unauthorised exercise of power. However, if that relevant or irrelevant consideration could have realistically resulted in a different substantive outcome, the error would be material and would result in an unauthorised exercise of power. Put another way, where a non-compliance with s 473DD means that 'new information' could realistically have been taken into account and that information could realistically have made a difference to the outcome of the substantive review, then, as a matter of reasonable conjecture, the absence of error could have resulted in a different outcome in the substantive review. That is sufficient to meet the threshold test of materiality.
[15]
Could the absence of errors have realistically made a difference to the exercise of the substantive power?
I do not accept the Minister's submission, based on DLB17, to the effect that the Authority could not realistically have reached a different conclusion as the Authority was not satisfied that there were exceptional circumstances because it was not satisfied that the photograph depicted the appellant.
In DLB17 (at [22]) the Court (McKerracher, Barker and Banks-Smith JJ) said that in assessing whether there are exceptional circumstances for the purposes of s 473DD(a) the Authority may go further than considering whether the information is credible for the purposes of s 473DD(b)(ii) and test it to consider whether it is satisfied as to the truth of the new information. However, DLB17 was decided before BTW17, in which the approach in CSR16 was endorsed, and AZT22 in which the approach in BTW17 was said to be consistent with the reasons of the High Court in AUS17.
The passage from DLB17 upon which the Minister relies is at odds with the now accepted notion that it would be an error to embark upon an assessment of the truth of the 'new information' in the exercise of power under s 473DD rather than an assessment of whether it is capable of being believed because to do so is to enter into a substantive consideration of the information which the Authority is not permitted to do unless it is satisfied of the criteria in s 473DD. Nonetheless, while the Authority may not be permitted to consider the truth of the 'new information' for the purposes of considering if there are exceptional circumstances, it may well be entitled to consider the degree or extent to which the new information is capable of being believed for the purposes of considering if there are exceptional circumstances that justify considering the new information. Therefore, if the passage from DLB17 upon which the Minister relies is understood as meaning that the degree or extent of the credibility of the personal information may be considered, as opposed to whether it is true, as part of the assessment of exceptional circumstances, it is reconcilable with the later authorities that address the meaning of 'credible' for the purposes of s 473DD(b)(ii). That is the way I will approach the relevance of the credibility of new information to the question of exceptional circumstances for the purposes of this appeal.
The nature of the Authority's errors in this case involved misconstruing or misunderstanding the meaning of 'credible'. That necessarily must have affected its understanding of the nature of the 'new information' and the degree or extent to which that information was capable of being believed. As a matter of reasonable conjecture, that misconstruction or misunderstanding could have affected both the formation of the Authority's state of satisfaction about whether the new information was credible and whether there were exceptional circumstances. Put another way, a proper assessment of the degree or extent of believability of information must start from a correct understanding of credibility. Therefore, I am not able to affirmatively conclude that the outcome would inevitably have been the same had the error not been made.
The same logic and reasoning apply to the question of whether the ultimate outcome could have realistically been different if the Authority had considered the photograph in the exercise of the substantive review power. Again, in the absence of error, the Authority's approach to credibility and the believability of that new information could have been different. It is mere speculation to conclude that with a correct understanding of the credibility of the new information, the Authority would inevitably have reached the conclusion that the photograph is not of the appellant in LTTE uniform.
[16]
Disposition
The Authority's decision was affected by jurisdictional error and should be set aside. The primary judge was in error for failing to reach that conclusion. The appeal should be upheld. I will hear the parties on the question of costs.
I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill.
Parties
Applicant/Plaintiff:
AAI20
Respondent/Defendant:
Minister for Immigration, Citizenship and Multicultural Affairs
[2013] HCA 18; 249 CLR 332
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159; 294 FCR 150
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 264 CLR 217
Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 [2003] HCA 30; 198 ALR 59
Soliman v University of Technology, Sydney [2012] FCAFC 146; 207 FCR 277