Ahf18 v Minister for Immigration
[2018] FCCA 1458
•18 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHF18 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1458 |
| Catchwords: ADMINISTRATIVE LAW – Whether the IAA has a duty to provide to a referred applicant information supplied to it by the Minister for Home Affairs for the purposes of its review – whether the IAA has power to provide to a referred applicant information supplied to it by the Minister for Home Affairs for the purposes of its review. |
| Legislation: Migration Act 1958, ss.5J, 36, 473BA, 473DA, 473DE, 473FA, 474 Acts Interpretation Act 1901, s.13 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Kioa v West (1985) 159 CLR 550 |
| Applicant: | AHF18 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 155 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 29 May 2018 |
| Date of Last Submission: | 29 May 2018 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R. Turner of Turner Coulson Immigration Lawyers |
| Counsel for the First Respondent: | Mr B. Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 155 of 2018
| AHF18 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The applicant is a citizen of Nigeria who first arrived in Australia on 18 September 2000.On 21 September 2017 he lodged an application for a protection visa that is the subject of this proceeding with what is now the Department of Home Affairs (“Department”), alleging that he feared persecution in Nigeria because of a debt he owed to a Nigerian man he met in Australia. On 7 November 2017 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The matter was then referred to the Immigration Assessment Authority (“IAA”) for a review of that departmental decision. The applicant was unsuccessful before the IAA and has applied to this Court for judicial review of the IAA’s decision.
In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
BACKGROUND FACTS
Applicant’s immigration history
The applicant’s immigration history was set out by the IAA in its decision record. The IAA’s summary made reference to details contained in a previous decision of the Refugee Review Tribunal (“RRT”) dated 4 December 2013 and revealed the following events:
a)the applicant first applied for a protection visa on 26 October 2000 on the basis that he feared persecution in Nigeria on the basis of his religion. His application was refused by a delegate of the Minister on 28 February 2001 and he applied to the RRT for a review of that decision;
b)on 19 November 2002 he withdrew his review application in circumstances where, on 29 January 2002, he had been granted a Subclass 820 (Spouse) visa;
c)on 12 December 2012 his subclass 820 visa was cancelled after he was convicted in Australia of drug trafficking offences; and
d)he made a second protection visa application in which he claimed to fear harm in Nigeria for a number of reasons not advanced in the application the subject of this proceeding. The second protection visa application was refused by a delegate of the Minister and the Minister’s decision was affirmed by the RRT in December 2013.
On 21 September 2017 the applicant lodged the visa application which is the subject of this proceeding. The IAA noted that, with the exception of the earlier decision of the RRT, material relating to the applicant’s two earlier applications was not included in the review material before it on the basis that the delegate had considered that material to not be relevant and had not relied on it.
Protection visa claims
In its decision the IAA summarised the facts alleged in support of the applicant’s claim for protection as stated in his most recent application and at an interview he had with the delegate. As summarised by the IAA, the applicant made the following claims:
a)while he was in immigration detention, the applicant agreed to assist a Nigerian man “E” to transfer five hundred thousand dollars to Nigeria, through an associate of the applicant whose friend operated a money transfer business, in exchange for payment of the applicant’s legal fees. The applicant arranged for the money to be delivered to his de facto partner “M” who left the money with her friend “K”;
b)for various reasons the applicant was unable to transfer the money and was unable to contact E to explain what had happened;
c)in 2015, E, who had been looking for the applicant in relation to the money, sent two men to Nigeria to threaten the applicant’s mother after learning of her address through the Nigerian community in Sydney. The two men informed the applicant’s mother that the applicant would be killed if he did not repay the money. They also told her that they were aware, as a result of a departmental data breach involving the applicant’s personal information, that the applicant had been in immigration detention at the relevant time. This was later confirmed to the applicant by E directly;
d)the applicant later discovered that the money had been stolen from K’s house. When E learned of this he organised for the applicant to be assaulted in prison. The applicant’s de factor partner M sought to retrieve the money from K which led to M being charged with “demand money with menace”;
e)the applicant’s life would be in danger if he returned to Nigeria as E was demanding repayment of his money with interest; and
f)the applicant had a number of children born in Australia who would suffer harm by way of separation from him if he were to return to Nigeria.
The applicant provided the following documents in support of his claims
a)a copy of M’s police record of interview and a transcript of her trial in the NSW District Court in June 2017; and
b)an affidavit of his cousin sworn on 28 October 2017 in the High Court of Lagos and a police transcript relating to a complaint the applicant’s mother made to police that people had come from Australia to threaten her about money owed by her son.
Application to the IAA for documents
The applicant’s application commencing this proceeding referred to a request issued by the applicant’s representatives to the IAA for documents. The relevant events in relation to this claim were set out by the Minister in his written submissions in the following terms:
11.…on 28 November 2017, the applicant’s representative requested documents from the Authority. The applicant’s request is not in evidence in these proceedings. However, there is a record of that request having been made in an email from the Authority to the applicant’s representative on 5 December 2017. That email also records the fact that, on 29 November 2017, an officer in the Authority called the applicant’s representative to notify him that the Authority can release only the following documents “administratively outside of the Freedom of Information Act”:
· the applicant’s protection visa application;
· the applicant’s protection visa interview recording;
· the delegate’s decision record and the letter addressed to the applicant notifying him of the decision.
12.The documents referred to immediately above were released to the applicant on 5 December 2017. (References omitted)
The IAA’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the IAA found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act.
The IAA considered the applicant’s claims completely lacking in credibility, noting that they contained internal inconsistencies, were inherently implausible and inconsistent with, or not supported by, other versions of the facts he had provided. In this regard the IAA made the following observation:
This is a case where it is almost impossible to tell where the truth lies. It is apparent from the RRT decision, and from the delegate’s decision, that the applicant’s claims have changed over time in significant respects. I consider that the applicant has demonstrated himself, in the course of his dealings with the Department over more than fifteen years, to be prepared to provide untruthful information if he thinks it will be to his advantage. I consider that none of the applicant’s claims should be accepted.
For the following reasons the IAA did not accept that the applicant was at risk of harm in Nigeria from E:
a)the IAA considered it quite implausible that E would have arranged for $500,000 in cash to be transferred overseas in such an informal manner, involving as it did a friend of a friend of the applicant, if, as the latter alleged, E was a businessman with a legitimate import-export business;
b)the IAA noted that the applicant’s claims about E were different from his claims in his protection visa application that he feared harm from criminal cartels in Nigeria;
c)the IAA did not accept, given the applicant’s claim that “everybody knows everybody” in the Nigerian community in Sydney, that E would not have been aware that the applicant was in detention or that it would have been easier for E to locate the applicant’s mother in Nigeria than to locate the applicant or his partner in Australia;
d)the IAA did not accept that the applicant’s mother was threatened with harm or that she was told that the applicant would be harmed if he did not repay the money. The IAA was of the view that the “overwhelming credibility issues with the applicant personally and with his claims as a whole” could not be overcome by an affidavit sworn in Nigeria by a person who claimed to be the applicant’s cousin. The IAA expressed similar concerns about the purported police record of the applicant’s mother’s complaint and gave it no weight as corroboration of the claimed events. The IAA further noted that, according to the RRT’s decision, the applicant had claimed in his first protection visa application that his mother was dead and had made various claims about her in subsequent applications;
e)the IAA found that the applicant had concocted his claims about the data breach to strengthen his case. In particular, the idea that E and the people who had threatened the applicant’s mother would mention the data breach specifically was, in the IAA’s view, “utterly implausible and self-serving”; and
f)the IAA considered the documentary evidence provided by the applicant to be of little assistance. In this regard the IAA found that there was no credible evidence before it to establish a connection between the money and the applicant, the source of the money, the circumstances in which the money disappeared, if it disappeared at all, or to indicate that the applicant was in any way responsible for the missing money or that the owner would blame the applicant for its disappearance.
The IAA was not satisfied that any suffering caused to the applicant’s children by separation from the applicant, or the separation itself would:
a)constitute serious harm to the applicant and be for any of the reasons specified in s.5J(1)(a) of the Act; or
b)constitute significant harm for the purposes of s.36(2)(aa) of the Act.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding the applicant alleged:
1.The decision was unreasonable.
Particulars
a.On 28 November 2017, the Applicant requested that the Second Respondent IAA to provide him with copies of all documents before the Immigration Assessment Authority (IAA) and give him sufficient time to consider the documents before making a decision.
b.On 20 December 2017, the IAA made a decision without providing the Applicant with all the documents before it.
2.The IAA failed to carry out its statutory duty.
Particulars
a.The Tribunal was required by the Migration Act 1958 s.473BA to provide a review which is efficient, quick and free from bias.
b.By failing to provide all the documents before it to the Applicant, the IAA failed to carry out this duty.
Evidence
In addition to the Court Book of relevant documents, admitted into evidence was:
a)a copy of the applicant’s solicitors’ written request of the IAA to provide them with “copies of all documents before the IAA in this matter”; and
b)a file note of a conversation between the applicant’s solicitor and an officer of the IAA in which the request for documents was discussed:
… I informed him [the applicant’s solicitor] that we can only provide certain documents outside of FOI [freedom of information] means, mostly the PV application, PV interview recording, DIBP decision and notification. I advised if he requires access to other DIBP material he will need to pursue through FOI means to the DIBP. He understood. …
The applicant also tendered a copy of the FOI request his solicitor made on 5 December 2017 and a copy of the determination concerning that request. Those documents, which it was conceded had not been before the IAA, were admitted subject to a finding on relevance. In the result the documents are not relevant to the matters in issue. Consequently, regard has not been had to them other than to determine their admissibility and their tender is rejected.
Consideration
The essence of the applicant’s complaint was that although he had asked for all the documents before the IAA, he was not given all of them and, in particular, not copies of the RRT decision cited by the IAA and the documents referred to above at [7]. He contended that this was a failure which caused the IAA’s decision to be affected by jurisdictional error for the two reasons advanced in his application.
Ground 1 – Unreasonableness
Contentions
The applicant argued that no intelligible justification for the IAA’s withholding of the documents in question was apparent and that, in those circumstances, the failure to provide those documents represented an unreasonable exercise of discretion causing the ultimate decision on the review to be affected by jurisdictional error. The Minister argued that the IAA had no duty to supply an applicant with documents and so the question of a miscarriage of discretion did not arise.
The applicant’s contention was quite undeveloped, did not point to any express power given to the IAA to release documents and did not seek to identify why the existence of such a power would necessarily be incidental to the exercise of the powers which have expressly been granted to the IAA. The closest the applicant came to the issue was his submission in addresses that applicants should not be expected to fight “with one hand tied behind their back” for want of a full understanding of the information in the IAA’s possession. This point was advanced in the context of the allegation concerning s.473BA but is relevant to this allegation as well.
The issues before the Court were not limited to whether the IAA had a duty to provide the applicant with the requested documents. The matter also raised a question whether the IAA had power to provide those documents and whether any miscarriage of discretion attached to its failure to exercise such a power in the manner sought by the applicant. The Minister submitted that no such power existed, explicitly or implicitly.
Duty
The obligation to supply information so that a party may make informed submissions to a decision-maker is something which common law natural justice imposes on decision-makers: Kioa v West (1985) 159 CLR 550 at 628-629. However, apart from what is provided by pt.7AA of the Act, the common law natural justice hearing rule has been wholly abrogated in the context of IAA reviews by s.473DA(1) of the Act which provides:
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
The only exception to that abrogation of common law rights concerns the situation where the IAA has come into possession of information which was not before the delegate who made the primary decision: s.473DE. That was not the situation here. The terms of the applicant’s request of the IAA make it clear that the documents he sought were ones which had been before the delegate. It is worth noting in that regard that a note to s.473DE states:
Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Section 473DA(2) provides:
473DA Exhaustive statement of natural justice hearing rule
…
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Although, by virtue of s.13(3)(a) of Acts Interpretation Act 1901, a note of the sort just quoted is not part of an Act, it does nevertheless give a fairly clear view of the drafter’s intention for the provision in question. It is also a construction which reflects the broader context of div.3 of pt.7AA of the Act which governs the conduct of IAA reviews and, in particular, subdiv.A of div.3 of pt.7AA which prescribes the IAA’s natural justice obligations when conducting a review. Certainly s.473DA(2) is not an exception to s.473DA(1).
I agree with the Minister that the IAA did not have a duty to give the requested documents to the applicant. The relevant requirements of the rules of natural justice were excluded and no statutory duty had been created in their place.
Power
However, the fact that the IAA is not obliged to do something does not necessarily mean that it may not do that thing.
The IAA has power to do what the Act expressly authorises it to do and whatever “may fairly be regarded as incidental to, or consequential upon, those things,” although a narrow approach should not be taken when considering the existence of incidental power: Attorney-General v Great Eastern Railway Co (1880) 5 App. Cas. 473 at 478; R v Gough; Australasian Meat Industry Employees’ Union (1965) 114 CLR 394; Dunkel v Commissioner of Taxation (1990) 27 FCR 524; Johns v Connor (1992) 35 FCR 1; Transport Workers’ Union of NSW v Australian Industrial Relations Commission (2008) 166 FCR 108.
Importantly for this case, pt.7AA contains no express statutory constraint upon a party’s ability to participate in the IAA review process by way of making submissions and no such constraint necessarily is to be implied: Minister for Immigration & Border Protection v CLV16 [2018] FCAFC 80 at [92]. Of particular, present significance is the Full Court of the Federal Court’s statement at [91] of its reasons in that case that:
Section 473DA in Pt 7AA of the Migration Act severely constrains the procedural protections which the common law may otherwise have afforded a participant in the fast track review process undertaken by the Authority. But no construction of Pt 7AA should be countenanced which further constrains the ability of a visa applicant to make submissions as to the consequences flowing from such factual material as was before the delegate or the ability to seek to have the Authority exercise its power under s.473DD to consider “new information”. (Emphasis added)
The IAA’s obligation to allow an applicant the opportunity to make submissions to it is an aspect of the IAA’s duty to conduct a procedurally fair review of the delegate’s decision, albeit that the scope of procedural fairness is quite circumscribed in the context of IAA reviews. Incidental to that duty to conduct a procedurally fair review is a power in the IAA to provide an applicant, at his or her request, with information which is in its possession and which may be taken into account when reaching a decision on the review. The existence of such a power is necessarily incidental to the duty to conduct a procedurally fair review because its exercise may be required in particular cases so that an applicant’s exercise of the right to make a submission can be meaningful and not just an empty gesture.
The possibility, adverted to by the Minister in his address, that to find that such a power exists might expose the IAA to a duty on occasion to use it because to not do so would be unreasonable, does not compel a different conclusion.
Section 473DA(2) also does not require a different conclusion. Read in context, s.473DA(2) only provides that nothing in pt.7AA requires the IAA, as a matter of natural justice, to provide an applicant with material which had been before the delegate. It says nothing about whether the IAA nevertheless has power to provide such documents in certain circumstances. As the plurality of the High Court said of an analogous situation in Plaintiff M174 of 2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481:
In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably. (at 488 [26])
I therefore find that the IAA did have power to provide the applicant with the documents he sought because they may have contained information which he needed so that his exercise of the right to make a submission would be meaningful.
It might be noted that submissions were not addressed to whether the Freedom of Information Act 1982 (“FOI Act”) might have had some relevance to the question whether the IAA had power to provide the applicant with the documents he sought.
Exercise of discretion
I have found that the IAA did have power to provide the applicant with the documents he sought. The question then is: did the IAA’s exercise of the discretionary power to release documents miscarry when it decided what documents it would release in response to the applicant’s request?
The applicant’s solicitors’ letter to the IAA requesting “copies of all documents before the IAA in this matter” argued that:
An efficient, quick and free from bias review can only be achieved if an applicant is in a position to articulate his case before the Authority which in turn is facilitated by the Applicant knowing what all of the information being considered by the IAA is.
The letter went on to say:
I, therefore, request that the IAA provides the documents requested as soon as possible and provide sufficient time for us to consider the material and make submissions prior to a decision being made.
The IAA replied by email:
… I refer to your request for documents dated 28 November 2017. As noted in the phone call to you of 29 November 2017, the IAA can release the following documents to [you] administratively outside of the Freedom of Information Act:
- Protection Visa Application
- Protection Visa Interview Recording
- DIBP Refusal Notification and
- DIBP Decision Record …
As recorded earlier, a file note of the conversation referred to in the IAA’s reply email recorded that:
I informed [the applicant’s solicitor] that we can only provide certain documents outside of FOI means, mostly the PV application, PV interview recording, DIBP decision and notification. I advised if he requires access to other DIBP material he will need to pursue through FOI means to the DIBP. He understood. …
The IAA’s telephone discussion and reply email evidenced its understanding that it had power to release documents to the applicant. The reply email discloses that the IAA believed that the FOI Act prevented it from releasing more than the documents referred to in that email. It has not been demonstrated that that conclusion was incorrect and it appears that it was the sole basis on which the IAA refused to release additional documents. That is to say, it has not been demonstrated by the applicant, who bore the onus of proof, that the IAA’s refusal to release more documents than it did release was mistaken because it misunderstood the operation of the FOI Act or that a refusal for the reasons given amounted to a miscarriage of discretion.
Ground 2 – breach of s.473BA
Section 473BA of the Act provides:
473BA Simplified outline of this Part
… In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review). …
Perhaps more relevantly, s.473FA(1) provides:
473FA How Immigration Assessment Authority is to exercise its functions
(1)The Immigration Assessment Authority, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
The applicant submitted that it would not be an efficient review if an applicant was denied access to all the information before the IAA. The applicant further submitted that it would be reasonable to infer from the IAA’s denial to him of access to such material that nothing he could say or do would “dissuade it from the view it had decided to take”.
The allegation involves a misconception of the nature and function of the relevant provision(s). Provisions such as s.473FA, and its summary in s.473BA, are exhortative in nature and create no ground for judicial review: Sun Zhan Qui v Minister for Immigration & Ethnic Affairs [1997] FCA 324 at [80]; Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 635 [77], 642-643 [108], 659 [158]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 342-343 [12], 359 [53]. Any perceived failure by the IAA to comply with the exhortations in ss.473BA and 473FA therefore does not ground a finding of jurisdictional error.
CONCLUSION
Jurisdictional error on the part of the IAA has not been demonstrated
Consequently, the application will be dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 18 June 2018
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