IAA: avoiding restraint on “new information”?

Federal Court (Full Court): This decision indirectly prompts the question of whether and how it possible to avoid, in some circumstances, the restraint placed on the IAA on receiving "new information". Did the Secretary breach s 473CB(1)(c) "simply on the basis that [some documents] were in the Department’s possession or control and were not considered for relevance by the Secretary"? If not, does s 473CB(1)(c) only require the Secretary to consider documents of which he/she is aware? If not, should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control"?

In November 2012, the Appellant arrived in Australia by boat as an unauthorised maritime arrival.

On 16 January 2013, the Appellant was interviewed by the Department.

On 19 January 2013, the Appellant sent the Department an email attaching 24 documents, including 2 documents related to a complaint made by the Appellant's mother to the Human Rights Commission of Sri Lanka about the treatment received by the Appellant in that country (the Human Rights Documents).

The file names of those 24 attachments were numbers which did not "provide any indication of the contents of the attachments".

The Human Rights Documents were added to an electronic file that the Department had created for the Appellant (the 2012 Client File).

In 2015, the Department created another electronic file for the Appellant (the 2015 Client File).

In December 2015, the s 46A bar was lifted and the Appellant was invited to apply for a protection visa.

In 2016, the Appellant applied for a protection visa. That application was supported by a statutory declaration signed by the Appellant. Among other things, that declaration stated that the Appellant's mother had made a complaint to the Human Rights Commission of Sri Lanka in 2012 about the treatment received by the Appellant in that country.

The Full Court of the Federal Court (FCAFC) summarised the subsequent facts of this case as follows:

3  ... The client file associated with the appellant’s visa application was the 2015 Client File. The Human Rights Documents were not included in the 2015 Client File at the time the delegate made his decision and were not considered by the delegate. The delegate decided to refuse the visa application and the decision was then referred to the [Immigration Assessment Authority (IAA)] for review pursuant to the provisions of Pt 7AA of the Migration Act.

4    A delegate of the Secretary considered what documents should be provided to the Authority pursuant to s 473CB. In undertaking this process, the Secretary’s delegate did not have regard to the 2012 Client File or to the Human Rights Documents. The Human Rights Documents were not, therefore, provided to the Authority. If the delegate had performed a search of the Department’s electronic database using the appellant’s client identification number, the search would have retrieved the 2012 Client File, which contained an email attaching the Human Rights Documents.

Among the electronic documents given to the IAA by the Secretary was the Appellant's statutory declaration mentioned above.

The FCAFC went on to say as follows:

5    After the matter had been referred to the Authority, the appellant provided the Human Rights Documents to the Authority and requested that they be considered. The Authority refused to consider them, proceeding on the misapprehension (through no fault of its own) that they had not been previously provided to the Department. In the course of its decision, the Authority stated that the late appearance of the documents called into question their veracity. The Authority did not believe the appellant was a witness of truth and did not accept his claims.

...

36    On 5 January 2018, the Authority decided to affirm the decision not to grant the appellant a Safe Haven Enterprise visa. In a section of the Authority’s reasons headed “Information before the IAA” the Authority referred to the documents that had been provided by the appellant to the Authority. In relation to the Human Rights Documents, the Authority stated at [8] that the appellant “did not explain why these documents were not provided to the Department before a decision was made given that the complaint was made in 2012”. The Authority also stated: “Despite making claims about his mother having approached this organisation, the [appellant] did not provide these documents to the Department”. These sentences demonstrate that the Authority was proceeding under the misapprehension that the documents had not been provided to the Department when, in fact, they had.

38    The Authority did not accept the appellant’s claims. The Authority considered there to be “significant inconsistencies and omissions” in the appellant’s evidence: at [39]. This led the Authority to find that the appellant’s evidence could not be relied upon and that the appellant was not telling the truth: at [39]. Among other things, the Authority was not satisfied that a complaint had been made to the Human Rights Commission of Sri Lanka: at [47].

The questions to the FCAFC were as follows:

Question 1: Did the Secretary breach 473CB(1)(c) "simply on the basis that the Human Rights Documents were in the Department’s possession or control and were not considered for relevance by the Secretary"?

Question 2: If the answer to Question 1 is "no", does s 473CB(1)(c) only require the Secretary to consider documents of which he or she is aware?

Question 3: If the answer to Question 2 is "no", should s 473CB(1)(c) "be construed to impose upon the Secretary an obligation to take reasonable steps to locate potentially relevant documents in the Department’s possession or control (for the purposes of considering whether the documents are relevant to the review to be conducted by the Authority)"?

Question 4: If the answer to Question 3 is "yes", did the Secretary fail to take reasonable steps to locate potentially relevant documents in the Department’s possession or control?

Question 5: If the answer to Question 4 is "yes", can it be said that the Secretary's breach of s 473CB(1)(c) could have the consequence that the IAA failed to carry out the review, subject to the materiality test?

Question 6: If the answer to Question 5 is "yes", can it be said that: given that "the Human Rights Documents, on their face, supported the appellant’s statement in his statutory declaration that a complaint had been made to the Human Rights Commission of Sri Lanka", it may be assumed that, had the Secretary "considered the Human Rights Documents, they would have been considered relevant and provided to the [IAA]"; and that, had the IAA "received the Human Rights Documents from the Secretary, they would have been considered and the [IAA] may well have come to a different conclusion on the appellant’s credibility and his claims more generally"?

The FCAFC answered those questions as follows:

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