AKQ16 v Minister for Immigration
[2019] FCCA 90
•23 January 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKQ16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 90 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether Authority’s decision was legally unreasonable – consequences of invalid s.473GB Certificate – jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.359, 424A, 473CB, 473DB, 473DC, 473DD, 473DE, 473GB, pt.7AA |
| Cases cited: AYF16 v Minister for Immigration & Border Protection [2018] FCAFC 129 Minister for Immigration & Border Protection v AMA16 (2017) 254 FCR 534 |
| Applicant: | AKQ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 1811 of 2017 |
| Judgment of: | Judge Smith |
| Hearing date: | 6 November 2018 |
| Date of Last Submission: | 20 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 23 January 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the First Respondent: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1811 of 2017
| AKQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority made on 5 June 2017. The Authority affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
The applicant is a citizen of Iraq who arrived in Australia by boat on 11 November 2012. On 30 June 2015 he lodged an application for a protection visa. His claims for protection were summarised accurately in the Minister’s written submissions as follows:
11.The applicant claims to be a Shi’a muslim who started to work in Karbalaa as a chef in 2007 for a food and security company that was owned by the Badr Organisation, a former Shi’a militia group.
12.The applicant claimed that there was a bitter conflict between the Badr Organisation (backed by Ammar Al-Hakeem) and the Mahdi Army (backed Moqtada Al-Sadr). He claimed that many people who worked for the company were subject to abduction and assassination. The applicant claimed that he was pressured to provide information about members of the company and the Badr Organisation to the Mahdi Army.
13.The applicant claimed that in March 2012 an armed group raided his family residence, killing his wife and daughter and then bombing the residence. The death certificate stated that his wife and daughter had died from “fire shots”; when the Delegate asked the applicant what this meant he said that it usually meant the use of hand grenades. The applicant claimed that the Mahdi Army was responsible for the deaths and afterwards family members and members of his claim threatened to carry out a vendetta against the Madhi Army.
14.The applicant claimed to fear harm by reason of his religion, particular social group (“PSG”) and political opinion. He was a moderate Shi’a who would be labelled an apostate by radical Islamist groups. He claimed to be a member of a PSG comprising “moderate Iraqis who serve Shi’a and special visitors through a Shi’ite organisation” and would be seen as a collaborator and heretic by radical fundamentalists. The applicant claimed he would be imputed with views hostile to the fundamentalist goal of establishing Iraq as an Islamic state based on Shari’a law.
(Emphasis in original, references omitted)
On 17 December 2015 a delegate of the Minister decided to refuse to grant the applicant a protection visa. That decision was then referred to the Authority for review under pt.7AA of the Migration Act 1958 (Cth).
On 29 January 2016 the Authority made a decision to affirm the delegate’s decision; however, on 6 April 2017 this Court ordered by consent that the Authority’s decision be set aside and the matter was remitted to the Authority to complete its review.
On 5 June 2017 the Authority made another decision to affirm the delegate’s decision.
Authority’s decision
The reasons for the Authority’s decision were accurately set out at [19] of the Minister’s written submissions:
19.Relevantly, the IAA made the following findings:
a.The IAA stated that it had had regard to the material referred to the IAA by the Secretary under s.473CB of the Act and the “IAA case file material” associated with the Original Decision (at [3]);
b.The “referred information” indicated that the applicant had been charged with assault but the applicant had not made any claim about this and the IAA considered the information to be irrelevant to the review (at [4]);
c.Based on country information, and the applicant’s problematic evidence, it did not accept that the applicant received any threat or warning from the Mahdi Army or other militant Shi’a groups, was offered bribes by such groups or asked to undertake certain actions (such as poisonings) by such groups. It did not accept that the applicant would be perceived as an apostate (at [9]-[30]);
d.The applicant gave differing accounts of the death of his wife and children, no independent evidence was provided that the applicant’s house was raided or bombed and the death certificates of the wife and daughter did not specify the circumstances of the deaths, save for the reference to “fire shots” (at [31]-[35]);
e.It accepted that the applicant’s wife and daughter had died by “fire shots” (referred to by the IAA as a “type of hand bomb”) on 4 Marc 2012. It considered it to be “speculative to make findings as to who killed them and why they were killed”. It went on to note that it had found that the applicant had not been the subject of adverse interest from the Mahdi Army or other militia groups (at [36]);
f.The IAA noted that the applicant claimed that the security situation since the applicant left Iraq in June 2014 had changed dramatically and worsened in terms of internal violence and the collapse of public protection. The IAA considered a range of country information and, based on that information, concluded it was not satisfied that the applicant faced a real chance of harm (at [48]-[54]).
(Error in original, references omitted)
Consideration
First ground: the Authority’s decision was legally unreasonable
This ground is based on the fact that the Authority accepted that the applicant’s wife and daughter were killed by a type of hand bomb but later found that the applicant had not suffered harm due to the general or security situation. It was argued that the latter finding could not reasonably sit with the first and, given that the second finding was material to the Authority’s decision, that the whole decision was bad for legal unreasonableness.
The legal basis for this ground was summarised by the Full Court of the Federal Court in Gill v Minister for Immigration & Border Protection (2017) 250 FCR 309 at [59] – [62]:
[59]The Tribunal’s determination under s 65(1) of the Act that it was not satisfied that the appellant met the criteria prescribed by the Act and Regulations for the grant of a skilled visa turned on a jurisdictional fact (see Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32; 78 ALJR 992 (SGLB) at [37]-[38] per Gummow and Hayne JJ and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS) at [102] per Crennan and Bell JJ). Those judgments also stand for the proposition that such a determination is vitiated by jurisdictional error if the determination was “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.
[60]In SZMDS, Crennan and Bell JJ emphasised at [131] that the test for illogicality or irrationality:
… must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[61]Their Honours further explained at [133] that the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it.
[62]Additional relevant principles concerning a claim of jurisdictional error based on illogical or irrational findings of fact or reasoning were summarised as follows by the Full Court (Griffiths, Perry and Bromwich JJ) in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]:
Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, “extreme” illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).
The first passage relied on by the applicant was at [36] of the Authority’s reasons:
36.I accept that the applicant’s wife and daughter died on 4 March 2012 and the cause of death was ‘fire shots’, a type of hand made bomb as explained by the applicant at the TPV interview. I accept that the applicant was not present when this incident occurred. On the evidence before me, however, I consider it entirely speculative to make findings as to who killed them and why they were killed. …
The second part of the Authority’s reasons relied on was [54]:
54.There is no credible evidence to suggest that the applicant suffered harm in Karbala due to the general or security situation. I accept that the situation in Iraq has changed and worsened since the applicant left Iraq in 2012. However, DFAT advises above that southern Iraq has remained secure. Shias in the southern provinces are at a low risk of violence. … I find there is only a remote chance that the applicant will be caught up in generalised violence, sectarian violence or tribal conflicts in southern Iraq upon return.
The applicant contended that the first sentence in [54] shows that the Authority necessarily reasoned that the bombing of his house and killing of his daughter was not harm to the applicant. He argued that that reasoning was perverse because it was plain and unarguable that the death of a person’s daughter inflicted harm on that person. He relied on several authorities for that proposition[1] and it may be accepted. However, in my view, the context of the first sentence in [54] is important and establishes that there was a rational basis for the Authority’s conclusion that the applicant did not face a real chance of harm in Iraq due to the general or security situation.
[1] El Merhabi v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 375 at 380 – 381 (Burchett J) and NBCY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 922 at [25] (Tamberlin J).
The context of [54] was the Authority’s consideration of the general situation pertaining in Iraq as opposed to the situation, claimed by the applicant, that he would be targeted for what he had done. The context involved a level of specificity in that it included consideration of sectarian violence and the fact that the applicant was a Shia Muslim. However, overall, the Authority was considering the level of risk of violence that faced the general population in Iraq and the applicant’s home town in particular. Further, the hypothesis being addressed by the Authority in this part of its reasons was that the applicant would return to Iraq. Given that it had accepted that the applicant had lost both his wife and daughter, that hypothesis did not include any harm that the applicant might face as a result of harm suffered by his wife or daughter. Once that is accepted, the statement that the applicant had not “suffered harm … due to the general or security situation” did not, as contended by the applicant, suggest that the applicant had not suffered as a result of the death of his wife and child.
For those reasons, properly understood, the Authority’s decision was not affected by legal unreasonableness and the first ground is rejected.
Second to fourth grounds: the consequences of an invalid s.473GB certificate
Amongst the documents sent to the Authority for the purposes of its review were a certificate purportedly issued under s.473GB of the Act and the documents to which that certificate related, namely, an identity assessment form. It was accepted by the Minister that the certificate was invalid and the applicant ultimately accepted that the identity assessment form had been before the delegate when he had made his decision. Those concessions are accepted.
The applicant’s argument was that it should be inferred that the Authority considered the certificate and fell into the same errors identified by Derrington J in CED16 v Minister for Immigration & Border Protection [2018] FCA 1451. That is, the Authority wrongly thought that the certificate prevented it from giving particulars of it to the applicant and so acted on a misapprehension of its powers. The Minister argued that, to the extent that CED16 was inconsistent with the earlier decision of Minister for Immigration & Border Protection v BBS16 (2017) 257 FCR 111 it ought not to be followed and, in any event, it was distinguishable from the facts of this case.
A question arose at the hearing as to whether CED16 was inconsistent with the decision of the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 and, if so, which decision was binding on this Court. The parties were given leave to file written submissions addressing that question.
Relevant statutory regime
The relevant statutory scheme has been described in detail on a number of occasions[2] and need only be outlined briefly for present purposes.
[2] Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 at [13] – [38]; BBS16 at [85] – [98]; Minister for Immigration & Border Protection v AMA16 (2017) 254 FCR 534 at [12] – [27].
When a relevant decision is made by a delegate of the Minister, it is referred to the Authority for review and the Secretary of the Department must provide the Authority with, amongst other things, the documents that were before the delegate including material that was provided by the visa applicant and material he or she considers is relevant to the review: s.473CB. While the Authority will ordinarily decide the review on the papers (s.473DB), it may also get “new information”: s.473DC.
“New information” is any document or information that was not before the Minister when the Minister made the decision under review and that the Authority considers may be relevant: s.473DC(1).
The Authority can only consider any “new information” for the purposes of making a decision in relation to the delegate’s decision if the conditions referred to in s.473DD are met. If those conditions are met then, subject to further conditions, the Authority may be required to give the applicant particulars of the “new information”: s.473DE.
Section 473GB provides for a certificate to be given in respect of information which the Minister considers should not be disclosed because it is subject to public interest immunity. If there is such a certificate, the Authority may disclose the information, but must have regard to any advice from the Secretary on that issue and must give a direction to the applicant restricting further disclosure of the information.
CED16 v Minister for Immigration & Border Protection
In BBS16 the Full Court of the Federal Court held, at [90] – [97], that a certificate purportedly issued under s.473GB of the Act was part of the “review material” referred to the Authority but was not “new information” within the meaning of s.473DC(1). For that reason, the consequences of the invalidity of such a certificate must be considered under s.473GB rather than by reference to provisions such as ss.473DD or 473DE.
This aspect of the decision in BBS16 was applied by another Full Court in BVD17 v Minister for Immigration & Border Protection [2018] FCAFC 114 and yet another in AYF16 v Minister for Immigration & Border Protection [2018] FCAFC 129. However, in CED16, Derrington J came to a different view.
The issue in CED16 was how the Authority was to deal with information in a certificate that was purportedly given under s.473GB and the information to which it related where the certificate was invalid.
The certificate in that case, as in the present case, concerned the information in an identity assessment form. That form was before the delegate when the original decision was made: [7]; however, the certificate, which was invalid, was not: [7].
The first issue dealt with by Derrington J was whether the certificate, which was not before the delegate, was “new information” within the meaning of s.473DC(1). His Honour rejected the Minister’s submission that this question was conclusively decided by the Full Court in BBS16 in light of the more recent decision of the High Court in Plaintiff M174/2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481 and, in particular, the following statement in the judgment of the plurality:
[27]Information contained in review material given to the Authority by the Secretary that was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa will become new information if and when the Authority considers that the information may be relevant. The Authority will not need to invoke s 473DC in order to receive that new information. However, given that the Authority’s obligation under s 473DB(1) to conduct its review by considering the review material is subject to Pt 7AA, the Authority will need to comply with s 473DD, and where applicable s 473DE, if the Authority is to take that new information into consideration.
His Honour then considered whether the applicant had established that the Authority had in fact considered the certificate and the identity assessment form. In this respect, his Honour said, at [38]:
[38]However, the Minister’s reliance upon the appellant’s inability to show how the IAA actually dealt with the information in the invalid Certificate and IA Form was grounded upon the assumption the IAA was not bound to treat either as containing “new information”. If that assumption is correct and s 473GB applied even where the certificate was invalid, the manner the IAA dealt with the information could be hidden from view. However, if, as appears to be the case, the IAA was required to treat either document as containing “new information”, it would have been required to give particulars of that information to the appellant. It is accepted that was not done. It follows that two things can be known about the manner in which the IAA dealt with the information in the Certificate and IA Form:
(a)First, it did not provide particulars of the information to the appellant which, as will be seen, necessarily means it did not treat the information as “new information”.
(b)It can inferred that the IAA believed its discretion in s 473GB(3) was enlivened, and it proceeded to undertake the review on that basis.
There are a number of matters that are not clear about this passage: first, why his Honour considered both the identity assessment form and the certificate in this paragraph. As already noted, the form was before the delegate and so could not, on any view, have been “new information”: sub-s.473DC(1)(a).
Secondly, why his Honour posed the issue by reference to the Authority being “required to treat either document” as containing “new information”. The second component of “new information” is that the Authority (not the Court) considers that the information may be relevant: see CDZ16 v Minister for Immigration & Border Protection [2017] FCA 967 at [10].
Thirdly, why his Honour found that, once the information was “new information” the Authority would have been required to give particulars of that information to the appellant. That his Honour did so is evident from his reasoning that the fact that the Authority did not give the applicant particulars of the information necessarily meant that the Authority did not treat it as “new information”.
The answer to the second and third of these questions appears later in his Honour’s reasons where his Honour first found that the certificate was not before the delegate and then stated:
[40]On that basis the information in the s 473GB Certificate would, prima facie, fall within the definition of “new information” in s 473DC(1). It also appears it would satisfy the requirements of s 473DE(1)(a) and there was no submission to the contrary.
(Emphasis in original)
Section 473DE is thus important to his Honour’s reasons. It relevantly provides:
473DE Certain new information must be given to referred applicant
(1)The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a)give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
...
(Emphasis added)
Sub-section 473DE(1)(a) is in relevantly identical terms to sub-s.359(1)(a) and sub-s.424A(1)(a) of the Act. The latter of those provisions was considered by the High Court in SZBYR. At [16] – [19] of their reasons, the plurality discussed the limiting effect that this had on the obligation imposed by s.424A(1). Their Honours relevantly said, in a passage that has been applied in hundreds of cases since:
[17]Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the Tribunal”, or “the Tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.
It would be a surprising result if sub-s.473DE(1)(a)(ii) were to bear a different meaning to the identical words in sub-s.424A(1)(a). In construing statutory language it is ordinarily understood that the legislature pursues its objectives by coherent means: SAS Trustee Corporation v Miles (2018) 92 ALJR 1064 at [41] (Gageler J) citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]-[71]. There would be significant incoherence if the same words in a statute gave rise to different obligations.
If the reasons in SZBYR were to apply to s.473DE(1) it would mean that there would be no obligation under that provision to provide particulars of any information that did not “contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”. Having regard to the terms of the certificate I would conclude that nothing in that document met that description and, as a result, that there was no obligation under s.473DE. As a corollary of that conclusion, I would not infer that the Authority had acted on the assumption that the certificate was not “new information”. I would then conclude that the applicant had not established a necessary factual component of his argument and so reject the grounds relying on that component.
However, where there is, as here, a decision of a Court higher in the judicial hierarchy that has, as part of its ratio decidendi, a particular proposition of law, it is not for this Court to decide whether that proposition of law is incorrect. Subject to what follows, that must be left to a Court of equal or higher authority than that which delivered the binding authority.
It appears that sub-s.473DC(1)(b), sub-s.473DE(1)(a)(ii) and the decision of the High Court in SZBYR were not brought to the attention of Derrington J. Indeed, his Honour noted at [39] there was no contention that, contrary to what I have said, that s.473DE(1) did not apply. However, as I have observed, his Honour’s decision is binding on this Court.
In Orica Limited v Commissioner of Taxation of the Commonwealth of Australia (2001) 182 ALR 77 Merkel J explained, at [49], that a court is not bound to follow a decision that it would otherwise be bound to follow if it is satisfied that the decision was given per incuriam. One example of a per incuriam decision is where a statutory provision, which would have affected the decision, was not brought to the attention of the court: see Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718 at 728-730 per Lord Greene MR.
The applicant argues, and I accept, however that the law about the binding nature of decisions such as this was as stated by Bromwich J in Prentice v Fewin [2017] FCA 490 at [40]:
[40]… Stec at [24] is binding and inescapable. There is no room for a finding that the conclusions reached were arrived at per incuriam by reason of the Full Court overlooking the possibility that difference in capacities in which competing claims are made or received could be overcome by resort to equitable set-off. Even if it might be concluded that such a principle had been in some way overlooked per incuriam so as to render the conclusion reached distinguishable because of the absence of consideration of such equitable principles, it is not open to a single judge to disregard a prior Full Court decision upon that ground. The ambit of the decision of Stec cannot be sidestepped in that way. I cannot improve upon what was said on this topic by the Full Court in Algama v Minister for Immigration and Multicultural Affairs [2001] FCA 1884; (2001) 115 FCR 253 at 261:
[39]In Foster v Northern Territory [1999] FCA 1235 at [32] (French, Tamberlin and Sackville JJ, 31 August 1999, unreported), a Full Court of this Court exercising original jurisdiction described submissions made by the applicants before it that a particular decision of the High Court of Australia did not bind the Full Court as “an invitation to revisit the decision on the basis that not all materials or arguments that could have been put before the Court were put before it”. The Full Court continued, “The applicants’ submissions amount to an invitation to find that the decision of the High Court was made per incuriam”. In rejecting that invitation, the Full Court quoted approvingly what Moffitt P had said in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177:
“The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it only decided the question apparently argued before it or on the basis that its reasons were its decision.”
The Full Court in Foster also, without quoting it, invited attention to what Lord Diplock had said in Cassell & Co Ltd v Broome [1972] AC l027 at 1131. Lord Diplock’s remarks, which had been quoted by Moffitt P in Proctor at 179, had foreshadowed those later made by Moffitt P in Proctor.
[40]In addition to what had been said by Moffitt P in Proctor and by Lord Diplock in Cassell, we note that a majority of the Judicial Committee of the Privy Council (Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy), relying on Cassell, had expressed a similar view about the operation of the per incuriam rule in Baker v The Queen [1975] AC 774 at 788 (as had the sole dissentient, Lord Salmon, at 795). The majority had pointed out that to permit the use of the per incuriam rule by a court inferior to the court the precedential effect of whose decision was in issue “would open the door to disregard of precedent by the court of inferior jurisdiction by the simple device of holding that decisions of superior courts with which it disagreed must have been given per incuriam”.
[41]We agree with the approach to the per incuriam rule taken by the courts (including a Full Court of this Court) to which, and the judges to whom, we have referred above …
(Emphasis in original)
The Minister accepted both that this statement was correct and that it was, in any event, binding on this Court. However, he argued that the exception to the principle stated in Prentice is where there are two authorities at the higher level that are in conflict. In those circumstances, the Court at the lower level is able to act on its own opinion as to which is the more convincing: Baker v The Queen [1975] AC 774 at 788.
The difficulty with the Minister’s argument is that he could point to no authority at the level of the Federal Court or above that was directly applicable to the issue before me. While, for the reasons I have outlined above, the reasoning in SZBYR is inconsistent with CED16, and, absent authority, I would apply the reasoning in it to the relatively identical terms of s.473DE, it did not deal with s.473DE and so is not binding in respect of that provision.
That conclusion, however, does not resolve the issues in the proceedings. That is because the decision in CED16 only determined that a certificate purportedly issued under s.473GB of the Act was prima facie “new information and, if it is “new information”, that an obligation under s.473DE arises in respect of it. As I have observed, the second component of “new information” depends on whether the Authority considered that the information or document might be relevant. As the identity assessment form was before the delegate it was not “new information” and the question is whether the Authority considered that the certificate itself may be relevant. In the context, information may be relevant if it may have a bearing on the decision to be made on the review.
The certificate is not expressly referred to in the Authority’s reasons for decision. At [3] of its reasons the Authority states that it has had regard to the “material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act)”. It may be accepted that the certificate was part of the material and, on that basis, I accept that the Authority had regard to it. However, I do not accept that it considered that the certificate may be relevant in the relevant sense. The fact that it is not referred to is not conclusive in circumstances where it is at least possible, if not probable, that the Authority acted on the basis that the certificate was valid and it was obliged not to disclose it. However, there is no information in the certificate that could rationally have affected the decision on review. Apart from a reference to a number of documents and the expression of the view that the information should not be disclosed (and the reason for that view), the certificate only states the effect of s.473GB and gives the name and certain other particulars of the author of the certificate.
The reasons of the Authority reveals that it understood the issues that were to be decided on the review. I infer that the Authority was acting rationally and so did not consider that the certificate may be relevant to the review. Accordingly, the certificate was not “new information”.
In those circumstances, the facts of this case are distinguishable from those in CED16 and the errors found in that case did not occur here.
Conclusion
There is no jurisdictional error in the Authority’s decision. The application must be dismissed.
I certify that the preceding forty-fix (46) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 23 January 2019
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