BUP17 v Minister for Immigration
[2019] FCCA 3193
•13 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BUP17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3193 |
| Catchwords: EVIDENCE – Protection visa application – where claim of sexual abuse accepted by delegate – conduct of fast track review under Pt 7AA of Migration Act 1958 (Cth) – where Authority is generally required to conduct fast track review on the papers – where Authority does not get information or obtain comment from applicant – where Authority then finds that applicant fabricated claim – finding of fabrication – where Authority not bound by rules of evidence – something more than mere rejection of evidence ordinarily required before finding is made that witness deliberately gave false evidence – exercise of caution ordinarily required before finding witness fabricated evidence. |
| Legislation: Evidence Act 1995 (Cth), s.140 |
| Cases cited: AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 |
| Other texts cited: Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability 6th Ed (2017) |
| Applicant: | BUP17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 843 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 30 November 2018 |
| Date of Last Submission: | 30 November 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 13 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr A.F. Solomon-Bridge |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr A. Yuille |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
Declare that the decision of the second respondent made on 5 April 2017 was not made in accordance with law and is void, of no force or effect.
The decision of the second respondent made on 5 April 2017 be quashed.
An order in the nature of a writ of mandamus be issued that the matter be remitted to the second respondent to be reconsidered according to law.
Upon remittal, the matter be reconsidered by a member of the Authority other than the person who made the decision on 5 April 2017.
The first respondent pay the costs of the applicant fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 843 of 2017
| BUP17 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 2 November 2018, judicial review is sought of a decision of the Immigration Assessment Authority (Authority) made on 5 April 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse the applicant’s application for a Safe Haven Enterprise (Class XE) (subclass 790) visa under the Migration Act 1958 (Cth) (the Act).
The application should be allowed. As appears in further detail below, the applicant claimed to have been the subject of prolonged sexual assaults while in detention. While a delegate of the Minister accepted that this had occurred, the Authority found that the applicant had fabricated the claim. Accepting that certain of its powers were discretionary, in this case it was legally unreasonable for the Authority to have reached a finding contrary to that arrived at by the delegate without exercising (or deciding not to exercise) its power to obtain new information or comment from the applicant.
Background
The applicant, a 25 year old citizen of Sri Lanka, first arrived in Australia in 2012 as an irregular maritime arrival. He was then aged 18 years.
On 20 August 2013, the applicant made application for a Protection (Class XA) visa. By a statutory declaration made in support of his application, the applicant claimed to fear harm from the Sri Lankan authorities due to his Tamil ethnicity, his association with his uncle (with whom he had travelled to Australia) and perceived support of the Liberation Tigers of Tamil Eelam (LTTE). The declaration recounted an incident in which a large explosion had occurred near the applicant’s home. As the explosion had caused extensive damage to a Sri Lankan Army (SLA) truck, the villagers’ homes were thoroughly searched and the villagers questioned. The applicant detailed how he had been repeatedly questioned at SLA checkpoints, and had been taken to an SLA camp on three occasions; during one of which he been detained for some three hours. Much of the applicant’s questioning had been focussed upon his uncle’s activities. The applicant stated that his life had been very disrupted and that he had suffered psychological harm for which he had received counselling while in Australia. The applicant feared harm from arrest, detention, assault and death at the hands of Sri Lankan authorities, particularly the SLA, for his association with his uncle and LTTE. This statutory declaration made no express reference to any sexual assault.
On 14 September 2015, the Department wrote to the applicant notifying him that as he had arrived in Australia unlawfully he was prevented from lodging a valid visa application, and that his Protection visa application was invalid.[1] The Department invited the applicant to lodge an application for either a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa (SHEV). On 17 May 2016, the applicant lodged a SHEV application. A solicitor assisted the applicant in the preparation and lodgement of his application.
[1] Act, s 46A(1).
The applicant provided two statutory declarations with his SHEV. The first statutory declaration made on 20 August 2013 has been referred to above. The second statutory declaration, made on 16 May 2016,[2] clarified certain parts of the earlier declaration and expanded upon his account of the treatment he had received when detained at the SLA camp, including a claim that he had been sexually abused by several SLA personnel over a period of three hours. The applicant further stated that he had not raised this matter in his first declaration as he had felt uncomfortable about doing so and that it caused him great distress to speak of it. His claim would be supported by country information.
[2]The applicant was 18 years at the time of making his first declaration and 21 years at the time of making the second declaration.
On 5 October 2016, the Department invited the applicant to attend an interview on 27 October 2016 to discuss his visa application and claims for protection. He did so. On 26 October 2016, the applicant’s migration agent notified the Department that the applicant’s claims for protection were linked to his uncle’s claims for protection and that a decision to refuse the uncle’s visa application was under review by the Authority. The applicant’s migration agent submitted that it would be unreasonable for the Department to make a decision on the applicant’s application before a decision was made on his uncle’s.
On 2 November 2016, the Department invited the applicant to comment on information that could be the reason or part of the reason for refusing the visa application, including information that: (1) the applicant would not be considered to be an LTTE supporter due to his relationship with his uncle; (2) his uncle had been in hiding since 2008, but that he had confronted authorities in 2011; (3) the applicant was stopped and harassed by authorities; (4) the applicant’s problems were linked to his father’s transport business; (5) the applicant and his father were able to operate the transport business; (6) the applicant’s father had not been detained, arrested or sent for rehabilitation since the end of the civil war; (7) whether the applicant faced a real chance of harm in the future as a result of the sexual assault by SLA officers; (8) whether the applicant would face a chance of real harm throughout Sri Lanka.
As concerned the claimed sexual assaults, the Department accepted they had occurred but noted that, when interviewed, the applicant claimed to have been assaulted before his uncle had visited the applicant’s village. The applicant was asked to explain why he believed that he would be sexually assaulted in the future and whether he could safely relocate to another part of Sri Lanka.
On 3 November 2016, the applicant provided country information to the Department some of which detailed the findings made in relation to arbitrary arrest and detention and sexual assault in Sri Lanka committed by police and security forces. A US State Department report made in April 2016 recorded continuing widespread impunity for such crimes, particularly in cases of sexual violence. The country information observed that there had been widespread and systematic violations by Sri Lankan security forces that had occurred in a manner indicating a coordinated and systematic plan approved by the highest levels of government leaving security forces secure in the knowledge that no action would be taken against them. The reports identified the failure by Sri Lankan government to conduct an inquiry in relation to these matters.
On 13 December 2016, the applicant’s migration agent provided the Department with a response (having been provided an audio-recording of the applicant’s interview). The response outlined the applicant’s claims for protection and provided information regarding each of the matters that had been raised by the Department. It also requested a further interview in relation to the issues outlined in the invitation to comment because none of the eight issues raised in the invitation had been put to him at interview. It was submitted that the country information he had provided was highly consistent with the claims to fear harm, and that those fears could not be described as either far-fetched or fanciful.[3]
[3]Citing Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429 (McHugh J).
The response attached an unsigned statement of the applicant that was dated 13 December 2016.
On 22 December 2016, the Department again invited the applicant to provide further information in support of his claims for protection. He was asked to address his claim that he would face a real chance of serious harm due to his membership of the particular social group, ‘members of wealthy Tamil families’. The Department then sent an email to the applicant’s representative advising him that his response was not required before 24 January 2016 (sic, 2017).
On 24 January 2017, the applicant’s representative provided a response to the request for further information. It contained information regarding the applicant’s risk of harm as a member of a wealthy Tamil family, relocation (and modification of the applicant’s behaviour to avoid harm) and a submission that the applicant’s claims for protection should be considered both individually and cumulatively. Attached to the response was a signed statement of the applicant dated 19 January 2017.
On 3 February 2017, a delegate of the Minister refused the SHEV application, not being satisfied that the applicant was a person in respect of whom Australia had protection obligations. The delegate provided a decisional record which addressed the applicant’s claims for protection, findings of fact and Australia’s protection obligations.
In refusing the application, the delegate found the applicant to be a forthright and credible young man overall. Relevantly, the delegate accepted on the basis of “the applicant’s detailed and credible statements” that he had been “sexually assaulted by Sri Lankan Army soldiers in January 2012” and that that he had “a subjective fear of Sri Lankan authorities as a result of this incident.” In particular, the delegate found:
. . . I accept that the applicant was sexually assaulted by Sri Lankan Army officers in January 2012. I accept that this was extremely distressing for the applicant, and has caused him to fear authorities. At interview, I did not press the applicant for details of the assault as he was obviously distressed. However, he told me that the assault has occurred in January 2012 when he went to an informal army camp to reclaim his ID card, and that he was assaulted by several Sri Lankan officers over a three hour period. The applicant told me that he had not told anyone about his assault in Sri Lanka, which is consistent with country information about the social stigma associated with such assaults.[4]
Country information indicates that some Sri Lankan authorities have misused their position in the community and engaged in opportunistic attacks on vulnerable people such as the applicant.[5]
[4] The delegate cited DFAT country information report Sri Lanka, 18 December 2015.
[5]The delegate cited Human Rights Watch 2013, "We will teach you a lesson": Sexual Violence against Tamils by Sri Lankan Security Forces.
The delegate cited several other contemporary reports of country information and found that the applicant’s profile was that of a Tamil who had been sexually assaulted by Sri Lankan authorities. However, the delegate concluded that this would not result in a real chance of serious harm for two reasons. First, the attack appeared to be an isolated incident which had not been repeated in the several months that the applicant had resided in Sri Lanka after January 2012. Secondly, the delegate considered whether the applicant might be placed in a situation where he was vulnerable to sexual assault in the future. It was accepted that the applicant was likely to be detained upon returning to Sri Lanka and that he would be interviewed upon return. The delegate concluded that because of the applicant’s nondisclosure of the sexual assault to his own family it was unlikely that he would disclose the incident when questioned by officials on return to Sri Lanka and, for this reason, he would not be identified as a victim of sexual abuse on return to Sri Lanka. The delegate considered there was only a remote likelihood that the applicant would face a risk of serious harm by the perpetrators of the assault. The delegate concluded that the applicant’s claim to fear harm on this basis was not well-founded.
On 9 February 2017, the applicant was notified that the delegate’s decision had been referred to the Authority for fast track review.
On 1 March 2017, the applicant’s representative provided a submission to the Authority. It was submitted that as concerned the sexual assault, the delegate had, in effect, failed to recognise the applicant would meet the threshold for a well-founded fear of persecution,[6] notwithstanding that a real chance of persecution was assessed at being less than 50%.[7] It was submitted that the applicant’s profile of being the victim of sexual assault was an inherent part of his character.[8] Having regard to the extent of contact which his family had experienced with Sri Lankan authorities, it was submitted that the applicant’s fear of harm, both subjectively and objectively, was a matter that could not be ignored.
[6] Citing the Act, s 5J(1)(b).
[7] Again citing Chan, supra.
[8] Citing the Act, s 5J(3).
Against that background, it was submitted that the delegate’s focus should not have been on whether the applicant had a fear of being sexually assaulted by Sri Lankan authorities, but whether he feared harm from those authorities as a result of his past experience with them.
On 5 April 2017, the Authority made a decision to affirm the decision not to grant the applicant a Protection visa and provided a statement of reasons for that decision (Reasons).
The Authority’s decision
In summarising his claims, the Authority recorded that in early 2012, the applicant had been detained in a SLA camp and asked questions about his family and uncle. The Authority noted the applicant’s claim that he had been detained on one occasion for a period of three hours and sexually assaulted. The Authority also recognised that the applicant feared that he would be arrested, detained, physically and sexually assaulted and/or killed by the SLA and/or Sri Lankan authorities.
The Authority examined in detail the question whether the applicant had a well-founded fear of persecution: [6]-[48]. Having regard to the applicant’s claims individually and cumulatively, the Authority found that the applicant did not have a well-founded fear of persecution within the meaning of s.5J of the Act: [49]. No criticism was made of the Authority’s statement of applicable legal principle: [7]. The Authority examined the background to the claim, much of which it is unnecessary to recount for present purposes. Relevantly, the Authority referred to the applicant’s second statutory declaration. In it, the applicant had stated that during his three-hour detention he had been sexually abused by several SLA personnel and that the reason that he had not mentioned this incident in his first statutory declaration was because recounting the event made him uncomfortable and distressed: [22]. It is convenient to examine the balance of the Reasons in the context of the ground of review. However, as stated above, the Authority concluded this claim had been fabricated. In reaching that conclusion, the Authority did not get further information from, or interview the applicant, about the circumstances of the assaults.
Instead, having rejected his claims, the Authority concluded that the applicant did not meet the requirements of the definition of refugee and accordingly did not meet that essential criterion for a Protection visa. Further, the Authority found that he was not entitled to complementary protection as there were not substantial grounds for believing the applicant faced a real risk of suffering significant harm: [50], [59].
Procedural history
On 27 April 2017, the applicant filed an application for judicial review.
The applicant affirmed an affidavit on 27 April 2017 to which he annexed a copy of the Reasons but which otherwise adduced no evidence in support of the application.
By a response dated 24 May 2017, the Minister opposed the orders sought on the basis that it raised no arguable case for the relief sought.
On 6 November 2017, orders were made, by consent, listing the matter for final hearing. By those orders, the applicant was afforded an opportunity to file and serve any amended application with proper particulars of the grounds of the application, any supplementary court book and written submissions in support of the application.
On 2 November 2018, the applicant filed an amended application by which he abandoned the three original grounds of review and substituted a single new ground based upon legal unreasonableness.
Ground of review – legal unreasonableness
The process of judicial review is not an appellate procedure enabling a general review of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[9] and, where appropriate, to order that the matter be remitted and reconsidered according to law. Accordingly, this court’s jurisdiction is limited to considering only whether the Authority’s decision refusing to grant a SHEV to the applicant is lawful under the Act; “that is, whether the decision of the [Authority] is invalid by reason of jurisdictional error.[10]
[9]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[10]Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); BDC17 v Minister for Immigration and Border Protection [2018] FCA 1899, [27] (Burley J).
The ground of review contained in the amended application contends that the Authority acted unreasonably by failing to consider exercising, (alternatively, by deciding not to exercise), its powers to obtain new information and/or comment. The particulars to that ground read:
The particulars of the ground are more fully set out in the written submissions filed 2 November 2018, and concern the marked difference between the credibility and other findings of the delegate . . . , on the one hand, and the [Authority], on the other, and the delegate’s having expressly refrained from asking about further details of a sexual assault on the Applicant at the hands of three officers where recounting the incident was causing him obvious distress.
It is not open for this court to conduct a merits review of an application. However, the generality of that proposition conceals the nature of the process of judicial review. Consideration of whether there is substantive merit in an application for judicial review requires that the Authority’s Reasons be examined. As Allsop CJ has stated, the close analysis of the factual evaluation and approach taken by the Authority is not merits review; it is part of the process of assessing whether serious findings made about an applicant have been made lawfully: SZSSG v Minister for Immigration and Border Protection.[11] It is inherent in an examination of the manner in which the Authority undertook its decision-making process that the court examine the facts which were considered by the Tribunal. By extension, an examination of issues of credit is not beyond scrutiny in judicial review. Yet the supervisory role undertaken in judicial review cannot be permitted to evolve into a merits review of the application. The court has no jurisdiction to do so.
[11] [2018] FCA 670, [6].
However, where the process of arriving at, or the result of, an administrative decision is judged to be legally unreasonable, the court is not involved in the conduct of merits review. Instead, “the court is asking whether the decision-maker’s purported exercise of power was beyond power because it was legally unreasonable.”[12]
[12]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [83] (Nettle and Gordon JJ), citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.
An administrative decision-maker is to be allowed an area of genuine decisional freedom within which reasonable minds might properly differ upon what constitutes the correct or preferable decision.[13] Expressed another way, it is not enough that the court would have taken a different view of the matter.[14] A decision which is made within that area of decisional freedom is not affected by jurisdictional error on the ground of legal unreasonableness.[15]
[13]Minister for Immigration and Citizenship v Li, (2013) 249 CLR 332, [28] (French CJ), [65]-[66] (Hayne, Kiefel and Bell JJ); SZVFW, supra (2018) 357 ALR 408, [51] (Gageler J), [89] (Nettle and Gordon JJ).
[14] (2013) 249 CLR 332, [75] (Hayne, Kiefel and Bell JJ); [30] (French CJ), 107 (Gageler J).
[15] SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ), [51] (Gageler J),
Ascertainment of the standard by which a test of legal unreasonableness is to be measured then requires that consideration be given to the scope and purpose of the statute conferring the power and its object.[16] Where a statutory power is conditioned by an obligation of legal reasonableness, a decision that is made in breach of that standard “lies beyond the scope of the authority conferred by the power.”[17] The evaluation whether a decision is tainted by legal unreasonableness requires assessment of the quality of the decision having regard to the statutory source of the relevant power, the scope and purposes of the enabling statute: Minister for Immigration and Border Protection v SZVFW.[18] This evaluative task is more accurately understood as requiring an assessment of the quality of the administrative decision having regard to the evidence and materials before it and the submissions which were made.
[16]Li, supra (2013) 249 CLR 332, [67], [72]-[74] (Hayne, Kiefel and Bell JJ); [23] (French CJ), 109 (Gageler J); (2018) 357 ALR 408, [12] (Kiefel CJ), [79], [90] (Nettle and Gordon JJ), 134 (Edelman J).
[17](2018) 357 ALR 408, [53]; see also Li, supra (2013) 249 CLR 332, [23] (French CJ), [63], (Hayne, Kiefel and Bell JJ), [94] (Gageler J); SZVFW, supra (2018) 357 ALR 408, [4] (Kiefel CJ); [51] (Gageler J); [80], [89] (Nettle and Gordon JJ); [131] (Edelman J).
[18](2018) 357 ALR 408, (Nettle and Gordon JJ) [9] citing Li, supra (2013) 249 CLR 332, [67], [90], 109; Klein v Domus Pty Ltd (1963) 109 CLR 467, 473-474.
As the plurality observed in Li, an administrative decision may be considered as unreasonable in more than one sense:
Further, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[19] Mason J considered that the preferred ground for setting aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to an irrelevant factor of no importance, is that the decision is ‘manifestly unreasonable’. Whether a decision-maker be regarded, by reference to the scope and purpose of the statute, as having committed a particular error in reasoning, given disproportionate weight to some factor or reasoned illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.
Their Honours proceeded to identify that a conclusion of legal unreasonableness may flow from an examination of whether a decision-maker had given obviously disproportionate weight to one consideration.
[19]Minister for Aboriginal Affairs v Peko-Wallsend 1986) 162 CLR 24, 41 (Gibbs CJ and Dawson J agreeing at 30, 71).
Legal unreasonableness is not confined to decisions which are characterised as manifestly unreasonable. The two principal contexts in which legal unreasonableness are employed are where an identifiable error has been made and where the outcome of the process is said to be characterised as being legally unreasonable. Examples of identifiable or specific error include cases in which a finding of fact is not supported by any evidence[20] and where a decision-maker’s finding of fact is tainted by illogicality or irrationality.[21] Outcome focussed unreasonableness does not require the identification of a specific error, but proceeds by recognition that an administrative decision-maker is entitled to an area of decisional freedom within which the decision is not susceptible to criticism on the ground of legal unreasonableness, notwithstanding that the court might have formed another view of the matter. As has been emphasised, in an outcome based challenge it is crucial to recognise that it is erroneous in the task of judicial review for the court to assess what it regards as being a reasonable outcome and thereby conclude that any other view (i.e. that of the decision-maker) necessarily involves error. Instead, the quality of the decision must be assessed.[22]
[20]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355-356 (Mason CJ); Rawson Finances Pty Ltd v Federal Commissioner of Taxation (2013) 93 ATR 775, [62] (Jessup J); [83]-[84] Jagot J).
[21] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
[22]Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [12] (Allsop CJ); Li, supra (2013) 249 CLR 332, CLR [66], [105].
Thus, the determination of legal unreasonableness is heavily fact dependent and inherently sensitive to context.[23] The concept is not exhausted by rationality or capable of reduction to a formula.[24] It is not confined by closed categories, nor limited to specific errors.[25] No single test of legal unreasonableness can be stated. To approach an outcome (result) based challenge by requiring the identification of specific error would foreclose the availability of relief that should be granted in cases where the result was not “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”[26] In such cases, it is not necessary to identify specific error – to do so would also foreclose the availability of relief in cases where the result bears the character of being legal unreasonable.[27] As an assessment of the quality of the decision is fact dependent and context sensitive, it is inappropriate to reason by reference to other decisions.[28]
[23] SZVFW, supra (2018) 357 ALR 408, [59] (Gageler J), [84] (Nettle and Gordon JJ).
[24] SZVFW, supra (2018) 357 ALR 408, [59] (Gageler J).
[25] SZVFW, supra (2018) 357 ALR 408, [81] (Nettle and Gordon JJ).
[26]SZVFW, supra (2018) 357 ALR 408, [82] (Nettle and Gordon JJ) citing Li, supra (2013) 249 CLR, [105].
[27]SZVFW, supra (2018) 357 ALR 408, [83] (Nettle and Gordon JJ).
[28]DPI17 v Minister for Home Affairs [2019] FCAFC 43, [37] (Griffiths and Steward JJ).
A conclusion of legal unreasonableness may be inferred from the facts which were raised for consideration. The court may infer legal unreasonableness upon a decision which involved the exercise of a discretionary statutory power. The court may reach that conclusion, including where it is only possible to infer that there had been a failure in some way to properly exercise the discretion.
The test of legal unreasonableness is strict[29] and stringently applied.[30] Accordingly, the claims in which it is established that an administrative decision made upon the exercise of a discretionary statutory power was affected by legal unreasonableness will be rare.[31] A high bar is faced to a challenge against the exercise of a discretionary power based upon legal unreasonableness where the decision-maker’s reasons demonstrate a justification for that exercise of power.[32] As Gageler J has stated:[33]
Expression of the standard of legal reasonableness in terms of the minimum to be expected of any “reasonable repository of the power” in the circumstances of the impugned decision or action has the benefit of emphasising both the ‘extremely confined’[34] scope and context-specific operation of the limitation it imposes.
[29]SZVFW, supra (2018) 357 ALR 408, [51], citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J);
[30] Li, supra (2013) 249 CLR 332, [108]; SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ).
[31]Li supra (2013) 249 CLR 332, [112]-[113]; see also DPI17 v Minister for Immigration and Border Protection [2019] FCAFC 43, [110]-[111] (Mortimer J).
[32] SZVFW, supra (2018) 357 ALR 408, [84] (Nettle and Gordon JJ).
[33] SZVFW, supra (2018) 357 ALR 408, [52].
[34] Citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).
Legal unreasonableness under Pt 7AA
It was common ground that what is legally reasonable in a given case will always depend on the statutory scheme within which the decision is made.[35] The present case arises under Pt 7AA of the Act.
[35] Li at [67].
Part 7AA of the Act concerns the subject Fast track review process in relation to certain protection visa applications and is arranged in 8 Divisions comprising ss 473BA-473J. Relevantly, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fact track reviewable decision.[36]
[36] Act, ss 473CA, 473CC.
Section 473CB identifies the material that must be provided to the Authority. Relevantly, it includes the delegate’s decisional record.[37]
[37] Act, s 473CB(1)(a).
By Pt 7AA of the Act, the core function that is imposed on the Authority is to conduct the review a fast track reviewable decision: see s 473CC(1); cf Minister for Immigration and Citizenship v SZIAI.[38]
[38] (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review.[39] Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority;[40] requires that the Authority should ordinarily conduct its review on the papers;[41] provides for the exceptional, and strictly circumscribed,[42] circumstances in which new information or documents may be sought or employed[43] and; authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.[44]
[39] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[40] Act, s 473DA.
[41] Act, s 473DB.
[42] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [31].
[43] Act, s 473DC-473DE.
[44] Act, s 473DF.
In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[45] The Authority may, but is under no duty to, get any documents or information that was not before the delegate.[46] Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.
[45] Act, s 473DB(1)(a)-(b).
[46] Act, s 473DC(1)-(2).
Nothing in Part 7AA otherwise constrains the application of the law respecting the duty of an administrative decision-maker to consider the claims and issues arising from the material that is before it and the issues that may arise from its own findings.[47] For that reason, the Authority must consider each articulated claim and each claim that clearly arises from the review material before it.[48]
[47]AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).
[48]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [60] (Black CJ, French and Selway JJ).
For the same reason, the powers conferred on the Authority by Div 3 of Pt 7AA are so “conferred on the implied condition that they are to be exercised within the bounds of [legal] reasonableness.”[49]
[49]Plaintiff M174/2016 v Minister for Immigration and Border Protection, (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ); BVD17 v Minister for Immigration and Border Protection, [2019] HCA 34, [10], [14]-[15] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
As concerns the exhaustive statement of the natural justice hearing rule, it is settled that “no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme”: DBE16 v Minister for Immigration and Border Protection.[50] As stated above, Pt 7AA provides a mechanism of limited merits review.[51] In DBE16, Barker J held:[52]
The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration (2006) 228 CLR 152; [2006] HCA 63 do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]).
His Honour held that “the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding”, and that to do so was part of the nature of the fast track system as envisaged by Pt 7AA.[53]
[50] [2017] FCA 942.
[51] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[52] [2017] FCA 942, [59].
[53] [2017] FCA 942, [61].
These statements of principle were endorsed by the Full Court in DGZ16 v Minister for Immigration and Border Protection.[54] There, Reeves, Robertson and Rangiah JJ held[55] that the scheme of review provided by Part 7AA, required that the Authority was to review for itself the material that had been considered by the delegate and did not require it to notify an applicant if it was considering taking a view of the matter different from that taken by the delegate. Their Honours agreed that:[56]
. . . the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[54] [2018] FCAFC 12, [50], [70] (Reeves, Robertson and Rangiah JJ).
[55] [2018] FCAFC 12, [70], [73].
[56] [2018] FCAFC 12, [70], [74].
In DGZ16, the Full Court did not accept,[57] on the facts of that case, that “the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.” The Full Court concluded that in Pt 7AA there was no requirement equivalent to s 425 which provided that “the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review” and that in general, “the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.” The court stated:
Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[57] [2018] FCAFC 12, [75]-[76].
Upon the primary rule provided by Pt 7AA, the Authority is required to conduct a fast track review ‘on the papers’ and to do so by reference to the review material[58] that is provided by the Secretary and, save as to the strictly circumscribed exception afforded by s.473DD, is proscribed from considering new information[59] in conducting such review.[60] In Minister for Immigration and Border Protection v CRY16,[61] the Full Court observed with respect to the primary obligation imposed by s.473DB(1) to review a referred decision ‘on the papers’ as confirming the restrictive nature of the system of review provided by Pt 7AA “in which the Authority may (and in many cases must) proceed to make a decision without any input from a referred applicant.” Robertson, Murphy and Kerr JJ held that s.473DB(1) suggested that the Authority was empowered to seek information or comment from a referred applicant only to the extent permitted by an express provision in Pt 7AA.
[58] Act, ss 473BB, 473CB(1).
[59] Act, ss 473BB, 473DC(1).
[60]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [33] citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 92 ALJR 798, [22]; Minister for Immigration and Border Protection v AMA16 (2017) FCR 534, [19].
[61] (2018) 253 FCR 475, [30].
Accordingly, in conducting a de novo review of a delegate’s decision, it is generally open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond or affording him or her an invitation or hearing.
In DPI17 v Minister for Immigration and Border Protection,[62] Griffiths and Steward JJ considered that the following propositions had been distilled in the High Court’s consideration of Pt 7AA in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[63]
(1)as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2)the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3)the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 (Li) (at [21]);
(4)the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5)although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6)s.473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
[62] (2019) 336 ALR 665, [35].
[63](2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing).
More recently, in BVD17 v Minister for Immigration and Border Protection[64] the plurality described s 473DA as codifying the natural justice hearing rule for the purposes of Pt 7AA of the Act. Their Honours also observed that the exhaustiveness of the rule of procedural fairness in Pt 7AA was more extensive than that stated in relation to Pt 7, in that it extended to the entirety of the performance of the Authority’s overriding duty to review a fast track reviewable decision.[65] In the result, the Court held that having regard to the codifying (i.e. exhaustive) effect of s 473DA(1), “procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined,” except to the extent that it overlapped with legal unreasonableness.[66]
[64] [2019] HCA 34, [34].
[65] [2019] HCA 34, [31], [35] (plurality); cf [51], [62] (Edelman J).
[66][2019] HCA 34, [34], approving Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475, [67]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 475, [99].
Thus, it is now settled that a challenge of the present kind is to be approached within the statutory framework of Div 3, Pt 7AA and upon principles of legal unreasonableness, not through a lens of procedural fairness.[67] Legal unreasonableness then assumes a dominant place in the consideration of a challenge by way of judicial review upon the exercise or non-exercise of a discretionary power under Pt 7AA of the Act.
[67] Ibid.
A referred applicant may provide a written statement on why they disagree with the decision under review and on any claim or matter which he or she presented to the Department that was overlooked.[68] Aside from the exhaustive statement of the natural justice hearing rule, the referred applicant is entitled to participate in that review.
[68]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].
On judicial review, the onus of demonstrating jurisdictional error lies upon the applicant who must, where relevant, establish the factual foundation for a finding on the balance of probabilities that the Authority failed to consider whether to exercise a power conferred by Pt 7AA.[69] If such a finding can be inferred from the underlying facts, it is then a separate question whether the quality of the decision or the process by which it was arrived at indicates that the conduct of the Authority (whether by act or omission) was legally unreasonable.
[69]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [35] citing BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, [41]; see also, BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, [38].
Resolution
The applicant correctly submitted that the Authority may get any documents or information that were not before the Minister when the Minister made his or her decision, and that the Authority considers may be relevant.[70] It was accepted that the Authority did not have a duty to get, request or accept any such new information: s 473DC(2). The applicant also pointed to the power conferred on the Authority by s 473DC(3) of the Act to invite a person to give such new information in writing, or at an interview; whether conducted in person, by telephone or in any other way. It was also accepted that the Authority was proscribed from considering any new information[71] unless, relevantly, it was satisfied that there were exceptional circumstances to justify it doing so. However, to be “an exceptional circumstance, it need not be unique or unprecedented or very rare.”[72]
[70] Act, s 473DC(1).
[71] Act, s 473DC(1).
[72] Plaintiff M174/2016 v Minister for Immigration and Border Protection, (2018) 353 ALR 600, [30].
The applicant further submitted that the following principles and their proper application arose for consideration in the circumstances of the present case. First, it was correctly submitted that the principles in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[73] were not directly applicable to judicial review of decisions made under Pt 7AA of the Act.[74] In SZBEL, the High Court held that an applicant “was entitled to assume the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision on review by the IAA.”[75] No such assumption is open in respect of the exercise of powers under Pt 7AA.
[73] (2006) 228 CLR 152.
[74]Cf. Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [26], [67]; see also See DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, [69]; AXE16 v Minister for Immigration and Border Protection [2018] FCA 646, [12].
[75] Applicant’s opening submissions, [59].
Counsel readily accepted that SZBEL was a case arising under Pt 7, not Pt 7AA. As noted above, the process undertaken by the Authority entails a de novo review of the application. By contrast, the process of review under Pt 7 is one of merits review of the issues that arise in relation to the decision under review. The nature of the reviews is quite different.
Consistently with those submissions, the parties also accepted that because the regime of fast track review provided by Pt 7AA was different to that which applied under Pt 7, the principles of procedural fairness addressed in SZBEL did not provide the appropriate starting point.[76] An applicant for review under Pt 7AA is not entitled to assume that if the Authority does not tell him or her that issues other than those that the delegate considered dispositive on review of a delegate’s decision may be the dispositive issue on the fast track review.[77] The parties also accepted that it was not necessarily procedurally unfair for the Authority to consider that an issue arising for its assessment that was not a dispositive issue for the delegate may be dispositive in the conduct of its de novo review, without first warning an applicant of that fact.
[76]See DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, [69], [72]; Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, [20].
[77] Cf SZBEL, (2006) 228 CLR 152, [35].
Instead, the applicant correctly submitted that for the Authority to decide an issue adversely to an applicant, where that issue had not been a dispositive issue for the delegate, may evidence legal unreasonableness. It was submitted that such unreasonableness may be constituted as involving either a failure to consider whether to obtain new information (including inviting further comment or information from an applicant), or in considering but declining to exercise its powers to obtain such information. To this end, the applicant placed reliance upon Minister for Immigration and Border Protection v CRY16.[78] Those propositions were essentially common ground. Counsel for the Minister accepted that under Pt 7AA, a decision whether or not to exercise the power to get further information must be made reasonably.[79]
[78] (2017) 253 FCR 475, [67]-[70], [72], [82].
[79]Citing Plaintiff M174, [21], referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.
The correctness of those submissions is confirmed by BVD17 v Minister for Immigration and Border Protection.[80] While the plurality there noted aspects of the operation of s.473GB(3) which denied or constrained the Authority’s exercise of power, critically, their Honours accepted that the discretion conferred by the section was conditioned by the requirement that it must be exercised within the bounds of reasonableness.[81] The plurality further recognised that the primary obligation of the Authority was to review a fast track reviewable decision by considering the review material[82] and to do so without accepting or requesting new information and without interviewing the referred applicant. Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ stated that because its primary obligation was nevertheless imposed subject to Pt 7AA of the Act, this sufficiently indicated that its primary obligation may be qualified.[83] Further, their Honours identified the discretionary powers to get new information and invite any person to provide new information as being two provisions that may operate to qualify this primary obligation. In each case, the plurality held that such qualifying provisions were to be exercised within the bounds of reasonableness.[84]
[80] [2019] HCA 34.
[81] [2019] HCA 34, [10] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
[82] Act, s 473CB.
[83] [2019] HCA 34, [14].
[84] [2019] HCA 34, [15].
The applicant pressed the claim of legal unreasonableness in two ways: (1) an unreasonable failure by the Authority to consider the exercise of its discretionary powers; (2) alternatively, if the Authority had in fact considered the exercise of power, decisions not to get information or to seek comment from the applicant were unreasonable. It was submitted that on either approach, considering the material before the Authority, there was no intelligible justification for the decision that was made.
First, it was said to be unreasonable per se for the Authority to have come to such markedly different credibility findings from the delegate without at least considering the exercise (or in deciding not to exercise) of its powers to get further information, or to allow the applicant to comment on those matters. Contextually, it was noted that the delegate, unlike the Authority, had in fact interviewed the applicant. The failure to consider making a decision (or the decision not) to exercise those discretionary powers was said to demonstrate unreasonableness per se in the particular circumstance that credibility matters were central to the disposition of the matter before the Authority when the applicant had been found by the delegate to be a forthright and credible young man.
The Minister submitted that there was nothing in the Authority’s credibility findings that made it “different from, or special by comparison with, any other case where one decision-maker decides factual or credibility matters differently to another.” It was further submitted that in matters of this kind, it would often be the case that a decision-maker accepted a claimed fact, but another did not and that this, in or of itself, did not create a requirement for the second decision-maker to seek new information or to seek comments in the conduct of a fast track review. It was also submitted that the fact of that finding did not “reflect any unreasonableness, but only that it is possible for different decision-makers to come to different views about the same material.”
Secondly, it was submitted for the applicant that, in circumstances where the delegate had expressly refrained from asking the applicant further questions about his sexual abuse by Sri Lankan authorities by reason of his obvious distress, it had been especially unreasonable for the Authority to have not at least considered exercising its powers. Counsel for the applicant submitted that it had been appropriate for the delegate to have abstained from further questioning where she proposed to make positive findings accepting that the applicant had been sexually assaulted (and in light of the finding of extreme distress during questioning). The unreasonableness of the Authority’s conduct, however, was said to be demonstrated by its contrary finding that the applicant had fabricated his claim of sexual assault without at least considering the exercise of its powers to obtain further information or comment: [31].
The Minister sought to meet the second limb of the applicant’s ground on the basis that the Authority had not made its factual findings by reference to the demeanour or conduct of the applicant in the hearing. Rather, it was said that the Authority’s finding followed from the late raising of the detention claim, the inconsistency between that claim and earlier responses to direct questions about detention and conflicts in the retellings of the claimed events.[85] The Minister correctly submitted that the Authority was not required to invite the applicant to a hearing so as to observe his demeanour and that the absence of an interview was a feature of the regime provided by Pt 7AA; notwithstanding that an applicant might have been better able to explain their claim at an interview as compared to a written statement.[86]
[85] Reasons, [31].
[86] AUH17 v Minister for Immigration and Border Protection [2018] FCA 388, [51]-[52].
Counsel for the Minister further responded that there was no unreasonableness in the Authority not considering the exercise of, or not exercising, its power to invite the applicant to an interview. Reliance was placed upon the approach taken in DGZ16, where the Full Court considered and distinguished CRY16, describing it as a case where the Authority had “decided a point which was not the point decided by the delegate.”[87] Reeves, Robertson and Rangiah JJ held that:[88]
In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond
[87] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12, [70].
[88] [2018] FCAFC 12, [72].
The Minister submitted that it was accordingly open to the Authority to review the material before the delegate in relation to the claims about detention and sexual assault and to come to a different view about that without inviting the applicant to comment further.[89] It must be accepted, on the facts of a particular case, that once the Authority has formed specific reservations about an applicant’s case it may not be required, as a matter of legal reasonableness, to seek further submissions from the applicant and to provide the appellant with an opportunity to respond.[90]
[89] DGZ16, [76].
[90] Cf DGZ16, [75]-[76].
In CRY16, the court held that it was unreasonable in the circumstances of that case for the Authority not to consider exercising its discretionary power to obtain new information under s 473DC in respect of an issue that had not been explored in any way before the delegate but upon which the Authority was going to make a finding in its decision.[91]
[91] (2017) 253 FCR 475, 494 [82] (the Court).
The present case is distinguishable from CRY16 because in that case the delegate had not accepted the applicant held a well-founded fear of harm in Lebanon, whereas the Authority did so but then proceeded to refuse the visa application on the basis that the applicant could relocate – an issue which to that point had not been addressed at all. CRY16 has been since described, “a case in which an issue arose before the Authority, which had not been considered by the delegate and which was dispositive in the Authority’s conclusions on review.”[92]
[92] CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641, [42].
Applied here, the Minister emphasised that in this case there was no question that an issue which had been dispositive in the Authority’s conclusions on review had been clearly considered by the delegate. So much may be accepted. I agree that the applicant’s detention and whether he had been the victim of a sexual assault were necessarily matters that the delegate had to consider and decide. I further agree that in this matter these were factual findings that both the delegate and the Authority had to come to a view upon and further, that they had done so on the same material. The Minister submitted that in those circumstances, “nothing more was required.” For the reasons below, I disagree. Further consideration of the circumstances is required.
It is not determinative that it was open to the Authority to review the material that was before the delegate (and in particular, as concerned the claims regarding his detention and sexual assault), and to come to a different view about that issue without inviting the applicant to further comment. While it was said that the Authority had simply taken a different view of the information before it to that taken by the delegate, I do not accept that it was a sufficient answer to observe that the applicant was not entitled to an interview or opportunity to comment. Questions whether any failures to exercise, or decisions to not exercise, its discretionary powers to get information or interview the applicant were legally unreasonable in all the circumstances of the case turned on the quality of the decision and the process by which the Authority had arrived at it.
Onus of proof – an inference is available
The applicant bears the onus of proof in a challenge of legal unreasonableness, including one that is based upon an alleged failure to consider the exercise (or a decision not to exercise) a discretionary power. In some cases, the onus of proof will be of no moment to the outcome of judicial review. The circumstances of the particular case may be such that any failure to consider the exercise a discretionary power would not vitiate the substantive decision by jurisdictional error: cf CCQ v Minister for Immigration and Border Protection.[93]
[93] [2018] FCA 1641, [38]-[42] (Thawley J.
However, in the present case, the resolution of this challenge turns in no insignificant way upon whether the applicant has discharged the onus of proof in establishing a basis for drawing the inference necessary to make out a case of jurisdictional error. It was agreed that in this court, the applicable standard of proof was the balance of probabilities.[94] A reason the onus of proof is important in the present case is that, in contrast with DPI17,[95] here the Minister does not concede a failure by the Authority to consider the exercise (or a decision not to exercise) its statutory powers to get information or obtain comment.
[94] Evidence Act 1995 (Cth), s.140(1).
[95] (2019) 336 ALR 665, [44] (Griffiths and Steward JJ).
In BVD17 v Minister for Immigration and Border Protection, when speaking of the power conferred by s 473GB(3)(b) of the Act to disclose to an applicant any matter contained in a document supplied to it under that section, the Full Court stated:[96]
The appellant bears the onus of establishing the basis for drawing the inference necessary to make out the alleged jurisdictional error.[97] It follows that he bears the onus of establishing the factual foundation from which it can be inferred that the Authority failed to consider the exercise of its discretion under s 473GB(3)(b). The Minister does not need to establish that the Authority had indeed considered the exercise of the discretion.
The fact that the Authority did not refer to or explain the exercise of its discretion in its reasons does not assist the appellant in this case. As Thawley J noted in BCQ16 v Minister for Immigration and Border Protection,[98] the Authority's obligation to provide written reasons under s 473EA(1) does not require a statement as to the exercise of a procedural decision in the course of the review.
[96] [2018] FCAFC 114, [41]-[42] (Flick, Markovic and Banks-Smith JJ).
[97]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [67] (Gummow J).
[98] [2018] FCAFC 114, [45], [49]-[50].
In BVD17, Flick, Markovic and Banks-Smith JJ also held that the absence in reasons of any reference to the exercise of discretion does not of itself give rise to an inference that its exercise was not considered.[99] An appeal from that decision was dismissed: BVD17 v Minister for Immigration and Border Protection.[100] Conformably with the statement of the Full Court above, the plurality were largely agreed that the requirement of the Authority under Pt 7AA to provide reasons for its decision did not require it to give reasons for the exercise or non-exercise of a procedural power.[101] Their Honours confirmed that:
. . . it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared. (Citations omitted)
[99] [2018] FCAFC 114, [49].
[100] [2019] HCA 34.
[101] [2019] HCA 34, [16].
Counsel for the Minister properly recognised that BVD17 did not concern the exercise of the discretion conferred by ss.473DC or 473DD respectively to get information or consider new information (as the case requires). However, the statements of principle in that appeal were said to be apposite to the consideration of the discretion conferred by those provisions whether or not to exercise a power to get information or consider new information. Counsel for the Minister noted that in each case such decisions were essentially procedural powers and that the Authority was not required to provide written reasons as to a decision made in the exercise (or non-exercise) of procedural powers. By extension, it was submitted that the Authority was not required to give reasons for not exercising its discretion to invite the applicant to an interview. While that submission should be accepted, the absence (or provision) of reasons for the exercise or non-exercise of a discretionary power may, in my opinion, be taken into account in evaluating the quality of the decision making process. While the Authority was not required to provide such reasons, it could have done so.
Counsel for the Minister responded that the applicant had not established that the Authority failed to consider exercising its power to invite the applicant to an interview. Counsel conceded that the Reasons made no mention of an interview and had not discussed the possibility of this being considered. But the absence of those matters was said not to support a conclusion that such a possibility was not considered.
For all of those reasons, the Minister submitted that the mere absence of any reference in the Reasons to the discretion to invite the applicant to an interview did not support an inference that the Authority did not consider exercising the discretion, and that it was for the applicant establish a factual basis for drawing an inference of jurisdictional error. When asked to identify an authority that squarely addressed the process by which an inference was properly available in such circumstances, I was told that there was “a little bit less by way of judicial exploration.”
In Applicant WAEE v Minister for Immigration and Indigenous and Multicultural Affairs[102] the Full Court held that in the review of a Tribunal’s decision upon a protection visa under Pt 7 of the Act, “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.” Accepting that this statement was not made in the context of Pt 7A of the Act, the further distinction to be drawn is that the caution which was expressed against drawing an inference was conditioned upon the issue having at least been identified in the reasons at some point.In the present case, the Reasons do not identify that the Authority either considered or that it decided not to exercise its discretionary powers to get information or obtain comment from the applicant.
[102] (2003) 236 FCR 593, [47] (French, Sackville and Hely JJ).
In BVD17,[103] the plurality considered that the appropriateness of drawing an inference of failure to exercise a discretionary power fell to be evaluated by having regard to two settled principles: “One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other was that the decision must be read in light of the content of the statutory obligation pursuant to which it was prepared.”[104] The Court also held that the requirement of the Authority under Pt 7AA to provide reasons for its decision did not require it to give reasons for the exercise or non-exercise of a procedural power.[105]
[103] [2019] HCA 34, [38].
[104] Ibid.
[105][2019] HCA 34, [16], citing Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, [32], 69], [91]-[92].
When affirming that it was for the plaintiff on judicial review to establish the factual basis for an inference to be drawn from a decision-maker’s statement of reasons, in BVD17[106] the plurality cited Plaintiff M47/2018 v Minister for Home Affairs[107] as a recent illustration of the importance of that onus of proof. In Plaintiff M47/2018, Kiefel CJ, Keane, Nettle and Edelman JJ regarded it to be a compelling consideration in that case: “it is the plaintiff, not the defendants, who could reasonably be expected to provide information on the facts relating to the identity of his parents and their place of birth and residence.” Their Honours also endorsed the principle that all evidence was “to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”[108] The plurality endorsed those observations as being relevant in the context of an admittedly distinct type of application under the Act to the present.[109] To the extent that those observations may be employed in an evaluation on judicial review of the quality of a fast track decision made under Pt 7AA of the Act, it will usually be the case that it is not within an applicant’s power to know whether the Authority had considered (or failed to consider) the exercise of discretionary powers. Equally, an applicant is in a positon to identify the objective underlying facts upon which the Authority might reasonably have been expected to have given such powers consideration.
[106] [2019] HCA 34.
[107] (2019) 367 ALR 711.
[108] [2019] HCA 34, [40].
[109] The proceeding was not for judicial review, but habeas corpus: [2019] HCA 34, [3].
Further, as concerned the nature of the onus, Kiefel CJ, Keane, Nettle and Edelman JJ cited the learned authors, Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability.[110] While the plurality had referred to that text in the context of the distinct onus carried in relation to habeas corpus, the authors related consideration of the evidential burden in the context of legal unreasonableness is illuminating. The learned authors stated, with reference to Minister for Immigration and Citizenship v Li,[111] as follows:
Her application had been well-documented, and the Tribunal did not suggest that there was any down-side to granting the adjournment, either to itself or the department. Perhaps the result might have been different if the Tribunal had explained itself, and whilst Li’s three judgments were expressed in different terms, they were all agreed that an adjournment was so obviously called for that the Tribunal needed to explain why it decided otherwise. Its decision lacked an evident and intelligible justification.[112] (Emphasis added)
[110] Plaintiff M74/2018, supra [2019] HCA 17, [39]; 6th Ed (2017) at [14-110].
[111] (2013) 249 CLR 332.
[112] (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ).
To adapt the reasoning in Plaintiff M47/2018, the applicant carried the onus of proof in establishing the primary facts upon which an inference could be drawn that the Authority had either failed to consider the exercise of its discretionary powers or alternatively, that the Authority had in fact considered to exercise those powers and decided not to do so.
While the application before the delegate was essentially inquisitorial, by contrast, the applicant had no automatic right to be interviewed by the Authority. In my view, further observations in Plaintiff M47/2018 seem apposite. Here, the Authority, and not the applicant, was best placed to explain whether and why it had (or had not) exercised such discretionary powers. And while it was not obliged to provide such reasons when giving reasons for its decision on the substantive issue,[113] the Authority did not in fact provide any reasons for any procedural decision made in the exercise or non-exercise of the discretionary powers that were conferred on it by ss.473DC(1) and (3). As counsel for the applicant observed, had the Authority given serious consideration to the exercise of its procedural powers to get information or seek comment from the applicant, and decided not to do so, one might have seen such reasons within the body of the decision. Accepting that the Authority was not subject to a mandatory obligation to provide reasons for a procedural decision, the importance of the issue was one in which a question arose whether in light of the finding of fabrication, the Authority was in a position to recognise that it did not, but the applicant might, have information as to the nature and extent of the sexual assault. Upon that basis, and having regard to the importance of the issue, the Authority might appropriately have given consideration to obtaining that new information and whether it was satisfied it should exercise the power to obtain it: Act, s.473DD(a).
[113] BVD17, [2019] HCA 34, [16], [40].
The absence of reasons for a procedural decision cannot immunise an administrative decision from scrutiny for legal unreasonableness. The absence of such reasons was not fatal to the decision in Li that the refusal of the adjournment was tainted by legal unreasonableness. In Li, Hayne, Kiefel and Bell JJ considered it sufficient that an appellate court could infer that in some way there had been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust.”[114] And as Aronson, Groves and Weeks observed, the decision in Li may well have been different had the tribunal provided reasons.
[114] (2013) 249 CLR 332, [76] citing House v The King (1936) 55 CLR 499, 505.
Viewed from those perspectives, the absence of reasons upon a procedural decision whether or not to exercise discretionary powers to obtain new information or conduct an interview is not irrelevant.
A finding of fabrication
For the purposes of evaluating legal unreasonableness, I consider it most troubling that the Authority made a finding the applicant had fabricated his evidence. Although the Authority does not discharge the same function as an appellate court, at least in curial (as distinct from administrative) decisions it is settled that “a finding of fact by the trial judge which is based on the credibility of a witness is not to be set aside because the appellate court thinks the probabilities of the case are against – even strongly against – that finding.” Rather, the finding must stand unless the trial judge has, for example, palpably misused his or her advantage, acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: cf Devries v Australian National Railways Commission.[115] While those principles clearly do not apply under the statutory framework of Pt 7AA, perhaps they provide some context for an evaluation of legal unreasonableness. At the least, they provide a perspective to how the quality of a different decision making process and the outcome of a curial decision may be evaluated. They illustrate the settled restraint that is exercised on appeal against the making of findings of fact different to those reached by the primary judge.
[115] (1993) 177 CLR 472, 479 (Brennan, Gaudron and McHugh).
A seminal authority in relation to the deliberate giving of false evidence is Smith v New South Wales Bar Association.[116] There, Brennan, Dawson, Toohey and Gaudron JJ recognised the difference between the rejection of a person’s evidence and a finding that he or she had deliberately lied. The plurality also accepted that the rejection of evidence may, in some cases, lead to a finding that the person had also lied on another occasion. Their Honours also observed that:
Other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.[117]
[116] (1992) 176 CLR 256.
[117] (1992) 176 CLR 256, 268.
Deane J reasoned to similar effect, holding that unless it was “truly necessary” for the purpose of disposing of the particular case, a specific finding that a party or witness had deliberately given false evidence should ordinarily not be made.[118] It must be noted that the reasoning in that appeal was given in the context of common law principles of procedural fairness.[119]
[118] (1992) 176 CLR 256, 271.
[119] (1992) 176 CLR 256, 268-269, 270.
These principles are well settled[120] and accept that an important distinction is to be made between honest mistake and deliberate falsehood.[121] As the Full Court recently accepted that it “would not automatically follow from demonstrated inaccuracy that the witness had committed perjury, i.e. deliberately given false evidence. The evidence might have been nothing more than an inaccurate but honest recollection”: Dutta v Telstra Corporation Ltd.[122]
[120]See, eg, Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34, [53] (Gleeson JA); Sanguine Technology Pty Ltd ACN 124 894 088 v Abacus Calculators (W.A.) Pty Ltd[2010] FCA 279 [43] (Lander J).
[121] See, eg, Mackenzie v R (1996) 190 CLR 348.
[122] [2019] FCAFC 103, [41]
These principles have been applied in the context of the exercise of statutory discretionary powers.
In Heath v Greenacre Business Park Pty Ltd,[123] the NSW Court of Appeal upheld a challenge to the exercise of a discretionary power to make an order for costs. Gleeson J, with whom McFarlan and Leeming JJA agreed, reasoned that to succeed on appeal the appellant needed to demonstrate error in the House v The King sense. and that such error “may be demonstrated if the primary judge acted on a wrong principle, made a material error of fact, or failed to have regard to material considerations or reached a conclusion which was, on the facts unreasonable or plainly unjust”.[124] The trial judge had found a witness to have fabricated their evidence and employed that finding to exercise the statutory power to award costs. Gleeson J, citing Smith v NSW Bar Association agreed that “something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence”[125] and that the erroneous finding of fabrication vitiated the exercise of discretion.[126]
[123] [2016] NSWCA 34.
[124] [2016] NSWCA 34, [38].
[125] [2016] NSWCA 34, [53]; see also at [56].
[126] [2016] NSWCA 34, [63].
Although the present case falls for consideration within the statutory framework of Pt 7AA, the requirement to find “something more” and to exercise caution before finding that an applicant has fabricated their claim has been recognised in a number of cases of judicial review under the Act: see, eg, Minister for Immigration and Citizenship v SZNPG;[127] CQG15 v Minister for Immigration and Border Protection.[128] However, as CQG15 confirms, a finding that an applicant had given deliberately false evidence may not always constitute jurisdictional error. Relatedly, the Authority was not bound by the rules of evidence.[129]
[127] [2010] FCAFC 51, [24] (North and Lander JJ).
[128] [2016] FCAFC 146, [66] (McKerracher, Griffiths and Rangiah JJ).
[129] Act, s 473FA(2).
Reliance was placed upon AUH17 v Minister for Immigration and Border Protection.[130] There, Mortimer J accepted it to be a feature of Pt 7AA that the Authority may, and ordinarily should, conduct a fast track review without an interview. Further, her Honour accepted that while this may affect the quality of the decision making, this statement was made with reference to the opportunity of an applicant to satisfy the decision-maker by oral evidence as distinct from their “bare written statement”. AUH17 is distinguishable from the present case which does not turn upon a mere difference between a written statement and the absence of an oral hearing. To the contrary, the present case involves consideration of whether the Authority’s decision, or the process that it employed suffered in quality having regard to the circumstance that a delegate had already accepted the applicant to be credible, forthright, clear and plausible; whereas the Authority, on fast track review, proposed to reached a conclusion “on the papers” that the applicant had fabricated his claim to being sexually abused over a period of three hours by several SLA personnel. Further, in AUH17, the Authority did not make an express finding that the impugned evidence (a letter) was false.[131] The letter not being bogus, the decision did not suffer in quality in the manner that is suggested of the present decision. For that further reason, the decision is distinguishable from the present.
[130] [2018] FCA 388, [51]-[52].
[131] [2018] FCA 388, [45].
In contrast with Heath v Greenacre Business Park Pty Ltd, the Authority did not employ its finding that the applicant had fabricated his evidence as a basis to exercise, or refuse to exercise, its discretionary powers. Rather, the Authority having made, or at least provisionally made, the serious and critical finding of fabrication, proceeded to conclude its desktop review in circumstances where it knew the reasons and findings of the delegate and either failed to consider, or decided that it would not consider, to exercise its discretionary powers to get evidence or invite the applicant to give an oral account of the sexual abuse.
In DPI17, Griffiths and Steward JJ, and in her separate judgment, Mortimer J, recognised the particular difficulties in applying principles of legal unreasonableness within the statutory framework of Pt 7AA in circumstances that were analogous to the present case. The Full Court was concerned to determine which side of the line that case fell.
Several factors may be identified as supporting a conclusion that here, the Authority’s decision was tainted by legal unreasonableness.
The delegate made an affirmative finding that the applicant had been sexually assaulted by SLA personnel. However, that finding was not made in a vacuum. To the contrary, the delegate deliberately abstained from getting further information from the applicant in relation to the sexual assault by those personnel (which occurred over a period of three hours) because the delegate accepted that recounting the incident had been extremely distressing for him, and for that reason did not press him for further details of the assaults. The delegate accepted that the assaults occurred in January 2012, that the applicant had been assaulted by several Sri Lankan officers and that the assaults had occurred over a three hour period. The delegate accepted that the applicant’s decision not to divulge the assaults to anyone was consistent with country information about the stigma associated with such assaults. Contextually, the applicant was aged about 17 years at that time.[132] The findings above are also to be seen in the broader context that the delegate found the applicant to be a forthright and credible young man.
[132] First statutory declaration, [10].
I accept that in those circumstances, where the delegate was satisfied as to the sexual assaults and deliberately abstained from enquiring further, the delegate was necessarily deprived of a body of further evidence that might have been adduced from the applicant and addressed by the decisional record. Had that occurred, such further evidence would have been part of the review material which the Secretary would then have been obliged to provide to the Authority.[133] Accordingly, the delegate’s understandable tact and sensitivity on such serious and personal matters potentially deprived the Authority of material which would have otherwise been referred to it under s 473CB and which detail might have made the incident more credible to a decision-maker conducting a desktop review, who had not been there to observe the extreme distress that recounting the assaults had caused the applicant.
[133] Act, s 473CB(1)(a).
Further, it is clear that the Authority did have and did consider the delegate’s decisional record. Accepting that the Authority was not engaged in a review of the delegate’s decision and was undertaking its own desktop review, nonetheless, it follows that the Authority knew of the findings which had been made by the delegate and that the delegate had abstained from investigating the sexual assaults any further.
In this case, the Authority expressly had regard to the review material: [3]. In doing so, the Authority extracted the applicant’s claims from the information that had been referred to it: [5]. Relevantly, the Authority summarised the claim of sexual assaults as follows: “On one occasion he was detained for three hours and sexually assaulted”: [5].
The Authority recognised that the applicant provided two statutory declarations: [8]. The Authority summarised the declarations at [22] and in doing so noted that the claim of sexual abuse by several Sri Lankan personnel had not been mentioned in the first declaration “because the incident made him uncomfortable and distressed.” However, in summarising those declarations, it did not advert to the applicant’s statements in his first declaration at [15] that he had lived a very disrupted life, suffered psychological harm, continued to feel very stressed all the time and had been assisted in Australia with counselling. The Authority knew the applicant’s age and that he had given evidence to the delegate via an interpreter.
The Authority also detailed the applicant’s evidence given in the course of his SHEV interview in relation to his experience of being stopped at checkpoints and questioned by Sri Lankan authorities. The Authority recorded that during this interview the applicant had stated he had been taken to an SLA base on two occasions, first in mid-January to 2012 and later in February 2012. The Authority recorded that:
On the first occasion, the SLA took the applicant’s school identity card and asked him to go to the camp. He rode on his bicycle to the camp which is about 3 km from his home. While there he was sexually assaulted in three separate incidents by different SLA personnel. On the second occasion, the SLA again took the applicant’s identity card in the applicant made his own way to the SLA camp to retrieve it. SLA personnel returned his identity card, swore at the applicant, hit him on the back of the head, and let him go: [23].
After providing a summary of two post-SHEV interview statements, the Authority made a finding that the applicant’s evidence in relation to a number of his past experiences in Sri Lanka to be unconvincing: [28]. The Authority noted a number of inconsistencies in the evidence presented by the applicant at different times and, on that basis, characterised the inconsistencies as being significant and as undermining the applicant’s credibility: [28].
Inconsistencies which were identified by the Authority were that:
a)the applicant had resided with his grandparents for 5 years, because of problems his father was experiencing: [29];
b)the applicant had lost his Sri Lankan passport in 2012: [30];
c)the applicant had not been detained in 2012:[31];
d)the applicant had not come to the adverse attention of the Sri Lankan authorities between 2010 and 2012: [31];
e)the applicant had been the victim of a sexual assault:[31];
f)the applicant’s uncle was of ongoing interest to the Sri Lankan authorities for any reason:[32];
g)the applicant had been employed by his father in the way that he claimed: [34]; and
h)the applicant’s father had come to the adverse attention of authorities between 2009 and 2011: [36].
Those inconsistencies lead the Authority to conclude that the applicant was not recalling “a genuine personal experience”[134] when he gave evidence of having been taken to the SLA camp three times.
[134] Cf DPI17, (2019) 366 ALR 665, [71].
The Authority referred to those inconsistencies in the evidence and considered that cumulatively, they were significant and undermined the applicant’s credibility including as to his alleged detention and sexual assault. It was common ground that credibility matters were central to the disposition of the matter before the Authority, and also that the applicant had been found by the delegate to be a forthright and credible young man. Save as to the reference to inconsistencies in relation to a sexual assault and the finding that the applicant had not been detained in 2012, none of those inconsistencies bore directly upon the applicant’s account of the sexual assaults that he had claimed.[135]
[135] Cf DPI17, (2019) 366 ALR 665, [70].
As has been observed in other decisions, the court accepts human fallibility and that when persons are required to recount past events, perhaps on several occasions over different years and in different circumstances, especially circumstances which might induce pressure, a level of inconsistency might well be explicable and even excusable.[136] Equally, a “decision-maker might determine that any inconsistency or inconsistencies are properly a probative indication of either unreliability or a lack of credibility.”[137]
[136] Cf, DPI17, (2019) 366 ALR 665, [58] (Mortimer J) and case cited.
[137] Ibid.
In Minister for Immigration and Border Protection v WZARH,[138] the plurality recognised “the substantive value of the opportunity for an administrative decision-maker to clarify areas of confusion or misunderstanding, and form an impression based on personal observation as to whether an applicant is genuinely confused or seeking deliberately to mislead, may be especially important to a fair assessment of a claim to refugee status when English is not the applicant’s mother tongue and he or she is obliged to seek to communicate through an interpreter.” Those observations were, of course, made in the context of the consideration of, and through the lens of, procedural fairness. However, the Minister’s appeal was dismissed in circumstances where the decision of the second administrative decision-maker to form an adverse view of the respondent’s credibility was made upon consideration of the written materials and a transcript of interview by the first decision-maker[139] without ever interviewing the applicant.
[138] (2015) 256 CLR 326, [41] (Kiefel, Bell and Keane JJ).
[139] Who was not available to complete the review.
In the present case, the applicant appeared before the delegate with the assistance of an interpreter. The delegate’s findings as to the applicant’s overall forthrightness and credibility provided the foundation for the natural, convincing and plausible manner in which he had addressed various issues. Those matters also served to inform the later findings of the extreme and obvious distress that the applicant experienced when recounting the sexual assaults that the SLA personnel subjected to him to over a period of three hours. Cumulatively, these matters had led the delegate to not enquire or adduce further evidence from the applicant as to the circumstances or scale of the sexual assaults.
Relevantly, the Authority identified an inconsistency as to the date on which the applicant had been sexually assaulted and whether it had occurred before or after his uncle had come to live with his family: [31]. The Authority stated as follows:
Significantly, in the entry interview, the applicant said he had never been detained by the police or security organisations. However, I expect that if the applicant had been detained in an SLA camp in 2012 [as] claimed in the SHEV statement and SHEV interview, that he would have mentioned this period of detention when specifically asked in the entry interview. The applicant also provided conflicting evidence as to the number of times he was detained in the SLA camp and how he got to the camp. In his SHEV statement, he said he was taken from the checkpoint to the SLA camp ‘around three times.’ However, in the SHEV interview, he said he went to the SLA camp on two occasions and cycled there on his own accord. These inconsistencies lead me to conclude that the applicant was not recalling a genuine personal experience. For this reason, in light of the other credibility concerns in relation to the applicant’s other claims, I do not accept that the applicant was detained at the SLA camp as claimed. Further, I reject the applicant’s claim that he came to the adverse attention of the Sri Lankan authorities between 2010 and 2012, and that he was the victim of a sexual assault by SLA personnel. I conclude that the applicant has fabricated these claims in order to enhance his protection application.
Thus, the Authority concluded that the applicant had not been detained at the SLA camp as claimed and further rejected the claim that he had come to the adverse attention of Sri Lankan authorities between 2010–2012. In particular, the Authority did not accept that the applicant had been the victim of a sexual assault by SLA personnel and concluded that he had fabricated those claims so as to enhance his visa application: [31].
The Authority thereby made markedly different credibility findings from those made by the delegate. As was common ground, in doing so, the Authority had not sought further comment or information from the applicant before making that decision.
In assessing the quality of the fast track process and the outcome in its decision, in making its ‘finding along the way’ that the applicant had fabricated his claim, the Authority could and should have recognised that further evidence was not adduced by the delegate which may have had a significant bearing upon its provisional view that the applicant had given deliberately false evidence. In my view, it was no answer to say that the Authority had not made its factual findings by reference to the demeanour or conduct of the applicant in the hearing. It was not in contest that the sexual assault had been accepted by the delegate. Nor was it in contest that the delegate had made a positive decision not to inquire further in the circumstances. And finally, it was not in contest that the Authority made a finding of fabrication of a central claim. Counsel for the applicant submitted persuasively that in light of those matters, the absence of any express reference to whether the exercise of procedural powers had in fact been considered and the comparative brevity of the Reasons at [31], the court should infer that the Authority had failed to consider whether it should exercise those powers, or if it had, that it decided not to exercise such powers. I agree and consider that the failure to do so in this case was legally unreasonable.
Further, to have shifted from a position whereby the applicant had been found to be forthright and credible and of accepting his claim of sexual assaults by SLA personnel over a period of three hours, to one which the Authority provisionally viewed as being fabricated, gave rise to (and should have satisfied the Authority of the need to consider whether there were) exceptional circumstances.[140] As the Authority knew that the delegate had cut short the further investigation of that issue, such circumstances provided substantial justification for the Authority to seek new information before arriving at a concluded view that the applicant had fabricated his evidence.
[140]Act, s 473DD(a); BZC17 v Minister for Immigration and Border Protection [2018] FCA 902, [52] (Mortimer J).
As noted above, aside from the exhaustive statement of the natural justice hearing rule, a referred applicant is entitled to participate in a fast track review. In particular, a referred applicant may provide a written statement on why they disagree with the decision under review and on any claim or matter which he or she presented to the Department that was overlooked.[141] The applicant did so in this case.
[141]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].
While the Authority was proscribed from considering any new information unless the conditions provided by s.473DD(a) of the Act were satisfied, the Authority accepted that the applicant’s submission was not new information: Reasons [4]. This meant that the Authority was obliged to consider it. Those submissions were focussed in no small measure upon reasons why the delegate’s treatment of the claim to have a well-founded fear of harm based on the sexual assaults had been inadequate and erroneous. By contrast, beyond acknowledging that they had been received, the Authority does not appear to have given those submissions particular consideration, including in the context of its conclusion that the claim had been fabricated.
While the delegate accepted that the applicant’s claim of sexual assaults was supported by country information, this does not appear to have been acknowledged by the Authority. Country information cited by the Authority concerned other issues: [37], [39], [40], [42], [44]-[46].
I agree that once the Authority had progressed in the conduct of its desk top review to the point where it proposed to make the finding at [31] that the whole of that episode was a fabrication, it should at least have considered exercising its powers to obtain further information or comment. Its failure to do so was unreasonable. To accept that there is no affirmative obligation in the Authority to provide reasons respecting decisions made or not made in relation to procedural matters, does not compel a conclusion that the decision is untainted by legal unreasonableness. Instead, it serves to remind that the question of legal unreasonableness falls for evaluation in the specific circumstances of a particular case and requires a fact intensive consideration of the matter.
As Thawley J noted in CCQ17, there are no fixed categories of cases by reference to which a decision of legal unreasonableness is made. Rather, the question is one of the proper characterisation of the particular decision.[142] I am prepared to infer that the Authority had either failed to consider the exercise of power or that it in fact considered to exercise power and did not do so. In either event, I consider that both the process by which the decision was reached and the outcome of the fast track review was legally unreasonable.
[142][2018] FCA 1641, [42], [50], citing Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, [11] (Allsop CJ).
While Li was a claim for relief where the jurisdictional error was grounded upon a want of procedural fairness, that is not the appropriate lens through which to consider this challenge. Yet the court may infer that there has been a failure to exercise (or a decision not to exercise) a discretionary statutory power such as to warrant the conclusion that the substantive decision lacks an evident and intelligible justification. [143]
[143] Cf Li, (2013) 249 CLR 332, [76] citing House v The King (1936) 55 CLR 499, 505.
I am prepared to infer that the Authority had in some way failed to properly consider whether to exercise (or decided not to exercise) the discretionary powers to get new information or invite the applicant to comment further. Having regard to the process by which the Authority arrived at a conclusion that the applicant had fabricated the whole claim, I consider that, upon the particular facts of this case, the outcome of the fast track review was unreasonable or plainly unjust.[144]
[144] DPI17, supra (2019) 366 ALR 665, [45] and cases cited.
The process employed by the Authority and the outcome of its fast track review was in my opinion, tainted by legal unreasonableness. Insofar as it may be necessary to do so,[145] I further conclude that the finding of having given deliberately false evidence was clearly material to the substantive decision to refuse the application and accordingly, I conclude the decision was affected by jurisdictional error.
[145] DPI17, supra (2019) 366 ALR 665, [48]-[52]; cf [106] (Mortimer J).
Conclusion
The application should be allowed.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 13 November 2019
4
44
3