AZC20 v Minister for Immigration
[2020] FCCA 2317
•21 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AZC20 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2317 |
| Catchwords: MIGRATION – Immigration Assessment Authority – Temporary Protection (Class XD) (Subclass 785) visa – application for judicial review – applicant in detention – long history – whether the Authority acted unreasonably by failing to invite the Applicant for an interview – whether the Authority’s decision was affected by apprehended bias – prejudicial material – whether the Authority asked itself the wrong question or made an irrational finding about the Applicant’s apostasy – whether the Authority conducted the review according to law by acting as a contradictor – held that a lay-minded observer may consider the information subconsciously affected the Authority – decision set aside and application remitted. |
| Legislation: Migration Act 1958, ss.195A, 473CB, 473DC, 473DB, pt.7AA |
| Cases cited: ABT17 v Minister for Immigration and Border Protection and Another [2019] FCA 613; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 |
| First Applicant: | AZC20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 860 of 2020 |
| Judgment of: | Judge Blake |
| Hearing date: | 14 July 2020 |
| Date of last submission: | 14 July 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2020 |
REPRESENTATION
| Counsel for the applicant: | Dr McBeth |
| Solicitors for the applicant: | Clothier Anderson Immigration Lawyers |
| Counsel for the respondents: | Ms Lucas |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
The decision of the Immigration Assessment Authority made on
24 February 2020 in matter number IAA19/07538 be set aside.
The matter be remitted to the Immigration Assessment Authority for determination according to law.
The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 860 of 2020
| AZC20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 24 February 2020. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Temporary Protection (Class XD) (Subclass 785) visa (‘visa’).
For the reasons that follow, I have decided to allow the application for review.
Background
The Applicant is an Iranian national. He arrived in Australia on 15 July 2013 as an unauthorised maritime arrival.
The Applicant applied for the visa on 9 September 2015. His claims for protection were set out in a statement of the Applicant made on
27 September 2015 (Court Book 125 – 129).
On 15 March 2016, the Applicant attended for an interview with a delegate of the Department of Immigration and Border Protection (‘Department’). As the Applicant does not speak, the Applicant provided written answers to questions in Farsi which were then interpreted verbally by the interpreter.
Documents from the Department file are contained within the Court Book. Those documents include an apparently draft Protection Visa Assessment dated 24 May 2016. In that draft document, the Department recommended that the Applicant be found a refugee and be granted the visa (Court Book 184 – 210). It is accepted, however, that ultimately the visa was not granted following the 24 May 2016 assessment, apparently because of an unresolved security issue.
On 4 October 2016, a delegate of the Minister wrote to the Applicant requesting further information. On 13 March 2018, the Department wrote to the Applicant advising him that the delegate assessing his application for the visa had changed. The Applicant was invited to submit further information to the Department in support of his application. The Applicant responded the next day, 14 March 2018.
The Applicant provided further information and documents to the Department on 29 March 2018 and 3 April 2018.
On 9 May 2018, a delegate refused to grant the Applicant the visa. On 14 May 2018, the matter was referred to the Authority for review.
The Applicant provided a number of documents and submissions to the Authority on 21 and 23 May 2018.
On 29 March 2019, the Authority affirmed the delegate’s decision not to grant the Applicant the visa (‘first decision’).
On 24 April 2019, the Applicant applied to the Federal Circuit Court of Australia for review of the first decision, proceeding number MLG1254/2019.
On 6 December 2019, orders were made by consent by Riethmuller J which quashed the first decision and directed the Authority to reconsider the decision. The following was noted on the order:
‘The first respondent concedes that the second respondent (IAA) failed to have regard to information contained in the 2018 DFAT report that was relevant and significant to the applicant’s claims to fear harm on the basis of religion: Minister for Immigration v MZYTS [2013] FCAFC 114. The error was material to the IAA’s decision and therefore constituted a jurisdictional error.’
As a result of this order, the matter was referred to the Authority for reconsideration. The Applicant was advised of this referral on 12 December 2019.
On 13 December 2019, a legal representative from Victoria Legal Aid wrote to the Authority requesting that a decision not be made until 17 January 2020, at the earliest, as pro-bono representation was being arranged. That letter included submissions as well as enclosed country information.
On 15 January 2020, the Authority wrote to the Applicant’s solicitors inviting them to comment on the following (Court Book 528):
‘- The IAA has received the material referred by the Secretary under s.473CB of the Migration Act 1958 (the Act) (the review material). This includes a copy of s195A guidelines assessment dated 22 December 2015 (a copy of which is attached). This information does not appear on its face to be relevant to the review. However, if you wish to do so you are invited to comment on the information.
- The review material also includes correspondence about various charges and accusations which were dropped and a conviction for unlawful and indecent assault in 2017 (copy attached). This information does not appear on its face to be relevant to the review. However, if you wish to do so you are invited to comment on the information.’
On 20 January 2020, the Applicant’s solicitors provided a response to the invitation to comment and legal submissions, which enclosed a number of supporting documents.
On 24 February 2020, the Authority affirmed the delegate’s decision not to grant the Applicant the visa (Court Book 719 – 756) (‘Decision’).
The Applicant applied to this Court for judicial review of the Decision on 12 March 2020. The Applicant’s legal representative also filed an affidavit in support, which annexed the Decision.
The Applicant subsequently filed an amended application (‘Application’), an affidavit of Sanmati Verma affirmed on 23 June 2020 and written submissions on 24 June 2020. The Minister filed written submissions on 6 July 2020.
Due to current circumstances surrounding the global pandemic of COVID-19, the matter proceeded before me by telephone.
The Applicant’s claims for protection
The Applicant’s claims for protection were summarised by the Authority in the Decision. Among other things, the Applicant claims to fear harm by the Iranian authorities on the ground of apostasy (non-believer in Islam), his perceived religious connection with the Baha’i faith and because of his application for protection visas in Australia.
Grounds of review
The Application contains four grounds of review. I propose to deal with each one in turn.
Ground 1
Ground 1 of the grounds of review in the Application is as follows:
‘1. The Immigration Assessment Authority (the Authority) acted unreasonably, in failing to exercise, or consider the exercise, of its power to get new information under s 473DC(3) of the Migration Act 1958 (the Act).
Particulars
1.1. The applicant was interviewed in relation to his protection claims by a delegate of the First Respondent on 16 April 2016;
1.2. At the time of that interview, the applicant was suffering from psychogenic mutism, as a result of which he transcribed his responses to the delegate’s questions on paper, to then be read by an interpreter;
1.3. Given the effluxion of time since the delegate’s interview, and the impediment presented by the applicant’s mutism, the Authority was requested by the applicant to exercise its power under s 473DC(3) of the Act to get new information from the applicant, particularly in relation to any supposed ‘inconsistencies’ in his evidence given to the delegate;
1.4. The Authority’s failure to exercise its power under s 473DC(3) was unreasonable in the applicant’s circumstances.’
The Applicant’s submissions under this ground may be summarised as follows. It was unreasonable for the Authority not to exercise its power under section 473DC(3) of the Migration Act 1958 (‘Act’) to invite him to attend an interview in the following circumstances. He suffers from psychogenic mutism. When interviewed by a delegate of the Minister, he wrote his answers down on paper and they were read by an interpreter. The delegate conducting the interview subsequently completed a draft Protection Visa assessment which concluded, among other things, that the Applicant was a person to whom Australia owed protection obligations. The delegate responsible for the Applicant’s visa application subsequently changed. The second delegate ultimately concluded that the Applicant was not a person to whom Australia owed protection obligations. That conclusion was reached in circumstances where the second delegate did not interview the Applicant directly. Further, when the matter came before the Authority, the Authority did not interview the Applicant directly. It nevertheless criticised the Applicant’s evidence as, among other things, ‘vague, lacking in details, evasive and not spontaneous or free-flowing’ (Decision at [46]) after having listened to the audio recording of the interview. As a result of the Applicant’s mutism, the audio recording would not have conveyed the manner in which the Applicant answered questions or otherwise expressed himself. It was therefore unreasonable of the Authority to make the findings it did without exercising its power under section 473DC(3) of the Act to interview the Applicant.
The Applicant’s complaint above is made in the context of a review conducted under Part 7AA of the Act. It is well understood that pursuant to the statutory scheme set up under that Part of the Act, the Authority is to provide a mechanism of limited review that is quick, efficient and free of bias. The Authority does not have a duty to get, request or accept new information, even if expressly requested to do so by an applicant: section 473DC(2) of the Act. Reviews by the Authority are ordinarily conducted on the papers without further hearing.
In order to demonstrate jurisdictional error of the type alleged, the Applicant must show that the exercise of the discretion by the Authority ‘has the character of being unreasonable, insufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power’: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11] (Allsop CJ).
The Applicant referred me to a number of authorities in support of his contention that the failure by the Authority to interview him was unreasonable.
DPI17 v Minister for Home Affairs (2019) 269 FCR 134 (‘DPI17’) was a case where an applicant claimed to have been sexually assaulted. The delegate accepted the sexual assaults occurred but made adverse findings with respect to the applicant’s other claims. The Authority on review nevertheless made adverse credit findings as to the applicant’s sexual assault claims. The Authority did so without considering whether or not to exercise its powers under section 473DC to obtain new information before making its findings. A Full Court of the Federal Court of Australia held that the Authority’s failure to consider whether or not to exercise its power under section 473DC was legally unreasonable.
In addition to DPI17, on the question of the importance of a decision maker interviewing a person where adverse credibility findings are in issue, the Applicant directed me to ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 (‘ABT17’). While Bromberg J sitting in the appellate jurisdiction ultimately dismissed the appeal for other reasons, His Honour made some comments on the importance of demeanour when the Authority makes adverse credibility findings without electing to interview the an applicant. His Honour stated:
‘23. In relation to the appellant’s claim to have been sexually tortured during the alleged detention, the IAA disbelieved that claim, including because despite what it regarded to have been sympathetic questioning by the delegate, the appellant was unable to talk about it and was unable to provide any details of what happened to him, other than saying that there were two or three army men and that he was unconscious for a lot of the time. Additionally, the IAA found the appellant’s explanation given to the delegate as to why he did not seek medical treatment afterwards unconvincing.
24. It seems to me that the IAA must have been aware that, in the interview with the appellant, the delegate had the opportunity to observe the appellant’s demeanour. Not to merely listen to a tape of the interview (as it appears the IAA did) but to see and evaluate the physical manifestations which must have accompanied the evidence given by the appellant. The IAA must have recognised, including because of the issues addressed by the evidence, that the delegate’s findings as to the plausibility of the appellant’s evidence, and in particular the evidence given about the alleged sexual torture, may have been, at least in part, based on the delegate’s positive assessment of the appellant’s demeanour. In those circumstances, it may well be thought that a reasonable decision-maker would not have made credibility findings contrary to those made by the delegate without considering whether or not the powers given to the IAA under s 473DC should be exercised …’
FOA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 815 (‘FOA18’) was an appeal from this Court, which proceeded before White J. The applicant’s visa application was refused by a delegate of the Minister. That decision was affirmed by the Authority. Relevantly, the delegate who conducted the interview with the applicant accepted that the applicant had been kidnapped. The Authority, however, found those claims were not credible. White J found that the Authority had failed to consider whether to exercise the discretion to invite the applicant to attend for an interview. This was the basis upon which White J upheld the appeal. In the course of coming to that conclusion, His Honour assessed the relevant facts. His Honour noted that:
‘56. The IAA member had the same written material as did the delegate and was able to (and it may be inferred, did) listen to the audio tape of the delegate’s interview with the applicant. It was not suggested that a videotape was also available. This was not a case of a decision-maker being confined only to the written record. Listening to the audio tape must have allowed the IAA member to make some assessment of the apparent spontaneity of the applicant’s responses and of the manner in which they were given. Despite that, it is unlikely that the member’s ability to do so was as complete as that of the delegate who both saw and heard the responses.’
It is important to note that the authorities above, when coupled with the Applicant’s submissions, may tend to suggest that the Authority ought to issue an invitation to applicants to appear at an interview whenever credibility is in issue. That, however, is not the case. That proposition was expressly disavowed by a Full Court of the Federal Court of Australia in DYK16 v Minister for Immigration and Border Protection (2018) 267 FCR 69. In that matter, the Full Court at paragraph [74] stated, among other things, that if the Authority were compelled to invite an applicant to interview merely because his or her credibility is called into question, the result would be that the Authority would generally come under an obligation to issue an invitation, as adverse credit findings are made in the majority of cases coming before the courts. The Full Court observed that such an outcome would not only be inconsistent with the text of section 473DC(2) of the Act, but would also defeat the purpose of the fast track review process.
Each of DPI17, ABT17 and FOA18, in their own way, highlight the desirability in certain circumstances of a decision maker either considering whether to exercise the power to obtain new information, or interviewing an applicant when issues of credit are at stake. It is significant, however, that both DPI17 and FOA18 were ultimately cases where the Authority had failed to consider whether to interview the applicant. That is not the case here. In this matter, the Authority expressly considered whether to interview the Applicant and decided not to do so.
In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, Nettle and Gordon JJ at [84] emphasised not only the ‘invariably fact dependent’ nature of an enquiry into legal unreasonableness but also that the focus needs to be on the particular factual circumstances of the case, rather than an analysis factual similarities or differences in other cases. Their Honours stated:
‘84. Moreover, legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.’
Having regard to the above, I turn now to the facts of this case. The first important observation to be made in relation to this matter is that the Authority expressly considered whether to invite the Applicant to an interview under section 473DC(3) of the Act and decided not to do so.
The Authority’s reasons for deciding not to interview the Applicant are set out at paragraphs [37] – [39] of the Decision. In summary, the Authority elected not to interview the Applicant for reasons that included the following:
a)the Applicant is highly educated (at [39]) and also was able to communicate well and advocate for himself (at [38]);
b)the Applicant had been warned about the potential change in decision maker within the Department and was given an opportunity to provide further information (at [38]);
c)the Applicant had not been impaired when providing evidence at the interview. He had provided written answers to the delegate, and had been given plenty of time to do so (two interviews – arrival and protection interviews) each of more than four hours duration (at [38]);
d)the Applicant had had an opportunity to respond to later adverse information which was put to him in 2018 and responded by providing three detailed emails in March 2018 (at [38]);
e)the Applicant had the opportunity to address inconsistencies, and was well aware of the issues that he confronted (at [38]);
f)the Applicant had a meaningful and full opportunity to present his evidence and respond to credibility concerns, notwithstanding his mental health issues and his psychogenic mutism (at [39]).
Further, in considering whether to interview the Applicant, the Authority considered the issue in the context of the statutory framework, and the fast track review process that it operates under: see paragraph [39] of the Decision. It was appropriate that it did so.
The adverse credibility findings made by the Authority about which the Applicant complains are set out in various paragraphs. These include findings that the Applicant’s account at the interview was ‘vague, lacking in details, evasive and not spontaneous or free-flowing’ (at [46]); that the Applicant did not ‘provide a spontaneous or free-flowing account’ (at [59]); that the ‘applicant’s account was hesitant and not spontaneous or free-flowing’ (at [63]); and that the Applicant’s account ‘lacked spontaneity’ (at [97]).
There are two features of the present matter which are unusual. The first is that the original delegate, having interviewed the Applicant, prepared a draft visa assessment in which the delegate stated, among other things, that Australia owed the Applicant protection obligations. That delegate regarded the Applicant as credible. Some emphasis was placed on this by the Applicant in submitting that the decision by the Authority not to interview the Applicant was unreasonable in circumstances where the Authority went on to make adverse findings about the Applicant’s credibility.
The draft protection visa assessment is unusual. The following matters are, however, relevant to weigh in respect of this. First, the initial assessment by the original delegate was simply a draft. The process of granting the visa was not complete at that time. It is apparent that the assessment was continuing, and indeed actively continued for some time. So much is evident from the correspondence and enquiries that followed the draft assessment. This is not a case where the draft assessment was prepared, no further information was received, and then the assessment outcome was changed. The process of the visa assessment was clearly continuing, information was still being gathered, the Applicant had been informed of such, and indeed participated in that process. In my view, this means that while it is unusual, no significant weight ought to be placed on the draft visa assessment. Time moved on, further information was gathered, and the ultimate outcome was that the visa was not granted.
The second unusual feature of this case is the psychogenic mutism suffered by the Applicant. This produced the consequence that at the interview, the Applicant answered questions by writing down the answers in Farsi, and then having those answers read out by an interpreter. The Applicant submits, among other things, that the criticisms made of the Applicant’s evidence by the Authority, such as the evidence being ‘evasive’ or not ‘free-flowing’ go to the Applicant’s demeanour. It is submitted by the Applicant that his demeanour could only be assessed by observing him. It is submitted by the Applicant that the Authority could not make an assessment of demeanour at all given the Applicant’s psychogenic mutism.
I am not persuaded that the issue is as straight forward as that submitted by the Applicant. Evidence which is described as ‘vague’ or ‘lacking in details’ are criticisms that go as much to the content of the evidence, as to the manner in which it is given. Criticisms such as whether a person is ‘evasive’ or whether evidence is ‘free-flowing’ could mean a number of things. For example, it could refer to an individual not answering a direct question on one or more occasions. It is not correct to attempt to characterise such criticisms as only capable of being made if the decision maker is able to assess demeanour.
There is then the fact that the Applicant was mute. Two matters flow from this. First, his answers were transcribed and read out. This is not a case where the answers were given immediately, orally, and an assessment could be made of body language while the answers were being given orally. Rather, the manner in which the interview was conducted meant that the focus was necessarily on the written word of the Applicant, as interpreted.
Second, neither the first delegate nor the Authority (listening to the audio recording) had the benefit of listening to the voice of the Applicant. Change of tone, or equivocation when speaking, are often indicators used by decision-makers. Neither the delegate nor the Authority had the benefit of it here. There was no opportunity for an assessment of oral cues given the psychogenic mutism suffered by the Applicant.
Ultimately, the question before me is whether the decision of the Authority not to exercise its discretion under section 473DC(3) to interview the Applicant was unreasonable in that it lacked any rational, evident or intelligible justification. When all of the matters are considered above, and for all of the reasons above, I am of the view that the decision was not unreasonable. To summarise, the Authority appropriately turned its mind to whether it should call the Applicant for an interview. It set out detailed reasons (noted above) as to why it did not consider it necessary to interview the Applicant. It weighed those reasons in the context of the statutory scheme under which it is required to operate. Finally, its findings in respect of the Applicant’s credibility were open to it notwithstanding that there had been an earlier favourable assessment for the Applicant and notwithstanding that the Applicant is a psychogenic mute.
For all of the above reasons, I dismiss ground one of the grounds of review.
Ground 2
Ground 2 of the grounds of review in the Application is as follows:
‘The decision of the Authority was affected by apprehended bias.
Particulars
2.1. The Authority had before it information which indicated that the applicant was subject to investigation by the Australian Security and Intelligence Organisation and had been the subject of criminal charges (subsequently dropped) and accusations about his conduct in immigration detention (the information);
2.2. That information was provided to the Authority by the Secretary of the Department of Home Affairs, under s 473CB(1)(c), which requires the Secretary to give the Authority material which the Secretary considers ‘relevant’ to the review;
2.3. Pursuant to s 473DB(1), the Authority had to consider the information given by the Secretary;
2.4. The information was highly prejudicial to the applicant and the manner by which it was communicated indicated to the Authority the Secretary’s view that it was ‘relevant to the review’;
2.5. A fair minded lay observer would apprehended that the Authority would not have brought an open mind to the review, in light of the prejudicial nature of the information to which it was obliged to have regard.’
The material that the Applicant says was prejudicial, and that was before the Authority, may be summarised as follows:
a)An assessment conducted pursuant to section 195A of the Act dated 22 December 2015 (Court Book 530 – 532) which relevantly indicated that:
i)the Applicant ‘has been identified as a national security risk by ASIO’, and that the matter has been referred to ASIO for investigation;
ii)that during his time in detention, the Applicant ‘has been involved in numerous behavioural and mental health incidents’ which have included, among other things, ‘abusive and aggressive behaviour, threats of self-harm and actual self-harm and contraband’, however ‘All incidents are now closed’;
iii)a disclosure by the Applicant that he had been arrested in Iran and accused ‘of participating in terrorist activities and bomb making’;
b)a Conditional Release Order dated 27 November 2017 (Court Book 533) indicating that the Applicant had been convicted of unlawful and indecent assault and sentenced to a conditional release with a term of nine months;
c)departmental correspondence (Court Book 534-542) which indicated that a number of charges had been made against the Applicant, but all such charges had been discontinued (other than the charge relating to the conditional release order referred to above). Of note, within that correspondence is an email dated 30 June 2017 which sets out court dates relating to “Threat-Bomb Biologic Chem’, ‘Assault- Sexual Detainee’ and ‘Hostage’.
The Applicant contends under this ground that the Authority was provided with information that was irrelevant and prejudicial to him. Accordingly, it is submitted that the decision of the Authority is affected by apprehended bias. The Applicant further contends that the case authorities demonstrate that where the Authority has information before it that is prejudicial to an applicant, but irrelevant to the review, the only remedy available to an applicant is for the Authority to commence a new review that does not contain the prejudicial information.
The Minister accepts that the rule in relation to apprehended bias applies to the provisions of Part 7AA of the Act. The Minister also accepts that the information provided to the Authority was irrelevant to the review, and prejudicial to the Applicant. The Minister, however, does not agree that the case authorities support the proposition that the only available course is for the Authority to conduct a new review. Rather, the Minister contends that the case authorities demonstrate that the question of whether a decision is affected by apprehended bias will depend on all of the relevant facts and circumstances of the case.
There is not any dispute between the parties as to the test to be applied when assessing apprehended bias. The relevant question is whether a fair minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the questions that the Authority is required to decide: CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 (‘CNY17’) at [17] (Kiefel CJ and Gageler J).
CNY17 was a case where, similar to this one, the Authority had been provided with information from the Secretary that was said to be prejudicial to the Applicant. The material, some of which had been volunteered by the applicant, related to charges against the applicant for damaging property, suggestions the applicant participated in a riot while in detention, information that suggested he had a history of aggressive or challenging behaviour which could lead to the inference that he ought not be released from detention on a bridging visa, and information which tacitly suggested he might present a national security risk. The Authority, in reaching its conclusion, stated that it had regard to the material provided by the Secretary, but did not specify which, if any, of the material its decision was based on. The Authority did not refer to the prejudicial material and did not at any stage expressly disavow reliance upon the prejudicial material.
In considering the matter, the five member bench of the High Court split. A useful summary of the principles upon which the High Court agreed, and the reasons for the difference in outcome, is contained within the decision of a Full Court of the Federal Court of Australia in FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29 (Bromberg, Davies and O’Bryan JJ) (‘FSG17’) at [32] - [35] and is reproduced below:
‘32. Although members of the Court disagreed on the outcome, each member of the Court was agreed on the following matters of principle:
(a) First, the bias rule of procedural fairness is not excluded or limited by any of the provisions of Part 7AA of the Act, and indeed s 473FA(1) stipulates that, in carrying out its functions, the Authority is to pursue the objective of providing a mechanism of limited review that is, amongst other things, free of bias: at [16] per Kiefel CJ and Gageler J, at [60] per Nettle and Gordon JJ and at [131] per Edelman J.
(b) Second, the applicable test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the Authority might not bring an impartial mind to the resolution of the questions the Authority is required to decide: at [17] per Kiefel CJ and Gageler J, at [56] per Nettle and Gordon JJ and at [132] per Edelman J. In assessing that test, the Court attributes to the fair-minded observer knowledge of the relevant legal framework (here the procedures under Part 7AA) and knowledge of the relevant facts: at [17] per Kiefel CJ and Gageler J and at [58] – [59] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
(c) Third, it follows from the second principle that the apprehended bias rule is concerned with preserving the public appearance of independence and impartiality and the rule does not require a finding that the irrelevant material affected the decision and there was actual bias: at [18] per Kiefel CJ and Gageler J, at [70] per Nettle and Gordon JJ and at [131] per Edelman J. A corollary is that apprehended bias is not remedied by the decision-maker disregarding the irrelevant and prejudicial material. The question is directed to what a fair-minded lay observer might reasonably apprehend.
(d) Fourth, in certain circumstances, a fair-minded lay observer might reasonably apprehend that irrelevant and prejudicial material might have a subconscious (prejudicial) effect on the mind of a decision-maker notwithstanding that the decision-maker had consciously and expressly put the information aside as irrelevant: at [28] – [29] per Kiefel CJ and Gageler J, at [97] per Nettle and Gordon JJ (this point was not expressly addressed by Edelman J).
33. Nettle and Gordon JJ (at [51]) and Edelman J (at [110]) concluded that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review, by reason of the irrelevant and prejudicial material contained in the departmental information which the Authority was mandated to consider. Their Honours considered that the departmental information might have led the Authority to make a decision otherwise than on the legal and factual merits of the case, because it might have led the Authority to the view that the applicant was not the sort of person who should be granted a visa or that the applicant was not a person who should be believed, even if that view was formed on a subconscious rather than conscious level. The risk of subconscious bias was such that it could not be cured by putting the information aside (at [97] per Nettle and Gordon JJ). Their Honours regarded as relevant the facts that: the prejudice likely to arise from the departmental information was substantial; the Authority was required by statute to consider the material provided by the Department; the Authority said in a letter to the applicant that it would make its decision on the basis of the material provided by the Department; the Authority stated in its reasons for decision that it had considered all of the material provided to it; and the Authority did not expressly state that it had put the irrelevant and prejudicial material to one side (at [94], [96], [98] and [99] per Nettle and Gordon JJ and at [110] and [111] per Edelman J).
34. Kiefel CJ and Gageler J differed from the majority and concluded that the hypothetical fair-minded lay observer would understand that the departmental information could have no legitimate bearing on the review to be conducted by the Authority (at [41]) and that such an observer would not regard the information as so shocking as to give rise to the realistic possibility that knowing it would play on the subconscious of the Authority to the detriment of the applicant (at [43]).
35. Given the facts of the case, it was unnecessary for the High Court to determine one of the questions that arises in the present appeal: whether an express disavowal of the prejudicial information by the Authority would assuage the risk that a fair-minded lay observer might have apprehended that the Authority might not have brought an impartial mind to the review. Nevertheless, members of the Court addressed that question, albeit in statements that must be regarded as obiter. Kiefel CJ and Gageler J said (at [20]) that the question whether conduct has resulted in a breach of the bias rule must be assessed by reference to all the circumstances that exist at the time when that question arises and, where the question arises after the Authority has made a decision, the reasons that the Authority has given for the decision may be relevant. Justices Nettle and Gordon observed (at [69]) that the question of apprehended bias can be, and often is, considered before the decision is made and that, in the case before them, an objection on the basis of apprehended bias could have been raised as soon as the Authority was given the departmental information. In the case before them, their Honours recognised as relevant the facts that the Authority did not expressly state that the prejudicial material had been put to one side (at [99]) and the Authority did not reveal the prejudicial information to the applicant but kept it hidden (at [100]). Justice Edelman likewise said (at [135]) that apprehended bias must be assessed by reference to all the circumstances existing at the relevant time of enquiry and, if apprehended bias is assessed at the conclusion of a hearing, then the reasons for decision might reveal matters relevant to the consideration of whether a reasonable apprehension exists. In concluding that the case gave rise to apprehended bias, his Honour placed reliance on the fact that: “Nowhere in its reasons did the Authority suggest that any of the material provided by the Secretary was not relevant or that weight had not been placed on any of the material provided by the Secretary” (at [141]).’
I intend to apply the principles above to the matters before me.
FSG17 itself was a case where prejudicial information had been provided to the Authority. The Authority here however, unlike in CNY17, identified the prejudicial information, explained why the information was irrelevant, and expressly disavowed any reliance on that material. The prejudicial information in FSG17 was information relating, among other things, to the applicant having been arrested and charged with persistent sexual abuse of a child.
The question before the Full Court in FSG17 was whether the apprehension of bias that arose by reason of the Authority receiving and considering the information was assuaged by the Authority identifying the information, finding it to be irrelevant, and disavowing any reliance on the material. The Full Court found that the information was of such a prejudicial kind that ‘a fair minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information’ (at [42] of FSG17).
I turn now to the facts of this case. I have already described the prejudicial information that was before the Authority. In this matter, the Authority identified the prejudicial information that it had received. It informed the Applicant that it considered the material the irrelevant. It provided the Applicant with a full copy of the material before it. It invited the Applicant to comment on it. The Applicant responded to that invitation. The Authority took the Applicant’s response into account and accepted the Applicant’s submission. The Authority then explained in the decision that the material was irrelevant to its task, and that it had not had regard to it: paragraphs [8] – [15] of the Decision.
The Minister submits that the steps taken by the Authority noted above place this case in a different category to FSG17 and CNY17. In fact, the Minister submits that the steps taken by the Authority in this case are steps expressly contemplated by the Full Court in FSG17 (at [44]) and by Nettle and Gordon JJ in CNY17 (at [102]) as a method by which the Authority could comply with the bias rule of procedural fairness in circumstances where it had received irrelevant and prejudicial material.
There is no doubt that what happened in the present matter places this case in a category that is qualitatively and quantitatively different from FSG17 and CNY17.
However, I am not convinced that the steps taken by the Authority cure the matter. It may be that those steps would cure the issue in other cases. That is a matter I need not consider now. I am not convinced, however, that the steps taken cure the issues here.
The comments of the Full Court in FSG17 at [44] on which the Minister relies, in my view, do not result in a conclusion that adherence to those steps will always mean that the Authority will not be affected by apprehended bias. The relevant question still remains – whether a fair minded lay observer might reasonably consider that the information is of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding the steps the Authority took in this case. The question of apprehended bias is a question of fact to be assessed in light of all of the circumstances: FSG17 at [36].
The prejudicial material in this matter is significantly prejudicial to the Applicant. The information clearly identifies the Applicant as a person considered to be a national security risk by ASIO. Sitting alongside this is the information contained in the Departmental email to which I have referred to above. I do not know, and I was unable to locate any information in the materials that might illuminate me, as to what the references ‘Threat-Bomb Biologic Chem’, ‘Assault- Sexual Detainee’ and ‘Hostage’ mean, however they clearly appear linked to charges and court dates for the Applicant. I accept that any charges relating to these matters were dropped. There might be any number of reasons why charges are dropped and to say more would be to engage in speculation. The very fact the Applicant faced such charges is however highly prejudicial. These are not alleged minor misdemeanours. They denote matters of a most serious kind, particularly when coupled with the Applicant being identified as a national security risk by ASIO. This is not merely information that suggests, tacitly, that the Applicant is a security risk.
There is then the assessment conducted under section 195A of the Act itself. That is a document that does not simply recite material that is prejudicial. It contains the express recommendation that the Applicant not be referred to the Minister for possible consideration of a temporary visa.
Finally, it is pertinent to observe that this is the second occasion on which the Applicant’s case has been referred to the Authority. The first decision of the Authority was quashed by this Court by consent. In the course of those proceedings, the forwarding of prejudicial material was identified as an issue. The quashing of the first decision of the Authority had the result that before the Authority came to consider the matter for a second time, the Secretary needed to again consider what information to provide to the Authority. Despite being on notice of the issue in respect of the prejudicial material, the Secretary nevertheless again included the prejudicial material. On one view, this may be considered nothing more than an error. However, there is another side to this. The Secretary is required to consider what is relevant to the review pursuant to section 473DB(1) of the Act. Despite being on notice of the issue with respect to the prejudicial material, it appears that the Secretary has once again formed the view that the material is relevant. While the Authority states it expressly disavowed the material, would a fair-minded lay observer be satisfied that the Authority was not subconsciously affected by the material given it was included by the Secretary for the second time, notwithstanding the Secretary was on notice of the issue? I have my doubts. A fair minded lay observer may well form the view that the Authority would have difficulty not taking account of the material in spite of its express disavowal, given it was forwarded to it by the Secretary for a second time, the Secretary was under an obligation to forward information he or she considered relevant, and given the nature of the material.
In the present case, I consider the information, and the manner in which it has come before the Authority for a second time, to be so prejudicial that a fair-minded lay observer might reasonably consider that it would be difficult for the decision maker to put the information out of his or her mind in determining whether to grant a visa. A fair-minded lay observer might reasonably consider that the information, and the manner in which it was provided, was of a kind that might subconsciously affect the Authority’s approach to the decision, notwithstanding that the Authority consciously endeavoured to disregard the information.
I therefore uphold ground two of the grounds of review.
Ground 3
Ground 3 of the grounds of review in the Application is as follows:
‘The Authority fell into jurisdictional error in that it asked itself the wrong question, or alternatively, based its decision on an irrational finding, in failing to consider the applicant’s claims in the context of a person who was in fact an apostate.’
The Applicant’s submissions under this ground take issue with the Authority’s findings at paragraphs [112] – [124]. In particular, the Applicant emphasises the following. At paragraph [112], the Authority stated ‘The applicant has consistently claimed and I accept the applicant does not practice the Muslim faith and has no religion’ however, at paragraph [123], the Authority stated ‘while the applicant may not wish to follow Islam or any other religion, I do not accept the applicant practices atheism or seeks to publicise his views’ and further ‘I do not accept that he will be considered an apostate or atheist or follower of other faiths (eg Baha’i)’.
On the basis of the above, the Applicant says two things. First, the Authority failed to consider the harm the Applicant may face because he is ‘apostate’. Second, the Authority not accepting at paragraph [123] that the Applicant will be considered ‘an apostate or atheist’ is, among other things, irrational and irreconcilable with the finding at paragraph [112] that the Applicant is a person of ‘no religion’.
I have examined closely the Authority’s reasons. A review of those reasons discloses the following:
a)the Authority self-evidently spent a considerable portion of its reasons (from paragraph [107]-[125]) considering the harm that the Applicant may face;
b)as noted earlier, the Authority accepted at [112] that the Applicant did not practice the Muslim faith and was a person of no religion;
c)the Authority accepted that upon his return to Iran, the Applicant was ‘unlikely to practise the Muslim faith and has no religion’ (at [115]);
d)at paragraph [113], the Authority did not accept that the Applicant was ‘outspoken publicly about not practising Islam’ and did not ‘accept that the applicant was outspoken in the past or that authorities had any interest in him…’;
e)at paragraph [116] the Authority stated that it was ‘not satisfied that these activities put him at risk of harm or being perceived as an apostate, atheist or agnostic’;
f)at paragraph [119], the Authority cited country information which noted persons who ‘espouse unconventional religious beliefs have been charged with apostasy in the past’ and also noted that ‘Atheists are unlikely to come to the attention of security authorities unless they seek to publicise their views…’.
When the above matters are considered, the following emerges. First, while by definition the Applicant is apostate, the Authority was not satisfied that his activities put him at risk of harm for being perceived as an apostate, atheist or agnostic. Second, because of the conclusions reached above, the Authority considered that the Applicant did not fall into any of the categories of persons that the country information indicated may face harm by reason of apostasy. It can be seen, in my view from the reasons, that the Authority concerned itself with the correct question, that is, whether the Applicant faced a real chance of significant harm by being an actual or perceived apostate. I therefore do not accept the contention advanced by the Applicant that the Authority failed to deal with the Applicant’s claim of apostasy. The Authority in fact dealt with the principal issue.
The Applicant also submits under this ground that the findings of the Authority were irrational having regard to the statements made by the Authority at paragraph [112] when compared against the statement at paragraph [123].
It is well accepted that an applicant who seeks to challenge a finding of fact on the basis that it is irrational, illogical or unreasonable must meet a high standard. As stated by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131], ‘if… reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.’
For the reasons I have set out above, I am satisfied that the finding of the Authority was not irrational, illogical or unreasonable. Properly read, the findings of the Authority do not include a finding that the Applicant was not in fact an apostate. Rather, having regard to what I set out above, the Authority considered that the Applicant would not be perceived or considered to be an apostate, and was therefore not at real risk of harm
For all of the reasons above, I dismiss ground three of the grounds of review.
Ground 4
Ground 4 of the grounds of review in the Application is as follows:
‘The Authority failed to conduct the review according to law, in that it acted like a contradictor rather than conducting a de novo review of the question of whether or not the applicant met the criteria for a protection visa.’
The gravamen of the Applicant’s submission under this ground takes issue with the reasons of the Authority set out at paragraphs [51] – [97]. The Applicant contends that when these portions of the Authority’s decision are read, the Authority engaged in a point by point rebuttal of the Applicant’s claims and focused on a number of ‘supposed inconsistencies’. In doing so, it is submitted that the Authority did not carry out a careful and balanced consideration of the claims against the statutory criteria. Rather, the Authority acted more in the nature of a contradictor or inquisitor.
In paragraphs [51] – [97], the Authority analyses and considers various factual claims that had been advanced by the Applicant. It is important to understand that the Authority’s consideration of the various factual matters in paragraphs [51] – [97] of its reasons occurred in a context where the Applicant provided evidence about his claims at his arrival interview, was then interviewed by the delegate and also provided written material to the delegate. His claims developed over time.
In the circumstances recited above, the Authority analysed the various claims and identified matters that it considered to be inconsistent. That was an appropriate approach to take having regard to the way in which the claims were made, and the way in which they developed. There is nothing unusual about the Authority reviewing claims made at various points in time and assessing whether or not there are inconsistencies in the statements that have been made. I note that in conducting this analysis, the Authority was careful to take account of the particular circumstances pertaining to the Applicant, including his psychogenic mutism and mental health issues: see paragraphs [46] and [49] of the Decision. It also had regard to any explanations given by the Applicant in relation to any inconsistencies: see paragraph [50] of the Decision.
It was in my view, open to the Authority to either accept or not accept the Applicant’s claims as credible. There is nothing illogical, irrational or unreasonable about the Approach taken by the Authority.
For all of the above reasons, I dismiss ground four of the grounds of review.
Conclusion
I have upheld ground two of the grounds of review. The appropriate order is to remit the matter to the Authority for reconsideration. It is also appropriate to make an order for costs in favour of the Applicant.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 August 2020
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