AKD16 v Minister for Immigration & Anor
[2016] FCCA 3026
•24 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKD16 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 3026 |
| Catchwords: WITNESS ASSESSMENT – Hard-swearing case – whether person making the relevant decision needs to see and hear the witness before making adverse credibility findings – application of Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326. PROTECTION VISA – Need to put to the applicant precise details of country information. ILLOGICALITY – Review of authorities – whether open on the facts. LEGAL UNREASONABLENESS – Whether applicable. |
| Legislation: Migration Act 1958 (Cth), ss.36, 159A, 189 |
| Cases cited: Abalos v Australian Postal Commission (1990) 171 CLR 167 WZARH v Minister for Immigration and Border Protection [2014] FCAFC 137 |
| Applicant: | AKD16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | GREG VAN DAM |
| File Number: | MLG 332 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 1 August 2016 & 6 September 2016 |
| Date of Last Submission: | 15 September 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.W.K. Burnside QC with Ms L. Kirwan |
| Solicitors for the Applicant: | Ward Keller |
| Counsel for the First Respondent: | Mr N. Wood on 1 August 2016 Mr G. Hill on 6 September 2016 |
| Solicitors for the First Respondent: | Australian Government Solicitor |
THE COURT DECLARES THAT:
The report and recommendation of Mr Van Dam dated 17 September 2015 were not made according to law.
THE COURT ORDERS THAT:
The Minister for Immigration and Border Protection whether by himself, his departmental officers, delegates or agents are restrained by injunction from relying upon Mr Van Dam’s report and recommendation dated 17 September 2015.
The Minister pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 332 of 2016
| AKD16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| GREG VAN DAM |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Among the many issues raised in this case was an important point of principle. The person who conducted the relevant Tribunal interview reached credibility findings adverse to the applicant yet the person who made the decision under review was neither the person who conducted the interview nor the person who heard the evidence in the case.
The question is whether the decision-maker’s decision can stand.
Synopsis
For the reasons that follow, the decision-maker’s decision cannot stand. I set aside the relevant recommendation.
Relevant factual setting
The chronological setting of this application is long. Some of it, but not all of it, has been traced by the Honourable Justice Mansfield in DZAFF v Minister for Immigration and Border Protection[1] when his Honour heard an appeal in an earlier application. In this proceeding the applicant was allocated a different pseudonym.
[1] [2015] FCA 569.
Lengthy as it may be to recite the chronological setting of this application, doing so puts this present review into sharp focus. Let me begin.
On 29 May 2010 the applicant was taken to Christmas Island after Australian officials intercepted the ship on which he was travelling.
He was detained under s.189(3) of the Migration Act 1958 (Cth)
(“the Act”).
On 1 July 2010 the applicant participated in an entry interview.
On 6 August 2010 the applicant lodged a request for refugee status assessment with the Department of Immigration and Citizenship as it then was (“the Department”) and on 9 August 2010 a departmental officer interviewed the applicant.
On 1 December 2010 the upshot of the applicant’s refugee status assessment was determined, adversely to the applicant. The applicant was found to not have met the definition of a refugee and he was not someone to whom Australia owed protection obligations.[2]
[2] Court Book filed 6 April 2016 at pp.129-133.
The applicant sought an independent merits review.[3]
[3] Court Book filed 6 April 2016 at pp.134-137.
On 5 July 2011 an independent merits review found that the applicant did not meet the criterion for a protection visa under s.36(2)(a) of the Act and recommended that the applicant not be recognised as a person to whom Australia had protection obligations.[4]
[4] Court Book filed 6 April 2016 at pp.148-170.
Mr Burnside, one of her Majesty’s Counsel who appeared with
Ms Kirwan of counsel, informed me that on 17 November 2011,
the applicant filed an application for judicial review in relation to the independent merits review. However, the Minister referred the case for a second independent merits review prior to the application for judicial review being heard.
On 8 March 2012 a Ministerial intervention request under s.159A of the Act was initiated.
On 27 March 2012 the Minister intervened and granted the applicant a subclass UJ449 (temporary humanitarian stay) visa.
Subsequently, the applicant was granted a series of bridging visas with the result that he was released from detention.
On 23 August 2012 the decision in the second independent merits review was handed down finding that the applicant did not meet the criteria for a Protection (Class XA) visa and recommending that the applicant was not recognised as a person to whom Australia had protection obligations.[5]
[5] Court Book filed 6 April 2016 at pp.184-209.
On 20 December 2014, the applicant sought judicial review of the second independent merits review. That was heard in this Court.[6]
His Honour Judge Burchardt dismissed the application for judicial review. On subsequent appeal, the Honourable Justice Mansfield in the Federal Court of Australia allowed the appeal on 11 June 2015[7] with the result that the orders made by his Honour Judge Burchardt were set aside.
[6] DZAFF v Minister for Immigration and Border Protection [2015] FCCA 544.
[7] DZAFF v Minister for Immigration and Border Protection [2015] FCA 569.
Following a review of the applicant’s circumstances conducted during 2014, the applicant’s last bridging visa E ceased effective operation in August 2014 at which time he was re-detained under s.189(3) of the Act.
In June 2015, the applicant was notified that a reconsideration of his protection claims would be undertaken. He was interviewed on
27 July 2015.
On 17 September 2015 Mr Greg Van Dam, who conducted the protection obligations evaluation, notified his decision determining that the claimant was not a person in respect of whom Australia had protection obligations. He supplied a 24-page document entitled “Protection Obligations Evaluation Outcome”.[8]
[8] Court Book filed 6 April 2016 at pp.298-322.
Application to this Court
By application filed 23 February 2016, the applicant sought judicial review of the decision of Mr Van Dam made 17 September 2015.
In that application, the applicant sought the following relief –
a)a declaration that the report and recommendation of Mr Van Dam dated 17 September 2015 were not made according to law; and
b)an injunction restraining the Minister for Immigration and Border Protection (“the Minister”) whether by himself, his departmental officers, delegates or agents from relying upon Mr Van Dam’s report and recommendation.[9]
[9] Application filed 23 February 2016 at p.3.
The applicant relied on 11 grounds of review. It is as well to set them out verbatim –
1.There was a denial of procedural fairness in that the Applicant was denied the opportunity to advance his case afforded by an interview with the person who actually made the recommendation to the First Respondent, namely the
Second Respondent, and the opportunity was denied without the Applicant being heard on the question as to whether that should occur as outlined in the affidavit of
Kevin Kadirgamar sworn 19 February 2016.
2.There was a denial of procedural fairness when the
Second Respondent made findings about the Applicant’s testimony to the person who conducted the interview when the Second Respondent was not present to observe that interview.
3.There was a denial of procedural fairness when the
Second Respondent made findings that the Applicant’s claims were not credible based upon an interview conducted by a person other than the Second Respondent who was not present to observe that interview.
4.The Second Respondent took into account irrelevant considerations and/or asked the wrong question, by considering and taking into account matters arising during the Applicant’s second Independent Merits Review in respect of which the Federal Court of Australia found the Applicant had been denied procedural fairness, and thereby committed an error of law.
5.There was a denial of procedural fairness by reason of the fact that the Applicant was denied the opportunity to comment or make submissions upon information pertaining to the treatment of asylum seeks (sic) returned to Iran, which information was adverse to him and which had not previously been put to him in the course of earlier interviews, concerning whether he is a person to whom Australia owed protection obligations or at all.
6.The Second Respondent erred by failing to take into account relevant considerations, namely each of the matters referred to in the letter from the Applicant’s solicitor to Anne Shields of the Department of Immigration and Border Protection dated 14 August 2015.
7.The decision of the Second Respondent is illogical, irrational, unreasonable and/or failed to take into account relevant evidence insofar as the Second Respondent found that the number and nature of “inconsistencies” could not be explained away by the reasons given by the claimant or his agent when in fact they were capable of explanation and plausible and credible explanations had been given.
8.The decision of the Second Respondent is illogical, irrational, unreasonable and/or failed to take into account relevant evidence insofar as the Second Respondent rejected the Applicant’s claim that he will be identified upon return to Iran by media articles and judgments because the
Second Respondent found that his claim about having a sexual relationship with a woman who was related to basij members was not credible.
9.There was a denial of procedural fairness by the
Second Respondent failing to provide the Applicant an opportunity to comment upon the reasons why he considered it was purely speculation upon the Applicant’s part that he could be identified upon return to Iran from court judgments and media articles published in Australia and that he would thereby suffer serious harm.
10.In relation to the Second Respondent’s finding that it was implausible a young Iranian woman from a conservative family would agree to have sex with the Applicant, there was no evidence for the finding and/or the finding was no more than speculation and/or the Second Respondent took into irrelevant considerations (sic) in reaching the finding and in doing so committed an error or errors of law.
11.The decision of the Second Respondent is illogical, irrational, unreasonable and/or failed to take into account relevant evidence insofar as the Second Respondent found the Applicant had given no adequate explanation as to how the Iranian woman’s brothers discovered his relationship with her, when plainly such matters could not reasonably be expected to be within his knowledge.[10]
[10] Application filed 23 February 2016 at pp.3-4.
The Minister responded to the applicant’s application to this Court by contending that the recommendation under review was not affected by legal error.[11]
[11] Response – General Federal Law filed 29 February 2016.
The 11 grounds of review advanced by the applicant were grouped by Mr Burnside QC and Ms Kirwan into seven categories.
Those categories were as follows –
a)grounds 1 – 3: denial of procedural fairness;
b)ground 4: error of law – second respondent taking into account findings in the earlier recommendation that were made in error of law;
c)ground 5: denial of procedural fairness – failure to put new country information to the applicant;
d)grounds 6 and 7: error of law – second respondent failed to consider matters referred to in the letter from the applicant’s solicitors dated 14 August 2015;[12]
e)grounds 8 and 9: illogical, irrational and unreasonable – claim that the applicant will be identified in Iran by media reports rejected because applicant not believed about sexual relationship, “purely speculative”;[13]
f)ground 10: no evidence for finding that it was implausible that a young Iranian woman from a conservative family would agree to have sex with the applicant; and
g)ground 11: illogical, irrational, unreasonable – finding that the applicant had been given no adequate explanation as to how the Iranian woman’s brothers discovered his relationship.
[12] Court Book filed 6 April 2016 at pp.283-289.
[13] Applicant’s Outline of Submissions filed 10 May 2016 at [44].
Mr Burnside QC divided his verbal submissions before me so that –
a)the mainstay of the applicant’s verbal submissions before me were devoted to errors associated with the hearing having been conducted before one person (Ms Shields) yet another person who did not hear the case (Mr Van Dam) made the relevant decision, adverse to the applicant; and
b)all other grounds were developed mainly in written submissions.[14]
[14] Applicant’s Outline of Submissions filed 10 May 2016 and Applicant’s Submissions in Reply filed 15 September 2016.
In support of this application for judicial review, the applicant relied on affidavits sworn by his solicitor, Mr Kevin Joseph Kadirgamar of
Ward Keller, Northern Territory.[15] Mr Kadirgamar represented the applicant as the applicant’s migration agent in the protection obligations evaluation process in 2015. Mr Kadirgamar deposed to the events surrounding the applicant’s interview held on 27 July 2015 at the Villawood Immigration Detention Centre in Sydney at which the interview officer was a woman whose name was Anne Shields.
Mr Kadirgamar swore that at the interview Ms Shields said words to the effect that there was a possibility the person making the decision in relation to the protection obligations evaluation may not be Ms Shields. Mr Kadirgamar deposed that Ms Shields did not say that she would definitely not make the decision herself.
[15] Affidavits of Kevin Joseph Kadirgamar sworn 19 February 2016 and 29 July 2016.
It was common cause in this case that Ms Shields conducted the relevant protection obligation evaluation interview on 27 July 2015 and that Mr Van Dam, a person not involved in that interview, made the relevant decision.
Mr Kadirgamar swore in his affidavit sworn 19 February 2016 that at the interview Ms Shields put a number of matters to the applicant in relation to perceived or purported inconsistencies in the applicant’s previous statements and interviews.
Significantly, Mr Kadirgamar swore that at the end of the interview –
a)Ms Shields told Mr Kadirgamar that he had the opportunity to make oral submissions in relation to the applicant’s case, in response to which Mr Kadirgamar referred to alleged inconsistencies;
b)
Ms Shields told Mr Kadirgamar it would be better if
Mr Kadirgamar made written submissions instead; and
c)Ms Shields told Mr Kadirgamar to provide written submissions within two weeks of the interview.
The identity of Mr Van Dam emerged from an email from Ms Shields to Mr Kadirgamar dated 11 August 2015.[16] In that email,
Ms Shields informed Mr Kadirgamar that an extension of time until
14 August 2015 for the filing of the applicant’s written submissions was agreed. Ms Shields then wrote –
However, due to this delay and my own forthcoming leave, I will be transferring the case to my colleague Greg Van Dam, who I have copied into this message.[17]
[16] Affidavit of Kevin Joseph Kadirgamar sworn 19 February 2016 at Annexure “KJK2”.
[17] Ibid.
The applicant’s submissions prepared by Mr Kadirgamar and dated
14 August 2015 were addressed to Ms Shields, despite her email indicating the transfer of the case to Mr Van Dam.
Grounds 1, 2 and 3
At a temporal level, on and from 11 August 2015 Mr Van Dam’s role in this case was first known. His role was to operate on a date prospectively from 11 August 2015. Ms Shields seems to have envisaged that Mr Van Dam would receive the transfer of the case from Ms Shields, hence her phrase “I will be transferring the case”[18] as
Ms Shields wrote in her 11 August 2015 email.
[18] Affidavit of Kevin Joseph Kadirgamar sworn 19 February 2016 at Annexure “KJK2”.
The applicant complained in paragraph 10 of his written submissions filed 10 May 2016 that he was not told that someone other than
Ms Shields would complete the reassessment process, that he was not told that was even proposed or that it was even likely to occur.
In debate before me, Mr Burnside QC developed arguments that –
a)
the applicant had given detailed responses to searching matters put to him by Ms Shields during the interview held on
27 July 2015 so as to enable Ms Shields to assess the information he proffered;
b)after the applicant participated in the interview before Ms Shields, she announced without notice on 11 August 2015 that she was to go on leave and that the applicant’s case was to be transferred to Mr Van Dam;
c)at no time was the applicant invited to comment on the desirability of Mr Van Dam, a person who had not conducted the interview on 27 July 2015, taking over from Ms Shields and determining the protection obligation evaluation; and
d)at no time was the applicant offered an opportunity to attend an interview with Mr Van Dam, being the person who was to determine the protection obligations evaluation once Ms Shields went on leave.
For the moment, I am leaving to one side the consequence of
Ms Shields having reached conclusions on credit in relation to the information given by the applicant. I have addressed that in the passages below.
Mr Burnside QC and Ms Kirwan directed their submissions to the concept that the applicant was not given an opportunity to comment on whether it was appropriate for another departmental officer to finalise the reassessment process.
They submitted before me that the email from Ms Shields dated
11 August 2015 did not say, in terms, that Mr Van Dam would be making the decision.
Mr Burnside QC and Ms Kirwan relied very heavily on the observations of the High Court of Australia in Minister for Immigration and Border Protection v WZARH[19] (“WZARH”). Before turning to the salient principles for which that decision stands, the timing of the handing down of the decision in that case is important in the chronological setting of this case. Let me explain.
[19] (2015) 256 CLR 326.
By the time Ms Shields conducted the protection obligations evaluation interview on 27 July 2015, the then most recent binding authority relevant to the obligation of procedural fairness to be exercised by an independent merits reviewer was the decision of the Full Court of the Federal Court of Australia in WZARH v Minister for Immigration and Border Protection,[20] judgment in which was handed down on
20 October 2014. In that case, the Full Court of the Federal Court of Australia (Flick, Nicholas and Gleeson JJ) declared that the decision of the independent merits reviewer was arrived at in breach of the rules of procedural fairness. The facts of the case bear close examination.
[20] [2014] FCAFC 137.
In debate before me on 6 September 2016, Mr Hill of counsel for the Minister submitted that the Full Court’s decision did repay study, although Mr Hill cautioned against my examining the joint judgment of Flick and Gleeson JJ and he recommended that I focus on the judgment of Nicholas J.
The applicant WZARH was interviewed by the independent merits reviewer in January 2012. The independent merits reviewer then became unavailable and a different independent merits reviewer became involved following which, in May 2012, WZARH addressed further submissions to the Department. In July 2012, the second independent merits reviewer found that WZARH was not a person who met the criteria for a Protection (Class XA) visa. At the heart of WZARH’s case was his contention that he had been denied procedural fairness by reason of the fact that he had not been given an opportunity to be heard by the second independent merits reviewer who made the July 2012 recommendation.
In the Full Court, Flick and Gleeson JJ recognised that rules of natural justice or procedural fairness do not universally require an oral hearing before an administrative decision is made. The rationale underpinning the absence of any such universal rule was given by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte T,[21] namely that the imposition of such a universal rule would unnecessarily inflict inflexibility and significant economic costs. However, Flick and Gleeson JJ held that an oral hearing may be required where credibility findings are centrally relevant to the findings to be made and where a claimant may be disadvantaged if an oral hearing were not held. From their Honours’ review of the authorities between [9] and [14] it must be acknowledged that all applicants for refugee status need not necessarily be given an oral hearing in all circumstances. Even the fact of credibility issues being involved does not, in and of itself, mandate the conclusion that an oral hearing can be demanded by the claimant. So much seemed implicit from the statement of Flick and Gleeson JJ –
No one factor, be it recourse to the touchstone of credibility or personal disadvantage, provides any infallible guide to when an oral hearing may be required in order to ensure an affected person has been given a “fair” opportunity to be heard.[22]
[21] [2001] HCA 20.
[22] [2014] FCAFC 137 at [16].
The court commented on the fact that no explanation had been given as to why the independent merits reviewer who conducted the interview in January 2012 did not make the recommendation to the Minister.
The gravamen of complaint made on behalf of the applicant in this case was the fact that Ms Shields heard from the applicant, watched the applicant’s demeanour, listened to not only what he said but how he said it, debated issues with him and undertook the usual intellectual and deductive reasoning process by which credit, credibility, believability, honesty and overall veracity were assessed. Having done that, Ms Shields then transferred the file to Mr Van Dam so that the actual decision was made by a person who had not undertaken those steps (Mr Van Dam) and yet the conclusions reached by him were necessarily predicated upon his having made those assessments when in truth he had not seen the witness nor heard the applicant nor observed him but nevertheless assessed, adversely, his credibility.
In the Full Court of the Federal Court, Flick and Gleeson JJ reasoned that a claimant may have a legitimate expectation that the relevant independent merits review process will be completed by the same independent merits reviewer who conducted the hearing or interview. Their Honours said –
If for whatever reason a person conducting an Independent Merits Review becomes unavailable, a claimant is at the very least entitled to be heard before his legitimate expectation is defeated, by being given an opportunity to make submissions as to how the review process should continue.[23]
[23] [2014] FCAFC 137 at [24].
In reference to the decision of the Full Court of the Federal Court, before me Mr Hill submitted –
The breach of procedural fairness is the undisclosed change of procedure, even on the plurality analysis.[24]
[24] Transcript of Proceeding, 6 September 2016 at p.48.
In a single judgment, Nicholas J held that the appellant was reasonably entitled to expect that his claims would be considered by the person by whom he was interviewed.
As mentioned earlier, when Mr Van Dam gave his decision in this case the Full Court of the Federal Court’s decision was the prevailing authority on the issue of procedural fairness in cases where one administrative hearing officer conducted the relevant interview yet a different administrative hearing officer made the relevant decision.
On 4 November 2015 the High Court of Australia handed down judgment in the appeal from the decision of the Full Court of the Federal Court of Australia in WZARH v Minister for Immigration and Border Protection. As that decision was one of the cornerstones of the applicant’s case in this application, it is necessary to address it in some little detail, as I have done in the passages that follow.
Unsurprisingly, a focal point of the applicant’s case in this case was the importance of and need for the person who actually made the decision (Mr Van Dam) to see and hear the applicant. The applicant relied on observations of the High Court in WZARH to that effect, especially the comments of Kiefel, Bell and Keane JJ where their Honours held –
Impressions formed by a decision-maker from the demeanour of an interviewee may be an important aspect of the information available to the decision-maker. That this is so has long been recognised (footnote omitted).[25]
[25] (2015) 256 CLR 326 at [40].
The High Court then referred to four of the more important
decisions over the last century on the significance of demeanour assessment, including seminal cases such as Dearman v Dearman[26] (“Dearman”), Jones v Hyde[27] (“Jones”), Abalos v Australian Postal Commission[28](“Abalos”) and Devries v Australian National Railways Commission[29] (“Devries”).
[26] (1908) 7 CLR 549, 564.
[27] (1989) 63 ALJR 349, 351-352.
[28] (1990) 171 CLR 167, 179.
[29] (1993) 177 CLR 472, 479, 482-483.
The significance of the decision-maker assessing a witness’s demeanour has been the subject of a large volume of judicial writing at the highest level over the last century. Not all observations in those decisions point in the same direction. Many of the observations in decided cases were made in the context of whether an appellate court was in as good a position as was the trial judge when assessing credit or whether the appellate court should defer to the trial judge’s assessment of a witness’s credit. The authorities are extensive and they include Coghlan v Cumberland,[30] Dearman, Owners of
SS Hontestroom v Owners of SS Sagaporack; SS Hontestroom v
SS Durham Castle,[31] Paterson v Paterson,[32] Warren v Coombes,[33] Brunskill v Sovereign Marine and General Insurance Co Ltd,[34] Jones, Galea v Galea[35](“Galea”), Abalos, Devries, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liquidation)[36] (“Earthline”), Fox v Percy[37] and Husain v O & S Holdings (Vic) Pty Ltd.[38]
[30] [1898] 1 Ch 704.
[31] [1927] AC 37.
[32] (1953) 89 CLR 212.
[33] (1979) 142 CLR 531.
[34] (1985) 59 ALJR 842.
[35] (1990) 19 NSWLR 263.
[36] (1999) 73 ALJR 306.
[37] (2003) 214 CLR 118.
[38] [2005] VSCA 269.
While this case involved a consideration of issues relevant to credit, including the assessment of demeanour, the pivotal issues in this case were –
a)the person who conducted the interview and who actually interacted with the applicant (Ms Shields) was not the person who made the relevant decision; and
b)the person who made the relevant decision (Mr Van Dam) based his decision in part on an assessment of the applicant without having actually heard or seen the applicant.
In Galea, Kirby ACJ (as his Honour once was prior to his appointment to the High Court) pointed out an array of advantages that a trial judge enjoys in the fact-finding process. Those observations apply to any decision-maker, curial or administrative, who sees and hears a witness giving evidence before that decision-maker, it seems to me. Those advantages include the decision-maker –
a)hearing the evidence in its entirety;
b)hearing and seeing all evidence in context, chronologically and logically advanced;
c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
e)observing body language, sometimes important for interpreting communication.
Mr Van Dam enjoyed none of those advantages in the determination in this case, yet he made the relevant decision. Ms Shields, on the other hand, did enjoy those advantages yet she did not make the relevant decision in this case.
The task of assessing a witness’s demeanour is of special relevance in an oath against oath case, as Kirby J pointed out in Earthline.
In Devries, Deane and Dawson JJ pointed out that cases in which findings of fact and assessments of credit are based on demeanour are the exception rather than the rule. In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ observed that judges increasingly tend to limit their reliance upon the appearances of witnesses and to reason their conclusions as far as possible on the bases of contemporary materials, objectively established fact and on the apparent logic of events.
Of course, those observations from Devries and from Fox v Percy apply to the person who sees the witness and who also is the same person who, having seen the witness, makes the relevant decision.
That did not happen in this case.
In debate with Mr Hill, he submitted that the facts of this case were not entirely on all fours with the facts in WZARH.
In the specific context of migration law, the High Court in WZARH held that there is no general rule that procedural fairness requires an administrative decision-maker to afford a person affected by the decision an oral hearing in every case. At a doctrinal level, I am bound to accept that statement, which of course I do without reservation.
However, when subjecting the facts of this case to much closer scrutiny, other departmental failures showed that the applicant was denied procedural fairness in this case. To them I now turn.
Chronologically, the applicant was notified that he would be interviewed when he received a letter from Ms Shields dated
21 July 2015.[39] The date appointed for the interview by the terms of that letter was 27 July 2015. Ms Shields signed the letter. The interview was duly conducted by Ms Shields with an interpreter accredited in the Farsi language.
[39] Court Book filed 6 April 2016 at pp.249-250.
The protection obligations evaluation outcome recited the process undertaken at the interview. It stated as follows –
It was explained to the claimant that the assessment may be conducted by an officer different to the interviewing officer.[40]
[40] Court Book filed 6 April 2016 at p.34.
Despite the undesirable use of the passive tense in that sentence (I infer that the person who explained that to the applicant was Ms Shields) that sentence said nothing about the fact of (rather than the possibility of) the assessment being decided by Mr Van Dam nor that Mr Van Dam would incorporate in his decision whatever assessment Ms Shields had reached in relation to the applicant. In other words, the applicant was not alerted to a course of conduct in which Mr Van Dam later engaged nor was any such course of conduct flagged as a possibility with a view to obtaining the applicant’s comments about it.
In debate with Mr Hill, I raised how in a common law context,
a litigant would be entitled to complain bitterly if the judge who heard that litigant’s evidence told the litigant that some other judge who had not heard the case would be deciding the outcome of that litigant’s case. Most ordinary, right-thinking people would be affronted by such a suggestion. Only the clearest legislative empowerment could authorise such a course of conduct. Mr Hill replied that common law principles can, in some instances, be untrustworthy guides when dealing with the requirements of administrative law under the Act.
At all events, on 14 August 2015 the applicant’s solicitors provided written submissions to Ms Shields, in keeping with the contents of her letter dated 21 July 2015 in which Ms Shields provided her email address. Mr Van Dam’s name or email address was not mentioned in that letter. That no doubt explained why the submissions dated
14 August 2015 were emailed to Ms Shields’s email address (as given) and posted to her postal address (as given). Almost two months after the interview was held with Ms Shields, on 17 September 2015
Mr Van Dam telephoned Mr Kadirgamar and emailed him[41] then separately wrote to the applicant at the detention centre in which the applicant was then residing with the upshot of Mr Van Dam’s determination.[42] According to the court book documentation, that was the first time the fact of Mr Van Dam’s determination of the applicant’s protection obligations evaluation was revealed. Nowhere among the material was there evidence of any form of communication between Ms Shields or Mr Van Dam between the date of the interview, the date of the post-interview submissions and the date of Mr Van Dam’s
first communication, 17 September 2015, especially communications telling the applicant that Mr Van Dam would be deciding his case, inviting response to that proposal and more importantly, inviting submissions to be put to Mr Van Dam.
[41] Court Book filed 6 April 2016 at pp.294-295.
[42] Court Book filed 6 April 2016 at pp.296-297.
In WZARH, Kiefel, Bell and Keane JJ made important observations about the decision-making process. Citing SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[43] (“SZBEL”) the
High Court repeated that it was not to the point to ask whether the decision-maker’s actual conclusions were right – the relevant question was about the decision-maker’s process, not the actual decision.
[43] (2006) 228 CLR 152 at [25].
In WZARH, Keifel, Bell and Keane JJ considered how an interview by the second departmental person (relevantly here, Mr Van Dam) might have made a difference. Their Honours said the following –
[43]An interview by the Second Reviewer might have made a difference to the outcome of the IMR process (footnote omitted). This may be seen from what was involved in any assessment of the respondent’s application to be undertaken by the Second Reviewer. The acceptance or rejection of his case was likely to turn, not only upon apparent inconsistencies or uncertainties in his account, but also upon impressions formed about how he had responded to questions about his recollection of events in the recorded interview with the First Reviewer.
[44]The benefit to a decision-maker of seeing a witness advance his or her case should not be exaggerated, but for the reasons already mentioned, it cannot be dismissed as illusory (footnote omitted). The respondent could not have been in a worse position if the Second Reviewer had not been disposed, after seeing him responding to questions, to take a more favourable view of his credibility. But he may have been in a better position if the Second Reviewer had formed the impression that he was genuinely doing his best to give truthful evidence in difficult circumstances.[44]
[44] (2015) 256 CLR 326 at [43]-[44].
The “impressions” of which their Honours spoke, had been enjoyed by Ms Shields, not by Mr Van Dam. The applicant’s responses to questions put to him had been heard, observed and considered by
Ms Shields, not by Mr Van Dam. Any face-to-face assessment about the applicant’s recollection of events had been made by Ms Shields, not by Mr Van Dam. Ms Shields had the benefit of matters to which
Kirby ACJ averted in Galea such as body language, interruptions, hesitations and delays in the giving of testimony, to mention just a few. While other evidence, mostly documentary in nature, could have been read and absorbed by Mr Van Dam, he did not conduct the applicant’s interview and therefore he was not able to assess not only what the applicant said but how the applicant said it. Instead, Ms Shields was the identified individual who was to make the assessment. She departed and was replaced. The applicant then faced the reality that he needed to present his case to some entirely new person.
The applicant was not given the opportunity to even raise that.
In WZARH, Gageler and Gordon JJ made express observations on that precise point. Their Honours held as follows –
The problem is that the change of procedure changed the nature of the opportunity which had previously been given to the respondent. The opportunity that had been given was an opportunity personally to convince an identified individual who was to make the assessment, including by responding to specific questions which that person raised. The opportunity became,
in retrospect, an opportunity to present a case to an unknown assessor by way of a record or oral evidence and of written submissions.[45]
[45] (2015) 256 CLR 326 at [64].
Mr Van Dam concluded that the applicant was not a credible witness and that the applicant’s account of the relevant events was not to be accepted. One might wonder how he could have reached that conclusion.
The Minister’s written submissions[46] contended that the High Court’s decision in WZARH was “clearly distinguishable”.[47] Far from it being “clearly distinguishable” or even “distinguishable”, in my view it was directly on point and I have applied it. The four asserted points of distinction urged by the Minister in written submissions related to,
so the Minister said, the applicant being told that Mr Van Dam would conduct the assessment. I hasten to add, the Minister’s
written submissions were not written by Mr Hill. The material said no such thing. That submission had no factual basis. It was erroneous to have cast the submission in those terms. I reject it.
[46] First Respondent’s Outline of Submissions filed 6 June 2016.
[47] First Respondent’s Outline of Submissions filed 6 June 2016 at [19].
Likewise, I do not agree with the Minister’s written submission that the applicant suffered no practical injustice. For the reasons identified by Gageler and Gordon JJ in WZARH at [64], at the interview conducted by Ms Shields the applicant had been given the opportunity to convince her, Ms Shields being the specifically identified individual assigned the task of assessing the applicant. Mr Van Dam was not identified as the person who would, as a matter of certainty, decide the applicant’s case. For that matter, Ms Shields wrote to the applicant’s solicitors inviting any post-interview submissions to go to her, an act consistent with her conveying to the applicant that she had carriage of the case.
The applicant gave his evidence to Ms Shields, not to Mr Van Dam.
I do not accept that the answers the applicant gave Ms Shields were evidence the nature of which was (to use the words of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy) “contemporary materials, objectively established facts and the apparent logic of events”.[48]
The applicant’s answers to the matters put to him in the interview bore the hallmarks of an oath-on-oath case, quintessentially the province of a hard-swearing case in which witness credibility and the assessment of demeanour was utterly pivotal. Ms Shields heard that evidence.
Yet Mr Van Dam decided the case not having heard or seen the witness.
[48] (2003) 214 CLR 118 at [31].
In my view a serious jurisdictional error was made in this case. To use the words of Mr Hill, “[t]he breach of procedural fairness is the undisclosed change of procedure”.[49] That error was compounded by Mr Van Dam not offering the applicant an opportunity to give evidence to Mr Van Dam, the newly identified individual who would decide the applicant’s case. Mr Van Dam’s decision cannot stand.
[49] Transcript of Proceeding, 6 September 2016 at p.48.
In my judgment, grounds 1, 2 and 3 succeeded.
The declaration and injunction recorded in paragraph 20 above should be made.
Ground 4
In essence, under this ground the applicant asserted that Mr Van Dam based his decision on statements by the applicant given in the first independent merits review interview which supported the
first independent merits review decision, that Justice Mansfield declared was made in error of law.[50]
[50] DZAFF v Minister for Immigration and Border Protection [2015] FCA 569.
On the applicant’s behalf, Mr Burnside QC and Ms Kirwan submitted that Mr Van Dam, in extensively relying on the applicant’s statements in the first interview and in relying on findings made in the earlier recommendation, proceeded as if the declaration of Mansfield J had not been made. They said that was not fair.
I agree.
In written submissions, the Minister contended that the applicant “somewhat vaguely” argued ground 4.[51] I disagree. There was nothing vague about it. The point was good - it had real merit.
[51] First Respondent’s Outline of Submissions filed 6 June 2016 at [23].
To a large extent, the success or otherwise of this ground depended on a construction of the decision of the Full Court of the Federal Court of Australia in MZZZW v Minister for Immigration and Border Protection[52] (“MZZZW”) (Tracey, Murphy and Mortimer JJ). That case concerned a decision made by one Administrative Appeals Tribunal member, Member Corrigan, whose decision was set aside by consent. By consent, the application to the Tribunal was remitted to a differently constituted Tribunal member, Member Boddison. Member Boddison copied passages from Member Corrigan’s decision, including passages that dealt with witness credibility. Member Boddison inserted those copied passages into her own decision, “changing syntax or a word here or there”.[53] The Full Court held that –
In each case it is the use of the opinions of another statutory officer as the Member’s own without attribution or disclosure that what appears in the reasons is not the work of that Member.[54]
[52] [2015] FCAFC 133.
[53] [2015] FCAFC 133 at [28].
[54] [2015] FCAFC 133 at [28].
The Full Court examined at length the nature and extent of the copying engaged in by Member Boddison with a view to determining whether the Tribunal was satisfied that the Tribunal brought its own independent mind to bear on what would be the correct or preferable decision on the review. The Full Court focused on 11 separate illustrations of the nature and extent of Member Boddisons’s copying.
The Full Court examined the decision of Beazley J in Huluba v Minister for Immigration and Ethnic Affairs (“Huluba”).[55] There, Beazley J held that a decision-maker is entitled to have regard to research and investigations carried out by others as well as to assessments, reports and recommendations prepared by others in the course of the administrative process. Her Honour held that the decision-maker was also entitled to accept the reasoning of an officer whose function it had been to provide a recommendation and the decision-maker could adopt that report or recommendation,
even verbatim, provided that at all times the decision was the independent decision of the decision-maker. Her Honour held that procedural fairness required the decision-maker to reach an independent decision.
[55] (1995) 59 FCR 518.
In Huluba, Beazley J held that the applicant was denied procedural fairness largely on account of the fact that the decision-maker did not apply an independent mind to the decision-making process.
Returning to MZZZW, the Full Court held as follows –
If it were not already obvious from the nature of the task imposed on the Tribunal by Pt 7 of the Migration Act, the terms of s 421 of the Act make it plain that the task is discharged by a specific member of the Tribunal who is constituted to deal with that review. The Act deals in some detail with the constitution of the Tribunal, and its reconstitution in given circumstances. Some of those provisions are relevant to other grounds relied on by the appellant on this appeal. Those provisions also show that the statutory task is intended by Parliament to be performed by a particular member to whom that task is allocated. It is non-delegable. It is not to be performed by adopting the views of a differently constituted tribunal about the same applicant. Whatever the criticism might be of a decision-maker transferring across findings by another decision-maker about a
different applicant and applying them to the applicant before the decision-maker, those criticisms pale against the wholesale adoption of the opinions of a previously constituted tribunal about the same applicant.[56][56] [2015] FCAFC 133 at [57].
Further, in MZZZW the Full Court went on –
It need hardly be said that the extraordinary circumstances of the present appeal would not have been in the contemplation of their Honours when they described the nature of the review task and the purpose of discharging the reasons obligation under s 430. What the extract does reveal is the underlying assumption in a scheme such as Pt 7 (or for that matter any merits review scheme which has similar features, including constitution of a body by particular members) that the member constituted to do the review will bring her own mind to bear on the issues arising in the review, freed not only from infections such as prejudgment or other bias but from the inevitable constraints on thought, consideration and reflection which flow from the adoption of not only the conclusions of others, but the way those conclusions have been formulated and framed in language.[57]
[57] [2015] FCAFC 133 at [59].
The Full Court rejected the submission that Member Boddison considered the matter afresh. The Full Court held that
Member Boddison had adopted, by copying, substantial and substantive aspects of Member Corrigan’s reasons. The Full Court held that Member Boddison failed to discharge the statutory duty imposed upon her.
So far as the “high-volume” decision-making argument was concerned, the Full Court rebuffed it. The Full Court said –
Submissions based on “high volume“ decision-making can tend to suggest applicants, whose claims relate to matters of liberty and personal safety, are entitled to some kind of
“short cut“ version of administrative justice with patched together decisions. We fail to see where or how the terms of theMigration Act suggest that is the kind of review the Act contemplates. To the contrary, the Act recognises the seriousness of the subject matter of reviews by the Tribunal. It imposes standards designed to ensure thorough, considered and fair decision-making so that people are not removed from Australia in circumstances where Australia’s international obligations under the 1951 Refugees Convention are put at risk of contravention.[58][58] [2015] FCAFC 133 at [70].
Consonant with the approach adopted by Beazley J in Huluba and with the approach adopted by the Full Court in MZZZW, an examination of the decision of Mr Van Dam is required to ascertain the nature and extent of his adoption of the work of others. Only by doing that can I be satisfied that he properly discharged the statutory duty upon him and that in fact and in law Mr Van Dam brought an independent mind to bear to the matters that fell for his decision.
In my judgment, Mr Van Dam failed to discharge his statutory duty.
Mr Van Dam did not bring an independent mind to bear on the matters that fell for his decision.
Mr Van Dam’s decision was vitiated by error warranting intervention by this Court.
Mr Van Dam relied on material that Mansfield J held to have been affected by legal error. In so doing, Mr Van Dam relied on material that was irrelevant. To my mind, it was erroneous of Mr Van Dam to have relied on material that led to Mansfield J determining that the process engaged in was flawed.
In his submissions before me, Mr Hill was asked what portions of the first independent merits review decision survived Mansfield J’s review and findings to which Mr Hill submitted (correctly in my view) that as a legal matter, none of it survived, except insofar as it was part of this litigation’s procedural history.
Mr Hill submitted that the findings of the previous assessor framed the issues for review. He relied on Commissioner for Australian Capital Territory v Alphaone Pty Ltd[59] (“Alphaone”) as authority for that proposition. Just as the Minister’s previous counsel (not Mr Hill) used pejorative turns of phrase in reference to the applicant’s submissions such as “somewhat vaguely” and “only slightly less vaguely”,[60] his reference to Alphaone in the context of ground 4 was not on point.
[59] (1994) 127 ALR 699.
[60] First Respondent’s Outline of Submissions filed 6 June 2016 at [23].
In written submissions (not written by Mr Hill), the Minister submitted that a second Tribunal was not precluded from having regard to the contents of a previous Tribunal’s decision in respect of the same applicant and the same visa application, citing MZZZW. To my mind, that reference was taken out of context and I reject it. It flies in the face of conventional administrative law jurisprudence to permit the very material found by Mansfield J to have constituted the error below to be used in support of the decision that Mr Van Dam made in adversely determining this case against the applicant. In my view, Mr Van Dam failed to discharge the duty that fell to him to perform by applying an independent intellectual consideration to the applicant’s claims. While this case was less egregious than was the wholesale copying undertaken by Member Boddison in MZZZW (to that extent I agree with Mr Hill) nevertheless Mr Van Dam should not have relied on material that Mansfield J found to have constituted the error below.
In my judgment, ground 4 was made out.
Ground 5
At its heart, under this ground the applicant contended that
Mr Van Dam relied on country information without disclosing it to the applicant or seeking his comments on it with the consequence
Mr Van Dam failed to accord the applicant procedural fairness. Counsel for the applicant relied in support of that submission on the observations of the High Court of Australia in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah[61] (“Miah”).
[61] [2001] HCA 22.
In developing the proposition, counsel for the applicant contended that during the interview, Ms Shields did not make clear the precise country information to which she referred or whether she had new information of which the applicant was unaware on which she proposed to rely, making it “impossible”[62] (so Mr Burnside QC and Ms Kirwan submitted) for the applicant and his representative to determine whether Ms Shields was referring to additional or different country information to that disclosed in the earlier recommendation.
[62] Applicant’s Outline of Submissions filed 10 May 2016 at [33].
The applicant also contended in relation to this ground that
Mr Van Dam’s reliance upon new and adverse information without disclosing its contents to the applicant or seeking his comment on it was a denial of procedural fairness.
In his evaluation, Mr Van Dam wrote the following –
As discussed with the claimant at interview, the available country information concerning the treatment of failed asylum seekers in Iran does not indicate that individuals such as the claimant face a real chance of attracting the adverse attention of the authorities.[63]
[63] Court Book filed 6 April 2016 at p.315.
Counsel for the applicant correctly submitted that that passage of
Mr Van Dam’s outcome did not identify “the available country information” to which he referred. So it was contended, in the absence of any such identification of country information it was not possible for the applicant to say whether the so-called “available country information” was that used in the earlier recommendation, whether it was new country information and if so, exactly what it was.
There is considerable force in that submission.
However the applicant additionally contended that Mr Van Dam relied on new country information without disclosing its existence to the applicant and without seeking the applicant’s comment.
In written submissions (not written by Mr Hill), the Minister contended that Ms Shields did in fact canvas with the applicant available country information.
The decision in Miah warranted particular attention in this case as it drew together a large amount of the jurisprudence relevant to concepts of procedural fairness, the valid exercise of functions delegated to an administrative officer in the shoes of Mr Van Dam and other matters. Let me point up some of the more poignant observations in the case.
Gleeson CJ and Hayne J held that the relevant delegate made no error on the facts of the case. Conversely, in separate reasons Gaudron J, McHugh J and Kirby J held that the delegate’s decision was vitiated by error and each ordered the issue of constitutional writs.
Gaudron J referred to the content of the common law duty to act fairly, as propounded by Mason J in Kioa v West[64] (“Kioa”). There, Mason J identified the obligation as -
[A] common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.[65]
[64] (1985) 159 CLR 550.
[65] (1985) 159 CLR 550, 584.
In Kioa, Brennan J identified the rules of natural justice as
an implication to be drawn from the legislation conferring
decision-making authority.
In the later decision of Annetts v McCann,[66] Brennan J explained that the implication arose because -
the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power.[67]
[66] (1990) 170 CLR 596.
[67] (1990) 170 CLR 596, 604.
In Miah, Gaudron J held that whatever approach is adopted, in the end the question is whether the legislation “on its proper construction, relevantly (and validly) limit[s] or extinguish[es] [the] obligation to accord procedural fairness”,[68] citing the decision of the High Court in Re Refugee Review Tribunal; Ex parte Aala[69] (“Aala”).
[68] [2001] HCA 22 at [90].
[69] (2000) 204 CLR 82, 101 at [41].
A very long line of authority, the veneration of which is beyond doubt, has held that the basic principle with respect to procedural fairness is that a person should have an opportunity to put his or her case and to meet the case that is put against him or her. Authorities supportive of that proposition include Delta Properties Pty Ltd v Brisbane City Council,[70] Twist v Randwick Municipal Council,[71] Heatley v Tasmanian Racing and Gaming Commission,[72] FAI Insurances Ltd v Winneke[73] and Kioa.
[70] (1955) 95 CLR 11.
[71] (1976) 136 CLR 106.
[72] (1977) 137 CLR 487.
[73] (1982) 151 CLR 342.
In this case, counsel for the applicant contended that Mr Van Dam’s reliance on new and adverse information without disclosing its existence to the applicant was a failure to accord the applicant procedural fairness. Applying the reasoning from the authorities set out in the paragraph immediately above, Mr Van Dam’s failure to disclose the information on which he relied was a failure to give the applicant an opportunity to put his or her case and to meet the case that was put against him. The so-called “available country information” on which Mr Van Dam relied was not identified. If that country information went beyond that considered by Ms Shields, Mr Van Dam did not say.
But if the country information on which Mr Van Dam relied was new, in the sense that it went beyond that considered by Ms Shields, then
Mr Van Dam did not put it to the applicant nor invite him to meet any case against him that was thereby raised.
Of course, not every single item of information is required to be put to the applicant. The rules of procedural fairness do not travel so far.
In submissions before me, Mr Hill relied on the decision of the
Full Court of the Federal Court in Minister for Immigration and Citizenship v SZQHH[74] to like effect. The precise scope of the obligation on a decision-maker was stated by McHugh J in Miah in the following terms –
A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise. This does not mean that all material which comes before the decision-maker must be disclosed but, “in the ordinary case ... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made”.[75] (footnotes omitted)
[74] [2012] FCAFC 45.
[75] [2001] HCA 22 at [140].
In Miah, the information not given to the applicant was totally new.
In this case, country information of whatever description was information (to use the words in Kioa) that was “credible, relevant and significant to the decision to be made”.[76] The country information should have been not only identified by Mr Van Dam but disclosed to the applicant to enable him to meet the case put against him.
A failure to do so caused Mr Van Dam to fall into legal error.
In my view, Mr Van Dam fell into error as he failed to put to the applicant applicable country information.
[76] (1985) 159 CLR 550, 629.
As McHugh J pointed out in Miah,[77] relief under s.75(v) of the Constitution is available for failure to accord natural justice. So much was consistent with the observation of the High Court in Aala.
[77] [2001] HCA 22 at [148].
In Miah Kirby J analysed the power conferred on the delegate in terms of the assumption that in Australia, parliaments act justly and expect the repositories of power under legislation to do likewise. His Honour said the following –
Such repositories of legislative power are expected to act in a way that avoids serious injustice and procedural unfairness to those who are affected by their decisions. The delegate is an
office-holder who makes a decision in the place of the Minister. The Minister is a constitutional office-holder. The decision of the delegate is therefore, on the face of things, a most important and responsible one. Without doubt, it can have very significant consequences. It may be presumed that the Parliament envisaged that such a decision would be made carefully and justly (footnote omitted). The delegate is not simply an anonymous official within the Minister's department. He or she is a statutory office-holder on whom particular powers and duties are conferred by Act of Parliament.[78][78] [2001] HCA 22 at [184].
In Miah, the delegate failed to disclose certain information of a political nature and the delegate relied on that undisclosed information. Of that, Kirby J said the following –
The fact that the political intelligence about the situation in Bangladesh, relied on by the delegate, was said to be powerful and convincing did not relieve the delegate of a duty to disclose it. In a sense, the greater the significance of the information, the more pressing became the necessity to disclose it to the prosecutor for his submission or comment (footnote omitted).[79]
[79] [2001] HCA 22 at [195].
In my judgment, Mr Van Dam fell into error in his treatment of country information. He did so at several levels –
a)first, he relied on whatever “available country information” on which Ms Shields relied yet he did not identify the country information on which Ms Shields relied during the interview; and
b)second, in so far as Mr Van Dam relied on different material to the material on which Ms Shields relied, Mr Van Dam did not identify that material nor give the applicant an opportunity to discuss it and meet it.
To my mind, the applicant succeeded on ground 5.
Grounds 6 and 7
It is convenient to address these two grounds of review at the one time in the manner done by the applicant and the Minister.
In essence, the applicant contended that his legal representatives wrote to Ms Shields on 14 August 2015 in detailed terms addressing, among other things, credibility issues, only for those detailed submissions to be rejected by Mr Van Dam in a single sentence.
The applicant submitted that Mr Van Dam’s single sentence dismissal of the details of the 14 August 2015 letter represented –
a)his failure to take into account relevant considerations in the nature of logical and intelligible explanations for alleged inconsistencies in the applicant’s evidence; or
b)his pre-judgment of the applicant’s credibility, of the sort canvassed by the High Court in British American Tobacco Australia Services Ltd v Laurie;[80] or
c)
illogicality, irrationality or unreasonableness because the
14 August 2015 letter postulated plausible and credible explanations of the matters ultimately determined adversely to the applicant.
[80] (2011) 242 CLR 283.
In support of the last proposition, the applicant relied on the
High Court’s observations in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[81] (“SGLB”), as well as the observations of the High Court in Minister for Immigration and Citizenship v Li and Anor[82] (“Li”).
[81] (2004) 78 ALJR 992.
[82] (2013) 249 CLR 332.
The Minister disputed that grounds 6 and 7 had merit. In the Minister’s written submissions, it was said that the officer (meaning Mr Van Dam) had “plainly read”[83] the applicant’s submissions because the officer synthesised the contents of the 14 August 2015 letter and a letter from a psychologist regarding the applicant’s mental health. The Minister submitted that the officer did consider the applicant’s responses.
[83] First Respondent’s Outline of Submissions filed 6 June 2016 at [35].
I do not agree.
The 14 August 2015 letter was detailed. It included submissions of fact as well as submissions of law. It made submissions in response to the alleged inherent implausibility of the applicant’s contentions.
It addressed issues that were pertinent at a fact-specific level including the applicant’s evidence in relation to his use of a condom, the lapse of time between the applicant having a sexual encounter with his girlfriend and his interception by her brothers, the length of the relationship before it became a full physical relationship and other matters, all of which were addressed in the 14 August 2015 letter in considerable detail. In response, Mr Van Dam recorded that
“these issues highlighted”(without identifying what were those issues that allegedly highlighted what matters) “are due to the claim being fabricated”.[84]
[84] Court Book filed 6 April 2016 at p.312.
To my mind, that was a remarkable conclusion in the absence of precise identification of the alleged fabrication. What claim? What issues highlighted? In what respect were those claims fabricated?
No details were given.
Mr Van Dam then wrote the following –
Also as noted above, other elements of the claim seem implausible or have not been adequately explained by the claimant.[85]
[85] Ibid.
That sentence appeared on page 15 of Mr Van Dam’s protection obligations evaluation outcome. Precisely where “above” was,
Mr Van Dam did not say. Nor did he identify the “other elements of the claim” that he said seemed implausible. Which other elements?
Why did those other elements, whatever they may have been, seem implausible? It what respect were they implausible? Still less was there any indication given by Mr Van Dam of why those elements, whatever they may have been, had not been adequately explained. In other words, by a fair reading of the 14 August 2015 letter, it was not possible to say –
a)where, in the 15 pages of outcome that preceded it, were the other elements of the claim that seemed implausible or not adequately explained; and
b)in what way those other elements of the claim seemed implausible or were not adequately explained.
The Minister submitted in writing, not written by Mr Hill, that I should not “lightly infer”[86] that Mr Van Dam overlooked material.
The Minister cited the decision of Justice Tracey in Minister for Immigration and Citizenship v MZYZA[87] (“MZYZA”). There,
his Honour held that a failure by a tribunal in its reasons to refer to a particular consideration or piece of evidence will not necessarily lead to the conclusion that that consideration or evidence was disregarded or overlooked. By the same token, his Honour held that a statement by a tribunal that it has had regard to a particular consideration or item of evidence will not necessarily lead to a conclusion that it has done so or that it has done so in an appropriate manner.
[86] First Respondent’s Outline of Submissions filed 6 June 2016 at [38].
[87] [2013] FCA 572 at [30].
Justice Tracey in MZYZA held that a reviewing court will have regard to a range of issues including –
a)the terms of the relevant statutory requirement to provide reasons;
b)whether the Tribunal supposedly failed to consider a relevant claim or an item of evidence;
c)the relative importance of the consideration or evidence to the party’s case;
d)whether any reference was made to the consideration or evidence in the Tribunal’s reasons;
e)the reason reliance is placed on the consideration of evidence by the party who asserts its significance; and
f)the relative significance of the absence of reference to the consideration or evidence having regard to the Tribunal’s reasons as a whole.
Justice Tracey referred to the fact that jurisdictional error might arise if an administrative decision-maker fails to have regard to a relevant consideration so long as the consideration was one the decision-maker was bound to take into account in making the decision. His Honour relied to that effect on the well-known decision of the High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[88] (“Peko-Wallsend”).
[88] (1986) 162 CLR 24, 39.
Various formulations have been expressed to distinguish between relevant material to which a decision-maker is bound to have regard when making determinations on the one hand and other material to which the decision-maker is not bound to have regard, on the other hand. Justice Tracey catalogued some of them in MZYZA to include the following –
a)relevant material that is so fundamental it goes to jurisdiction;[89]
b)important relevant material going to a central consideration in the matter;[90] and
c)overwhelming evidence.[91]
[89] See WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319.
[90] Ibid.
[91] See SXRB v Minister for Immigration and Multicultural and Indigenous affairs [2005] FCA 1222.
To my mind, had Mr Van Dam considered the detail of the
14 August 2015 letter to the degree that he was required to consider it, he could not have concluded that “other elements of the claim seem implausible or have not been adequately explained by the claimant”.[92] In fact, his proper consideration of the issues in the 14 August 2015 letter might have led Mr Van Dam to a different result, as the
High Court of Australia stated in SZBYR v Minister for Immigration and Citizenship.[93]
[92] Court Book filed 6 April 2016 at p.312.
[93] [2007] HCA 26.
[94] (1986) 159 CLR 656.
The Minister submitted in writing that Mr Van Dam was obliged to provide a statement of reasons and not a line-by-line analysis.
The Minister referred to one authority only to support that argument, the 1986 decision of the High Court of Australia in
Public Service Board of New South Wales v Osmond[94](“Osmond”).
Mr Hill submitted Osmond remains good law. Mr Hill also submitted in relation to Osmond that under the statutory regime prescribed by the Act, a statutory obligation to provide reasons was imposed. Mr Hill went on to submit that this case was not within the statutory framework.
Two things must be said of that submission -
a)first, administrative law has come a very long way in 30 years since Osmond and whether the statement of principle referred to by Gibbs CJ still holds sway is a matter on which debate will undoubtedly continue; and
b)second, in the specific jurisprudence of migration law, I am not prepared to rely on Osmond as authority for the proposition urged by the Minister in the absence of an express statement of legislation or authority binding upon me.
I disagree with the Minister’s submissions that the suggestion that
Mr Van Dam did not consider the applicant’s agent’s submissions “simply cannot be sustained”.[95] It was sustained.
[95] First Respondent’s Outline of Submissions filed 6 June 2016, p.12 at [41].
Grounds 6 and 7 succeeded on any of the bases urged by Mr Burnside QC and Ms Kirwan.
Grounds 8 and 9
The applicant advanced these two grounds together and the Minister responded on the same basis. It is therefore convenient for me to do the same.
Essentially, the applicant contended that it was illogical, irrational and unreasonable for Mr Van Dam to have rejected the applicant’s claim that he would be identified upon his return to Iran. That was ground 8. The applicant also contended that Mr Van Dam denied the applicant procedural fairness by failing to give the applicant an opportunity to comment upon the reasons why Mr Van Dam considered that the applicant’s claims were speculative.
Put in context, the applicant asserted that during the interview with
Ms Shields he told Ms Shields that he would be identified upon his return to Iran by reason of media articles. He gave two articles to
Ms Shields during the interview. In respect of the media articles,
Mr Van Dam wrote in his protection obligations evaluation outcome –
After reviewing the media articles, I am not satisfied that they in themselves would identify the claimant. The articles do not contain his actual name or his photograph.[96]
[96] Court Book filed 6 April 2016 at p.310.
Three points were advanced by the applicant under these grounds -
a)first, the applicant’s counsel contended that when the media articles were taken together, the applicant could in fact be identified in Iran because Iranian asylum seekers in Australia know the applicant and they communicate with Iranians in Iran;
b)second, the applicant’s counsel contended that the media articles would enable the applicant to be identified in Iran as a person who had a relationship with a woman related to basij members and that would render him liable to persecution; and
c)
third, the applicant’s counsel contended that Mr Van Dam denied the applicant procedural fairness in not putting to the applicant for his response the finding of pure speculation recorded in
Mr Van Dam’s protection obligations evaluation outcome. Specifically, Mr Van Dam wrote the following –
None of the court judgments or media articles contain any identifying information, and I consider it is purely speculative on his part to suggest that unknown individuals could potentially link any or all of this reporting to him such that the Iranian authorities and community in general would be aware of his real or claimed conduct in both Iran and Australia, thereby attracting the prospect of serious harm.[97]
[97] Court Book filed 6 April 2016 at p.313.
Hence, grounds 8 and 9 were cast on the ground of illogicality and irrationality citing SGLB as well as on the ground of failure to accord procedural fairness.
The Minister contended that there was nothing illogical or irrational in Mr Van Dam’s conclusion that he was not satisfied that media articles would identify the applicant in circumstances where the articles did not contain the applicant’s name or photograph.
So far as the assertion of a denial of natural justice was concerned,
the Minister submitted that the rules of procedural fairness did not require the Tribunal to give a running commentary about its construction of the evidence, citing SZBEL.[98]
[98] (2006) 228 CLR 152 at [148].
The Minister also submitted that a court should not lightly find that such reasoning is irrational or illogical, calling in aid the decision of the High Court in Minister for Immigration and Citizenshipv SZMDS[99] (“SZMDS”).
[99] (2010) 240 CLR 611, 625.
Before addressing those grounds, let me first address the Minister’s submission that paragraph 40 of the reasons of Gummow ACJ and Kiefel J in SZMDS stand for the proposition recorded at paragraph 45 of the Minister’s written submissions that “[a] Court should not “lightly” find that reasoning is irrational or illogical”.[100] That is not what paragraph 40 of SZMDS said. The correct extract provided as follows –
However, it should be remarked that what is characterized as the “critical question” should not receive an affirmative answer that is lightly given.
[100] First Respondent’s Outline of Submissions filed 6 June 2016 at p.13.
The “critical question” was whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. It was that “critical question”, howsoever characterised, that Gummow ACJ and Kiefel J said should not receive an affirmative answer lightly given. To my mind, that is a different proposition to the proposition advanced by the Minister.
It is important to keep in mind the “critical question”. It was
Mr Van Dam’s conclusion that none of the court judgments or media articles about the applicant contained any identifying information.
He reasoned that because of that, it was “purely speculative” for the applicant to suggest that unknown individuals could potentially link any reporting to the Iranian authorities thereby attracting the prospect of serious harm.
Counsel for the applicant argued that Mr Van Dam missed the point as Iranians asylum seekers in Australia know the applicant and those persons communicate with Iranians in Iran with the consequence that the applicant could be identified in Iran. Counsel for the applicant submitted that it was irrational to suppose that a person cannot be harmed by reason of allegations a decision-maker in a different country thinks are untrue.
In my view, Mr Van Dam fell into error in his conclusion that it was “purely speculative” to suggest that unknown individuals could potentially link any or all of this reporting to the applicant.
That conclusion was illogical or irrational within the conceptions of illogicality and irrationality espoused in SZMDS.[101] As their Honours Crennan and Bell JJ said further –
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.[102]
[101] (2010) 240 CLR 611 at [131].
[102] (2010) 240 CLR 611 at [135].
Was it purely speculative to suggest that unknown individuals could potentially link any or all reporting to the applicant? In my view it was not. The applicant’s detention and circumstances have been well documented as this case has received considerable media analysis and attention. In my view, Mr Burnside QC and Ms Kirwan correctly put the position that Iranian asylum seekers in Australia know the applicant and those persons communicate with Iranians in Iran with the consequence that the applicant could be identified in Iran.
It may be that Mr Van Dam was conveying the notion that an untested theory of there being a link to the applicant by all or any of the reporting was “purely speculative”. If that was the case, he did not say as much. But even if that notion underpinned his thinking,
the conclusion that it was purely speculative that unknown individuals could link any or all reporting to the applicant was, to use the words of Crennan and Bell JJ in SZMDS, “simply not open on the evidence”.
It was very far from speculative that unknown individuals could link any or all reporting to the applicant. Fellow asylum seekers were an obvious group in that category.
Under the rubric of grounds 8 and 9 the applicant argued that he was denied procedural fairness because he should have been offered,
but was not offered, an opportunity to put his response to the suggestion that it was purely speculative to suggest unknown individuals could potentially link any or all reporting to the applicant.
On 19 June 2015 the Full Court of the Federal Court of Australia handed down its judgment in Shrestha v Migration Review Tribunal[103] (“Shrestha”) in which the Full Court extensively reviewed the lengths and breadths of the obligation to accord procedural fairness.
The following propositions represent an accurate distillation of the points held by the Full Court -
a)first, the obligation to accord procedural fairness can be traced to authorities such as Taylor v Taylor,[104] Re JRL; Ex parte CJL[105] and Allesch v Maunz;[106]
b)second, the requirements of procedural fairness include providing a reasonable opportunity for a person such as the applicant to present evidence and make submissions. Two authorities make good that point – Cameron v Cole[107] and Commissioner of Police v Tanos;[108] and
c)third, as an incident of the judicial power exercised pursuant to Chapter III of the Constitution, procedural fairness lies at the heart of the judicial function, providing each party with an opportunity to be heard, to advance its own case and to answer by evidence and argument the case put against that party. That is to paraphrase the observations of French CJ in International Finance Trust Co Ltd v New South Wales Crime Commission.[109]
[103] [2015] FCAFC 87.
[104] (1979) 143 CLR 1.
[105] (1986) 161 CLR 342.
[106] (2000) 203 CLR 172.
[107] (1944) 68 CLR 571.
[108] (1958) 98 CLR 383.
[109] (2009) 240 CLR 319.
In Shrestha, the Full Court addressed the notion that the entity bound by the obligation of procedural fairness (curial or administrative) will have “listened with a mind capable of persuasion to what the parties have had to say, rather than a certainty simply borne of some inner judicial conviction”.[110]
[110] [2015] FCAFC 87 at [51].
Counsel for the applicant argued that Mr Van Dam was required to have given the applicant an opportunity to be heard before concluding that events were “purely speculative” in the way he did. The Minister submitted Mr Van Dam was not required to give a running commentary of his thoughts as they were forming, citing SZBEL.
In my view, the conclusion of pure speculation was not a running commentary. The conclusion was reached after the case had been heard by Ms Shields and, as it happened, not even by Mr Van Dam.
Before reaching that conclusion, in my view Mr Van Dam should have, but failed to, alert the applicant to the prospect that the applicant’s evidence in relation to media articles containing identifying information was not finding favour with Mr Van Dam and that the applicant could seek to persuade Mr Van Dam on the matter if the applicant wished. Mr Van Dam did no such thing. To my mind,
his failure to do that was not properly characterised as a
‘running commentary’ matter. Equally, Mr Van Dam should have “listened with a mind capable of persuasion” to what the applicant had to say, rather than engaging in the course that he did.
In my view the error was substantive.
The applicant succeeded on grounds 8 and 9.
Ground 10
This ground brought the concept of legal unreasonableness into sharp focus.
The relevant passage in the protection obligations evaluation outcome was as follows –
Added to this are various elements of the claim that are inadequately explained or are implausible on face value:
* That a young woman, presumably a virgin, who was a member of Iran’s ‘moral’ police, from a conservative family, would accompany the claimant alone to his house and agree, albeit reluctantly to have sex, after such a short period.[111]
[111] Court Book filed 6 April 2016 at p.312.
The applicant argued that no evidence about that aspect of Iranian society was advanced to support the observations expressed by
Mr Van Dam in that paragraph. The applicant relied on the observations in Li[112] as the formulation of his legal unreasonableness propositions.
[112] (2013) 249 CLR 332 at [76].
Mr Hill argued that there was no need for evidence to reach a state of non-satisfaction. The Minister submitted that Mr Van Dam did not need evidence before not being satisfied that the claim was plausible.
The Minister submitted that while Mr Van Dam required evidence to be satisfied of a claim, he did not require evidence not to be satisfied of a claim. The Minister relied on the observations of the Full Court of the Federal Court of Australia in Minister for Immigration and Multicultural Affairs v Lay Lat[113] to the effect that findings of fact are not necessarily required to support a state of non-satisfaction.
The Minister argued that Mr Van Dam’s state of non-satisfaction was open. The Minister contended that it fell to the applicant to provide evidence and arguments in sufficient detail to enable Mr Van Dam to “establish the relevant facts”, citing Aporo v Minister for Immigration and Citizenship.[114]
[113] (2006) 151 FCR 214.
[114] [2009] FCAFC 123 at [45].
The Minister further submitted in writing that evidence was available capable of rationally supporting the conclusion that it was implausible that the relevant woman would agree to have sex with the applicant.
By way of example, the Minister said it was open to Mr Van Dam to conclude that the mere fact that the woman was a member of Iran’s moral police meant that it was implausible that she would readily agree to have sex with the applicant after a short period.
In my view, that explanation was a particularly poor illustration of the point. The concept of “Iran’s moral police” was not explained by
Mr Van Dam. The noun (if it be a proper noun in fact) is not so
well-known that all values, attributes and behavioural characteristics possessed by Iran’s moral police are to be gainsaid. Mr Van Dam proceeded on the basis that the applicant’s girlfriend, a member of Iran’s moral police, ipso facto behaved in a particular manner generally, but sexually-specific, by reason of her membership of Iran’s moral police. Unless the behavioural characteristics of Iran’s moral police were so well-known that those characteristics came to be known by Mr Van Dam (and if they did, he did not say) then the plausibility of Iran’s moral police behaving in a certain way or the implausibility of them behaving in a different way was impossible for Mr Van Dam to say. That is no more than a matter of pure logic.
There was no evidence on which Mr Van Dam said what he said about the implausibility of a woman being a member of Iran’s moral police behaving sexually as the applicant’s girlfriend did. I do not agree that any challenge to Mr Van Dam’s conclusions represented an impermissible merits review. For that matter, the decision of the
High Court in Minister for Immigration and Citizenship v SZJSS[115] required me to give this issue “proper, genuine and realistic consideration”.[116] By undertaking that task I am not thereby engaging in a merits review.
[115] (2010) 243 CLR 164.
[116] Ibid.
Legal unreasonableness
Legal unreasonableness is a concept of administrative law of very great longevity. On one line of authority, it can be traced to the 1598 decision of Rooke’s Case.[117] There, it was held that the discretion of the Commissioners “ought to be limited and bound by reason and law”.[118]
[117] (1598) 77 ER 209.
[118] (1598) 77 ER 209, 210.
In Sharp v Wakefield & Ors,[119] Lord Halsbury LC held that the phrase “according to law” required something done within the discretion of an authority to be done according to the rules of reason and justice.
It is to be legal and regular, not arbitrary, vague or fanciful.
[119] [1891] AC 173, 179.
In the context of lawfulness of decision-making, the rationality required by “the rules of reason” is an essential element. French CJ observed so much in Li.
Legal unreasonableness has traditionally focused on statements by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp[120] (“Wednesbury”). There, his Lordship addressed the decision appealed against being so unreasonable that no reasonable tribunal, acting within jurisdiction and according to law, would have made it.
[120] [1948] 1 KB 223, 230.
That formulation of unreasonableness has been criticised for “circularity and vagueness” as did Gummow J in Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Livestock Corporation.[121]
[121] (1990) 96 ALR 153, 166.
Yet, as Hayne, Kiefel and Bell JJ pointed out in Li, the formulation of unreasonableness in Wednesbury is not the starting point nor is it the endpoint. Their honours said the following –
Lord Greene MR’s oft-quoted formulation of unreasonableness in Wednesbury has been criticised for “circularity and vagueness”, as have subsequent attempts to clarify it. However, as has been noted, Wednesbury is not the starting point for the standard of reasonableness, nor should it be considered the end point.
The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision — which is to say one that is so unreasonable that no reasonable person could have arrived at it — nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. This aspect of his Lordship’s judgment may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where a particular error in reasoning cannot be identified. This is recognised by the principles governing the review of a judicial discretion, which, it may be observed, were settled in Australia by House v R, before Wednesbury was decided. And the same principles evidently informed what was said by Dixon J about review of an administrative decision in Avon Downs Pty Ltd v Commissioner of Taxation, which was decided less than 2 years after Wednesbury, at a time when it was the practice of the High Court to follow decisions of the Court of Appeal in England which appeared to have settled the law in a particular area.[122] (footnotes omitted)[122] (2013) 249 CLR 332 at [68].
When principles of Wednesbury unreasonableness are involved,
the court acts on the implied intention of the legislature that a statutory power is to be exercised reasonably and rendering invalid any purported exercise of power that is so unreasonable that no reasonable repository of power could have exercised the impugned power or made the impugned decision. So much was held in Attorney-General (NSW) v Quin[123] (“Quin”). That much aligned with comparable observations on the concept of unreasonableness emanating from such cases as Buck v Bavone,[124] Kruger v Commonwealth of Australia[125] (“Kruger”), Minister for Immigration and Multicultural Affairs v Eshetu[126] (“Eshetu”), Peko-Wallsend, Norbis v Norbis,[127] Chan Yee Kin v Minister for Immigration and Ethnic Affairs[128] and Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd.[129]
[123] (1990) 170 CLR 1, 36.
[124] (1976) 9 ALR 481.
[125] (1997) 190 CLR 1.
[126] (1999) 197 CLR 611.
[127] (1986) 161 CLR 513.
[128] (1989) 169 CLR 379.
[129] (1994) 182 CLR 51.
In Li, French CJ held that a disproportionate exercise of an administrative discretion, “taking a sledgehammer to crack a nut”[130] may be characterised as irrational and also as unreasonable.
[130] (2013) 249 CLR 332 at [30].
Whether Australian jurisprudence on the subject of legal unreasonableness has progressed to the point of embracing Gageler J’s formulation in the Canadian case of Dunsmuir v New Brunswick[131] must await further consideration at appellate level.
[131] [2008] 1 SCR 190.
In my view, when concluding that it was implausible on face value that a young woman, a member of the Iran’s moral police, would agree to have sex with the applicant, Mr Van Dam acted in a legally unreasonable way. He had no evidence on which to base that conclusion. Concepts of plausibility engaged the rules of reason (in the manner to which French CJ alluded in Li) in such a way that the conclusion of implausibility should have been based on the material.
Mr Van Dam had no basis for his conclusion about how Iran’s moral police behaved, whether they adopted a particular predictable pattern of behaviour in relation to certain issues (sexual matters especially) and if so, whether the applicant’s girlfriend behaved in such a manner.
Mr Van Dam was seized of no such information. For that matter, whosoever comprised the body that he described as “Iran’s moral police” was not in the material before Mr Van Dam.
For Mr Van Dam to then proceed in his chain of reasoning to conclude “on face value”[132] (whatever that meant) as to the implausibility of a certain state of affairs was to jettison rules of reason and to make a decision based on other, unreasonable considerations. Whether that basis was Mr Van Dam’s preconception about Iranian society,
as counsel for the applicant urged, need not be decided by me. Suffice it to say, I am of the view that ground 10 was made out.
[132] Court Book filed 6 April 2016 at p.312.
Ground 11
As a separate ground of review, the applicant contended that
Mr Van Dam had engaged in legal unreasonableness in finding that various elements of the claim were inadequately explained or were implausible on face value (including) –
That no adequate explanation has been given as to how the woman’s brothers were able to find out about the relationship,
as well as being able to find the applicant’s place of residence.[133]
[133] Ibid.
The applicant’s counsel submitted that the applicant could not reasonably be expected to know how the brothers were able to find out about the relationship because the applicant could not be supposed to know, within his own knowledge, what operated on the brothers’ minds.
In written submissions, the Minister, at least consistently if nothing else, submitted that this ground should be dismissed because of the stringent tests associated with conclusions about irrationality or illogicality. Alternatively, the Minister submitted that the applicant could have offered some knowledge, even if hearsay.
In my view, Mr Van Dam acted unreasonably in reaching the conclusion that no adequate explanation had been given about how the woman’s brothers were able to find out about the relationship.
The explanation, and one that to my mind was perfectly adequate,
was that he did not know and that the questioner should ask the brothers. Rather than reaching that conclusion, Mr Van Dam reasoned that no adequate explanation had been given. The explanation by the applicant was perfectly adequate. It should have been accepted. But in not accepting that explanation, then concluding that no adequate explanation had been given, Mr Van Dam did as no administrative body should have done, hence he acted in a legally unreasonable manner. He jettisoned, again, the rules of reason. Mr Van Dam did what cases such as Wednesbury, Quin, Eshetu, Kruger, Peko-Wallsend and others instruct should not be done.
This ground of review succeeded as well.
Conclusion
The applicant succeeded on each ground. Declarations and injunctions must be made. The Minister must pay the applicant’s costs. In so far as it may be necessary for me to do so, I certify for her Majesty’s counsel and for junior counsel for the applicant.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 24 November 2016
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