4.1.2 Did the IAA fail to consider whether the news reports met the criteria in s 473DD?
44 In our view, the appellants have established on the balance of probabilities that the IAA failed to consider whether the news articles and submissions relating to them met the criteria in s 473DD.
45 First, as the appellants submitted, the approach outlined by the Court in WAEE affords valuable guidance particularly in the context of Part 5 and Part 7 reviewable decisions but it does not purport to lay down rules. Rather, the question of whether the decision-maker in question has failed to consider a contention which may have been dispositive of the outcome will turn upon the construction of the particular reasons read in the light of their statutory context.
46 Secondly, the Minister rightly contends that the absence of any reference in the IAA's written statement of reasons given under s 473EA to the hyperlinked news reports does not of itself give rise to an inference that the IAA failed to consider whether they met the criteria in s 473DD. This flows from the fact that there is no obligation upon the IAA under s 473EA to set out its "decision" on whether new information meets the criteria in s 473DD.
47 Thus s 473EA(1) provides that the IAA must make a written statement that:
(a) sets out the decision of the Authority on the review; and
(b) sets out the reasons for the decision; and
(c) records the day and time the statement is made.
48 In BVD17 at [45]-[49], the Full Court held that reasons given under s 473EA must comply with the requirements of s 25D of the Acts Interpretation Act 1901 (Cth) (AIA). Section 25D requires that "the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based": see also AMA16 at [74]. As such, the Court held in BVD17 (at [49]) that the reasoning of the High Court in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 concerning the construction of s 430 of the Act (which imposes similar requirements to s 25D of the AIA) applies by analogy to s 473EA(1).
49 In SZGUR, the High Court held that s 430 of the Act did not require the Tribunal to disclose in its written reasons, procedural decisions taken in the course of making its "decision on a review" and therefore did not require the Tribunal to refer to the disposition of a request by the applicant's migration agent for an independent medical assessment. As such, the High Court held that the Federal Court had erred in relying upon s 430 to found an inference that the Tribunal had not considered the request because the Tribunal had not referred to the request in its reasons. In so holding, French CJ and Kiefel J (with whom Heydon and Crennan JJ agreed) reasoned that:
32. … Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal's consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to "get any information that it considers relevant", is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal's treatment of the agent's letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.
50 Applying SZGUR, the Full Court in BVD17 therefore held that the absence of any reference in the IAA's reasons to the exercise of the discretion to disclose information covered by a certificate under s 473GB of the Act does not of itself give rise to an inference that the exercise of that discretion was not considered (at [49]). Equally, Bromwich J held in CVS16 at [29] that s 473EA(1) does not require the IAA to set out whether or not new information satisfies the criteria in s 473DD in its reasons because s 473EA(1) "is directed to the decision, and reasons for decision, on the review itself". As such, Bromwich J held that the IAA did not fall into error in failing to state its reasons in respect of the discretion in s 473DD (at [25] and [29]). It was not submitted that the decision in CVS16, which is directly on point, was wrongly decided and should be overruled. That notwithstanding it is important to stress that "there may well be circumstances where the lack of any information in the reasons as to the exercise of the discretion supports an inference that the exercise was not considered", as the Full Court in BVD17 also observed at [50]. An example of such a case is the decision of Mortimer J in BZC17 v Minister for Immigration and Border Protection [2018] FCA 902 at [56]-[58].
51 Thirdly, it is true that the news reports could not of their nature meet the criterion in s 473DD(b)(ii) because the information was not "personal" to the appellants. Thus, it was not in dispute that the information contained in the news reports concerned people and events unrelated to the appellants and was in the nature of country information (and indeed was so described in the Tern submission itself). However, the appellants sought to rely upon the news reports on the basis that the information contained in them fell within s 473DD(b)(i) of the Act and it was not in issue in the FCC that the news reports satisfied the description in that subsection: FCC reasons at [17]. In this regard, we note that several of the reports, which appeared in foreign publications, were dated 27 February 2017 which was the same date as the delegate's decision and therefore could not have been provided to the Minister before the delegate's decision.
52 Fourthly and turning to the question of whether the information was nonetheless correctly held to be of marginal relevance only, the Tern submission to the IAA explained that "… earlier this year there was a widely reported incident of prisoners being killed by gunmen as part of a drug-related issue." The submissions then set out hyperlinks to six news articles from a variety of sources on the incident, namely, publications in the United Kingdom including The Telegraph, the BBC and the Daily Mail, and another publication, Hiru News, and continued:
This incident demonstrates that drug gangs in Sri Lanka are able to target prisoners and thus corroborates [the husband's] fear that he will be killed once he is detained in Sri Lanka. This additional country information therefore provides additional support for the objective basis of these claims in the following key elements of the claims are readily established:
• The highly organised activities of drug smugglers using fishing boats in Sri Lanka is well-known
• Whilst the Sri Lankan Navy and other government bodies are attempting to tackle the drug problem, the police force is endemically corrupt
• There are continued high-levels of bribery and corruption complaints against police personnel
• suspicious deaths in custody are prevalent
• Drug gangs are involved in highly organised targeted killings of those in police custody.
53 The news reports in turn include reference to the trafficking of heroin into Sri Lanka "steadily increasing", with the main trafficking routes being by sea and the heroin being smuggled into the island in sea containers and fishing boats. They refer in particular to an attack on a prison bus transferring suspects to court, as a result of which five suspects were killed including an alleged underworld gang leader described in one article as a "drug lord". One of the reports dated 27 February 2017 stated that the police had declined to provide police protection for the transfer but that "the assailants had worn clothing similar to police uniforms". Another article bearing the same date stated that the shooting was described by police as "a result of enmity between two underworld gangs". The article also stated that gang-related activity was rising, and referred to illegal drugs as one of three ways in which most gangs made their money. Another article also dated 27 February 2017 referred to the fact of a number of shootings targeting prison buses.
54 It follows that while the information was not directly about the appellants, it potentially provided independent and objective corroboration of important aspects of their claims to fear harm which were otherwise regarded as speculative by the IAA, including: as to the reach of the drug smugglers and the lengths to which they may go for revenge; and as to the risk of harm posed to the husband if he were detained in prison even for a short time, which the IAA accepted may occur (see above at [18]). It follows, with respect, that we do not agree with the primary judge that the news reports were of "marginal relevance" only, being the reason given by his Honour as to why he did not infer that the IAA had failed to consider the information.
55 That being so, in our view the IAA's failure to make any reference to the news reports in its reasons, coupled with its detailed consideration of the other new information on which the appellants sought to rely, entitles an inference to be drawn that it did not consider the news reports either in the exercise of its functions under s 473DD or in arriving at its substantive decision: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] (McHugh, Gummow and Hayne JJ). In other words, these considerations provide a proper basis for inferring on the balance of probabilities that the IAA "… failed in the discharge of [its] exact function according to law", being to form a state of satisfaction under s 473DD in respect of whether it should have considered the information in the news reports and, if satisfied that they should be considered in the review, to consider them: cf Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J).
56 In the event that the Court so found, subject to the questions raised by the amended notice of contention which we consider below, the Minister accepted that the IAA was required to consider the information for the purposes of considering whether it fell within the statutory exception in s 473DD to the "primary rule" excluding new information.
57 Finally, it should be borne in mind that absent satisfaction of the criteria in s 473DD, the review of a fast track reviewable decision under Part 7AA is limited to the material before the Minister at the time that she or he made the initial decision. As such, a decision on whether to consider new information is a decision about the very scope and nature of the review decision. By contrast, Part 7-reviewable decisions are subject to full merits review by the Tribunal including a hearing with the Tribunal, which must make the correct or preferable decision at the time that it makes its decision on the material before it, including evidence of relevant, supervening events: Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [47]-[51] (Kirby J), [98]-[101] (Hayne and Heydon JJ) and [140]-[142] (Kiefel J (with whose reasons on this issue Crennan J agreed at [117])). Absent any mention therefore by the IAA of an applicant's request for new information to be taken into account, an applicant would be left entirely in the dark as to whether even the very limited statutory rules of procedural fairness applicable to the fast track review were complied with by the IAA.