APH17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-01-27|Before: Markovic J

The appeal be dismissed.
The appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MARKOVIC J: 1 This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for review of a decision of the second respondent (Authority) made on 30 January 2017: see APH17 v Minister for Immigration & Anor [2019] FCCA 3286 (APH17). The Authority had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Safe Haven Enterprise visa (SHEV).

BACKGROUND 2 The appellant is a Tamil Hindu from the Mannar District of Sri Lanka and a Sri Lankan citizen. He arrived in Australia in 2012 and applied for a SHEV on 12 April 2016. He claimed to fear harm from the Sri Lankan Army (SLA) in connection with a complaint he made about the sexual harassment of his wife by members of the SLA. The appellant claimed that SLA members would go to his home when he was at work and harass his wife once or twice a week. 3 In mid-March 2012 the appellant went to an SLA camp close to his home and made a complaint to the person in charge of the camp. About a week later army personnel attended his home and beat him. One of them threatened to kill him. After that incident the appellant and his family moved to his uncle's house, which was about 100 metres away. 4 The appellant was later called to attend an SLA camp close to his home, questioned by army personnel about his and his family's associations with the Liberation Tigers of Tamil Eelam (LTTE), and released. The SLA said that the appellant had to go to them whenever they called him. Thereafter the appellant avoided army checkpoints on his way home from work and moved by himself to a house closer to his workplace. 5 The appellant also feared adverse attention from the SLA due to an incident in 2006 involving his brother and a bomb blast which killed members of his brother's wife's family. 6 On 1 October 2016 a delegate of the Minister refused to grant the appellant a SHEV. On 30 January 2017 the Authority affirmed the delegate's decision.

THE AUTHORITY'S DECISION 7 The Authority's decision is set out in detail at [7]-[17] of the reasons for judgment of the primary judge. Only those parts of the Authority's decision that are relevant to this appeal are summarised below. 8 The Authority commenced by addressing the information before it. It noted that it had had regard to the material referred to it under s 473CB of the Migration Act 1958 (Act) and that the appellant's representative had also provided a submission to it which referred to three country information reports. The Authority considered that the submission and two of the three reports were not new information but that the third report was new information for the purposes of s 473DC(1) of the Act. However, it was not satisfied under s 473DD that there were exceptional circumstances to justify considering that report. 9 The Authority then considered the appellant's claim relating to the sexual harassment of his wife and their interactions with the SLA. It noted that there was information before it which indicates that rape and other forms of sexual and gender based violence are committed by police and security forces in Sri Lanka. The Authority accepted that the appellant's wife was sexually harassed by members of the SLA, as a result the appellant made a complaint to the commander of the large army camp close to his home, he was visited at home and beaten by members of the SLA following the making of the complaint, and one of them threatened to kill him. The Authority noted that the appellant's evidence at the SHEV interview was consistent with his written claims, including that while he was being beaten the SLA members referred to his having made a complaint to "the big boss". It accepted that after this the appellant and his family moved to his uncle's house. 10 The Authority also accepted that the following week the appellant was called to the SLA camp for questioning, asked in detail about his family, including his family's connections to the LTTE, and released after about one and a half hours. 11 The Authority considered that the incident described by the appellant in which he was questioned about his and his family's details and LTTE connections was consistent with country information that Tamils, particularly in the north and east of Sri Lanka, were monitored and harassed in day-to-day life under the Rajapaksa Government, citing paras 3.7-3.8 of a country information report on Sri Lanka by the Department of Foreign Affairs and Trade (DFAT) dated 18 December 2015 (2015 Report). 12 The Authority accepted that following this incident the appellant moved away from his uncle's house closer to his workplace where he lived for approximately five months before he left for Australia and that in that period he did not hear again from the SLA. The Authority noted that the delegate had asked him whether his wife was bothered at home during this time and the appellant had stated that, after they moved, the SLA was not angry with his wife but they were targeting him, that "his wife is from that village" and he is the "new one". The Authority noted that the delegate had also asked whether the appellant could have continued living safely there and the appellant stated that it was not just this complaint he had made. He claimed that the SLA was also looking at him in relation to another incident that occurred in 2006 (see [5] above) but that they did not know it was him. 13 Considering the evidence as a whole, the Authority was not satisfied that, at the time the appellant left Sri Lanka, the SLA was interested in him as a result of the complaint he lodged about the sexual harassment of his wife. The Authority accepted that the appellant was beaten and threatened following the making of that complaint in retaliation for his having made the complaint. However, it noted that, with the exception of the questioning that occurred the following week, the appellant did not claim to have experienced any further adverse attention from the SLA or other authorities in the period after the beating until he left Sri Lanka, despite the fact that the appellant continued to live in the Vavuniya area. 14 The Authority accepted that the appellant moved to his uncle's house but, on his own evidence, this was only 100 metres away, and it considered he would have been easily located had the SLA been interested in him. It noted that the SLA did not bother his wife or family again and the appellant had not claimed that anyone had come to his house looking for him since his departure. The Authority accepted that the appellant was called in for questioning but noted that this appeared to have been an instance of routine monitoring and harassment to which many residents in the area were subject, citing paras 3.7-3.8 of the 2015 Report. 15 The Authority noted the appellant's submission that he is a member of a particular social group, namely individuals who have made claims of sexual assault against members of the SLA, and that he is at risk on that basis because a complaint against army personnel is a serious crime punishable by imprisonment. It found that, even if it accepted that submission, for the reasons set out at [13]-[14] above, it was not persuaded that the appellant faced a real chance of harm on that basis. 16 The Authority was not satisfied that the appellant would suffer harm from the SLA in the reasonably foreseeable future on the basis of the sexual harassment complaint he made against them or on the basis of any of his other claims. It concluded that the appellant did not satisfy the requirements of s 36(2)(a) of the Act. 17 The Authority was also not satisfied that there was a real risk that the appellant would face significant harm for any of his claimed reasons if he were to return to Sri Lanka now or in the reasonably foreseeable future and concluded that he did not satisfy the requirements of s 36(2)(aa) of the Act. 18 Accordingly, the Authority affirmed the delegate's decision.

FEDERAL CIRCUIT COURT PROCEEDING 19 The appellant relied on an amended application before the Federal Circuit Court in which he raised the following grounds: Ground 1 The Immigration Assessment Authority's decision was vitiated by a constructive failure to exercise jurisdiction in that the Authority did not form the state of satisfaction (one way or another) required for the purposes of the review in respect of the criterion in subsection 36(2)(a) or (aa), because the Authority did not evaluate at all the latest iteration of the country information report. Particulars 1.1 The Authority's decision was made on 30 January 2017 1.2 DFAT published and made available to the Authority the 2017 Department of Foreign Affairs and Trade (DFAT) country report on Sri Lanka on 24 January 2017 1.3 The Authority informed itself by reference to the 2015 DFAT country report on Sri Lanka to the exclusion of the latest iteration Ground 2 Further or alternatively to Ground 1, the Authority's decision was vitiated by a constructive failure to exercise jurisdiction by not 'getting', or not considering whether to 'get', under 473DC, the 2017 DFAT country information report on Sri Lanka, which failure disabled the Authority from fulfilling its statutory task and was unreasonable. Particulars 2.1 The Particulars to Ground 1 are repeated 20 The primary judge noted that he had in evidence before him: the 2015 Report which was before the Authority; a DFAT country information report on Sri Lanka dated 24 January 2017, shortly before the date of delivery of the Authority's reasons (2017 Report); and an email from DFAT identifying that the date on the 2017 Report, 24 January 2017, is the same date that it was released to decision-makers at the Department of Home Affairs and the Administrative Appeals Tribunal (Tribunal) and made publicly available: APH17 at [18]-[19]. 21 The primary judge then turned to consider the grounds raised in the amended application. 22 His Honour noted that by ground 1 the appellant alleged that the Authority did not evaluate country information, namely the 2017 Report. While his Honour accepted that the 2017 Report may have been available via the internet, he found that that did not mean the Authority was entitled to have access to the report and to take it into account. His Honour pointed out that the provisions of Pt 7AA of the Act relevantly include s 473DB which requires the Authority to review the delegate's decision on the basis of review material referred to it under s 473CB of the Act. In those circumstances and, subject to the issue raised by ground 2, his Honour found that no jurisdictional error arose by reason of the Authority not evaluating a report that was not before it: APH17 at [23]. 23 The primary judge noted that by ground 2 the appellant sought to advance that the Authority acted legally unreasonably in failing expressly to consider the 2017 Report or exercising the power under s 473DC of the Act in respect of the 2017 Report: APH17 at [24]. 24 The primary judge observed that it was apparent that the Authority wrote to the appellant on 11 October 2016 in relation to the review under Pt 7AA of the Act, that the review was required under those provisions to be conducted expeditiously and that the appellant provided submissions to the Authority on 6 November 2016. His Honour considered that it was apparent on the face of the Authority's decision record that it had an active intellectual engagement with those submissions: APH17 at [25]. 25 The primary judge found that the date of the 2017 Report, being six days before the delivery of the Authority's decision record, is of itself an evident and intelligible justification for the absence of expressed consideration by the Authority of the powers under s 473DC of the Act. His Honour said that this was not a case where the Authority was invited to await the publication nor was any step taken to provide the publication to the Authority or to invite the Authority to exercise its powers under s 473DC of the Act: APH17 at [26]. 26 For those reasons, the primary judge found that there was no legally unreasonable failure by the Authority to consider exercising its powers under s 473DC of the Act and that, in those circumstances, it was not necessary for the court to determine whether the 2017 Report would, in any event, have met the requirement of materiality to give rise to jurisdictional error. 27 Accordingly, his Honour dismissed the application with costs: APH17 at [27]-[28].

THE APPEAL 28 By an amended notice of appeal filed on 1 July 2020 the appellant relies on a sole ground of appeal being that the primary judge erred in not finding that the Authority unreasonably failed to consider exercising, or to exercise, the power to get new information under s 473DC of the Act.

Statutory framework 29 The delegate's decision in this case is a fast track reviewable decision under Pt 7AA of the Act. It was referred to the Authority under s 473CA of the Act. 30 Section 473CB(1) of the Act sets out the material that the Secretary must give to the Authority in respect of each fast track reviewable decision referred to it under s 473CA including: (1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA: (a) a statement that: (i) sets out the findings of fact made by the person who made the decision; and (ii) refers to the evidence on which those findings were based; and (iii) gives the reasons for the decision; (b) material provided by the referred applicant to the person making the decision before the decision was made; (c) 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; … 31 Division 3 of Pt 7AA of the Act concerns the conduct of the review. Relevantly, s 473DB(1) provides that, subject to the provisions in Pt 7AA of the Act, the Authority must review a delegate's decision referred to it under s 473CA on the basis of the review material provided to it under s 473CB of the Act without accepting or requesting new information and without interviewing the referred applicant. 32 Sections 473DC and 473DD of the Act respectively set out when the Authority may obtain "new information" and the circumstances in which such information may be considered. They provide: 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. 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.

The appellant's submissions 33 The appellant submits that the failure to get or consider getting new information under s 473DC of the Act was unreasonable and that the primary judge erred in failing to find that jurisdictional error had been established. The new information in issue is the 2017 Report. He submits that attention to the 2017 Report, rather than the 2015 Report, was a "core aspect" of the Authority's decision-making and that by failing to consider that information it did not perform as the law required. The appellant accepts that it cannot be a constructive failure to perform the task, but classifies it as an unreasonable failure to consider exercising, or to exercise, the power to get new information. 34 The appellant makes two arguments in relation to materiality. 35 First, he submits that the threshold of materiality for unreasonably failing to consider exercising, or to exercise, the power to get new information in respect of something as significant as relying on an out-of-date DFAT report is, metaphorically, "zero". The appellant submits that the Authority is an expert agency on the topic of country information and practical questions affecting protection claims, whereas the Court and counsel assisting it are not. He submits that the impact of even subtle or slight changes in language by DFAT are not readily apparent to those not expert in the field and a subtle shift in language might adjust the Authority's perception of a matter, stimulate further inquiry by it or prompt it to ask an applicant to present new information about some issue immediately explored by the delegate. He submits that this might happen in unnoticeable ways to a non-expert and an applicant should not be required to adduce expert evidence at court to show that there was a realistic possibility (being a very low threshold) of a different outcome had the Authority not relied on obsolete material and in fact relied on current material. 36 Secondly, the appellant submits that, in any event, materiality is established in this case. He says that the Authority considered his claims for protection including on the basis of the sexual harassment of his wife and interaction with the SLA prior to his departure from Sri Lanka. He submits that the Authority accepted that his wife was sexually harassed by members of the SLA and that, following his complaint to the commander of the SLA camp, members of the SLA beat and threatened to kill him. 37 The appellant submits that the relevant differences between the 2017 Report and the 2015 Report includes those in the following passages of the two reports (as written): 3.73 3.88 Violence against women occurs throughout Sri Lanka. UNFPA reported in 2015 that violence against women cut across all socioeconomic groups in Sri Lanka but was worst in areas affected by the conflict. Rape and domestic violence are criminalised under the Prevention of Domestic Violence Act of 2005. Marital rape is an offence only in cases where the individuals are legally separated. Sexual harassment is punishable under Section 345 of the Penal Code and can carry a maximum five year prison sentence. years' imprisonment. Reported incidents of sexual assault and rape have increased in recent years, and tend to be higher in remote areas. A, but the majority of cases are likely to go unreported due to associated social stigma. Domestic Incidence of domestic violence is also reported to be high, but is also likely to be underreported given the stigma associated with it and conservative views that it is a family matter, especially in Tamil culture., and tends to be underreported. The Asian Human Rights Commission has said that most cases reported to authorities result in 'settlements' which do not proceed to prosecution, although sentences are sometimes given in serious cases. President Sirisena's election manifesto committed Sirisena has expressed a commitment to taking action to prevent the abuse of women (and children), including speeding up the trial process for these offences. It is too early to assess implementation of this commitment. Some recent high-profile cases of violence against women, including the gang rape and murder of a schoolgirl in Jaffna (Northern Province) in May 2015, sparked community outrage and led to calls to implement the death penalty (see paragraph 4.10 below). Conditions for women in the north and east … 3.76 3.91 … There is only one safe house for women in the north and east, located in Jaffna. 3.77 Overall, DFAT assesses that women throughout all of Sri Lanka face a high risk of societal discrimination and violence, particularly domestic or intimate partner violence and there are few support mechanisms available to women in these circumstances. 38 The appellant submits that the 2017 Report suggested that gender-based violence, particularly in areas affected by the conflict where he lived, was a more serious problem than did the 2015 Report. He says that, with the up-to-date information contained in the 2017 Report, there was a realistic prospect that the Authority might have formed the view that there was a real chance of further harassment of his wife and further mistreatment of him if he made another complaint about this. 39 The appellant submits that the reported community outrage about gender-based violence documented in the 2017 Report ostensibly stood as additional motivation for the aggrieved members of the SLA to suppress claims of sexual assault, including that of his wife, and the consequential harassment and intimidation of him. He says that the up-to-date information could realistically have caused the Authority to view his claims to face further harm from SLA members upon his return more favourably. 40 Accordingly, the appellant submits that the differences between the 2017 Report and 2015 Report were material and, had the Authority performed its "core function" and considered the 2017 Report, this could have realistically altered the manner in which it assessed his claims and resulted in an outcome favourable to him.

Consideration 41 The appellant's ground of appeal raises two issues for consideration. First, was the Authority's failure to consider exercising, or to exercise, the power to get new information, namely the 2017 Report, under s 473DC of the Act unreasonable? Secondly, if so, was that failure material? I address each issue in turn.

Was the failure to consider exercising, or to exercise, the power under s 473DC of the Act to get the 2017 Report unreasonable? 42 It is convenient to commence with an examination of the relevant facts. 43 On 11 October 2016 the Minister's decision to refuse the appellant a SHEV was referred to the Authority for review. 44 It was not in dispute that the Authority had before it, as part of the review material provided by the Secretary pursuant to s 473CB of the Act, the 2015 Report and that the 2017 Report could not have been provided to the Authority as part of the review material under s 473CB of the Act. This was because the 2017 Report post-dated the referral of the matter to the Authority under s 473CA of the Act. 45 On 5 November 2016 the appellant's solicitor and registered migration agent provided a submission to the Authority which referred to the 2015 Report. It was also not in dispute that the appellant did not attempt to provide the 2017 Report to the Authority or ask it to consider that report or to obtain any new DFAT reports that may be available. 46 According to an email dated 25 June 2019 from an assistant director, country information section, human rights branch, multilateral policy division, DFAT, the 2017 Report was "released to decision makers at the Department of Home Affairs and the [Tribunal] and made publicly available" on 24 January 2017. The appellant accepts that it was not "released" in the same way to decision-makers at the Authority, noting that the language employed in DFAT's email reflects the requirements of a Ministerial direction, which I understand to be "Direction No 84 - Consideration of Protection visa application", obliging the Minister's delegates and the Tribunal to have regard to country information reports available to the decision-maker. There is no such direction in place in relation to the Authority. 47 The 2015 Report provides at [1.5] that: This updated Country Information Report replaces the previous DFAT report released on Sri Lanka, published on 16 February 2015, and the October 2014 DFAT Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam. 48 To the same effect the 2017 Report provides at [1.5] that: This updated Country Information Report replaces the previous DFAT report on Sri Lanka published on 18 December 2015. 49 The powers conferred on the Authority by Div 3 of Pt 7AA of the Act are "conferred on the implied condition that they are to be exercised within the bounds of reasonableness": Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21]. An unreasonable failure to exercise one of those powers could render invalid a purported performance by the Authority of the duty imposed on it by s 473CC of the Act to conduct a review: DPI17 v Minister for Home Affairs (2019) 269 FCR 134 (DPI17) at [91]. 50 In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (MZYTS) at [73]-[74] a Full Court of this Court (Kenny, Griffiths and Mortimer JJ) observed that: 73 Whatever might be the general principle that administrative decision-making should be based on the most up-to-date information (see Peko-Wallsend at 45) in the context of decision-making about s 36(2)(a) of the Migration Act and Art 1 of the Convention, attention to current information is not merely preferable, it is a core aspect of lawful formation of a state of satisfaction. This is, as we have endeavoured to explain, because of the predictive and speculative nature of the task involved in determining whether a person's fear of persecution for a Convention reason on return to her or his country of nationality is well founded. 74 That is not to say decision-makers cannot rely on information which is several years old. They may do so lawfully as part of a weighing process after considering all information available to them, and deciding which information best and most reliably supports the prediction of future risk they are called on to make. Perhaps more recent information simply confirms older and more detailed information. Perhaps the older information is more specific to the visa applicant's circumstances. Perhaps more recent information is from less reliable, or tainted, sources. There are many possibilities about why a decision-maker may choose, lawfully, to rely on older information and still perform the task required by s 36(2)(a) and Art 1. In such cases, one would expect the Tribunal's reasons to disclose this kind of evaluation process, and the conclusion it reached would be within its jurisdiction. 51 In Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (Peko-Wallsend) at 45 Mason J (as his Honour then was) stated: It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. 52 In MZYTS at [75] the Full Court endorsed the approach taken by Rares J in SZJTQ v Minister for Immigration and Citizenship (2008) 172 FCR 563 (SZJTQ) at [36]-[42] including where his Honour said: 37 … In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision "on the basis of the most current material available to [it]": Peko-Wallsend 162 CLR at 45. ... 39 Often, circumstances can change radically in the applicant for review's country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d'état and continuing governments may change their domestic policies to become more or less oppressive. 40 If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. ... Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered. … 42 Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45. 53 There is no obligation on the Authority to exercise its discretion under s 473DC to get new information but it may be legally unreasonable in some circumstances for the Authority not to consider whether it should do so: see DPI17 at [45]-[47]. 54 In CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42] Thawley J observed that there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC of the Act. 55 As the Minister submits, the question of whether a decision is legally unreasonable is answered by reference to whether the decision is within the scope, purpose and object of the relevant statutory source of power: see Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11]. The test for legal unreasonableness is to be approached "through the lens of the specific statutory scheme": see CCQ17 at [45]. At [46] and [48] Thawley J observed the following about the relevant statutory scheme, quoting his Honour's decision in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365 (BCQ16): 46 The discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority "does not have a duty to get, request or accept, any new information" whether requested to do so or in any other circumstance. Whilst this does not deny that the Authority must act reasonably in exercising or considering the exercise of its discretionary powers, what is reasonable must be assessed according to the statutory scheme. As was said in BCQ16 at [71]: Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably (Li at [63], per Hayne, Kiefel and Bell JJ; [88], per Gageler J), that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the "review material" and, subject to the statutory exceptions contained in Part 7AA, without obtaining "new information" or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme. … 48 It is also relevant to note that the statutory scheme contemplated by Part 7AA is one of limited review on the papers with a default position of not accepting or requesting new information: s 473DB(1). Section 473FA(1) contains a general exhortation that, in carrying out its functions under the Act, the Authority "is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)". 56 The appellant submits that I would draw two inferences: first, that the Authority did not have the 2017 Report before it; and secondly, that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report or, perhaps more accurately, to ensure that it had the current DFAT report before it. I accept that the former, but not the latter, inference is available. 57 As to the former, in its decision record the Authority refers to the 2015 Report on a number of occasions as well as to other country information including, for example, UK Home Office, "Sri Lanka: Tamil Separatism Version 2.0", 19 May 2016 and US Department of State, Sri Lanka - Country Report on Human Rights Practices 2015", 13 April 2016. In contrast, it makes no reference to the 2017 Report. Had the 2017 Report been before the Authority, it is likely that it would have referred to it in its decision record. 58 As to the latter, there is nothing in the Act that requires the Authority to give reasons for the exercise or non-exercise of its discretionary powers under Pt 7AA of the Act. That the Authority did not mention, in this case, the discretion conferred by s 473DC of the Act does not support the drawing of an inference that the exercise of the discretion was not considered by it: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [40]. 59 Thus I would not infer that the Authority did not consider whether it should exercise the discretion under s 473DC of the Act to obtain the 2017 Report simply because of the lack of a reference to undertaking that assessment in its decision record. There is nothing to suggest that such an inference should be drawn. For example, there is no evidence that the Authority was aware that the 2017 Report had been published. The appellant accepts that the Authority did not have constructive knowledge of its existence at the time it made its decision. It is equally open to infer, based on the facts of this case, that the Authority did turn its mind to whether there was a more up-to-date DFAT report available but it did so prior to the publication of the 2017 Report, which occurred only six days prior to the date of the Authority's decision. This demonstrates the danger in drawing the inference urged by the appellant. 60 Putting that to one side, even assuming that the Authority failed to consider the exercise of the discretion under s 473DC to get the 2017 Report, it was not legally unreasonable for it not to do so in this case. As set out above, what is reasonable must be considered in the context of the statutory scheme. The exercise of discretion in s 473DC(1) and (3) must be read with s 473DC(2) which provides that the Authority does not have a duty, among other things, to get or request new information: see CCQ17 at [32]. As Thawley J further observed in CCQ17 at [48], the statutory scheme contemplated by Pt 7AA is one of limited review on the papers with a default position of not accepting or requesting new information pursuant to s 473DB(1). In that context, any failure to consider the exercise of the discretion under s 473DC could not be seen as unreasonable: see Peko-Wallsend at 45; SZJTQ at [40]. That is particularly so in circumstances where there is no evidence that the Authority had actual knowledge of the 2017 Report and it is accepted by the appellant that the Authority did not have constructive knowledge of its existence at the time it made its decision.

Materiality 61 In case I am wrong about the conclusion I have reached above and the Authority unreasonably failed to consider exercising, or to exercise, its discretionary power under s 473DC of the Act to get the 2017 Report, I consider below whether the failure to do so was material. 62 In Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [28]-[30] Kiefel CJ and Gageler and Keane JJ said: 28 The common law principles which inform the construction of statutes conferring decision-making authority reflect longstanding qualitative judgments about the appropriate limits of an exercise of administrative power to which a legislature can be taken to adhere in defining the bounds of such authority as it chooses to confer on a repository in the absence of affirmative indication of a legislative intention to the contrary. Those common law principles are not derived by logic alone and cannot be treated as abstractions disconnected from the subject matter to which they are to be applied. They are not so delicate or refined in their operation that sight is lost of the fact that "[d]ecison-making is a function of the real world". 29 That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. 30 Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. … (Emphasis added.) (Footnotes omitted.) 63 In SZMTA v Minister for Immigration and Border Protection (2019) 264 CLR 421 (SZMTA) at [2]-[4] Bell, Gageler and Keane JJ held that a breach by the Tribunal of an obligation to disclose an invalid notification made under s 438 of the Act was a jurisdictional error "if, and only if, the breach is material". Their Honours explained that a breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to, in that case, the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome. 64 The appellant bears the onus of establishing that any breach is material. That question is an ordinary question of fact: see SZMTA at [46]. In this case the appellant has not discharged his onus. I am not satisfied that had the Authority exercised, or considered exercising, its discretion to obtain the 2017 Report, it could have made a difference to the outcome. 65 First, I do not accept the appellant's submission that the threshold for materiality in a case where the Authority fails to exercise, or to consider exercising, the discretionary power given to it to get an updated DFAT report is "zero" or so low as to be negligible. The appellant contends that this is so because the Authority should be taken to be an expert agency (and each of its members, an expert) with special expertise in relation to the analysis and effect of country information on claims for asylum. He says that in those circumstances he should not be required to adduce evidence to establish that there was a possibility of a different outcome had the Authority relied on the more up-to-date DFAT report. 66 However, the question of whether an error is material requires attention to be given to the statutory context and to the particular circumstances in which the decision was made: see Hossain at [30]. Part 7AA of the Act, in which s 473DC is found, establishes the Authority and provides the framework in which reviews are to be undertaken by it including by the conferral of particular discretionary powers on it and limitations on the extent to which it is to give procedural fairness: see BCQ16 at [71]. In that context, the Authority acts as fact finder. That being so, there is no proper basis for a conclusion that the question of materiality should be assessed other than in accordance with the tests espoused by the High Court in Hossain and SZMTA (see [62]-[63] above). 67 Further, as the Minister points out, to adopt a test of "zero" materiality for such an error could lead to unintended results. For example, there may be instances where an update of a DFAT report includes updated information but the part of the report which was so updated has no bearing on an applicant's claims or is not connected to the findings made by the Authority in a particular case. 68 Secondly, I am not satisfied that had the Authority exercised, or considered the exercise of, its discretion to obtain the 2017 Report, that report could have made a difference to the decision. The differences between the 2015 Report and the 2017 Report have been identified by the appellant (see [37] above). 69 Many of those differences are matters of expression, rather than substance. There are some material differences between the 2015 Report and the 2017 Report in relation to the topic of violence against women and conditions for women in the north and east of Sri Lanka. However, upon considering the Authority's decision record, in my opinion these are not matters that could have influenced the outcome of the Authority's decision. The Authority reasoned as follows: (1) it accepted that the appellant's wife was sexually harassed by members of the SLA, as a result of which he made a complaint to the commander of an SLA camp close to his home (at [13] of its decision record); (2) it accepted that the appellant was called to the SLA camp for questioning the week following the harassment and questioned about his family's LTTE connections (at [15] of its decision record); (3) however, it was not satisfied that at the time the appellant left Sri Lanka the SLA was interested in him as a result of the complaint he lodged about the sexual harassment of his wife, noting that the SLA did not bother his wife or family again and the appellant did not claim that anyone had come to his house looking for him since his departure (at [17] of its decision record). 70 The substantive differences between the 2015 Report and the 2017 Report could not have influenced those findings nor does the appellant identify how the differences between the 2015 Report and the 2017 Report could have resulted in a different outcome. To simply point to the fact that there are differences between the two reports and suggest that because of those differences there was a realistic prospect that the Authority might have formed the view that there was a real chance of further harassment of the appellant's wife and further mistreatment of the appellant if he complained about this, is not sufficient. 71 Thirdly, the appellant placed some reliance on EVS17 v Minister for Immigration and Border Protection (2019) 268 FCR 299 (EVS17) to contend that the threshold for assessing materiality is low in circumstances where there is inadequate or incomplete information. That case concerned the failure by the Secretary to provide certain documents in relation to the appellant's medical condition to the Authority pursuant to s 473CB(1)(b) of the Act. A Full Court of this Court (Allsop CJ, Markovic and Steward JJ) held at [35] that the consequence of such a failure may be to prevent the Authority from conducting the review contemplated by Pt 7AA such that jurisdictional error on the part of the Authority is established but that, whether that is so, will depend on the gravity of the breach. Commencing at [36] the Full Court considered whether the failure to comply with s 473CB(1) in that case was material. At [42] their Honours said: Having regard to those considerations, the requirements of s 473CB(1) of the Act by which the Secretary must provide the material referred to therein and the nature of the review prescribed by Pt 7AA, the test for which the Minister contends is inapt. It imposes too high a bar. Given the statutory purpose of a fair hearing, a lower threshold of materiality is called for. That is, one that considers whether the documents that were not provided by the Secretary could have resulted in the making of a different decision: see Hossain at [31]. In other words, there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Pt 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review. Whether that is so should be considered by reference to an applicant's claims and the Authority's reasons. (Original emphasis.) 72 At [54] the Full Court concluded that the documents in question which the Minister had failed to provide to the Authority could have affected the outcome of the Authority's review. 73 It is not the case that there is any lower threshold where the breach in question concerns a failure to put all material before the Authority. The finding in EVS17 was that, given the nature of the documents and the claims made, the documents in question could have made a difference to the outcome. The circumstances of the present case are quite different to those before the Full Court in EVS17. Accepting that the 2017 Report was not before the Authority, when the differences between it and the 2015 Report are considered in light of the appellant's claims, for the reasons set out at [68]-[69] above, the same conclusion is not reached.

AUS17 V MINISTER OF IMMIGRATION AND BORDER PROTECTION 74 After judgment was reserved in this matter, the High Court handed down its judgment in AUS17 v Minister of Immigration and Border Protection [2020] HCA 37 (AUS17). The parties requested that I defer the handing down of judgment to permit them time to consider whether the decision in AUS17 affected the Authority's decision in this case. 75 On 26 November 2020 I made orders by consent for the parties to file submissions addressing the impact of AUS17 on the Authority's decision. In accordance with those orders, the Minister filed submissions but the appellant did not. The appellant informed the Court that he did not intend to file any submissions. From that I infer that he does not take issue with the way in which the Authority approached the assessment of the new information he provided to it. However, lest that not be so, I note that I would, in any event, accept the Minister's submissions that there was no error in the approach taken by the Authority in applying s 473DD to the new information that the appellant sought to provide to it. My reasons follow. 76 AUS17 concerned a protection visa applicant from Sri Lanka who feared mistreatment at the hands of the Eelam People's Democratic Party and the SLA. His claims were not accepted by a delegate of the Minister and the delegate's decision was referred to the Authority for review. The applicant's representative provided a submission to the Authority which attached a letter from a person identified as a former member of the Sri Lankan parliament, Appathuray Vinayagamoorthy, which sought to corroborate many of the applicant's claims. The Authority found that the letter was new information for the purposes of s 473DC(1) of the Act but refused to consider it for the following reasons: I accept the letter of support from Appathuray Vinayagamoorthy could not have been provided to the delegate as it was written after the delegate's decision. However, the information it provides recounts the claims already provided by the applicant and in that regard there is no reason to believe that the applicant could not have obtained a letter outlining this information earlier and provided it to the Minister. I am not satisfied that any exceptional circumstances exist that justify considering the new information. See AUS17 at [17]. 77 At [18] of AUS17 the plurality of the High Court (Kiefel CJ, Gageler, Keane and Gordon JJ) held that the Authority had misapplied s 473DD of the Act because it was required to assess the letter against both s 473DD(b)(i) and (ii) before considering whether there were exceptional circumstances for the purposes of s 473DD(a) of the Act. Their Honours accepted that the Authority had assessed the letter against s 473DD(b)(i) before turning to consider s 473DD(a) but found that it had not considered the letter against the criterion in s 473DD(b)(ii). 78 At [12] of their reasons, the plurality observed that the Authority does not perform the procedural duty imposed on it by s 473DD in the conduct of its review if it finds, in applying 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 in both s 473DD(b)(i) and (ii) and then taking the outcome of that assessment into account in its assessment against the criterion in s 473DD(a). Their Honours described the nature of the non-performance of the procedural duty as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a) of the Act. 79 As the Minister submits, notwithstanding the plurality's statement that "logic and policy" demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority's reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether "exceptional circumstances" exist for the purposes of s 473DD(a). 80 Finally, the plurality also observed that in some cases the Authority might not fall into jurisdictional error where it does not engage in an assessment of one of the limbs of s 473DD(b) where, in the circumstances of the case, the relevant limb was incapable of being met: see AUS17 at [18]. To like effect, Edelman J (who broadly agreed with the plurality) held there will be cases where the criteria in s 473DD(b) might not be relevant to s 473DD(a), for example when new country information is provided to the Authority which, his Honour considered, is plainly not personal information: see AUS17 at [24]. 81 In the present case, the Authority noted that it had received a submission on 6 November 2016 from the appellant that referred to a number of country information reports. The Authority took the submission into account to the extent that it comprised legal argument and commentary on the delegate's decision. The Authority also acknowledged that the submission referred to three country information reports, two of which had been included in the review material provided to the Authority by the Secretary under s 473CB(1) of the Act and therefore did not constitute new information and the third of which had not been included and was new information. 82 At [5] of its decision record the Authority considered the appellant's submission about the circumstances which he said constituted exceptional circumstances for the purpose of s 473DD(a) of the Act but concluded at [6] that it was not satisfied that there were exceptional circumstances such that the third report should be considered. In particular, the Authority said: 5. The three country information reports referred to in the submission each pre-date the delegate's decision. The May 2016 UK Home Office report was included in the material referred to the IAA by the delegate as was the 2015 Department of Foreign Affairs and Trade (DFAT) report and are therefore not new information. The third country information report referred to in the submission was not before the delegate and is therefore new information. The applicant's representative has submitted that there are exceptional circumstances for considering the new information. They are that the applicant is uneducated, does not understand or speak English, does not understand the law relating to protection claims and did not have the benefit of representation by a migration agent or lawyer throughout the assessment of the claim; he was therefore at a disadvantage in his dealings with the Department of Immigration and Border Protection. 6. The applicant's representative's claims that he did not have the benefit of representation during the process is an issue faced by many protection visa applicants. It is also the case that the majority of applicants do not have English language skills and do not understand the legal process relating to putting forward their claims. I am mindful of the general difficulties applicants may have in putting forward all of their claims and dealing with a government entity in an unfamiliar country. Nonetheless, these personal experiences are ones commonly faced by protection visa applicants. I also note that in her decision the delegate considered a range of country information from credible sources. I am not satisfied that the reasons provided by the applicant's representative for considering the new information amount to exceptional circumstances. I am therefore prevented from considering it. (Footnotes removed.) 83 In undertaking its consideration of the third report, the Authority did not expressly refer to s 473DD(b)(i) or (ii). However, I would infer that it had regard to the criteria in s 473DD(b) insofar as they were relevant and capable of assessment and took those criteria into account in undertaking its assessment pursuant to s 473DD(a). 84 The Authority noted (at [5]) that the third report pre-dated the delegate's decision and (at [6]) did not accept that because of the appellant's lack of education, inability to speak or understand English and lack of legal representation the report could not have been provided to the Minister before the Minister made the decision under s 65 of the Act. In that way it can be inferred that the Authority considered the criterion in s 473DD(b)(i). 85 As the third report was country information, it was not "credible, personal information" and was thus not capable of assessment against the criterion in s 473DD(b)(ii): see AUS17 at [18] (per Kiefel CJ, Gageler, Keane and Gordon JJ) and [24] (per Edelman J).

CONCLUSION 86 For those reasons the appeal should be dismissed. 87 As the appellant has been unsuccessful, it follows that he should pay the Minister's costs of the appeal as agreed or taxed. 88 I will make orders accordingly. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Markovic.

At a glance

Court

Decision date

Before

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (14)

Cited By (13)