BWE17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

BACKGROUND 4 In light of the narrow issue pressed on appeal, the appellant's relevant circumstances can be shortly stated. 5 The appellant is a citizen of Sri Lanka who arrived at Christmas Island as an unauthorised maritime arrival on 18 October 2012. The appellant applied for a protection visa on 14 June 2016, which was refused by a delegate of the Minister on 5 October 2016. The delegate was not satisfied that the appellant is a person in respect of whom Australia has protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Migration Act. 6 The matter was referred to the Authority on 7 October 2016. On 25 and 26 October 2016, the appellant provided additional material to the Authority which was the subject of the Authority's application of s 473DD. On 31 March 2017, the Authority affirmed the decision not to grant the appellant a protection visa and provided reasons for its decision. On 1 May 2017, the appellant applied to the Federal Circuit Court for review of the Authority's decision. On 29 August 2017, the appellant filed an amended application containing a new ground and particulars. 7 Following a hearing on 28 May 2020, the Federal Circuit Court made ex tempore orders that the application be dismissed with costs. Reasons for the decision were delivered on 8 July 2020. 8 Prior to delivery of the reasons, the appellant on 22 June 2020, lodged a notice of appeal in this Court.

STATUTORY PROVISIONS 9 As explained, this appeal concerns s 473DD of the Migration Act which provides: 473DD Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the 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 AUTHORITY'S DECISION 10 In light of the conclusion reached on materiality below, it is necessary to set out in broad terms the findings of the Authority in relation to the appellant's claims for protection. 11 The appellant claimed to fear harm in Sri Lanka because of his Tamil ethnicity and adherence to Hinduism. His claims were supported by events including the disappearance of two of his sisters at different times, the torture of his brother, and harassment and interrogation of the appellant by the Criminal Investigation Department (CID), the Sri Lankan Army and the police. The appellant claimed that these events were the result of the authorities' suspicions that he and his siblings were involved with the Liberation Tigers of Tamil Eelam (LTTE). The appellant detailed two occasions when he was detained, interrogated and beaten with the stem of a palm tree. On the second occasion, his wrist was broken and his back was injured. He claimed this led to his hospitalisation for three months. Since leaving Sri Lanka, the appellant says the CID interrogate his family about his whereabouts. 12 The Authority accepted the majority of the appellant's claims but noted that: (a) no claim was made that the appellant's missing sisters had links to the LTTE or that he fears harm in relation to their disappearances (at [14]); and (b) although the appellant was likely injured by the CID in the way described, his claim to have been hospitalised for three months was not supported by any documentary evidence and was rejected as implausible (at [17]). 13 Having accepted most of the appellant's claims, the Authority found that he did not have a well-founded fear of harm or persecution because of his Tamil ethnicity, stating relevantly (at [19]): There is no evidence before me that the [appellant] was ever a member or supporter of the LTTE. I accept that he may have been harassed by the SLA in 2011 and questioned at Vavuniya police station in 2012, however he was not arrested, detained or placed on reporting conditions as a result of these incidents. I find this to be a very strong indicator that Sri Lankan authorities did not consider he had LTTE links, had no ongoing interest in him and that he did not have a profile of concern. I do not accept that in these circumstances, the [appellant's] sister would be harassed by the SLA about the [appellant's] or his brother's purported LTTE links or that his family would continue to be visited by the SLA since his departure from Sri Lanka, questioning his whereabouts. For these reasons I consider the [appellant] does not face a real chance of harm from Sri Lankan authorities, including the CID and SLA, on account of any imputed links to the LTTE. 14 In relation to the appellant's adherence to Hinduism and the potential that he will be imputed with an LTTE association, the Authority considered (at [20]-[24]) that in light of country information indicating the improving situation in Sri Lanka since the election of the Sirisena government in 2015, monitoring of Tamils generally had greatly reduced. The Authority did not consider that the additional fact of the appellant's religion grounded a well-founded fear of persecution. 15 Although the appellant did not expressly make this claim, the Authority also considered whether the appellant was at risk of harm as a failed asylum seeker who had departed Sri Lanka illegally. At [25]-[35] of its decision, the Authority referred to country information to consider what would likely happen to the appellant on his return and concluded that although he may be detained for a short time and required to pay a fine, this could not substantiate a well-founded fear of persecution. 16 For essentially the same reasons, the Authority did not consider the appellant satisfied the requirements for complementary protection under s 36(2)(aa) of the Migration Act (at [37]-[42]). 17 The substance of the appeal to this Court concerns the Authority's approach to receiving new information under s 473DD. The Authority considered whether it could have regard to new information provided by the appellant (at [6]-[9]) as follows: 6. The following documents pre-date the delegate's decision: a letter dated 10 September 1997 from the Australian Red Cross concerning a tracing request for the brother of S. Kulasekeram; Fact Book - Sri Lanka's Prevention of Terrorism Act dated 21 September 2011; Amnesty International report dated 30 May 2016 titled 'Sri Lanka: the Right to Truth; the Right to Justice, Reparation and Non-Recurrence'. The [appellant] did not provide any explanation as to why this new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the [appellant's] claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act. 7. The following documents are dated after the delegate's decision and relate to events purported to have occurred before the [appellant] departed Sri Lanka: support letter dated 13 October 2016 from S. Paranthaman; and support letter dated 24 October 2016 from PE. Anandaraj. I accept that as these documents are dated after the delegate's decision, they could not have been provided before the delegate's decision. However as the information they contain relates to matters that predate the delegate's decision and appear to be provided at the request of the [appellant]? and relate to matters that were raised at the PV interview, I am not satisfied that there are exceptional circumstances to justify their consideration. 8. The [appellant] included an executive summary of an undated report by the Oakland Institute. This report relates to events that occurred before the [appellant] departed Sri Lanka. The [appellant] also included an undated, untranslated article from what appears to be a Sri Lankan newspaper. The [appellant] did not provide any explanation as to why this new information was not and could not have been provided to the delegate, or why it may be regarded as credible personal information that was not known, and had it been known may have affected the consideration of the [appellant's] claims. I am not satisfied in relation to the matters set out in s.473DD(b) of the Act. 9. In making the PV decision the delegate relied on the 18 December 2015 Department of Foreign Affairs and Trade (DFAT) Country Information Report for Sri Lanka. DFAT issued a new Country Information Report for Sri Lanka on 24 January 2017. From the 2017 report I have obtained new information regarding Tamils, persons with links to the LTTE and Sri Lankan citizens who departed the country illegally and sought asylum overseas. This information is not specifically about the [appellant] and is just about a class of persons of which the [appellant] is a member. The 2017 report was issued after the delegate's decision of 22 September 2016. I consider DFAT to be an authoritative source of country information. I am satisfied that there are exceptional circumstances to justify considering the new information. (Citations omitted.)

THE FEDERAL CIRCUIT COURT 18 The appellant's first ground of review in the Federal Circuit Court was that the Authority fell into jurisdictional error (at [6]-[8]) in failing to consider new information provided by the appellant by adopting and applying an unduly narrow interpretation of the term 'exceptional circumstances'. In support of this ground, it was contended that the Authority had accepted that the information provided by the appellant had been 'new information', but rejected it as there was no explanation provided for the late disclosure of the new information and the Authority limited its reasoning to the absence of exceptional circumstances and refused to consider it solely on the basis that the Authority was not satisfied that there were exceptional circumstances to justify consideration of the new information. 19 The second ground of review was that the Authority failed to rely on relevant material and relied on irrelevant material. The particulars to this ground were that the Authority had accepted (at [6]) that the document titled 'Amnesty International Report - 'Sri Lanka: The Right to Truth; the Right to Justice, Reparation and Non-recurrence' dated 30 May 2016 was new information, but failed to take into account the relevant factors and information from the document, as the Authority was not satisfied in relation to the matters set out in s 473DD(b) of the Migration Act and also failed to consider other reliable relevant materials available in 2016 and before the date of the Authority's decision in 2017 regarding the real situation in Sri Lanka, other than the Department of Foreign Affairs and Trade (DFAT) country information report dated 24 January 2017. 20 As to ground 1, the primary judge simply said (at [28]) that the Authority's reasons reflected a real and meaningful engagement in respect of the new information and there was no failure to consider the new information in the deliberation under s 473DD of the Migration Act. 21 In relation to ground 2, the Federal Circuit Court concluded (at [30]-[33]) that the alleged findings of factual error and failure to take into account other allegedly reliable country information were merely an invitation to engage in the merits review in relation to an oral argument about an error in the Authority's reasons. 22 The appellant's counsel in the Federal Circuit Court also advanced two additional grounds of review orally that sought to challenge the Authority's factual findings in relation first, to the claim that the appellant had been detained for two days and beaten when he was 15 years old and second, that the Authority's acceptance that two of his sisters were missing and his brother had been detained constituted an implicit claim that the appellant's family was likely to be imputed with an LTTE association. It was contended that the Authority had made no finding on this point. The primary judge rejected these grounds (at [37]-[45]). They are not relevant to the grounds raised on appeal.

AMENDED GROUNDS OF APPEAL 23 The grounds as stated in the amended notice of appeal can be summarised as follows: (a) by his first ground (ground 3), the appellant challenges the Authority's consideration of new information at [7] of its decision where the Authority assessed the documents provided to it that post-dated the delegate's decision. Specifically, the appellant says the Authority misapplied s 473DD of the Migration Act by failing to consider the matters required by s 473DD(b)(ii). Accordingly, the appellant says the primary judge erred (at [28]) when his Honour said '[t]here was no basis to find the Authority misconstrued s 473DD of the [Migration Act]'; (b) by his second ground (ground 4), the appellant challenges the Authority's consideration of new information at [6] of its decision where the Authority assessed documents provided to the Authority that pre-dated the delegate's decision. The appellant contends the Authority erred in its consideration of the matters at s 473DD(b)(i) and s 473DD(b)(ii) of the Migration Act, by not being satisfied of the matters in those sub-paragraphs solely on the basis that the appellant did not provide an explanation on those points. The appellant says s 473DD(b)(ii) required the Authority to go beyond merely asking itself what the appellant had stated on that issue and instead required a consideration of all relevant matters that could touch upon the question. Accordingly, the appellant says the primary judge erred when his Honour held (at [33]) that 'Ground 2 fails to make out any jurisdictional error'; (c) the appellant's final ground (ground 5), is closely related to ground 4. The ground contends that the Authority ignored relevant material and relied on irrelevant material in its fact finding by refusing to consider the Amnesty International Report (at [6]) because of the appellant's failure to satisfy it of the matters in s 473DD(b) while proceeding (at [9]) to accept that there were exceptional circumstances to justify considering the new DFAT country information report. The appellant says that by failing to consider the Amnesty International Report, the Authority failed to consider matters that may have been relevant to the question of exceptional circumstances. Similarly to ground 4, the appellant says the primary judge's finding (at [33]) was erroneous.

CONSIDERATION 24 The appellant's grounds are all confined to the Authority's application of s 473DD to various documents that were not before the delegate and so constituted 'new information'. At the hearing, counsel for the appellant did not expand on his written submission in relation to grounds 4 and 5 and, quite rightly, focused on ground 3. 25 Each of the three grounds is to be determined having regard to the High Court's decision in AUS17 which considered the construction and operation of s 473DD of the Migration Act. The plurality confirmed that the correct approach to the consideration of new information obtained from an applicant is to first assess that information against both of the criteria in s 473DD(b) and then, if either or both of those limbs are satisfied, proceed to a consideration of the 'exceptional circumstances' limb in s 473DD(a). The plurality (Kiefel CJ, Gageler, Keane and Gordon JJ) reasoned as follows (at [10]-[12]): 10 Section 473DD would be at war with itself, and the purpose of s 473DD(b)(ii) would be thwarted, if the circumstance that there was new information from a referred applicant meeting the description in either s 473DD(b)(i) or s 473DD(b)(ii) were able to be ignored by the Authority in assessing the existence of exceptional circumstances justifying consideration of that new information in order to meet the criterion specified in s 473DD(a). 11 Logic and policy therefore demand that the Authority assess such new information as it might obtain from the referred applicant first against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and only then against the criterion specified in s 473DD(a). If neither of the criteria specified in s 473DD(b)(i) and s 473DD(b)(ii) is met, the Authority is prohibited from taking the new information into account in making its decision on the review. Further assessment of the new information against the criterion specified in s 473DD(a) is redundant. If either the criterion specified in s 473DD(b)(i) or the criterion specified in s 473DD(b)(ii) is met, that is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a). If both the criterion specified in s 473DD(b)(i) and the criterion specified in s 473DD(b)(ii) are met, that too is a circumstance which must be factored into the subsequent assessment of whether the new information meets the criterion specified in s 473DD(a) and which must heighten the prospect of that criterion being met. 12 The result, as has been recognised by the Federal Court in numerous other cases, is that the Authority does not perform the procedural duty imposed on it by s 473DD in its conduct of a review if it determines in the purported application of the criterion in s 473DD(a) that exceptional circumstances justifying consideration of new information obtained from the referred applicant do not exist without first assessing that information against the criteria specified in both s 473DD(b)(i) and s 473DD(b)(ii) and then taking the outcome of that assessment into account in its assessment against the criterion specified in s 473DD(a). The nature of the non-performance of the procedural duty in such a case is not inaccurately characterised as a failure to take account of a mandatory relevant consideration in the purported application of the criterion in s 473DD(a). (Emphasis added, citations omitted.)

The first ground (ground 3) 26 This ground is concerned with [7] of the Authority's decision (set out above at [17]) and its refusal to consider any of the new information provided by the appellant that post-dated the delegate's decision. It is readily apparent that the Authority makes no explicit reference in that paragraph to the criterion in s 473DD(b)(ii). Instead, the Authority accepted that the documents could not have been provided to the delegate, but after observing that the information contained in the documents related to matters that pre-dated the delegate's decision and were raised in the appellant's protection visa interview, the Authority concluded that it was not satisfied that there were exceptional circumstances to justify consideration of the documents. The Authority in this paragraph has neglected to address the consideration mandated by s 473DD(b)(ii), namely, whether the new information was credible personal information which had not been previously known, and, had it been known, may have affected the consideration of the appellant's claims. 27 I am unable to accept the Minister's submission that it is to be implied from the first part of the final sentence in [7] that because the information contained in the documents related to matters that pre-dated the delegate's decision and appeared to have been provided at the request of the appellant and related to matters that were raised at the protection visa interview, that the Authority was not satisfied as to s 473DD(b)(ii). This conclusion, in my view, is fortified by the fact that at [6] of the Authority's reasoning, it expressly referred to the second limb when considering the documents that pre-dated the delegate's decision. I respectfully disagree with the conclusion of the primary judge that there was no basis to find that the Authority misconstrued or misapplied s 473DD of the Migration Act. There was a failure to comply with the requirements of s 473DD, in the manner considered by the High Court in AUS17.

The second ground (ground 4) 28 By the second ground (ground 4), the appellant challenges the Authority's consideration of new information that pre-dated the delegate's decision, in particular the Amnesty International Report, which is contained in [6] of its decision. In contrast to the approach taken in [7], the Authority correctly directed its attention first to the matters in s 473DD(b) and, not being satisfied that either criterion was met, concluded its analysis and refused to consider the new information. 29 The appellant specifically seeks to impugn the Authority's conclusion that the fact that 'the [appellant] did not provide any explanation' going to the matters in s 473DD(b) was dispositive of its task under that section. The appellant says the Authority must do more, and consider all matters that may be relevant to the criterion in s 473DD(b). 30 This submission ignores the clear words in the chapeau of s 473DD(b) which imposes the burden on the appellant to satisfy the Authority of the matters at subss (i) and/or (ii). There is therefore no obligation on the Authority to make its own enquiries as to those matters. The appellant did not point to any authorities which suggest otherwise. 31 The second ground (ground 4) cannot succeed.

The third ground (ground 5) 32 This ground is, with respect, misconceived. To the extent it differs from ground 4, the differences in the treatment by the Authority of the Amnesty International Report at [6] and the updated DFAT country information at [9] is explained by the fact that only information that is provided to the Authority by the appellant is required to meet at least one of the criterion in s 473DD(b). Other new information received by the Authority is only to be considered by reference to s 473DD(a). So much is apparent from the words of the section and the plurality's reasons in AUS17 (at [7]-[8]). 33 The third ground (ground 5) cannot succeed.

Jurisdictional error? - materiality 34 Although the appellant has demonstrated that the Authority erred at [7] in its application of s 473DD, the Minister contends that the error could not realistically have resulted in a different decision. In other words, the Minister says that even if the Authority had correctly applied s 473DD(b)(ii), and even if the Authority had then decided to accept some or all of the new information referred to at [7], the appellant still could not have been successful in his application for a protection visa. 35 In considering whether, if a decision-maker or Tribunal had not made a particular error, a different result could realistically have been reached, the Court must resolve this question as an ordinary question of fact. This requires consideration of the evidence and inferences available, including the reasons of the decision-maker or Tribunal, and on the basis that the onus of proof is on the applicant: PQSM v Minister for Home Affairs [2020] FCAFC 125; (2020) 279 FCR 175 per Banks-Smith and Jackson JJ (at [151]). In relation to the onus of proof their Honours Banks-Smith and Jackson JJ cited Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 (at [46]). The proposition that the onus in demonstrating the materiality of a breach of an express or implied condition of the conferral of a statutory power rests on the party seeking to demonstrate the materiality of the error was more recently confirmed by a majority of the High Court in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441 per Kiefel CJ, Gageler, Keane and Gleeson JJ (at [60]) 36 When regard is had to the claims and material before the Authority and the Authority's reasons for decision, the error established by ground 3 of the appellant's amended notice of appeal was not material. Even if the error had not been made by the Authority, that approach could not realistically have resulted in the Authority making a different decision that the appellant be granted a protection visa. The content of the two letters referred to at [7] dealt primarily with claims that were made by the appellant and accepted by the Authority. The letter of 24 October 2016 additionally referred to an incident where the appellant was purportedly arrested at his home in December 2009, but according to the claims made by the appellant, it would appear that he was in fact living in a refugee camp with his family at that time (see the Authority's decision at [15]). 37 As noted above, (at [10]-[16]), the Authority accepted the majority of the appellant's claims. The letters rejected by the Authority (at [7]) do not go to the claims that the Authority rejected. The dispositive findings made by the authorities did not indicate that he would be imputed with an association with the LTTE and that, in light of the improving situation in Sri Lanka since 2015, the risk of harm to the general Tamil-Hindu population had significantly decreased. The contents of the letters rejected by the Authority (at [7]) simply corroborated claims that were accepted by the Authority. 38 Despite the appellant having succeeded on the first ground of appeal (ground 3), it is not possible to conclude that the error could have realistically given rise to a different decision by the decision-maker. The error is not shown to have been material in the sense required by SZMTA per Bell, Gageler and Keane JJ (at [38], [44] and [45]). 39 Ground 3 cannot succeed.

CONCLUSION 40 The appeal will be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McKerracher.