Consideration of Ground One
36 The IAA's reasons are of course to be read fairly and not in an unduly critical manner: BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 373 ALR 196 at [38]. However, it is also the case that the IAA's reasons should be read in light of the content of the statutory obligations imposed by s 473DD pursuant to which they were prepared: ibid. This is especially so having regard to s 473EA(1)(b) to which counsel for the appellants referred, citing Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402 at [130].
37 It can be inferred that the IAA was conscious of s 473DD. So much is evident in its repeated references to the existence, or non-existence, of exceptional circumstances in its assessment of whether it could consider the various items of new information provided to it.
38 It is pertinent to note that the IAA's reasons proceeded on the basis that the Magistrate's Court report was authentic, that is, that it was a translated copy of a document presented by the prosecuting authority to the Negombo Magistrate's Court.
39 While the IAA addressed some matters bearing on whether the report did refer to the first appellant, it did not make any finding about that matter. It concluded instead that the Magistrate's Court report did not indicate "any ongoing adverse interest in the first [appellant]" and it seems that, for that reason, it was not satisfied that there were exceptional circumstances justifying the report being considered. That manner of reasoning leaves unclear whether the IAA did not accept that the Magistrate's Court report did refer to the first appellant, or whether it reasoned that, accepting that it did, it did not indicate continuing adverse interest in him.
40 However, these matters can be put to one side as, in my view, it should be concluded that the IAA did not address the subpara (b)(i) criterion at all. A number of matters indicate that that is the appropriate conclusion. The IAA did not refer expressly to either S 473DD(b)(i) or (ii). Nor, with one exception, did it refer, in its consideration of the Magistrate's Court report or in relation to the other items of new information, to the substance of those subparagraphs. The exception is [16] in which the IAA accepted that new country information could be considered because it post-dated the delegate's decision.
41 The absence of reference to the subpara (b)(i) criterion is particularly remarkable. That criterion had to be considered separately as it was one of the two alternative means by which the appellants could satisfy the second of the two preconditions in s 473DD(b) and, as the authorities indicate, one matter which could inform the IAA's satisfaction that exceptional circumstances existed for the purposes of s 473DD(a). In those circumstances, the absence of any reference to subpara (b)(i) in the consideration of the Negombo Magistrate's Court report is strongly suggestive of it not having been addressed.
42 The Minister's submissions recognised, in effect, that subpara (b)(i) had not been considered and sought to give an explanation for that circumstance, namely, that the IAA's reasons should be understood in light of the submissions made to it. As the agent's submission of 1 April 2019 had been directed only to the subpara (b)(ii) criterion, this made explicable, so the submission ran, that the IAA's focus had been on that criterion and hence its omission to refer to the subpara (b)(i) criterion.
43 While it is commonly the case that reasons have to be understood in the light of the submissions to which the decision-maker was responding, the premise on which this submission was made is not sound. While the agent's submission of 1 April 2019 had referred to the subpara (b)(ii) criterion, it had also repeated the submission that the first appellant had not been given a reasonable opportunity to present material addressing the concerns of the delegate which led to the refusal of the SHEVs, saying that this constituted a "gross denial of procedural fairness" to him. Moreover, the agent attached to the 1 April 2019 submission the documents which had been provided to the first IAA, including a submission made by the agent dated 10 January 2017, the submission of 27 March 2017 and the Magistrate's Court report. The agent said expressly that these original submissions were maintained. The effect of these submissions was to provide an explanation for the Magistrate's Court report not having been provided to the delegate, this being a matter going directly to subpara (b)(i). It indicated that the agent was making a submission directed to the subpara (b)(i) criterion. If the IAA member had not understood that was so, that would have given rise to a jurisdictional error of a different kind.
44 Paragraph [18] of the IAA's reasons, to which counsel for the Minister referred, is directed to the agent's submission that the first appellant had been denied procedural fairness. However, it cannot reasonably be regarded as directed to the subpara (b)(i) criterion in relation to the Magistrate's Court report, first, because the IAA had completed its consideration of s 473DD in relation to the Magistrate's Court report earlier in its reasons, and, secondly, because, when read in context, [18] of the IAA's reasons seems directed to the question of whether the appellants had had a reasonable opportunity to present all their submissions on the review before it.
45 Accordingly, it should not be concluded that the agent's submissions had been directed only to the subpara (b)(ii) criterion. The IAA could not reasonably have understood that that was so.
46 The position with respect to the subpara (b)(ii) criterion is less clear, but a number of matters indicate that the IAA did not apply it in the manner required by s 473DD. First, and most obviously, the IAA does not appear to have assessed, at least directly, the matters which subpara (b)(ii) required to be considered in relation to the Magistrate's Court report, namely, whether it was "personal information" relating to the first appellant; whether it was personal information which was "credible" in the sense discussed in CSR16; and whether it "may" have affected the consideration of the appellants' claims.
47 As to the first of these matters, it is true that the IAA noted the discrepancy between the departure points and dates of departure contained in the Magistrate's Court report and the first appellant's SHEV interview statement. However, it did not conclude that the report could not be understood (in its reference to the person whose name was abbreviated to "I") as referring to the first appellant. On the contrary, the balance of [10] in the IAA's reasons seems to proceed on the basis that the Magistrate's Court report did contain a reference to the first appellant.
48 As to the second, the IAA did not address the question of whether the information was capable of being accepted as truthful. Perhaps, the IAA should be taken implicitly to have accepted that this was so, given that it did not make any adverse findings concerning the authenticity of the Magistrate's Court report, or concerning the circumstances in which it was obtained. But the IAA did not make any express finding concerning the credibility of the information in the Magistrate's Court report. This stands in contrast with its assessment of the account of the visit by the armed men to the first appellant's mother's home in 2016. In respect of that account, the IAA said at [11] "I am not satisfied that this information is credible". With respect to the Magistrate's Court report, the IAA should have considered whether it contained information which was open or capable of being accepted by it as truthful, or accurate or genuine, and there is no indication that it do so.
49 The impression that the IAA did not consider the credibility of the Magistrate's Court report in the sense discussed in CSR16 is increased by the absence of any reference in its reasons to matters which were consistent with the first appellant's account. Such consistency, to the extent that it existed (or did not exist) was an obvious matter capable of bearing upon the credibility of the information in the report.
50 As counsel for the appellants submitted, a number of matters were seemingly consistent with the first appellant's account, including the number of people who travelled on the boat, the place of arrival of the boat (Christmas Island), the date of its arrival at Christmas Island (3 August 2013), the identification of two persons who had been chief pilots on the boat (one with the name of the first appellant and the other with the name of the person he had identified as being in charge of the boat), and the fact that there were ongoing investigations as to whether the boat had departed without the knowledge of the owner, which was consistent with the police having been informed that the boat had been stolen. An assessment of the credibility of the information in the Magistrate's Court report in relation to the appellants' claims should have taken account of these matters. The fact that the IAA's reasons contain no reference to them supports the inference that the required assessment of the information's credibility was not undertaken by the IAA. Instead of making that assessment, the IAA addressed a different question, namely, whether the information in the Magistrate's Court report indicated any ongoing adverse interest in the first appellant. That was a matter appropriate to be assessed at the second stage of the IAA's consideration, that is, after it had decided, in accordance with s 473DD, whether it could consider the information in the Magistrate's Court report.
51 As to the third of the above matters, I do not consider that the IAA had been addressing the issue of whether, had the Magistrate's Court report been previously known, it may affected consideration of the appellants' claims, as counsel for the Minister submitted. First, it is pertinent that the IAA did not say that that is what it was doing, let alone refer to the terms of subpara (b)(ii). Secondly, it is not readily apparent that, once it be accepted that the Magistrate's Court report was authentic and did refer to the first appellant, it could not rationally have affected the assessment of the appellants' claims. Apart from anything else, the matters of apparent consistency with the first appellant's claims were capable of bearing upon the assessment of the credibility of those claims and that was so, whether or not the Magistrate's Court report did, or did not, considered by itself, indicate that the first appellant was subject to "ongoing adverse interest". The fact that the IAA did not refer to this potential use of the Magistrate's Court report suggests, to my mind, that the IAA was not addressing the question of whether consideration of the Magistrate's Court report may have affected the consideration of the appellants' claims.
52 I conclude that the IAA did not consider whether the Magistrate's Court report "may have affected" the delegate's consideration. Instead, it proceeded to a conclusion about whether the report did in fact, and by itself, indicate any ongoing adverse interest in the first appellant. This was not the matter which it was required to consider under subpara (b). It was instead in the nature of an ultimate conclusion about one possible significance of the information if it was considered.
53 In summary, it seems that the IAA commenced consideration of the potential utility of the Magistrate's Court report to an assessment of the first appellant's claims. However, the IAA concluded that consideration without addressing the terms of either of the subpara (b) criteria. In particular, it did not express any view about whether the Magistrate's Court report could have been provided to the Minister before the delegate made the decision under s 65 and did not express any conclusion about whether the report contained "credible personal information" in the sense explained by Bromberg J in CSR16 at [41]-[42], nor whether it was capable of affecting the consideration of the first appellant's claims in the sense discussed by the plurality in Plaintiff M174. As I have said, it is noteworthy that the IAA did not express any conclusion about the Magistrate's Court report in terms of its credibility. Instead, the matter which seems to have been decisive in its consideration was its view that the report did not indicate "any ongoing adverse interest in the first [appellant]", as though that was conclusive of the report's potential significance, when plainly it was not. Having expressed that conclusion, the IAA moved immediately to express its lack of satisfaction that there were exceptional circumstances justifying considering the report.
54 Subject to the issue of materiality, it should therefore be concluded that the IAA decision is affected by jurisdictional error, and that the FCC Judge should have found that that was the case.
55 Both parties accepted that the identified errors by the IAA should be characterised as jurisdictional only if they were material in the sense discussed in SZMTA and in Hossain v Minister for Immigration and Border Protection [2018] HCA 33; (2018) 264 CLR 123 at [24]-[32] and [78]. As Kiefel CJ, Gageler and Keane JJ noted in Hossain, ordinarily the breach of an express or implied commission of the valid exercise of a decision-maker's power will not be material unless compliance with the condition could have resulted in the making of a different decision.
56 Plainly, that condition is satisfied in this case. Had the IAA considered the subpara (b)(i) criterion, and had found it was satisfied, that would have been a matter to be considered for the purpose of the subpara (a) criterion. Likewise, had the IAA considered the subpara (b)(ii) criterion in the appropriate way, that too may have led to it concluding that that criterion was satisfied so that it too, in accordance with AUS17, should have been considered in the assessment of the existence, or otherwise, of exceptional circumstances for the purposes for the subpara (a) criterion. Contrary to the submission of counsel for Minister, the IAA's assessment in [10] that there were no exceptional circumstances justifying its consideration of the Magistrate's Court report is not conclusive of the issue, giving its antecedent errors in the consideration of the subpara (b) criteria.
57 This conclusion makes it unnecessary to consider Ground 2 in the Notice of Appeal. That is particularly so given the concession of counsel for the appellants that Ground 2 was one way of illustrating the materiality of the jurisdictional error arising by reason of the IAA's misapplication of s 473DD.