Submissions
21 The appellant submits that the further evidence is relevant to the process of judicial review and "goes to the heart of her domestic violence claim". It contains two threats to kill on two separate occasions. The Authority made its decision with no further inquiry about whether the appellant could return to Vietnam without facing the risk of domestic violence.
22 The appellant submits that the Authority failed to make relevant inquiries.
23 First, the authority said the following (at [20]):
…It appears that the farm was owned by the applicant mother, as she stated that her parents gave her the land when she first married. During a discussion about identity documents in her first arrival interview, the applicant mother stated that they were at her home in Vietnam but that the home was empty. She added that her mother had recently informed her that the house had been broken into. I conclude from this that Mr [REDACTED] moved out of the family home at or around the time that the applicants came to Australia. His whereabouts were not discussed at the PV interview. I am not satisfied that there would be ongoing conflict between [sic] and Mr [REDCACTED], should the applicants return to Vietnam…
24 The appellant submitted that the Authority assumed from this that the husband had "gone away" and made no further inquiry in circumstances where it ought to have done so.
25 Secondly, the Authority said the following (at [3]):
I have had regard to the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act). On 5 May 2017 the IAA received a submission on behalf of the applicants from their representative, Ngoc (Teresa) Tran of CARES Lawyers P/L. In this submission Ms Tran also requested that the IAA defer making a decision in this matter until after the applicants were able to provide reports on their mental health. On 18 May 2017 the IAA received an Attendance Certificate certifying that the applicant child had attended four therapy sessions with registered psychologist Wen Ng, and a letter to neurologist Dr Aaron Tan from GP Dr Pham, referring the applicant mother for assessment. Ms Tran submits that the applicant mother is waiting for further medical reports, which will be provided when they are available. No timeframe for when these reports may be expected was given. I note that the applicants were represented before the Department by the same registered migration agent. No medical evidence of this nature was sought or provided at that time, and no indication of these issues were given to the delegate during the interview or in the period following the interview and prior to a decision being made. I am not prepared to delay the matter further and have proceeded to make a decision.
26 The appellant submits that the medical evidence about the appellant's mental condition was referrable to the domestic violence issue. As I understood it, this is not put forward as a separate ground of challenge to the decision, but rather as an indication of the Authority's "cavalier attitude", to use counsel for the appellant's words, and that it shows that an inquiry by the Authority could have elicited the statement which the appellant described as "critical" and one she assumed was before the Authority, but was not. An inquiry should have been made about what had happened to the statement.
27 The appellant submits that the circumstances establish that there was no lack of reasonable diligence on her part, particularly having regard to her lack of fluency in the English language and the fact that she was in the hands of her lawyers who themselves were doing their best in circumstances where the Authority would not allow further time.
28 The appellant submits that the further material which refers to two threats to kill by the husband was "quite capable of affecting the result".
29 The particular jurisdictional error which the appellant identified in this context was legal unreasonableness. The legal unreasonableness was in the Authority not making further inquiries. The additional information was available in the form of the further evidence and the specialist medical evidence. The appellant sought to draw support from Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; (2017) 253 FCR 475 (CRY16) where the Full Court of this Court said (at [82]):
Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of "practicable", in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.
30 I note two things about that decision. First, it centred on s 473DC and the Authority's statutory power to get new information. Secondly, present in that case, but, as the appellant acknowledged, not in this case, was the circumstance that the Authority knew that it did not have relevant information on an issue not considered by the delegate, but one which the Authority ultimately considered dispositive.
31 The appellant also referred to what Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ said in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 93 ALJR 1091; (2019) 373 ALR 196 (at [33]-[34]):
33. The argument would deprive s 473DA(1) of any meaningful operation. It cannot be accepted. The evident purpose of s 473DA(1) in prescribing that the provisions to which it refers are to be taken to be an "exhaustive statement of the requirements of the natural justice hearing rule" is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, "regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition" with the result that "[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition".
34. The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 and in Minister for Immigration and Border Protection v DZU16. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.
(Citations omitted.)
32 The appellant's written submissions conclude as follows:
16. The fresh evidence is not sought to be put on to controvert the findings of fact by the IAA, but rather that the 2013 statement highlights the extent of the process of flimsy inference indulged in by the IAA. The actual state of affairs regarding the husband (the amplitude of his propensity for violence and whether it had a future component; his presence in the house or otherwise) was never sought out by the IAA, as it could and should have. Rather the IAA rested on inferences based in inadequate information. The fresh evidence illustrates what further information was available if sought out.
33 The Minister submits that there are two issues which are relevant to whether this Court, exercising appellate jurisdiction, should receive further evidence related to the proceeding in the Federal Circuit Court, that is to say, the proceeding at first instance. The two issues are whether the evidence could, by the exercise of reasonable diligence, have been put before the Federal Circuit Court and, had the evidence been before the Federal Circuit Court, whether it is likely to have led to a different result. The Minister submits that there is no evidence from the appellant which would enable the Court to find that the further evidence could not, by the exercise of reasonable diligence, have been adduced by the appellant before the Federal Circuit Court. It is to be remembered, submits the Minister, that the appellant was represented by solicitors and counsel before the Federal Circuit Court. Further, and critically, according to the Minister, the appellant has not shown that if the further evidence had been before the Federal Circuit Court, it is likely to have produced a different result. First, the further evidence cannot support a ground of a failure to consider a claim which, according to the Minister, is the gist of the first ground in the Amended Notice of Appeal. Secondly, the third ground, on the face of it a complaint about a breach of the rules of procedural fairness, is in fact a complaint of legal unreasonableness which is to be determined by reference to the claims made and material put before the Authority. Furthermore, the decision in CRY16 is readily distinguishable because in that case, unlike the present case, the issue which the Authority considered dispositive was entirely new and one with respect to which the Authority knew that it did not have all relevant information and that the referred applicant had relevant information. A failure by the Authority to inquire is not a ground of appeal. There was no link between the proposed specialist medical report and the risk of domestic violence in the future. With respect to the fourth ground, as developed in the appellant's written outline on the appeal itself, being that the Authority failed to consider a claim advanced by the appellant to belong to a particular social group, the Minister submits that that ground could only be determined by reference to the material before the Authority and that further evidence, particularly a statement which was not translated until 17 January 2020, could not be relevant to that exercise. As the Minister correctly pointed out, there is no suggestion, and nor could there be, that the English translation made in January 2020 was before the Authority.
34 Counsel for the Minister referred to the authorities as to what must be shown before there is a favourable exercise of the discretion to receive further evidence. It is sufficient for present purposes to refer to the following authorities.
35 In NASB v Minister for Immigration and Multicultural & Indigenous Affairs [2004] FCAFC 24, the Full Court of this Court (Beaumont, Lindgren and Tamberlin JJ) said (at [42]):
In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53 ; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, … , an opposite result would have been reached by the primary judge').
36 In Sami v Minister for Immigration and Citizenship [2013] FCAFC 128; (2013) 139 ALD 1, the Full Court of this Court (Jagot, Barker and Perry JJ) said (at [7]):
The requirements of r 36.57 reflect the principles which apply to questions of fresh evidence on appeals. Generally, if the evidence could have been adduced below by the exercise of reasonable diligence it will not be admitted on appeal (see, for example, Moore v Minister for Immigration and Citizenship (2007) 161 FCR 236; [2007] FCAFC 134 at [4]-[7]). Further, unless the evidence is of such relevance and weight that its admission would be likely to lead to a different result it also will not usually be admitted on an appeal. In the present case, the potential relevance and weight of the proposed fresh evidence must be assessed having regard to the limits on the Court's jurisdiction to review the decision of the AAT - that is, for jurisdictional error only, no review of the merits of the AAT's decision being permissible by this Court either at first instance or on appeal.
37 In this case, I must have regard to the limits on the jurisdiction of the Federal Circuit Court when hearing an application for judicial review. As the Minister submits, on appeal, this Court must decide whether the Federal Circuit Court wrongly decided that there was no jurisdictional error in the Authority's decision.