EGJ19 v Minister for Immigration, Citizenship and Multicultural Affairs

1. The order for costs in the Federal Circuit Court of Australia will not be disturbed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THOMAS J: 1 Orders by consent were made on 6 February 2023 where the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) conceded that the decision of the second respondent, the Immigration Assessment Authority (IAA), was affected by jurisdictional error by reason of a material breach by a delegate of the Secretary of the Minister's department (the Secretary) for failing to refer two documents to the IAA which were in the possession of the Secretary. 2 The question for consideration remains whether the costs of the proceedings in the Federal Circuit Court of Australia (the FCCA) should be set aside. 3 On 21 August 2019, a delegate of the Minister refused the grant of a XE-790 Safe Haven Enterprise Visa (SHEV) to the appellants (the first and second appellants being husband and wife and the third and fourth appellants being their daughter and son respectively), finding that the appellants were not persons in respect of whom Australia had a protection obligation pursuant to s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act). 4 The delegate's decision was referred to the IAA on 26 August 2019 for review. 5 On 11 and 17 September 2019, the IAA was provided with further material relevant to the application pursuant to s 473CB of the Act. 6 On 9 October 2019, the IAA affirmed the delegate's decision not to grant the appellants the SHEV. 7 The appellants applied to the FCCA seeking judicial review of the IAA's decision. The grounds of review were: 1. The [IAA] made a jurisdictional error in relation to the access of the [appellants] to mental health services in Sri Lanka. a. The [IAA] may make a jurisdictional error where a finding of fact is legally unreasonable, in the sense that there is no evident and intelligible justification for the finding, and the error is material, in the sense that the decision might realistically have been different had the error not been mind: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29]; b. The [IAA] was required to give proper consideration to the [appellant's] case, in the sense of active intellectual engagement with the same. The [appellant's] case for this purpose extended to matters arising from the [IAA's] own findings of fact. Proper consideration as a jurisdictional error should be subject to materiality: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ: AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ; PQSM v Minister for Home Affairs [2020] FCA 125 at [142] per Banks-Smith and Jackson JJ; Singh v Minister for Immigration [2020] FCAFC 197 at [43]-[45] per Yates, Banks-Smith and Anderson JJ; c. The [IAA]found at paragraph 38 of its decision that the United States Department of State report indicated that, while the law in Sri Lanka forbade discrimination against a person with mental disabilities, discrimination occurred in practice in the provision of state services including public transport. d. The [IAA] further found at paragraph 38 of its decision that the report did not identify access to health services as an area of concern for discrimination; e. The [IAA] found at paragraph 39 that country information did not indicate that access to mental health services was subject to discrimination; f. The [IAA's] finding that there was no indication in the report of discrimination in access to mental health services was without relevant justification given the content of the report; g. The [IAA's] finding that there was no indication in the report of discrimination in access to mental health services was made without proper consideration. (errors in original) 8 On 24 June 2021, the primary judge dismissed the application for judicial review (EGJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1072). 9 On 15 July 2021, the appellants appealed the decision of the primary judge. The grounds of appeal were: 1. The Circuit Court erred in failing to find that the [IAA] made a jurisdictional error in relation to the access of the [appellant] to mental health services in Sri Lanka. a. The [IAA] may make a jurisdictional error where a finding of fact is legally unreasonable, in the sense that there is no evident and intelligible justification for the finding, and the error is material, in the sense that the decision might realistically have been different had the error not been mind: BHD18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 151 at [29]; b. The [IAA] was required to give proper consideration to the [appellant's] case, in the sense of active intellectual engagement with the same. The [appellant's] case for this purpose extended to matters arising from the [IAA's] own findings of fact. Proper consideration as a jurisdictional error should be subject to materiality: GBV18 v Minister for Home Affairs [2020] FCAFC 17 at [30], [32] and [39] per Flick, Griffiths and Moshinksy JJ; AYY17 v Minister for Immigration [2018] FCAFC 89; 261 FCR 503 at [18], [26] per Collier, McKerracher and Banks-Smith JJ; PQSM v Minister for Home Affairs [2020] FCA 125 at [142] per Banks-Smith and Jackson JJ; Singh v Minister for Immigration [2020] FCAFC 197 at [43]-[45] per Yates, Banks-Smith and Anderson JJ; c. The [IAA] found at paragraph 38 of its decision that the United States Department of State report indicated that, while the law in Sri Lanka forbade discrimination against a person with mental disabilities, discrimination occurred in practice in the provision of state services including public transport. d. The [IAA] further found at paragraph 38 of its decision that the report did not identify access to health services as an area of concern for discrimination; e. The [IAA] found at paragraph 39 that country information did not indicate that access to mental health services was subject to discrimination; f. The [IAA]'s finding that there was no indication in the report of discrimination in access to mental health services was without relevant justification given the content of the report; g. The [IAA]'s finding that there was no indication in the report of discrimination in access to mental health services was made without proper consideration. h. The [IAA]'s finding that the [first appellant] could receive mental health treatment in Sri Lanka for the mental injury inflicted by way of torture was illogical 2. The [a]ppellants seek leave to raise a new ground on appeal; that the Circuit Court decision was affected by constructive error in failing to find that the decision of the Authority was affected by jurisdictional error; a. The [IAA] failed to consider the impact of the first appellant's experience of torture on his ability to give consistent evidence; b. The credibility finding at [36] of the [IAA's] reasons, which was based on the [appellants] claims about their mental health, lacked a logical basis and was material to the outcome: CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[40]. Accordingly, the decision of the [IAA] is affected by jurisdictional error. (errors in original) 10 The matter was to be heard on 21 June 2022. The appellants sought leave to amend their notice of appeal and consent orders were made adjourning the hearing until 2 November 2022. 11 The appellants abandoned Grounds 1(a)-(g) and sought to raise a new Ground 3, as follows: 3. That leave be granted for the appellants to raise new grounds of appeal which were not raised in the Circuit Court, as follows: The Learned Circuit Court Judge erred in failing to find that the decision of the 2nd Respondent was affected by jurisdictional error, in that: i. The [IAA's] statutory task under s 473CC and s 473DB(1) Migration Act 1958 (the Act) to review the delegate's decision miscarried because of the failure of the Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act. Particulars a. The Secretary did not, at the time the delegate's decision was referred to the [IAA], consider or form a view on the relevance to the review of certain documents falling within the description of 'other material' in s 473CB(1)(c) then in the Secretary's possession and control. b. These documents included the audio recording of the enhanced screening interviews of the [appellants'] parents. c. These documents were not before the delegate and were not part of the domain of documents considered by the Secretary at the time of referral of the delegate's decision. d. In the alternative, if the documents were part of the domain of materials before the delegate, they were not forwarded to the IAA. e. In the event that contrary to the above, the enhanced screening interviews and case assessment & biodata interviews did form part of the review materials, the [IAA] failed to consider those materials as part of its mandatory review under s.473DB(1). f. The [IAA's] findings rejecting the claims of the appellant's credibility was affected by the failure to review the ESP interviews. g. If the [IAA] had considered the ESP interview it would have been able to make a procedurally fair assessment of the appellant's claims. h. The assessment of the credibility of the first and second appellants' claims was affected directly and by cross reference to each other, through: (a) the failure to consider the claim of the appellant wife made in the ESP interview to be affected by memory loss and mental illness. (b) The failure to consider the claims made by the appellant husband of being detained and beaten by the Sri Lankan authorities (including as referenced at page 9 of the appellant wife written pro forma ESP record). (errors in original) 12 On 30 July 2022, the appellants filed the amended notice of appeal. 13 On 20 October 2022, the Minister sought to vacate the hearing date as the parties were engaged in settlement discussions. 14 On 6 February 2023, consent orders were made allowing the appeal. It was noted in the orders that the Minister conceded that the Secretary had not forwarded two documents titled "Enhanced Screening interview transcript pro-forma", one of which was hand-annotated. The appellants have sought an order that the costs in the FCCA be overturned.