Should the appeal be upheld?
55 As set out at [28], the amended ground of appeal advanced is as follows:
The Immigration Assessment Authority (IAA) adopted an unduly narrow construction of s 473DD(a) of the Migration Act 1958 (Cth) by failing to consider s 473DD(b)(ii) in respect of the six documents given by the Applicant to the IAA as "new information" on 25 October 2016, and the decision of the IAA is therefore affected by jurisdictional error.
56 Mr Kay Hoyle accepts that there is no explicit finding by the IAA that the six letters did not contain credible personal information but submits that on a fair reading of [6] of its reasons, it may properly be inferred that the IAA had considered the documents and reached the conclusion that because of their nature they were not probative (transcript p 39 lines 17-18). Mr Kay Hoyle very fairly acknowledged that what was said by the IAA in [6] is the only relevant part of its reasons in that regard (transcript p 30 lines 10-19).
57 An administrative tribunal is entitled to considerable latitude as to how it expresses itself. Its reasons must not be subjected to pedantic criticisms or examined with an eye keenly attuned to the detection of error: Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at [22].
58 However, it is settled law since the High Court's decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 211 CLR 476, that a Commonwealth administrative tribunal's decisions cannot be immunised from review for jurisdictional error. And, as the High Court's decision in Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Palme [2003] HCA 56; 216 CLR 212 at [48] per Gleeson CJ, Gummow and Heydon JJ makes clear, "[s]uch error may be found from what is disclosed by [the tribunal's] reasons…".
59 Thus the way a decision-maker sets out his or her findings of fact may reveal that he or she has misconceived his or her statutory function. As McHugh, Gummow and Hayne JJ held in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 (Yusuf) at [69] (applied by a Full Court of this Court in Soliman v University of Technology, Sydney [2012] FCAFC 146 (2012) 207 FCR 277 (Marshall, North and Flick JJ) at [54]):
The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
(Emphasis in original, footnote omitted.)
60 An omission may reveal that a tribunal such as the IAA has made an error of law amounting to jurisdictional error: Yusuf at [10]. Scrutiny enables the courts to supervise the work of tribunals and ensure they act according to law. As Rares J observed in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108; 187 FCR 362 at [86]:
… the importance the courts have placed on the absence from the written statement … of some matter that would have demonstrated that the decision was made according to law or not affected by jurisdictional error. A written statement ensures transparency in the tribunal's exercise of a power conferred on it by the Parliament. This transparency is essential … to enable the Court to exercise the judicial power of the Commonwealth in reviewing whether the decision was made according to law or affected by a jurisdictional error.
61 In Yusuf, McHugh, Gummow and Hayne JJ also held at [69] that where a tribunal has a duty to give reasons a reviewing court is entitled to infer "that any matter not mentioned … was not considered by the Tribunal to be material". The IAA's duty to give reasons is provided for by s 473EA of the Migration Act.
62 A party seeking to contend that a tribunal's stated reasons should be augmented by implied unstated findings therefore faces a difficult task: see Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 135 ALD 45 per Robertson J at [18] and Tauariki v Minister for Immigration and Citizenship [2012] FCA 1408; 135 ALD 51 per Cowdroy J at [43]-[44].
63 That is not to suggest that what the High Court said in Yusuf elevates, to a rule of law, the proposition that a reviewing court must always conclude that any matter not mentioned by a tribunal was not considered by it to be material. I accept Mr Kay Hoyle's submission that the way a decision is expressed, read fairly and in context, will sometimes show that a tribunal has made a particular finding despite there being no mention of it in its reasons.
64 Mr Kay Hoyle accepts that there is no explicit finding by the IAA that the six letters did not contain credible personal information but submits that on a fair reading of [6] of its reasons it may properly be inferred that the IAA had considered the documents and reached the conclusion that, because of their nature, they were not probative (transcript p 39 lines 17-18).
65 I proceed on the basis that if such an inference is available to be drawn, then, notwithstanding what might be legitimate criticism of an absence of reasoning in support, it could not be concluded that the IAA had misapprehended its statutory duty and fallen into jurisdictional error by giving the provisions of s 473DD too narrow a construction.
66 Mr Kay Hoyle very fairly acknowledged that what was said by the IAA in [6] is the only relevant part of its reasons in that regard (transcript p 30 lines 10-19).
67 Mr Kay Hoyle's submission that such an inference should be drawn in the facts of this case necessarily rests on whether the words "purport to attest", on a fair reading of the IAA's reasons in [6], entitle this Court to infer that the IAA had reasoned as counsel for the Minister submitted it had.
68 It is therefore convenient to restate that paragraph of the IAA's reasons:
New information from the applicant
6 On 25 October 2016 the applicant's former representative forwarded six documents to the IAA on behalf of the applicant. There is no submission attached. The documents range in dates from 4 October 2016 to 24 October 2016 and all purport to attest to the applicant's claims. It is apparent from the dates on the documents that they only came into existence on or after the date of the delegate's decision and therefore could not have been provided to the delegate. However, they deal with the events of July/August 2012 (the period covered by the applicant's claims). They appear to have been obtained by the applicant for the purpose of his visa application. It is not apparent why these attestations could not have been obtained earlier. I note the applicant was represented by the same registered migration agent before the Department that has now forwarded the documents on his behalf. I am not satisfied that there are exceptional circumstances to justify consideration of the information.
69 It is appropriate to make the following initial observations:
70 First, the IAA did not describe, even in the most summary of terms, the nature or content of the documents it had been provided with on the applicant's behalf.
71 Second, the explicit reasoning of the IAA turned exclusively on whether taking those documents into consideration was consistent with only the first limb of s 473DD(b). The IAA's reference to a want of explanation for the six letters coming into existence is not a finding as to the credibility or otherwise of their content. It clearly relates to the IAA's reasoning that it "is not apparent why these attestations could not have been obtained earlier". Had their content been given attention, the purpose of their production would have been obvious: self-evidently the letters had been sought and obtained by the applicant to address a specific adverse finding of fact (and in relation to that fact, the credit of the applicant) made by the Delegate.
72 Third, I accept Ms Garsia's submission that in the context of paragraph [6] the expression "purport to attest" was a grammatically neutral and appropriate use of those words to describe what the IAA had recognised them to be "before proceeding to look at whether the documents should be considered". That of course is indicative and not dispositive. The IAA's reasons are to be given a fair reading and not be subjected to pedantic criticisms. Having regard to those observations, what a tribunal can be understood to have meant will not necessarily be consistent with ordinary principles of grammatical construction. However, in the ordinary case, the grammatical reading of a decision can be expected to convey what the decision-maker meant.
73 Fourth, it is implausible that the letters were so inherently wanting in relevance and credit that their possible probative status as might be relevant to the second limb of s 473DD could, giving the IAA's reasons a fair reading, be reflected in the expression "purport to attest". Such a suggestion however appears to be made in [28] of the Minister's submissions:
The applicant sought to rely on six letters provided to the IAA in 2016.3 Those letters all carried dates in October 2016 but dealt with certain incidents alleged to have occurred to the applicant in 2012. The authors of the letters state that they know the applicant. However, the matters that they deal with are a recitation of the applicant's claims; they are not direct testimony and do not corroborate what occurred but rather relate what happened as a report. There is no indication that any of the writers have first-hand knowledge or acquired knowledge of the incidents other than being told (presumably by the applicant) that they had occurred. The basis of the assertions made is not identified and the applicant provided no explanation in his covering e-mail as to the provenance of the letters or what they could demonstrate (in an evidentially meaningful way). That is the context for the IAA's consideration of the letters at [6] of the Decision.
74 I reject that proposition. The Minister's submission that "[t]here is no indication that any of the writers have first-hand knowledge or acquired knowledge of the incidents other than being told (presumably by the applicant) that they had occurred" rests on unsound premises. Each writer of the six letters stated that before he had left Sri Lanka the applicant was well known to them. Each writer was from BEZ17's home district of Mannar. Each writer appeared to hold a position of some seniority and responsibility.
75 The IAA is not bound by the rules of evidence. It would have been an error of law for it to have dismissed such testimony on the basis that the authors of the six letters did not give direct testimony of events they had actually witnessed but rather of what they had learned of events that had happened in their neighbourhood: see BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463 per Kenny J at [97]. In oral argument Mr Kay Hoyle accepted that a person who lived in a local community where fishing huts had been burnt down in the course of a dispute between Muslim and Tamil fishermen might well know of those events. If it needs to be said, there is nothing at all in the materials before the Court that could justify the use of the words in brackets in Mr Kay Hoyle's submission.
76 I have noted above that a party seeking to contend that a tribunal's stated reasons should be augmented by implied but unstated findings faces a difficult task. I am satisfied that that task has not been achieved by the Minister in this instance.
77 While each appeal must turn on its specific facts I respectfully adopt the reasoning process in CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192; 257 FCR 148 as relevantly analogous. In that case a Full Court of this Court (Gilmour, Robertson and Kerr JJ) held as follows:
44 In our opinion, the proper and fair reading of … the Authority's reasons is that, in considering whether or not it was satisfied that there were exceptional circumstances, it considered only the fact that the new information which related to events which occurred prior to the primary decision being made was not brought forward before. It did not take into account why the new information was not brought forward before or any other circumstances. It did not address itself to whether the material was credible personal information or information of such a character which was not previously known to the Minister and, had it been known, may have affected the consideration of the appellants' claims. We do not accept the submission on behalf of the Minister that the paragraph should be read as, in effect, containing other reasons for the conclusion of the Authority. In so concluding, we have read the paragraph as a whole and in context.
45 It follows that, in our view, the primary judge was in error in concluding, … that the Authority did take into account the appellants' claims in relation to considering whether there were exceptional circumstances to justify considering the new information.
78 I am satisfied that the IAA misapprehended its statutory duty and fell into jurisdictional error by misapplying the law by giving the provisions of s 473DD too narrow a construction.
79 I uphold the appeal. The first respondent is to pay the applicant's costs of the appeal as assessed or as agreed.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr.