BMK17 v Minister for Immigration and Border Protection
[2018] FCA 811
•15 May 2018
FEDERAL COURT OF AUSTRALIA
BMK17 v Minister for Immigration and Border Protection [2018] FCA 811
Appeal from: BMK17 v Minister for Immigration and Border Protection [2017 FCCA 1952 File number(s): NSD 2263 of 2017 Judge(s): DERRINGTON J Date of judgment: 15 May 2018 Catchwords: MIGRATION – whether advice given to the appellant by the Immigration Assessment Authority was incorrect or misleading so as to deny the appellant procedural fairness and establish jurisdictional error – where the advice given over the phone was not incorrect but did not include all of the information which had previously been given to the appellant via mail and information brochures Legislation: Migration Act 1958 (Cth) Cases cited: Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217
Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32
Date of hearing: 15 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Appellant: Mr O Jones Solicitor for the Appellant: Firmstone & Associates Solicitor for the Respondents: Ms K Hooper of HWL Ebsworth ORDERS
NSD 2263 of 2017 BETWEEN: BMK17
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
DERRINGTON J
DATE OF ORDER:
15 MAY 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the first respondent's costs of the appeal to be taxed or as agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
DERRINGTON J:
Introduction
The appellant sought judicial review in the Federal Circuit Court in respect of a decision of the Immigration Assessment Authority (IAA) which was made on 8 March 2017. The IAA had affirmed a decision of the Minister’s delegate not to grant the appellant a protection visa.
There is no need to set out the facts and circumstances of the appellant’s application for a temporary protection visa. He has not directly raised any ground concerning the analysis of those circumstances undertaken by the IAA. That is perhaps understandable, as the IAA generally accepted the appellant’s claimed fear of harm were he to return to his home in Tripoli, Lebanon. The IAA, however, held that the appellant would have been able to relocate within Lebanon, and in particular, to Beirut. The factual substratum of the matter before the Tribunal is not really in issue.
The essence of the appellant’s claim is that he was denied procedural fairness by the IAA. The basis of his claim, both before the judge at first instance and before this Court, rested on the proposition that if the IAA failed to review a decision in accordance with the procedural code, or if it misled him about the applicable procedure in a review, it may fall into jurisdictional error. In particular, that would be a breach of the rules of natural justice.
Here, the essence of the appellant’s claim is that advice which was given by the IAA was incorrect and misled him, effectively depriving him of the opportunity to provide new evidence or evidence of exceptional circumstances directly to the IAA as opposed to providing any arguments as to why he disagreed with the department’s decision. The advice which was provided to the appellant is summarised in paragraph 4 of the IAAs decision record:
the applicant spoke with the IAA using the services of an Arabic interpreter. He asked if he would be contacted for a hearing and was advised that usually the IAA does not provide a hearing, that the review is undertaken on the papers, and that the IAA would review the file provided by the Department of Immigration and Border Protection (DIBP). The applicant was further advised that if he wished to provide any information as to why he disagreed with the DIBP decision he should do so in the next 14 days. It is now over a month later and no such information has been received.
The learned judge below found that the appellant was not given any incorrect information by the IAA. Her Honour noted the IAA wrote to the appellant on 23 January 2017 and informed him that:
The Department of Immigration and Border Protection (the department) has provided us with all documents they consider relevant to your case. This includes any material that you provided to the departmental officer before they decided to refuse you a protection visa. The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department, unless we decide to consider new information. We can only consider new information in limited circumstances, which are explained in the attached factsheet and Practice Direction.
The letter to the appellant enclosed a brochure which provided more information about the processes of the IAA, and included a substantial proportion, which is set out in paragraph 24 of the reasons below:
Can I provide new information to the IAA?
We can only consider new information if there are exceptional circumstances to justify considering the new information. New information is information that is relevant and was not before the department when it made its decision.
If there is new information you want us to consider, you must also provide an explanation why the information:
Ÿcould not have been provided to the department before it made the decision to refuse you a protection visa, or
Ÿis credible personal information that, had it been known to the department, may have affected the department’s decision.
This explanation should be no longer than 5 pages and accompany any new information you give us. Any new information we have not requested must be given to us within 21 days of your case being referred to us by the department.
In very limited circumstances, we may invite you to give us new information or comments about your case in writing or at an interview.
Can I make a submission to the IAA?
You can provide a written submission on:
Ÿwhy you disagree with the department’s decision, and
Ÿany claim or matter you presented to the department that was not considered.
Your submission should be no longer than 5 pages and given to us within 21 days of your case being referred to us by the department.
Mr Jones of Counsel, who appeared for the appellant, with appropriate candour acknowledged that the attachment or the brochure was sent to the appellant in both English and in Arabic. That certainly appears to be the case from the documents contained in the appeal book. The sending of those documents in Arabic is relevant because the appellant was not fluent in English and Arabic was his native tongue.
The letter and enclosed brochure accurately identified the appellant’s rights or opportunities to provide further information if he sought to do so, and the circumstances in which it might be provided and might be considered by the IAA. It is not suggested that the brochure was misleading in any way. Indeed, it is acknowledged, and properly so, that the information was accurate. As was noted by the learned judge below on 27 January 2017, the records of the IAA noted that the following occurred:
The applicant phoned and requested an Arabic interpreter. I called him back with an interpreter at 09:20am (TIS job number 170068847). The applicant said he was calling to provide his email address – [deliberately omitted]. I updated his contact details to reflect this and advised that any correspondence from the IAA would be sent to him at that email address. He asked if he would be contacted for a hearing and I said that usually the IAA does not provide a hearing, that the review is undertaken on the papers, and that we will review the DIBP file. I advised that if he wanted to provide any information as to why he disagreed with the DIBP decision he should do so in the next 14 days. He thanked me and ended the call.
[the email address has been deliberately omitted].
It was that discussion which was paraphrased in the IAA record. The learned judge below concluded that by providing that oral information, the IAA did not provide any incorrect advice to the appellant. As at the date of the conversation, only 14 days remained within which the appellant had to provide any further information as to why he disagreed with the delegate’s decision, and that was correct, given the time which, by then, had lapsed. The learned judge also concluded that the fact that the officer did not give the appellant further information, such as that information which appears in the brochure and the practice direction referred to, did not make the information given by the officer incorrect, incomplete or misleading.
It followed that before the learned Federal Circuit Court judge, the appellant was unable to demonstrate the decision was affected by any jurisdictional error.
Issues before the court
In relation to the issues before this Court, the substance of the appellant’s argument is that the primary judge erred in rejecting his submission that the second respondent committed a judicial error by denying the appellant procedural fairness in that he was provided with incorrect advice as to the IAA review process. As mentioned, the appellant acknowledges that the contents of the letter of 23 January 2017 were correct. When I refer to contents, I include the brochure, which was written in both English and Arabic. It is not in doubt that he received that correspondence and that has not been an issue before the courts. In this respect, the appellant was correctly informed of his entitlements to dispute the delegate’s decision and to provide whatever further information he might wish to do so by the contents of the written documents.
The part of the brochure which I have cited above set out both the limited circumstances in which the IAA might receive information, but it certainly indicated that the appellant would be entitled to provide information if he wished to do so, so long as it was accompanied by an explanation which would effectively satisfy the requirements of the Act.
On this appeal, it is not suggested that the verbal communication made by the IAA officer was inaccurate by its terms or on its face. That is to say, the statement made by the IAA officer as recorded was a true statement. The argument advanced was that the verbal communication only referred to some of the appellant’s rights and not to all. In this respect, it is said that a misrepresentation occurred by omission. Inferentially, the allegation must be that by not orally informing the appellant of his limited right to provide additional information, the appellant was misled to the effect that he did not have any such right.
To some extent, one can imagine a situation in which, factually, an inaccuracy might arise in circumstances where only a proportionate part of relevant information is provided. However, as Ms Hooper for the Minister has submitted, there is nothing in the context of the conversation which suggests that the conversation was intended to be an exhaustive statement of the appellant’s rights. Indeed, in the context of the conversation, which appears to have been initiated by the appellant himself, the appellant would have been aware by receipt of the IAA’s letter and attached brochures of all of the rights which he had under the Migration Act 1958 (Cth).
It follows that there are a number of rather insurmountable difficulties with the appellant’s primary submission. First of all, the conclusion by the Federal Circuit Court judge that the verbal communication was not misleading in the circumstances was open on the material before the court. Indeed, the conclusion of the learned judge at first instance appears to be correct. Given the written communications to the appellant, both in English and in Arabic, providing him with a full, accurate and complete account of his rights, nothing misleading occurred by the IAA verbally repeating some of that information.
The second point relates to the question of whether or not it is sufficient for the appellant simply to identify a misleading statement. Here, there is no evidence to suggest the appellant was misled. He gave no evidence to the Federal Circuit Court judge about that, by affidavit or otherwise. Accepting for present purposes the making of a misleading statement by the IAA would amount to a breach of the code as a contravention of the rules of natural justice, a question arises as to the extent to which an appellant would have to establish both that statements were misleading and that they were relied upon.
In relation to the first point, where a statement is true on its face but is said to be circumstantially false, it would be necessary for an appellant agitating this ground to establish all of the facts which render the verbal communication objectively misleading. It is not sufficient to only identify a few of those facts, although it is not suggested that such occurred in this case. All that needs to be kept in mind is that when a party seeks to assert that the circumstances give rise to objective misleading conduct, all of the relevant substratum of facts need to be established. In the present case, the only facts are the delivery of the written material and the oral material. In my opinion, that is insufficient to give rise to any objective misrepresentation.
The issue as to whether or not the appellant would have to show that he was, in fact, misled is more difficult. That is not a question which I need deal with on this appeal, and I refrain from doing so. That said, it is appropriate to mention that where a decision-maker has, in fact, made a misleading statement, the court is more than likely to assume that any statement which is relevant to the appellant’s progress of his claim will be acted upon. That is probably more a factual presumption than anything else. Nevertheless, the circumstances in which allegations of misrepresentation might arise are invariably manifest and it would be inappropriate to lay down any hard and fast rules.
An issue which was slightly raised in the course of the appeal was whether, even if the representation was made and a breach of the rules of natural justice occurred, any practical injustice could be said to have occurred. Ms Hooper, for the Minister, candidly conceded that the authorities tend to go in both directions on this important topic. I was referred to the decision of Bromberg J in Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217, particularly at [40] and [45]. In that case, his Honour, at [45], seemed to suggest that an appellant would need to be able to show that, but for the Tribunal’s mischaracterisation, the outcome of the proceedings might have been different, although it does not appear that this point was clearly raised before his Honour. It was also not a question properly raised in this appeal and I will refrain from commenting further on it.
The circumstances of this case are that, rather than being misleading, the conversation by the IAA officer in response to the appellant’s contact with the authority was an apparent attempt to remind the appellant of his ability to put forward his argument as to why the original decision was in error. That can be derived from the context of the conversation and, in particular, from the appellant asking if a hearing was to take place. That is enough to dispose of the matter directly.
I should, perhaps, refer to one further question. That is whether, if a misrepresentation had been made, a breach of the limited obligations of natural justice provided for in the Act would have been breached? Mr Jones, for the appellant, made the submission that if a misrepresentation occurs, which in effect means that the rules provided for in the Act are not met, the common law rules of natural justice would apply. Given the structure of the Act and, in particular, the observations of the Full Court of this Court in Minister for Immigration and Border Protection v DZU16 [2018] FCAFC 32 at [99], there is limited room for such a proposition. However, I would have thought that, were it to be the case that the authority had made a misrepresentation to an appellant to the effect that one of the natural justice rules provided for by the legislature was inapplicable, that would have the effect of causing the authority not to comply with the limited requirements prescribed by the Act. That, of itself, would amount to a breach of the limited rules of natural justice. In the circumstances of this case, there is no need for me to reach a final conclusion on that point.
The appellant has not overcome the primary hurdle of establishing that the statements made by the authority were in fact misleading. In those circumstances, the appeal must be dismissed.
The orders of the court are the appeal is dismissed. The appellant is to pay the first respondent’s costs of the appeal to be taxed or agreed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate:
Dated: 31 May 2018
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