ALR17 v Minister for Immigration
[2018] FCCA 3407
•22 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALR17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3407 |
| Catchwords: CITIZENSHIP AND MIGRATION – Migration – review of decisions – protection visa decisions – fast track review process – reviewable decisions. |
| Legislation: Migration Act 1958 (Cth), ss.5H(1), 5J(1), 5J(5), 36(2)(a), 36(2)(aa), 51A, 57, 357A, 422B, 473CB, 473DA, 473DB(1), 473GA, 473GB, Part 7AA |
| Cases cited: AMA16 v Minister for Immigration [2016] FCCA 303 Annetts v McCann (1990) 170 CLR 596 BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76 DBE16 v Minister for Immigration [2017] FCA 942 Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494 DVE16 v Minister for Immigration [2017] FCCA 2084 Jarratt v Commissioner of Police for NSW (2005) 224 CLR 44 Kioa v West (1985) 159 CLR 550 Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Salopal v Minister for Immigration and Border Protection [2018] FCA 1308 Twist v Randwick Municipal Council (1976) 136 CLR 106 Williams v The Official Assignee of the Estate of William Dunn (1908) 6 CLR 425 |
| Applicant: | ALR17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | BRG 90 of 2017 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 12 December 2017 |
| Date of Last Submission: | 12 December 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 22 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kline |
| Solicitors for the Applicant: | Sajen Legal |
| Counsel for the Respondent: | Mr McGlade |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The amended application filed on 29 September, 2017 dismissed.
The applicant pay the first respondents costs of and incidental to the application fixed in the sum of $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 90 of 2017
| ALR17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a national of Sri Lanka. He arrived in Australia by boat on 27 August, 2012. For the purposes of the Migration Act 1958 (Cth) he is an unauthorised maritime arrival. He lodged an invalid application for a Protection (Subclass 866) visa and on 21 September, 2015 he applied for a Safe Haven Enterprise (subclass 790) visa.
On 30 August, 2016 a delegate of the first respondent refused to grant the Safe Haven Enterprise visa. Because the delegate’s decision was a fast track reviewable decision it was referred to the second respondent in accordance with s.473CA of the Act. On 9 January, 2017 the second respondent affirmed the delegate’s decision not to grant the applicant a Safe Haven Enterprise visa.
By these proceedings the applicant seeks that the second respondent’s decision be quashed and his visa application be remitted to the second respondent to be determined according to law. He argues that the second respondent denied him procedural fairness when making its decision. The first respondent opposes the application. The second respondent entered a submitting appearance.
The issue raised by this proceeding is whether s.473DB(1) of the Migration Act excludes the applicant’s common law right to be heard in respect of any matters adverse to him in the review conducted by the second respondent.
Background
The applicant consistently throughout his visa application process and on review to the second respondent, claimed to be a Catholic Tamil from Mannar, Northern Province, Sri Lanka. His family and he absconded to India in 1990 to avoid the civil war conflict in Mannar. They lived in India until 1992. While living in Sri Lanka during the civil war, as a child, he was frequently stopped at army checkpoints to undergo security and identity checks. He was an active member of his church and a regular worshipper. The second respondent accepted all of those claims. It also noted that he did not claim to have ever been prevented from practising his religion in the past or harmed for being a Christian. He did not claim that he would be prevented from practising his religion if he returned to Sri Lanka. Consequently, it found that the applicant did not have a well-founded fear of serious harm based on his involvement in or practice of his religion.
As part of his church community activities and projects, the applicant was involved in distributing food and goods to Tamils displaced and detained in army camps after the war. In 2011 he became involved in, encouraged people to be involved in and assisted with making and distributing banners for a protest about the treatment of Tamil Catholics who remained displaced after the war. The applicant’s involvement in that protest did not attract the adverse attention of the Sri Lankan authorities. The Bishop of Mannar was outspoken on human rights and a critic of the government. The applicant was involved in logistical arrangements for a rally held in 2012 in support of the Bishop. The second respondent accepted these claims as well.
Subsequent to the 2012 rally, in June of that year, the applicant was approached by the Criminal Investigation Department, told to report to the CID office and was interrogated about information with respect to his church activities. In July, 2012 he was approached by CID officers and, he says, he was abused, physically assaulted and threatened because he had not reported back to them. He claims to be fearful for his safety because of the CID. He says it is the reason he left Sri Lanka.
The second respondent accepted that after the 2012 rally the applicant may have come to the attention of the CID and that officers of the CID asked the applicant for information about the church and its activities. The second respondent however, considered the reason for this questioning was that the CID may have seen an opportunity to use the applicant to gather information.
The applicant claims that since his departure the CID have visited his family home. He says they enquired about him and they knew he was overseas. Several letters were submitted in support of the CID interest in the applicant. They demonstrate a few things:
a)that CID security officers visited the applicant’s home “in election time” and that he is in trouble on return;
b)the applicant was “taken into custody and had to face several inquiries”;
c)the applicant’s family had “immense trouble from the intelligence unit of Sri Lanka”;
d)the applicant’s mother has advised that the CID visited her home “in search of him” and “threatened the family members to find out his whereabouts” on a few stipulated dates;
e)the applicant’s mother and sister have faced “nasty treatment” from the CID;
f)the applicant has engaged in community work in Sri Lanka and Australia; and
g)the Elections Office is aware of the applicant living in a foreign country.
The second respondent was not satisfied that the visits to his family home were by the CID. It reached this conclusion because:
a)his evidence lacked any real indication that the visitors were in fact CID;
b)the visitors did not make any threats of harm to the applicant, despite shouting and making “a big scene”;
c)the visitors were likely to be officials from the Elections Office; and
d)the Elections Office might be aware of the applicant’s presence in a foreign country but would only be interested in that information to the extent of citizenship and elections purposes.
Additional to his fear of harm from the CID should he return to Sri Lanka, the applicant fears that Tamils, especially those from the north like him, are viewed with suspicion and as being anti-government. He says he fears he will be identified, detained, interrogated and tortured by the authorities on the basis that he will be seen as a failed asylum seeker. He also claims that his church is still involved in human rights issues and he will be targeted for his past involvement upon his return.
The second respondent turned its mind to the various aspects of the applicant’s claim to fear harm from the CID. It found that:
a)the applicant would not be targeted because of his community work, which could be regarded as humanitarian work, as it did not attract the attention of the authorities at that time and it would not do so now because:
i)the applicant and other volunteers entered the camps in the presence of a priest who managed the process;
ii)the applicant’s role was limited to the manual process of delivery and distribution;
iii)the applicant did not make public declarations or statements regarding human rights abuses; and
iv)the applicant was not publically critical of the government;
b)the applicant would not come to the adverse attention of the CID upon return to Sri Lanka. The second respondent doubted the level of the applicant’s concerns in respect of the CID because:
i)neither the applicant nor his family took any steps to bring to the attention of church officials the CID interest in the applicant;
ii)the applicant was not aware that any other participants or rally organisers experienced harassment from the CID; and
iii)any interest the CID had in 2012 was linked to attempts to obtain information about church activities in the climate which then existed and once the applicant departed Sri Lanka there was no ongoing interest in him;
iv)Sri Lanka’s security situation has improved;
v)Sri Lanka’s government has changed from a repressive to a more proactive position in respect of human rights; and
c)should the applicant be detained in prison upon return for departing Sri Lanka illegally, that brief period of detention would not constitute the necessary level of threat to his life or liberty, or to significant physical harassment or ill treatment under s.5J(5) of the Migration Act or otherwise amount to significant harm for the applicant.
In respect of the applicant’s low level involvement in the rally in 2012 the second respondent found that such involvement would not attract the adverse attention from the authorities now. The second respondent distinguished between outspoken activists such as the Bishop and low level supporters such as the applicant. Further, it found that the applicant would not be at risk due to future community work, which he will likely intend on continuing, because reports of adverse attention have been attracted by high profile human rights activists who have been critical of the government and there is no indication that the applicant would seek to become outspoken about human rights issues. The second respondent was not satisfied that the applicant has or had a high profile as a human rights activist.
The second respondent also found that the applicant would not be at risk arising from being a Tamil or from being from the previously LTTE controlled Northern Province and that the applicant does not face a real chance of harm as a failed Tamil asylum seeker. It found this despite that upon return to Sri Lanka he may be detained and questioned at the airport for up to 24 hours, be fined for departing Sri Lanka illegally and may face a period of time held in prison.
The second respondent also had reference to country information in relation to the situation in Sri Lanka. The following information was the basis for some of its conclusions above. Relevantly, it considered:
a)“The Northern Province was highly militarised during the civil war and the security forces rigorously monitored the civilian population. However the civil war ceased in 2009 and the security situation in Sri Lanka has improved. In 2011 the Government lifted the Emergency Regulations that had provided the security authorities broad powers to arrest and detain suspects and the Department of Foreign Affairs and Trade (DFAT) advises that monitoring of Tamils from the former LTTE areas has decreased under the new government.” It came to that conclusion by reference to a UNCHR article titled “UNHCR Eligibility Guidelines Sri Lanka July 2010” and a DFAT publication titled “DFAT Country Information Report – Sri Lanka”;
b)“The Sri Lankan constitution provides for freedom of religion and Christians comprise 10 percent of the population. There is no restriction on Christian worship, although some harassment of Christians by Buddhists is reported and there have been attacks on places of worship.” It came to that conclusion by reference to a DFAT publication which assessed that most people are able to freely practice their religion in Sri Lanka;
c)“The current UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka provides guidance on the profiles of people at risk of harm and likely to be in need of protection and notes that “threats to and attacks against human rights defenders, trade union activists and lawyers have been documented in numerous reports. Humanitarian workers during the conflict and its immediate aftermath, particularly those who worked with or were perceived as working with human rights or protection issues, can also appropriately be considered within this profile”.”;
d)“Although the Prevention of Terrorism Act remains in force, and there remain credible reports of ongoing arrests and disappearances in Sri Lanka, I note that DFAT reports the improvement in the security situation has resulted in a decrease of the monitoring of Tamils and of the number of Tamils held in detention.”;
e)“According to the current UNHCR guidelines, being of Tamil ethnicity alone or being from a former LTTE controlled area does not give rise to protection needs.”;
f)“Entry and exit from Sri Lanka is governed by [the Immigrant and Emigrants Act 1949] and under this Act it is an offence to depart other than from an approved port of departure. Penalties for leaving Sri Lanka illegally include imprisonment of up to five years and a fine of up to 200,000 Sri Lankan rupees. In practice, penalties are applied on a discretionary basis and are almost always a fine. Returnees are generally considered to have committed an offence under the I&E Act if they departed Sri Lanka irregularly by boat …”;
g)returnees are processed and questioned by several authorities and held in police custody for up to 24 hours until they are transported to the nearest Magistrates Court. If no Court is available returnees may be placed in a prison. Returnees are treated according to standard procedures regardless of their ethnicity and religion and are not subject to mistreatment during the processing period. General prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions. However, no returnee who was merely a passenger on a people smuggling boat has been given a custodial sentence for departing Sri Lanka illegally. Returnees who plead guilty will be fined and released. Returnees who plead not guilty will most likely be granted bail with no conditions. Penalties are more likely to be pursued against suspected facilitators or organisers of people smuggling;
h)the investigation, prosecution and punishment of the applicant for departing Sri Lanka illegally des not amount to persecution for the purpose of ss.5H(1) and 5J(1) of the Act; and
i)failed asylum seekers do not generally attract the attention of authorities unless they have an actual or imputed profile of LTTE links. “DFAT reports that it is not aware of specific monitoring of returned asylum seekers on the basis of their profile as a failed asylum seeker”.
The second respondent ultimately found that the applicant did not meet the requirements of the definition of refugee in s.5H(1) of the Act or the requirements of s.36(2)(a). It then considered that the applicant did not meet the requirements for complementary protection under s.32(2)(aa) of the Act and gave its reasons for that.
Grounds of review
By his amended application the applicant advances one broad ground of review. It is in these terms:
The Immigration Assessment Authority (IAA) denied procedural fairness to the Applicant and thus fell into jurisdictional error
Particulars
(i) The IAA failed to inform the Applicant of the nature of the material before it.
(ii) The IAA failed to alert the applicant to any conclusions, adverse to the Applicant. Which would be open to it on the material before it.
(iii) The IAA failed to give the Applicant the opportunity to address, orally or in writing, any conclusions, adverse to the Applicant, which would be open to it on the material before it.
(iv) In dealing with the review of the Applicant’s claims, on the basis of only one side of the argument, where the Applicant was denied the opportunity to make submissions in his own cause, and the IAA considered itself free to make its decision on whatever material it considered appropriate, without the Applicant being told what that material was, the procedure adopted by the IAA, suffered inherently and by definition, from bias.
(v) The IAA acted on an invalid certificate (the certificate) issued on 2 September 2012, by a delegate of the First Respondent, under s 473GB of the Migration Act 1958 (Cth.)
(vi) The IAA failed to disclose the existence of the certificate to the Applicant.
In his case outline, the applicant states that he no longer presses particulars (v) and (vi). In oral submissions counsel for the applicant said he was not pressing particular (i) due to its broad nature.
The crux of the applicant’s submissions can be summed up by the last few paragraphs of his written submissions (citations omitted):
45. What it comes down to is that the Legislature has introduced an extremely strict review regime under Part 7AA of the Act, where an applicant is denied the right to appear at an interview or hearing before the Reviewer, and denied the right, except in unusual circumstances, to submit new material. This sets these protection visa applicants at a severe disadvantage, viz-a-viz protection visa applicants under Part 7. Can the Legislature be taken, in the absence of “language of irresistible clearness”, to be seeking to also deprive these applicants of that most fundamental of rights: the right to make submissions, in one’s own cause, on any adverse conclusions the IAA is likely to make? It is submitted that it cannot.
46. That is not to say that the IAA would need to “expose his or her thought processes or provisional views to the application”, but it would be required to alert the applicant to “any apparent inconsistencies, contradictions or weaknesses in his or her case which have been identified ...”. It must also advise “of any adverse conclusion which would not obviously be open on the known material,” and give the applicant an opportunity to make submissions on them. It is submitted that this must be seen as an essential of procedural fairness which the Legislature cannot be taken to have excluded from the process.
The first respondent submits that the applicant’s first three particulars to ground one cannot succeed because the relevant provisions of the Migration Act (Division 3 of Part 7AA and ss.473GA and 473GB) provide for an exhaustive statement of the natural justice hearing rule.
Section 473DA provides:
473DA Exhaustive statement of natural justice hearing rule
(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
To exclude the right to be heard, Counsel argues is a serious matter. That right is jealously guarded by the common law: Kioa v West (1985) 159 CLR 550, at 584; Annetts v McCann (1990) 170 CLR 596, at 598; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, at 352; Twist v Randwick Municipal Council ( 1976) 136 CLR 106, at 110; Saeed v Minister for Immigration (2010) 241 CLR 252 at [15]. However, he accepted that if the legislature specifically deals with an aspect of procedural fairness and excludes that, it will be effective. There are clear examples of that in Part 7AA of the Act:
a)s.473CB: the second respondent must conduct a review on materials provided by the Secretary; and
b)s.473DB: the second respondent must conduct a review without interviewing the applicant.
Nonetheless, the applicant contends that s.473DA, or any other part of the Act, does not address an applicant’s right to be heard in relation to matters adverse to him. Whilst he may not be interviewed by the second respondent, he argues that does not mean that he may not be heard in other ways, the most obvious being the IAA writing to the applicant, saying that it is considering certain matters which may be found to be adverse to the applicant and inviting him or her to comment thereon.
The applicant contends that s.473DA(1) should not be seen as sufficient to exclude an applicant’s right to heard in relation to matters adverse to him because its terms:
a)are not expressed in clear and unmistakeable language;
b)are not a “clear manifestation of a contrary statutory intention”: Kioa v West, 584;
c)are not “plain words of necessary intendment”: Annetts v McCann, 598; Plaintiff M61/2010E v Commonwealth, 352;
d)are not “unambiguously clear” and that “the court will approach the construction of the state with a presumption that the legislature does not intend to deny natural justice …”: Twist v Randwick Municipal Council, 110;
e)are not expressed with “irresistible clearness”: Saeed v Minister for Immigration, [15].
The first respondent submits that the applicant has misconceived the scope of the natural justice hearing rule in the IAA regime. He submits that:
a)the common law rules of procedural fairness are capable of being excluded by statute;
b)s.473DA(1) provides an adequate exclusion of the relevant rules of natural justice;
c)Barker J in DBE16 v Minister for Immigration [2017] FCA 942 held that ss.473DA, 473GA and 473GB provide an exhaustive statement of the natural justice hearing rule in relation to reviews and that the IAA is not required to disclose adverse information or potential findings or conclusion to an applicant; and
d)the decision in DBE16 binds this Court.
Counsel for the applicant conceded that his submissions ask the Court to depart from at least one decision by which this Court is bound: DBE16 and to not follow two other decisions of this Court, namely AMA16 v Minister for Immigration [2016] FCCA 303 and DVE16 v Minister for Immigration [2017] FCCA 2084.
He argued that I should not consider myself bound by DBE16 because I am only bound by the ratio decidendi of that case and I was not bound to follow obiter dicta, unless it is persuasive. It will only be persuasive where the Court has had the benefit of proper argument, has been presented with all of the relevant authorities and has given full and reasoned decision. Counsel submitted that DBE16 was not one of those cases. DBE16 was unrepresented, there was no argument on the point, there was no effective contradictor, there were no written submissions, and there were no matters or authorities the subject of argument as there has been before me. He further submitted that procedural fairness was not argued on the appeal in DBE16. For those reasons, the relevant matters in DBE16 were at best obiter and even then, not persuasive obiter.
It may be useful to set out the relevant paragraphs from DBE16 v Minister for Immigration [2017] FCA 942 (my emphasis):
[58] As to the appellant’s second proposed ground of appeal, the delegate, at [64], accepted, despite concerns with the appellant’s credibility, that the appellant may have been extorted whilst working at his business; was beaten when he refused to pay the extortion money; and his shop was looted and torched. The Authority, at [17], found that the appellant had not been the victim of past extortion.
[59] I accept the Minister’s submissions that no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme. The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101];AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]–[12]).
[60] Even if the Court were to read this ground as making the broader approach that the appellant was denied natural justice, because of the decision-making process adopted by the Authority in making a different finding of fact to that made by the delegate, there is difficulty with this proposition too. This is because the decision was made in accordance with Pt 7AA of the Migration Act. …
[61] The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.
[62] Section 473DA(1) of the Migration Act makes clear that Div 3 of Pt 7AA, together with s 473GA and s 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews by the Authority. The provision may be contrasted with s 422B(1), which deals with reviews by the Administrative Appeals Tribunal under Pt 7 of the Migration Act. Section 422B(1) provides that Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule “in relation to the matters it deals with”, suggesting that there is still some scope for the operation of common law principles of natural justice that are able to operate consistently with the provisions in Div 4 of Pt 7. See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23. Markedly, s 473DA(1) is not qualified in this manner.
[63] There is also no equivalent to s 424A of the Migration Act in Pt 7AA, consequently, the Authority appears not to be required to give to the appellant particulars of any information that the Authority considers would be the reason, or a part of the reason, for affirming the decision under review.
[64] Finally, the Authority is required, subject to Pt 7AA, to conduct the review without accepting new information (as defined) and without inviting a referred applicant to attend an interview: s 473DB(1). The Authority is only permitted to consider new information where there are exceptional circumstances to justify considering new information and, in cases where the new information is to be given by a referred applicant, the information was not and could not have been provided to the Minister, or is credible personal information which was not previously known and, had it been known, may have affected consideration of the claims: s 473DD. Although, if exceptional circumstances exist, it is permissible for the Authority to take into account new information provided by an applicant, s 473DC(2) makes it clear that the Authority is not burdened with a duty to get, request or accept any new information.
[65] Consequently, it would seem to follow that there was no obligation on the Authority to give any notice to the appellant that it may find that he had not been the victim of past extortion and to invite him to comment on this possibility, either in writing or at an interview. Of course, good and reliable decision-making might be enhanced if a decision-maker adopted this course and sought comment. Its ability to do so will, however, be governed by the constraints imposed by s 473DC and s 473DD. But on the facts of this case, there is no basis to conclude that the Authority failed to exercise the decision-making task entrusted to it by the Act, and thereby committed a jurisdictional error.
The applicant’s argument acknowledges that the “legislation deals with, and excludes, some aspects of natural justice. Those with which it does not deal (in this case particularly the right to make submissions on adverse matters), are not so excluded”. Put shortly, the argument is that because the right to make comment upon matters adverse to the applicant’s interests is not specifically excluded and because the words of s.473DA(1) ought to be narrowly construed, the right has not been effectively taken away.
Here there can be no cavilling with the first proposition. There is no express reference to the applicant’s right to be informed of and comment upon matters adverse to his interests (assuming that the prohibition against interviewing the referred applicant is properly construed to be confined to an oral or face-to-face interview). He submits that s.473DB(1)(b) only specifically denies him the right to an interview, but that denial does not extend to written submissions. To be denied that opportunity, one must look elsewhere in the Act.
To make good the second proposition, the applicant argues that on its proper construction s.473DA(1) ought to be seen as insufficient to deprive the applicant of his right to be heard. He argues that s.473DA(1) should not be given a broad construction as the approaches explained in cases like Re Minister for Immigration; Ex parte Miah (2001) 206 CLR 57 at [126] and Jarratt v Commissioner of Police for NSW (2005) 224 CLR 44, 56 demonstrate. Counsel argues that the restrictive approach taken to the construction of statutes which attempt to exclude natural justice supports the notion that any aspect of fairness properly claimed by an applicant that is not expressly excluded by statute should be held to be available to him.
The approach to the construction of ss.357A and 422B of the Act, the applicant says, is instructive. In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 the High Court held (at [39]) that the phrase “in relation to matters it deals with” where it appeared in s.51A of the Migration Act (which appeared in Div 5 of Pt 5 of the Act) required the asking of the question “What are the matters Div 5 of Pt 5 deals with?” The answer to that question would require a search of the sections within the Division for a provision “dealing with” a relevant “matter”. The result was that s.57 of the Act which dealt with the provision of information to onshore visa applicants had no application to offshore visa applicants because s.57 did not deal with the provision of information to offshore visa applicants. It followed that the hearing rule which was otherwise circumscribed by s.51A in the case of onshore visa applicants, was not excluded in the case of the applicant before the Court who was an offshore visa applicant.
That construction is regularly applied in respect of ss.357A and 422B of the Act: e.g. Salopal v Minister for Immigration and Border Protection [2018] FCA 1308; BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76.
However, the phrase “in relation to matters it deals with” or some similar formulation does not appear in s.473DB(1) of the Act. The phrase that appears in that subsection is” in relation to reviews conducted by the Immigration Assessment Authority”. Counsel for the applicant immediately recognised that the distinction between s.473DA(1) and ss.357A and 422B was a factor which plainly influenced the decision in DBE16 (at [62]).
Nevertheless, he submits that the qualification to s.473DB(1) has no transformative or magical effect. It ought to be construed consistently with the approach taken to the construction of the qualifications in ss.357A and 422B. In that respect, counsel for the applicant took me to the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving The Asylum Legacy Caseload) Bill 2014, which relevantly provides (my emphasis):
Section 473DA – Exhaustive statement of natural justice hearing rule
885. New subsection 473DA(1) provides that this Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule as they apply to the IAA.
886. The purpose of this amendment is to make clear that sections 473GA, 473GB and Division 3 of Part 7AA of the Migration Act are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. Division 3 sets out how the IAA should conduct its review and outlines how the IAA is to review decisions on the papers and provides limits on the consideration of new information for the purposes of making a decision in relation to a fast track reviewable decision. Section 473GA and 473GB deal with the disclosure of confidential information to and by the IAA.
887. New subsection 473DA(2) provides that to avoid doubt, nothing in this Part requires the IAA to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
888. The purpose of this provision is to put beyond doubt that the IAA is not required to give a referred applicant any material that was before the Minister for comment. This is because under subsection 57(2) of the Migration Act and in relation to their fast track decision, an applicant would have already been provided an opportunity to comment on relevant information that the Minister considered was the reason, or part of the reason for refusing to grant a visa.
The applicant submits that in the explanatory memorandum “the words of the old formula were used, just as though they were interchangeable with the new”. However, in oral submissions, counsel for the applicant said “the legislature doesn’t care what form of words they use in the explanatory memorandum or in the Act because via that working hypothesis that Chief Justice Gleeson has enunciated [in Miah], it knows that if it doesn’t specifically exclude something, it will be taken not to be excluded”.
But the qualification to s.473DA(1) is not simply “new phraseology” as the applicant submits. It represents a significant departure to the phrase used in ss.357A and 422B. That parliament has chosen to use a different phrase is significant because parliament is presumed to have a mastery of both the common law and the statute law. It is also presumed to know the cases which interpret statutes: Williams v The Official Assignee of the Estate of William Dunn (1908) 6 CLR 425 at 441; Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494. Just as s.51A of the Act that was dealt with in Saeed was apparently intended to deal with the construction that the High Court had determined in Miah, so too, it seems to me, that the change in the text used between ss.357A and 422B on the one hand and in s.473DA(1) on the other is parliament’s attempt to deal with the judgment in Saeed.
So far, that attempt has been held to be successful.
In my view, I am bound by the decision in DBE16 v The Minister for Immigration (above). Even if that is not so, it is persuasive authority against the point contended for by the applicant in this case. I would, therefore, in any event follow it.
The second matter raised by the applicant’s ground of review is bias. It is related to the first because if Part 7 AA is to be interpreted as excluding the right of an applicant to make written submissions in response to concerns the IAA may have about his case, the following needs to be accepted:
a)by virtue of the very fact that the IAA has materials that it is required to review, including materials unknown to the applicant, it must form and hold “an opinion on a matter in issue in the case at hand”;
b)by definition, given that the IAA will hear nothing from the applicant, “that opinion will be applied to the case at hand”; and
c)because the IAA is prohibited from putting matters to the applicant, and prohibited from receiving his response thereto, then again, by definition, that “opinion will be applied without considering the matter afresh in light of the circumstances of the case at hand” as put by the applicant.
Thus, the applicant argues, to exclude the right to make submissions, renders the procedure under Part 7AA of the Act, in and of itself, biased.
However, the applicant is not denied the opportunity to make submissions in his own cause because he was afforded that opportunity before the delegate and for the purpose of producing “new information” provided it would meet the requirements of the Act.
The second respondent is not “free to make decisions on whatever material it considers appropriate” because of the requirements that must be satisfied before new information might be considered. A failure to consider relevant material, or the consideration of irrelevant material, for example, is still jurisdictional error in a Part 7AA review.
Further, the applicant is not without knowledge of the material before the second respondent:
a)the applicant is provided with a copy of the delegate’s decision;
b)the process of the Part 7AA regime is for a review on the papers;
c)the second respondent has access to the material that was before the delegate and in some circumstances other material that was in the Secretary’s possession or control that is considered relevant by the Secretary;
d)the second respondent has the discretionary power to provide certain information to the applicant – a power which, arguably, is reviewable; and
e)there is scope for a judicial review application the subject of which is bias.
The applicant argues that the way in which Div 3 of Part 7AA operates, a reasonable apprehension of pre-judgment must necessarily arise. But I do not accept that submission. The purpose of the process is to conduct a review of the delegate’s decision, albeit limited. As I have pointed out above, the second respondent is in possession of all of the material provided by the applicant for the purposes of his or her visa application. The second respondent does not simply have one side of the story. I reject the proposition that by virtue of the very fact that the IAA has materials that it is required to review, including materials unknown to the applicant, it must form and hold an opinion on a matter in issue in the case at hand.
Conclusion
Despite the applicant’s arguments, in my view, s.473DB(1) excludes any common law entitlement that the applicant might otherwise have to be heard in respect of any matters adverse to him in the review conducted by the second respondent. That conclusion, does not need lead to the consequential conclusion that the process established by Part 7AA is biased in the sense contended for by the applicant.
No jurisdictional error is demonstrated by the application. The application must be dismissed with costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 22 November 2018
3
18
2