BOA18 and Ors v Minister for Immigration and Anor (No.2)
[2020] FCCA 1608
•20 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BOA18 & ORS v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2020] FCCA 1608 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of protection visas – applicants claiming a fear of harm in Sri Lanka – first applicant making a late claim of high level LTTE security involvement – applicants disbelieved in part and other fears found not to be well-founded – whether the Authority erred by failing to consider the exercise of its power to get new information and whether the Authority decision is vitiated by an apprehension of bias considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5A, 46, 46A, 48A, 48B, 195A, 361, 417, 473CB, 473CC, 473DA, 473DB, 473DC, 473FA, 473JA, 499 |
| Cases cited: ALA15 v Minister for Immigration [2016] FCAFC 30 Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 AQU16 v Minister for Immigration [2017] FCA 1374 AYX17 v Minister for Immigration (2018) 262 FCR 317 BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 BDY18 v Minister for Home Affairs [2020] FCAFC 24 BOA18 v Minister for Home Affairs & Anor [2019] FCCA 1651 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 BTF15 v Minister for Immigration (2016) 69 AAR 376 BVD17 v Minister for Immigration [2018] FCAFC 114 BVD17 v Minister for Immigration (2019) 93 ALJR 1091 CCW16 v Minister for Immigration & Anor [2017] FCCA 2 CNY17 v Minister for Immigration (2019) 94 ALJR 140 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
| First Applicant: | BOA18 |
| Second Applicant: | BOB18 |
| Third Applicant: | BOC18 |
| Fourth Applicant: | BOD18 |
| Fifth Applicant: | BOE18 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 366 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 June 2020 |
| Delivered at: | Sydney |
| Delivered on: | 20 July 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr M G S Crowley, pro bono publico, by telephone |
| Solicitors for the Applicants: | AUM Legal |
| Counsel for the Respondents: | Ms S J Oliver by telephone |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Immigration Assessment Authority decision made on 12 August 2019 into this Court, for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 366 of 2019
| BOA18 |
First Applicant
| BOB18 |
Second Applicant
| BOC18 |
Third Applicant
| BOD18 |
Fourth Applicant
| BOE18 |
Fifth Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Immigration Assessment Authority (Authority) made on 12 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
This matter has had quite a protracted history, with the applicants having previously been successful in seeking judicial review in relation to this matter.[1] The brief history of the matter is set out below.
[1] BOA18 v Minister for Home Affairs [2019] FCCA 1651 (BOA18)
The applicants are a family of five. They are Sri Lankan Tamils who invoked Australia’s protection. BOA18 and BOB18 were married in 2006. On 4 June 2013, BOA18, BOB18, BOC18 and BOD18 arrived in Australian waters as unauthorised maritime arrivals. BOE18 was born to BOA18 and BOB18 in Australia in 2016.[2] All of the applicants are citizens of Sri Lanka.[3]
[2] see CB 235
[3] CB 305-306
While they are each “unauthorised maritime arrivals” (UMA) within the rubric of s.5AA of the Migration Act 1958 (Cth) (Migration Act), BOE18 is an UMA by operation of s.5AA(1A) because, among other things, he is deemed to have “entered Australia by sea”, whereas the other members of the family are UMAs by operation of s.5AA(1) because, among other things, they did in fact enter Australia by sea at an excised offshore place.[4] BOE18 is a fast track applicant because he is amongst a class of persons declared by legislative instrument to be so under s.5(1AA)(b) of the Migration Act. BOB18 has suffered from serious mental health issues since the birth of their second child, BOD18.
[4] CB 3
On 30 November 2016, the bar pursuant to s.46A of the Migration Act having been lifted, the applicants applied for the visas.[5]
[5] see CB 70-232
On 18 October 2017, BOA18 attended an interview with the delegate.[6] It is not in dispute that BOB18 was not separately invited to attend the interview with the delegate, nor is it in dispute that she did not attend the interview with the delegate.
[6] see CB 255-256
On 10 January 2018, the delegate refused the application for the visa.[7]
[7] CB 302-331
On 16 January 2018, the decision was referred to the Authority as required under Part 7AA of the Migration Act.[8]
[8] see CB 332-334
On 26 February 2018, the Authority affirmed the decision to refuse the application for the visa.[9]
[9] CB 336-354
As noted above, the applicants sought judicial review of the Authority’s decision and, on 19 June 2019, this Court granted relief and remitted the matter to the Authority for reconsideration.[10]
[10] CB 355-356
On 22 June 2019, BOB18 appointed Mr Arujunan of Australian Migration Services as her authorised recipient and representative.[11]
[11] CB 357-358
On 25 July 2019, the Authority wrote to BOB18’s representative advising of the remittal for reconsideration and advising the applicants that it was “important that you…act quickly in your dealings with us, as a decision may be made at any time”.[12] A letter in similar terms was sent to BOA18.[13]
[12] CB 361
[13] CB 365
On 12 August 2019, the Authority affirmed the decision not to grant the applicants visas.[14] I explore these bare details below.
[14] CB 369-388
The claims
At an entry interview at Christmas Island in July 2013, BOA18 claimed LTTE[15] involvement. BOA18 claimed he worked for the LTTE as a “ticket checker” between 1997 and 1998 then again in 1999, and that he was now being extorted by the Sri Lankan CID.[16] BOB18 stated, twice, that her husband had worked for the LTTE “for 3 years.”[17] She corroborated the extortion claims.[18]
[15] Liberation Tigers of Tamil Eelam
[16] Criminal Investigation Department; CB 44
[17] CB 21–22
[18] CB 22 [38a.]
As noted above, the Minister lifted the s.46A “bar” on 2 August 2016, but only for BOA18, BOB18 and BOC18.[19] At some stage, BOD18 was incorporated. All members of the family made a combined application for a SHEV[20] on 24 November 2016.[21] BOA18’s written claims went little further than his entry interview.[22] BOE18 was born in October 2016 and therefore he had not had the s.46A “bar” lifted. The SHEV application or applications were treated as invalid as at January 2017.[23] By 7 March 2017 the Minister purported to retrospectively lift the s.46A “bar” for BOE18, and the combined SHEV application progressed from that point.[24]
[19] CB 64
[20] Safe Haven Enterprise Visa
[21] CB 74
[22] CB 115 [12]
[23] CB 240
[24] CB 242
SHEV interview
A SHEV interview took place on 18 October 2017,[25] but it did not include BOB18. The applicants assert that BOB18 made independent claims based on her mental illness. But for the entry interview, no decision maker has ever heard evidence from BOB18.[26] BOA18 purported to advance claims on behalf of his wife.[27]
[25] CB 255
[26] CB 314
[27] CB 310
More extensive LTTE involvement
In written post-interview submissions, the applicants claimed BOA18’s more extensive LTTE links.[28] BOA18 claimed he had in fact occupied two other roles within the LTTE between 2006 and 2008. He worked for LTTE’s Internal Security and Intelligence agency and then its Coastal Security agency.[29] He claimed he had not disclosed this previously because he feared ASIO[30] would detain him for many years and he would be separated from his family (including his unwell wife).[31]
[28] CB 260
[29] CB 293 [2], [5]
[30] Australian Security Intelligence Organisation
[31] CB 261
Delegate refusal
The delegate refused the SHEV applications on 10 January 2018.[32] The delegate appeared to accept the extortion claims but reasoned that BOA18 could simply have moved to another district.[33] The delegate accepted the initial claim to LTTE involvement, but she rejected the claim to more extensive LTTE links, essentially because it was raised later.[34] On those factual findings the delegate insubstantiated any risk.
[32] CB 327
[33] CB 313
[34] CB 315
Fast track referral
On 16 January 2018 the Authority (first Authority) acknowledged a referral from the Secretary.[35] It invited submissions within 21 days in accordance with the enclosed information sheet and standard directions.[36] BOE18 alone did not prima facie fulfil the statutory requirements of s.5(a) of the definition of “fast track applicant”. Because he was born in Australia after 13 August 2012 as a child to an UMA by s.5(1AC) he was not prima facie a “fast track applicant” under s.5(a) of the definition. Instead, he fell within a class of persons captured by legislative instrument IMMI16/046 issued 4 May 2016 designated thereby as “fast track applicants” pursuant to s.5(b) definition of “fast track applicant”. That instrument required, among other things, that he “has made a valid application for a protection visa”.[37]
[35] CB 333
[36] CB 333
[37] IMMI16/049, clause 2(a)(iii)
First Authority affirms refusal
Five or so weeks later, on 26 February 2018 the first Authority affirmed the refusal.[38] The first Authority disbelieved the later claim to more extensive LTTE links. The first Authority was sceptical because BOA18 had had three opportunities to detail his more extensive claims, yet only raised the later claim post-interview.[39]
[38] CB 336
[39] CB 339 [9]-[10]
The first Authority knew that BOB18 had not been interviewed. It noted that BOB18 had corroborated aspects of BOA18’s claims about which it was not sceptical. But having accepted BOB18’s corroboration of those claims, it had not considered what corroboration BOB18 could offer about those controversial aspects. The first Authority doubted that BOA18 had had any opportunity to take any advice from the Tamil community to the effect that ASIO might detain him if he admitted his full LTTE involvement.[40] It also doubted that the work claimed would be unpaid as claimed (press ganged, in effect, it was claimed).[41]
[40] CB 340 [12]
[41] CB 340 [12]
Mandamus and certiorari issue
On 19 June 2019 this Court issued writs of mandamus and certiorari in BOA18 upholding this ground:[42]
The decision is vitiated by jurisdictional error in that the IAA unreasonably failed to consider whether to exercise the discretion to invite one of the applicants, BOB18, to an interview pursuant to section 473DC of the Migration Act 1958 (Cth) in circumstances where:
(a) she [BOB18] made her own claims in relation to her mental health and the availability of treatment in Sri Lanka;
(b) her evidence in relation to the principal claims made by BOA18 may have affected the actual feeling of persuasion felt by the IAA in relation to the claims and evidence given by BOA18 and thereby denied the applicants a potentially different outcome …
[42] CB 355–356
Judge Kendall held that the first Authority did not in fact consider whether to exercise s.473DC(3) to receive evidence from BOB18 and that there was no intelligible justification for that where: [43]
on the material, it cannot be disputed that the IAA could have (or should have) easily discerned that [BOB18] might have been able to corroborate or provide information on the Late Claim.
[43] BOA18 at [85]
Reconstituted Authority
On 25 July 2019 the Authority (as reconstituted) notified the applicants’ new representative that it had taken the remitter.[44] Unlike the first Authority, there was no invitation to make submissions within 21 days. There was no invitation to an interview, nor to submit written information, nor to make a submission about how s.473DC(3) might be exercised. Instead on 12 August 2018 the Authority wrote notifying the applicants that it made a final decision. The Authority stated that it had positively considered whether to exercise the discretion under s.473DC(3), but had decided not to do so. That was because BOB18 had already had her opportunity to put forward information and because “any information that the applicant wife would likely give would be of limited probative value in establishing that the applicant was involved in the LTTE in the key manner he has claimed”.[45]
[44] CB 361; CB 365
[45] CB 372 [5]
The current proceedings
These proceedings began with a show cause application filed on 16 September 2019. At the trial of this matter on 17 June 2020 I granted leave to the applicants to rely upon an amended application filed on 3 June 2020. There are four grounds in that application as amended:
1A. A constructive failure to consider whether to exercise the discretion under subsection 473DC(3) of the Migration Act 1958 (Cth) in that the consideration given in fact was not legally cognisable consideration, or in that the purported decision not to exercise the discretion was legally unreasonable.
1. A constructive failure to exercise jurisdiction in that one stated reason for deciding not to exercise its discretion under section 477DC(3) of the Migration Act 1958 (Cth) to invite the Second Applicant to give evidence, despite BOA18 & Ors v Minister for Home Affairs & Anor [2019] FCCA 1651 quashing on 19 June 2019 the IAA’s previous decision not to do so, was that ‘any information that [she] would likely give would be of limited probative value’ [5], exposed a misunderstanding of the review required by Part 7AA in that evidence must be considered before it can be rejected, which disabled the IAA from conducting the review.
2. A constructive failure to exercise jurisdiction, or by inviting an apprehension of bias, by the IAA directing itself that the ‘country information’ supplied by the Department of Foreign Affairs and Trade was ‘highly authoritative’ [6] exposed a misunderstanding of the review required by Part 7AA as substituting the DFAT country information as the de facto test for protection, or which might have invited in the mind of an informed and fair-minded neutral observer the possibility that no other information might be capable of persuading the decision-maker.
2B. The IAA’s conduct of the fast track review which might have created in the mind of a fair-minded lay observer the apprehension that the IAA might not have brought to the review a mind open to persuasion, by reason of the cumulation of the speed within which the IAA purported to conclude its review, the denial of any opportunity to make a submission on the favourable exercise of the discretion under subsection 473DC(3), the refusal to invite any evidence from BOB18 in circumstances where it was undeniable that she was able to provide corroborative evidence, the prospective rejection of any evidence not yet heard, and the status attributed to DFAT country information which made it practically impossible to overcome with competing country information,
For the purpose of considering whether to grant leave, I received the affidavit of Ganasan Arujunan made on 4 June 2020. That evidence was also before me for the limited purpose of having regard to the terms of the Practice Direction issued by the President of the Administrative Appeals Tribunal in relation to fast track reviews before the Authority.
I also have before me as evidence the court book filed on 6 November 2019.
Both the applicants and the Minister filed pre hearing written submissions and made helpful oral submissions through their counsel at the trial.
Consideration
Did the Authority act unreasonably in considering whether to exercise its discretion under s.473DC(3)?
Applicants’ submissions
Authority’s response to writ of mandamus
Seven years after arriving in Australia, three-and-a-half years after applying for their protection visas, and now three refusals later,[46] still no decision maker has ever heard from BOB18 of this family of five. The decision now impugned is a return of a writ of mandamus issued by this Court in BOA18.
[46] CB 372 [1]
The ground upheld by Judge Kendall was what his Honour held was the previous Authority’s unreasonable failure to consider whether to exercise the discretion under s.473DC(3) of the Migration Act to hear from BOB18.[47] That was because “overall, any concerns the [previous] IAA had with [BOA18's] accounts were clearly capable of being answered by [BOB18]”.[48]
[47] CB 355-356, Order 3
[48] BOA18 at [84f]
Not more than 12 working days after acknowledging the remitter[49] the Authority purported to complete its review.[50] It did so still without hearing from BOB18. It did so without foreshadowing an unfavourable exercise of the discretion, and without inviting any submission from the applicants about BOB18's assisting the Authority in determining the issues on review.
[49] 25 July 2019; CB 361
[50] 12 August 2019; CB 370
How could hearing from BOB18 have assisted? There was no intelligible justification. Judge Kendall held in BOA18, for the first Authority not to consider hearing from BOB18 “particularly … where …[51]
a)the Late Claim [of more extensive LTTE involvement] by [BOA18] was that his involvement with the LTTE was more significant than first claimed;
b)the IAA knew that [BOB18] had not been interviewed by the delegate and … her perspective on the Late Claim had not been explored;
c)just as the IAA had found [BOB18's] LTTE involvement pre-marriage convenient to accept [BOA18's] account, the same logic should have been applied to the Late Claim … much of what the IAA refers to in [12] could have been clarified, affirmed or rejected by [BOB18] as she was with him and married him at the relevant time;
d)the claim that [BOA18] … had not been completely candid with the Minister … because [BOA18] feared that 'ASIO would detain him for many years and separate him from his wife and children'' … could have been tested by inviting [BOB18] (his wife at the relevant time) to respond in writing or at an interview;
e)… the IAA's finding that it did 'not consider the applicant would have had the knowledge or forethought to only disclose part of his LTTE association at that interview or had the opportunity to discuss this matter with Tamils already present in Australia', as a basis for rejecting the Late Claim … was an obvious enquiry that could have been made of [BOB18] … [which] could have directly addressed that issue'; and
f)overall, any concerns the IAA had with the [BOA18's] accounts were clearly capable of being answered by [BOB18].
[51] BOA18 at [84]
Procedural unfairness is said to overlap with unreasonableness. Subsection 473DC(3) is a discretion without, by operation of s.473DC(2), a corresponding duty to consider its exercise. There are several examples in the Migration Act.[52] The applicable principles are settled.[53] The exercise of a power in the nature of s.473DC(3) is constituted by two distinct steps: first, a decision to consider whether to exercise the power. Secondly, a decision whether to exercise the power in fact.[54] A unanimous High Court in SZSSJ stated in respect of ss.48B, 195A and 417 at [53]:
… each section confers a non-compellable power that is exercised by the Minister personally making two distinct decisions: a procedural decision, to consider whether to make a substantive decision; and a substantive decision, to grant a visa or to lift the bar. The Minister has no obligation to make either decision, and neither the procedural decision nor the substantive decision of the Minister is conditioned by any requirement that the Minister afford procedural fairness.
[52] sections 46A, 48A and 195A
[53] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; Plaintiff S10/2011 v Minister for Immigration (2012) 246 CLR 636 (the Offshore Processing Act); Plaintiff S4/2014 v Minister for Immigration (2014) 253 CLR 219; Minister for Immigration v SZSSJ (2016) 259 CLR 180
[54] Plaintiff S4/2014 at [44]
If and when the decision maker positively decides to consider exercising the discretion under s.473DC(3), the principles of procedural fairness would be engaged unless excluded expressly by necessary intendment. What would they, if applicable, have required? Here, the writ of mandamus issued in BOA18 effectively compelled the reconstituted Authority to consider whether to exercise s.473DC(3).
The applicants contend that the Authority's decision was capricious, at least in the sense of ordinary usage. The actual reasoning of the previous Authority, and also the reasoning of Judge Kendall, is said to have invited an assumption that BOB18's evidence was relevant. Judge Kendall, in effect, held that that was self-evident.[55] Although the notion of “legitimate expectation” as the criterion for an entitlement to procedural fairness from an administrative decision maker has been criticised, “it remains a useful tool when considering ‘what must be done to give procedural fairness to a person whose interests might be affected by an exercise of power’”. Where there is an expectation to make oral submissions to a decision maker, failure to do so often signifies a denial of procedural fairness.[56] It is, in any event, said to be implicit in the Authority's reasons that BOB18's evidence would be of some probative value in reasoning “any information that the applicant wife would likely give would be of limited probative value”.[57]
[55] at [84]
[56] Minister for Immigration v WZARH (2015) 256 CLR 326, per Kiefel, Bell and Keane JJ at [17]
[57] CB 372 [5]
It is settled that s.473DA precludes the operation of the natural justice hearing rule within Part 7AA “except to the extent that procedural fairness overlaps with legal unreasonableness”.[58] But it is also settled that the “lens” of unreasonableness may expose error from the same facts. The High Court in BVD17 expressly affirmed this reasoning in each of Minister for Immigration v CRY16[59] and Minister for Immigration v DZU16.[60] BOA18 itself is now authority in this Court that the principle established in these cases is not limited to relocation cases, unless shown to be plainly wrong.
[58] BVD17 v Minister for Immigration (2019) 93 ALJR 1091 at [34]
[59] (2017) 253 FCR 475; BVD17 at [34]
[60] (2018) 253 FCR 526; BVD17 at [34]
The Authority found BOA18's initial claims of civilian employment with the LTTE “consistent and generally credible in a number of respects and are in accord with country information”,[61] but it was not persuaded of BOA18's later claims, first made in post-interview submissions (and thus not “new information”),[62] that he had also worked for the LTTE Internal Security and Intelligence agency and LTTE Coastal Security, respectively.[63]
[61] CB 374 [10]
[62] CB 261
[63] CB 375 [11]
The Authority pointed to the collateral fact that the later claim of more serious LTTE involvement was not advanced at the first opportunity and was thus not “credible or plausible that he would not have previously mentioned this if it was true”. It also pointed to the collateral fact that BOA18 had been represented throughout, and advised that “his evidence was protected by Australian privacy laws” and thus not disclosed.[64] This reasoning was not itself unreasonable, but it is said to have been tangential.
[64] CB 375 [11]. As to the comfort from which the Authority expect BOA18 to draw from the privacy laws, this was of course after the “data breach”, but the applicants do not take the point
The evidence before the Authority was the same as that before the first Authority. It demonstrated that there was more direct evidence available from BOB18, as held by Judge Kendall in BOA18. The first Authority was also critical of BOA18's later claim because he had not made the later claims on three previous occasions.[65] In disbelieving BOA18, the first Authority noted the information provided at the SHEV interview by BOB18 that:[66]
Prior to that the applicant's claims about his association with the LTTE were consistent and supported by the second applicant.
[65] CB 340 [12]
[66] CB 339 [10]
At [10] the first Authority stated:[67]
In the second applicant's arrival interview she confirmed this account and stated that she did not know exactly what work her husband did for the LTTE as it was before they were married.
(emphasis added)
[67] CB 339
There was no question that BOA18 and BOB18 were married in 2006.[68] The marriage occurred in January 2006.[69] The immediate issue was BOA18's claimed LTTE work in the period after the marriage, between September 2007 and 2008. The applicants submit that, just as the first Authority had found BOB18's information as to BOA18's LTTE involvement pre-marriage convenient to reject BOA18's account, the same logic ought to have applied to the later claims.[70] The Authority could not avoid the issue by simply remaining silent about it. It was something that BOB18 should have been asked about.
[68] CB 337 [5]; CB 372 [5]
[69] CB 310
[70] BOA18 at [84]
Moreover, the applicants submit that, lest it be thought that BOB18's entry interview “confirmed” BOA18's earlier account in any way destructive of the subsequent claims, in fact BOB18 had claimed at her entry interview that BOA18 had worked for the LTTE for “3 years”:[71]
Q. So is this the reason you left Sri Lanka and came to Australia?
A. Yes, my husband was actually working for the LTTE, and that's why they asked him to pay the money.
[71] CB 21 [32]
Q. How long was your husband working for the LTTE?
A. For 3 years.
Q. Until now? No, they are not there anymore [sic]
When asked again in her entry interview:[72]
[72] CB 22 [38a]
Q. How long was your husband working for the LTTE?
A. For 3 years.
(emphasis added)
That is said to have directly contradicted the reconstituted Authority’s finding that BOA18 had only “worked for the LTTE as a paid civilian from 1997 until 1999” as a travel inspector,[73] and is said to have been corroborative of the claim of longer and more significant involvement with the LTTE. Whether or not BOA18 had been required to work in an unpaid capacity with the Coastal Security division of the LTTE as a condition of release, as claimed,[74] of his role with internal security, was falsifiable by questioning BOB18.
[73] CB 375, first dot point
[74] CB 293 [5]
Similarly, an integer of the claim actually made by BOA18 was:[75]
When collecting information I had to explain that they were required to provide this information. My wife and her sister-in-law would look after our shop when I was collecting these details.
(emphasis added)
[75] CB 293 [4]
The applicants contend that, prima facie, that was falsifiable only by BOB18.
BOA18 claimed that he had not initially raised the later claim because the “street level” advice from the Tamil community was that he would be detained and he feared that “ASIO would detain him for many years and separate him from his wife and children”.[76] The applicants submit that that claim could have been most obviously tested by inviting BOB18 to respond in writing or at interview, because it relies on a common sense inference that it would have discussed the issue with BOB18. The first Authority did “not consider the applicant would have had the knowledge or forethought to only disclose part of his LTTE association at that interview or had the opportunity to discuss this matter with Tamils already present in Australia” and on that basis rejected the later account.[77]
[76] CB 261
[77] CB 340 [12]
The applicants submit that the Authority is careful not to repeat the same words as were impugned in BOA18, but implicitly reasoned in the same way. At [11] the explanation is recounted, but the Authority simply says that the applicants were represented and that there is not a “satisfactory explanation”.[78]
[78] CB 376
As to the cumulation of these matters, Judge Kendall in BOA18 expressly held that “it cannot be disputed that the IAA could have (or should have) easily discerned that the second applicant might have been able to corroborate or provide information on the Late Claim”.[79] The applicants submit that it was not open for the Authority to find otherwise because it was either res judicata or because an issue estoppel applied, even on judicial review.[80] The “record” included at least the successful ground in BOA18 which is set out above:[81]
The decision is vitiated by jurisdictional error in that the Authority unreasonably failed to consider whether to exercise the discretion to invite one of the applicants, BOB18, to an interview pursuant to s.473DC of the Migration Act in circumstances where:
(c)she [BOB18] made her own claims in relation to her mental health and the availability of treatment in Sri Lanka;
(d)her evidence in relation to the principal claims made by BOA18 may have affected the actual feeling of persuasion felt by the Authority in relation to the claims and evidence given by BOA18 and thereby denied the applicants a potentially different outcome …
[79] at [85]
[80] See Wong v Minister for Immigration (2004) 204 ALR 722 at [49]. Peremptory mandamus may lie against the Minister where the Minister acts inconsistently with a writ of mandamus: Plaintiff S297/2013 v Minister for Immigration (2015) 255 CLR 231 at [39]
[81] also at CB 355-356
In these circumstances, procedural fairness would ordinarily have required the Authority to at least put the applicants on notice that the Authority was disposed to exercise the discretion unfavourably to the applicants, and allow an opportunity to make a submission about how it should be exercised. Their interests were plainly affected.
The applicants contend that, to proceed to a final decision did without it, the Authority tended to “disable itself from considering what was reasonable” in fulfilment of its “primary obligation”,[82] to conduct the fast track review subject to s.473DC(3) and reach the correct or preferable decision.[83]
[82] BVD17 at [34]
[83] CRY16
Minister’s submissions
In BOA18, Judge Kendall found that it was unreasonable for the Authority not to have considered exercising its power under s.473DC of the Migration Act to invite BOB18 to give evidence as to her knowledge of BOA18’s involvement with the LTTE, the subject of the late claims. The Minister submits that the decision in BOA18 was wrongly decided and ought not be followed, as it is inconsistent with Federal Court authority.
It is well settled that the power under s.473DC is to be exercised reasonably. A decision made in the exercise of a statutory power is unreasonable in a legal sense when it lacks an evident and intelligible justification.[84]
[84] Minister for Immigration v Li (2013) 249 CLR 332 at [76]
In assessing whether a decision made in relation to a statutory discretion is legally reasonable, a relevant consideration is the statutory context in which the discretion arises. In the present case, Part 7AA provides a mechanism for a limited review of fast track reviewable decision. In reviewing a decision, the combined effect of ss.473CB, 473CC, 473DA, 473DB and 473DC of the Migration Act, is that the Authority is required to conduct a review of the delegate’s decision on the papers, "by considering the review material" provided to it by the Secretary without accepting or requesting new information and without interviewing the referred applicant. Pursuant to s.473DC(2), the Authority does not have a duty to get, request or accept any new information whether requested to do so by an applicant, any other person, or in any other circumstances.[85]
[85] see BVD17 v Minister for Immigration at [14]; DGZ16 v Minister for Immigration [2018] FCAFC 12 at [69]
There is nothing wrong in principle with the Authority declining to exercise its discretion under s.473DC, provided it explains why it does not intend to do so and there is a logical basis for its decision. In the present case, the Authority considered whether to exercise the power under s.473DC to invite BOB18 to give new information to it in relation to the late claim, and declined to do so. There is said to be an evident, transparent and intelligible justification for the findings made by the Authority, which is explained by the Authority in its reasons.
The Authority stated at [5]:[86]
I have considered whether I should exercise the power under s.473DC to get and request new information and invite the applicant wife to give new information, orally at interview or in writing on the applicant’s claimed LTTE involvement in 2006-08 and the reasons for his delay in disclosing that involvement. Whilst I have taken into account that the applicant wife was married to the applicant during that period and she was not interviewed by the delegate and information could be sought from her, I have decided not to exercise this power. I do so for the following reasons. The delegate in her decision did not accept this late claim and the applicants have not sought to put forward any further information or submissions to the IAA about this despite having had the opportunity to do so. I also note that when this late claim was made in a post-interview submission, the applicants were represented and if the applicant wife had relevant information, this could have been provided to the delegate. I also note that the applicants and their representatives made no compliant to the delegate (during the interview or there afterwards) about the applicant wife not having been invited to interview or made any request for her to attend an interview. Moreover, I am of the view that any information that the applicant wife would likely give would be of limited probative value in establishing that the applicant was involved in the LTTE in the key manner he has claimed (working in LTTE Internal Security and Intelligence and Coastal Security) given it was not her who is claimed to be involved and the secretive nature of such claimed employment. I also note that in post-interview submission, the applicants’ representatives have given detailed reasons for the delay in making these claims which I have fully addressed in my reasoning in this decision.
[86] CB 372
The Minister submits that, as can be seen from the above paragraph, the Authority actively engaged in its consideration of whether to exercise its discretion under s.473DC, and decided not to exercise that discretion. It articulated reasons for that decision, that are logical and intelligible. The decision of the Authority is not unreasonable or illogical.[87]
[87] Li at [28], [66], [76], [105]; Minister for Immigration v Singh (2014) 231 FCR 437 at [44]-[45]; Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131]
Recently, in BDY18 v Minister for Home Affairs,[88] the Full Federal Court (McKerracher, Colvin and Jackson JJ) considered the Authority’s formation of its state of satisfaction in relation to the matters in s.473DD. In the Minister’s submission, the same reasoning applies to the state of satisfaction required under s.473DC. The Court stated at [28]:
Finally, it is to be noted that both requirements depend upon the state of satisfaction of the Authority. It is for the Authority, and not the Court on review, to form the required state of satisfaction. The Court may take a different view but that would be insufficient to establish jurisdictional error. There must an error of a kind that demonstrates that the required state of satisfaction has not been formed by the Authority. In that regard, an implied standard of reasonableness must be met.
(emphasis added)
[88] [2020] FCAFC 24
In the Minister’s submission, it was for the Authority to make a determination as to whether it should exercise its discretion, and in doing so form its own view as to the probative value of any information BOB18 might be able to give. It is not for this Court to form its own view as to whether it would have exercised the discretion.
The Authority was not bound, in considering the exercise of its discretion under s.473DC, by this Court’s decision in BOA18. In any event, the Minister observes that Judge Kendall’s views as to the possible relevant evidence that BOB18 may be able to give, were expressed in the context of and were relevant to the question of whether it was unreasonable for the previous Authority not to consider exercising the discretion in s.473DC. The Authority on remittal was not bound by the views expressed by Judge Kendall as to the possible relevance of BOB18’s evidence. It was for the Authority to form its own conclusion as to whether it should exercise its discretion in s.473DC.
The Minister submits that the reasons for the conclusions the Authority reached were fully and adequately explained. The reasons given for not exercising the discretion cannot be said to fall outside the range of conclusions that were open to the Authority for the purpose of forming the state of satisfaction required to exercise the discretion under s.473DC of the Migration Act.[89]
[89] see BDY18 at [53], in that case discussing the state of satisfaction under s.473DD, but the same reasoning would apply in relation to s.473DC
It is well settled that it is for an applicant to make out his/her case before the decision maker. If the decision maker cannot be satisfied on the basis of the material presented that an applicant’s claims are genuine, it does not have any duty to make further inquiries.[90] The Minister submits that is particularly so in the case of a review under Part 7AA of the Migration Act, where the review is intended to be limited and the default or “primary rule”[91] is that the review occurs without reference to new documents, information or further hearings. Significantly, the Authority does not have a duty to get, request or accept any new information whether requested to do so by an applicant, any other person, or in any other circumstances (s.473DC(2)).
[90] Minister for Immigration v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration v SZGUR (2011) 273 ALR 223 at [20] (per Crennan J)
[91] to adopt the formulation of s.473DB(1) that the High Court used in Plaintiff M174/2016 at [22]
Division 3 of Part 7AA and s.473DA of the Migration Act make clear that the Division is an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by the Authority.[92] The common law rules of procedural fairness do not govern the way in which reviews by the Authority are to be conducted under Part 7AA of the Migration Act.[93] It is against the statutory framework that any assessment of whether the Authority denied the applicants procedural fairness in deciding not to exercise its discretion and invite BOB18 to give evidence is to be assessed.
[92] BVD17 at [31]
[93] CCW16 at [69]
The applicants refer to the decision of the High Court in SZSSJ at [35]. The High Court was considering different provisions of the Migration Act in that case, however they relevantly found that each section there considered conferred a non-compellable power. The same can be said of s.473DC. The High Court said in that case that, in relation to each non-compellable power it was considering, the Minister had no obligation to make a decision and any decision was not conditioned by any requirement that the Minister afford procedural fairness. In the Minister’s submission, the same reasoning would apply to s.473DC, particularly given the limited review intended under Part 7AA and having regard to s.473DC(2). There is no basis to infer into s.473DC an obligation to afford an applicant procedural fairness in relation to a decision not to exercise the discretion in that section, given the Authority cannot be compelled and has no duty to exercise the power.
The Minister submits that, having regard to the legislative scheme of Part 7AA, the applicants could not have held any reasonable expectation that they would be invited to comment if the Authority was minded not to exercise its discretion and invite BOB18 to give evidence. If they held such an expectation, it cannot have been reasonably held and could not give rise to any obligation on the Authority to afford them procedural fairness where no such obligation arises under Part 7AA.
In relation to the speed in which the application for review was determined, the Minister observes that the Authority wrote to the applicants on 25 July 2019 advising that it would be reconsidering the decision following the remittal from this Court.[94] That letter advised the applicants, “…We will now proceed to reconsider your case. It is important that you: … act quickly in your dealings with us, as a decision may be made at any time” (emphasis in original).[95] The applicants were therefore on notice that the Authority was proceeding to consider their case and that the reconsideration would occur quickly. The applicants did not provide any further information to the Authority after receiving this letter and, on 12 August 2019, the Authority made its decision.[96] In the Minister’s submission, there is no unfairness in the circumstances.
[94] CB 365
[95] CB 365
[96] CB 370-388
In the Minister’s submission, the decisions in AYX17 v Minister for Immigration,[97] Minister for Immigration v Maltsin[98] and W360/01A v Minister for Immigration[99] are distinguishable. None of those cases involved a review under Part 7AA of the Migration Act. They clearly involved very different legislative review schemes, which did not include a provision similar to s.473DC(2).
Ground 1 – did the Authority constructively fail to exercise its jurisdiction under s.473DC(3)?
[97] (2018) 262 FCR 317
[98] (2005) 88 ALD 304
[99] (2002) 124 FCR 449
Applicants’ contentions
“Limited probative value”
The applicants submit that the Authority was driven to the reasoning for not exercising the discretion contained, in totality,[100] at [5]. The Authority stated:[101]
The delegate ... did not accept this late claim and the applicants have not sought to put forward any further information or submissions to the IAA about this despite having had the opportunity to do so. I also note that when this late claim was made in a post-interview submission, the applicants were represented and if the applicant wife had relevant information, this could have been provided to the delegate. I also note that the applicants and their representatives made no complaint to the delegate (during the interview or there afterwards) about the applicant wife not having been invited to interview or made any request for her to attend an interview. Moreover, I am of the view that any information that the applicant wife would likely give would be of limited probative value in establishing that the applicant was involved in the LTTE in the key manner he has claimed (working in LTTE Internal Security and Intelligence and Coastal Security) given it was not her who is claimed to be involved and the secretive nature of such claimed employment. I also note that in post-interview submission, the applicants’ representatives have given detailed reasons for the delay in making these claims which I have fully addressed in my reasoning in this decision.
[100] AYX17 at [61]
[101] CB 372 [5], emphasis added
In substance the Authority found that:
a)BOB18 did not have any relevant information, because it would have been previously volunteered had it existed, and;
b)even if she did have relevant information, the Authority would not believe it.
Neither is said to sit comfortably with this Court’s reasoning in BOA18.
The first reason is said to be foreclosed by BOA18. This Court had already held that it “cannot be disputed that the IAA could have (or should have) easily discerned that [BOB18] might have been able to corroborate or provide information on the Late Claim.”[102] Had the Authority rested there, peremptory mandamus would be available because it was inconsistent with the writ of mandamus issued in BOA18.[103]
Prospective disbelief unreasonable
[102] BOA18 at [85]
[103] Plaintiff S297/2013 v Minister for Immigration (2015) 255 CLR 231 at [39]
The applicants refer to the decision of the Full Federal Court in Maltsin. There, the Full Federal Court explained that the prospective disbelief of an uncalled witness was an unreasonable basis for declining to call the corroborative witness. There the Tribunal had discounted the evidence of the proposed witnesses as likely to be untruthful:[104]
a web of deceit throughout the review applicant’s family and social connections [meant that] the Tribunal can not be satisfied to any degree of confidence that the review applicant’s family and friends are witnesses of truth in this matter.
[104] Maltsin at [51]
Kenny and Lander JJ (with whom Spender J agreed) collected the authorities and explained that the rules of procedural fairness are not confined to the parties, but also extend to prospective witnesses.[105] Hence:[106]
[I]n this case, the Tribunal found that certain persons, some of whom who gave corroborative evidence, were deceitful, notwithstanding that the Tribunal found that [the applicants] presented themselves as a couple to their friends ... and at least one friend … was not permitted to give oral evidence. It was, of course, open to the Tribunal to determine the weight to be given to the letters and declarations to which it referred and to reject the corroborative evidence of friends and family on the basis that it rejected the evidence of [the applicants] (always providing that jurisdictional error was not otherwise involved). It was however, unfair in the circumstances to condemn as dishonest a group of individuals, some of whom had and some of whom had not prepared statements for the Tribunal, in circumstances where they had no chance at all to answer such an accusation, especially as the basis for the finding of dishonesty was not self-evident.
(emphasis added)
[105] Maltsin at [53]-[54]
[106] Maltsin at [52]
The applicants concede that Maltsin turned on the Tribunal’s wide discretion whether and how to hear from witnesses requested by an applicant under s.361(2), whereas Part 7AA proceeds from an assumption that a fast track review will proceed without receiving “new information”. But that generality does not speak to the situation where the Authority has purported to consider whether to exercise its discretion to receive “new information” orally or in writing from an individual. Where, as here, the Authority has in fact decided to consider the discretion, the observation that Part 7AA ordinarily contemplates a hermetically sealed process is said to be inapt. The discretion in either case must be exercised reasonably.[107]
[107] CZBH v Minister for Immigration [2014] FCA 1023 at [41]-[46]
While a Part 7AA review is a predominantly documentary process, the Full Federal Court has observed in respect of the discretion in Part 7 that conferral of an express power to take oral evidence from a witness “must contemplate that obtaining oral evidence may assist [in] decid[ing] upon the credibility of a witness who has provided a written statement”[108] and a tribunal which rejects corroborative evidence before hearing it often errs because it “deprives itself of the opportunity to consider relevant evidence having the capacity to corroborate … claims in a material respect”[109] or because “for the Tribunal to say that it would be unassisted by the evidence of the [corroborative] witness … shows that that the Tribunal had a false appreciation of its task”.[110]
[108] CZBH at [56]
[109] W360/01A per Carr J at [30]
[110] W360/01A per Lee & Finkelstein JJ at [3]
In AYX17, the Full Federal Court re-affirmed this proposition as “the appropriate approach for … the Tribunal, to take to the subject of proposed witnesses who could support a visa applicant’s claims”.[111] While affirming the observation of Katzmann J in BTF15 v Minister for Immigration[112] that where the totality of the material indicates “there was no reason to suppose that the [prospective evidence] could allay [the decision maker’s] concerns about … credibility” the discretion does not miscarry in declining to receive it,[113] the Full Federal Court majority immediately go on to state that:[114]
There is some caution, in our respectful view, needed before determining that it is open to a decision-maker to conclude that profferred corroborative evidence cannot “affect” the decision-maker’s view of the reliability or credibility of an applicant. If that conclusion is reached too readily it discounts the purpose of corroborative evidence, and it also tends to suggest a level of prejudgment which does not sit easily with the decision-maker’s task to make the correct or preferable decision on all the materials before it. Although a lengthy extract, it is worthwhile recalling the explanation given by Lee and Finkelstein JJ in W360/01A at [3]:
Here the Tribunal did not accede to the appellant’s request to call a witness who would testify that the appellant had left Iran illegally. The Tribunal said that even if the appellant were to establish this asserted fact, it would not assist his claim because of other “problems” with his evidence. We think that in taking this view the Tribunal misunderstood its responsibilities. The appellant asserted a number of facts which he asked the Tribunal to accept. They concerned his claim that while in Iran he had suffered persecution for a Convention reason. If the appellant could persuade the Tribunal that those asserted facts were true, or even that they might be true, it is likely that the Tribunal would be satisfied (within the meaning of s 65 of the Act) that there is a real chance that the appellant would suffer similar treatment in future if he were returned to Iran. In the process of deciding whether asserted past facts were true, or might possibly be true, the Tribunal was entitled to rely upon any opinion about the creditworthiness of the appellant. If it formed the view that the appellant was not a witness of truth, in all probability it would not accept the asserted facts. In order to decide whether it was satisfied of the truth, or possible truth, of the asserted facts, one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C. On the other hand, if it were shown that the appellant was dishonestly asserting the existence of asserted fact D, that would be taken into account when the Tribunal decided whether it should be satisfied that other asserted facts were true, or might be true. So, for example, if the Tribunal accepted the appellant’s assertion that he had left Iran illegally, the Tribunal would be obliged to take that into account when considering whether it should accept as true, or as possibly true, the balance of the appellant’s claims. Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so. There may be a variety of explanations. One explanation might be that the appellant feared for his safety. If the Tribunal formed the view that this was the reason why the appellant left Iran illegally, it would necessarily take that into account in deciding how to deal with the appellant’s account of past events. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task. (See generally: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559).
[111] AYX17 per Tracey & Mortimer JJ at [86]
[112] (2016) 69 AAR 376
[113] BTF15 at [55]; also see CWR16 v Minister for Immigration [2018] FCA 859
[114] AYX17 per Tracey & Mortimer JJ at [85], with whom Charlesworth J agreed at [103]
The applicants submit that there was no evidence before the Authority which could have “allay[ed] the decisionmakers concerns about … credibility” in the relevant sense. The matters which the Authority pointed to falsify the late claim were matters, as found by this Court in BOA18, which were capable of being informed by BOB18. The concerns described in BTF15 were ones which “went well beyond the inconsistency between the appellant’s account and documents [there] in question”.[115]
Discretion considered in fact, but not in law
[115] BTF15 at [51]
The applicants contend, finally, that all that is left of the Authority’s basis for declining to hear from BOB18 is the proposition that whatever she said, the Authority would disbelieve it or be unmoved by it. That was to “deprive itself of the opportunity to consider relevant evidence having the capacity to corroborate [BOA18’s] claims in a material respect”[116] or exposes a “false appreciation of its task”.[117]
[116] W360/01A at [3]
[117] W360/01A at [30]
Minister’s contentions
The Minister repeats his submissions in relation to Ground 1A.
Resolution – Grounds 1 and 1A
These grounds allege jurisdictional error in the Authority’s decision not to invite BOB18 to give evidence as part of the Authority’s review, pursuant to its discretion under s.473DC of the Migration Act. Ground 1A alleges that decision was legally unreasonable and Ground 1 alleges it constituted a constructive failure to exercise jurisdiction.
The factual background to this aspect of the matter is as follows:
a)in his entry interview, BOA18 provided details of his employment history. Relevantly, he stated he had worked for the LTTE as a ticket checker between approximately 1997 and 1999.[118] Between 2006 and 2008, and again between August 2012 and April/May 2013, he described his employment as self employed in a spice and fuel shop;[119]
b)in his statement of claims provided with his visa application, BOA18 stated that he had worked with the LTTE for approximately three years checking tickets. He said he was paid 5800 rupees per month for this employment,[120] and the work was performed from approximately 1997 to 1999.[121] BOA18 further stated that he was forced to give payments to the LTTE between 2006-2009 from his grocery shop;[122]
c)at the interview with the delegate, and in a further statement and submissions provided after the interview with the delegate, BOA18 disclosed further involvement with the LTTE.[123] In his further statement, BOA18 stated that that he had also worked with the LTTE between March 2006 and September 2007 in their Internal Security and Intelligence section[124] and again between September 2007 until 2008 in the Coastal Security section.[125] BOA18 stated that his work for the LTTE in 2006-2008 was unpaid.[126];
d)the delegate accepted that BOA18 had been a voluntary employee of the LTTE during the period 1997-1999,[127] but did not accept the late claims;[128] and
e)the first Authority rejected the late claims, noting that BOA18 had provided information to the Minister’s Department on three occasions about his involvement with the LTTE and had only referred to the involvement in 1997-1999, in circumstances where he had been warned about the consequences of not providing truthful and accurate information to the Minister’s Department.[129]
[118] CB 51
[119] CB 50
[120] CB 115 [12]
[121] CB 116 [16]
[122] CB 116 [16]
[123] see submissions at CB 261
[124] CB 293 [2]
[125] CB 293 [2]
[126] CB 293 [7]
[127] CB 313
[128] CB 315
[129] CB 339 [10]
I have previously counselled caution on the part of decision makers when dealing with a revelation, late in the visa consideration process, of highly significant involvement of an applicant with the LTTE.[130] There is in my view an important distinction to be drawn between the progressive elaboration of claims, designed to enhance those claims, which may well undermine credibility, and a single revelation of a previously concealed story. Such a revelation in relation to significant past LTTE activities may well be an admission against interest, as the LTTE is listed as a terrorist organisation in Australia and senior operatives may face penalties if discovered.
[130] DZU17 v Minister for Immigration [2019] FCCA 491 at [8], [50] and [51]
As found by Judge Kendall in BOA18, it was unreasonable for the first Authority not to consider exercising its discretion under s.473DC of the Migration Act to get new information from BOB18 which could have some bearing on the credibility of the revelation by BOA18. I reject, in this regard, the Minister’s contention that BOA18 was wrongly decided. It was not clearly wrong. On the contrary, in my view, the decision of Judge Kendall was correct.
However, I also reject the applicants’ contention that the exercise of discretions on remittal was unreasonable.
Following the decision in BOA18 the Authority was required to conduct a fresh review, which needed to include consideration of the exercise of discretion under s.473DC. That is what occurred. There is nothing in the judgment in BOA18 which compelled a decision to get further information from BOB18.
The decision which the Authority made, as explained in its reasons at [5], was within the range of decisions available to the Authority.
Accordingly, I reject the contentions that the exercise of discretion by the Authority miscarried on the basis of legal unreasonableness. It follows that Ground 1A fails.
Further, there was no constructive failure of jurisdiction. The appeal to principles of procedural fairness made by the applicants is misplaced. The Authority was entitled to form a view whether the evidence that would be given by BOB18, if requested, would be material. The applicants’ submissions border on the proposition that there was only one conclusion available to the Authority, which was to decide to request further information from BOB18. As I have already found above, the conclusion reached by the Authority at [5] was within the range of conclusions available to the Authority.
Ground 1 also fails.
Grounds 2 and 2B – is the exercise of discretion by the Authority vitiated by an apprehension of bias?
Applicants’ contentions
“Highly authoritative”
At [6] the Authority commenced its reasons by recording that it had obtained the latest iteration of DFAT’s Sri Lanka country information report (DFAT Report) in respect which it described as a “highly authoritative source”.[131]
[131] CB 373 [6]
A central issue was DFAT’s assessment of the risk to Sri Lankan returnees with links to the LTTE, as the Authority noted at [12]:[132]
In making my findings, I have had regard to the various country information reports in the referred materials (including the country information referred to by the representative such as from the International Truth and Justice project, the United Nations Special Rapporteur on Torture, the United States Department of State, Human Rights Watch and Amnesty International) concerning the human rights situation in Sri Lanka generally and specifically for Tamils and those with actual or perceived links to the LTTE.
[132] CB 376 [12]
That the Authority’s reference was not mere “looseness of language [or] unhappy phrasing”[133] is said to be demonstrated by the Authority’s embodiment of its conception of the DFAT Report as “highly authoritative” in its reasoning at [12]:[134]
I have given substantial and greatest weight to latest DFAT report because it is authoritative and more recent and based on DFAT’s on the ground knowledge and discussions with a range of sources as well as taking into account relevant and credible open source reports including those of the UNHCR, western governments and human rights organisations and Sri Lankan non-governmental organisations. Furthermore, it has been specifically prepared with regard to the current caseload for decision-makers in Australia. The Applicants relied upon other country information.
(emphasis added)
[133] Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at [30]
[134] CB 376 [12]
What then is said to follow at length is the setting out the various “contestably benign” observations of the Australian authorities, contrary to the comparatively more “dangerous picture” to which the applicants invited attention. Where the Authority purports to cite country information independent of the Minister, the footnotes disclose that in almost every case that country information is an extract from the DFAT Report.
The applicants accept that the choice of and the weight to be attributed to country information is a matter for the decision maker and is not cognisable on judicial review.[135] But there are limits. First, the Authority must not permit its review to be intruded upon by an improper fetter. Secondly, the Authority must not conduct itself such that a fair-minded lay observer properly informed as to the nature of the procedure which Part 7AA provides, might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of the review.[136] One manifestation of apprehended bias is prejudgment.
An improper fetter?
[135] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]
[136] CNY17 v Minister for Immigration (2019) 94 ALJR 140, per Edelman J at [94]
Subsection 499(1) of the Migration Act provides that the Minister may give directions, and s.499(2A) requires a “person or body” to comply with it. The DFAT Report was the DFAT’s “country information assessment expressly for protection status determination processes”. Ministerial Direction No 56 of 21 June 2013 required the delegate or body to “take it into account”. The Administrative Appeals Tribunal (Tribunal) is such a “body”.[137] Because the Authority is part of the Tribunal, the applicants submits that the Authority must also be captured.[138] I myself have held that it would be unreasonable for the Authority not to consider getting the most recent DFAT country report.[139] The applicants do not dispute that the Authority should have brought to account the DFAT Report. The issue they raise is whether in doing so the Authority permitted it to intrude upon with its primary duty to conduct the review.
[137] Rokobatini v Minister for Immigration (1999) 90 FCR 583, per Katz J at [38]
[138] section 473JA(1)
[139] BDI17 v Minister for Immigration & Anor [2018] FCCA 2162 at [69]-[72]
To come to the fast track review with a preconception that one (mandatory) consideration is determinative of the factual issues for resolution on the fast track review is to constructively fail to exercise jurisdiction. That is, to conduct a review that is efficient, quick and free of bias and consistent with Division 3.[140] The applicants contend that the reality is that the Authority’s self-direction that the DFAT Report was “highly authoritative” left no room in a practical sense for any competing view. It also is said to have exposed a misconception that the applicants had to overcome an evidentiary presumption which was at the same time pitched at an impossibly high level to overcome.
Apprehended bias?
[140] section 473FA(1)
There is considerable overlap to that aspect of apprehended bias which concerns pre-judgment. In CNY17 Kiefel CJ and Gageler J noted that the Authority is not constituted by professional decision makers, and the “marked discrepancy in hierarchy” between the Authority’s members and the Minister’s Department. The threshold for apprehended bias is said to be lower. Here, the fair-minded lay observer might have cause to wonder whether the Authority was in fact open to any other view. The applicants submit that it is not easy to see how the Authority’s reasons could have been expressed more extremely.
Apprehended bias in Part 7AA
What the bias rule requires of the Authority is that its conduct is never such that a fair-minded lay observer properly informed, as to the nature of the procedure for what which Part 7AA provides, might reasonably apprehend that the Authority might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for its decision in the conduct of the review.[141]
Cumulation created in apprehension of bias
[141] CNY17 at [59]
The applicants point to the following which are said cumulatively to invite the question whether the reconstituted Authority had predetermined the outcome of the review or approached the review with something other than a mind open to persuasion.
First, it was barely 12 working days after acknowledging[142] the remitter, that the reconstituted Authority purported to complete the fast track review without ever hearing from BOB18. This was unusually fast, even for the Authority which is commanded to be “quick”. The first Authority acknowledged referral on 16 January 2018.[143] Almost six weeks later the Authority notified the applicants of its decision to affirm.[144]
[142] CB 361
[143] CB 333
[144] CB 335
Secondly, whereas the first Authority invited submissions within 21 days in accordance with the enclosed information sheet and standard practice directions,[145] on remittal the Authority remained silent and purported to complete its review before the elapse of the standard 21 days allowed for the making of submissions.
[145] CB 333
Thirdly, as set out in Ground 1A, procedural fairness viewed through the lens of legal reasonableness, would have required an invitation by the reconstituted Authority to make a submission in the exercise of s.473DC(3). In the circumstances of the findings of Judge Kendall in BOA18 it is peculiar that it did not do so. A fair-minded lay observer would find that peculiar, and pause to wonder whether the reconstituted Authority was determined to dispose of the review “half-cocked”. Relevantly, Edelman J said in CNY17 even in a fast track review under Part 7AA “a decision-maker may need to invite an applicant to comment on adverse information to counteract the apprehension of bias”.[146]
[146] CNY17 at [102]
Fourthly, the reconstituted Authority’s reference to DFAT country information as being “highly authoritative” is said to have invited an apprehension that there was no realistic possibility that the Authority could be persuaded otherwise, and contributed to the general apprehension that the review was not conducted with a mind open to persuasion.
Fifthly, the Authority did not in fact receive any evidence from BOB18. The fair-minded lay observer would be taken to know the facts which Judge Kendall held showed that “overall, any concerns the IAA had with [BOA18]’s accounts were clearly capable of being answered by … [BOB18]”[147] or else Judge Kendall’s reasons themselves in BOA18.
[147] BOA18 at [85]
Sixthly, the Authority did in fact effectively disbelieve BOB18 without ever hearing her evidence as set out in Ground 1.
Seventhly, the Authority is not “constituted by professional decision-makers”, and the “marked discrepancy in hierarchical position” between the Authority’s members and the Minister’s Department.[148] The threshold for apprehended bias is said to be lower. Here, the fair-minded lay observer might have cause to wonder whether the Authority was in fact open to any other view. It is said to be not easy to see how the Authority’s reasons could have been expressed more extremely.
[148] CNY17 per Kiefel CJ and Gageler J at [25]
The applicants contend that the cumulation of these matters might have invited in the mind of a fair-minded lay observer that the reconstituted Authority might not have brought an entirely open mind to the review process. Any suspicion that these matters engendered could have been allayed by simply inviting the applicants to make a submission about why s.473DC(3) should be exercised, but in not doing so the converse is also true.
Minister’s contentions
Insofar as Ground 2 alleges jurisdictional error in relation to the assessment of country information, it is well settled that the choice, assessment and weight to be given to country information is a matter for the Authority.[149]
[149] Minister for Immigration v Indatissa (2001) 64 ALD 1 at [32] per Sundberg, Emmett and Conti JJ; and NAHI at [11]-[13]
Further, more generally, it is for the Authority to identify the evidence and material that it finds relevant to its reasoning and to give that evidence and material the weight it considers appropriate.[150]
[150] NAHI at [11]-[13]; Applicant NABD of 2002 v Minister for Immigration (2005) 216 ALR 1 at [8] per Gleeson CJ; and NBKT v Minister for Immigration (2006) 156 FCR 419 at [81]-[84] per Young J (Gyles and Stone JJ agreeing)
The Minister submits that, whilst the Authority did give substantial weight to the DFAT Report in this case, it also considered a variety of country information material, including material provided by the applicants. In deciding to give “substantial and greatest weight to the latest DFAT report”, the Authority considered at [12] the concerns raised by the applicants’ representatives about DFAT’s assessment of the risk profile of people with links to the LTTE. The Authority explained that it gave greatest weight to the DFAT Report because, amongst other things, it is:[151]
based on DFAT’s on the ground knowledge and discussions with a range of sources as well as taking into account relevant and credible open source reports including those of the UNHCR, western governments and human rights organisations and Sri Lankan non-governmental organisations.
[151] CB 376; see also a similar discussion at CB 380 [27]
The Minister submits that the fact that the Authority considered the DFAT Report to be authoritative does not suggest that there was any departure by the Authority from a legitimate and reasonable choice of what material it would rely on, nor is it demonstrative of bias. This is said to be particularly so given the “cogent justification” for that opinion that the Authority expressed at [12] and [27] of its reasons.[152]
[152] AQU16 v Minister for Immigration [2017] FCA 1374 at [14] and WZATI v Minister for Immigration [2015] FCA 923 at [71]
In relation to Grounds 2 and 2B, the test for apprehended bias is whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the Authority might not bring a fair, impartial and independent mind to the determination of the matter on its merits.[153]
[153] see, for example, ALA15 v Minister for Immigration [2016] FCAFC 30 at [35]-[36]; see also R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Concrete Pty Limited v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; and British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283. The allegation must be “distinctly made and clearly proved”: Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J
The Minister submits that there is no evidence to suggest that a lay observer would reasonably apprehend that the Authority did not bring a fair, impartial and independent mind to the choice and assessment of, and weight to be given to, the country information in this matter. The Authority reasons demonstrate that it had regard to the DFAT Report as well as other country information, it applied the country information to the applicants’ specific circumstances, and reached conclusions that were open to it on the material before it. Further, the Authority provided logical and reasonable reasons for those conclusions.
Further, the Minister submits that there is no evidence to suggest that a lay observer would reasonably apprehend that the Authority did not bring a fair, impartial and independent mind to the case by virtue of:
a)the fact the decision was delivered just over two weeks after the applicants were advised the Authority were going to reconsider the matter, and were advised to act quickly, particularly in the context of the history of the matter as a whole (including that the visa application was lodged on 30 November 2016);
b)the fact the Authority declined to exercise its discretion under s.473DC of the Migration Act to invite BOB18 to provide evidence in relation to the matter, having regard to the reasons given for that decision and having regard to the statutory scheme in Part 7AA. In particular, a lay observer would not reasonably apprehend bias on the part of the Authority when it had regard to detailed reasons given for not exercising the discretion, including the fact that the applicants had had an opportunity to provide any evidence that BOB18 wished to give that would corroborate the BOA18’s claims since before the delegate made a decision in the matter on 10 January 2018, but had not done so;[154]
c)the fact that the Authority did not invite the applicants to comment on whether it should exercise its discretion under s.473DC favourably to the applicants, given that no such obligation arises under the Migration Act;
d)the assertion that it was “undeniable” that BOB18 was able to provide corroborative evidence. A lay observer might consider it relevant that BOB18 has not ever provided corroborative evidence of the late claims made by BOA18, despite (as the Authority noted) having had the opportunity to put further information or submissions to the Authority about this.[155] A lay observer might consider this particularly significant, given BOB18’s statements in her entry interview only referred to BOA18 having worked for the LTTE before they were married, and that she could not say what he did for the LTTE because it was before they were married, so she did not know;[156] and
e)a combination of all of the matters complained of by the applicants.
[154] CB 372 [5]
[155] CB 372 [5]
[156] CB 21
Resolution
In my view, apprehended bias has been established in this case. I should point out, at the outset, that I do not accept that the Authority’s reliance on the DFAT Report to be decisive. On the contrary, as noted above, I have held BDI17 that it would be unreasonable for the Authority not to consider taking into account the most recently available DFAT report.
The factors bearing on the apprehension of bias are the speed with which the Authority proceeded with the second review, following remittal from this Court, the opaque notification provided to the applicants by the Authority following remittal, which said very little apart from notifying the applicants they were in the second review engaged in a race against time, the parameters of which were not revealed, and the absence of anything communicated from the Authority to the applicants that they would have an opportunity to put anything to the Authority bearing upon the reason for the remittal.
These factors, in my view, would create in the mind of a fair-minded observer the apprehension that the Authority was engaged upon an unwelcome process, forced by this Court, and that it intended to complete that process in the shortest possible time. Further, a fair‑minded lay observer would apprehend that the Authority was seeking to avoid a situation where the applicants provided further submissions to it, which would further complicate the review following remittal.
These factors would, in the mind of a fair-minded observer, create an apprehension that the Authority on remittal, might not bring an impartial mind to bear upon the review.
Conclusion
The applicants have succeeded in establishing that the decision of the Authority is affected by jurisdictional error. The applicants should receive the relief they seek. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 20 July 2020
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