BQQ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-03-25|Before: Katzmann J

Background 5 The first and second appellants are respectively husband and wife. The third appellant is their adult son. They are arrived in Australia by boat on 1 May 2013. As such, they were "unauthorised maritime arrival[s]" within the meaning of s 5AA of the Act and were barred from making a valid application for a visa (see s 46A(1)). Sometime after their arrival, they were released into the community, presumably on temporary protection visas. On 29 August 2016, after the Minister lifted the bar (see s 46A(2)), the Minister's Department invited the appellants to each apply for a SHEV. 6 While all of the appellants accepted the invitation, lodging their application on 24 September 2017, only the husband and son indicated in Part B of the application form that they wished to advance protection claims. Each of them also submitted typed signed statements setting out their claims for protection. While the wife indicated in her separate Part C form that she wished to pursue her own claims for protection, she did not submit a statement of her own in support of such a claim. Upon receipt and assessment of the validity of the application, the Minister's Department characterised the husband as the "primary" applicant, the wife as a "dependant applicant", and the son as a "claimant". In its summary of the visa application, the husband was described as the "main applicant" and each of the wife and son as a "member of the family unit". Both these documents were emailed to the appellants' migration agent. 7 In his statement the husband claimed to fear harm in Sri Lanka on the basis of his support for, and assistance to, the Liberation Tigers of Tamil Eelam (LTTE) during the Sri Lankan civil war, his Tamil ethnicity, and his status as a failed asylum seeker. He claimed that he had organised transport and provided sanctuary to prominent members of the LTTE attempting to flee Sri Lanka and was viewed suspiciously by authorities as a Tamil-speaking taxi driver. He asserted that, during the civil war, he was stopped on three occasions by police and detained overnight, without further charges. He also described an incident in August 2009 in which he claimed to have been interrogated and assaulted by Sinhalese-speaking men regarding his association with some Tamil men he had transported. He said that the same men searched his home that night, causing him to flee to Malaysia. He claimed to have been arrested and detained in Malaysia in April 2010 for attempting to leave the country for Australia unlawfully and was interrogated, fingerprinted and photographed by Sri Lankan officials against his will. He said that his release from detention in Malaysia was widely publicised and that the authorities in Sri Lanka continued to threaten and harass his wife and son, forcing them to flee to Malaysia in 2013. The appellants then travelled together to Australia. 8 The son claimed to fear harm on the basis of his association with his father, his Tamil ethnicity, his sympathy for the LTTE, and his status as a failed asylum seeker. 9 Following an interview with the father and son by a delegate of the Minister, the application was refused. The decision was then referred to the Authority under s 473CA of the Act on the basis that it was a "fast track reviewable decision". 10 On 14 March 2019 the Authority was not satisfied that any of the appellants satisfied a criterion in s 36(2) and so affirmed the delegate's decision. In short, the Authority was not satisfied of the truth or reliability of the husband's account of his experiences in Sri Lanka. In particular, the Authority was not satisfied that he was an LTTE member or had provided assistance under their instructions; that the authorities had interrogated and assaulted him on the basis of his activities (at [29]-[30]); that he was forcibly interrogated, fingerprinted and photographed in Malaysia by Sri Lankan officials; that his release was widely publicised; or that he or his family were of ongoing adverse interest to Sri Lankan authorities (at [34]). The Authority considered that the son's evidence was "overall vague and lacked convincing detail" (at [37]).

The application below 11 The appellants applied for judicial review of the Authority's decision on three grounds: (1) The Authority failed to consider the wife's claims to fear persecution, wrongly asserted that she did not make her own claims for protection, and consequently failed to consider whether the husband and son would be entitled to protection visas as members of the wife's family unit. (2) The Authority unreasonably failed to exercise or consider exercising its discretion to invite any of the appellants to an interview under s 473DC(3) of the Act, particularly in circumstances when the audio recording of their interview with the delegate omitted between 10 and 17 minutes. (3) The Authority acted unreasonably by failing to seek or obtain a newspaper article that was before the delegate.

The reasons of the primary judge 12 The primary judge dismissed each of the three grounds. 13 In relation to the first, his Honour was not satisfied that the wife had made a clearly articulated claim for protection that was independent of her husband's claim. His Honour noted that the wife had expressly stated in her application that she did not advance her own claims for protection and supplied no statement to the Department in support of her application. Although she made an "evidentiary assertion" regarding her contact with the Sri Lankan authorities while her husband was in Malaysia, the primary judge held that this was intended to support and corroborate his claims and was expressly considered and rejected by the Authority (at [41]-[42]). 14 In relation to the second ground, the primary judge held that there was nothing arising from the delegate's decision which should have caused the Authority to consider a further hearing opportunity and the appellants did not raise any complaints about the interview (at [64]). His Honour considered that the fact that there was a gap in the audio recording of the delegate's interview did not require the Authority to consider a further hearing (at [65]). His Honour also held that it was not unreasonable not to invite the wife to an interview as she had made no claims for protection and had not sought a hearing (at [65]). 15 The primary judge also dismissed the third ground as he was not satisfied that the newspaper article might have made a difference to the decision had it been before the Authority (at [98]). As this ground is not pressed on appeal, it is unnecessary to say anything more about it.

The appeal 16 The appellants filed their notice of appeal on 10 August 2020. At the time, they were self-represented. The notice contained the following single ground: The Primary Judge didn't adequately examine the evidence that was placed and didn't exercise the Courts proper Jurisdiction. 17 After lawyers were engaged, the appellants filed an interlocutory application seeking leave to amend the notice of appeal and to rely on a new ground not raised before the primary judge. A draft amended notice of appeal was attached to the interlocutory application. It contained four grounds, three of which re-agitated the grounds before the primary judge and a fourth which was entirely new. Those grounds are in the following terms (emphasis in the original): 1A. The learned primary Judge erred in not finding, contrary to ground 1 below, that the decision of the Immigration Assessment Authority (IAA) was vitiated by its not addressing sufficiently cognisable independent claims by the second appellant. 2A. The learned primary Judge erred in not finding, contrary to ground 2 below, that the IAA's was vitiated by an unreasonable failure to exercise, or to consider whether to exercise, the power to invite any of the appellants to 'give new information' under 473DC(3). 3A. The learned primary Judge erred in not finding, contrary to ground 3 below, that the IAA's decision was not vitiated by an unreasonable failure to exercise, or to consider whether to exercise, the power to 'get' the newspaper article under 473DC(3). 4AA.* The learned primary Judge erred in not finding that Part 7AA of the Migration Act 1958 (Cth) was not invoked at all, or that there was absent a jurisdictional fact upon which Part 7AA was contingent, therefore the Immigration Assessment Authority (IAA) lacked authority to make any decision affecting the appellants. Particulars 1AA.1 Each of the appellants' visa applications included statements and independent documentary evidence that they had each previously applied for, and been refused, refugee protection by the United Nations High Commissioner for Refugees in Malaysia, and that they were therefore each 'excluded fast track review applicants' under paragraph 5(a)(iv) of the definition in the Migration Act. 1AA.2 Further or alternatively, the Minister was required to, but did not, form an opinion as to whether the appellants were 'excluded fast track review applicants' by reason of paragraph 5(a)(iv), or (if he did) the formation of such an opinion was manifestly unreasonable in that the applicants were 'excluded fast track applicants' under paragraph 5(a)(iv) of the definition, or because Minister failed to consider whether the applicants were 'excluded fast track review applicants'. 18 Proposed ground 3A was not pressed. 19 The appellants seek orders, amongst other things, setting aside the orders made by the court below and substituting orders quashing the decision of the Authority and directing the Minister to "fulfil [his] statutory duty to consider whether or not the appellants are 'excluded fast track [review] applicants'". No orders are sought with respect to the decision of the delegate.

The issues 20 It follows that the following questions arise for determination: (1) Should leave be granted to file the amended notice of appeal? (2) In the event that leave is granted, did the Authority lack the authority to hear and determine the review application because the appellants were "excluded fast track review applicants"? (3) Did the Authority fall into jurisdictional error by failing to address the wife's "sufficiently cognisable independent claims"? (4) Did the Authority fall into jurisdictional error by unreasonably failing to exercise or to consider exercising the power to invite any of the appellants to "give new information"?

Should leave be granted to amend the notice of appeal? 21 The appellants require leave to amend the notice of appeal as the interlocutory application was filed well over 28 days after the original notice of appeal: Federal Court Rules 2011 (Cth), r 36.10. In addition, as proposed ground 4AA advances a ground that was not raised in the court below, leave is required to raise it on the appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ); Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [37]-[38] (Allsop J, with whom Drummond and Mansfield JJ agreed at [1] and [2] respectively). 22 In an affidavit affirmed by the husband, filed in support of the interlocutory application, the following explanation was offered for the failure to file an amended notice of appeal within the 28 day period prescribed by r 36.10. The husband deposed that he had difficulty retaining a lawyer after the notice of appeal was filed as he could "not afford to use the same lawyer [on] appeal". He provided evidence about the medical conditions affecting his wife and son, his difficulty reading and understanding English, the family's distress after the primary judge's decision, and their limited means. He deposed that it took him eight months to retain his current lawyer. In a second affidavit, he deposed that he had left it to the family's lawyers to argue their case before the Federal Circuit Court and he did not give any instructions to his lawyers "not to advance any grounds". 23 The grant of leave is discretionary and must ultimately be exercised in accordance with the overarching purpose of the civil practice and procedure provisions in s 37M of the Federal Court of Australia Act 1976 (Cth). That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 24 It is trite that a party is ordinarily bound by the conduct of his or her case at trial. Appeals should not be used to "conduct a second trial upon a different basis, the first trial having failed": Han v Minister for Home Affairs [2019] FCA 331 at [10] (Bromwich J). As the plurality remarked in Coulton at [7]: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. 25 Leave to raise a new ground on appeal should only be granted "where it is expedient in the interests of justice to do so": VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ); Gupta v Minister for Immigration and Border Protection (2017) 255 FCR 486 at [80]-[81] (Gilmour and Mortimer JJ). 26 Whether it is in the interests of justice to allow a new ground to be raised on appeal may depend on a variety of considerations. In VUAX at [48] the Full Court said that the Court may grant leave if the new ground "clearly has merit", the respondent would not be prejudiced, and there is an adequate explanation for the failure to take the point in the court below. In general, leave is more likely to be granted where "the new point turns only upon a question of construction or upon a point of law, or where the facts are not in controversy": Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at [20] (Griffiths and Perry JJ). If the new ground could have been met by evidence at trial, leave will ordinarily be refused: Coulton at 7-8 and Branir at [34]-[37]. 27 That said, it is always necessary to be careful "not to over-conceptualise or over-categorise matters"; the ultimate question is the interests of justice and the interests of justice "extend to the potential vindication of a just outcome": MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 152 at [2] (Allsop CJ, O'Callaghan and Colvin JJ agreeing at [13]). One needs to be mindful of the "very serious consequences" for an appellant that may follow an adverse decision in a case such as this: Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 at [22] (Heerey, Moore, and Goldberg JJ). 28 The appellants submitted that proposed grounds 1A and 2A were not new grounds requiring leave. Rather, each was a simplification of the first and second grounds in the judicial review application and that "[l]eave should not be refused for a mere refinement". Although leave is technically required, so much should be accepted. Indeed, there was no argument to the contrary. Leave to file an amended notice of appeal incorporating these grounds should therefore be granted. 29 The more difficult question is whether that grant of leave should extend to proposed ground 4AA. The appellants submitted that it should because the Minister would not be prejudiced if leave were granted but considerable prejudice would be occasioned to the appellants if it were not granted, and the ground involves "a question of construction of general importance". On the question of merits, the appellants argued that the Minister or delegate had a duty to consider whether each of them was an excluded fast track review applicant. They argued that the duty arose because it was a corollary of the Minister's obligation under s 473CA to "refer a fast track reviewable decision" to the Authority, which turns on a determination that the decision was in relation to a "fast track review applicant". That question, they said, could only be answered by determining whether the appellants were "excluded fast track review applicants". 30 The appellants submitted that there was "an abundance of material" before the delegate which could have actuated this duty. In particular, they pointed to evidence before the delegate that each appellant had applied for protection with the United Nations Human Rights Commissioner in Malaysia and had been refused. They argued that the failure to consider whether they were excluded fast track review applicants vitiated the Authority's review and that the breach of this duty was so grave as to amount to a jurisdictional error. 31 In substance, the appellants' argument was that the formation of the opinion that each of the appellants was a fast track review applicant was a jurisdictional fact and the failure to form such an opinion meant that the Authority had no jurisdiction to review the delegate's decision. 32 No explanation was proffered for the failure to raise the ground in the court below where the appellants were represented by solicitors and counsel. No evidence was adduced from any of the former lawyers to explain why they did not include such a ground in the review application. For all we know, a forensic decision could have been made not to run the point. There was no suggestion that the appellants' former lawyers were not competent. Mr Johnson of counsel, who appeared for the Minister both in this Court and in the court below, described the appellants' former counsel as "very capable". To the extent that the appellants are seeking to argue that proposed ground 4AA is being raised now because of a change of counsel, this alone is an insufficient basis to justify a grant of leave: BLX16 v Minister for Immigration and Border Protection [2019] FCAFC 176 at [31] (Moshinsky, Steward and Wheelahan JJ). 33 Nor is it sufficient that the Minister may not be prejudiced. In any event, I do not accept the appellants' submission that the Minister is not prejudiced. The point the appellants wish to agitate is a novel one. Had it been raised below and determined in the appellants' favour, the Minister would have had a right to an appeal. If the appellants are permitted to raise it now and are successful, the Minister has no such right. He would need to apply to the High Court for special leave and there is certainly no guarantee that any such application would be granted. 34 Furthermore, I am not persuaded that the proposed new ground clearly has merit. While the assessment of merit on an application of this kind is conducted "at a relatively impressionistic level" (NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [31] per Farrell, Wigney and Perry JJ), in order to explain why I am not so persuaded, it is necessary to refer at some length to the statutory scheme. 35 Part 7 (ss 408-441G) provides for the review on the merits of most decisions of the Minister or his or her delegate to refuse to grant a non-citizen a protection visa. That review is conducted by the Administrative Appeals Tribunal. "Fast track decisions", amongst others, are not Part 7-reviewable decisions. A "fast track decision" is defined in s 5 to mean a decision to refuse to grant a protection visa to a fast track applicant other than a decision to refuse to grant such a visa on character grounds under s 501 or for certain other reasons not presently relevant. A "fast track applicant" is also defined in s 5. It means: (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii) who has made a valid application for a protection visa in accordance with the determination; or (b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). 36 There is no dispute that the each of the appellants was a "fast track applicant". 37 Pt 7AA (ss 473BA-473JF) provides some fast track applicants, known as "fast track review applicants", with a more limited form of de novo merits review than that which is afforded by Pt 7. For a start, in the case of a Part 7-reviewable decision the Tribunal must invite an aggrieved applicant to appear before it to give evidence and present arguments (see s 425). There is no statutory restriction on the evidence that may be given at such a hearing. In contrast, Pt 7AA reviews are generally conducted on the papers (s 473DB) and the Authority has a discretion but not a duty to obtain, request or accept new information and to invite a person to an interview (s 473DC). 38 Under Pt 7AA, the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made (s 473CA) and the Authority must review a fast track reviewable decision referred to it under s 473CA (s 473CC). A fast track reviewable decision is defined in s 473BB to include "a fast track decision in relation to a fast track review applicant". 39 A "fast track review applicant" is defined in s 5 as a "fast track applicant who is not an excluded fast track review applicant" and decisions to refuse to grant them protection visas are known as "fast track decisions". "Excluded fast track review applicants" have no rights to merits review. 40 "Excluded fast track review applicant" is also defined in s 5. It relevantly means a fast track applicant: (a) who, in the opinion of the Minister: … (iii) has made a claim for protection in a country other than Australia that was refused by that country; or (iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country[.] … 41 In the present case no evidence was adduced to indicate that the Minister had formed the relevant opinion. The fact that the Minister referred the decision to the Authority for review indicates that he had not. 42 In Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57] French CJ observed: Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. 43 Here, however, it does not seem to me that the power of the Authority to review a decision of the Minister or his or her delegate is conditioned upon the formation of an opinion by the decision maker, whether expressly or by implication. The source of the Authority's jurisdiction is the referral from the Minister. Until or unless the Minister forms such an opinion, the applicant is not an "excluded fast track review applicant" and the decision is "a fast track reviewable decision". Subject to the objective criteria being satisfied, the default position is that the applicant is a "fast track review applicant". In other words, the apparent effect of s 473CA, read with the relevant definitions, is that the Minister is obliged to refer to the Authority a decision to refuse to grant a visa to a fast track applicant unless the Minister forms the opinion that the applicant has made a claim for protection in a foreign country which was refused by that country or by the UNHCR in that country. Thus, the face of things, if the Minister has not turned his or her mind to the question of whether the applicant has made such a claim and refers the decision to the Authority, the Authority must review it. Unlike other provisions of the Act, like s 65, which give the Minister the power and impose on him a duty to do certain things conditional upon him being satisfied of certain things, s 473CA does not require the Minister to form an opinion that a person is not an excluded fast track review applicant before referring the decision to the Authority. It would be passing strange to impose a duty on the Minister or a condition on the exercise of a Ministerial power through a definition. 44 Finally, there is the question of utility. As the Minister submitted, on their own case the appellants received a review to which they may not have been entitled. Assuming leave were granted, the appellants' argument prevails, and the Authority's decision is quashed for want of jurisdiction, the delegate's decision would remain in force. If the Minister were then to determine that they were excluded fast track review applicants, the decision would not be referred to the Authority and they would have no recourse to any other form of merits review. Counsel for the appellants contended that they could then seek judicial review of the delegate's decision, presumably under s 39B of the Judiciary Act 1903 (Cth). But to succeed on such an application they would need to establish some form of jurisdictional error. 45 Taking all these matters into account, I am not persuaded that it is expedient in the interests of justice to grant the appellants leave to rely on ground 4AA. It follows that leave is granted to the appellants to file an amended notice of appeal limited to grounds 1A and 2A. It is to those grounds that I now turn.

Did the primary judge err in not finding that the Authority failed to consider a claim for protection made by the wife (ground 1A)? 46 The appellants complain that the primary judge erred in not finding that the Authority failed to address "sufficiently cognisable independent claims" for protection made by the wife. The alleged error arises from the primary judge's conclusion at [42]: [T]he second applicant did not make a clearly articulated claim for protection. What she did was, through her agent, make an evidentiary assertion concerning contact with the Sri Lankan authorities while her husband was in Malaysia, which was intended to support and corroborate his claims. The claim as put was expressly considered and rejected by the Authority at [34] of its decision … 47 The appellants contended that the primary judge made a false distinction between a "clearly articulated claim" and an "evidentiary assertion". 48 The question raised by this ground is whether the Authority failed to consider an unarticulated claim that "arose sufficiently from the material as to require a reasonably competent [decision maker] in the circumstances to appreciate its existence": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ) and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J). A "claim" in this context, is an assertion of fact made by an applicant: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at [42] (Allsop J). These principles, although developed in the context of reviewable decisions under Pt 7 of the Act, apply equally to reviews under Pt 7AA: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [79] (Kenny, Tracey and Griffiths JJ). 49 In NABE, the Full Court observed at [58]: The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the "case" articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. (Emphasis added.) 50 In NAVK, Allsop J (as his Honour then was) remarked that the unarticulated claim must "arise tolerably clearly from the material itself" and that the decision maker need not undertake "an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy" (at [16]). 51 Here, the wife's independent claim to protection, which the Authority allegedly overlooked, was said to arise from the following material: (1) A statement made by the husband in his arrival interview as part of his response to the question "What do you think will happen to you if you return to your country of nationality (residence)?", namely: They threaten my wife saying if I am missing they will take my son. They smashed my house and beat my wife. (2) Statements made by the wife in her arrival interview in response to the question "Why did you leave your country of nationality (country of residence)?", namely: They started frequenting my house and threatening me about my husband. They sent him to Singapore and he was taken into custody and beaten again … 04/2010 they came to my house looking for my husband. Because he was not there they verbally abused me and kicked me. In 09/2010 they tried to take my son. They came to my house, put a gun on my head telling that if we take your son your husband has to come. (3) Notwithstanding the indication given in Part B of the SHEV application form, the fact that in the wife's Part C form ticks were placed in the "yes" box underneath the following questions: 87. Are you making your own claims for protection? 91. Did you experience harm in that country (or countries)? 93. Did you move, or try to move, to another part of that country (or countries) to seek safety? 94 Do you think you will be harmed or mistreated if you return to that country (or countries)? (4) When reasons or details were requested, the answer "please see attached" was given and in the son's statement which was attached to his Part C form he had written: My mother and I spent the next several months trying to avoid the authorities who started coming regularly to our home. Each time they came to our home, my mother would tell them I wasn't there. The authorities ended up losing patience with my mother and threatened her… The situation became so unsafe for my mother and I that we decided to leave before something happened to us. (5) The following passages in the submission to the delegate by the appellants' migration agent (the collective submission), under a section describing the husband's claims: Around 1am early the next morning, a white van arrived at the front of [the husband's] home and six people got out of the van. He recognised two of the men were the same men that stopped him the night before. Afraid for [his] life, [the husband] fled his home from the back yard before the men reached the front door. [The] wife answered the door to the men and told them her husband was not at home. They pushed their way in and searched their home. They told his wife that they wanted him and when they found him that would kill him. (6) The following additional passages in the same section of the collective submission relating to the husband's claims: The Sri Lankan authorities began to take an interest in [my wife] and my family in Sri Lanka. Things had been relatively quiet until then. However, the CID had continued to visit the home after [the husband] left making enquiries about him for a time and had made threats to their son. When the situation in Malaysia became well known in Sri Lanka, the CID began to target [the] wife and son to the point where their lives were at risk and they had to leave and they joined [the husband] in Malaysia in May 2011. They made arrangements with an agent to assist them to pass through the airport without being detected by the authorities. After [the] wife and son joined him in Malaysia they continued to remain in the country unlawfully because they were too afraid to return to Sri Lanka. They had nowhere else to go and lived in fear of being arrested by the Malaysian authorities and deported back to Sri Lanka to face the authorities. [The husband] believes if that had happened, he and his family would have been imprisoned and tortured and the torture they would have received would have resulted in their deaths. 52 Whether claims by the wife "clearly emerge" from this material or were "squarely raised" by it should not be assessed in a vacuum. Much depends on the circumstances: NABE at [63]. Those circumstances include the way the claims were presented over time: AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18(e)] (Collier, McKerracher and Banks-Smith JJ). 53 In her arrival interview, in answer to the question "Why did you leave your country of nationality?", the wife answered: "The problem my husband faced". The threats allegedly made to, and the assaults upon, her in 2010 were said to have been made because the authorities were after her husband, not her. She did not claim that she feared harm because she feared persecution in Sri Lanka because of any reason which would bring her within the scope of the definition of a "refugee". She indicated, however, that the lives of all members of the family were at risk because of "[t]he times they came and tortured us in our house". 54 But she said nothing about these matters in her visa application. Details of her claims were said to be contained in an attachment to her Part C form. But there was no such attachment to her form. The accounts given by the husband and son indicated that, if there were a risk to the safety of the wife, it arose because each of them was a target of the authorities. Moreover, the collective submission provided to the Department identified and addressed protection claims by the husband and son but neither addressed nor identified any such claim by the wife. 55 In these circumstances it is not surprising that the delegate observed that the wife "did not raise any separate claims for protection". If that observation were mistaken, one would have expected the appellants to inform the Authority. They certainly had that opportunity. Each of them was advised by the Department, in its letter attaching the delegate's decision sent to their migration agent, that they could provide new information to the Authority so long as it met the conditions in s 473DD, to which I will come shortly. Each of them was also directly advised by the Authority, in both English and Tamil, that they could make submissions in relation to "why you disagree with the Department's decision", and "any claim or matter you presented to the Department that was not considered" (emphasis added). But no submissions were made. Nor did any of them request an interview or seek to present new evidence. 56 Although there is no specific standard for determining whether an unarticulated claim clearly emerges from the material (see, for example, Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [63] per Derrington J), I am not satisfied that the claims by the wife were "tolerably [clear]" such that the Authority was obliged to consider them. Such a finding "is not lightly to be made": see NABE at [68]; Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1] (Gleeson CJ). Unlike the position in both NABE and NAVK, the wife was a secondary visa applicant. Her application ultimately relied on her status as a member of the same family unit as her husband and son. She provided no reasons of her own to support a claim to fear serious or significant harm in Sri Lanka. And if she did intend to make such a claim to the delegate and the delegate misunderstood her position, she did not correct the delegate's misconception when she had an opportunity to make submissions to the Authority. It is not enough that her claims for protection might emerge from the material: NABE at [68]. As Gleeson CJ observed in Appellant S395/2002 at [2], on judicial review the impugned decision "must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process". 57 To read the evidence before the Authority as disclosing independent claims for protection made by the wife is to engage in the type of creative construction and analytical reasoning cautioned against in NABE and NAVK. To the extent that the wife indicated in her Part C form that she was advancing her own claims for protection, it was not supported by the collective submissions made to the delegate. Indeed, those submissions indicated otherwise. The absence of a signed statement from the wife detailing the reasons in support of the positive answers to the questions in Part C also signalled that she was making no independent claim for protection. At least, it must be said, given the contradictory signals, any such claims cannot be said to have been "squarely raised". 58 In all the circumstances, I am not persuaded that the primary judge erred as alleged. 59 In any event, I am not satisfied that the Authority failed to consider such claims. 60 The Authority expressly referred to the claimed incident in August 2009 when men looking for him allegedly turned up at the appellants' house at 1 am when his wife was at home (at [14]). The Authority also referred to the husband's statements that his wife and son received adverse attention following his departure from Sri Lanka and his public release from detention in Malaysia, which forced them to leave Sri Lanka in May 2011 (at [5] and [32]). It noted that the husband had claimed that the authorities "began to target his wife and son to the point where their lives were at risk" (at [5]). But went on to reject the claim that the authorities continued visiting their home after he left Sri Lanka and harassed and threatened his wife and son (at [30]). The Authority considered and rejected the claims that the wife and son were harassed and threatened by the Sri Lankan authorities following the husband's interview with Sri Lankan authorities while he was in detention in Malaysia or as a result of the publicity following his release from detention (at [34] and [41]). The Authority's conclusions on these claims appear at [41] of its reasons: I am not satisfied that Applicant 1 came to the adverse interest of the authorities since the end of conflict. I am not satisfied that Applicant 3 or Applicant 2 was harassed or threatened. It follows that I am also not satisfied that their house was being destroyed subsequently. I am not satisfied either of the applicants were of adverse interest to the Sri Lankan authorities when they left Sri Lanka, or during years they have spent abroad. 61 The Authority referred to country information indicating that, unless the person is arrested in connection with criminal or terrorism related offences, the risk of torture faced by Tamils, including past members of the LTTE, is remote, and that Tamils had a low risk of official or societal discrimination (at [45]-[49]). Based on this information, the Authority was not satisfied that, if the appellants were to return to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that they would come to the adverse attention of the Sri Lankan authorities or anyone because of the husband's past experiences, their Tamil ethnicity, or their past sympathies to the LTTE (at [52]). It also found that the wife and son did not have "a history of adverse interest with the Sri Lankan authorities" (at [55]). After referring to the relevant country information, the Authority concluded that none of the appellants would be of ongoing adverse interest to the authorities in Sri Lanka on account of their status as failed asylum seekers (at [58]). 62 The Authority accepted that, as returning asylum seekers all the appellants might face some practical challenges upon resettlement in Sri Lanka, but was not satisfied that there was a real chance they would suffer serious harm for the purposes of the refugee criterion (at [56])-[59]) or significant harm for the purposes of the complementary protection criterion (at [62]-[65]). 63 Despite observing that the wife did not make her own claims for protection, the Authority concluded that "none of the applicants meets the definition of refugee or the complimentary protection criterion" (at [67]). 64 The appellants nevertheless submitted that the Authority did not grapple with the specific threats of harm to the wife founded in the material, particularly the claim made at her arrival interview that the Sri Lankan authorities pointed a gun at her head and beat her. For this reason, they argued, there had been no genuine, meaningful or intellectual engagement with the material and therefore no "consideration" (see, for example, Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352 at [36]-[46] per Griffiths, White and Bromwich JJ). 65 This submission should be rejected. The Authority was not required to refer to every piece of evidence before it and every contention made. The Court must not readily infer that a claim has not been considered when the reasons are comprehensive and the relevant issue has been identified at some point. Furthermore, it may be unnecessary to make a finding on a particular matter "because it is subsumed in findings of greater generality or because there is a factual premise upon which the contention rests which has been rejected": Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 256 FCR 593 at [46]-[47] (French, Sackville and Hely JJ). 66 Here, the Authority's reasons disclose that it actively engaged with the claims arising from the material that the wife had been harassed and threatened by the Sri Lankan authorities on account of the activities of her husband. Nothing in the material indicated that any activities of her own had aroused the attention of those authorities or had otherwise exposed her to a risk of serious or significant harm. While the Authority did not refer to the statement in her arrival interview that she was beaten and a gun was pointed at her head, it did refer to her husband's claim that she and her son were targeted by the authorities "to the point where their lives were at risk". It was not necessary for the Authority to address and make findings concerning the specific threats of harm claimed to have been made against the wife as they were subsumed by its rejection of the broader contention that she had received ongoing adverse attention from the authorities and had been harassed and threatened by them. 67 In any case, I am not satisfied that any failure to consider the wife's supposed protection claims independently was a material error, that is, that the result could realistically have been different had the supposed error not been made: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane J). Whatever claims the wife may be taken to have made were closely linked to those made by her husband and son. In rejecting their claims, the Authority also rejected the factual premise underlying hers. Furthermore, the Authority also expressly rejected the other bases that could conceivably found such a claim for protection, namely her Tamil ethnicity, any association with the LTTE, and her status as a failed asylum seeker. And as I have already observed, the Authority made findings that she and her family did not satisfy the complementary protection criterion and that none of the appellants met the definition of a refugee.

Did the primary judge err in not finding that the Authority's failure to invite the wife to give new evidence (or consider doing so) was unreasonable (Ground 2A)? 68 The appellants contended that the Authority unreasonably failed to exercise, or consider exercising, its power under s 473DC(3) of the Act to invite the appellants to give new evidence. In their submissions, they confined this ground to the use of the power with respect to the wife alone. 69 Section 473DC provides that: 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 70 Section 473DD reads: Considering new information in exceptional circumstances For the purpose 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 claim. 71 The power under s 473DC(3) to invite a person to give new information must be exercised reasonably: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [21] (Gageler, Keane and Nettle JJ); Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] (Robertson, Murphy and Kerr JJ). Compliance with an implied condition of reasonableness can compel the Authority to exercise its powers to get and consider new information: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 at [4] (Kiefel CJ, Bell, Gageler and Keane JJ). 72 Unreasonableness in the exercise of a statutory discretion may be inferred if it is not possible to understand how a decision is reached or if the decision "lacks an evident and intelligible justification": Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ). Where, as here, there are no reasons given for the exercise or non-exercise of a power, "all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility": Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [45] (Allsop CJ, Robertson and Mortimer JJ). The principles which guide the test of legal unreasonableness in the context of s 473DC(3) were summarised by Griffiths and Steward JJ in DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at [37]: First, legal unreasonableness is "invariably fact dependent and requires evaluation of the evidence" (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 (Singh) at [47] per Allsop CJ, Robertson and Mortimer JJ and see also [Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541] at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and [Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513] at [32]). It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on [DFW16 v Minister for Immigration and Border Protection [2018] FCA 746]. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (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. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a "natural justice lens" ([DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551] at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DC does not of itself involve error, let alone a jurisdictional error. 73 The test of legal unreasonable is "necessarily stringent": Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11] (Kiefel CJ). To demonstrate legal unreasonableness is "a demanding standard" and whether or not that standard is met must be determined in the light of the statutory framework for making the decision whether to exercise the relevant power: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 at [110] (Beach, O'Callaghan and Anastassiou JJ). The standard takes its content from the text, context, subject matter and purpose of the Act. The scheme of Pt 7AA, in which s 473DC appears, does not require the Authority to accept or request new information or to interview the referred applicant. It therefore has a particularly broad "zone of decisional freedom" in which to lawfully decline to invite a person to give new information: see BNB17 v Minister for Immigration and Border Protection [2020] FCA 304 at [53] (Anderson J), upheld in DVO16 v Minister for Immigration and Border Protection [2021] HCA 12; 95 ALJR 375; 388 ALR 389. 74 In the present case, there was no dispute that the Authority had failed to exercise, or failed to consider exercising, its powers under s 473DC(3). 75 The appellants contended that the Authority acted unreasonably in failing to invite, or consider inviting, the wife to an interview (where, it follows, she could give new evidence) because: (1) the Authority knew that the wife had not been separately interviewed by the delegate, yet did not invite her to elaborate on her own experiences of violence or to corroborate or contradict the claims of her husband and son; (2) the Authority was not satisfied that the husband provided accommodation and transport to LTTE members, but the wife "must have known either way"; (3) the Authority was not satisfied that the husband escaped his house on the night the authorities came to search it on the basis that his evidence was "inconsistent and not convincing" and, on the husband's account, the wife had answered the door; (4) the Authority considered that the son's evidence was "overall vague" and that he "did not know much about his parents' activities and only suspected those people who stayed at his home were LTTE members"; and (5) The Authority was not satisfied that the authorities took an interest in the wife and son in Sri Lanka following the publicity regarding the husband's release from detention based on an "inductive reasoning process derived from various findings". 76 The appellants contended that it was an "obvious and simple solution" to the Authority's concerns for it to invite the wife to an interview. Even if that were so, for the following reasons I am not satisfied that the Authority acted unreasonably in not doing so or not considering whether it should do so. 77 First, the course the appellants contend the Authority should have taken is at odds with the statutory scheme. As I have already observed, the Authority is not required to accept or request new information or interview the referred applicant (s 473DB(1)) and has no duty to do so (s 473DC(2)). Moreover, the Authority is not permitted to consider new information unless, among other reasons, there are "exceptional circumstances" to justify it doing so and the new evidence could not have been provided to the Minister before the decision was made to refuse to grant the visa or was credible personal information which was not previously known (s 473DD). In other words, before the Authority has the power to receive new information or interview the referred applicant, the statute requires the referred applicant to identify the new evidence and to explain how it satisfies the conditions for its receipt. 78 Second, there is nothing to suggest, and the appellants did not demonstrate, that any new information the wife would have given could have satisfied the requirements in s 473DD of the Act. At no point, either in this Court or in the court below, did the appellants identify what the wife would have told the Authority had she have been given the opportunity or what, if any, exceptional circumstances existed so as to justify its consideration by the Authority. In those circumstances, it is difficult to see how it could possibly be said to be unreasonable for the Authority not to have invited her to give further evidence or to have considered doing so. 79 Third, none of the appellants asked the Authority to receive new evidence or make any further submissions, despite having been afforded the opportunity to do so. Once again, in those circumstances, it is difficult to see how the Authority's approach could be considered unreasonable. 80 Although the Authority's function is inquisitorial, it was a matter for the appellants to provide evidence and arguments in sufficient detail to enable the decision maker to be satisfied that they met the conditions for the grant of the visa: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 at [76] (Heery, Conti and Jacobson JJ). See also Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). 81 Fourth, as I have already said, I am not satisfied that the wife was making independent claims for protection. It was presumably on this basis that she was not interviewed by the delegate. In any event, her evidence was captured by the collective submission to the delegate which was expressly considered by the Authority. 82 Fifth, insofar as the appellants contended that the wife could have provided evidence to allay the concerns it had about the evidence of her husband and son, the appellants' submissions assume that the Authority made its findings on the claims of the husband and son in the absence of corroboration and therefore that it was illogical for it not to have invited the wife to give further evidence. That is a false assumption. In fact, the Authority expressly assessed the father's claims regarding his involvement with the LTTE and the incident in August 2009 against those made by the son (at [23]). It also considered whether the wife and son had been threatened and harassed by reference to the husband's account (at [41]). In addition, it assessed the husband's claims against the relevant country information (at [10], [21], [25], [45]-[58]). 83 In any case, the appellants were on notice of the credibility concerns and inconsistencies in their case. Like the Authority, the delegate found that the husband's evidence contained inconsistencies and was not believable. It also found that the son had provided unconvincing evidence regarding his father's involvement with the LTTE and was not satisfied that the authorities had visited their family home repeatedly. It was open to the husband and son to request that the wife give further evidence to the Authority to corroborate their claims, yet they did not do so. 84 Sixth, the appellants did not prove that any evidence the wife would have given could have allayed the Authority's concerns regarding the credibility of the husband's and son's evidence. The collective submissions state that the husband "and his family" had provided assistance to LTTE members between 2006 and 2009. The Authority was willing to accept that the husband may have suspected some of his customers were LTTE members and that he provided bed and board to them at times (at [29]). The Authority's concern went beyond his claim to have assisted LTTE members. The Authority's concern was with the evolving nature of his evidence over time regarding his level of involvement in the LTTE and his inability to give spontaneous evidence in responding to questions (at [20]). The appellants did not identify what, if any, further evidence the wife could have given that might have addressed those concerns. The same must be said in relation to the Authority's concern about the "overall vague" evidence of the son regarding his father's involvement with the LTTE. 85 Further, the wife had provided evidence in both her entry interview and in the collective submissions that in August 2009 men came to the house looking for her husband but he left before they arrived at the door. The Authority was not satisfied that the incident occurred partly because the husband's evidence about it was "inconsistent and not convincing". In particular, the Authority observed that the husband recorded in his statement attached to his visa application that he fled after observing men getting out of a white van at the front of his house, whereas in his SHEV interview he said that he fled when he heard the vehicle approaching (at [22]). Whether the wife could have given any evidence as to whether her husband saw the men get out of the van, or only heard the noise of the van arriving, before he fled is entirely speculative. In any event, this inconsistency was not the only basis upon which it rejected the husband's account. Rather, the Authority took into account its general concerns about the husband's credibility in reaching this conclusion (at [30]), together with the inconsistent evidence of the son regarding the same incident (at [37]). 86 These matters reveal that there was ample justification for the Authority's failure to exercise, or to consider exercising, its discretion to invite the wife to give new information, whether at an interview or otherwise. On no account could its inaction be described as legally unreasonable in the circumstances. 87 It follows that ground 2A should also be dismissed.

Conclusion 88 Leave should be granted to allow the appellants to rely on grounds 1A and 2A in the amended notice of appeal but leave to rely on ground 4A should be refused. Grounds 1A and 2A should be dismissed. The appellants should pay the Minister's costs. There will be 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 Katzmann.

Migration Act 1958(Cth)ss 5, 5H, 5J, 36(2), 46A, 65, 425, 473BA, 473BB, 473CA, 473CC, 473DB(1), 473DC, 473DD

irs (2021) 284 FCR 152 Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588

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