FEDERAL COURT OF AUSTRALIA EEM17 v Minister for Immigration and Border Protection [2018] FCAFC 180 Appeal from: EEM17 v Minister for Immigration & Anor [2018] FCCA 337 File number: WAD 72 of 2018 Judges: BARKER, GRIFFITHS AND MOSHINSKY JJ Date of judgment: 19 October 2018 Catchwords: MIGRATION – appeal from Federal Circuit Court of Australia – refusal of application for protection visa – fast track review process under Pt 7AA of the Migration Act 1958 (Cth) – where the Secretary of the Department provided to the Immigration Assessment Authority documents that had not been before the Minister when the Minister made the decision under s 65 of the Act – whether the documents were "new information" – where the Authority failed to consider whether there were exceptional circumstances to justify considering the new information as required by s 473DD – whether the Authority's decision was affected by jurisdictional error – appeal allowed Legislation: Migration Act 1958 (Cth), ss 5H, 36, 65, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473FA, 473GA, 473GB Cases cited: CQY16 v Minister for Immigration and Border Protection (2017) 326 FLR 263 Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198 Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 Date of hearing: 23 August 2018 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 47 Counsel for the Appellant: Mr M Guo Solicitor for the Appellant: Estrin Saul Lawyers Counsel for the First Respondent: Mr PJ Hannan Solicitor for the First Respondent: Sparke Helmore Lawyers Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS WAD 72 of 2018 BETWEEN: EEM17 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGES: BARKER, GRIFFITHS AND MOSHINSKY JJ DATE OF ORDER: 19 OCTOBER 2018 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders of the Federal Circuit Court of Australia made on 7 February 2018 be set aside and in lieu thereof it be ordered that: (a) The decision of the Immigration Assessment Authority dated 23 August 2017 be set aside. (b) The matter be remitted to the Immigration Assessment Authority for redetermination according to law. (c) The first respondent pay the applicant's costs of the proceeding, to be taxed if not agreed. 3. The first respondent pay the appellant's costs of the appeal, to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: Introduction 1 The appellant, who is a Sri Lankan national of Tamil ethnicity, arrived at Cocos Keeling Island in December 2012 by boat. On 19 May 2016, he applied for a Safe Haven Enterprise Visa (subclass XE-790) (protection visa). The application for a protection visa was refused by a delegate of the Minister for Immigration and Border Protection (the Minister) on 24 July 2017. The delegate's decision was referred to the Immigration Assessment Authority (the Authority) for review pursuant to Pt 7AA of the Migration Act 1958 (Cth). On 23 August 2017, the Authority affirmed the delegate's decision. The appellant applied to the Federal Circuit Court of Australia for judicial review of the Authority's decision. The application for judicial review was dismissed and the appellant appeals to this Court from the judgment of the Federal Circuit Court. 2 The issue raised by the appeal arises in the following way. Shortly after the delegate made the decision to refuse the application for a protection visa, the appellant's migration agents provided a submission to the delegate (the Post-interview Submission). This contained a new claim based on the appellant's involvement with the Australian Tamil Congress (ATC), including a photograph of the appellant attending a Tamil Heroes' Day commemoration. The Post-interview Submission, including the photograph, was provided by the Secretary to the Authority as part of the material in the Secretary's possession or control that was considered to be relevant to the review. The Authority did not consider whether or not the Post-interview Submission constituted "new information" and did not consider whether the conditions upon the consideration of new information set out in s 473DD of the Migration Act were satisfied. Nevertheless, the Authority considered the Post-interview Submission, including the photograph, and made a finding that the photograph was "staged in an attempt to strengthen [the appellant's] protection claims". The Authority did not invite the appellant to give comments on this matter pursuant to s 473DE. 3 The appellant contends that the Post-interview Submission was "new information" and that the Authority failed to comply with the requirements of s 473DD, in particular the requirement that the Authority must not consider any new information unless the Authority is satisfied that there are "exceptional circumstances" to justify considering the new information. The appellant contends that, had the Authority complied with this statutory requirement, it is likely to have approached its consideration of the material differently, and to have given the appellant the opportunity to comment under s 473DE before making an adverse credibility finding based on the photograph. In these circumstances, the appellant contends, the Authority's decision was affected by jurisdictional error, and the primary judge erred in not so concluding. 4 For the reasons set out below, we consider that at least part of the Post-interview Submission constituted "new information" for the purposes of Pt 7AA and the Authority failed to comply with the requirements of s 473DD in relation to that information. We consider the failure to comply with these requirements to be material for the reasons submitted by the appellant as outlined in the preceding paragraph. We consider that the primary judge erred in not so concluding. 5 It follows that the appeal is to be allowed. Key legislative provisions 6 It is convenient to set out the key legislative provisions before describing the facts in more detail. 7 Part 7AA of the Migration Act (comprising ss 473BA-473JF) establishes a "fast track" review process for certain protection visa decisions. As explained in s 473BA, the Part 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. Those applicants are known as "fast track review applicants" and decisions to refuse to grant them protection visas are known as "fast track reviewable decisions". 8 Section 473CA provides that the Minister must refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. 9 Section 473CB deals with material to be provided to the Authority. Section 473CB(1) relevantly provides: The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA: … (b) material provided by the referred applicant to the person making the decision before the decision was made; (c) any 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 Authority) to be relevant to the review; … 10 Section 473CC(1) provides that the Authority must review a fast track reviewable decision referred to the Authority under s 473CA. 11 Section 473DA(1) provides that Div 3 of Pt 7AA, 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 Authority. 12 Section 473DB(1) provides that, subject to Pt 7AA, the Authority must review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. 13 The expression "new information" is defined in s 473DC(1). Section 473DC is in the following terms: 473DC Getting new information (1) 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. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 14 The critical provisions for the purposes of this appeal are ss 473DD and 473DE, which provide as follows: 473DD Considering new information in exceptional circumstances 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. 473DE Certain new information must be given to referred applicant (1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision: (a) give to the referred applicant particulars of any new information, but only if the new information: (i) has been, or is to be, considered by the Authority under section 473DD; and (ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and (b) explain to the referred applicant why the new information is relevant to the review; and (c) invite the referred applicant, orally or in writing, to give comments on the new information: (i) in writing; or (ii) at an interview, whether conducted in person, by telephone or in any other way. (2) The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances. (3) Subsection (1) does not apply to new information that: (a) is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or (b) is non-disclosable information; or (c) is prescribed by regulation for the purposes of this paragraph. Note: Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. 15 Section 473FA deals with how the Authority is to exercise its functions. The Authority, in carrying out its functions, is 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)". Background facts 16 The following summary of the background facts is based on the reasons of the primary judge and the documents in the Appeal Book. 17 On 19 May 2016, the appellant applied for a protection visa. Insofar as it is relevant to this appeal, the statement accompanying his application referred to being eligible for a protection visa on the basis of his Tamil ethnicity and imputed pro-Liberation Tigers of Tamil Eelam (LTTE) opinion. 18 The Department invited the appellant to attend an interview, which took place on 14 March 2017. 19 Following the interview, on 18 March 2017 the appellant sent various supporting documents to the Department, including country information concerning his claims. 20 On 17 July 2017, the appellant engaged a firm of solicitors, Estrin Saul, to act as his migration agents. (The appellant had previously been unrepresented.) The agents sent an email to the delegate on that day requesting an additional seven days to provide further submissions in support of the appellant's claims for protection. 21 Neither the appellant nor his agents received a response to the request for an extension of time. 22 On 24 July 2017, being the seventh day after Estrin Saul's email, the delegate made the decision to refuse the application for a protection visa. The decision record was emailed to the appellant's agents at 4.30 pm on 24 July 2017. 23 Later that day, at 7.53 pm, the appellant's agents emailed the Post-interview Submission to the Department. The submission dealt with two matters: (a) the appellant's involvement with the ATC; and (b) whether the appellant would face a real risk of significant harm if he were returned to Sri Lanka as a failed Tamil Sri Lankan asylum seeker or involuntary returnee. 24 It is sufficient for present purposes to refer to the first matter dealt with in the Post-interview Submission. It was submitted that, since arriving in Australia, the appellant had been an active member of the ATC and that the appellant feared that his involvement with the ATC since his time in Australia would cause him to be imputed with a pro-LTTE opinion and that he would therefore face a real risk of harm on this basis if he were returned to Sri Lanka. Annexed to the submission was a photograph of the appellant attending a Tamil Heroes' Day commemoration. 25 The Post-interview Submission (including annexures) was sent by the Secretary to the Authority pursuant to s 473CB(1) of the Migration Act. In circumstances where this material was not before the delegate at the time of the delegate's decision, it may be inferred that it constituted "other material that [was] in the Secretary's possession or control and [was] considered by the Secretary (at the time the decision [was] referred to the Authority) to be relevant to the review" (s 473CB(1)(c)). 26 On 23 August 2017, the Authority decided to affirm the delegate's decision. In [3] of its reasons, the Authority stated that it had had regard to the material provided by the Secretary under s 473CB. In [4] of its reasons, the Authority stated that the appellant had "provided no new information" and the Authority had "not obtained any new information". It is apparent from these sentences that the Authority did not turn its mind to whether the Post-interview Submission constituted "new information". Rather, it proceeded on the basis that it was not "new information". As discussed below, in our view this was incorrect. 27 In [6] of its reasons, the Authority stated that the appellant had provided a number of documents in support of his claims. Included in the list appearing in that paragraph was the Post-interview Submission. The photograph of the appellant at the Tamil Heroes' Day commemoration was specifically referred to by the Authority. 28 The Authority considered the appellant's refugee claims at [14]-[58] of its reasons. In the course of this part of its reasons, the Authority stated at [29]: I do not accept that the applicant has been involved with the Australian Tamil Congress since he has been in Australia. The applicant raised these claims for the first time in the post-interview submissions, but did not provide any meaningful details of his involvement. I have noted above that the applicant did not mention … at the SHEV interview that he was involved with the Australian Tamil Congress, despite having been asked why he would be of interest as a LTTE supporter on his return and also being given an opportunity to raise any additional claims. I would have expected the applicant to have raised these claims at the SHEV interview had he in fact been involved as claimed. In these circumstances, I consider the photograph of the applicant purportedly taken on Tamil Heroes' Day to be staged in an attempt to strengthen his protection claims, and not reflective of his actual political opinion or involvement. Given the confidential nature of the SHEV application process, I am not satisfied that this photograph will become known to the Sri Lankan authorities. (Emphasis added.) 29 At [32] of its reasons, the Authority stated: For the above reasons, I am not satisfied the applicant faces a real chance of serious harm from the Sri Lankan authorities due to an imputed pro-LTTE or anti-Sri Lankan government political opinion. 30 The Authority concluded that the appellant did not meet the requirements of the definition of refugee in s 5H(1) and therefore did not meet the requirements of s 36(2)(a) of the Migration Act. The Authority also considered, and rejected, the appellant's complementary protection claim. The proceeding in the Federal Circuit Court 31 The appellant applied to the Federal Circuit Court for judicial review of the Authority's decision. His amended application contained four grounds. Only the first ground is relevant for present purposes. By this ground, the appellant contended that the Authority "failed to consider whether it should accept 'new information' in accordance with the requirements of s.473DD of the Migration Act". 32 The primary judge provided ex tempore reasons, which were later revised from the transcript (the Reasons). 33 The primary judge noted at [9] of the Reasons that the appellant relied on six propositions in support of ground 1: (a) the Authority referred in [29] of its reasons to the Post-interview Submission; (b) the Post-interview Submission (a document not before the delegate at the time of the delegate's decision) was "new information" for the purposes of s 473DC; (c) the delegate's decision made no reference to the Post-interview Submission, unsurprisingly, as the document was provided to the delegate after the delegate's decision was finalised; (d) the Authority failed to consider whether it should accept the Post-interview Submission as "new information" in accordance with s 473DD; (e) the Authority was not in a position to use the new information as the basis of any credibility findings against the appellant; and (f) the Authority had fallen into jurisdictional error by failing to consider whether it should accept the new information in accordance with the requirements of s 473DD. 34 At [17] of the Reasons, the primary judge referred to the question whether the Post-interview Submission (including the photograph) was "new information". At [20], the primary judge noted that, under s 473DC, the Authority is empowered to "get" documents or information (such documents or information being defined as "new information"). The primary judge referred to a possible construction to the effect that only documents or information actively sought and obtained by the Authority would constitute "new information", but noted, in [21], that that construction is at odds with the explanatory memorandum for the Bill that introduced the relevant provisions. 35 At [26] of the Reasons, the primary judge stated that central to the appellant's contentions was the characterisation of the Post-interview Submission as "new information" on the basis that the information was not before the delegate when he made his decision. The primary judge stated that the fact that the submission was not before the delegate "did not mean some or all of the material in the post-interview submission was not before the delegate". The primary judge stated that he was "not persuaded that the whole of the information in the post-interview submission was 'new information', properly so called". His Honour noted that a "good deal of the information in the post-interview submission had been before the delegate" and, to that extent, it was not "new information". 36 The primary judge also stated at [27], that it should not be overlooked that the Authority had in fact considered the material the appellant wanted it to consider – the Authority had had regard to the Post-interview Submission. The primary judge observed that the appellant was not, therefore, disadvantaged. This point was reiterated by the primary judge at [29]. 37 For completeness we note that it was common ground at the hearing of the appeal that his Honour erred in stating, at [23] of the Reasons, that the appellant's solicitors (or agents) had taken it upon themselves to provide the Post-interview Submission to the Authority. In fact, the submission was provided to the delegate (but after the delegate had made the decision). However, nothing turns on this. The appeal to this Court 38 The appellant appeals to this Court from the judgment of the Federal Circuit Court. The sole ground in the notice of appeal is: "The Federal Circuit Court erred in failing to find that the [Authority] failed to consider whether it should accept 'new information' in accordance with the requirements of s.473DD of the Migration Act". Consideration 39 The appellant submits, in summary, that the Post-interview Submission constituted "new information", such that it could only be lawfully considered if the Authority concluded that the preconditions in s 473DD were met. The appellant submits that the Post-interview Submission contained the following material that was not before the delegate: (a) The Post-interview Submission included an argument that the appellant had a well-founded fear of harm upon return to Sri Lanka as a result of his involvement with the ATC. In support of this claim, the submission annexed a photograph of the appellant attending an ATC event in Australia. Neither the ATC claim nor the photograph were before the delegate at the time of the decision under s 65 of the Migration Act. (b) The Post-interview Submission argued that if the appellant was involuntarily returned to Sri Lanka he would be detained upon such return. It was submitted that the appellant was at real risk of harm "while detained for any amount of time". Annexed was a copy of another decision of the Authority in which it had been accepted that "[f]ailed asylum seekers returning to Sri Lanka from Australia and other countries are held on remand", and that torture in Sri Lanka was "endemic" and "is practised at every police station and detention centre". Like the photograph, this decision was not before the delegate at the time of the s 65 decision. (c) In relation to the claim for fear of harm as a failed asylum seeker, the Post-interview Submission cited an extensive array of country information that was not before the delegate at the time of the s 65 decision. Although the submission only cited this other information, as opposed to annexing copies of it, the submission nonetheless specifically asked the decision-maker to take it into account. 40 Further, the appellant submits, even if the preconditions in s 473DD were established, the Authority could only consider the ATC aspect of the submission and the ATC photograph if the procedure in s 473DE was followed: see CQY16 v Minister for Immigration and Border Protection (2017) 326 FLR 263 at [102]-[103]. 41 The Minister, in his oral and written submissions, accepted that: the Post-interview Submission contained at least some "new information"; the Authority had not gone through the steps set out in s 473DD to determine whether it could consider that new information; and the Authority had taken into account the Post-interview Submission including the photograph. The Minister submitted, in summary, that, to the extent that the Post-interview Submission constituted "new information", the Authority's having regard to this information without first considering the requirements under s 473DD did not amount to jurisdictional error, in circumstances where the information was not used adversely to the appellant and the appellant wanted the information to be used in the assessment of his protection claims. 42 It is sufficient, for the purposes of resolving the issue raised by the appeal, to focus on the aspect of the Post-interview Submission relating to the appellant's claimed involvement with the ATC, including the photograph. In circumstances where the Post-interview Submission was not before the delegate, and this material had not been included in earlier submissions, this aspect of the submission constituted "new information" for the purposes of Pt 7AA of the Migration Act. The expression "new information" is defined in s 473DC(1), which has been set out above. This provision refers to documents or information that: (a) were not before the Minister when the Minister made the decision under s 65; and (b) the Authority considers may be relevant. Each of these elements is satisfied in the present case. The Post-interview Submission was not before the Minister (ie, the delegate) at the time the delegate made the s 65 decision. And, in circumstances where the Authority referred to and took into account the Post-interview Submission, it may be inferred that the Authority considered the material to be relevant. The Post-interview Submission formed part of the material obtained by the Authority from the Secretary pursuant to s 473CB, and thus formed part of the "review material". However, as the appellant submitted and the Minister in his written submissions accepted, the expressions "new information" and "review material" are not mutually exclusive. 43 Given that this was a matter discussed by the primary judge, we consider it appropriate to indicate that we do not consider the definition of "new information" in s 473DC(1) to be limited to material sought out and obtained by the Authority. Although the subsection uses the word "get" in what might appear to be an active sense, in our view, the word "get" does not function to limit the definition of "new information" to information sought out by the Authority. This construction is supported by the references, in both s 473DB(1) and s 473DC(2), to the Authority accepting new information. Further, s 473DE provides a procedural fairness requirement in relation to "new information". It would be surprising if this safeguard were available only in respect of material sought out and obtained by the Authority, and not in relation to other material obtained by the Authority that was not before the Minister at the time of the s 65 decision (for example, material provided by the Secretary to the Authority pursuant to s 473CB(1)(c)). This construction is supported by, or at least consistent with, the statement by Gageler, Keane and Nettle JJ in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 33 ALR 600 at [25] that there "is no inherent dichotomy between new information which meets the two conditions set out in s 473DC(1)(a) and (b) and review material which the Secretary is required to give the Authority under s 473CB. That is because review material is not limited to information that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa". See also at [27], [31] and [48]; Minister for Immigration and Border Protection v CQW17 [2018] FCAFC 110; Minister for Immigration and Border Protection v BBS16 (2017) 158 ALD 198. 44 As already indicated, there is no issue that the Post-interview Submission contained at least some "new information", namely the material relating to the claimed ATC involvement, including the photograph. It follows that the Authority could not consider that material without first considering whether the conditions in s 473DD were satisfied. However, the Authority considered the material without turning its mind to the conditions in s 473DD. In so doing, the Authority failed to comply with s 473DD. 45 At first blush, the appellant's reliance on the Authority's failure to comply with s 473DD may appear to be counter-intuitive, in that the Authority did consider material that the appellant had provided and presumably wanted the Authority to take into account. However, at least in the circumstances of the present case, the failure of the Authority to address the conditions set out in s 473DD operated unfairly to the appellant. The Authority, at [29] of its reasons, set out above, made an adverse credibility finding in respect of the appellant on the basis of the photograph, and this adverse credibility finding formed part of the Authority's reasons for rejecting the appellant's claims, as indicated by [32] of its reasons, also set out above. Had the Authority appreciated that it needed to address the conditions set out in s 473DD before it could consider the new information, it may well have approached its fact-finding in relation to this material differently. Its consideration of the new information would have taken place in a context where it had concluded that there were exceptional circumstances to justify the consideration of the material. Further, had the Authority addressed the conditions set out in s 473DD in relation to the new information, it is likely that it would have given the appellant notice under s 473DE of a proposed adverse credibility finding before making an adverse credibility finding in relation to the photograph. As things stand, the Authority formed the view that the photograph of the appellant "purportedly" taken on Tamil Heroes' Day was "staged in an attempt to strengthen his protection claims" without the appellant having had an opportunity to comment on that proposition. In the circumstances, the failure by the Authority to comply with the requirements of s 473DD was material and the Authority's decision is affected by jurisdictional error. This is not a case where, for example, there were two separate and independent bases for decision: cf Hossain v Minister for Immigration and Border Protection (2018) 92 ALJR 780 at [35], [41] and [46]. 46 It follows from the above that the primary judge erred in not concluding that the decision of the Authority was affected by jurisdictional error. 47 For these reasons, the appeal is to be allowed. The orders of the primary judge should be set aside and, in lieu thereof, it should be ordered that: the decision of the Authority be set aside; and the matter be remitted to the Authority for redetermination according to law. There is no apparent reason why costs should not follow the event, both in respect of the proceeding at first instance and the appeal. Accordingly, we will make costs orders to this effect. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Barker, Griffiths and Moshinsky. Associate: Dated: 19 October 2018