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FIR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] HCATrans 183 (11 November 2020)

Last Updated: 12 November 2020

[2020] HCATrans 183

IN THE HIGH COURT OF AUSTRALIA


Office of the Registry
Sydney No S77 of 2020

B e t w e e n -

FIR17

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal


BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 NOVEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia
MR D.H. GODWIN: If it please the Court, I appear for the applicant. (instructed by the applicant)

MR G.J. JOHNSON: If the Court please, I appear for the first respondent. (instructed by HWL Ebsworth)

BELL J: Yes, Mr Godwin.

MR GODWIN: Your Honour, there is a technical matter to start with. In the amended application for special leave there is a prayer of relief of time for compliance with rule 41.02 being dispensed with.

BELL J: Yes.

MR GODWIN: That is actually an error. It should have been rule 41.03. It was the service of the application which was out of time rather than the filing of the application.

BELL J: Yes, I understand. It had been deemed abandoned because of the failure to serve.

MR GODWIN: Yes, your Honour.

BELL J: Yes, Mr Johnson, any objection?

MR JOHNSON: No, your Honour.

BELL J: Yes, very well. You have that leave.

MR GODWIN: Thank you, your Honours. Your Honours, I propose to take your Honours to a few short matters within the application book before addressing your Honours. If you go to application book page 6, this is where the Authority is dealing with the submission and attachments submitted by the applicant on 17 February 2017. You will see that from line 25. If your Honours then go down to approximately line 51, you will see the Authority says:

I accept that it could not have been provided to the delegate before the date of the decision. However, the information relates to general country conditions in Sri Lankan Lanka; it is not credible personal information which was not previously known and had it been known, may have affected consideration of the applicant’s claims. The applicant has not satisfied me as to the matters set out in s.473DD(b) ‑

Now, as your Honours will be aware, subsection (i) of 473DD(b) is that the information was not before the delegate and could not have been before the delegate. It is hard to understand how this Authority reasoned that it was not satisfied of that matter in relation to country information which postdated the delegate’s decision. But it is submitted it is not just a slip up in that particular paragraph because this error is repeated again at application book page 8, which is dealing with the submission of 8 May 2017, and you will see that from line 13 on page 8. And you will see the same reasoning is applied from lines 32 through to the end of paragraph 12, containing the same perversity, we would submit.

And, again, if your Honours go to application book page 10, this is dealing with the submission of 7 November 2017. You will see that from line 15. Although there are two – in the end the same perversity infects this as well, and you will see that from around about line 27.

BELL J: Mr Godwin, if one looks at the concluding sentence in paragraph 20 the Tribunal says:

No explanation has been provided about the application of the new information to the applicant’s circumstances and I am not satisfied that exceptional circumstances exist to justify its consideration.


On a view, the tenor of what is being said here is in the absence of some account of the relevance of this material to the particular circumstances the Tribunal was not satisfied that exceptional circumstances were established. What do you say to that?

MR GODWIN: Primarily, there is an inference to be drawn from the fact that the adviser thought this material was of relevance to the applicant’s claims by the fact that he submitted it to the Authority. The other point is, of course, that it is updating country information provided to the Authority on the very day it made its decision as to circumstances in Sri Lanka. So those two things put together, of themselves, should have been sufficient to say there is enough there for me to actually consider it and once he considers it, he may reach the view that it does not affect this applicant’s particular circumstances.

KEANE J: This argument was not agitated before the courts below.

MR GODWIN: The argument of the court below was more a perversity argument – you have allowed in the DFAT report and the response to the DFAT report, so why is it any different to this other updating country information? So that was the scope of the argument below. So, to that extent, your Honour, this is an additional reason why there is unreasonableness.

KEANE J: Well, it is a reason that the courts below have not addressed, and it means that we do not have the benefit of their consideration of the point.

MR GODWIN: Well, as I said in written submissions in reply, the topic of unreasonableness in the circumstances of this country information was addressed, and that was the real, only ground put below. The fact that we can point to other reasons, in addition to the reason that was pointed to below, to say that this is unreasonable means that the Court is only disadvantaged to the extent that the aggravating features have not been considered below.

KEANE J: It would have been useful to have the view of the courts below on the country information that was said should have, as a matter of good decision‑making, been brought to the attention of the Authority.

MR GODWIN: It may well, of course, be the case that that consideration would have been of use to the Court, but we say that, nevertheless, it is so stark in this case that these matters of updating country information after the date of the delegate’s decision, in a context where the Authority takes such a long time to make its decision, of itself calls for intervention, notwithstanding that that was not put below in that way.

Your Honours, could I just move to the next part of the application book which I wish to take your Honours to, that is at application book page 18. At line 18 the Authority, recording the applicant’s submissions:

that the DFAT report is now outdated and since its publication there have been credible independent reports that confirm the human rights situation in Sri Lanka is worsening.


And that is dealt with over the page at line 10 on page 19:

in general, most country information suggests there have been improvements in Sri Lanka since the change of government, although the sources may differ on the areas of improvement and the extent of such improvements.


And then there is a footnote there to – footnote 21 ‑ and if you look at the information that is footnoted there it is all country information which has post – apart from one – postdated the delegate’s decision. I assumed that that was the country information that had been supplied by the adviser in response to the invitation to comment on the DFAT report. But when one compares what is said by the Authority and by the primary judge in this case about what was in that submission, it does not tally up. In fact, the only document in that footnote which seems to have come from the applicant, or was referred to by the applicant, is the first one, which is the:

International Truth and Justice Project (ITJP) “Unstopped ‑

That, according to the primary judge, was referred to by the applicant in his submission of 3 August 2017 which is one of the submissions that the Authority declined to consider using section 473DD.

So, we point to that for two reasons. One is it seems to be another perversity in the application of 473DD in this case in that they have said they are not going to consider it and then they have. But the other point is that there are all these other articles that the Authority seems to have got for itself and considered, notwithstanding that it did not think there were exceptional circumstances to consider the applicant’s updating country information, apart from the very first item in that footnote.

So, your Honours, those were the additional factual matters I wanted to draw to your Honours’ attention. So, in summary, we say that the reasoning process followed by the Authority or the pathway that it followed to make its decision in relation to the application of 473DD to this country information was patently unreasonable, and as for the points made, these – consideration of adverse developments in Sri Lanka since the delegate’s decision are inherently necessary for the Authority to take into account if it is to conduct its review function under section 473CC properly.

The DFAT report in this case was dated in the same month as the delegate’s decision. There was 10 months in which country conditions could change. The Authority waited until October 2017 to invite comment on the DFAT report. The Authority did not warn the applicant that it was not proposing to consider the other updating country information supplied by the applicant in response to the DFAT report unless there was an express adoption of it by the applicant in the response.

The Authority seems to devalue country information as compared to credible personal information in its assessment of exceptional circumstances. This is a misunderstanding of section 473DD(b)(i) and see now this Court’s decision in AUS17. The Authority perversely finds section 473DB(1) is not satisfied in relation to the country information which could not have been before the delegate and was not.

The Authority finds that 473DB(a) is satisfied in relation to the DFAT report and for the applicant’s response the invitation to comment on it which is – in which it also found 473DB(1) was met but this cannot be reasonably or logically reconciled with the approach to the other information supplied by the applicant. Then, there is that body of country information referred to by the Authority which postdates the delegate’s decision in which it makes no reference to having been satisfied under section 473DD(a) that there were exceptional circumstances. This, again, is a perversity compared to the approach that it took in relation to the applicant’s circumstances.

So, we say, for those reasons, that there is a strong case of legal unreasonableness in this case, that leaves the question as to whether or not there is a sufficient special leave point in the case to warrant the grant of special leave. As set out in our written submissions, we say that that arises from the interaction between the question of what is the appropriate test where you have a subjective jurisdictional fact, is it what is termed the Avon Downs principles, or is it the general question of legal reasonableness, or is it both? In ABT17, this Court has recently pronounced that the reasonable condition is implied into both the imposition of its duty to conduct a review and the conferral of its power to get and consider new information in conducting a review.

So, it seems clear that the reasonableness condition does apply to the formation of the subjective jurisdictional fact of satisfaction in relation to section 473DD(b)(i). Nevertheless, it is still possible that the Avon Downs analysis can also be applied, and that is the question in this case. We say that, on both approaches, either there has been legal unreasonableness or the Authority has simply misunderstood the applicable law, and misapplied the applicable law, so it would have come within the Avon Downs analysis as well.

BELL J: Mr Godwin, on one view, the issue of principle that you raise and discuss at some length in your submissions, as I think you have just acknowledged, is hardly ripe in that you do not point to a different outcome dependent upon whether one considers that there is, as it were, one standard of legal reasonableness, or whether one adopts the approach that, in relation to the formation of a subjective – proof of a subjective jurisdictional fact, a standard of irrationality or something of that kind is the applicable standard.

MR GODWIN: Well, as I have put in the submissions in reply, your Honour, the fact that we could win on both bases does not mean this is still not a good vehicle for the Court to clarify whether both bases are available.

BELL J: In circumstances where the matter was not argued below.

MR GODWIN: The point is that there would be a substantial injustice to the applicant if, on both analyses, he should have won below, and that the court below has erred because it took the view that the standard was reasonableness, and there was an error in that view. I mean, the fact that the
extra aspect of the – whether or not it should have applied the Avon Downs analysis as well, or alternatively, does not detract from the fact that there would be a substantial.....if the applicant would have won on either.....

BELL J: The applicant would have won on either basis, you say, notwithstanding a certain opacity in terms of the basis for that success, given the absence of any explanation, as the Tribunal was at pains to point out, of how the material on which you rely – the country information supplied in August and November – might have made any difference.

MR GODWIN: The fact that the Tribunal – or the Authority, I should say – in its own reasons, does make reference to that truth and justice commission report which the applicant was putting forward – shows that the Authority did understand how that material was applicable to the applicant, notwithstanding it was not satisfied that the applicant himself had made that clear in his submission.

I should just note, your Honours, that in the Supreme Court of Victoria last week there was a case which dealt with the curfew – imposition of curfew. It is Loielo v Giles [2020] VSC 722. In that case, it was held that both legal reasonableness and the Avon Downs‑type error were separate and available grounds. In the Federal Court, there have been two cases, CQG15 v Minister 253 FCR 508 at 38, and Gill v Minister 250 FCR 327 at 64. Both cases have held that both the Avon Downs‑type error – the lack of logical.....and legal unreasonableness – are available not just for the consideration of subjective jurisdictional facts but also all fact‑finding which is critical to the outcome of a decision.

BELL J: Thank you, Mr Godwin.

MR GODWIN: Thank you, your Honours.

BELL J: Yes, Mr Johnson.

MR JOHNSON: If the Court pleases. Your Honours, the Minister’s position in relation to this case is that it is an inappropriate vehicle for special leave for the purposes of advancing the special leave questions identified in the application. There are a couple of reasons for this. First, it is an inapposite vehicle by reference to the facts of the case. The central controversy raised in the application is centred upon the manner in which the Authority went about considering whether it could take into account certain country information advanced by the applicant for consideration. The Authority engaged itself with the provisions of the Act – in particular, section 473DD – in considering that information and it made detailed findings about it.

Notwithstanding the reference by my learned friend to paragraphs 6, 13 and 20 of the Authority’s decision and the expression of the reasons concerning section 473DD in relation to three pieces of country information, this is not a special leave application concerning a question of statutory misconstruction but is a case concerning the question of legal unreasonableness. The approach taken by the Authority in this case was reasonably taken and the approach taken by the Federal Circuit Court judge in this matter concerning the matters that were in play at that level were appropriately dealt with.

The Federal Circuit Court judge was dealing with some slightly different matters as they are raised before the Court, but if I can take your Honours to page 46 of the application book, to the reasoning of the Federal Circuit Court, I take your Honours here because this reasoning was, in effect, left undisturbed on appeal to the Federal Court without any further explanation of those matters.

Paragraph 39 of the learned Federal Circuit Court judge’s reasons, his Honour was considering the 3 August 2017 and 7 November 2017 submissions containing country information and concluded, in his Honour’s opinion, that the findings of the Authority were:

within the range of possible decisions that could have been made by the Authority that information provided in express response to the invitation to comment should be considered on the basis of exceptional circumstances but that other information volunteered and wholly or substantially unexplained at different times did not give rise to exceptional circumstances justifying the consideration of that information.


In my submission, that reasoning has about it a sense of orthodoxy concerning the question of legal reasonableness in relation to a subjective jurisdictional fact, if I can refer to the Authority’s opinion under 473DD in that way, and that was an available conclusion for the primary judge, the Federal Circuit Court judge, to conclude. Similar findings were made concerning another piece of country information dealt with at pages 48 to 49 of the application book. On those particular matters and in light of those facts, this is just not a suitable vehicle for the special leave question, as advanced in the application, to be advocated.

The special leave question itself, your Honours, as set out in my learned friend’s application, attempts to identify a developing diversion in the approach taken in the Federal Court concerning the approach to legal unreasonableness as between cases where one is concerned with the consideration of whether an opinion or state of satisfaction was reasonably formed, as compared with a case where the examination concerns the exercise of a statutory discretion.

Reference is made to a judgment of Justice Derrington, as your Honours can see, and a number of Full Federal Court judgments that have made reference to that distinction, but Justice Derrington drew between those different categories of reasonableness. There is a reference to one case ‑ that is, BFH16 matter in the Full Federal Court where it was expressed that the distinction that Justice Derrington referred to had not been widely embraced, and reference is made to this Court’s decision in Hossain.

Hossain was not a case about legal unreasonableness and, in my submission, does not add to or quell any potential controversy on that question. Neither is there evidence in the judgments of the Full Federal Court any obvious developing version as referred to by the applicant in this case that would require the Court’s intervention in the present matter.

BELL J: Mr Godwin says on either view he succeeds because it was unreasonable for the Tribunal in circumstances in which it relied on a January DFAT report 11 months later to ignore updated country information that had been supplied successively during those 11 months and whether one is looking at legal unreasonableness on the standard posited in Li or Mr Godwin would say by reference to Avon Downs he says he succeeds. What is your response to that?

MR JOHNSON: Your Honour, my response to that is that there needs in the first instance to be a controversy to be quelled in the present case. It is not, in my respectful submission, sufficient to say that the applicant can win on either test and it is a matter for the Court to pick which test might apply in the present case. There was not before the Federal Court of Australia or before the Federal Circuit Court any argument about these particular matters or any explanation as to how one approach might have led to a different outcome over the other approach.

BELL J: Accepting that, Mr Johnson, turning to the interests of the administration of justice, what do you say to the merits of Mr Godwin’s argument?

MR JOHNSON: In my submission, as I have submitted earlier, there is no merit to the unreasonableness point, in any event. There must be accepted that whichever unreasonableness approach is applied this Court has recognised that distinction 10 years ago in SZMDS, and more recently in Li, that there is that distinction.

It must be recognised that there are commonalities or overlap between some of the underlying principles whichever approach is taken, excepting that when one has regard to the manner in which the Authority conducted its review in this case and accepting that this is a case where the Authority gave reasons, perhaps not under a statutory compulsion to do so with respect to 473DD but it did give some reasons to explain its reasoning, what one sees is an approach taken by the Authority that was one available to a reasonable decision‑maker even if one could also at the same time perceive that a different reasonable decision‑maker might have made a different decision, that is, determine that there were exceptional circumstances to admit the new information.

It must be said of the general circumstances – and my learned friend has referred to some of the broader circumstances that apply relevantly in this case ‑ but the applicant was not seeking to contest the DFAT information that was procured by the Authority to contest it or to update it with other, similar information. But, rather, the applicant was inundating the Authority with various news articles, internet articles and other reports of that kind. The Authority was, without any explanation from the applicant as to how those articles might assist in the consideration of the issues on the review, determined that it would prefer the official‑sourced information from DFAT rather than the information from the applicant.

And the further point I make, your Honour, is that this is not a case where it was expressly put that the information from DFAT that the Authority did rely upon, was, as at the date of its decision, outdated or incorrect or has led to an injustice in the present case by leading the Authority to assess the facts of this case by reference to matters that were simply impermissible to be considered on the factual basis. That is how.....that kind was put to the Authority when an invitation was made to comment on the DFAT information, and no argument has been put in any reports or before this Court to that extent.

So, in short, in my submission, injustice would not be suffered by the applicant simply by reference to the circumstances and the manner of the Authority’s approach to the information.

BELL J: Thank you, Mr Johnson.

MR JOHNSON: The only other thing I would submit to your Honours is that this Court has recently engaged in an assessment of section 473DD, in a recent decision of AUS17, and this is not an appropriate case for anything further to be said on that provision in this case.

BELL J: Thank you, Mr Johnson. Anything in reply, Mr Godwin.
MR GODWIN: Yes, your Honour. Firstly, that Mr Johnson’s submission that there was nothing put by the applicant to the Authority that the DFAT report was outdated. Well, I have already taken your Honours to page 18, line 47 or 48, where that very submission was put to the Authority.

BELL J: I am sorry, that was page 18. What line?

MR GODWIN: Line 48.

BELL J: Yes, anything further?

MR GODWIN: Yes, in relation to my friend’s submission about there being no controversy to be quelled. Well, there is a controversy.....has been unfairly dismissed, we say, and it is not unusual for this Court to develop the law further from what is put below. A prime example, to my mind, is SZBEL, which is a case which was decided on a very different basis to the way it was decided below.

As for my friend’s first submission that his Honour, the primary judge, was correct to say that the decision was one which was.....decisions, we say it was the reasoning process of the Authority in this case, when one looks at the way it has interpreted the statutory provision, incorrectly, and the way it has undertaken to consider other, equivalent information as being within exceptional circumstances shows that in this particular case this was a decision which was not within the range of acceptable outcomes on the material before the Authority and there has been an injustice.

BELL J: Thank you, Mr Godwin.

In our opinion, this is not an appropriate vehicle in which to consider the issue of principle raised by the special leave question, given that that issue was not addressed below. Moreover, we consider there are insufficient prospects that an appeal would succeed to warrant the grant of special leave. Special leave is refused.

Mr Godwin, am I right in understanding this was a pro bono referral?

MR GODWIN: Yes, from the Registry, your Honour.

BELL J: Yes. In those circumstances, Mr Johnson, it is not proposed to make any order as to costs.

MR JOHNSON: If the Court pleases.

BELL J: Very well. The Court will adjourn to 10.30 am.

AT 10.05 AM THE MATTER WAS CONCLUDED


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