Awt19 v Minister for Immigration
[2020] FCCA 1748
•30 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWT19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1748 |
| Catchwords: MIGRATION – Judicial review – Where the Authority affirmed the decision to refuse a protection visa – whether the Authority was not provided with all the “review material” – whether a record of interview is “review material” under s.473CB of the Act – whether the interview with the delegate was material provided by the applicant under s.473CB(1)(b) – where audio recording or accurate transcript unavailable – whether there was jurisdictional error in respect of the Authority proceeding to review the visa application in light of not having all of the review material – whether the Authority could invite the applicant to an interview to remedy the lack of review material being made available to it – whether the Authority misapplied s.473DC and s.473DD of the Act – whether breach of s.473CB was material to the outcome – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36, 65, 473CB, 473CD, 473DC, 473DD. |
| Cases cited: AOV18 v Minister for Home Affairs [2018] FCA 1871 BEL18 v Minister for Home Affairs [2018] FCA 2103 BRG18 v Minister for Immigration & Anor [2020] FCCA 806 BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 565 |
| Applicant: | AWT19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 506 of 2019 |
| Judgment of: | Judge Obradovic |
| Hearing dates: | 14 October 2019, 6 February 2020 |
| Date of Last Submission: | 20 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 30 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Chia |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari issue, quashing the decision of the second respondent (Authority) dated 7 February 2019 to affirm the decision of a delegate (delegate’s decision) of the first respondent (Minister) to refuse to grant the applicant a safe haven enterprise visa.
A writ of mandamus issue, remitting the matter to the Authority and requiring it to determine according to law the application referred to it by the Minister under s.473C of the Migration Act 1958 (Cth) for review of the delegate’s decision.
A writ of prohibition issue, prohibiting the Minister and his delegates, servants and agents from acting upon or giving effect to the Authority decision.
The Minister pay the applicant’s costs as agreed or assessed.
The matter is removed from the list of cases awaiting finalisation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 506 of 2019
| AWT19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This application for judicial review of a decision of the second respondent concerns the operation of the provisions of Divisions 2 and 3 of Part 7AA Migration Act 1958 (Cth) (“Act”).
By further amended application dated 17 February 2020, the applicant seeks an order to quash the decision of the second respondent (“Authority”) dated 7 February 2019 and an order in the nature of mandamus in respect of that decision. In its decision, the Authority affirmed a decision of the delegate of the first respondent (“delegate”) not to grant the applicant a Safe Haven Enterprise Visa (“SHEV”).
The circumstances of this case are quite unusual, and centre around the Authority’s decision to interview the applicant as a result of the recording of the delegate’s interview with the applicant not being available.
The background to the application
The applicant is a citizen of Iran.
The applicant arrived in Australia on 20 January 2013 was an “unlawful maritime arrival” for the purposes of the Act.
On 6 March 2017, the applicant lodged an application for SHEV on the basis that he feared serious harm from the Iranian authorities by reason of his actual or imputed political opinion and by reason of his close knowledge of Iran’s regime.
In support of the application the applicant raised the following claims[1]:
[1] CB:82-88
a)That his father was a religious leader who became closely associated with high ranking members of the Iranian regime;
b)That he formed a business relationship with two men; one of whom was his business partner, the other was an employee who was purportedly informing to the authorities on him;
c)That during the election period he began publically promoting and supporting the leader of the Green movement. The applicant attended a demonstration whereby he carried the political candidate’s photo, chanted slogans and also got into an argument with two opposing members about his support for the Green movement;
d)That one client of the business was a leader of the Mehdi Army which worked directly for and under the Sepah;
e)That he invested in another business with two other men which failed. These two men were members of the Sepah;
f)That he was threatened that the Sepah would seek retaliation for the failed business venture;
g)That he mortgaged his home and the home of a colonel of the Army in order to secure a loan to keep his business going. He was eventually unable to make the repayments for the loan and as such the security was lost;
h)That he was detained for two periods of 10 and 20 days on the basis of false financial claims made against him. When he was in custody (for the second time) the police advised him that the reason he was detained was because the Sepah wanted him there; and
i)That he moved away with his family, however continued to be threatened and harassed until his departure from Iran.
On 31 July 2018 the applicant participated in an interview with the delegate of the Department of Home Affairs.
The sound recording and/or transcript of the interview was lost and never provided to the Authority; however the delegate’s notes were forwarded to the Authority.[2]
[2] CB: 115 - 126
On 22 August 2018 the applicant’s temporary protection visa was refused by the Minister’s delegate, as the applicant did not meet the criteria set out in s.36 of the Act. The delegate largely accepted the factual claims of the applicant in his application however was not satisfied that the applicant was of continuing adverse interest to the authorities, that he would be perceived to be anti-government or that his mental health would render him vulnerable to significant or serious harm, either now or in the reasonable foreseeable future[3].
[3] CB: 172 - 173
On 28 August 2018 the delegate’s decision was “fast tracked” and referred to the Authority pursuant to Part 7AA of the Act.
On 18 September 2018 the applicant’s representative provided written submissions to the Authority in respect of the applicant’s claims and the inconsistencies of the document which purported to be the transcript of the interview based on the contemporaneous notes taken during the interview conducted on 31 July 2018[4]. Furthermore, the applicant’s representative in conclusion submitted the following:
Noting the shortcomings regarding the record of the interview, the consequent issues of procedural fairness, and also what we submit are mis-directions on the part of the decision-maker, it would be best if the IAA either referred this matter back for a fresh interview, or called the applicant in for an interview to properly canvas his claims which were there but not considered.[5]
[4] CB: 202 - 206
[5] CB: 206
On 6 December 2018 the applicant was invited for an interview on 19 December 2018. The applicant participated in that interview with the assistance of an interpreter.
On 27 December 2018 the applicant’s representative, in light of the interview held on 19 December 2018, provided further documentary proof of identity and citizenship and the requested documentary proof of the relationship between the applicant and his father.
Before the Authority the applicant claimed that he faced a real chance of risk of persecution or significant harm because[6]:
a)Of his political opinion and his close knowledge of the Iranian regime;
b)He had provided sensitive information to a western foreign government;
c)Of being a failed asylum seeker and someone who spent significant time in a western country;
d)Of his position as an Arab in Iran who might be imputed as supporting other Arabs in Iran against the Iranian authorities; and
e)By reason of suffering a mental illness, the symptoms of which will be exacerbated if he were to return to Iran.
[6] CB: 262[6]
Each of the claims were considered by the Authority and on 7 February 2019 the Authority affirmed the decision of the Minister’s delegate.
The applicant filed an Application in the Federal Circuit Court of Australia on 3 March 2019 seeking judicial review of the decision of the Authority to refuse his application for a Safe Haven Visa (Class XD) (subclass 785) pursuant to s.65 of the Act.
On 23 March 2019 the applicant filed an amended Application.
The application for review was listed for final hearing on 14 October 2019. On that day, the matter was adjourned part heard to 6 February 2020 with leave granted to the parties to file and serve further submissions by 4pm on 31 January 2020 in respect of issues that were raised by the Court with the parties.[7]
[7] Namely, on what statutory basis did the Authority conduct the interview held on 19 December 2018
On 6 February 2020, leave was granted for further submissions to be filed in respect of a further ground of review, leave for which was also granted on the same day.
The application before this Court
The applicant’s grounds for judicial review were as follows[8]:
a)The authority denied the applicant the statutory form of procedural fairness required by the Act pursuant to Part 7AA (“Ground 1”);
b)The Authority’s failure to invite/failure to consider inviting the applicant to give new information pursuant to subsection 473DC(3) of the Act was legally unreasonable (“Ground 2”); and
c)The Authority misapplied section 473DC and 473DD of the Act to information provided at the interview held on 19 December 2018 and materially failed to discharge its exact function according to law (“Ground 4”).
[8] The application contains four grounds of appeal. The applicant, however, abandoned ground 3. See also paragraph 19 of the applicants written submissions filed on 1 October 2019
Ground 1
The applicant asserts that he was denied the procedural fairness envisaged by Part 7AA of the Act, being that what he said to the delegate would be considered by the Authority upon review because the Secretary failed to provide to the Authority “an accurate and complete record of the applicant’s protection visa interview”[9]
[9] Paragraph 23 of the applicant’s written submissions filed 1 October 2019
The Secretary did not provide to the Authority a sound recording of the applicant’s 31 July 2018 protection visa interview or otherwise a record of what the applicant had said to the delegate at the interview. It was acknowledged that that the recording was corrupt and that the delegate’s notes of the interview did not amount to a “proper transcript”. The reasoning of the Authority included the following: “The document could thus be characterised as the delegate’s interview notes but it is not an interview transcript. Given this, I invited the applicant to attend an interview to provide information in regard to his SHEV application.”[10] These matters were not in dispute before this Court.
[10] CB: 261 at [4]
The applicant relied upon a number of authorities in his written submissions in support of Ground 1, namely the decision of EVS17 v Minister for Immigration and Boarder Protection[11] and Minister for Immigration and Boarder Protection v CPA16[12]. The Full Court in both proceedings held that the failure of the Secretary to forward material[13] to the Authority pursuant to s.473CB of the Act amounted to jurisdictional error. Albeit said in different contexts, the Full Court further indicated that it was satisfied that the Authority could have come to a different decision and that the error was “material in the sense that it operate[d] to deprive the applicant of the possibility of a successful outcome”[14].
[11] [2019] FCAFC 20
[12] [2019] FCAFC 40 (“CPA16”)
[13] In the former case, medical records and, in the latter case, two letters of support.
[14] CPA16 at [32]
The applicant was also of the view that the proper transcript or the audio recording of the interview was “material” that was provided by the applicant and not “given” to the Authority in accordance with s.473CB(1). The applicant relied on BEL18 v Minister for Home Affairs[15] to support this proposition.
[15] [2018] FCA 2103 (“BEL18”) at [77] per Middleton J.
In respect of Ground 1, the respondent submitted the following:
a)The audio recording was not provided to the Authority because the applicant did not provide the recording to the Department and therefore it was not material that needed to be provided to the Authority pursuant to s.473CB91)(b); and
b)However, even if the Court was satisfied that the audio recording or transcript was information the Department was required under s.473CB(1)(b) to provide to the Authority, and by failing to provide it the Authority miscarried, the Court cannot be satisfied, on the evidence, that such failure was material to the eventual outcome.
It was submitted by the respondent that CKM16 v Minister for Immigration & Anor[16] provided a useful discussion in respect of importing an absolute obligation on the Department to provide documents to the Authority. Namely, the respondent submitted that s.473CB of the Act “cannot reasonably be construed as importing an absolute obligation on the Secretary to provide documents to the Authority whether or not such documents have been lost” [17].
[16] [2018] FCCA 3076 (“CKM16”)
[17] CKM16 at [13]
Ground 2
As noted previously, the applicant was invited for an interview by the Authority. Counsel for the respondent conceded that the purpose of that interview was to rectify the fact that the Authority did not have an accurate transcript of the interview with the delegate.
The applicant submits that although the Authority invited him to an interview the transcript of that interview commences with a direction by the Authority to the applicant as follows:
So the impression I, I, I had from the submission that was made to the I double A (IAA) was that you had felt there were things that you had not yet had the opportunity to say. Okay so those things have already been put forward in your statement. So what is it that you want to be heard about, that you have not yet been heard on?[18]
[18] See Annexure LS-1 of the Affidavit of Lecia Stark filed on 22 May 2019 at [7]
The applicant says that there were a number of relevant factual issues that were not discussed at the interview but were rejected by the Authority, namely:
a)a claim that a complaint had been made against the applicant in Iran by reason of the applicant’s financial debts; and
b)a claim that the applicant feared harm based on his Arab ethnicity.
The applicant further submitted that the failure of the Authority to not invite or consider inviting the applicant to provide new information in respect to these issues “lacked any evident and intelligible justification, or was plainly unjust, and therefore legally unreasonable”[19]. The applicant further asserted that in line with the High Court authorities[20], the legislative power provided in s.473DC, and Part 7AA more generally, conferred an implied condition upon the Authority to exercise those powers reasonably. In the present case, there were a number of issues that were never discussed at the interview, being claims rejected by the Authority but previously accepted by the delegate.
[19] Paragraph 29 of the applicant’s written submissions filed 1 October 2019
[20] See Plaintiff M174/2016 v Minister for Immigration and Boarder Protection [2018] HCA 16 (“Plaintiff M1744/2016”); Minister for Immigration and Citizenship v Li [2013] HCA 18 (“Li”)
In that respect, Counsel for the applicant argued that it was “plainly unjust” and legally unreasonable for the Authority to take a different view about matters accepted by the delegate without allowing the applicant to be heard against it[21] or put on notice, particularly in circumstances where there was no proper transcript of the interview with the delegate and in circumstances where the Authority had justified inviting the applicant for the interview because of this.
[21] DP117 v Minister for Home Affairs [2019] FCAFC 43 (“DPI17”)
In comparison, Counsel for the respondent argued that whilst the Authority is under no obligation to invite an applicant to an interview[22], the conclusion to be drawn from the statement made by the Authority was that the applicant was in fact given a “plenary opportunity to put forward whatever new information that he wished to rely upon”[23] .
[22] S.473DC(2)
[23] See respondent’s submissions filed 8 October 2019 at [8]
It was further submitted by the respondent that the fact that the applicant failed to provide “new information” was a matter for the applicant, particularly in circumstances where the rules of procedural fairness dictate that the applicant is required to be given a reasonable opportunity and in doing so does not oblige the Authority to ensure that the applicant takes full advantage of such opportunity[24].
[24] Ibid.
Lastly, the respondent submitted that the Authority was not required, as stated in SZBEL v Minister for immigration and Multicultural and Indigenous Affairs[25], to foreshadow its factual findings to the applicant during the interview and as such was not required to put the applicant on notice of the applicant’s intention to depart from the delegates findings.
[25] [2006] HCA 63 at [68]
Ground 3
Ground 3 was not pressed.
Ground 4
The applicant filed a Further Amended Application and written submissions on 17 February 2020 in respect of an additional ground of review (ground 4) pursuant to orders made by this Court on 6 February 2020. The respondent also filed written submissions in respect to that fourth ground on 5 March 2020, followed by the applicant’s reply on 20 March 2020.
In respect of ground 4 the applicant argued that[26]:
a)The Authority had no way of knowing or at least being reasonably satisfied that the information provided at the interview with the Authority had not previously been provided to the delegate and was therefore ‘new information’ for the purpose of Part 7AA of the Act; and
b)The Authority could not have been satisfied that the information provided by the applicant had not been information previously known by the delegate by reason of s.473DD(b)(ii) or s.473DD(b)(i), particularly in the absence of audio recording or proper transcript of the interview conduct on 31 July 2018.
[26] Applicants written submissions filed 17 February 2020 at [3]
It was submitted by the respondent[27] that there was an evidentiary basis for the Authority to reach the state of satisfaction that it reached, particularly because it was validly formed and an enquiry into such would substitute the opinion of the Authority, which is not the role of this Court. Furthermore, even if the Authority fell into error in respect of findings under s.473DD(b)(ii), the applicant has not proved, to the requisite standard, that the error was material to the outcome or that he was deprived a favourable outcome.
[27] Respondents written submissions filed 5 March 2020 at [2]
Determination
The circumstances of this case are quite unusual. The Court was not taken to any authority which dealt with a similar factual scenario. In its researches, the Court did not find any authorities dealing with the same issues as those presently before the Court.
It is accepted that the reason the Authority invited the applicant to an interview (purported to be pursuant to s.473CD) was to remedy the defect of not having available before it the record of interview with the delegate, either as a transcript or as a sound recording. Therefore, what the Authority did not have as part of the ‘review material’ was the information which the applicant provided to the delegate during that interview. The Authority, in reasoning which is not explained, came to the conclusion that it could invite the applicant to an interview in order to remedy this anomaly. While the request to do so came from the applicant in the submissions made to the Authority on 18 September 2018, the request by the applicant cannot give the Authority the power to do that which statute does not.
It is important to understand and read carefully the statutory scheme in order to understand the issues in this case.
There are three central to the issues raised in this application:
a)Is a record of interview with the delegate “review material” for the purposes of s.473CB?
b)Could the Authority invite the applicant to an interview to remedy the situation of the missing record of interview? And
c)Did the Authority fail to exercise its jurisdiction in not putting to the applicant during the interview matters that it was concerned about contrary to the findings of the delegate?
The plurality in Plaintiff M174/2016 establishes the following general principles, as referred to by the majority in DPI17[28] at [35]:
[28] DPI17 at [35]
(1) as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant”;
(2) the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied;
(3) the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s.473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li;
(4) the term “new information” must be read consistently when used in ss.473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s.473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant;
(5) although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably; and
(6) s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision.
(citations omitted)
The Full Court of the Federal Court in CPA16[29] has summarised the relevant principles in respect of other relevant matters as follows (citations omitted):
(1) Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate.
(2) Where the Secretary fails to give review material to the Authority in breach of s 473CB(1)that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome.
(3) Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”.
(4) In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision.
(5) The applicant for judicial review has the onus of proof to show that the missing document or information is material.
(6) Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different.
[29] CPA16 at [32]
The test is whether the omitted review material could have resulted in the decision-maker making a different decision, that is, whether the applicant has been deprived of the realistic possibility of a successful outcome.[30]
[30] CPA16 at [33]
Furthermore, the power conferred on the Authority b s.473DC is subject to the principles in Li concerning legal unreasonableness[31]. In DPI17 the majority further said:
[31] See DPI17 at [36]; Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 at [82]-[83]
37. Other relevant principles which guide the application of the ground of review for legal unreasonableness are summarised in Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 353 ALR 408 (SZVFW) and Minister for Immigration and Border Protection v Haq [2019] FCAFC 7 (Haq) at [31]-[37] per Griffiths J (with whom Gleeson J agreed). Three points deserve particular emphasis. First, legal unreasonableness is “invariably fact dependent and requires evaluation of the evidence” (see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 (Singh)at [47] per Allsop CJ, Robertson and Mortimer JJ and see also SZVFW at [84] per Nettle and Gordon JJ). Secondly, the correct approach is to apply the relevant general principles to the particular factual circumstances of the case and not to engage in an analysis which merely involves identifying particular factual similarities or differences between individual cases (Singh at [48] and Haq at [32]).It may well be that, for this reason, the appellant made clear that, on the appeal, he did not rely on DFW16. As Thawley J pointed out in CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 (CCQ17) at [42], there are no fixed categories of circumstances in which it would be legally unreasonable to fail to consider the discretion in s 473DC. Thirdly, having regard to the clear terms of s 473DA (which provides that Div 3 of Pt 7AA and ss 473GA and 473GB are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to IAA reviews), the starting point for analysis in a case such as this which raises the ground of legal unreasonableness is not through a “natural justice lens” (DGZ16 at [69] and [72] per Reeves, Robertson and Rangiah JJ). Fourthly, as Thawley J correctly stated in CCQ17, merely because there has been a failure to consider the exercise of the power in s 473DCdoes not of itself involve error, let alone a jurisdictional error.
38. In CCQ17 at [51], Thawley J helpfully identified the following three essential steps in determining whether an established failure to consider exercising a discretionary power was legally unreasonable:
(1) identify the failure with precision;
(2) examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
(3) evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.
Was there Jurisdictional Error?
Section 473CB makes it mandatory for the Secretary to provide to the Authority ‘review material’ as defined. Relevantly for present purposes, s.473CB defines “review material” to be:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
In CKM16[32] another judge of this Court held that:
15. Perhaps it could be said that the audio recording of the entry interview was information the Secretary of the Department was required under s.473CB of the Act to provide to the Authority, and by failing to provide it the Authority’s exercise of its jurisdiction miscarried. There would be two difficulties with such contention. First, on the evidence before me the Department did not, at least at the time the Secretary provided the relevant material to the Authority, possess an audio recording of the entry interview. Second, even if the Department once did possess an audio recording of the entry interview, the evidence before me suggests that extensive searches had been undertaken by the Department to locate such audio recording but without success. Section 473CB of the Act cannot reasonably be construed as importing an absolute obligation on the Secretary to provide documents to the Authority whether or not such documents have been lost.
(citations omitted)
[32] CKM16 at [15]
His Honour in CKM16 did not have the benefit of any submissions from the applicant (who was self-represented) or the respondent as to whether the information the applicant provided could be “material provided by the referred applicant to the person making the decision before the decision was made”. It was not a matter considered by His Honour in the reasons for judgment. Indeed, in those proceedings the Authority gave the applicant an audio recording of his interview with the delegate, but not the audio recording of the entry interview, although that transcript was available. Consequently, CKM16 is factually quite different and thus distinguishable. While the applicant in that case did appeal, the appeal was out of time and the application to extend time was dismissed. The Federal Court did not consider in any fashion His Honour’s findings noted above.
In another decision of this Court, by a different judge, BRG18 v Minister for Immigration & Anor[33] the Court held:
14. The audio recording was something that had been facilitated by the delegate. It was never “material” which had been provided by the applicant to the Department before the adverse decision refusing the visa had been made by the delegate. Section 473CB(1)(b) of the Act, therefore, has no application.
[33] [2020] FCCA 806 at [14]
In BRG18 the Court considered whether the audio recording of the applicant’s interview with the delegate could fall within the provisions of s.473CB(1)(c) of the Act. His Honour held, on the basis that because the Secretary had intended to provide the audio file to the Authority, the Secretary must then have considered that it was relevant to the review, and that it was review material within s.437CB(1)(c). However, the Court in that instance was not satisfied that the audio recording was in fact still in the possession of the Secretary at the time of the referral of the matter to the Authority. BRG18 was handed down after submissions were received in this matter and after the reasons for judgement were reserved.
In a decision of a single judge of the Federal Court, BVC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[34] on appeal from a decision of a judge of this Court and once again, handed down after the reasons for judgment in this matter were reserved, Wigney J considered whether a digital image shown by the applicant to the delegate during a SHEV interview was “material” for the purposes of s.473CB(1)(b), and held that it was.
[34] [2020] FCA 565 (“BVC20”)
His Honour in BVC20 made the following obiter comments:
68… information provided by an applicant orally during an interview, for example, is not a tangible item or thing. It would, however, plainly be “material” for the purposes of s473CB. It is no doubt for that reason that interviews are recorded and the Authority would in the ordinary course be provided with a transcript or perhaps sound recording of the interview.”
The Court did not invite submissions from the parties in respect of either BVC20 or BRG18. It did not do so as the Court is respectfully, not bound by the obiter dicta of the learned Justice of the Federal Court nor the ratio decidendi of another judge of this Court.
The Act does not contain any definition of “material”. As noted earlier, neither party took the Court to any authority which considered the meaning of “material” as used in s.473CB.
It is clear that the audio recording of the applicant’s interview with the delegate could not be “review material” within the meaning of s.473CB(1)(b)[35]. The recording itself was not provided by the applicant, it did not exist prior to the interview.
[35] In this regard, the Court respectfully agrees with the decision in BRG18
The recording was created during the interview process by the delegate (or at his request), and came to be “material” which was capable of meeting the definition in s.473CB(1)(c). The fact that the file containing the audio recording became corrupted, meant that the Secretary, at the time of the referral, no longer had the intact recording in its possession and as such it could not be provided to the Authority. This did not however, avail the Secretary of the responsibility of providing the information supplied by the applicant during that interview to the Authority.
The information provided by the applicant during the interview with the delegate, being the answers he provided to the questions which were asked of him together with other matters he raised, was however “review material” within the meaning of s.473CB(1)(b). It would be non-sensical to find otherwise.
The statutory scheme is very restrictive, and the Authority can only conduct a review on the papers. It is a hearing de novo without the benefit of an actual hearing. The Authority can only interview the applicant in very limited circumstances, namely, those relating to “new information”. It cannot, in the usual course, ask the applicant questions, it cannot cross-examine, it cannot test any of the evidence provided by the applicant. If the information provided by the applicant orally to the delegate during the interview is not available to the Authority, how can the Authority properly discharge its duty to review the delegate’s decision as it does not have before it all of the information which the delegate had?
Certainly, the Authority accepted that the recording should have formed part of the “review material” provided to it by the Secretary, which is why it tried to remedy the problem of the corrupted audio recording by interviewing the applicant.
Which brings into sharp focus the second issue[36] in these proceedings. How could the Authority have invited the applicant to an interview for the purpose of attempting to remedy the problem of not having the audio recording of the delegate’s interview, and therefore not having all of the review material?
[36] Ground 4
The primary position is that subject to Part 7AA, the Authority must review a fast track reviewable decision referred to it on the papers, that is, by considering the review material provided to it under s.473CB without accepting or requesting new information and without interviewing the applicant.
Notwithstanding this, s.473DC(3) provides that:
… the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
The phrase “new information” is defined in s.473DC(1). It means:
Any documents or information that (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant.
There is then the further hurdle of s.473DD, namely the need for the Authority to be satisfied that there are exceptional circumstances, and that the information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65;or
(ii) is credible personalinformation which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
In order to be considered, information is either contained in the “review material” or it is “new information” and the Authority is satisfied as to the requirements of s.473DD. The information which the applicant provided to the delegate during the interview could never be “new information” as it was, at the relevant time, before the Minister. Even if the information was not contained in a document (or recording or similar) it had still been provided to the Minister before the decision had been made and it had previously been known.
While the Authority purported to be satisfied that exceptional circumstances existed because the recording was not available, it did not turn its mind to the question of whether such information was “new information”. Had it done so, it is difficult to see how it could ever make a determination that such information was or was not before the Minister before the SHEV decision was made or whether it had been known or had it been known it may have affected the consideration of the applicant’s claims, for the simple reason that it did not have before it what was before the Minister in its entirety. While it did have the notes of the delegate, and references in the delegate’s reasons as to what the applicant had said, it did not have the entire record. This is what it was trying to obtain through the exercise of its discretion under s.473DC.
While this situation must have created a conundrum for the Authority, if the information was not “new information” it was not open to the Authority to exercise its discretion to get the information pursuant to s.473DC. Whether information is “new information” is a matter to be determined by having regard to the legislative provisions. “Review material” could never be “new information”.
Where reasons for a procedural decision are given, those reasons must be treated as the real reasons for the Authority’s decision in respect of the discretion under s.473DD[37].
[37] East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 at [228] per Ashley and
The task for this Court is not to “consider whether the reasoning process of the Authority was one which would satisfy the Court.” [38] Rather, it is a question of “whether the reasoning process displayed a misunderstanding of the nature and extent of the prohibition and the task of the Authority in forming the required state of satisfaction”[39].
[38] AOV18 v Minister for Home Affairs [2018] FCA 1871 (“AOV18”) at [6]
[39] AOV18 at [6]
There is nothing in the Authority’s reasons which indicates that it considered in any way whether it was satisfied as to the requirements of s.473DD(b), although it did consider whether there were “exceptional circumstances” as required by s.473DD(a). This is not surprising, as the Authority had no way of knowing whether what was said by the applicant during the interview with the Authority had already been information provided to the delegate.
Therefore, the Authority’s failure to mention or deal with these matters in its reasons leads the Court to infer that these matters had not actually been considered by the Authority.[40]
[40] Soliman v University of Technology, Sydney [2012] FCAFC 146 at [53]-[54]. See also Minister for
Furthermore, the requirement of “exceptional circumstances” is a requirement only with respect to “new information”. The decision by the Authority that there were “exceptional circumstances” in the context of these facts was fraught with problems.
Which brings the Court to the third point[41], whether the Authority acted with legal unreasonableness in not putting to the applicant, during the interview, matters which it was going to find against the applicant contrary to the findings of the delegate.
[41] Ground 2
No submissions were made as to how putting such matters to the applicant during the interview and asking him for information, could be “new information” in the statutory sense. The Court was taken to a number of authorities which found that such circumstances could amount to jurisdictional error. The Court is of course bound by Full Court authorities. It appears to be well established that a failure on the part of the Authority to consider exercising its discretion in s.473DC may be legally unreasonable.[42] The difficulty however, of how the Authority could satisfy itself as to the requirements of s.473DD even when exercising its discretion pursuant to s.473DC were not explained in submissions. That is, how could such information be “new information”?
[42] DPI17 at [35]-[36]
The High Court[43] has, respectfully, answered that question in the following manner[44]:
49. …The relevant information in that scenario would not itself be new information and could not become new information. Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s.473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s.473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s.473DC(3) to issue such an invitation.
50. There could be no doubt that any new information that might be provided by the referred applicant in response to such an invitation or of the applicant's own volition in that other scenario – if relevant, responsive, credible, and about the applicant or another person – would meet the preconditions for consideration by the Authority set out in s.473DD(a) and in s.473DD(b)(ii). The new information would meet the precondition set out in s.473DD(a) because the circumstances giving rise to the occasion for consideration of the information – prior non-compliance with s.57(2) – could not be regarded as anything other than exceptional. The new information would meet the additional precondition set out in s.473DD(b)(ii) because that information would not previously have been known by the Minister and because, had the information been known by the Minister, the information may have affected the consideration of the referred applicant's claims.
[43] Plaintiff M174/2016 at [49-[50]
[44] Neither party made any submissions to the Court about the applicability or otherwise of the principles in Plaintiff M174/2016 in respect of whether the Authority could "fashion its own procedures" so as to invite the applicant in for an interview in circumstances where the review material was not available. Furthermore, Wigney J in BVC20 was of the view that a similar breach in respect of a failure to provide a digital image to the Authority could not be cured by s.473DC. See [90]
In the present circumstances, the applicant was invited to an interview and he was asked to provide any information he thought might be relevant. He was asked to provide information at large and he was also asked certain questions which he answered. However, it was done in the context of “…so those things have already been put forward in your statement. So what is it that you want to be heard about, that you have not yet been heard on?”
This was not enough in light of the findings of the delegate when compared to the findings of the Authority, particularly in light of the unavailability of the record of interview before the delegate. Some of the matters in respect of which the applicant was asked questions might have been matters which had already been put to him by the delegate. Due to the lack of the record of interview, these things could not have been known by the Authority.
The reasons of the Authority disclose as follows:
Without coming to a determinative conclusion as to the truth of the new information which the applicant provided at the 19 December 2018 IAA interview and the 27 December 2018 submission to the IAA, I am satisfied that is has satisfied s.473DD(b)(ii) with regard to this new information and, given that the Department is unable to provide an audio recording of, or a proper transcript for, the SHEV interview [i.e. interview before the delegate], that there are exceptional circumstances to justify consideration of this new information …[45]
[45] CB: 261 at [4]
This is the difficulty in respect of “new information” already identified. Without knowing what had been before the delegate, that is without having the “review material” before it, it cannot be said whether the Authority simply took a different view of the material already considered by the delegate, or whether it considered a new factual matter going to the applicant’s claims and about which he was likely to have further information.
As held by the Full Court, s.473CB(1) “review material” is a critical part of the process and errors under that provision are not as likely to be corrected or rendered immaterial by reason of an opportunity to be heard being provided in the review, as may occur under Part 7.[46] The only avenue open to the Authority might be to exercise its discretion under s.473DC, subject to the requirement that such material is “new information”.
[46] EMJ17 v Minister [2018] FCA 1462 at [42(3)] cited in EVS17 v Minster for Immigration and Border Protection [2019] FCAFC 20
The failure by the Secretary to give to the Authority the transcript of interview, recording of interview or some other reliable record of the interview, that is, what the applicant said at the interview, was a failure to provide review material. Fault is irrelevant. The Authority’s conduct of a review, without having before it the review material, amounted to jurisdictional error in the circumstances. It is a failure which could not be remedied through the exercise of discretion under s.473DC.
The Authority made adverse credibility findings in respect of much of what the applicant claimed, particularly during the interview with the Authority:
a)Issues of credit are noted at [13] of the Authority’s reasons with respect to applicant’s claim about citizenship, arising out of matters which were discussed at the interview with the Authority;[47]
b)Issues of credit are noted at [15] of the Authority’s reasons with respect to the applicant’s claim about being arrested and not having any documents regarding same as said by the applicant at the interview, contrasted with what he was noted to have said in his 2017 statement;
c)Issues of credit are noted at [17] of the Authority’s reasons with respect to the applicant’s claim about his father arising out of the matters discussed at the interview with the Authority;
d)Issues of credit are noted at [21] of the Authority’s reasons with respect to the applicant’s claim about exchanging money for a Mahdi Army leader which were discussed at the interview with the Authority compared to what was contained in the SHEV interview notes as noted at [20] of the Authority’s reasons;
e)Issues of credit are noted at [23] of the Authority’s reasons with respect to the applicant’s claim about the applicant’s claim to have enjoyed the confidence of a Mahdi Army leader arising out of the matters discussed at the interview with the Authority;
f)Issues of credit are noted at [24] of the Authority’s reasons with respect to the applicant’s claim about his view of the regime arising out of the matters discussed at the interview with the Authority, with the Authority noting “The applicant thus now appeared to be altering his reply again”… “according to one explanation”… and “according to another explanation”;
g)Issues of credit are noted at [25], [26], [30] and [31] of the Authority’s reasons with respect to the applicant’s claim about how a particular person came to be in his employment and his claim that the same person was an informant, arising out of the matters discussed at the interview with the Authority compared to the 2017 statement, where the Authority found that “the applicant’s final IAA interview account of how he realised Hussein B was an informer seems at odds with what he said in his February 2017 statement”;
h)Issues of credit are noted at [33] of the Authority’s reasons with respect to the applicant’s claim about his financial and legal problems arising out of the matters discussed at the interview with the Authority when compared to the 2017 statement; and
i)Issues of credit are noted at [36] and onwards of the Authority’s reasons with respect to the applicant’s claim about his lack of ability to provide documentary evidence of his dealings with courts in Iran arising out of the matters discussed at the interview with the Authority.
[47] Albeit ultimately the Authority accepted the claim about citizenship
The Authority finds that the applicant has given “inconsistent and unconvincing evidence about how he became aware that he was being informed upon by Hussein B…” and his “unconvincing” evidence about the green movement, the Authority found that the applicant’s evidence was not credible.[48] Likewise, it rejected the applicant’s claims about his father’s status, and rejected the applicant’s claims in their entirety about the applicant’s claim in respect of his financial and legal issues in Iran.[49]
[48] CB:276 at [40]
[49] CB:276 at [41]
The credibility findings were material.
Significantly, the Full Court observed in CPA16[50] that:
[50] At [39]
.…Credibility findings are often non-linear in nature.
We respectfully agree with Kirby J’s observations in Applicant NAAF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs … where his Honour said:
…decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.
(citations omitted)
Having regard to the applicant’s claims and the evidence as a whole and in light of the Authority’s course of reasoning, the Court is satisfied on the balance of probabilities that provision of the information the applicant gave during the interview, in accordance with s.473CB, could realistically have resulted in the Authority making a different decision.
Likewise, the failure by the Authority to afford the applicant a reasonable opportunity to be heard in the context of this particular case in respect of matters the Authority found against the applicant, was material in that it could realistically caused the Authority to come to a different decision had it not failed to do so. It was legally unreasonable for the Authority to act in the manner it did.
The applicant was thus deprived of a realistic possibility of a successful outcome.
The application for judicial review is therefore made out.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Associate:
Date: 30 June 2020
Redlich JJA; Wall v Repatriation Commission [2019] FCA 1838 at [60] Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [69]
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