FEDERAL COURT OF AUSTRALIA
ATO17 v Minister for Immigration and Border Protection [2018] FCA 855
Appeal from: ATO17 v Minister for Immigration & Anor [2017] FCCA 2542 File number: NSD 1967 of 2017 Judge: BROMWICH J Date of judgment: 14 June 2018 Catchwords: MIGRATION – appeal from orders of primary judge dismissing application for review of Administrative Appeal Tribunal’s decision to affirm decision of delegate of first respondent to refuse grant of protection visa to appellant – whether primary judge erred in applying wrong test in considering whether Tribunal’s findings were open to it – assertion that correct test was whether Tribunal’s findings were legally unreasonable – whether no “evident or intelligible justification” to Tribunal’s findings – whether primary judge erred in rejecting omissions as being “information” for purposes of s 424A of Migration Act 1958 (Cth) – whether primary judge failed to carry out judicial duty in relying upon adverse credibility findings of Tribunal to dismiss appellant’s claims below and failing to consider whether those findings had proper basis – held: no error found – held: appeal dismissed on all asserted grounds Legislation: Migration Act 1958 (Cth) ss 424A, 424AA Cases cited: Applicant WAEE vMinister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; 233 FCR 136
Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; 248 FCR 1
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549
Date of hearing: 25 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 62 Solicitor for the Appellant: Mr R Turner of Turner Coulson Immigration Lawyers Counsel for the First Respondent: Mr J K Hoyle Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS
NSD 1967 of 2017 BETWEEN: ATO17
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
14 JUNE 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an appeal from orders made…
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- AGLC
- ATO17 v Minister for Immigration and Border Protection [2018] FCA 855
- Case
- [2018] FCA 855
- Decision Date
CaseChat Overview and Summary
The court determined that the primary judge did not err in applying the correct legal test in reviewing the AAT’s findings. The appellant argued that the primary judge should have assessed whether the AAT’s findings were legally unreasonable, but the court found that the primary judge appropriately evaluated whether the AAT’s findings were supported by evidence. Additionally, the court held that the primary judge did not err in determining that the omissions from the appellant’s statements did not constitute "information" under section 424A, as such omissions did not refer to the existence of evidentiary material or documentation. The court also rejected the appellant’s argument that the primary judge failed to properly consider the basis of the AAT’s adverse credibility findings.
The appeal was dismissed on all grounds, and the appellant was ordered to pay the Minister's costs. The court found no error in the primary judge's application of the law or interpretation of the statutory provisions. The decision underscores the importance of correctly applying the legal standards in judicial review cases, particularly concerning the procedural fairness obligations under the Migration Act.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of and incidental to the appeal as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
It follows that this aspect of ground 1(a) and (b) also fails.Section 424A of the Migration Act – Ground 1(c) This aspect of the appellant’s appeal also turns on [50] of the Tribunal’s reasons, reproduced above at [52]. The appellant argues that omissions from information that was given by him at the departmental interview were themselves “information” for the purposes of s 424A of the Migration Act, thereby engaging the statutory procedural fairness regime contained in that provision. Section 424A provided (and still provides) as follows (emphasis in original):424A Information and invitation given in writing by Tribunal(1) Subject to subsections (2A) and (3), the Tribunal must:(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and(c) invite the applicant to comment on or respond to it.(2) The information and invitation must be given to the applicant:(a)except where paragraph (b) applies—by one of the methods specified in section 441A; or(b)if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.(2A)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.(3) This section does not apply to information:(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or(b)that the applicant gave for the purpose of the application for review; or(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or(c)that is non‑disclosable information.(4)A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F). The primary judge dealt with this claim at [25], reproduced above at [11]. The appellant asserts that his Honour erred, because “information” included omissions from the information that he had provided to the Minister’s Department. The Minister submits that, on a proper understanding of the authorities, the appellant’s argument cannot be sustained. In particular, the Minister relies upon the following statements of principle:(1)In VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; 236 FCR 549 at [24], the following was said:As to the first of these, there is now a considerable body of case law concerned with the compass of the term “information” in its s 424A(1) setting. The following propositions emerge from it:(i)the purpose of s 424A is to provide in part a statutory procedural analogue to the common law of procedural fairness: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [104]. However the obligation imposed is not coextensive with that which might be imposed by the common law to avoid practical injustice: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168;(ii)the word “information” in s 424A(1) has the same meaning as in s 424: Win at [20]; and in this setting it refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal: Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 at [3]; irrespective of whether it is reliable or has a sound factual basis: Win at [19]-[22]; and(iii) the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25]; appr VAAM v Minister for Immigration and Multicultural Affairs [2002] FCAFC 120; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [26]-[29].(2)In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609, it was stated at [18]:Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”. “does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.