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[2020] FCA 329
Federal Court of Australia
2020-03-13
Perry J
Original judgment source is linked above.
PERRY J: 1 INTRODUCTION [1] 2 BACKGROUND [8] 2.1 The criteria for the grant of the safe haven visa [8] 2.2 The appellant's claims [11] 2.3 The delegate's decision [12] 2.4 The IAA's decision [13] 2.5 The decision of the FCC [19] 3 CONSIDERATION [23] 3.1 Circumstances in which new information may be considered by the IAA under the Act on a fast track review [23] 3.2 The footnoted documents [26] 3.3 The construction of "before the Minister" in the definition of "new information" in s 473DC(1) [31] 3.3.1 The appellant's submissions [31] 3.3.2 The appellant's construction must be rejected [34] 4 CONCLUSION [44]
2.1 The criteria for the grant of the safe haven visa 8 The safe haven visa for which the appellant applied is a class of temporary protection visa, as provided for by s 35A of the Act. As such, it was necessary among other things for the appellant to satisfy the criteria for a protection visa in either s 36(2)(a) (the refugee criterion) or subs 36(2)(aa) (the complementary protection criterion): see s 35A(6) of the Act. 9 Turning first to the refugee criterion, at the relevant time s 36(2)(a) provided that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has protection obligations "because the person is a refugee". A person is a "refugee" for the purposes of the Act if the person (relevantly) "is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country" (s 5H). In turn, s 5J(1) of the Act provides that: (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. 10 In the alternative, s 36(2)(aa) of the Act provides that it is a criterion for a protection visa that the applicant is a non-citizen in Australia "in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm". The phrase "significant harm" is defined in s 36(2A) to mean arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
2.2 The appellant's claims 11 The appellant's claims arising from his entry interview, written statements dated 10 August 2016 and 23 February 2017, and his interview with the delegate on 27 February 2017, may be summarised as follows. (1) The appellant's father worked in [a specified support role] for the Liberation Tigers of Tamil Eelam (LTTE) and his brother, Mr P, was a highly ranked officer in the LTTE. The appellant's father and Mr P were killed in mid-2009. (2) The appellant was a sympathiser and supporter who assisted the LTTE. He held [a high rank in] the Sea Tigers, the naval branch of the LTTE, which transported cadres, weapons, supplies, and senior members of the Sea Tigers. (3) The appellant sustained gunshot injuries in a battle with the Sri Lankan Navy. (4) In approximately 2006/2007, the appellant became afraid for his safety with the renewed civil war and the pain from his injuries, and escaped to a third country where he remained until approximately 2010. (5) Upon his return to Sri Lanka in 2010, the Sri Lankan authorities took him to the Sri Lankan Army camp to interrogate him because they were aware of his involvement in the LTTE. After acceding to his pleas not to be detained, the authorities made him report to the camp every day which he did for four months before fleeing to Colombo where he went into hiding. (6) In 2012 the appellant attempted to visit his family but was caught at a Sri Lankan Army checkpoint. He was detained, interrogated, and tortured with cigarette butts and by having his toenails pulled out, and was sexually assaulted. He managed to escape and returned to Colombo. (7) The authorities came to his home to search for him, put pressure on his family to disclose his whereabouts, and issued letters demanding that he surrender. (8) The appellant then met a people smuggler through a friend and arranged to leave Sri Lanka for Australia. (9) He suffered Post-Traumatic Stress Disorder (PTSD) as a result of the trauma of the war, his injuries and the torture, and he has memory problems associated with this and from shrapnel in his head. (10) If returned to Sri Lanka, the appellant fears harm as a Tamil male from an LTTE martyr family and on account of the ongoing discrimination against, and persecution of, Tamils by the authorities with no accountability. He claimed that he would be identified at the airport because the authorities have his photograph and there are former LTTE informants working there.
2.3 The delegate's decision 12 The primary judge conveniently summarised the decision by the delegate as follows: 2. …The delegate found, in summary, that the applicant's brother was a high-ranking member of the Liberation Tigers of Tamil Eelam ("LTTE"), his father was [head support role] with the LTTE, that his brother had died in [the mid-1990s] and his father died in [the early 2000s]. The delegate found that the applicant was a member of the Sea Tigers Division of the LTTE from 1990 to 2006 and that the applicant was shot … during a confrontation with the Sri Lankan Navy in 1994. After this, the applicant helped in the [support role] of the LTTE with his father. 3. The delegate found that the applicant went to [a third country] in 2006 to avoid further work with the LTTE. He returned to Sri Lanka in 2010 and in 2011 was made to report daily to the Criminal Investigation Department, ("CID") which is a section of the Sri Lankan security apparatus, for a period of four months. In 2012, the delegate found that the applicant was removed from a bus and detained for somewhere between one and a half and three months and was the subject of torture. The delegate found that, whilst the applicant claimed that he escaped from this detention, he in fact was released. 4. The delegate did not accept that the authorities were and are currently still looking for the applicant. The delegate found that the applicant was not of interest to authorities at the time of his illegal departure from Sri Lanka. The delegate did, however, accept that the applicant suffers from post-traumatic stress disorder.
2.4 The IAA's decision 13 It was not in issue that the appellant is a "fast track applicant" as defined in subs 5(1)(a)(i)-(iii) of the Act and therefore that the delegate's decision was subject to limited merits review by the IAA under the Fast Track Assessment Process (fast track review) in Part 7AA of the Act. 14 The delegate's decision was referred to the IAA on 20 June 2017 pursuant to s 473CA of the Act. The appellant was notified of the referral by letter dated 20 June 2017 (AB156-158). In that letter, the IAA explained that: The Department of Immigration and Border Protection (the Department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection Visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the Department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached fact sheet and Practice Direction. 15 As earlier explained, the IAA notified the appellant of its decision on 29 December 2018 to affirm the delegate's decision (AB 185). As the IAA noted at [4] of its reasons, in reviewing the referred material before it, the IAA had reached "some very different findings and conclusions on the evidence than did the delegate": see also FCC reasons at [2]. 16 In its reasons, the IAA found that the appellant's claims had changed significantly from his evidence at the entry interview and that there were inconsistencies between his two written statements (IAA reasons at [11]). The IAA did not accept the appellant's explanations for those changes and inconsistencies, rejecting among other things his claims that he was afraid to disclose his LTTE links to the Australian authorities in the entry interview and that his memory was poor as a result of the PTSD and his head injury (IAA reasons at [11]-[13]). Rather the IAA found that "there was an increasing embellishment of his activities, and including the changed dates of death of P and his father to a more recent participation in the height of hostilities, to bolster his prospects of success in his visa application" (IAA reasons at [11]). 17 Having regard to its findings as to the inconsistencies in the appellant's evidence, the country information, and the implausibility of certain of his claims, the IAA relevantly found as follows. (1) The IAA did not accept that the appellant's brother, Mr P, was a ranked LTTE officer but found that he was an LTTE cadre only (at [16]). (2) The IAA accepted that Mr P was killed in the mid-1990s, being the earlier of the two different years given by the appellant for Mr P's death (at [16]). (3) The IAA accepted that the appellant's father provided support to the LTTE and was a supporter of the Tamil cause but did not accept that he was a leader or prominent member of the LTTE (at [18]). (4) The IAA did not accept the appellant's evidence that he was a member of, or a boat driver for, the Sea Tigers or that he undertook military or naval training as a Sea Tiger (at [22]). However, the IAA accepted that the appellant was required by the LTTE to give service by way of working with his father in the support role and that he was a supporter of the general LTTE cause (ibid). (5) The IAA found that the appellant's accounts of his whereabouts in the last years of the war were "totally contradictory" and rejected his claim that he went to the third country from around 2006 to 2010 (at [23]). (6) The IAA accepted that the appellant was a low level supporter of the LTTE, providing occasional support work for the LTTE (at [26]). (7) The IAA also accepted that the appellant was required to report to a Sri Lankan army camp for a period of three or four months and that, in so doing, the authorities carefully questioned him and people in his community about his LTTE knowledge and involvement. Furthermore, the IAA accepted that when being questioned, there were times when the appellant was physically mistreated although it did not accept that he was subjected to sexual assault or pulling out of his toenails (at [26]). Nor did the IAA consider it plausible that the appellant would have run away from his reporting conditions and fled to Colombo without the authorities' permission but continued to pass unidentified through various checkpoints on a regular basis. Rather the IAA found that, after vetting the appellant for approximately three or four months, the authorities released him from the reporting requirement, finding that he was not a security interest (at [27]-[28]). (8) The IAA did not accept that the authorities had issued any letters demanding his surrender or were searching for him (at [29]). 18 Based upon relevant country information in its earlier findings, the IAA then found that the appellant had no profile of adverse concern to the Sri Lankan authorities because of his or his family's involvement with the LTTE (at [30]-[33]). Nor was the IAA satisfied that he faced a real chance of serious harm on account of his Tamil ethnicity or origins, or any profile of actual or included LTTE support (at [35]). The IAA also found that the appellant would not suffer serious harm on a count of any mental health issues which he may have, because he departed Sri Lanka illegally, or because he may be identified as a former asylum seeker (at [35]-[42]). As a consequence, the IAA concluded that the appellant did not meet the requirements of the definition of a refugee in s 5H(1) of the Act and therefore the criterion for a protection visa in s 36(2)(a). Nor based upon the same factual findings was the IAA satisfied that there was a real risk of the appellant suffering significant harm based on the combination of his profile so as to meet the complementary protection criterion in s 36(2A) of the Act (at [44]-[48]).
2.5 The decision of the FCC 19 The appellant abandoned the first eight grounds of his application for judicial review as originally filed in the FCC when he was unrepresented. He subsequently obtained legal representation and filed an amended application relying upon new grounds 9 to 13 inclusive. The FCC's dismissal of grounds 12 and 13 is not challenged on the appeal. As earlier explained, Ground 2 of the notice of appeal takes issue only with the primary judge's rejection of grounds 9 to 11 inclusive of the application for judicial review. 20 On the appeal the appellant relies upon the particulars set out in grounds 9 to 11 of the judicial review application as identifying the country information relied upon by the IAA which is said to constitute "new information" for the purposes of Part 7AA. It is therefore convenient to quote those grounds of judicial review in full as follows: Ground 9 The IAA erred when it had regard to new information concerning his brother P but failed to consider s 473DD before taking the new information into account in its decision and/or failed to apply the provisions of s 473DD in deciding whether that new information was capable of being considered by the IAA in its decision. Particulars At paragraph 14 of its decision the IAA examined the material provided by the applicant concerning his brother P and then considered the material the IAA had obtained from various sources. This information included: (i) Neither Ps name nor [his father's name] were listed amongst senior officers killed in 2001 to 2009. (ii) High ranking general colonels and district commanders were fairly widely known and reported upon. (iii) The leader of the artillery regiment in Maniwannan is listed as killed. (iv) The only similar name to the brother's nom de guerre in the list is Kapil Amman who was a longstanding head of intelligence gathering and the Deputy Chief of Intelligence. (v) IPKF arrived in Sri Lanka in 1987 and withdrew in 1990. (vi) The commander of the Mallaitivu District in 1987 was Paseelan. (vii) The district was later merged into one regional command under Brigadier Balraj followed later by Theepan and Mahathaya. (viii) The artillery brigade was only formed in 1995 to 1998 known as Kittu Artillery Brigade, under the command of Colonel Banu until 2004 and by April 2009 was led by Manivannan. (b) The IAA was only entitled to obtain new information pursuant to s 473DC that "may be relevant." (c) The obtaining of the new information pursuant to the provisions of s 473DC was "subject to this part", such part including s 473DD. (d) The IAA failed to explain why the new information may have been relevant. (e) The IAA could only consider the new information pursuant to the provisions of s 473DD. (f) The IAA did not consider s 473DD and accordingly was not entitled and ought not, to have considered the new information. (g) Contrary to these provisions, the IAA did so consider the new information and found against the applicant and/or did not accept the applicant's claims concerning his brother, such error causing the decisions to be infected with jurisdictional error, unreasonableness, and the taking into account of material which is irrelevant or which it was otherwise not entitled to consider. Ground 10 The IAA erred when it failed to give particulars of the new information particularised in Ground 9 above to the applicant; failed to explain to the applicant why the new information is relevant to the review; and failed to invite the applicant orally or in writing to give comments on the new information in writing or at interview in person or by telephone or in any other way when the new information was new information that was to be considered by the IAA and was a part of the reason for affirming the fast track reviewable decision pursuant to s 473DE of the Act and otherwise did not invite the applicant for interview under section 473DB. Particulars - see Ground 9 above Ground 11 The IAA erred when it had regard to new information concerning boats the applicant claimed he drove while with the Sea Tigers, but failed to consider S. 473DD before taking new information into account in its decision and/ or failed to apply the provisions of S 473D in deciding whether that new information was capable of being considered by the IAA in its decision. Particulars a. At paragraph 20, the IAA examined the material provided by the applicant concerning boats he claimed he drove while with the Sea Tigers, and then considered new information the IAA had obtained from various sources. This new information included: i. Boats mainly used for logistics transport runs by the LTTE were the Muraj class boats crewed by ten to fourteen sailors and mounted with three machine guns. Sometimes also used as a fast attack boat; ii. Other boats in the Tiger fleet included the four man 'Thrikka' class boats, used to deploy combat divers, and the six man 'Suddai' class boats used to attack SLN vessels; iii. These boats were mounted with a single machine gun and also often accompanied and protected the larger 'Muraj' transport boats by attacking and luring away SLN vessels; iv. There's no indication in the country information before the IAA of any boats used for the transportation matching the applicant's description and named 'Dorah'; v. The LTTE captured one or two similar sounding 'Dvora Sea Tigers' boats from the DLN, the applicant explained that the Dorah boats he drove were distinctive to the SLN because the Dorah boats were totally different from the navy boats; vi. The SLN's Dvora boats were much larger vessels, at between 19.9m to 27.4 m long (depending on the model) than the description by the applicant of the Dorah boats at between 16 to 35 feet long maximum; vii. Most of the recruits for the Sea Tigers came from the coastal fishing communities; viii. Regular military forces were not paid for their services. b. The IAA was only entitled to obtained new information pursuant to S 473DC that 'may be relevant'; c. The obtaining of new information pursuant to the provisions of S 473DC was 'Subject to this Part', such Part including S 473DD; d. The IAA failed to explain why the new information may have been relevant; e. The IAA could only consider that new information pursuant to the provisions of S 473DD; f. The IAA did not consider S 473DD and accordingly was not entitled, and ought not, to have considered the new information; g. The IAA did so consider the new information and found against the applicant and/or did not accept the applicant's claims concerning the boats he claimed he drove while with the LTTE, such error causing the decisions at paragraph 21 and at paragraph 22 to be infected with jurisdictional error, unreasonableness, and the taking into account material which was irrelevant or which it was otherwise not entitled to consider. (AB at pp. xiv-xvi) 21 The primary judge noted that it was common ground between the parties that each of the matters the subject of the grounds of judicial review were contained within documentation that was footnoted in the delegate's decision (FCC decision at [29]). However, the gravamen of the appellant's submissions was that the information set out in the particulars to grounds 9 to 11 was nonetheless "new information". In this regard, the appellant's counsel submitted in the FCC that "the Authority's decision shows it examined in detail the materials, and in a particularity that the delegate who made the original decision did not" and that "footnoting documents in a delegate's decision is not evidence that they were, necessarily, before the delegate and thus, before the Minister" (FCC reasons at [15]-[16]). 22 The primary judge dismissed grounds 9 to 11, finding that the information was in fact before the Minister and therefore was not new information under s 473DC with the consequence that there was no obligation on the Authority to put that information to the appellant under s 473DE.
3.1 Circumstances in which new information may be considered by the IAA under the Act on a fast track review 23 As earlier mentioned, the conduct of the fast track review was governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). Part 7AA of the Act (comprising ss 473BA-473JF) was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the amending Act) and commenced on 18 April 2015. The amendments introduced a Fast Track Assessment Process (fast track process) providing a mechanism for limited merits review by the IAA in respect of certain adverse protection visa decisions. As the simplified outline of Pt 7AA in s 473BA explains, the fast track process provides: … a limited form of review of certain decisions … to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. 24 Part 7AA was relevantly explained by the Full Court in BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44; 163 ALD 483 as follows: 25 First, the Minister must refer a fast track reviewable decision (as defined in s 473BB) to the IAA "as soon as reasonably practicable after the decision is made" (s 473CA). At the same time as the referral is made (or as soon as reasonably practicable thereafter), the Secretary must give to the IAA "review material" in respect of the referred decision (s 473CB). The review material must include a copy of the primary decision-maker's written reasons for decision and any material provided to the primary decision-maker by the referred applicant, together with "[a]ny other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the [IAA]) to be relevant to the review" (subs 473CB(1)(a)-(c)). 26 Secondly, the IAA must "review" a fast track reviewable decision referred to it under s 473CA (s 473CC(1)). In the exercise of its review function, subs 473FA(1) requires the IAA "to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)." 27 Thirdly, the conduct of the review is governed by Div 3 of Part 7AA (comprising ss 473DA-473DF). When read together with s 473DA, the scope of material which may be considered by the IAA is limited by Subdiv C of Part 7AA Div 3. 28 Thus s 473DA provides that Div 3 (together with ss 473GA and 473GB) "is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority." In turn, s 473DC(1) provides that: 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. 29 "New information" must be read consistently when used in ss 473DC, 473DD and 473DE "as limited to 'information' (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)": Plaintiff M174 at [24] (Gageler, Keane and Nettle JJ). … 31 Furthermore, the discretion to get new information under subs 473DC(1) must be read together with s 473DD which strictly circumscribes the circumstances in which the IAA may consider any new information. That section provides that: 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. 32 As Gageler, Keane and Nettle JJ explained in Plaintiff M174 at [27], "given that the Authority's obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration." Thus, in order to consider new information, the IAA must be satisfied that the criterion in s 473DD(a) is met and either of the criterion in s 473DD(b)(i) or (ii): Plaintiff M174 at [30]-[31]. (emphasis added) 25 It follows that, despite the prima facie width of the discretion in s 473DC(1) of the Act, the "primary rule" is that the IAA conducts the fast track review on the papers by reference to the material before the Minister: Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 92 ALJR 481 at [22]; AMA16 at [19] (Griffiths J) (with whom Dowsett J at [1] and Charlesworth J at [97] relevantly agreed); BYA17 at [33] (the Court).
3.2 The footnoted documents 26 The challenge relates to the documents footnoted at [14] and [20] of the delegate's decision. 27 First, at paragraph [14] of its decision the IAA rejected the appellant's claim that Mr P held a high rank in the LTTE military and was killed in 2009 in the closing days of the conflict on the basis that those claims conflicted with country information and the appellant's own evidence. With respect to the country information relied upon at paragraph 14, the IAA cited three papers in footnotes 1 to 4, namely: (1) Joanne Richards, "An Institutional History of the Liberation Tigers of Tamil Eelam (LTTE)", CCDP Working Papers, Centre on Conflict, Development and Peace Building (CCD) - Graduate Institute of International Development Studies, Geneva, 1 November 2014, CISA447FO82828 (CCDP Working Paper); (2) South Asia Terrorism Portal, "LTTE Leaders killed during encounters with security forces in Sri Lanka 2001 - 2009", 1 January 2012, CIS24654; and (3) Dbsjeyaraj.com, "Brigadier Balraj - Seventh Death Anniversary of Legendary LTTE Commander Who Led from the Front", 24 May 2015, CXBD6A0DE19286. 28 It is not in dispute that each of these papers is cited in footnote 9 of the delegate's decision. Moreover the three papers are cited by the delegate in support of the proposition that "Country information including the SATP does not list his brother as being deceased in … 2009 which suggests that either his brother did not hold the rank claimed, or that he did not die when claimed". As such, the delegate relied upon the papers in the context of considering the same claims as those addressed at paragraph 14 of the IAA's decision and, in particular, in rejecting the appellant's claims that his brother was killed in 2009 even though it accepted that Mr P held a high ranking position with the LTTE. 29 Secondly, at paragraph 20 of its decision, the IAA considered the appellant's evidence about his alleged role in the Sea Tigers, finding that his evidence was inconsistent with country information. In particular, the IAA cited the following items of country information in footnotes 8 to 12 inclusive to paragraph 20: (1) Small Wars Foundation, "A Guerrilla War at Sea: the Sri Lankan Civil War", 9 September 2011, CISD9559B12331, p. 19; (2) Jane's Intelligence Review, "Maritime threat tactics and technology of the Sea Tigers", 1 June 2006, CX154530; (3) Sri Lanka Guardian, "Pareema Weera: What it takes, and what it means", 29 May 2012, CX0D38E8E20980; (4) Weaponsystems.net, "Dvora class", 1 January 2017, CISEDB50AD3700; and (5) the CCDP Working Paper, p. 25. 30 Again, save for the CCDP Working Paper, each of these documents are referred to in the delegate decision also in the context of considering whether the appellant was a member of the Sea Tigers division of the LTTE is claimed: see footnote 12 to the delegate's reasons for decision, AB144.
3.3 The construction of "before the Minister" in the definition of "new information" in s 473DC(1)
3.3.1 The appellant's submissions 31 The appellant did not dispute that the documents referred to in footnotes 9 and 12 of the delegate's reasons (the footnoted documents) were physically before the delegate, accepting that this would be the case even if the document were displayed on a screen and not physically before the delegate in hard copy. The appellant submitted that his case turned upon the construction of the phrase "before the Minister" in the definition of "new information" contained in s 473DC(1) (as picked up in the definition of "new information" in s 473BB). In his submission, those words should be construed as requiring that the Minister considered, in a meaningful way, the particular passages in the footnoted documents upon which the IAA relied. This required, in his submission that the Minister has, at a minimum, read the relevant passages. In his submission, this may be established where, for example, the delegate referred to the very same points from the footnoted documents as those relied upon by the IAA as extracted in the particulars quoted above at [20]. However, in the appellant's submission, no such inference could be drawn in this case because the delegate had merely cited the documents in the footnotes and did not refer in its reasons to the numerous detailed matters set out in the footnoted documents which were taken into account by the IAA as extracted in the particulars. 32 In support of this construction, the appellant relied upon the following factors. (1) It was important to know if material was before the Minister in order to determine whether the Minister was required to assess whether or not consideration of the material was precluded under s 473DD subject to the material satisfying the criteria in subs (a) and (b). (2) If it sufficed merely to refer to a document in a footnote to conclude that the whole of the document was before the Minister, even voluminous documents, such as the Encyclopaedia Britannica, would be treated as having been "before the Minister" in whole even though the Minister may have considered only a tiny proportion of that document in a meaningful way. 33 Furthermore, given that Division 3 of Part 7AA derogates from the natural justice hearing rule as provided for in s 473DA, it was said that it should be strictly construed in line with the principle of legality.
3.3.2 The appellant's construction must be rejected 34 I agree with the primary judge that the appellant's construction should be rejected. 35 First, in CYO16 v Minister for Immigration and Border Protection [2019] FCA 2 (CYO16) at [41]-[42], Farrell J relevantly held that it was clear that a Departmental Report was before the delegate for the purposes of s 473DC because it was footnoted in the delegate's reasons for decision. Despite the Minister's reliance upon this decision in his written submissions and the decision being specifically on point, the appellant did not contend that the decision was clearly wrong and should not be followed. 36 Nor in any event do I consider that her Honour's construction was plainly wrong. In general the inclusion of a footnote referring to a document will give rise to an inference that the document was physically before the decision-maker, given that the purpose of including a footnote reference is to identify the source of a proposition referred to in the body of the reasons. So understood, the decision in CYO16 on this issue accords with the construction adopted by the Full Court in DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170; (2018) 265 FCR 538 (DTK17). In that case, the Full Court rejected a construction of the word "before" in s 473DC(1)(a) to mean all materials in the "control" of the Minister, holding that nothing in the statutory scheme suggested that the mere fact that a report is prepared by the Department suffices to establish that it is "before" the decision-maker making the decision under s 65 of the Act. As the Full Court held: 37. … The appellant's construction of "before the Minister" could have the effect that any document published on the Internet by the Department on a matter entirely unrelated to the case at hand could be regarded as being "before" the decision-maker. This is not a result which Parliament should be taken to have intended. 37 Importantly for present purposes, the Full Court held that the words "before the Minister" "refer only to material literally before the Minister" and specifically endorsed the primary judge's construction that the phrase means "physically before the Minister, not one in respect of which the Minister may have constructive knowledge because of the breadth of material held by the Department" (DTK17 at [38]) (emphasis added). 38 Secondly, it may well be that in the case of a voluminous document such as the Encyclopaedia Britannica (being the example given by the appellant's counsel), it would not suffice to establish that the whole document was "before the Minister" for relevant purposes where only a small portion was relied upon by her or him. This arguably flows by analogy with the distinction drawn in DTK17 between material literally before the Minister and material merely in her or his control. However, it is unnecessary to determine that question here. Bearing in mind that the onus lies upon the appellant to establish jurisdictional error (Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at [24] (French CJ, Bell, Keane and Gordon JJ)), the appellant did not put the documents themselves in evidence; nor was there anything to suggest that any of the footnoted documents were particularly lengthy, let alone voluminous. To the contrary, the title and description of each implies that they comprise a specific country report, paper, or article. 39 Thirdly, the appellant's construction ignores the statutory context within which decisions by the IAA are made. Given that the IAA undertakes a de novo review which, save for exceptional cases, is confined to the material before the delegate, the Parliament plainly intended that the IAA may take a different view of that material and therefore may give weight to different aspects of it. As the primary judge held: 32. There was no doubt that the Authority is entitled to come to the conclusion that it does based on a different interpretation of the evidence. It is able to make findings that are different to that of the delegate. That is because the Authority undertakes a merits review decision, rather than simply being in a situation whereby they are undertaking a review of the outcome of the delegate's decision. It is an entirely new decision. 40 To hold otherwise would, no doubt, operate to the detriment of visa applicants in many cases, depriving them of the opportunity for a favourable result on review by the IAA. 41 Furthermore, the fact that part of a document may not have been quoted or specifically referred to in a decision of the Minister does not necessarily mean that it was not considered by the Minister, given that it is unnecessary for the Minister to refer to every piece of evidence before her or him in the Minister's reasons: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46] (the Court). That being so and given that exceptional circumstances are required before "new information" may be considered under s 473DD(a), it is highly unlikely that the Parliament intended that it would not be open to the IAA to consider material physically before the delegate in greater detail and to give weight to different aspects of it unless the criteria in s 473DD were met. To find otherwise would undermine the purpose of the review and impose a constraint upon the IAA's already limited powers of review for which there is no warrant in the statutory text. 42 Fourthly, any suggestion that construing the words "before the Minister" narrowly so as to limit the IAA's review to those passages within documents actually read by the Minister best accords with the principle of legality is met by the explanation in the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (HR) with respect to s 473DA(2), namely: The purpose of this provision is to put beyond doubt that the IAA is not required to give a referred applicant any material that was before the Minister for comment. This is because under subsection 57(2) of the Migration Act and in relation to their fast track decision, an applicant would have already been provided an opportunity to comment on relevant information that the Minister considered was the reason, or part of the reason for refusing to grant a visa. (emphasis added) 43 Finally, it may readily be accepted, as the appellant contends, that it is important under the fast track regime established by Part 7AA to know what material was in fact before the Minister. However, the appellant's construction would introduce a high degree of uncertainty into that question because an assessment would have to be made by an applicant making submissions to the IAA and the IAA (as well as a Court on judicial review) as to whether or not the Minister had read particular passages of documents referred by her or him where those passages were not identified with specificity or actually quoted in the Minister's reasons. That construction would not therefore promote the objectives of the fast track process to provide a mechanism of limited review that is, relevantly, efficient and quick: see s 473BA and 473FA(1) of the Act.
BWO18
Minister for Home Affairs
[2015] HCA 50
(2018) 265 FCR 538
(2017) 254 FCR 534
(2018) 92 ALJR 481
(2015) 258 CLR 173
(2003) 236 FCR 593