ACU16 v Minister for Immigration
[2018] FCCA 763
•4 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 763 |
| Catchwords: MIGRATION – Procedural fairness – ITOA relying on Internet and Facebook information not put to the applicant – procedural fairness denied – declaration that international treaties obligation assessment made in respect of the applicant was not made in accordance with law. |
| Cases cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 Minister for Immigration and Border Protection v SZQRB (2013) 210 FCA Ministerfor Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 |
| Applicant: | ACU16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | INDEPENDENT PROTECTION ASSESSMENT REVIEWER |
| File Number: | DNG 2 of 2016 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 5 December 2017 |
| Date of Last Submission: | 5 December 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 4 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Hosking |
| Solicitors for the Applicant: | Allens Linklaters |
| Counsel for the Respondents: | Mr B. Petrie |
| Solicitors for the Respondents: | Australian Government Solicitor |
DECLARATION
The international treaties obligation assessment made in respect of the applicant on 14 October 2015 was not made in accordance with law for the reasons identified in the Court’s reasons for judgment in ACU16 v Minister for Immigration and Border Protection & Anor [2018] FCCA 763.
ORDERS
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,328.
The application otherwise be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DNG 2 of 2016
| ACU16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application for judicial review the applicant contended that the International Treaty Obligations Assessment (“ITOA”) made on 14 October 2015 and which found that non-refoulment obligations were not engaged, was not made in accordance with law because the applicant was denied procedural fairness. The applicant relied on nine separate bases for contending he was denied procedural fairness, six of which related to country information on which the ITOA reviewer relied and which came into existence after the relevant interview, none of the six of which were the subject of an invitation to comment given to the applicant. The other three related to Google and Facebook searches conducted by the ITOA reviewer after the interview but before the decision and the applicant was not invited to comment on them.
On behalf of the minister it was argued that the impugned information was not “information” that had to be put or was not adverse to the applicant or it was not relevant or it was not significant so no error was committed in omitting to put it to the applicant with the consequence that the applicant is not entitled to the relief he seeks.
Synopsis
For the reasons that follow, in my judgment the ITOA denied procedural fairness to the applicant on the grounds alleged. I declare the international treaties obligation assessment made in respect of the applicant on 14 October 2015 was not made in accordance with law. The minister must pay the applicant’s costs of this proceeding.
A short factual narration
The applicant, an Iraqi citizen, arrived in Australia as an unauthorised maritime arrival on 14 June 2010.
On 9 November 2010 a refugee status assessment conducted by the minister’s department found that the applicant was not a person to whom Australia had any obligations under the United Nations 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (“the Convention”).[1] The applicant through Refugee and Immigration Legal Centre Inc. (“RILCI”) requested an independent merits review by request dated 31 December 2010. On 29 June 2011 RILCI provided written submissions in support of the independent merits review.
[1] CB 70 – 79.
On 5 September 2011 an independent merits review found that the applicant did not meet the criterion for a protection visa set out in s.36(2) of the Migration Act[2] (“the Act”) and recommended that the claimant not be recognised as a person to whom Australia had protection obligations under the Convention. Its reasons ran for 65 paragraphs.
[2] Migration Act 1958
By letter dated 12 October 2011 from RILCI on behalf of the applicant, RILCI wrote to the minister requesting the Honourable Chris Bowen MP to consider exercising the minister’s discretionary powers under s.195A or s.46A to intervene by substituting a more favourable decision in favour of the applicant.
On 31 January 2012 a departmental officer provided a 19 page ITOA in relation to the applicant.[3]
[3] CB 132–150.
By letter dated 1 September 2014 the department wrote to the applicant to inform him that the department would undertake a reassessment of his protection claims as part of a new ITOA especially assessing whether any non-refoulment concerns arose. The department gave the applicant 14 days to provide such further information that he wished the ITOA reviewer to consider.
On 29 September 2014 RILCI provided various documents including the applicant’s statutory declaration, two legal submissions and a variety of supporting documents.
On 16 October 2014 the ITOA invited the applicant to attend an interview to discuss his claims and to comment on any adverse information to be held on Friday 31 October 2014. RILCI provided a video to ITOA that was translated. On 18 November 2014 RILCI provided further written submissions following the interview on 31 October 2014.
By letter dated 14 October 2015 the ITOA decision was provided to the applicant and separately to RILCI the effective portion of which provided that the applicant’s claims for protection did not engage Australia’s non-refoulment obligations. The decision itself ran for 34 pages.
Judicial review application
Rather than synthesising the ITOA’s reasons at a high level of abstraction, it is useful to go to the nine particulars of the single ground of application in this case, namely, that the ITOA reviewer failed to afford the applicant procedural fairness. In many respects, the applicable legal principles were not disputed. Relevantly paraphrased they were –
a)the ITOA reviewer was required to afford the applicant procedural fairness in connection with the ITOA and to otherwise make the ITOA in accordance with law, support for which emerged from the decision of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v SZQRB,[4] and from the decision of the High Court in Ministerfor Immigration and Border Protection v SZSSJ;[5]
b)in Minister for Immigration and Border Protection v SZSSJ[6] the High Court held that procedural fairness required that a person whose interest was apt to be affected by a decision be put on notice of “the nature and content of information that the repository of power undertaking the enquiry might take into account as a reason for coming to a conclusion adverse to the person”;
c)a failure to afford procedural fairness in connection with the ITOA or an error made in connection with an ITOA can be the subject of declaratory relief as was held by the High Court in Plaintiff M61/2010E v Ministerfor Immigration and Border Protection[7] and by the Full Court of the Federal Court of Australia in Minister v SZQRB.[8]
[4] (2013) 210 FCA 505, 544–546, 551–553 (Lander and Gordon JJ), 557 (Besanko and Jagot JJ) and 565 (Flick J)
[5] (2016) 259 CLR 180
[6] (2016) 254 CLR 180 at 207
[7] (2010) 243 CLR 319
[8] (2013) 210 FCR 505
In this case the applicant claimed to be a person to whom Australia owed non-refoulment obligations on several grounds. That claim was set out in a particular factual context that Mr Mark Hosking of counsel for the applicant very helpfully distilled in his written submissions. He contended that –
“5. Before the applicant was born, his father purchased 35 acres of land from the father of a man named Adel Sahab Ali Wahab (Adel).[9] In about 2009, Adel tried to reclaim the land on the basis that the land had only been leased to the applicant’s father.[10] Adel threatened the applicant’s family on three occasions [to vacate the land].[11] Three days after the third occasion, the applicant’s father was killed and [the applicant’s] brother (M) was shot in an attack at the family home.[12]
6. Ten days later, the applicant’s family fled to [the applicant’s] sister’s home.[13] In April or May 2010, the applicant departed Iraq with his other brother (H) and travelled by land to Iran.[14] In May 2010, they travelled by air to Malaysia.[15] They then travelled to Indonesia, before boarding a boat bound for Australia. The applicant arrived at Chrstmas Island on 14 June 2010”.[16]
[9] CB 43.
[10] Ibid.
[11] Ibid.
[12] CB 43-44.
[13] CB 44.
[14] Ibid.
[15] Ibid.
[16] CB 22, 226.
The several grounds on which the applicant said Australia owed him non-refoulment obligations were also very helpfully distilled by Mr Hosking in his written submissions. They were as follows –
“For the purposes of the new ITOA, the applicant claimed to be a person to whom Australia owes non-refoulement obligations on several grounds. These were:
(a) The applicant fear[ed] that he [would] be harmed by Adel. He believe[d] that Adel was responsible for the murder of his father in 2009 and his brother M in 2010 and that Adel will use his prominent position in Iraqi politics to harm [the applicant if the applicant] returns to Iraq. The applicant also fear[ed] harm from Adel on the basis that he and Adel [were] members of different tribes, and on the basis of the land dispute;
(b) The applicant fear[ed] harm on the basis of his father’s membership of the Ba’ath Party;
(c) The applicant fear[ed] harm by Islamic State and other Sunni militant groups because he is a Shia Muslim;
(d) The applicant fear[ed] harm from Shia militant groups because he would refuse to fight against Islamic State;
(e) The applicant fear[ed] harm by reason of being a failed asylum seeker and a returnee from the West. He [said] that, as a result of his time in Australia, he has adopted a western lifestyle, including drinking alcohol, not practicing his Shia Muslim faith, and being in a relationship with an Australian woman;
(f) The applicant fear[ed] harm from family members, former friends and the Madhi Army because of his interest in Christianity, and his brother’s conversion to Christianity in 2014; and
(g) The applicant fear[ed] harm as a result of generalised violence in Iraq”.[17]
[17] ‘Applicant’s Submissions’ 21 November 2017, at 18.
In this case, the applicant contended that the information on which the reviewer relied emanated from country information that came into existence after the date of the interview and in respect of which the reviewer neither invited comment nor obtained it from the applicant. In addition to calling in aid the observations of the High Court of Australia in SZSSJ the applicant also relied on the observations of the Full Court of the Federal Court of Australia in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [18] There, the court held as follows–
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”[19]
[18] (1994) 49 FCR 576 (Northrop, Miles and French JJ).
[19] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 (Northrop, Miles and French JJ)., 590–591.
The purposes of his submissions Mr Hosking grouped the six instances of country information into a discrete class of submissions and he grouped the Facebook or Internet searches into a different category. Accordingly, he contended that nine illustrations existed illustrative of the way the reviewer denied the applicant procedural fairness.
The first of the country information instances appeared as particular 1(c) of the applicants grounds of application. That corresponded to paragraph 27.1 of Mr Hosking’s submissions. It was as follows –
“At page 14 (footnote 31) of the ITOA [CB 238], the Reviewer relied on country information from sources dated after 18 November 2014 to support the proposition that kidnapped victims have been used for ransom purposes. The Reviewer used that information to draw the inference that the video said to be of M’s kidnapping was not credible, as no ransom had been demanded for M. The Reviewer did not give the applicant the opportunity to comment on that information, or otherwise make the applicant aware that the issue of whether a ransom had been demanded for M was relevant”.[20]
[20] Above n 17, 27.1.
The second of the country information instances appeared as particular 1(d) of the applicant’s grounds of application. That corresponded to paragraph 27.2 of Mr Hosking’s submissions. It was as follows –
“At pages 15-16 (footnotes 34-39) of the ITOA [CB 239-240], the Reviewer relied on country information from sources dated after 18 November 2014 to support the proposition that the applicant would not be compelled to fight against Islamic State. The Reviewer specifically relied on information from sources dated after 18 November 2014 to reject the applicant’s account of an acquaintance who departed Iraq because he feared harm for not fighting against Islamic State (see page 16 (footnote 39) [CB 240]). The Reviewer did not give the applicant the opportunity to comment on that information, or inform the applicant that she had obtained that information”.[21]
[21] Above n 17, 27.2.
The third of the country information instances appeared as particular 1(e) of the applicant’s grounds of application that in turn corresponded to paragraph 27.3 of Mr Hosking’s submissions. It was as follows –
“At page 17 (footnote 41) of the ITOA [CB 241], the Reviewer relied on a DFAT Country Report for Iraq dated 13 February 2015 (DFAT Report) in support of the proposition that the adequacy of state protection is better in Southern Iraq, and to contradict country information relied on by the applicant’s representative in the submissions dated 18 November 2014 (see page 17 (footnote 40) [CB 241]). The Reviewer did not give the applicant the opportunity to comment on the information in the DFAT Report, or inform the applicant that she had obtained the DFAT Report”.[22]
[22] Above n 17, 27.3.
Ground 1(f) of the applicant’s grounds of application, corresponding to paragraph 27.4 of Mr Hosking submissions, pointed up the fourth instance of country information said to have been obtained after the ITOA hearing and in respect of which the applicant was not given an opportunity to comment. It was as follows –
“At page 25 (footnote 58) of the ITOA [CB 249], the Reviewer relied on the DFAT Report to support the proposition that Ba’ath Party members face a low risk of violence in Iraq, even though anti-Ba’ath sentiment remains high in southern Iraq. At page [CB 250], the Reviewer relied on this information to reject the applicant’s claim to fear harm on the basis of his father’s membership of the Ba’ath Party. The Reviewer did not give the applicant the opportunity to comment on the information, or inform the applicant that she had obtained the DFAT Report.”[23]
[23] Above n 17, 27.4.
Ground 1(g) of the applicant’s grounds of application, corresponding to paragraph 27.5 of Mr Hosking’s submissions, pointed up the fifth instance of country information said to have been obtained after the ITOA hearing and in respect of which the applicant was not given an opportunity to comment. It was as follows –
“At page 27 (footnote 67) of the ITOA [CB 251], the Reviewer relied on the DFAT Report to support the proposition that there is no evidence that Islamic State or other Sunni militias will target Al Muthanna province in the reasonably foreseeable future. The reviewer did not put to the applicant that Islamic State would not spread to southern Iraq, or otherwise give the applicant the opportunity to comment on the DFAT Report, or inform the applicant that she had obtained the DFAT Report.”[24]
[24] Above n 17, 27.5.
Ground 1(h) of the applicant’s grounds of application, corresponding to paragraph 27.6 of Mr Hosking’s submissions, pointed up the sixth instance of country information said to have been obtained after the ITOA hearing and in respect of which the applicant was not given an opportunity to comment. It was as follows –
“ At page 33 (footnote 82 and 84) of the ITOA [CB 257], the Reviewer relied on the DFAT Report to contradict country information relied on by the applicant’s representative in the submissions dated 18 November 2014 about the level of generalised violence in Iraq. The Reviewer did not give the applicant the opportunity to comment on the DFAT Report, or inform the applicant that she had obtained the DFAT Report.”[25]
[25] Above n 17, 27.6.
Then, three instances of Facebook or Internet searches that the applicant said were conducted after 18 November 2014 on which the reviewer relied to make adverse credibility findings were set out in particulars 1(a), 1(b) and 1(h) of the applicant’s grounds of application.
Ground 1(a), corresponding to Mr Hosking’s submissions at paragraph 28.1, was in the following terms –
“At page 10 of the ITOA [CB 234], the Reviewer relied on internet searches to reject the applicant’s claims about Adel’s political influence. The Reviewer did not give the applicant the opportunity to on the results of the search, or the way the search was conducted.”[26]
[26] Above n 17, 28.1.
Ground 1(b), corresponding to Mr Hosking’s submissions at paragraph 28.2, was in the following terms –
“At pages 11-12 of the ITOA [CB 235-236], the Reviewer relies on searches of the applicant’s Facebook accounts that the Reviewer conducted in September 2015 to reject the applicant’s claim that his mother had recently been threatened by Adel. The reviewer relied on the Google Translate function, and not on a translation by an accredited interpreter. The Reviewer did not give the applicant an opportunity to comment on the results of the searches, the way the searches were conducted, or the accuracy of the translation relied on by the Reviewer.”[27]
[27] Above n 17, 28.2.
Ground 1(h), corresponding to paragraph 28.3 of Mr Hosking’s submissions, was in the following terms –
“At page 29 of the ITOA [CB 253], the Reviewer relied on searches of the applicant’s Facebook account in rejecting the applicant’s claim to have converted to Christianity. The Reviewer did not give the applicant an opportunity to comment on the results of the searches, or on the way the searches were conducted.”[28]
[28] Above n 17, 28.3.
In his written submissions Mr Hosking said that it could not be seriously contended that in light of the denials of procedural fairness, in the exercise of my discretion I should refuse the relief the applicant seeks. Mr Hosking said that an applicant was entitled to the relief he sought where a breach of the rules of natural justice was established unless the court was persuaded that the breach could not possibly have affected the outcome, calling in aid authorities such as Minister for Immigration and Border Protection v WZARH,[29] Dagli v Ministerfor Immigration and Border Protection[30] and House v Defence Force Retirement and Death Benefits Authority.[31] Mr Hosking submitted that such a conclusion will be a rarity, as was held by Kirby J in Refugee Review Tribunal, Re;Ex parte Aala.[32]
[29] (2015) 256 CLR 326, 342–243.
[30] (2003) 133 FCR 541.
[31] (2011) 193 FCR 112, 121.
[32] (2000) 204 CLR 82, 130.
Uppermost in the applicant’s submission was his contention that the reviewer made a series of adverse findings premised on information on which the applicant had no opportunity to comment and in relation to which those findings were integral to the reviewer’s reasons for rejecting the applicants claim. The applicant said that such denial of procedural fairness might realistically have affected the outcome, as was mentioned in Dagli v Ministerfor Immigration and Border Protection.[33]
[33] (2003) 133 FCR 541.
Counsel for the minister relied on the High Court’s decision in Kioa v West[34] as the modern genesis of the content of the procedural fairness obligation. There, Brennan J held that an opportunity should be given to a person to deal with information that is adverse and credible and relevant and significant. Where information is not adverse or not credible or not relevant or not significant then no duty will arise to put that information to the potentially affected person for comment. So much was the upshot of the High Court’s observations in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs.[35]
[34] (1985) 159 CLR 550, 587
[35] (2005) 225 CLR 88.
Mr Petrie of counsel for the Minister brought to my attention the observations of the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[36] to the effect that the relevant material must constitute “information”, properly so called, before any procedural fairness obligation is engaged. The passage on which Mr Petrie relied was as follows –
“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision maker It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from the nature of the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. For statutory exception to the latter proposition see the pre-decision in question. For a statutory exception to the latter proposition see the pre-decision conference process provided for in the Trade Practices Act 1974 (Cth).”[37]
[36] (1994) 49 FCR 576
[37] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 577.
Mr Petrie also referred to the observations on this subject in SZQHH v Minister for Immigration and Citizenship[38] where the Full Court passed upon the use of a template to express reasons in generic terms. The plurality (Rares and Jagot JJ) cited the observations in VEAL[39] and the need for information to be credible, relevant and significant. To that, the plurality added the following –
“If the decision-maker determines that he or she has information that is, first, credible, relevant and significant and, secondly, apparently adverse to the interests of a person who will be affected by the decision, then ordinarily, procedural fairness requires that the decision-maker must give that person an opportunity to deal with the information. The person whose interests may be affected should be given the substance of the potentially adverse information, so that he or she may respond to it. However, in general, it is not necessary for the decision-maker to give the person whose interests may be affected a copy of any document containing the information or to identify its source: Applicant VEAL of 2002 at [15], [29"]”.[40]
[38] (2012) 200 FCR 223
[39] Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
[40] Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223, 27.
The substance of the credible, relevant and significant information that is available to the reviewer must be given to the applicant but not every piece of country information that the reviewer is considering must be given. In SZQHH v Minister for Immigration and Citizenship (2012) 200 FCR 223, the plurality put the matter in the following terms –
“However, the reviewer’s obligation of procedural fairness did not require the reviewer to put to the applicant every piece of country or other information that the reviewer was considering. Rather, procedural fairness required that the applicant be given the substance of the credible, relevant and significant information available to the reviewer on an issue in the review, of which the applicant was not already on notice. The purpose of giving a person in the position of the applicant the substance of such information is to enable him or her to have an opportunity to deal with its potentially adverse consequences by responding to the decision-maker on those consequences. That enables the decision-maker to take into account the person’s answer to the substance of information that has the potential of being used adversely to his or her interests. Affording the person an opportunity of dealing with some matter that he or she has not already had a chance to address in the process ensures that the process itself is fair”.
In paragraph 31, the plurality repeated that the decision-maker need not disclose more than the substance of the information.
Flick J wrote a separate judgment that stood at odds with the judgment of the plurality on this precise subject. Relevantly, at paragraph 70 of his Honour’s reasons, Flick J spoke of circumstances where the gist or substance of information had been previously given yet a denial of procedural fairness may nevertheless occur where a claimant had been denied the opportunity to make submissions regarding a certain document. To the extent that Flick J’s observations on this issue went beyond the broad and unspecific observations of the plurality concerning the disclosure of the substance of an issue, then to my mind Flick J’s observations were not in dissent but rather were observations of a deeper and searching character. I found them most illuminating and I propose to apply them to the facts of this case. They were recorded in several places between paragraph 66 and 71 of his Honour’s reasons. Let me set out immediately hereunder –
" This requirement that a person be given an opportunity to respond to material that is “credible, relevant and significant” has been the subject of further refinement in other decisions. It may thus be accepted that the rules of substance of matters that the reviewer knew of and considered may bear upon” the claims being made: cf Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [91], per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. The “precise detail of all matters” upon which a decision-maker intends to rely, accordingly, need not necessarily be disclosed: McVeigh v Wilarra Pty Ltd (1984) 6 FCR 587 at 600-601 per Toohey, Wilcox and Spender JJ. See also: Karina Fisheries Pty Ltd v Evans [1988] FCA 330; Aboriginal and Torres Strait Islander Corporations (2011) 279 ALR 138 at [34] (aff’d on appeal: Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2011) 195 FCR 318); Minister for immigration and Citizenship Maman [2012] FCAFC 13 at [37].
…
Even in circumstances where the substance or gist of information has been previously disclosed, a denial of procedural fairness may potentially arise where a claimant has been denied an opportunity to make submissions regarding a particular document which may contain no further or different information than that contained in other documents to which access has been granted. The requirements of procedural fairness may not be satisfied merely because an opportunity has been extended to make submissions in respect to the very same information which may be gleaned from a member of different sources. Common information may be found in a number of different sources. But the reliability, for example of each of those different sources may be open to question. A breach of the requirements of procedural fairness may arise where a claimant is denied an opportunity to make submissions regarding information contained within (for example) a more reliable source even though the very same information has been disclosed elsewhere in a less credible source.
An administrative decision-maker who, for example, discloses information contained in a document of questionable reliability may not discharge an obligation to act in a procedurally fair manner if he relies upon – but does not disclose to a claimant – a separate document of unquestionable reliability and credibility containing the very same information. A claimant, in such circumstances, may be afforded an opportunity to make submissions in respect to the information that has been disclosed. A claimant may be prepared to make a submission that such information should be rejected, either because it is (for example) unsubstantiated or from a questionable source. But the denial of procedural fairness may arise – not because a claimant is denied an opportunity to make submissions in respect to the very same information – but because he has been denied an opportunity to make meaningful submissions (for example) as to the reliability and credibility of the undisclosed document. He may be prepared to summarily dismiss or even scoff at information set forth in a highly questionable source; but questions may arise if he is denied an opportunity to make submissions directed to both the information and the reliability of such information that may be contained in an undisclosed but more reliable document.”[41]
[41] Minister for Immigration and Citizenship v SZQHH [(2012) 200 FCR 223, 66, 70-71.
It seemed to me that whether or not a denial of procedural fairness existed in the circumstances of this case depended on whether the information the applicant said was obtained subsequent to the hearing on 18 November 2014 was information the substance of which had been already disclosed to the applicant. If not, the question was whether the applicant was denied the opportunity to make submissions regarding particular documents by reason of the fact that the reliability of that document or those documents was different to the reliability of documents already disclosed.
To my mind, the nine illustrations of sources of information that emerged subsequent to the hearing and which were mentioned in grounds 1(a) to (h) of the grounds of review fitted into the category of information addressed by Flick J in paragraph 70 and 71 of his Honour’s reasons. That information may have differed in its reliability from the other information on which the review proceeded. It may have been information from a source that was of greater probative value than was other country information on which the applicant had relied. In my view, the reviewer should have, but failed to, give the applicant an opportunity to comment upon it.
So far as the Internet and Facebook searches were concerned, I agree that the reviewer did not need to expose his or her processes of mental cogitation or his or her provisional views. But I also agree that where –
“the Reviewer intended to rely on the results of the searches to make findings adverse to the Applicant, the Reviewer did have to put the Applicant on notice that the searches had been conducted, and tell the applicant what results they had returned. If the Applicant had notice of that information, he may have been able to explain why particular search results were in fact significant, or why the Reviewer’s search methodology was flawed. The Applicant was denied this opportunity, and that denial of an opportunity to advance his case amounted to a denial of procedural fairness.”[42]
[42] ‘Applicant’s Supplementary Submissions’, 22 December 2017, at 28.3.
It seemed to me that on all of the nine grounds advanced by the applicant, the reviewer fell into jurisdictional error by failing to give the applicant an opportunity to comment on the information that was obtained subsequent to the hearing.
For those reasons I declare the international treaties obligation assessment made in respect of the applicant on 14 October 2015 was not made in accordance with law. I also order the minister to pay the applicant’s costs.
Finally, I wish to record my gratitude to both counsel in this case for the extremely high quality written and oral submissions, all being of a first-class standard.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 28 March 2018
Corrections
On the coversheet, the Hearing Date and Date of Last Submission changed from ‘5 December 2018’ to ‘5 December 2017’
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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