BRh18 v Minister for Immigration - [2020] FCCA 805

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRH18 v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 805

Catchwords:
MIGRATION – Application for Safe Haven Enterprise Visa – loss or destruction of audio file recording of the applicant’s sister’s protection visa interview claimed to have been relevant to consideration of applicant’s claims by the Immigration Assessment Authority – applicability of s. 473CB of the Act – where onus on applicant to establish that the recording was in the possession or control of the Secretary at the time of the referral of the matter to the Authority for its consideration of the decision of the delegate – where onus on applicant to establish that the loss or destruction of the recording was material – whether statutory implication that failure to provide recording to the Authority constituted jurisdictional error – question of utility of any remitter in the circumstances – applications dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 473CA, 473CB.

Cases cited:

CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61.

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

CED15 v Minister for Immigration and Border Protection [2018] FCA 451.

CPA16 v Minister for Immigration & Anor [2019] FCAFC 40.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Nobarani v Mariconte (2018) 359 ALR 31.

Repatriation Commission v Knight [2012] FCAFC 83.

WZAUP v Minister for Immigration & Anor [2020] FCA 116.

BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR

1091.

Applicant:

BRH18

First Respondent:

Minister For IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

Immigration Assessment Authority

File Number:

BRG 328 of 2018

Judgment of:

Judge Egan

Hearing date:

7 May 2019, 22 October 2019 &

13 March 2020

Date of Last Submission:

13 March 2020

Delivered at:

Brisbane

Delivered on:

9 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Steele with Mr Clift

Solicitors for the Applicant:

Angus Francis Lawyers

Counsel for the Respondents:

Mr Kennett SC with Mr Black

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.
The Second Further Amended Application for review filed on 5 November 2019 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in an amount to be agreed and failing agreement to be assessed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Brisbane

BRG 328 of 2018

BRh18

Applicant

And

Minister For immigration, citizenship, migrant services and multicultural affairs

First Respondent

Immigration Assessment Authority

Second Respondent

REASONS FOR JUDGMENT

Raison D’Etre

The grounds for review in this matter are identical to the grounds for review in SYG 901/2018, and almost identical to the grounds for review in BRG 329/2018. Oral arguments at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 805
Decision Date: 9 April 2020

CaseChat Overview and Summary

The applicant sought judicial review of a decision concerning their application for a Safe Haven Enterprise Visa. The central dispute involved the alleged loss or destruction of an audio file recording of the applicant's sister's protection visa interview, which the applicant contended was relevant to the Immigration Assessment Authority's (IAA) consideration of their claims. The matter came before Egan J of the Federal Court of Australia.

The court was required to determine whether the loss or destruction of the audio recording constituted jurisdictional error. Specifically, the court had to consider the applicability of section 473CB of the Migration Act 1958, which mandates the Secretary to provide certain review materials to the IAA. Key issues included the onus on the applicant to establish that the recording was in the Secretary's possession or control at the time of referral to the IAA, and whether the loss or destruction of the recording was material to the decision-making process. The court also considered the utility of any potential remitter in the circumstances.

Egan J applied principles established in *CPA16 v Minister for Immigration & Anor* [2019] FCAFC 40, which clarified the operation of section 473CB(1). The court affirmed that section 473CB(1) is mandatory and that a failure to provide review material constitutes jurisdictional error only if the omitted material could realistically have resulted in a different decision, thereby depriving the applicant of a possibility of a successful outcome. Crucially, the onus rests on the applicant for judicial review to demonstrate the materiality of the missing document or information. In this case, the court found that the applicant had not discharged this onus, as they failed to establish that the audio recording was in the Secretary's possession or control at the relevant time.

Consequently, the applications were dismissed. The court ordered that the name of the First Respondent be amended to 'Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs', and the Second Further Amended Application for review be dismissed. The applicant was ordered to pay the First Respondent's costs.

Orders

Orders of the court

ORDERS

The name of the First Respondent be amended to read ‘Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’.

The Second Further Amended Application for review filed on 5 November 2019 be dismissed.

The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in an amount to be agreed and failing agreement to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The facts of this matter are distinguishable from those matters where the first respondent is burdened with an evidential onus to adduce probative evidence of facts which are peculiarly within the first respondent’s knowledge. If the first respondent was unable to give such evidence, or could only give speculative evidence about issues of relevance, then it is incapable of discharging any such evidentiary onus. The Court respectfully adopts what was said by Derrington J in CQR17 at [91] and [92] as follows:“[91] In the Minister’s submission, it is irrelevant to the question of onus that all of the information as to whether the statutory obligation was performed is in the possession of only one party. In reliance on the reasons of Campbell JA in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 (Rockcote) at [78] he submitted that “The fact that an opposing party (such as the Minister) has ‘greater means to produce evidence which contradicts the negative proposition, does not mean that the [moving party] ceases to have the onus of proof of that negative proposition.’” However, and quite properly, he also acknowledged that, “once the [moving party] establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred”, particularly where the facts are peculiarly within that party’s knowledge or capacity (Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371-372 per Dixon CJ), “an evidential onus shifts to the [opposing party] to adduce evidence that tends to show that the negative proposition is incorrect.” (Rockcote at [78], citing Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561). Any evidence adduced by the opposing party would, then, have to be dealt with by the moving party in the discharge of their overall burden of proof.[92] Despite the above acknowledgement the Minister also submitted, quite correctly, that in order to raise an inference of a negative proposition, sufficient evidence of the same needs to be adduced by the party carrying the onus. Evidence merely giving rise to speculation is not adequate: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616-617 [67]-[69] per Gummow J. That said, even somewhat slight evidence may be sufficient in circumstances where the opposing party which has all the knowledge of the relevant fact fails to adduce evidence to the contrary. This proposition is supported by the well-established principle of fact finding that “all evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted”: Blatch v Archer (1774) 1 Cowp 63 at 65 per Lord Mansfield CJ.”(emphasis added) Further, the Court adopts what was said by Yates, Murphy and Moshinsky JJ when discussing s. 473CB(1) in CPA16 v Minister for Immigration & Anor [2019] FCAFC 40 at [32] – [33] as follows:“[32] We consider the following principles to be applicable:(1) Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].(2) Where the Secretary fails to give review material to the Authority in breach of s 473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].(3) Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”: SZMTA at [45], [49] and [50].(4) In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].(5) The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].(6) Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].[33] Contrary to one aspect of the Minister’s submissions, the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.”(emphasis added)

Decision

Reasons for decision

Further, the Court adopts what was said by Yates, Murphy and Moshinsky JJ when discussing s. 473CB(1) in CPA16 v Minister for Immigration & Anor [2019] FCAFC 40 at [32] – [33] as follows:“[32] We consider the following principles to be applicable:(1) Section 473CB(1) of the Act is mandatory in its terms. It provides that the Secretary must give the “review material” to the Authority. The Authority is required to undertake a de novo consideration of the merits of the decision referred to it rather than to correct error in the delegate’s decision. That the Authority must consider the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance with s 473CB(1), such that the Authority has all of the material before it that was provided by the applicant to the delegate: EVS17 at [32]-[34].(2) Where the Secretary fails to give review material to the Authority in breach of s 473CB(1) that will result in jurisdictional error where the review material that was not provided could have resulted in the making of a different decision. A contravention only results in jurisdictional error if the error is material in the sense that it operates to deprive the applicant of the possibility of a successful outcome: EVS17 at [42]; Hossain at [30]-[31]; SZMTA at [2], [3], [48], [49].(3) Whether the document or information which was not given to the Authority could have resulted in it making a different decision must be assessed “realistically”: SZMTA at [45], [49] and [50].(4) In order for the Court to decide whether the Authority’s decision could realistically have been different evidence of the content of the document or information is relevant and admissible, and it is appropriate to have regard to the Authority’s decision: SZMTA at [50] and [71].(5) The applicant for judicial review has the onus of proof to show that the missing document or information is material: SZMTA at [4], [41].(6) Speculation as to how the missing document or information “may” have affected the decision is not enough to discharge the onus of demonstrating materiality. The Court must decide whether non-compliance with s 473CB(1) has operated to deprive the applicant of the possibility of a successful outcome; i.e. whether the Authority’s decision could realistically have been different: SZMTA at [68], [69] and [71].[33] Contrary to one aspect of the Minister’s submissions, the relevant test does not require an assessment of the likelihood of the omitted review material affecting the decision. The test is whether the omitted review material could realistically have resulted in the decision-maker making a different decision: i.e., whether the visa applicant has been deprived of the realistic possibility of a successful outcome.”(emphasis added) The applicant has not discharged his onus of establishing that, at the time of the referral of the decision of the delegate to the Authority, the Secretary relevantly had the audio file recording in the Secretary’s possession or control. No jurisdictional error has therefore been established in relation to Ground 1 of the Second Further Amended Application for Review.

Ratio Decidendi

Legal Principle Established

It was common ground that the decision under review in this proceeding was a fast-track reviewable decision referred to the Authority pursuant to the provisions of s. 473CA of the Act. Section 473CB of the Act relevantly provided as follows: “Section 473CB – Material to be provided to Immigration Assessment Authority(1) The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:(a) a statement that:(i) sets out the findings of fact made by the person who made the decision; and(ii) refers to the evidence on which those findings were based; and(iii) gives the reasons for the decision;(b) material provided by the referred applicant to the person making the decision before the decision was made;(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;(d) the following details:(i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;(ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;(iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;(iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct – such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;(v) if the referred applicant is a minor – the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.(2) The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.” Section 473CB(1)(b) of the Act has no application because the audio recording was not “material” which had been provided by the applicant to the Department before the making of the adverse visa decision. For the relevant audio recording to fall within the provisions of s. 473CB, for the purpose of the consideration by the Authority of the applicant’s claims, such recording must first have been in the Secretary’s possession or control, as well as being considered by the Secretary to be relevant to the review to be conducted by the Authority, at the time of the referral of the delegate’s decision to the Authority. In that regard, pursuant to an order made by the Court on 7 May 2019, the first respondent, relevantly, filed an affidavit of one Lorilee Lockhart on 2 July 2019 in BRG 329/2018. Such affidavit was not filed in the subject proceeding. The affidavit provided as follows:“1. I am a Protection Obligations Decision Maker employed by the Department of Home Affairs (“Department”) in the Protection Assessment Victoria and QLD Section of the Humanitarian Program Operations Branch. I am a delegate of the first respondent for the purposes of s 65 of the Migration Act 1958.2. As a Protection Obligations Decision Maker my duties and responsibilities are to examine protection claims, interview, assess and write a fair, reasonable and lawful decision against the Migration Act 1958 and Migration Regulations 1994 in accordance with relevant policies and procedures and associated administrative duties.3. I have worked in my section for nine years and I have experience working with TRIM and using it to upload and access documents relating to visa applicants.4. On 26 October 2017 at 10.00am I conducted an interview with the applicant at the Department’s offices in Brisbane. The purpose of the interview was to discuss the applicant’s application for a Safe Haven Enterprise (Subclass XE-790) visa.5. Interviews, with the permission of the applicant, are routinely digitally recorded. The electronic recording device allocates a numerical file name to each recording which includes the date. The interview is then downloaded to the relevant folder in my section’s shared drive, renamed and then transferred to the Department’s electronic database “TRIM”. Department security restrictions do not permit change of name on the recording device hence the recording is transferred to the shared drive, renamed then placed in TRIM.6. In my many years of experience in this section, I would normally keep copies of all my recordings. However the section was directed by our managers, in accordance with the Department’s policy that all documents be stored in TRIM, to delete extraneous material, in particular audio files which are large, from the shared drive and to only utilise TRIM for the storage of audio files. Accordingly, all recordings, once placed in TRIM, are then deleted from the recorder and shared drive.7. On 26 October 2017, I recorded the interview digitally and, as is my usual process, downloaded the recording to the relevant folder in my section’s shared drive on my computer. I uploaded the interview recording to TRIM and deleted the file from the digital recorder and shared drive. I cannot recall what date I deleted the file from the digital recorder but I generally kept audio on the recorders as long as possible and deleted the audio when folders became full. I commenced the decision record immediately after the interview and continued the assessment at a later date based on interview notes made immediately after the interview.8. I have been provided with a copy of the Court Book filed on behalf of the first respondent in this matter on 18 May 2018. A copy of my interview notes appears at CB page 6-7.9. While the decision was not recorded until approximately six weeks after the interview, the draft decision record was completed approximately two weeks after the interview date so there was no need for me to listen to the interview recording.10. In this matter, I uploaded the wrong recording to the shared drive and consequently the applicant’s TRIM file. Consequently I deleted the correct interview recording from the recorder. From my review of the applicant’s TRIM file, I believe the recording uploaded into the shared drive and TRIM for this applicant belonged to another visa applicant with a number allocated to the file similar to this applicant’s interview date. The number on the recording allocated by the electronic recording device to the applicant in this matter was 20171026. The number on the record allocated by the electronic recording device to the incorrect recording that was uploaded into TRIM was 20170626. I believe this was a mistake on my part.11. When a matter is referred to the Immigration Assessment Authority (IAA) under s 473 CA of the Migration Act 1958, a referral checklist is completed. The referral checklist is partially completed by decision makers and uploaded into TRIM. The actual file transfer is completed by another Department officer. Annexed hereto and marked “A” is a true copy of the referral checklist completed in this matter.12. On the referral checklist in this matter, I checked the box that the interview recording was in TRIM and the administrative team transferred the relative files to the IAA (including the recording incorrectly placed in TRIM). At the time I checked the box I did not know that the incorrect recording had been uploaded into TRIM.13. I understand that the IAA subsequently contacted the Department and requested the correct interview recording for the applicant. On or around 14 December 2017,1 undertook a search of the applicant’s TRIM file as well as folder on the shared drive and the same for the applicant whose recording was provided to the reviewer. Unfortunately I had (as directed) deleted all recordings from the recorder and shared drive. Accordingly, I did not find the correct interview recording.14. On or around 14 December 2017, I logged a support request with the Department’s IT support team to ascertain if the recording could be retrieved from the recorder. I recall that an IT officer called me and discussed the fact that the recording could not be retrieved.15. On 16 December 2017, I subsequently received an email confirming that the Department’s IT support team could only recover deleted items from server based storage. Annexed hereto and marked “B” is a copy of that email. 1.16. The interview recording has not been recovered and I believe it cannot be recovered and therefore no longer exists.17. I believe that I and the Department have exhausted all options to attempt to recover the interview recording.”Annexure A to affidavit(See Annexure A to this judgment)Annexure B to affidavit(See Annexure B to this judgment)