Aaj20 v Minister for Immigration
[2020] FCCA 2382
•28 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAJ20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2382 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran – applicant the subject of an anonymous complaint to the Minister’s Department – details provided to the Authority by the Secretary – Authority treating the subject matter of the complaint as irrelevant – whether the Authority’s knowledge of the complaint gave rise to an apprehension of bias considered – whether the procedure followed by the Authority was otherwise unfair or whether the Secretary breached s.473CB(1)(c) of the Migration Act 1958 (Cth) considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.473CB, 473DC, 473DD Migration Amendment (Bridging Visas – Code of Behaviour) Regulation 2013 (Cth) |
| Cases cited: AAL19 v Minister for Home Affairs & Anor [2020] FCAFC 114 CNY17 v Minister for Immigration [2019] HCA 50 FSG17 v Minister for Immigration [2020] FCAFC 29 Hossain v Minister for Immigration [2018] HCA 34 Minister for Immigration v CPA16 [2019] FCAFC 40 Minister for Immigration v SZMTA [2019] HCA 3 |
| Applicant: | AAJ20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 8 of 2020 |
| Judgment of: | Judge Driver |
| Hearing dates: | 26 August, 9 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 28 September 2020 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application filed on 2 January 2020 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 8 of 2020
| AAJ20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, who is a citizen of Iran, seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 28 November 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The background facts in this matter are important. The following statement of them is derived from written submissions filed on behalf of the Minister on 19 August 2020.
The applicant arrived in Australia on 16 July 2013 as an Irregular Maritime Arrival. It is not contentious that the applicant is a “fast track review applicant” for the purposes of Part 7AA of the Migration Act 1958 (Cth) (Migration Act) and that Part 7AA applies to him.
On 25 September 2017, the applicant made an application for a Safe Haven Enterprise Visa (SHEV).[1] As part of his SHEV application, the applicant provided some supporting documents.[2] The applicant was represented by a migration agent.
[1] Court Book (CB) 49-77.
[2] CB 74-77.
The applicant’s migration agent was unable to be present at the applicant’s interview with the delegate, due to ill-health.[3] The interview proceeded in the absence of the representative (with the applicant’s consent) but the representative requested the delegate to provide notice of any issues of concern arising from the interview. The delegate did so in an e-mail dated 30 July 2019.[4] The applicant’s agent provided the applicant’s responses in a letter dated 13 August 2019.[5]
[3] CB 102.
[4] CB 108-110.
[5] CB 125-126.
Following the delegate’s decision, the matter was referred to the Authority on 17 October 2019.[6] The applicant provided to the Authority, attached to an e-mail from the applicant’s migration agent dated 8 November 2019, a statutory declaration and medical records concerning the applicant’s health and his mental state during the interview with the delegate.[7]
[6] CB 160.
[7] CB 162-173.
The applicant filed an application for judicial review on 2 January 2020. The applicant is now unrepresented. The applicant relies on three grounds of review.
The applicant’s grounds essentially raise a single issue, namely, information concerning the applicant and a potential violation of the Code of Behaviour applicable to all bridging visa applicants, pursuant to the Migration Amendment (Bridging Visas – Code of Behaviour) Regulation 2013 (Cth) (Code). The three grounds rely on differing legal errors said to arise from the manner in which the Authority treated the Code information. The applicant does not take issue with any other aspect of the decision.
In light of this, it is not necessary to summarise in detail the applicant’s claims or the Authority’s reasons.
Relevant facts
The applicant, while in detention, and later while living in the community on a bridging visa, had provided a written acknowledgement concerning the need to adhere to the Code.[8]
[8] On 22 January 2014 and then on 25 March 2015: CB 24-25.
On 11 May 2015 the Minister received a report, on the so-called “dob in line”, from an unnamed source that the applicant was “working illegally and dealing drugs on a small scale”; this was identified in a Job Details Report dated 11 May 2015.[9]
[9] CB 26.
Following the report, the Minister sought further information from the police who reported that the applicant had no “prior criminal convictions and no pending criminal convictions”.[10] In an e-mail exchange between officials of the Minister’s Department dated 20 May 2015 and 21 May 2015, it was noted that the e-mail exchange with the police suggested that the applicant was “not on their [police] radar, and they have no current matters pending”.[11]
[10] This was set out in an e-mail exchange between the Minister and the police dated 14 May 2015: CB 39.
[11] CB 38.
An assessment of an alleged breach of the Code (based on the reported behaviour referred to in [11] above) was undertaken. In a written report dated 28 May 2015, a departmental officer noted that a report had been made about the applicant and that the allegation related to behaviour that was inconsistent with the Code. The officer considered that the alleged breach was of a “low” level of seriousness. This was based on the small scale of the alleged drug dealing and the lack of any convictions. The officer also noted that the applicant’s bridging visa was not subject to condition 8101 (which prevented the holder of a bridging visa from working).[12]
[12] CB 20-22.
The officer concluded that the available evidence was insufficient to support an allegation that a breach of the Code had occurred and, as a result, the officer recommended that no further action be taken.[13]
[13] CB 21-22.
At the time of the referral of the matter to the Authority, the Secretary provided all of this material, along with other related but miscellaneous Job Details Reports,[14] to the Authority purportedly under s.473CB(1) of the Migration Act. The material appears to have been before the delegate and it may be inferred that the material was provided to the Authority under s.473CB(1)(c). The applicant was unaware of this material and that it had been provided to the Authority.
[14] CB 20-40.
In the decision, the Authority referred to the information concerning the alleged Code contravention as follows at [3]:[15]
I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act). Included in the material provided by the Department of Home Affairs is an assessment by the Department of an alleged breach of the Code of Behaviour that is a condition of the applicant’s visa. The review was not satisfied that there was sufficient evidence to find the applicant breached the code. The information is not in my opinion relevant to any decision and has been discarded by me.
[15] CB 177.
It is uncontentious that the applicant at no point raised the alleged Code violation with anyone, including the delegate or the Authority.
The current proceedings
As noted above, these proceedings began with a show cause application filed on 2 January 2020. There are three particularised grounds in that application on which the applicant continues to rely:
1.The second respondent (Authority) fell into jurisdictional error by way of apprehended bias.
Particulars
The authority said at [3]
“I have had regard to the material given by the Secretary under s.473CB of the Migration Act 1958 (the Act). Included in the material provided by the Department of Home Affairs is an assessment by the Department of an alleged breach of the Code of Behaviour that is a condition of the applicant's visa."
The second respondent did not bring an impartial mind to the review.
2. In the alternative,
the second respondent fell into jurisdictional error in that it denied the applicant procedural fairness.
Particulars
The (Authority) was obliged in accordance with Part7AA of the Migration Act 1958 to disclose the prejudicial material to the Applicant and give him the opportunity to comment upon it.
3. The second respondent (authority)'s decision was made in excess of jurisdiction.
Particulars
The excess of jurisdiction arose from the Secretary providing certain material that was not relevant to the (authority)'s decision.
The application is supported by a short affidavit filed with it, which I received. I also have before me as evidence the court book lodged on 5 March 2020.
This matter came before me for a final hearing on 26 August 2020. At that time the applicant told me that he had not received the court book or the Minister’s written submissions. The applicant was assisted by a Farsi interpreter but I recognised that he was at a significant disadvantage in addition to the usual disadvantage of being a litigant in person speaking through an interpreter.
I invited counsel for the Minister to present his submissions orally and, at the conclusion of those oral submissions, which were interpreted for the applicant, I arranged for the court book and the Minister’s written submissions to be sent to the applicant. I adjourned the matter part heard until 9 September 2020.
At the commencement of the resumed hearing, I confirmed with the applicant that he had received the court book and the Minister’s submissions and had had the opportunity to study them. He was once again assisted by a Farsi interpreter present in court but, in the event, he spoke mostly in English.
Perhaps understandably, the applicant’s oral submissions focussed on the history of the matter rather than on the legal issues arising from his show cause application. The applicant blames his former partner for the adverse report made to the Minister’s Department and noted that he had broken up with his partner at around the same time as the adverse report was made in May 2015. The applicant was emphatic that the allegations made against him were untrue. The applicant believes that the adverse report was accessed by his case officer before his interview with the delegate. He claims he was further disadvantaged because his adviser failed to attend that interview and claimed to be unwell. The applicant believes that the disadvantage he experienced before the delegate continued in the review process before the Authority.
Consideration
The applicant’s submissions on the important legal issues in this case were unfortunately misdirected. As I put to the applicant, if I assume everything he told me was true, namely that his former partner maliciously made a false complaint against him to the Minister’s Department which was known in the Department and shared with the Authority, the question to be resolved is what legal issues arose from the way in which the Authority dealt with that report. Unfortunately, the applicant’s oral submissions did not advance the argument on those issues.
Counsel for the Minister addressed those issues carefully and fairly and at considerable length for the applicant’s benefit at the hearing on 26 August 2020.
While I consider that the grounds advanced by the applicant are clearly arguable in this case, I am persuaded that the Minister’s submissions correctly deal with those grounds on the facts of this case. I agree with and adopt those submissions.
As noted above, the applicant’s three grounds of review all focus on the referral to, and consideration by, the Authority of the material concerning the alleged Code violation. For the reasons explained in further detail below, the central ground is the first one: that the presence of the material before the Authority, and in this case the Authority’s consideration and rejection of that material, led to an apprehension of bias. Grounds 2 and 3, although framed as distinct legal errors arising from the same facts, turn on the resolution of Ground 1. If Ground 1 is made out then Grounds 2 and 3 become moot; if Ground 1 fails then Grounds 2 and 3 cannot succeed either.
In respect of Ground 1, the provision of irrelevant and potentially prejudicial material concerning an applicant to the Authority in the context of a claim of apprehension of bias has been considered by the High Court in CNY17 v Minister for Immigration.[16] CNY17 has also been the subject of analysis by the Full Federal Court in two recent decisions.[17]
[16] [2019] HCA 50.
[17] FSG17 v Minister for Immigration [2020] FCAFC 29; and AAL19 v Minister for Home Affairs & Anor [2020] FCAFC 114.
The applicant’s case in Ground 1 (and, relatedly, under Grounds 2 and 3) calls for a proper understanding of the principles set out by the High Court in CNY17.
CNY17 and apprehended bias
In CNY17, the High Court upheld the appeal, finding by a majority (Nettle, Gordon JJ, with Edelman J concurring, and Kiefel CJ and Gageler J dissenting) that there was an apprehension of bias where documents and information about the appellant’s conviction for certain offences while he was in detention were provided to the Authority and the Authority made no reference to those documents in its decision.
The appellant had been charged with spitting at a guard and breaking a window during a protest. He disclosed this conviction as part of his protection visa application. In the material provided to the Authority, there were a number of assertions about the appellant which spanned an ongoing length of time, including that he had a history of aggressive behaviour, had been recommended for detention while there was an investigation of a “riot”, had been the subject of a recommendation from the Australian Border Force and that he was under “on-going investigation”.[18] These matters were not disclosed to the appellant.
[18] CNY17 at [79]-[82].
Each of the judgments set out the principles applicable to an assessment of apprehension of bias.[19] In this regard, CNY17 did not involve any novel or far-reaching development of the test for apprehended bias; there was general agreement about the principles as between the different members of the Court.[20] Those principles are conveniently and helpfully summarised by the Full Federal Court in FSG17 at [32]. Two points should be noted. First, apprehended bias is not necessarily cured by the decision-maker disregarding the irrelevant material; the focus is on the reasonable observer.[21] Secondly, the irrelevant and prejudicial material might have a subconscious effect on the mind of the decision-maker.[22]
[19] at [14]-[29], [68]-[73], [130]-[136].
[20] AAL19 at [80]; FSG17 at [32].
[21] FSG17 at [32](c).
[22] FSG17 at [32](d).
The members of the High Court in CNY17 also pointed to some features of the regime in Part 7AA which were pertinent. Relevantly, it is a precondition of the Authority exercising its jurisdiction that the Secretary provide the Authority with the review material, including any review material specified by s.473CB(1)(c); further, the Secretary’s duty is to provide the totality of the specified review material and not any other information.[23] However, any non-compliance in this respect must be material.[24] In this context, the Authority must consider all of the review material.[25]
[23] per Kiefel CJ and Gageler J at [14]-[15].
[24] per Kiefel CJ and Gageler J at [15].
[25] per Nettle and Gordon JJ at [63]-[64].
It is thus apparent that the divergence of opinion about the result in CNY17 arose because of how their Honours applied the principles to the particular facts.[26] This is unsurprising given that the assessment of apprehension of bias is a fact-specific and fact-dependent exercise; the critical question is how the reasonable fair-minded lay observer would apprehend the circumstances.[27] Put simply, each case turns on its own facts.[28]
[26] AAL19 at [80].
[27] FSG17 at [36]; AAL19 at [82].
[28] CNY17 per Kiefel CJ and Gageler J at [20].
Nettle and Gordon JJ concluded that the fair-minded lay observer might, on the facts of the case, apprehend a lack of impartiality on the part of the Authority. They reiterated that such a conclusion was largely a factual one. Critical to their Honours’ reasoning at [99] was that the information about the appellant was not only irrelevant but also prejudicial. The documents setting out details of the appellant’s offending contained commentary, of which the appellant was unaware and which had not been referred to in the delegate’s decision. This information was described by Nettle and Gordon JJ at [82] as plausibly only going to “whether the appellant was a danger to the Australian community, or had been convicted of a particularly serious crime”. In those circumstances, a fair-minded observer might apprehend that the information could lead a decision-maker to have a bias against the appellant “possibly by thinking the appellant is not a fit person to hold a visa or that the appellant would be a danger to the community”.[29] As the Full Federal Court in AAL19 noted, the material in CNY17 was “extensive, gratuitous, departmental commentary”.[30]
[29] CNY17 at [96].
[30] per Logan, Markovic and Anastassiou JJ at [99].
Their Honours Nettle and Gordon JJ went on to note as follows at [101]:
This conclusion depends on the facts of this case. There may be other cases in which the material given to the IAA was somewhat prejudicial to an applicant, but not such as might lead a fair-minded lay observer to apprehend a lack of impartiality. The particular point at which prejudicial information will lead to apprehended bias cannot be identified in the abstract.
The concurring judgment of Edelman J analyses the position in similar terms. His Honour noted at [110] that a fair-minded observer would have concluded that the prejudice arising from the material was “substantial”. Later, Edelman J noted at [121]-[122] that the material was not just factual material about the appellant’s conduct but included descriptive language and suggestions of grave concern about the appellant’s conduct as well as suggestions as to reservations about allowing the appellant to become a member of the Australian community. The material painted a picture of a “man of poor or doubtful character”: at [124]. As with Nettle and Gordon JJ, a critical plank of his Honour’s reasoning involved a finding at [138] that the material provided by the Secretary was “qualitatively and quantitatively significantly prejudicial to an assessment of the appellant’s character on grounds other than legal grounds”.
Thus, the High Court reiterated the importance of the prejudicial nature of the material that may be given to the Authority. Assessing prejudice is a question of evaluation for the supervisory court bearing in mind the matters relevant to how a fair-minded observer would consider the effect of the material. These matters were also reiterated by the Full Federal Court in FSG17 at [36]-[38]. The Full Federal Court recognised that what is prejudicial is information that a fair-minded observer might conclude was difficult for a decision-maker to put out of his or her mind. In FSG17 that was an unsurprising conclusion given the very serious nature of the offending.
The present case: no apprehension of bias
In the present case, it is important to reiterate the essence of the factual situation. The applicant was the subject of an anonymous complaint from an undisclosed source (“dob in”) suggesting, without any supporting evidence, that the applicant had been involved in small-scale drug dealing and working illegally. In respect of the latter complaint, that was necessarily ill-founded as the applicant’s visa conditions permitted him to work.
Further, the applicant had no prior or pending convictions. Importantly, the departmental officer considered that even if the applicant had been engaging in the alleged conduct (which would have been a Code violation) this would have been of low seriousness. However, the officer concluded that there was simply insufficient evidence to take any further action. It followed that there was no Code violation.
The consequence of this was the only material of a potentially prejudicial nature was the terms of the alleged conduct as reported by the undisclosed “source”. That material was self-evidently a mere allegation and on its face partially inaccurate. It was material that the officer considered insufficient to warrant further action. Put slightly differently, the true effect of the information was to put before the Authority an unsubstantiated allegation, from an anonymous complainant, with no supporting evidence, which was rejected by the Minister’s own officer.
In this context, it is worth noting that unlike in CNY17, there was no gratuitous and negative commentary of any sort in the material concerning the applicant. In addition, unlike CNY17 it was apparent that the allegations, and the consideration of them, did not suggest any ongoing or long-term concerns about the applicant. Similarly, the nature of the alleged conduct was low level, distinguishing it from the facts of FSG17.
Plainly, this material was irrelevant; it could have no rational bearing on the matters to be determined by the Authority. It may also be accepted that the fact that the Authority, properly and understandably, considered the material to be irrelevant and of no significance (and therefore dismissed it from its consideration) would not, of itself, necessarily be sufficient to displace a contention about apprehension of bias. Neither is it irrelevant, bearing in mind the need to examine the totality of the circumstances and that the purpose of the bias rule is to preserve the public appearance of the decision-maker’s independence and objectivity in their fact-finding and procedural discretions.[31]
[31] CNY17 at [18].
Equally plainly, however, there is no basis on which a reasonable, fair-minded lay observer could rationally consider the material to be prejudicial. No prejudicial characterisation could be given to the Code issue as there was no Code violation. The information itself (that is, the drug dealing allegation) had no substantive significance; it involved an unsubstantiated allegation from an unknown source.
Even if the fair-minded observer might consider the possible suggestion that the applicant had been involved in low-level drug dealing, an objective assessment of the information would make clear that there was no evidence to suggest that this had occurred or that, even if it had, that it was of a high level of seriousness. In those circumstances, there is no basis on which the reasonable, fair-minded observer could conclude that the Authority might be subconsciously affected by the allegation.
It is correct that the Authority was, by reason of the material having been provided to the Authority as “review material”, obligated to consider it. This is of no real significance. The critical issue is whether the nature of the material was such that, to the reasonable observer, it created a risk of the decision-maker being unconsciously swayed by the material (noting that the Authority had expressly disclaimed reliance on the material). For the reasons outlined above, it is evident that the information was not prejudicial in the requisite sense. Even if it had been, the nature of the prejudice was minimal given the nature of the conduct, the lack of any adverse comment and the characterisation of the alleged conduct as low level.
Ground 2: procedural fairness
Similar considerations apply in respect of procedural fairness more generally. It is not clear, within the restricted scheme provided for in Part 7AA, how an obligation of procedural fairness might arise in respect of the information. If the Code information was not before the delegate then it follows that it may be “new information” for the purposes of s.473DC(1). However, “new information” must be information that may be relevant to the fast track decision. The Code information was plainly irrelevant and the Authority at [3] clearly considered it to be irrelevant to the decision. In those circumstances, it is difficult to see how any obligation to consider the information, in the context of procedural fairness, could arise.
It is not necessary to resolve that question. Even if it were to be accepted that a procedural fairness obligation in respect of the Code information potentially arose nothing turns on that: there was no breach of such an obligation. This is because the information was neither expressly considered by the Authority to be relevant or to be adverse or, objectively, capable of leading to an apprehension of bias.
A question not resolved by either the applicant or the Minister was whether the Authority was under any obligation to deal with the information, if it was new information, in accordance with s.473DD of the Migration Act. In my view, that express consideration was unnecessary in circumstances where the Authority clearly decided that the information, whether it was new or not, was wholly irrelevant to the review.
Ground 3: irrelevant material
As noted above, it is clear that the material concerning the alleged Code violation was not relevant to the review to be conducted by the Authority. Given this, it is also clear that the Secretary was in error in concluding that the material was “relevant” to the review and that it ought to be provided to the Authority under s.473CB(1)(c). It follows, and the Minister concedes, that there was a breach of s.473CB(1)(c).
Nothing turns on the error; it is not material and therefore the error is not jurisdictional. The irrelevant material was discounted by the Authority. More importantly, it did not create any apprehension of bias. In such circumstances, the absence of the material before the Authority (which would be the consequence of s.473CB(1)(c) having been applied correctly) could not realistically have led to a different outcome.[32]
[32] Minister for Immigration v SZMTA [2019] HCA 3 at [45]-[47]; Hossain v Minister for Immigration [2018] HCA 34 at [29]-[30]; Minister for Immigration v CPA16 [2019] FCAFC 40 at [32].
Conclusion
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 September 2020
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