BMB16 v Minister for Immigration and Border Protection

[2017] FCCA 203

FEDERAL CIRCUIT COURT OF AUSTRALIA

BMB16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 203

Catchwords:
MIGRATION – Judicial Review of decision of Immigration Assessment Authority – fast track decision – nature of review – jurisdiction conferred in limited review matters different in nature to review in AAT – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss: pt.7AA; 5, 5(1); 5AA; 36(2); 36(2)(a); 36(2)(aa); 36(3); 91; 349; 415; 473BA; 473CA; 473CC; 473DA; 473DB; 473DC; 473DD

Migration Rules 1994, r.790.221(2)
Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014

Cases cited:
Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505
Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446
Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Multicultural & Indigenous Affairs v ZAYW (2005) 145 FCR 523

Applicant: BMB16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: ADG 185 of 2016

Judgment of: Judge Brown

Hearing date: 4 November 2016

Date of Last Submission: 4 November 2016

Delivered at: Adelaide

Delivered on: 16 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Ower

Solicitors for the Applicant: MSM Legal

Counsel for the Respondents: Mr O’Leary

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 16 June 2016 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of six thousand eight hundred and twenty-five dollars ($6,825.00).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 153 of 2016

BMB16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, in these proceedings, by way of his amended application, filed on 4 November 2016, seeks an order to quash a decision of the Immigration Assessment Authority “the IAA” made on 19 May 2016, in which his application for refugee status, in Australia, was rejected.

2. The application turns on the procedures outlined in Part 7AA of the Migration Act 1958 “the Act”, particularly the nature of the review envisaged by the Part.  This Part of the Act is entitled Fast Track Review Process.

3. The sole ground stipulated, for the review of the decision in question, as outlined in the relevant application, is as follows:

   “The Immigration Assessment Authority committed jurisdictional error by constructively failing to review (within the meaning of s.473CC of the Act) the fast track reviewable decision referred to it on 22 April 2016.”

Background

1. The applicant is a citizen of Albania.  He arrived, in Australia, by boat on 13 November 2012.  He did not have a valid visa for entry to Australia.  As a consequence, he is deemed to be an unauthorised maritime arrival within the terms envisaged by section 5AA of the Act. 

2. In August of 2015, the applicant applied for a Safe Haven Enterprise (class XE) (subclass 790) visa pursuant to the Act.  In current jargon, such visas are referred to by the acronym “SHEV”. 

3. The criteria to be satisfied before the grant of a SHEV are set out in schedule 2 of the Migration Regulations 1994, particularly at Item 790.221(2). Germane to the present application, it is necessary for the applicant in question to satisfy the criterion specified in section 36(2)(a) or 36(2)(aa) of the Act.

4. The former provision deals with individuals, who claim that Australia owes them protection obligations pursuant to the United Nations 1951 Convention and 1967 Protocol Relating to the Status of Refugees “The Refugee’s Convention” to which Australia is a signatory.

5. Pursuant to section 36(2)(aa), a person is additionally entitled to a protection visa, if there are substantial grounds for believing that, if he or she is removed from Australia and returned to his or her country of origin, there is a real risk that he or she will suffer significant harm. 

6. Subsection (2A) defines significant harm.  It includes being subject to torture; being subjected to cruel or inhuman treatment; and degrading punishment and treatment.  This is known as the complementary protection criterion.

7. Section 91R qualifies some aspects of the Refugees Convention. In particular, it defines what is meant by persecution.  Persecution must involve serious harm.  Section 91R(2) provides some examples of serious harm.   These include a threat to the person’s life and liberty; physical harassment and ill-treatment; and denial of subsistence.

8. In Minister for Immigration & Citizenship v SZQRB [1] the Full Court of the Federal Court had held that the risk threshold for complementary protection under section 36(2)(aa) of the Migration Act is equivalent to the real chance test which applies with respect to Convention obligations enshrined in section 36(2)(a) of the Act, namely that there is a real chance that the person will suffer significant harm.[2]

   [1]  Minister for Immigration & Citizenship v SZQRB (2013) 210 FCR 505

   [2] Ibid at 551 [248] per Lander & Gordon JJ and 557 [297] per Besanko & Jagot JJ

9. In summary, the applicant claims to fear returning to Albania because he is at risk of suffering significant harm because he owes a large sum of money to two Albanian business men, whom he alleges will torture or perhaps even kill him, if the moneys owed to them are not repaid.  It is the applicant’s case that he borrowed these moneys in order to fund medical treatment for his infant son, who suffers from autism. 

10. Essentially, the applicant claims that he faces a real chance of suffering harm because of the likely violent actions of his creditors.  His claim for asylum in Australia rests primarily on the complementary grounds.  It is further his position that there is widespread corruption, in Albanian society, particularly within its state institutions, and as a consequence, state based authorities will not provide him with a sufficient level of protection from his creditors. 

11. One of the consequences of being an unlawful maritime arrival is that such persons are excluded from applying for either a protection visa or SHEV, by means of orthodox channels, to enable them to remain in Australia, pursuant to the provisions of the Refugee Convention or any complementary protection entitlement arising under the Act.

12. However, as Australia retains its obligations under the Refugees Convention, pursuant to section 46A(2) of the Act, the Minister for Immigration and Border Protection “the Minister” is invested with a discretion to grant an unauthorised marine arrival, such visas, if the Minister “thinks that it is the public interest to do so ….”.  This process has been described as “lifting the bar”.

13. The Act was amended as a consequence of the ascent of the Migration & Maritime Legislation Amendment (Resolving the Asylum Legacy Caseload) Act2014.  In general terms, the amendment provided for a fast track review process in respect of unauthorised maritime arrivals to Australia, in respect of whom the Minister had lifted the bar. 

14. In particular, section 5 of the Act was amended to include a definition of a fast track applicant, who is a person: 

    (i)      who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

    (ii)     to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

    (iii)   who has made a valid application for a protection visa in accordance with the determination; or

15. Section 5(1) also defines what is meant by the term fast track decision.  In general terms, it is a decision to refuse to grant a protection visa to a fast track applicant.  It is common ground between the parties that the applicant in these proceedings is a fast track applicant, given the circumstances surrounding his arrival in Australia. 

16. I have not been provided with any evidence or other material which indicates that the Minister for Immigration & Border Protection has actually exercised the discretion residing in him pursuant to section 46A(2) of the Act.  However, it seems clear that, at some point, the Minister has determined that it was in the public interest for the applicant to apply for a SHEV. 

17. As previously indicated, the applicant applied for the relevant SHEV on 3 August 2015.  Given the mode of his arrival in Australia, there is no controversy that the applicant is to be regarded an unauthorised maritime arrival. As a consequence, the provisions of Part 7AA of the Act apply to his application.

18. On 19 April 2016, a delegate of the first respondent refused to grant the applicant the SHEV, for which he had applied.  The delegate provided reasons as to why the decision was reached and summarised the applicant’s case.[3]  As a consequence of this decision, pursuant to the applicable legislative provisions, the application was automatically referred to the IAA for review.

    [3]  See Assessment Finding

19. It is the applicant’s case that he had borrowed approximately $50,000.00 from two individuals, who live close by to where he had previously lived in Tirana, Albania.  He deposed that the arrangement in question was informal in nature and did not involve any written loan agreement. 

20. The applicant borrowed this sum to fund his son’s medical treatment, in irregular amounts, from 2005 onwards.  It is his evidence that his average wage, as a tiler, amounted to around $500.00 per month but his overall expenses, including those relating to his son’s care, to $1,150.00 per month.  As a consequence he was not in a position to repay any money to the individuals concerned – Mr I and Mr L. 

21. The Minister’s delegate found a number of aspects of the applicant’s case to be implausible.  Firstly, the delegated doubted that the two individuals concerned would have continued to lend money to the applicant, given his financial circumstances, which must have been known to them.

22. Essentially, the delegate considered that Mr I and Mr L must have been fully aware that the applicant would never be in a position to repay them the monies lent and they were not able to institute proceedings against him, in an Albanian court, in the absence of any loan contract.  The delegate found as follows:

    “The applicant conceded that they would not be able to pursue him legally in court because there was nothing in writing.   While I accept that the applicant may owe an amount of money to the two men he claims lent him money, I do not accept that the amount he borrowed has amounted to $50,000.  It is not plausible that two business men would go on lending the applicant money with no contract to verify the amount loaned.  At no time has he attempted to repay any of the money he states he commenced to borrow in 2005 some 10 years past.”[4]

    [4]  See Case Book at page 95 [30]

23. In a statement in support of his application, the applicant stated that Mr I and Mr L had threatened to kill him, if they did not receive the money owed to them.  He stated that he had received the first such threat in 2010/2011 and the last one in 2012.  However, the applicant also conceded that had not been actually harmed.  In this context, the applicant stated that Mr I and Mr L wanted their money back but “not an interest to kill him”.[5]

    [5]  Ibid at page 96 [36]

24. Further, the delegate found that there was no material, including country information relevant to Albania, which supported the applicant’s assertion that the Albanian authorities would be either unwilling or unable to provide him with effective protection from the two individuals concerned.  The delegate noted that the applicant had not made any complaint to the Albanian police.  As a consequence, the delegate did not accept that the applicant was at real risk of harm, if he returned to Albania. 

25. The delegate accepted that:

    ·the applicant had borrowed money to cover costs associated with his son’s medical condition; and

    ·the persons from whom he had borrowed the money wanted it back.

26. However, the delegate did:

    “… not accept that the applicant has a real risk of harm from [Mr I and Mr L].  The applicant stated that they want their money back, ‘not an interest to kill him’.  There is no information before me indicating that the applicant is at real risk (real chance) of significant harm, if he were to return to his country of origin.  While I am satisfied that violence in Albania is relatively high compared to Australia, I am not satisfied that violence is such that the applicant has a real risk (i.e. real chance) of being arbitrarily deprived of his life.  There is no information before me indicating that the applicant will suffer significant harm in the form of intimidation, threats, torture and even death for the individuals the applicant borrowed money from.”[6]

    [6]  Ibid at page 99 [54]

27. Pursuant to section 36(3) of the Act, Australia is not obliged to provide protection to individuals who are able to enter a third country, either temporarily or permanently.  In this context, the delegate found that, as the holder of a biometric Albanian passport, the applicant was entitled to travel to and enter Schengen Zone countries, within Europe, for up to 90 days, without a visa.  As a consequence, it was determined that Australia did not owe the applicant protective obligations. 

The legal provisions applying to fast track decisions

1. In section 473BA is set out an outline of the fast track procedure.  The Minister is required to refer decisions, relating to fast track applicants, to the IAA, as soon as reasonably practicable after a decision is made.  In the current matter, the decision was referred to the IAA on 22 April 2016 and a decision made by the IAA on 19 May 2016. 

2. The decision of the IAA was to affirm the delegate’s decision not to grant the applicant a protection visa.  It is this decision, which is the subject of these judicial review proceedings.  Essentially, the applicant submits that what the IAA did was not a review of a type envisaged by the fast track procedure and therefore the IAA did not discharge the jurisdiction conferred upon it and so fell into reviewable error.   

3. Rather, it is contended that what occurred was more analogous to a merits review, in which the IAA substituted its own findings of fact for those of the initial decision maker, the Minister’s delegate, which is not in keeping with the limited review envisaged in Part 7AA.

4. In discharging its statutory obligations, under Part 7AA, the IAA is not to hold hearings but rather is required to review decisions on the papers that are provided to it.  In so doing, the IAA is required to pursue the objective of providing a mechanism of limited review that is efficient and quick. 

5. In particular, section 473DB limits the manner in which a fast track review is to be conducted and the material, on which the decision is to be based.  Firstly, the fast track review is to be made without accepting or requesting new information and secondly without interviewing the referred to applicant.  It is only in exceptional circumstances that the IAA is entitled to obtain new information.  [see section 473DD].

6. In this context, pursuant to section 473DC, although the IAA has a discretion to obtain further documents and information, which were unavailable to the primary decision maker, it does not have a duty to do so. 

7. Section 473CC provides as follows:

   (1)     The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.

   (2)     The Immigration Assessment Authority may:

   (a)     affirm the fast track reviewable decision; or

   (b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

8. It is the applicant’s position that the IAA has not exercised the jurisdiction conferred on it by section 473CC because it did not exercise a review of the delegate’s decision, within the parameters envisaged by Part 7AA, particularly within the rubric of a limited review, as envisaged by section 473BA. 

9. Section 473CA enshrines the obligations incumbent upon the Minister and any delegate in respect of fast track reviewable decisions.  Pursuant to the section:

   The Minister must refer a fast track reviewable decision to the Immigration Assessment Authority as soon as reasonably practicable after the decision is made.

10. Accordingly, the review envisaged by section 473CC is not one initiated by any applicant concerned.  Rather, it is a compulsory aspect of the process of fast tracking.  Section 473CB provides a list of the material, which is to be provided to the IAA, in respect of each fast track matter.  It includes the following:

    ·the findings of fact and references to evidence relating to the decision under review;

    ·       any material provided by the applicant in question;

    ·       other relevant material;

    ·       contact information for the applicant concerned.

11. Accordingly, the various provisions outlined above make it clear that the IAA is not obliged to conduct an oral hearing.  In addition, the application of the rules of natural justice, to its jurisdiction, is limited, as a consequence of the provisions of section 473DA.  In particular, it appears clear that the IAA is not obliged to give an applicant notice of any adverse issues, which may affect the claim made. 

12. In all these circumstances, it is the submission of Mr Ower, counsel for the applicant, that the IAA must necessarily be significantly restricted in any findings, which it may make, regarding the demeanour of the applicant concerned and accordingly to make findings in respect of issues of credibility, which is what it purported to do in the present case, when conducting the fast track review. 

The applicant’s case

1. As previously indicated, it is the applicant’s submission that the IAA has fallen into jurisdictional error because it has not exercised the jurisdiction conferred upon it, pursuant to section 473CC, because it has not conducted a limited review of the delegate’s decision, which was referred to it on 22 April 2016. 

2. In his amended application, the applicant has provided particulars, in support of this ground, which contrast the reasons for decision made by the delegate with those made by the IAA.  It is Mr Ower’s submission that the IAA has, in effect, made findings regarding the credibility of the applicant, which indicate that it has conducted a full merits review.

3. In essence, Mr Ower submits that the IAA has made its own findings of fact, which necessarily indicates that it has not conducted a limited review, which in turn demonstrates that it has exceeded the jurisdiction conferred upon it, pursuant to section 473CC and thus fallen into error.

4. The relevant particulars, in this regard, are as follows:

   1.1    On 19 April 2016, the applicant was notified of a decision of a delegate of the first respondent to refuse him a Safe Haven Enterprise (Subclass 790) visa.

   1.2    In making the decision, the delegate:

   a.implicitly found that the applicant had been threatened by Mr I and Mr L; and

   b.found that the applicant's fear arising from those threats was not genuine; and

   c.found that Albania was able and willing to provide protection to a person non­state agents; and

   d.      found that subs. 36(3) of the Act applied.

   1.3    On 22 April 2016, the first respondent referred the delegate's decision to the IAA pursuant to s.473CA.

   1.4    Pursuant to s.473CC, the IAA was required to “review” the fast track reviewable decision.

   1.5    A review under s. 473CC is limited to limited to the correction of error on the material before the delegate, subject to the IAA's determination to exercise its powers under ss. 473DC, 473DD or 473DE.

   1.6    The IAA made a finding of fact that the applicant had not, in fact, been threatened by Mr I and Mr L.

   1.7    The IAA did not conduct such a review within the meaning of s. 473CC but instead purported to consider the applicant's application for a Safe Haven Enterprise (Subclass 790) as if it were considering the application under s. 47 of the Act itself.”

1. Mr Ower summarises the decision of the delegate, in respect of the situation of the applicant, in Albania, vis-à-vis Mr I and Mr L, in the following terms:

   ·The applicant had borrowed moneys from Mr I and Mr L, but not as much as $50,000.00;

   ·The applicant had been threatened, to some degree, by Mr I and Mr L, but not to the degree that he would be killed and not, to such an extent, to cause him genuine fear;

   ·In any event, Albania was able to provide the applicant with sufficient protection;

   ·Section 36(3) of the Act applied to the applicant’s situation, as he could move within the Schengen zone.

2. It is Mr Ower’s submission that a close analysis of the IAA decision indicates that it made significantly different findings to that of the delegate.  In particular, Mr Ower submits that the IAA made findings about the applicant’s credibility and rejected his claim that Mr I and Mr L had threatened to seriously harm or kill him, if he did not repay the money due to them.[7] 

   [7]  See casebook at page 115 [17]

The IAA decision

1. Mr O’Leary, counsel for the first respondent, concedes that the delegate and the IAA, although having reached the same decision, namely that the application should be rejected, have done so for different reasons.  However, it is his overall submission that the statutory framework applicable authorises the IAA to consider, independently of the delegate concerned, all the claims of a relevant applicant, which does not prevent it from making adverse credibility findings about that applicant. 

2. It is Mr O’Leary’s submission that the IAA did discharge the jurisdiction conferred upon it by Part 7AA, which was to consider whether the applicant met the criteria for the granting of a SHEV pursuant to section 36(2) of the Act. This it did. The IAA was not satisfied that the applicant satisfied the relevant criteria and therefore affirmed the delegate’s decision, which was its jurisdictional task, as prescribed by section 473CC.

3. In its decision, the IAA summarised the delegate’s findings as follows:

   ·The delegate accepted that the applicant had borrowed money to pay for his son’s medical expenses but did not accept that the sum was as much as $50,000.00.

   ·The delegate also accepted that the applicant’s creditors wanted their money back but did not accept that the applicant had a genuine fear of them. 

   ·Therefore, it was not accepted that the applicant’s fear was genuine and therefore he was not at a real risk of significant harm. 

4. The IAA also summarised the applicant’s case as provided by him in his statement to the delegate and in interview, during the hearing before the delegate.  This summary included the following:

   ·The applicant owed debts to two business people in Albania, who had loaned him money amounting to approximately $50,000.00 to pay the medical expenses of his disabled child.  The loans had been taken out between 2005 and 2011. 

   ·The two businessmen were not loan sharks but had known the applicant’s situation and were sympathetic to him.  It had been agreed that the loan would be paid back when the applicant was in a position to do so;

   ·In the period 2010/2011, the two businessmen began visiting the applicant’s house asking for their money back and threatened to kill him, if it was not repaid.  The men had access to guns and therefore the applicant took their threats seriously;

   ·In these circumstances, the applicant decided to travel to Australia.  He financed the travel through a bank loan, using his home as security; 

   ·The two individuals concerned have continued to visit the applicant’s wife, since he left Albania, looking for the applicant.

5. Against this background, the IAA made the following findings of fact:

   ·The applicant had borrowed a substantial sum of money from Mr I and Mr L, which amounted to approximately $50,000.00 to finance the needs of his disabled child; 

   ·In 2010/2011, Mr I and Mr L had started to approach the applicant in an attempt to secure repayment. 

   ·It was accepted that neither Mr I nor Mr L were professional lenders, but advanced money to the applicant, as a favour, because of his son’s disability.  There was no express stipulation as to when the money was to be repaid;

   ·In 2012, the applicant travelled to Greece to look for work in order to repay the loans;

   ·The IAA rejected the applicant’s claim that Mr I and Mr L had threatened to kill him or seriously harm him, if the moneys were not repaid.  This was because neither was a money lender and moneys had been advanced over a significant period of time;

   ·It was therefore held to be implausible that they would suddenly threaten to kill the applicant in order to achieve repayment;

   ·In this context, it was noted that the applicant had not described either Mr I or Mr L as being criminals and no harm had come to him prior to his departure for Australia in October 2012;

   ·The applicant had not been harmed, when he returned from Greece, in 2012;

   ·There was no evidence that either Mr I or Mr L had attempted to harm the applicant between 2010 and his departure for Australia in October 2012;

   ·As a consequence, although Mr I and Mr L had more than ample opportunity to harm the applicant, they had not done so; 

   ·In this context, particular weight was placed on the applicant’s own response that they wanted their money back rather than to kill or harm him; 

   ·It was therefore found that the applicant had travelled for financial reasons rather than because of any fear of suffering serious harm at the hands of his creditors in Albania.

6. In all these circumstances, it is Mr Ower’s submission that the IAA has considered the application afresh and made its own findings of fact, which are different to those of the delegate.  In so doing, it has formed its own view of the applicant’s credibility and rejected findings of fact, made by the delegate, in respect of the degree of threat represented by Mr I and Mr L.

The applicant’s submissions

1. In his submissions, Mr Ower has conducted a survey of administrative review processes, in Australia, from 1977 onwards.  These processes have been statutorily based and have largely provided a full merits review.  Most relevantly, the Act itself created both the MRT and the RRT (now both falling within the AAT), which envisaged a full merit review of migration decisions. 

2. It is Mr Ower’s submission that, what the legislature intended, in respect of fast track decisions, was to do something entirely different from such full merits review.  Rather what it intended was to inaugurate a process which would expedite the review process, to respond to pressure upon it, arising from the number of applicants within the system.  As such, what Parliament determined was that the fast track process would be an entirely different form of review, from what had occurred in the past. 

3. In this context, Mr Ower submits that the IAA has mistakenly allowed itself to conduct a full merits review, as if it were the RRT or the AAT, as opposed to the more limited form of review, prescribed for it, by section 473CC. 

4. Mr Ower relies on a number of cases, which have determined that the term review takes its meaning from the context in which it appears.[8]  Thus Mr Ower submits that what a review is has no settled or pre-determined meaning. 

   [8]  See Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446 at 450

5. Rather, the nature of the review to be conducted by the relevant body – in this case the IAA – must be determined by reference to the terms of the applicable statute.  In this case, what the relevant statutory provisions prescribe is a limited review. 

6. In these circumstances, it is Mr Ower’s submission that what the applicable legislation provides is something less than what was envisaged under the pre-existing regime encompassed within the RRT and its successor, which is a full merits review. 

7. In order to delineate what was the meaning of review, in administrative contexts apart from Part 7AA, Mr Ower took me through a range of cases, starting with Drake v Minister for Immigration & Ethnic Affairs[9], a decision of the Full Court of the Federal Court. 

   [9]  Drake v Minister for Immigration & Ethnic Affairs (1979) 46 FLR at 409

8. In the case, the court made a fundamental distinction, in regards to the review process, between decisions which are deemed to be correct, by the reviewer concerned, on the material before it and ones which are correct, on the basis of the material before the original decision maker.

9. In the case, the majority of the court, (Bowen CJ & Deane J) said as follows:

   “The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him.  The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.”[10]

   [10] Ibid at page 419

10. Drake was applied by the High Court in Shi v Migration Agents Registration Authority[11].  In the case, the High Court was concerned with the power of the AAT to review a decision of the Migration Agents Registration Authority in respect of the cancellation of the registration of a migration agent. 

    [11]  Shi v Migration Agents Registration Authority (2008) 235 CLR 286

11. In this context, the court discussed the task of the AAT, in conducting a review of the decision in question.  In this regard, Hayne & Heydon JJ said as follows:

    “Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.”[12]

    [12] Ibid at 315 [99]

12. Mr Ower concedes that the expression merits review does not actually appear in any Commonwealth legislation, although the term has become part of the nomenclature of administrative law and, as such, its meaning is clear.  This was a point made by Kiefel J (as Her Honour then was) in Shi. 

13. Her Honour said as follows: 

    “The term ‘merits review’ does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the ‘correct or preferable decision.’  ‘Preferable’ is apt to refer to a decision which involves discretionary considerations. A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense.” [13]

    [13] Ibid at 327 [140]

14. Accordingly, a Tribunal such as the AAT, stands in the shoes of the original decision maker and is thus empowered to do over again what that decision maker did, with the addition of any material, which was not necessarily available to the original decision maker and occurs in a manner irrespective of the nature of the outcome produced by that initial decision maker.  

15. The rationale of such an approach being to enable a full assessment of all relevant facts, so that the correct decision is made on the basis of all relevant material.  Accordingly such a review does not have the quality of a supervisory role, in the sense of being limited to the identification of an error in the original decision.

16. By necessary implication, Mr Ower invites me to contrast such a merits review re-hearing with the process envisaged by Part 7AA, which precludes additional evidence, other than in extraordinary circumstances; occurs irrespective of whether the applicant in question seeks it or not; and does not envisage such an applicant being able to appear before the IAA or present either further evidence or argument to it. This necessarily being what is meant by the concept of limited review, which is implicitly limited to a form of supervision dependent on error.

17. Mr Ower also relies, in order to differentiate between the types of review undertaken by bodies such as the former RRT and MRT and what is envisaged by the IAA, on what was said by French CJ in Minister for Immigration & Citizenship v Li.[14]

    “The word review has no settled pre-determined meaning; it takes its meaning from the context in which it appears. As appears from the nature of the powers conferred on these tribunals, the review each must undertake involves a fresh consideration of the application which led to the decision under review. The review must be based on the evidence and arguments placed before the tribunal and any other relevant information which the tribunal itself obtains. Each tribunal must identify for itself the issues that arise in the application before it. It is not confined to the issues considered by the delegate.”

    [14]  See Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at 341-342 [10]

18. In applying his submission, Mr Ower points to the context in which Part 7AA of the Act has arisen. It applies to only a limited class of persons, who have arrived in Australia, in particular circumstances – the so called Legacy Cases.  Such persons are precluded from making visa applications unless permitted to do so by the Minister. 

19. Significantly, in Mr Ower’s submission, such persons are precluded from seeking review of decisions adverse to them by the AAT.  Rather, decisions pertaining to them are designated as fast track reviewable decisions, which have a distinct mechanism for review provided by legislation.  The review provided is limited and to be done on the papers. 

20. In Mr Ower’s submission the provisions of Part 7AA are very different … from anything that has previously appeared in either the Migration Act or the Administrative Appeals Tribunal Act.  In particular, pursuant to section 473CC(2), the IAA has authority only to either affirm the decisions coming before it or remit them for reconsideration, in contrast to the wider powers of the AAT. 

21. This is because the AAT is required to come to the correct or preferable view of the decision on the basis of the material before it.  As a consequence, it is empowered to conduct a hearing; interview an applicant; and receive new information, without qualification.  Its review power is broad, in contrast to that provided by the IAA, which occurs without notice being given to the applicant concerned. 

22. Mr Ower’s submission relies on his contention that the delegate and the IAA have reached different credibility findings, in respect of the applicant’s claim of being at risk of harm, in Albania, from Mr I and Mr L. 

23. On the one hand, he contends that the delegate found that the applicant had been threatened by the two businessmen, but not to the extent that the applicant feared them; whereas, on the other hand, the IAA found that the applicant had never been threatened at all.[15] 

    [15]  In this context compare paragraph [54] (casebook page 99) with [17] (casebook page 115).  In this context, the IAA found that Mr I and Mr L had not threatened to seriously harm the applicant.

24. In Mr Ower’s submission, the consequence of this is that the IAA has cut the applicant’s claim off at the knees, without the benefit of having interviewed the applicant.  In so doing, it has attempted to come to what it considers to the proper or correct decision, on the material before the delegate, which in Mr Ower’s submission is not its jurisdiction, which is more limited and supervisory in nature.

25. Rather, what Mr Ower contends is that what the legislature intended, in the expression limited form of review amounts was a second pair of eyes, in effect, checking the decision, rather than embarking upon a fresh hearing in toto. 

26. Accordingly, it is Mr Ower’s submission that the IAA has committed a jurisdictional error, in that it has misconstrued the jurisdiction conferred upon it, as a consequence of it effectively making a credibility finding, in respect of the applicant, which was materially different to that which was made by the Minister’s delegate.

The first respondent’s submissions

1. Mr O’Leary submits that the jurisdiction conferred upon the IAA was an obligation simply to review the delegate’s decision.  In essence, he contends that this expression review is not qualified by any other provisions within Part 7AA and is not in any way limited.  Section 473CC provides the IAA with two distinct dispositive powers, in conducting its review function, namely to affirm the decision or to remit the decision for reconsideration. 

2. In so doing, the legislature has used the same nomenclature – review – to describe the function conferred on the IAA and on the AAT.  In addition, like the IAA, the AAT is also conferred with the same power to either affirm or remit the decision under review, in respect of decisions coming to it in respect of migration and refugee decisions. 

3. In this context, Mr O’Leary submits that when the legislature uses the same expression, in different parts of the same legislation, and when dealing with similar subject matter, it is to be assumed that it intended those expressions to have the same meaning. 

4. Accordingly, on this basis, Mr O’Leary submits that there is no reason to conclude that the words review and affirm have different meanings, within the Migration Act, in Parts 5 and 7, where the AAT is concerned and Part 7AA, where the IAA is concerned.

5. In this regard, Mr O’Leary relies on what was said by the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v ZAYW[16] particularly by Moore J, who said as follows:

   “While it is not an approach to be adhered to rigidly, it can be assumed, nonetheless, that the legislature would use words uniformly in the same legislation … ”

   [16]  See Minister for Immigration & Multicultural & Indigenous Affairs v ZAYW (2005) 145 FCR 523 at 529 [14]

6. Accordingly, Mr O’Leary contends that an analogous jurisdiction is conferred upon both the AAT and the IAA. Accordingly, in his submission the IAA, in exercising its jurisdiction under Part 7AA, is to consider the material put before it in a substantive way, against the statutory criteria relevant to the particular visa class in issue.

7. As such, as with the AAT, it is required to determine what is the correct or preferable decision, on the material put before it.  However, its procedural powers are more limited than those provided to the AAT.  However, in Mr O’Leary’s submission that does not automatically render the nature of the review to be more limited in nature. 

8. In summary, Mr O’Leary contends that the legislature intended to provide a new mechanism for review of a stipulated class of migration decision applicants – the legacy caseload – but not change the essential nature of the review provided by the Act under Part 7AA. As such, it was open to the IAA to have a fresh consideration of the material before it.

9. Mr O’Leary contends that the core duty of the IAA, as with the AAT, is to reach its own decision on its individual review of the material before it.  In so doing, its procedural imprimatur is to conduct that review in an efficient manner, by reference to the papers placed before it.  Accordingly the mechanism for review has been changed but not the essentials of the review.  Rather, the legislature has inaugurated a new review mechanism, in order to deal with the large number of legacy cases. 

10. In this context, it is Mr O’Leary’s submission that it is crucial that the legislature has not sought to express in the relevant statutory provisions any specific curtailment of what a reviewing body is ordinarily expected to do, in respect of the merits of the decision coming before it. 

1. In support of his submission, Mr O’Leary relies on what was said in the Explanatory Memorandum to the relevant Bill, which among other things, established the IAA.  The relevant portion reads as follows:

   “New Part 7AA establishes the IAA and the new limited merits review framework. Under this Part, the Minister will be required to refer fast track reviewable decisions to the IAA and provide the IAA with review material as soon as reasonably practicable after the primary decision to refuse to grant a protection visa has been made under section 65 of the Migration Act. Similar to the RRT, the IAA will have the power to either affirm the decision or remit the decision to the department for reconsideration in accordance with prescribed directions or recommendations.

   In carrying out its functions under the Migration Act, the IAA is to pursue the objective of providing a mechanism of limited review that is efficient and quick. While there will be discretionary powers for the IAA to get new and relevant information and to get information in the most suitable and convenient way from applicants, the IAA is under no duty to accept or request new information or interview an applicant.”

2. As previously indicated, it is a major plank of Mr Ower’s case that the IAA’s powers, arising under section 473CC are more limited than those of the AAT on its review.  In addition to the powers conferred on the IAA, the AAT may vary the decision; and set the decision aside and substitute its own decision.[17]  In these circumstances, by implication, Mr Ower contends, it must be the case that the legislature intended a more limited form of review for the IAA than that conferred on the AAT. 

   [17]  See Migration Act at section 349 & section 415

3. Mr O’Leary rejects this submission, also on the basis of extrinsic material.  It is his contention that the legislature, in limiting the dispositive powers of the IAA, has been guided by considerations of pragmatism, dictated by the large number of legacy caseload matters.  Essentially, the IAA is to be relieved of having to determine largely procedural criteria, relating to visa applications, which are likely to be more efficiently determined by the department. 

4. In these circumstances, it is Mr O’Leary’s submission that the two prongs of the IAA’s review powers are in keeping with the overall objectives contained in section 473BA, which is to an efficient and quick review mechanism. 

5. Clearly, if a fast track decision is affirmed, the visa application is concluded.  If remitted, the IAA is empowered to provide directions to the Minister as to how any delegate is to re-consider the relevant matter. 

6. In Mr O’Leary’s submission, this is not a limitation in the form of review, rather it is an attempt to streamline its processes in an administrative sense.  The relevant explanatory memorandum, in respect of section 473CC reads as follows:

   “The purpose of this amendment is to require the IAA to review a decision referred to it by the Minister under section 473CA and set out what it can do in relation to the fast track reviewable decision.   

   Subsection 473CC(2) provides that the IAA may either affirm the fast track reviewable decision or remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

   The power to affirm a fast track reviewable decision will permit the IAA to decide that the Minister’s fast track decision should not be changed.  The effect of this is that the Minister’s decision under section 65 remains in force.

   The power to remit a fast track decision will permit the IAA to decide that the Minister’s decision should be reconsidered.  The effect of this is that the Minister is required to reconsider the application having regard to any permissible directions or recommendations made by the IAA.  The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.”[18]

   [18]  See Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 - Explanatory Memorandum [881] – [884]

Conclusions

1. I accept Mr O’Leary’s submissions.  In my view, the obligation imposed upon the IAA is the same as that imposed on the AAT.  In exercising its jurisdiction to review any decision referred to it, the IAA’s obligation is to reach the correct or preferable conclusion, on the basis of the material referred to it. 

2. In these circumstances, in my view, the IAA is empowered, in affirming a decision, to do so for different reasons to that which informed the original decision maker. 

3. In these circumstances, I do not accept that the IAA’s role is confined to a desk top evaluation of the delegate’s reasoning rather, its review must be substantive in nature.  As such, it cannot automatically follow that the IAA is automatically prevented from making a credibility finding, in the discharge of its jurisdiction to arrive at the correct or proper outcome. 

4. In my view, the legislature has conferred upon the IAA a full panoply of powers, to ensure that, in conducting its review process, it (the IAA) does arrive at the correct or proper outcome and so is envisaged to be conducting the same form of review, as the AAT under the Act, notwithstanding its more restricted dispositive powers. 

5. It is Mr Ower’s contention that it is illogical that the IAA is able to make a credit finding, concerning the applicant, without having observed his demeanour at interview.  I accept that in some cases, perhaps even the majority, this may be so.  However, I do not accept that it can never be open to the IAA to reach such credit conclusions on the basis of the documentary materials referred to it. 

6. In any event, in my view, if in conducting its review functions, the IAA is troubled by some aspect of an applicant’s oral evidence and the conclusions reached from it by the applicable delegate, it may, pursuant to section 473DC conduct its own interview.  In addition, pursuant to section 473CC(b) it may remit the decision, with some form of direction requiring the delegate to clarify any issue raised in interview. 

7. These matters confirm my view that the type of review envisaged by Part 7AA is not different in nature from that conferred upon the AAT, other than in procedural terms. In these circumstances, I can find no error of jurisdiction in respect of the relevant decision, in this matter, made by the IAA on 19 May 2016.

8. In these circumstances, it must follow that the application for review filed on 16 June 2016 should be dismissed.  The Minister seeks his costs, which should follow the event.

9. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Judge Brown

Date: 16 February 2017