ALM17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Background 5 The appellant is a citizen of Sri Lanka. The appellant arrived in Australia on 14 October 2012 as an unauthorised maritime arrival. He participated in an entry interview on 31 December 2012. 6 The appellant made a valid application for a SHEV on 15 April 2016. The appellant claimed he would suffer significant harm on return to Sri Lanka as a young Tamil male. He was afraid of harm from the Sri Lankan authorities and paramilitary groups. 7 The appellant made the following claims in support of his application: (a) In 2005, when living in his family home at age 18, he was abducted by unknown men potentially from the Karuna or Pillayan paramilitary groups in a van (2005 incident). He was taken to a jail and locked in a dark room with other prisoners where a group of men attempted to recruit the appellant "to their movement". He was released ten days later upon payment from his parents. (b) A few days after his release, the same unknown men came looking for the appellant again at his family home. As his father refused to provide any information, the men beat his father. The appellant went to stay with his uncle in Batticaloa, who arranged for a passport and a work visa for Qatar for the appellant. The appellant left Sri Lanka in February 2006. (c) The appellant returned to Sri Lanka for three short visits: (i) in September 2010 for a month; (ii) in August 2011 for his sister's wedding - during this visit he was attacked by unknown persons on the street (2011 incident); and (iii) in September 2012 - during this visit men came to his father's house looking for him. The appellant was not home. The men searched the house and took the appellant's passport and national identity card (NIC). They were abusive and threatening towards his father. (2012 incident). (d) The appellant's uncle arranged for the appellant to leave Sri Lanka by boat. As he no longer had his passport, he was not able to leave the country legally. (e) Since leaving Sri Lanka the appellant claims a group of men have come to the family home looking for him. 8 On 30 November 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa.

The delegate's decision 9 The delegate refused to grant the appellant a SHEV on the basis that, inter alia, he did not satisfy the criteria for a grant of a protection visa under ss 36(2)(a) and (aa) of the Act. 10 The delegate made findings with regard to each of the 2005, 2011 and 2012 incidents. 11 The delegate accepted the appellant was abducted by unknown persons for a period of time in 2005, although noted it seemed strange for a group of people to want the appellant to join them yet did not tell him who they were. 12 The delegate had concerns about the appellant's account of the 2011 incident and did not accept that it occurred. 13 The delegate found the appellant's account of the 2012 incident to be inconsistent with the account made during the appellant's arrival interview where he made no mention of his passport and NIC being taken. The appellant had stated he had lost his identity documents. 14 The delegate also found the appellant contradicted himself about what the men said at that time - in his statement he claimed the men threatened his father that they would come back and during his interview claimed the men told him to report to the police station in Kilmany. 15 The delegate found the appellant had told "too many conflicting stories". 16 Although the delegate accepted that the country information supports the claims of intimidation, harassment and discrimination inflicted on the Tamil community by Sri Lankan authorities, she noted the difficulty in knowing whether the appellant was targeted by the perpetrators of the 2005 incident or by the authorities. In those circumstances, the delegate did not accept that the appellant had been targeted by the authorities.

The Authority decision 17 The Authority (A) affirmed the decision of the delegate. In making its decision, the Authority referred to the submission it received from the appellant's representative on 21 December 2016 and noted to the extent that submission does not contain new information as defined in s 473DC(1) of the Act, the Authority has had regard to it. 18 The Authority accepted that: (a) the 2005 incident occurred, although noted it had "some doubts"; and (b) the 2011 incident occurred, but was not anything other than a random criminal attack. 19 The Authority identified several inconsistencies with the appellant's account of the 2012 incident and found this particular claim to be fabricated. The following paragraphs of that analysis are relevant in this appeal: 16. While I have taken into account the applicant's claim he was not at home when the men came to take his documents, I note he provided significantly less detail, even second-hand detail, than about his 2005 abduction or 2011 assault. I do not find it credible the applicant's father, who was present at the family home when the men arrived, would not have advised the applicant how many there were, whether they were wearing uniform, and why they wanted to speak to the applicant. 17. At the applicant's arrival interview, conducted 31 December 2012, he stated his Sri Lankan national ID card and passport were together with his birth certificate at his family home, and he did not mention these documents had been taken from there. While I note the applicant may have found the interview process intimidating to a certain degree, the interview took place more than two months after his arrival in Australia. The applicant was able to recall other relevant details of his previous employment, schooling and addresses. I do not accept he would have forgotten to mention the men who came to his family home in 2012 took his documents, given he has claimed this is what prompted him to leave Sri Lanka as soon as he could, and forms the basis of his claim that he now has a record with the Sri Lankan authorities. 18. The applicant has also provided with his SHEV application an English translation of what he claims is an extract from the 'information book' of the Kalmunai Police Station, dated 22 September 2012. The extract is a signed statement from the applicant's father confirming men came to their family home looking for the applicant, searched the house and left. I note there is no mention of these men taking any of the applicant's personal documents and I further note the Kalmunai Police Station is the same location where the applicant claimed at [sic] SHEV interview the men ordered him to attend. I do not find it credible if the applicant left Sri Lanka out of fear of these men, his father would go to the police station where they had ordered the applicant to attend, in order to lodge a complaint. Given these inconsistencies I find the applicant has fabricated this particular claim to correlate with his decision to leave Sri Lanka and I do not accept this event occurred. 20 The Authority was not satisfied the appellant had a well-founded fear of persecution due to any imputed LTTE/anti-Sri Lankan government political opinion, arising from his Tamil race. The Authority was not satisfied there is a real risk of significant harm to the appellant upon return to Sri Lanka.

The FCC decision 21 The appellant relied on three grounds of review before the FCC. Only the first two are relevant to this appeal: 1. The Second Respondent constructively failed to review the First Respondent's decision, denied the Applicant's procedural fairness in its failure to sufficiently raise critical matters with the applicant and/or extended to him a real opportunity to reply to adverse information. 2. The Second Respondent denied the Applicant procedural fairness and/or made an error of law because the applicant was refused to represent his claims/comments orally. By refusing to schedule an oral interview with the Applicant, the Second Respondent fell into error/denied the Applicant procedural fairness. 22 The primary judge at J[23] understood the central premise contained within the grounds to be that the appellant had been denied procedural fairness: the Authority refused to schedule an oral interview and the appellant was not afforded a real opportunity to reply to adverse information. 23 The primary judge noted at [24] the appellant's representative indicated the appellant wanted to make a submission, however did not ask for an interview. Subsequently, a written submission and supporting documents were given to the Authority. The primary judge went on at J[25] to consider why the Authority did not err: The second matter and more substantive matter to observe is that the Authority is required to conduct its review without accepting or requesting new information. There exists no obligation on the Authority to interview the Applicant: section 473DC of the Act. There does not appear to be any error in the way the Authority dealt with the articles attached to the submission given the terms of section 473DD of the Act. 24 The application for review was dismissed.

This appeal 25 The appellant's notice of appeal raises one ground, supported by seven particulars, which the parties agree raises two propositions where jurisdictional error allegedly occurred. 26 First, whether the primary judge misunderstood the operation of part 7AA of the Act and mischaracterised s 473DC. 27 Second, had the primary judge appreciated the proper operation of part 7AA, and in particular the discretion in s 473DC, his Honour would have found the Authority erred in failing to exercise the s 473DC discretion to obtain further information or documents before making adverse factual findings. 28 Section 473DC provides: 473DC Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way.

The appellant's submissions 29 The appellant's counsel submitted the fundamental problem with the FCC decision is found at J[25], extracted at paragraph 23 above and particularly the following sentences: [T]he Authority is required to conduct its review without accepting or requesting new information. There exists no obligation on the Authority to interview the Applicant: section 473DC of the Act. 30 The appellant submits s 473DC of the Act gives the Authority discretion to obtain new information or documents not before the Minister that the Authority considered relevant. The appellant takes issue with the primary judge having not referred to that discretion in circumstances the appellant says was relevant. 31 The appellant points to the following instances where more information should have been sought in respect of findings the Authority made about the appellant in relation to the 2012 incident: (a) the appellant providing "significantly less detail" about the 2012 incident than about his 2005 or 2011 incidents and concluding it was not credible that the appellant's father would not have told the appellant how many men were at the home, whether they were wearing uniform and why they wanted to speak to the appellant, citing A[16]; (b) why the appellant did not mention documents had been taken from the family home in the arrival interview (A[17]); and (c) why the appellant's father went to Kalmunai police station to lodge a complaint, being the same police station which the unknown men involved in the 2012 incident ordered the appellant to attend (A[18]). 32 Had the primary judge correctly appreciated s 473DC, the appellant submits that his Honour would have correctly identified the Authority erred by failing to exercise a discretion to obtain further information and not requesting the appellant for an interview. 33 The appellant's position was the Authority should have applied some effort to clarify the considerations set out in A[16], [17], [18], including potentially requesting information from the appellant's father who resides in Sri Lanka or further clarify from the appellant details of who the unknown men were. 34 The appellant relied on a number of cases where the court found it was unreasonable for the Authority to not exercise its discretion under s 473DC: CVP17 v Minister for Immigration and Border Protection (2021) FCA 1502 at [46] referring to Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 526; DPI17 v Minister for Home Affairs (2019) 269 FCR 134.

The Minister's submissions 35 As to whether the primary judge misunderstood the relevant sections of the Act, the Minister submits that read in context, J[25] demonstrates the primary judge correctly appreciated those sections at Part 7AA of the Act. 36 The Minister submits the first sentence of J[25] is reminiscent of s 473DB, which provides the general prohibition. Section 473DB(1) reads: Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (Emphasis added.) 37 The Minister submits that it is apparent from the extract from the reasons above that the primary judge appreciated that the general prohibition on new information was subject to the exceptions contained within Part 7AA, including the discretions conferred by ss 473DC and 473DD. The Minister submits the primary judge in the second sentence then refers to the first exception to that general prohibition, which reflects s 473DC. Section 473DC(1) provides the Authority with the discretion to obtain documents or new information. 38 The Minister then notes in the final sentence of J[25] the primary judge refers to the second exception to s 473DB, being s 473DD. 39 The Minister submits there are two obstacles to the appellant's second proposition that the Authority failed to exercise discretion under s 473DC. 40 First, the Minister submits the terms of the statute are clear. The section contains no obligation on the Authority to consider exercising its discretion. Therefore, the Authority's failure to mention that discretion conferred by s 473DC cannot constitute an error. 41 Second, in circumstances where the Authority was obliged to consider exercising the discretion, there was no denial of procedural fairness to the appellant in its failure to do so. The Authority was not obliged to give a referred appellant notice of its proposed findings. Contrary to the basis of the error identified in CRY16 and DZU16, the Authority did not make a finding adverse to the appellant on a point not previously considered by the delegate. 42 The Minister relies on the reasoning of Thawley J in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 in support of their submissions. Justice Thawley did not consider the Authority's failure to consider inviting the appellant to "comment" on the new country information under s 473DC to be legally unreasonable. In particular, at [55] and [56]: 55 The appellant submitted that the failure to "invite comment" under s 473DC(3) was legally unreasonable because the failure had the effect that a decision was made by the Authority in reliance upon information the significance of which the appellant was left unaware. The appellant submitted that there was no intelligible justification for doing so. 56 This submission incorrectly views the matter through the lens of natural justice. It fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware. Section 473DE(3), for example, expressly contemplates such a result. What the appellant had to show was that in circumstances where: (1) the statutory scheme restricted the natural justice hearing rule; and (2) s 473DE(3)(a) disengaged what otherwise would be the operation of s 473DE(1) (for present purposes it is not necessary to decide whether s 473DE(1) would in fact have applied - that is whether s 473DE(1)(a)(i) and (ii) were satisfied), there was nevertheless a legally unreasonable failure to exercise the discretion conferred by s 473DC. 43 Relying on the reasoning in CCQ17 (adopted by O'Bryan J in CVP17) the Minister submits the appellant has not identified anything relied on by the Authority in A[16] and [17] which would suggest that the restrictions on natural justice imposed by the statutory scheme ought not to apply such that it was obliged to, but did not, consider the exercise of discretion under s 473DC. 44 The Minister also referred to the Full Court in DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551. DGZ16 contemplated the concept of reasonableness in the failure to exercise a discretion under s 473DC: 69 [T]he starting point for analysis is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions. Instead, the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant: s 473DB(1). Also, by s 473DA, Div 3 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. In our view, SZBEL is not the appropriate starting point. 70 It is to be noted that the present case is not one where the Authority has decided a point which was not the point decided by the delegate, but rather one where additional information is necessary in order to complete the review. We refer to Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, where the Authority affirmed the decision of the delegate to refuse to grant the SHEV but on the different basis of relocation which the delegate had not addressed. Thus there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3). (Emphasis added.)

Consideration 45 I am satisfied the primary judge did not err in his construction of s 473DC at J[25]. The statutory scheme set out at ss 473DB, 473DC and 473DD makes it clear that there exists no obligation on the Authority to invite the relevant applicant to an interview to explain their claims, or to proactively ascertain additional information from other sources (such as the appellant's father) to fill holes in the appellant's case. The statutory scheme confers on the Authority a discretion. The discretion is subject to the implied condition that it be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 46 Justice O'Bryan explained the statutory scheme in CVP17: 43 Subsection 473DA(1) stipulates that Div 3 of Pt 7AA, together with ss 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. 44 Section 473DB stipulates that, subject to Pt 7AA, the Authority must review a fast track reviewable decision referred to it by considering the review material provided under s 473CB without accepting or requesting new information and without interviewing the referred applicant. In other words, the review is to be conducted "on the papers". However, s 473DC empowers the Authority to seek documents or information that were not before the Minister when the Minister made the decision under s 65 and that the Authority considers may be relevant. The discretion conferred on the Authority by that section is subject to the implied condition that it be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li): see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21] per Gageler, Keane, and Nettle JJ and at [86] per Gordon J. The content of the constraint of reasonableness in this legislative context is informed by the legislative features of the scheme of review set out in Pt 7AA: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] per Allsop CJ, Griffiths and Wigney JJ agreeing; SZVFW at [59] per Gageler J. 45 Section 473DD contains further restrictions on the power of the Authority to consider new information when conducting the review. It stipulates that the Authority must not consider new information unless it is satisfied that there are "exceptional circumstances" and, in relation to new information given or proposed to be given by the referred applicant to the Authority, the referred applicant has satisfied the Authority that the information was not and could not have been provided to the Minister before the Minister made the primary decision and the information is credible personal information which was not previously known and, had it been known, it may have affected the consideration of the referred applicant's claims. 47 The cases relevant to whether a failure by the Authority to seek additional information from a visa applicant under s 473DC when conducting a review is unreasonable in the legal sense were helpfully summarised by O'Bryan J at [46(a)]-[46(g)] of CVP17. Sub-paragraphs (a) and (b) are extracted below: (a) … Pt 7AA of the Act is an "exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority": DGZ16 at [69] per Reeves, Robertson and Rangiah JJ. (b) As a general proposition, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69 at [74] per Collier, Middleton and Rangiah JJ. It is open to the Authority to reach a decision based on the review material even if the referred applicant is unaware of the significance of that material: CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [55]-[57] per Thawley J. 48 As Thawley J pointed out in CCQ17 at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. 49 The Full Court in DPI17 endorsed at [38] the three essential steps identified by Thawley J at [51] in CCQ17 in determining whether an established failure to consider exercising a discretionary power was legally unreasonable: (1) identify the failure with precision; (2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and (3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense. 50 The Full Court in DPI17 observed at [39] that the third step highlights the fact that a mere failure to consider the exercise of the power under s 473DC is insufficient per se to give rise to jurisdictional error. 51 The cases relied upon by the appellant, CRY16 and DZU16, are both relocation cases, where additional information as to the reasonableness of the visa applicant's relocation was considered to be necessary in order to complete the review, both cases being in relation to whether the visa applicant could relocate to a particular area within their home country. 52 In CRY16, the Authority made a decision adverse to the visa applicant, but on a different basis to the decision made by the delegate. As a result it became necessary for the Authority to consider the reasonableness of the visa applicant's relocation, an issue not considered by the delegate. In those circumstances, the Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the visa applicant in circumstances where the Authority knew that it did not have, but the visa applicant was likely to have, information on his particular circumstances and the impact upon him of relocation. Justice O'Bryan observed in CVP17 at [46(d)]: The Full Court (Robertson, Murphy and Kerr JJ) [in DZU16] applied CRY16 in finding that it was legally unreasonable for the Authority not to have considered whether to exercise its discretion under s 473DC of the Act to invite the visa applicant to an interview to give new information in respect of whether relocation to that area was practicable (at [81], [85]). 53 I do not accept that the Authority here was required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. 54 In the present case, the appellant's credibility as to the 2012 incident was clearly identified as a relevant issue at least since the delegate's decision. The appellant had an opportunity before the Authority, of which he took advantage, to respond to the delegate's decision and to put submissions in relation to his credit and each of the 2005, 2011 and 2012 incidents. As noted above, the Authority considered these new submissions to the extent permitted. 55 Although not strictly required pursuant to s 473DC(2), neither the appellant nor his agent requested the Authority exercise its discretion under s 473DC to obtain new information from him at an interview. The fact that the Authority made no reference to s 473DC in its analysis was consistent with the absence of any submission put to the Authority in that regard. It does not support the inference that the Authority was unaware of or ignored its powers under s 473DC. 56 The dispositive issues at A[16], [17] and [18] before the Authority were the same as before the delegate: whether the appellant's account of the 2012 incident was credible and whether the 2012 incident involved the unknown men taking the appellant's personal documents. In addition to the further submissions put on by the appellant's representative, the Authority considered the same information in respect of the 2012 incident that was before the delegate, and upheld the delegate's decision based on that information. 57 This is to be contrasted with DPI17, where the Full Court found it was legally unreasonable for the Authority to not consider exercising the s 473DC direction. The unreasonableness in that case arose in circumstances where the appellant had not made any submissions to the Authority directed to an important element of his claim for protection in circumstances where the delegate had accepted the appellant's claims and the Authority came to a different determination on the central question. In the particular circumstances of DPI17, while it was open to the Authority to come to a different view on the significance of inconsistencies, in the case of the inconsistencies which the delegate viewed as inconsequential, it was legally unreasonable for the Authority to fail to consider whether or not to exercise its power under s 473DC in relation to those inconsistencies. Given the significance which the Authority attached to the inconsistencies, the Full Court considered that the outcome of the review could have been different. 58 In my view, the decision of the Authority not to invite new information in respect of the 2012 incident cannot be characterised as legally unreasonable in the circumstances of this case. 59 This is not a case like CRY16, DZU16 or CVP17, where the Authority made a decision on a different basis to the delegate in circumstances where the appellant had no notice, the Authority knew it did not have information on the appellant's circumstances that was necessary to performing the review, and knew that the appellant would be likely to have that information. The appellant's credibility had been in issue since the delegate's decision. 60 Here, the Authority had no reason to believe that the appellant possessed new information relating to the 2012 incident that was necessary for the Authority to consider as part of its review. The requirement for reasonableness (which Gageler J in Li explained at [92] was closely linked to procedural fairness) did not require the Authority to improve the factual case run by the appellant by filling evidentiary gaps that had existed in the case since it was first put before the delegate. This is amply demonstrated by the appellant's suggestion that the Authority should have sought further information from the appellant's father as to the 2012 incident, a man located overseas and not a witness before the Authority. 61 As such, I find the primary judge did not err in finding the Authority afforded the appellant procedural fairness. No jurisdictional error has been established on the part of the Authority. The appeal is dismissed. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe.