AAL19 v Minister for Home Affairs
[2019] FCCA 2917
•15 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAL19 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2917 |
| Catchwords: MIGRATION – Application for safe haven enterprise visa – exceptional circumstances not demonstrated for the purpose of a consideration of new information – allegation of apprehended bias unsubstantiated – Authority not required to obtain further information in the circumstances – application for review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 5J, 116(1)(g), 424, 473CB, 473DB, 473DC, 473DD |
| Cases cited: CED15 v Minister for Immigration and Border Protection [2018] FCA 451 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | AAL19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 5 of 2019 |
| Judgment of: | Judge Egan |
| Hearing date: | 9 September 2019 |
| Date of Last Submission: | 9 September 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 15 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. Maloney |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr N. Wood |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The amended application for review filed on 27 July 2019 be dismissed.
The First Respondent file and serve written submissions on the question of costs on or before 22 October 2019.
The Applicant file and serve written submissions on the question of costs in response on or before 29 October 2019.
The matter be adjourned on the question of costs to a date to be advised.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 5 of 2019
| AAL19 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Pakistan who was born in 1987 in Parachinar.
The applicant arrived in Australia in 2013 at Christmas Island as an unauthorised maritime arrival.
On 27 March 2017 the applicant lodged an application for a Safe Haven Enterprise Visa (SHEV).
On 8 October 2018 a delegate to the Minister refused to grant the visa. The matter was referred to the Immigration Assessment Authority (the Authority) for review. On 23 October 2018 the Authority received a submission from the applicant’s representative.
On 3 December 2018 the Authority affirmed the decision of the delegate to refuse to grant the visa.
On 2 January 2019 the applicant filed an application for review of the decision of the Authority. On 27 July 2019 the applicant filed a Further Amended Application for Review, the 8 Grounds of which were as follows:
“Grounds of application
1. The Authority determined that a statutory declaration provided by the Applicant dated 23 October 2018, insofar as it dealt with the Applicant's mental health, constituted 'new information' such that it could not be considered unless it satisfied the criteria set out in s 473DD of the Migration Act 1958 (Cth) (Act). It subsequently found that s 473DD was not satisfied. However, the information about the Applicant's mental health constituted 'submissions' rather than new information, and so did not fall to be assessed against the s 473DD criteria.
Particulars
The statutory declaration is at CB 175. The relevant findings of the Authority are at [5]-[7] of its reasons: CB 186-7.
2. The Authority concluded that it was not satisfied that there were exceptional circumstances to warrant consideration of the Applicant's contention that he volunteered for the Qaim Foundation in Australia, and would continue to be active in human rights NGOs in Pakistan, exposing him to a real chance or risk of hmm. In reaching that view, the Authority failed to consider the significance of the information, and whether it may have affected consideration of the Applicant's claims had it been known to the Delegate; it also failed to consider the Applicant's specific submissions on these matters. Its conclusion that there were no exceptional circumstances justifying consideration of this claim was thereby affected by error.
Particulars
The statutory Applicant’s claims regarding the Qaim Foundation are expressed, for example, at CB 176 [12]-[15]. The relevant findings of the Authority are at [6]-[7] of its reasons: CB 186-7.
3. Further to ground 2: the Authority's reasons demonstrate that, in concluding that the NGO Claim was not credible, it asked itself whether it believed the NGO Claim, rather than whether that claim was capable of being believed. The correct application of s 4 73DD required it to ask only the latter question. It thereby fell into error.
4. The Authority concluded that relevant circumstances (i.e. violence) in Pakistan did not give rise to a real chance of harm to the Applicant. However, the Authority's reasons demonstrate that it did not assess whether the Applicant faced a real chance of persecution in Pakistan in the reasonably foreseeable future; and a fortiori, failed to consider the Applicant's submission that the situation in Pakistan was unpredictable and likely to worsen, despite a recent period of reduced violence. The Authority thereby misconstrued its statutory task and/or failed to consider the Applicant's claim as it was put.
Particulars
The relevant reasons of the Authority are at [33]-[44]: CB 192-3.
5. The Authority erred by rejecting the Applicant's claims in part because of a lack of substantiating or corroborative evidence. Further, the Authority drew conclusions which the materials before it did not suppo1t about the Applicant's capacity to have obtained such evidence. In the circumstances, reasonableness required it to consider the exercise of its power to get new information from the Applicant pursuant to s 473DC.
Particulars
The impugned reasoning is evidence, for example, at [29] and [31] of its reasons: CB 191.
6. Pursuant to s 473CB of the Act, the Authority was provided with and had regard to information concerning criminal proceedings against the Applicant. This material was irrelevant and prejudicial, and the Authority's reasons did not address it (and a fortiori, did not disavow reliance upon it). In the circumstances, a fair-minded layperson might reasonably apprehend that the Authority might not have brought an impartial mind to making its decision, so as to give rise to apprehended bias.
Particulars
The impugned materials are at CB 72-4.
7. Further to ground 6: The Secretary (or a delegate of the Secretary) provided the information concerning criminal proceedings against the Applicant (the subject of ground 6) pursuant to s 473CB(1)(c), as the materials were 'considered by the Secretary ... to be relevant to the review'. It was not lawfully open to the Secretary (or a delegate of the Secretary) to form the view that the documents were relevant to the Authority's review. The provision of these materials to the Authority led to a decision by the Authority made in excess of jurisdiction.
8. Further to grounds 6 and 7: Reasonableness required the Authority to consider exercising its power under s 473DC of the Act to get new information from the Applicant about the information that had been provided to it by the Secretary concerning criminal proceedings against the Applicant.”
At [3] of its reasons, the Authority recorded that it had had regard to the material provided to it by the Secretary of the Department pursuant to the provisions of section 473CB of the Migration Act 1958 (Cth) (the Act).
At [8] of its reasons, the Authority set out the applicant’s claims for protection as follows:
·“The applicant is a Shia from the Turi tribe in Pakistan.
·After finishing school, the applicant completed a surveying course.
·A friend of the applicant was with a company that did work for the Americans in Afghanistan. The friend suggested that the applicant start working there as well. The applicant began working with the company in Paktia province, staying at an army base and travelling back to Parachinar at the weekends.
·The applicant witnessed a number of serious security incidents while working for the Americans – including gunfire and mortar attacks at their worksite and a suicide bomber attack on the army base.
·The applicant also began receiving threatening phone calls warning him to cease working for the Americans.
·At one point, some Turkish contractors working for the company were kidnapped.
·The threatening calls to the applicant continued even when he was back in Pakistan.
·The applicant got no assistance from the police, and after discussing the issue with his family, he stopped working for the company.
·The threats continued and, fearful for his safety, the applicant eventually decided to leave Pakistan altogether.”
At [9] – [10] of its reasons, the Authority set out the relevant refugee assessment criteria as provided for in sections 5H and 5J of the Act.
At [12] – [32] inclusive of its reasons, the Authority closely considered all of the claims made by the applicant to the effect that he had been targeted by the Taliban because he had worked for the American and Afghani armies, and related personnel, in Afghanistan. It noted that though the applicant had claimed that he had received threatening telephone calls from the Taliban, and that such threats had finally resulted in him leaving Pakistan, the applicant had failed to mention that he had ever worked in Afghanistan for the Americans or Afghanis on sensitive projects at the time of, and during the course of, his entry interview. [1] That was so, notwithstanding that at [15] of its reasons, the Authority noted that at the commencement of the entry interview, the interviewing officer had reminded the applicant that the interview was the applicant’s chance to tell the Department his story, and as to why he should not be removed from Australia. The Authority was mindful of the applicant having undertaken an arduous journey by boat, but noted that the applicant was clear and responsive to questions asked of him throughout such entry interview, and that such interview took place some weeks after his arrival at Christmas Island. [2]
[1] [5] of Authority reasons.
[2] [14] – [19] inclusive of Authority reasons.
At [18] of its reasons, the Authority noted that the applicant gave responses to questions which were inconsistent with his later assertions that he had received threatening phone calls from the Taliban. For example, when the applicant was asked at the entry interview why he had left Pakistan, the applicant had stated that it was difficult to practise his religion or continue his studies in Pakistan. He made no mention of threats having been made to him by members of the Taliban. When asked to clarify what would happen to him if he practised his religion or kept studying, the applicant was recorded as saying that he would be killed. When the interviewer asked who would kill him, the applicant gave a general response, saying that the Taliban was mostly involved in such activities, but that other groups could also be involved. Having mentioned the Taliban, the Authority noted that at that interview the applicant had made no mention of his having been personally targeted, either in Afghanistan or Pakistan, or as to his having allegedly received threatening phone calls. The applicant did not say that he had come to the adverse attention of the Taliban. At [19] of its reasons, the Authority recorded that at the end of the entry interview (which had earlier been recorded by the Authority as having lasted some two hours), when asked if there was any other reason he had left Pakistan, the applicant referred in a general way to violence in Pakistan, stating that his life was wasted there. The Authority had listened to the entry interview, and noted that throughout the applicant had not been noticeably interrupted, or that he had been urged to keep his answers brief. It was said that the interviewer had occasionally prompted the applicant for clarification, or for the provision of additional information.
At [20] of its reasons, the Authority recorded that the applicant’s assertions that he did not want to raise his involvement with American projects in Afghanistan because he didn’t know whether Australia’s relationship with the United States was such that if he talked about his involvement, that might cause such involvement by the applicant to be looked at in a bad light. The Authority found that the applicant’s claims lacked credibility in circumstances where Australia’s support of the US in Afghanistan was well known, and further, in circumstances where the applicant had advanced several other reasons as to why he hadn’t earlier raised his having received threats because he worked for the Americans.
At [21] of its reasons, the Authority stated that it did not consider the discrepancies between the applicant’s account at his entry interview and at his SHEV interview as being determinative of a lack of credibility on the part of the applicant, stating nevertheless that it did not discount such discrepancies. The Authority also noted that at the entry interview the applicant gave clear and unambiguous replies about his previous travels abroad, and of his employment history, which replies conflicted with his account given at the SHEV interview. It was noteworthy that the Authority found that the applicant did not mention his ever having travelled to Afghanistan, or having held paid employment of any description there at any time during the course of his entry interview. As a whole, the Authority recorded that the applicant’s responses raised concerns as to his credibility.
At [22] of its reasons, the Authority found it curious that the applicant’s alleged project manager in Afghanistan would tell the applicant not to worry about his having received threatening phone calls from the Taliban whilst working at the project site, in circumstances where such site had been the subject of shootings and mortar fire attacks. The Authority was entitled to not regard such response as logical or credible.
At [25] of its reasons, the Authority noted the contradiction between the applicant’s assertion that Turkish contractors had been kidnapped by militants and had never been heard of again, as compared with the applicant having allegedly received multiple warnings from the Taliban, both in Afghanistan and Pakistan, without any direct action having been taken by the Taliban against him, particularly in circumstances where there was ample opportunity for such threats to be carried out against him by members of the Taliban.
At [26] of its reasons, the Authority noted that photographs provided by the applicant, allegedly for the purpose of identifying the project worksite and verifying his involvement there, did not visually depict the applicant at all, nor was there any other photographic confirmation that the applicant had worked at the project site when such photographs were looked at. The photographs were inconclusive, and the applicant admitted that they had been taken from someone else’s Facebook website. [3] It was noted that the applicant had produced no security pass which indicated that he had been employed at the project site. The Authority properly put no weight upon such photographs.
[3] [27] – [28] of Authority reasons.
At [29] – [31] inclusive of its reasons, the Authority closely analysed the absence of any documentation produced by the applicant which indicated that he had been employed on any American/Afghani army or security project. Statutory declarations as to the applicant’s alleged good character were of no assistance to the Authority when assessing the applicant’s claims of such employment. It was entitled to find the applicant’s claims of involvement on such project as lacking in credibility. It was also entitled to find that the applicant’s claims about receiving threats from the Taliban were also incredible.
The adverse credibility findings made against the applicant by the Authority were open to be made by it based on its consideration of the evidence before it. The Authority appropriately engaged with all of the claims made by the applicant, and critically considered aspects of those claims which were contradictory, vague and which were unlikely to have occurred. It cannot be said that the Authority, when making such adverse credibility findings, failed to act upon cogent evidence before it. As was said by Thawley J in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21] – [24]:
“[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].”
The Authority was entitled to find, as it did at [32] of its reasons, that the applicant did not face a real chance of suffering any harm from the Taliban if he was returned to Pakistan.
At [33] – [39] inclusive of its reasons, the Authority carefully considered the question of the applicant’s safety in Pakistan by reason of his being a Shia Muslim and a member of the Turi tribe. The applicant had claimed that he would be targeted in Pakistan both because of his religion and because of his tribal affiliation.
Though the Authority accepted that the applicant was a Turi Shia from Parachinar, and that Turis had been attacked by the Pakistani Taliban and other groups based upon their religion, the Authority at [36] of its reasons found that based on country information contained in a 26 April 2018 South Asia Terrorism Portal report, there had been a significant drop in attacks upon Shias in Pakistan. The Authority was entitled to weigh up the evidence before it and rely on such country information as it considered relevant to the claims made by the applicant. It was for the Authority to weigh up, and appropriately consider, such country information. It did so in an appropriate and considered way, citing a large number of country information sources for the purpose of arriving at its finding. [4] Jurisdictional error is not demonstrated by an applicant pointing to the existence of other country information supportive of the applicant’s claims but not relied upon by the Authority. As was said by Gray, Tamberlin and Lander JJ in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] – [11]:
“[10] In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.
[11] The appellants’ submissions contained a number of complaints about reliance by the Tribunal on information from sources other than the first appellant, referred to as ‘country information’. The Tribunal summarised in its reasons for decision a significant quantity of material it saw as relevant to the task it had to perform. This included material from the United States of America State Department, DFAT and various international news services and publications. To some extent, this material could have been considered to be helpful to the appellants’ case, but it is certainly true that the Tribunal relied on some of it in making findings adverse to the appellants. By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to ‘guidance’, as the appellants submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on ‘country information’ that is not true. The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.”
[4] Footnotes 1 – 6 on CB page 192.
At [37] – [39] of its reasons, the Authority addressed the applicant’s claims that he would be unable to study or find employment should he be returned to Pakistan. After carefully considering such claims, the Authority found that the applicant did not face a real chance of harm if he was returned to Parachinar in Pakistan. It was noted that the applicant’s wife and son have continued to reside in Parachinar since the time the applicant left Pakistan for the purpose of reaching Australia.
Grounds of Review
As to Ground 1 of the application for review, it is asserted by the applicant that the Authority had miscategorised information provided to it because it considered it as being “new information” to be considered in the light of the provisions of s. 473DD of the Act. Such information was submitted by the applicant to be in the nature of supporting submissions, and that it should have been treated as such.
On about 23 October 2018, that being a date after the handing down of the decision of the delegate on 8 October 2018, the applicant made a statutory declaration which was provided to the Authority, [5] together with submissions of that date prepared by “Refugee Legal” in written letter form. [6] The Authority specifically referred to the mental health issues raised in the statutory declaration, and in the written submissions, at [4] and [5] of its reasons. It did so in the face of the submission, starting at the bottom of the first page of the Refugee Legal letter, which was as follows:
[5] CB page 175 – 178 at para 29 – 30 on page 178.
[6] CB page 167 – 169 inclusive.
It is submitted that in this instance there are exceptional circumstances to justify considering new information for the purposes of s. 473DD(a), including (but not limited to) he following that individually and cumulatively meet the threshold.
1. A lack of English language skills and unfamiliarity with Australian migration law meant that the applicant was not aware that this additional information would be necessary for his claim to be correctly assessed.
2. The fact that:
a. the applicant is suffering from ongoing depression and related symptoms, for which he is currently being medicated. The applicant’s medical condition may have impeded his ability to provide this information previously;
b. the applicant is incarcerated at Melbourne Immigration Transit Accommodation (MITA). This incarceration has exacerbated his mental health condition and, in turn, has limited his ability to understand and effectively engage in the visa application process;
c. the information may make a material difference in the outcome of the Authority’s decision, and not doing so may lead to the applicant being exposed to a real and substantial risk of serious human rights abuses in Pakistan;
d. the nature of the IAA’s extremely limited form of review, and serious procedural disadvantages affecting the applicant which collectively increase the risk of the IAA making a decision that is not fair or just;
e. the fact that the applicant has not been able to access ongoing immigration assistance for the Fast Track Assessment review processes; and
f. the delegate has drawn incorrect conclusions and made assumptions which require correcting in order for the applicant’s claim to be fairly assessed.
It is further submitted for the following reasons the information in question was not, and could not have been, provided to the delegate before the primary decision was made:
1. the applicant’s lack of English language skills and understanding of Australian migration law; and
2. the applicant’s mental health vulnerability as described above.
Having been invited to invoke s. 473DD(a) of the Act in support of the applicant’s claim, the Authority proceeded to specifically refer to such claim as follows:
“[4] On 23 October 2018, the IAA received a submission from the applicant’s representative which refutes a number of the delegate’s findings. These matters may be regarded as argument rather than information to which I have had regard. The submission also reiterates or clarifies a number of claims made to the delegate.
[5] Included with the submission is a statutory declaration from the applicant. The statutory declaration restates many of the applicant’s claims. It also reiterates and expands on the applicant’s explanations for not mentioning key aspects of his claims at his entry interview. It provides further explanation for some material, such as the photos, already before the delegate. The applicant also refers to his mental health issues. This is put forward to explain some of the omissions and inconsistencies in the applicant’s testimony. In the submission to the IAA, the agent states that “the applicant is suffering from ongoing depression and related symptoms for which he is currently being medicated”. In their submission to the IAA, the agent states that this may have affected the applicant’s ability to provide this information earlier. The agent does not explain why this would be or provide any evidence of the medication the applicant is asserted to be taking. Similarly, the applicant provides no details in his statutory declaration of the medicine he is taking (nor even its name). There is no evidence from a medical professional attesting to the applicant’s medical condition, his program of treatment or the effects of any drugs he is taking. I note that in the submission to the IAA, the agent cites the applicant’s lack of English language skills and his unfamiliarity with Australian migration law as the reason why the new information in the statutory declaration was not put forward earlier. However, the applicant was in Australia for almost four years prior to lodging his application, he was represented at his interview with the Department, and his representative made a post-interview submission to the delegate. The applicant had the benefit of a translator in preparing his SHEV application and an interpreter at his SHEV interview. I consider that he had more ample opportunity and assistance to put forward any claims he wished to make in regard to his SHEV application. Given the assistance provided to the applicant during the primary process and the repeated opportunities to provide any new information, I also have serious doubts about the credibility of information set out in the statutory declaration given that it is only now being provided.”
The information provided in paragraphs 28 and 29 of the statutory declaration fell into the category of new information because the applicant had not previously had any particular evidence relevantly presented about his mental health. The reference at Court Book page 95 to the applicant suffering stress, anxiety and depression (as contained in a pre-delegate decision submission by WLW Migration Lawyers dated 4 October 2018 to the Department) was in the context of the applicant having been charged criminally with offences, and of his having subsequently been detained at the Maribyrnong Immigration Detention Centre, his visa having been cancelled under the provisions of s. 116(1)(g) of the Act. It is to be noted, in that regard, that the WLW letter recorded that though the applicant had said that he had had sleeping pill medication prescribed for his condition, the applicant had declined to take it. Such earlier reference to mental health was different to that as set out in statutory declaration because the information in paragraph 29 thereof:
a)Was contained in a personal declaration made by the applicant rather than a submission made on his behalf by a representative.
b)Set out additional factual information rather than constituting a submission as to what consequences might flow from already established factual information. The applicant stated in the statutory declaration that he had been “feeling mentally disturbed recently”, and that in addition to feeling depressed, “my fears are increasing and I am unable to stop my thoughts. I have been prescribed an anti-depressant medication to assist with my symptoms. I have another appointment at 3pm today with a doctor.”
That personal dialogue from the applicant elevated that information to new information for the purpose of the Authority’s due consideration of it under section 473DD of the Act, which relevantly provides as follows:
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.
When considering what properly constituted new information for the purposes of s. 473DC and s. 473DD of the Act, the Full Court of the Federal Court in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 482 at [35], [50] and [54] said as follows:
“[35] The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to such matters as:
·the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or
·the reasons why “new information” should be considered, including a “submission” as to why such “new information” satisfies the criteria in s 473DD.
…
[50] It is concluded that a “submission” which only addresses the information already made available for consideration by the Authority and which contains no additional factual information is neither:
·a “document”; nor
·“information”
for the purposes of the definition of “new information” as set forth in s 473DC.
…
[54] The expression “new information” as defined in s 473DC(1), it is concluded, seeks to identify the sources whereby new factual material is sought to be placed before the Authority. To expose the Authority to the prospect of receiving an ever-changing or continually emerging factual account of the claims for protection being advanced would run counter to the legislative objective of “fast track” decision-making. But there remains no clearly expressed legislative intent to deny to a claimant the ability to place before the Authority — and to have the Authority in fact consider — a submission directed to an established pool of factual information.”
The Authority did not fall into error in treating the contents of the statutory declaration relating to mental health as new information. No jurisdictional error has been demonstrated in that regard.
As to Grounds 2 and 3 of the application for review, it is asserted that the Authority failed to properly consider the significance of information said to be new information as to the applicant’s having volunteered for Qaim Foundation work in Australia.
First, the conditions in s.473DD(a) and (b) are cumulative. The conditions in both sub-paragraphs must be satisfied for the Authority to be able to consider the new information. [7] In Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [104], the Full Court there adopted the reasons of White J in BVZ16 v Minister for Immigration and Border Protection (2017) 254 FCR 221 at [39] – [43] inclusive where His Honour said:
[7] AQU17 v Minister for Immigration and Border Protection [2018] FCAFC 111 at [13].
[39] Generally, and subject to the particular statutory context, circumstances will be exceptional if they are unusual or out of the ordinary: An v Minister for Immigration and Citizenship (2007) 160 FCR 480 at [7] (Lindgren J). In Hatcher v Cohn (2004) 139 FCR 425, Keifel J said of the term “exceptional circumstances”:
[49] “Exceptional” circumstances, in general terms, are those circumstances which are unusual or out of the ordinary. But the term is also one which may have a wide operation. Factors affecting a person and which set them apart from other persons in a comparable situation may amount to exceptional circumstances. Speaking in the context of extradition, Gleeson CJ, McHugh and Gummow JJ have held that “special circumstances” need to be “extraordinary and not factors applicable to all defendants facing extradition”. It was not necessary that any particular circumstance be regarded as special; several factors in combination could constitute special circumstances: … And in Baker v R (2004) 78 ALJR1483; [2004] HCA 45 at [13] Gleeson CJ considered the use of “special circumstances” to condition the exercise of judicial discretion. His Honour said:
This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.
[50] Although his Honour was speaking of judicial decision-making the observations are apposite here. The words “exceptional circumstances” may apply to a variety of circumstances and no definition which limits their application should be adopted, unless the limitation appears from the words of the relevant statutory provision. …
[40] In Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581, the Full Court cited with approval a passage from the judgment of Lord Bingham of Cornhill CJ in R v Kelly [2000] QB 198 at [51] as follows:
[51] We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
[41] Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffıths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-General (Cth) (2013) 218 FCR 25 at [65] (Greenwood J).
[42] The proper construction of the term “exceptional circumstances” in s 473DD should take account of the context in which the term is used. The scheme of Pt 7AA of the Migration Act is to provide a means of “fast track” review of the refusal of certain applications for a protection visa. Particular elements of the scheme are that all “fast track reviewable decision[s]” are to be referred to the IAA as soon as reasonably practicable after the decision is made (s 473CA), the task of the IAA is, prima facie, to review the decision on the papers and without accepting or requesting new information and without interviewing the applicant (s 473DB) and, while the IAA has a discretion to “get” new information, it may consider it only in the limited circumstances specified in s 473DD. Plainly, applicants for a protection visa are expected to present all their claims and all available evidence to the Minister in relation to the decision under s 65.
[43] Further, account must be taken of the reference to the exceptional circumstances being such as to “justify” consideration of the new material. In this respect, account should also be taken of the purpose of the IAA decision, namely, to affirm the refusal of the visa or to remit for reconsideration in accordance with such directions or recommendations as are permitted by regulation (s 473CC). That suggests that exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances.
What will constitute exceptional circumstances will depend upon the Authority’s consideration of the facts of each case. The Authority is not required, for that purpose, to also contemporaneously consider matters relevant to s.473DD(b)(ii), though it may. [8] The Authority did consider the significance of the new information relating to the Qaim Foundation, making specific reference to the assertion on the part of the applicant that he would continue to do human rights work for NGOs if returned to Pakistan. That had not been raised previously. Quite apart from the Authority expressing doubts as to the credibility of those claims, the Authority addressed the issue in a considered manner, and found that there were no exceptional circumstances justifying its consideration. No jurisdictional error has been demonstrated in that regard.
[8] DLB17 v Minister for Home Affairs [2018] FCAFC 230 at [22].
As to Ground 3, having found that there were no exceptional circumstances which existed for consideration of the new information, there was no obligation on the part of the Authority to go on to consider s.473DD(b)(ii) matters. That was so notwithstanding that the Authority did “consider” the new Ground. Whether or not the new information was credible or not, and whether or not a finding as to its credibility was or was not made, the Authority was not required to make such finding in the light of its finding that no exceptional circumstances for consideration of the new information existed. That s. 473DD(b) consideration was not necessary for the disposition of the application. This Ground is misconceived.
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474, Justice Bromberg considered the question as to the proper approach which the Court should adopt when considering s.473DD(b)(ii) at [38] – [43] inclusive where he said:
“[38] Despite accepting the erroneous approach taken by the primary judge, the Minister nevertheless contended that the Authority had not relevantly engaged in jurisdictional error. The Minister contended that pursuant to s 473DD(b)(ii) the Authority must form an assessment of whether the “new information” is “credible” before it is permitted to then consider that information for the purposes of making its ultimate decision on the review. In making that assessment, the Minister contended that the Authority was entitled to take into account the “review material”. That was what the Authority did here and, by reference to the fact that a claim of the kind raised by the “new information” had never previously been advanced by the appellant, the Authority was entitled to conclude that the “new information” was not “credible personal information” within the meaning of the s 473DD(b)(ii) criteria.
[39] To address the competing contentions, it is necessary to properly understand the basis for the Authority’s conclusion that the new information was not “credible personal information”. It was not in contest that the Authority was engaged in a process of assessing the veracity of the “new information”, not on its face, but by reference to “review material” which had been received by the Authority. By that process, the Authority came to an ultimate or final view that the “new information” was not to be believed and therefore not information that could be received for consideration in accordance with s 473DD(b)(ii). The nature of the assessment made by the Authority indicates that the Authority proceeded on the basis that a condition of engagement of s 473DD(b)(ii) is the Authority’s satisfaction that the “new information” is true. That reflects the sense in which the Authority construed the word “credible”.
[40] An alternative construction for the use of the word “credible” in the phrase “credible personal information”, is that it has a meaning consistent with the meaning given to the word in a setting somewhat akin to that found in s 473DD(b)(ii), that is, in the expression of one aspect of the natural justice hearing rule. I addressed the meaning of “credible” when used in that context in Gbojueh v Minister for Immigration and Citizenship [2012] FCA 288 at [79], where I said this:
The basic principle is that persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests, which the decision-maker proposes to take into account: VAAD at [56]. That opportunity need only be given in relation to information that Brennan J described in Kioa v West (1985) 159 CLR 550 at 629 as “credible, relevant and significant”. “Credible, relevant and significant”, is to be understood as referring to information which cannot be dismissed from further consideration by the decision-maker before the making of the decision. That is, information which is “evidently not credible, not relevant, or of little or no significance to the decision that is to be made”: VEAL at [17] and see at [20].
[41] In my view all that the “credible” element of the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the “new information” is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine). It is only at the deliberative stage of its review that the Authority will be required to determine whether or not the “new information” is true. The s 473DD(b)(ii) criteria is concerned with an earlier or anterior stage of the review directed at whether “new information” should be received by the Authority so that it may be considered at the deliberative stage.
[42] The criteria is a filtering mechanism designed to separate information worthy of consideration at the deliberative stage from that which is not. In that context, the word “credible” is used in relation to information, not in the sense that the information is believed, but in the sense that the information is capable of being believed. It is only information that the Authority is satisfied is “evidently not credible” (VEAL v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88 at [17] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ) that fails to meet the credibility requirement imposed by the s 473DD(b)(ii) criteria.
[43] The Authority determined that the “new information” that the appellants sought to have it consider did not meet the s 473DD(b)(ii) criteria by imposing a higher standard of satisfaction than the criteria requires. The Authority required satisfaction that the “new information” was true when all that the s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the new information is capable of being believed at the deliberative stage of the Authority’s review. In so doing the Authority misconstrued s 473DD(b)(ii) and misconceived what the exercise of its statutory power entailed. The Authority thereby fell into jurisdictional error: Graham v Minister for Immigration and Border Protection; Te Puia v Minister for Immigration and Border Protection [2017] HCA 33 at [68] (Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ); Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at [82] (Gaudron J) and [196] (Gummow and Hayne JJ).”
As to Ground 4 of the application for review, it was asserted by the applicant that the Authority did not consider and properly assess whether the applicant faced a real chance of persecution in Pakistan in the reasonably foreseeable future. As to that assertion, the Authority did identify the relevant refugee assessment criteria at [9] – [10] of its reasons. At [35] and [36] of its reasons, the Authority carefully analysed the security situation in Pakistan relevant to the applicant’s status as a Turi Shia living Parachinar. In doing so, the Authority was specifically responding to the applicant’s claims about such security situation as set out on page 22 of the 4 October 2018 WLW Lawyers submission made to the Department prior to the handing down of the delegate’s decision.[9] Having considered the claims of the applicant in the context of up to date country information, [10] and having looked at the relevant past security history relative to what was contained in such country information, the Authority was entitled to make the findings that it did after having carried out a counter balancing exercise. [11] In doing so, the Authority necessarily had regard to the security situation in the reasonably foreseeable future when making its findings. That the applicant disagreed with the Authority’s findings does not constitute jurisdictional error on its part. This Court will not undertake a merits review of findings of the Authority at issue. That Ground is misconceived.
[9] CB page 115 – 117.
[10] South Asia Terrorism Portal report of 26 April 2018.
[11] NAHI at [10] – [11].
As to Ground 5 of the application for review, it is asserted that the Authority failed to consider the exercise of its powers to obtain new information pursuant to the provisions of s.473DC of the Act. The applicant relied upon the decision of Kenny J BAO16 v Minister for Immigration and Border Protection [2018] FCA 1463 at [92] in support of the proposition that the Authority in part rejected the claims of the applicant relating to his alleged project employment with the American and Afghani armies and security personnel because the applicant had “not brought forward any documentation or photographic evidence of his own to substantiate his employment …”.
However, the Authority did closely consider the claims of the applicant before rejecting them for a number of reasons:
a)the Authority noted that the applicant had not said anything about working for the Americans at his lengthy entry interview ([14] – [21] of reasons);
b)the Authority found that the applicant’s claims were implausible ([22] – [25] of reasons);
c)the Authority noted that the photographic evidence produced by the applicant was not from his Facebook website but from another person’s website, in circumstances where the photographs did not substantiate or evidence the applicant’s claimed involvement with the project;
d)at [29] of its reasons, the Authority stated:
29. The applicant has not brought forward any documentation or photographic evidence of his own to substantiate his employment on a project where he claimed to have worked for three years. I note that even by his own account the applicant’s departure from Pakistan was not immediate. He started making arrangements about two weeks prior to his departure. He had ample opportunity to gather together evidence of his own employment at the time. He had also been in Australia for several years prior to lodging an application. I find it difficult to accept that in all that time the applicant could gather no paperwork, photographs or other evidence of his claimed employment and yet managed to stumble across a photo of himself on a friend’s website in the week or so between the interview and the agent’s submission to the delegate.
e)at [31] of its reasons, the Authority dismissed the applicant’s claims about project employment as incredible, relying upon a number of different grounds for doing so.
It could not be said that the Authority failed to engage with the claims as made by the applicant about his alleged project employment. Further, the applicant was given every opportunity to place whatever documentation he wanted to before the Authority. He was represented throughout the entire process and much documentation was forwarded to the Authority relevant to the Authority’s consideration of the applicant’s claims. [12]
[12] Refugee Legal submission dated 23 October 2018 – CB page 167 – 179 inclusive.
The factual situation before the Authority was not one akin to that as found by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, namely where the Authority failed to consider its power to obtain new information pursuant to s.473DC in circumstances where it knew that it did not have, but where the respondent was likely to have, information of relevance on a particular issue. The situation before the Authority in the present matter was that it not only had all of the material provided to it by the Secretary (including lengthy submissions provided to the Department by the applicant’s migration lawyers before the delegate handed down a decision), but also lengthy submissions provided to it by Refugee Legal after the delegate’s decision. The Authority reasonably acted on the basis that it had everything before it of relevance. No jurisdictional error has been demonstrated.
Ground 6 of the application for review constituted an assertion that the decision of the Authority was tainted by apprehended bias. The claim related to the inclusion in the review material of documentation which confirmed that the applicant had been arrested and charged on two criminal offences – namely one count of sexual assault and another count of false imprisonment. [13] It was submitted on behalf of the applicant that because the Authority made no reference to such pending charges in its reasons, a hypothetical fair-minded lay person might reasonably apprehend that the decision maker might not have brought an impartial mind to the decision making process on the basis that such material was prejudicial.
[13] CB page 72 – 74 inclusive.
It must be inferred that the material was provided to the Authority by the Secretary, pursuant to the provisions of s.473CB(1)(c) of the Act, on the basis that it was considered by the Secretary to be “relevant to the review”. Section 473DB(1) required the Authority to consider the review material provided to it by the Secretary. No challenge was made by the applicant as to the inclusion of such material for consideration by the Authority.
In CNY17 v Minister for Immigration and Border Protection [2018] FCAFC 159 the Full Court of the Federal Court was there dealing with a similar factual situation where documents containing information about a criminal conviction, charges, and the appellant’s conduct whilst in immigration detention, had been provided to the Authority by the Secretary of the Department. A similar claim of apprehended bias was made to that which was made in the present case. The majority, Moshinsky and Thawley JJ dismissed the appeal brought by the applicant appellant. At [149] Moshinsky J said:
[149] As noted above, I do not consider there to be a basis, on the facts of the present case, to suggest that the Secretary did not form the view that the documents at AB 41-89 were relevant to the review. Although I have concluded that the documents were not relevant, I nevertheless consider that it was open to the Secretary to form the view that the documents were relevant. The documents contained background or contextual information concerning the appellant’s application for a visa and detention in immigration detention. The obligation on the Secretary was to “form a view” as to the relevance of each document: see, in the context of s 418(3) of the Migration Act, WAGP v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 413 at [64]. The fact that a different view might now be formed by the Court, with the assistance of detailed legal submissions, as to the relevance of certain material does not mean that the Secretary’s decision to give that material to the Authority was invalid.
At [153] of CNY17, Thawley J set out the principles to be applied when considering an allegation of apprehended bias as follows:
[153] Where apprehended bias is said to arise by reason of the receipt of extraneous and prejudicial information (the “fourth category” in Webb v The Queen (1994) 181 CLR 41), the relevant principles include:
(1) As Moshinsky J observes at [124] to [126], the test in curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the decision to be made – see also: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 at 990 [27]; Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173 at [172], per Beazley P (with whom Payne JA agreed).
(2) The test is an objective test of possibility, not probability: Ex parte H at [28]; Isbester v Knox City Council (2015) 255 CLR 135 at [59]. However, it must be recognised that there are degrees of possibility. It is not sufficient if a reasonable bystander “has [only] a vague sense of unease or disquiet”: MZXLD v Minister for Immigration and Citizenship [2007] FCA 1912, per Gordon J, referring to Jones v Australian Competition and Consumer Commission [2002] FCA 1054; 76 ALD 424 (Weinberg J).
(3) As Mortimer J emphasises at [18] and [19], and consistently with Moshinsky J’s statement and application of the test, the question which the test requires be answered is one which focusses attention on a point in time before the decision is made. As Beazley P said in Potkonyak at [172]: “The ‘double might’ test is future looking, about a decision to be made in the future”.
(4) The principle applies not only to judicial decision-making. It extends to administrative decision-making. The analogy with the curial process is less apposite the further the divergence from the judicial paradigm. The application of the principle must accommodate the difference between court proceedings and other decision-making: Isbester at [22]. The formulation of the test in relation to administrative proceedings held in private was considered in Ex parte H at [28] and [29].
(5) The question the test raises is largely factual. The test assumes a fair-minded lay observer with appropriate knowledge not only of the factual context but also of the legal context, in particular the statutory context within which the administrative decision is to be made.
(6) It follows from the two preceding matters that it is necessary to identify how the particular administrative decision-making process under consideration differs from the judicial paradigm in order to apply the test.
(7) As Mortimer J observes at [10], the application of the test was described by Gageler J in Isbester at [59] as requiring the following three steps:
(a) First, an identification of the factor which it is hypothesised might cause the decision-maker to resolve a question otherwise than as the result of a neutral evaluation of the merits.
(b) Secondly, an articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits.
(c) Thirdly, a consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.
At [132] of his reasons, Moshinsky J found that the material provided to the Authority in CNY17 was irrelevant to the issues before the Authority. At [162] – [163] of his reasons, Thawley J addressed the issue as to how a decision maker approaches the decision making process when some of the documentation provided to them, though irrelevant to the issues to be decided, nevertheless contained some prejudicial matter. His Honour said:
[162] The mere existence of irrelevant material provided under s 473CB(1)(c) cannot give rise to an apprehension of bias. There must be some quality to the irrelevant material which might give rise to a reasonable apprehension of the possibility that the decision-maker might not bring an impartial mind to the decision to be made. Administrative decision-makers regularly have irrelevant material placed before them. The ability to ignore irrelevant material is not a skill enjoyed only by lawyers. In my view, a fair-minded observer would not conclude that a “Reviewer”, being a part of a specialist division of the Tribunal familiar with the particular and limited legal questions which arise for its consideration, is (as an absolute proposition) unable to disregard irrelevant material.
[163] It is sometimes difficult to identify with certainty matters which might influence the making of a decision, consciously or subconsciously. The context here is that the decision-maker is focussed on answering specific questions which arise in a limited merits review. In that process, the decision-maker is required to consider the material before him or her. The decision-maker may consciously consider whether the material is relevant to the issues which need to be answered. Equally, the decision-maker may do so subconsciously or not at all. Whether a reasonable lay observer might apprehend that irrelevant material was such that the decision-maker might not bring an impartial mind to the questions to be answered depends on all the facts and, in this context, particularly on the nature of the prejudicial material, its prominence and the nature and content of the material which was otherwise before the decision-maker.
On the basis of the reasoning of Thawley J as last referred to, it ought to be inferred that the Authority had no regard to any of the documentation at Court Book pages 72 – 74, based on a lack of relevance. It made no reference to such documents in its reasons. In any event, however, like in CNY17, the applicant, by the WLW Lawyers submission to the delegate dated 4 October 2018, had already provided to the Department information relevant to his having been criminally charged with offences giving rise to his having had his visa cancelled with the consequence of having been detained in the Maribyrnong Immigration Detention Centre. [14] The applicant’s case is on all fours with CNY17 where the prejudicial material had also been provided to the Department by the applicant. At [134] and [135] of his reasons, Moshinsky J said:
[134] However, much of the information that the appellant contends was prejudicial was before the Authority in any event, in the appellant’s application for a visa and in the reasons of the delegate. The most significant matters contained in the documents at AB 41-89 were that the appellant had been convicted on 26 February 2016 of an offence in relation to the March 2015 Incident and that he was facing charges in relation to the November 2015 Incident. These matters were disclosed in the appellant’s visa application: see [90]-[91] above. The appellant’s conviction was also disclosed in the delegate’s reasons: see [97] above. The fact that the appellant had spent time in prison was also disclosed in his application for a visa: see [92] above.
[135] While the documents at AB 41-89 contained additional information about the appellant (see [102] above), I do not consider the additional information to provide a sufficient basis to conclude that a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made. The information broadly concerned the appellant’s conduct while in immigration detention. This was irrelevant to the issues that the Authority had to determine. Although the Authority was required to consider the documents, the fair-minded lay observer would consider it likely that the Authority would put the information aside as irrelevant to its task. Insofar as the documents referred to the appellant having had an interview with “National Security Monitoring Section”, I do not consider this, without more, as prejudicial. In these circumstances, notwithstanding that the documents were provided by the Secretary to the Authority as documents considered to be relevant to the review, and that the Authority was required to consider the documents, I do not consider that a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made.
[14] CB page 95 and page 127.
Further, the material provided by the applicant to the Department concerning his being in immigration detention after the cancellation of his visa (following upon his being charged with criminal offences) was required to be forwarded to the Authority by the Secretary pursuant to the provisions of s.473CB(1)(b). The apprehended bias claim is without merit.
As to Ground 7 of the application for review, the decision of the Secretary to provide the documents at Court Book pages 72 – 74 to the Authority was a “privative clause decision” as defined in ss.474(2) and 474(3) of the Act. As such, the Secretary’s decision could not be called into question unless affected by jurisdictional error as provided for under s.474(1) of the Act. Section 474(1) and (2) provide as follows:
Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
The applicant has not challenged the Secretary’s decision to provide the documents to the Authority pursuant to the provisions of s.473CB of the Act (see paragraph 9 of applicant’s supplementary submissions filed on 9 August 2019 where it was positively asserted that no such challenge would be made). In those circumstances, the applicant is estopped from asserting jurisdictional error on the part of the Secretary, or the Authority, in respect of the Authority’s receipt of the documents in question.
Alternatively, the applicant’s assertion is without merit based upon the decision of the majority in CNY17 on the same point. [15]
[15] CNY17 at 149 per Moshinsky J.
As to Ground 8 of the application for review, there is no basis for the Court to find that the Authority did not consider whether or not to exercise its powers pursuant to the provisions of s.473DC of the Act. The lack of a reference in its reasons as to whether it considered exercising s.473DC powers or not is not determinative in that regard.
The applicant could have updated the Authority with any information touching upon the progress of his criminal proceedings, or the circumstances of his detention, if he or his representatives had considered it relevant. The applicant chose not to do so. In those circumstances, the Authority did not err in failing to obtain further documentation relating to those matters. It was already possessed of the same information which had been provided to the Department prior to the delegate’s decision.
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Keifel and Bell JJ in Minister for Immigration and Citizen v SZIAI [2009] 259 ALR 429 at [25] - [27], where it was said:
“[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.”
Further, it cannot be said that no other rational or logical decision maker could not have made the same decision. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
“[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”
Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:
“[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker. Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.
…
[76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”
No jurisdictional error has been demonstrated on the part of the Authority.
The application for review is dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 15 October 2019
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