CFI17 v Minister for Immigration
[2019] FCCA 501
•20 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CFI17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 501 |
| Catchwords: MIGRATION – Immigration Assessment Authority – temporary protection (subclass 785) visa – matter remitted. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: Appellant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 |
| Applicant: | CFI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 1082 of 2017 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 3 September 2018 |
| Date of Last Submission: | 3 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 March 2019 |
REPRESENTATION
| Counsel for the applicant: | Mr Solomon-Bridge |
| Solicitors for the applicant: | Carina Ford Immigration Lawyers |
| Counsel for the respondents: | Mr Goodwin |
| Solicitors for the respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 1 May 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 9 February 2017 according to law.
A declaration be made that the decision of the second respondent was not made in accordance with law and is void and of no force and effect.
The first respondent pay the applicant’s costs in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1082 of 2017
| CFI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (“the Act”) in which the applicant seeks judicial review of the decision of the second respondent, the Immigration Assessment Authority (“the Authority”) made on 9 February 2018. In its decision, the Authority affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (“the Minister”) made on
1 May 2017 refusing to grant the applicant a protection (class XA) visa (“the visa”).
The Authority’s decision is found in the court book at pages 238 to 249.
Summary
For the reasons that follow, ground 3 of the applicant’s application filed 25 May 2017 amended 6 August 2018 and 7 August 2018 is made out, but grounds 1, 2 and 4 are not made out.
Background
The applicant is a citizen of Vietnam and was born on
25 September 1987.[1] He left Vietnam on 29 May 2013 and arrived in Australia on 17 June 2013 as an irregular maritime arrival.[2] On
21 September 2016, the applicant lodged an application for the visa.
[1] Court book page 13.
[2] Court book page 11.
On 9 February 2017, a delegate of the Minister refused the applicant’s application.[3]
[3] Court book pages 189 to 205.
On 1 May 2017, the Immigration Assessment Authority affirmed the delegates’ decision not to grant the applicant the visa and provided its reasons for that decision.[4]
[4] Court book pages 238 to 249.
By his amended application filed on 7 August 2018, the applicant seeks judicial review of the Authority’s decision.
The applicant’s claims
During his induction interview on 23 July 2013 when asked about the reasons for his travel to Australia, the applicant said:
…the shop where I was working as a motorbike mechanic was lost due to the widening of the road. So therefore, I didn’t have a premises to conduct my business and it was at that time that my parents found out about the upcoming trip and they agreed to let me go.[5]
[5] Court book page 19.
In addition in answer to a question as to whether there were any other reasons why he left Vietnam, the applicant said ‘Life in Vietnam is difficult, and you do not earn enough to survive.’[6] The interview record also states that the principal reason to leave was ‘lack of economic opportunity’. [7]
[6] Court book page 19.
[7] Court book page 19.
Aside from noting his religion as Catholic and that he would like to go to church on a Sunday, the applicant made no claims relating to his religion in his initial interview in July 2013.
By letter dated 20 August 2013, the applicant provided further information about his claims. In that document he said that he came to Australia with two main purposes: ‘to look for a new life and freedom of human rights.’[8] In that correspondence he went on to say:
[8] Court book page 30.
Looking for freedom of human rights: including personal freedom and religious freedom
The rights of personal freedom and religious freedom for us weren’t guaranteed. For all works and careers related to the government or politics, we had no ability to choose, although we could be employed but at a low level only. If we want to work in a career that is related to the state or politics, we had to attend the Vietnamese Communist Party and most importantly we had to quit our Catholic religion. As Catholics we can’t leave our religious beliefs. Therefore, I and some friends left our families and our country to come here to have human rights and to improve our lives.[9] (emphasis added)
[9] Court book page 30.
Similar comments were made in further correspondence from the applicant dated 5 September 2013.[10]
[10] Court book pages 31 to 32.
In a further letter from the applicant which is undated, the applicant made the following opening comment:
When I was in Christmas Island, I presented the reasons why I had to seek refuge but I was afraid that if there were anything that I presented, related to the politics, it would be revealed to the Vietnamese police so I did not dare say. Now I know that my profile will be kept secret and my profile failed in the first review so I can do nothing but tell the truth.[11]
[11] Court book page 35.
The applicant then went on to expand upon the reasons why he left Vietnam including:
a)About two months before he left Vietnam, his garage was demolished and when he did not agree to the compensation offered by government officials for the land which was to be used to extend the road, he was beaten, insulted and abused.
b)He was harassed from 2009 to 2012 about participating in military service, ran away several times and ‘after each time, the government came to force my family to pay a fine.’[12]
c)In 2012, he participated in the communal core militia to avoid the military service but then he decided to quit, ‘I was a Catholic so I could not accept that kind of treatment.’[13] He said that he then was threatened and bullied to join the army.
[12] Court book page 35.
[13] Court book page 35.
Also in that letter, the applicant stated that in recent months, the district police approached his family and asked questions about the applicant’s whereabouts.
Similar claims were repeated in the applicant’s application for a protection visa dated 19 September 2016, although he does not refer to his religion in this document. He also claims in this document that he fears that he will be mistreated by the authorities in Vietnam for having left illegally.[14]
[14] Court book pages 61 to 85.
Before the delegate, the applicant provided information from his father and uncle regarding his claims, various country information reports by human rights non-government organisations and media reports about the treatment of returnees.[15]
[15] Court book pages 113 to 167.
On 9 February 2018, the delegate refused to grant the applicant a protection visa. The delegate’s reasons are found at pages 189 to 205 of the court book. In summary, the delegate refused the applicant’s application for a protection visa.
In relation to the applicant being a Catholic, the delegate accepted that the applicant was a Catholic. However went on to say:
In his statement of 1 October 2013 the applicant claimed that as a Catholic he could not accept the bad way the Vietnamese government treated its people. But asked three times at the PV interview why he feared returning to Vietnam, the applicant made no claims of fear on the basis of his religion[16] (Emphasis added).
[16] Court book page 192.
The delegate dealt with the applicant’s claims regarding the acquisition of his garage and accepted that the applicant had conflict with the authorities regarding this issue.[17]
[17] Court book page 193.
The delegate also considered the applicant’s claims relating to his military service.[18]
[18] Court book pages 193 to 197.
The delegate also considered the applicant’s claim that his parents were interrogated in relation to his illegal departure but was not satisfied that this claim was made out.
The Authority’s reasons
On 1 May 2017, the Authority affirmed the delegate's decision not to grant the applicant a protection visa. The Authority had regard to a submission provided by the applicant's representatives on 7 March 2017[19] and found that the submission was argument rather than new information and considered it.[20]
[19] Court book pages 229 to 233.
[20] Court book page 239 at paragraphs [3] to [5].
The following summary of the Authority’s decision has also been taken from the Minister’s outline of submissions.
The Authority set out the background to the applicant's claims at paragraphs 6 to 11[21] and then made a number of factual findings at paragraphs 12 to 18.[22] Relevantly, the Authority:
a)was satisfied that the applicant’s religion was Roman Catholic;[23]
b)stated that there had been a significant expansion of the applicant’s claims for protection over recent years;[24]
c)accepted that the applicant's business was destroyed due to land acquisition but, as the applicant had not repeated his claim that he was beaten by government officials and his uncle had not given such evidence, the Authority found that to be a fabrication;[25]
d)in relation to the claims about his military service, found that: the applicant was not required to complete military service; did not hide from army recruiters, did not join the communal core army to avoid conscription; or an arrest warrant was issued due to not undertaking military service;[26] and
e)accepted the applicant departed Vietnam illegally and that his details were included in the a departmental "data−breach" in February 2014.[27]
[21] Court book page 239 at paragraphs [6] to [7]; and page 240 [7] to [11].
[22] Court book pages 241 to 242.
[23] Court book page 241 at paragraph [12].
[24] Court book page 241 at paragraph [12].
[25] Court book page 241 at paragraph [13].
[26] Court book pages 241 to 242 at paragraphs [14] to [16].
[27] Court book page 242 at paragraph [17].
In assessing whether the applicant met the refugee criterion, the Authority found that:
a)the applicant had not claimed to fear harm as a Catholic and therefore there was not a real chance he would be harmed for this reason;[28]
b)as the Authority had not accepted that the applicant was required to complete military service and was now over conscription age, this was also not a basis for a well−founded fear of persecution;[29]
c)as the applicant was issued with a "laissez passer" in 2013 to return to Vietnam, the Vietnamese authorities would have been aware that he was in immigration detention in Australia without a passport. The Authority also accepted that the applicant's information was available during the "data breach", but considered the possibility that the Vietnamese authorities had accessed or obtained that information to be "highly remote" and would not have, in any event, provided any information which the Vietnamese authorities were unaware.[30]
[28] Court book page 243 at paragraph [21].
[29] Court book page 243 at paragraph [22].
[30] Court book pages 243 to 244 at paragraph [23].
Further, based on independent country information and as the applicant had paid money to people smugglers, the Authority found the applicant would be viewed as a victim of criminal activity rather than as a criminal who would face penalties for departing Vietnam illegally. As the applicant (and his parents) were not considered by the authorities to be people smugglers, the Authority was not satisfied that the applicant faced a real chance of harm on the basis that: he departed Vietnam illegally; spent time in Australia; or unsuccessfully sought asylum in Australia. The Authority also found that the imposition of a fine or a brief period of detention would not constitute serious harm or discriminatory conduct.[31]
[31] Court book page 244 at paragraphs [24] to [25].
The Authority relied on its factual findings and assessment against the refugee criterion in finding that the applicant did not meet the complementary protection criterion.[32]
[32] Court book pages 244 to 245 at paragraphs [27] to [29].
Grounds of review
Although the applicant raised four grounds of review, in both the written submissions filed in this matter on the applicant’s behalf and also at the hearing, the applicant’s counsel addressed the substance of those four grounds under two headings, namely:
a)failure to consider claims – ground 3; and
b)new issues in review and departure from reasons of delegate – grounds 1, 2 and 4.
I will deal with the grounds in this manner.
Failure to consider claims - ground three
The applicant’s third ground of review is:
The Second Respondent committed jurisdictional error by failing to consider an express, alternatively, implied claim and/or a component integer thereof.
Particulars
The applicant made claims concerning (or made claims which contained component integers concerning) his status as a practising Roman Catholic which the Second Respondent did not consider or dispose of.
By ground 3, the applicant alleges that the Authority failed to consider his claim, or integer of a claim, that he feared harm on the basis of his religion as a Catholic.
It is common ground that the Authority is required to consider both express and ‘unarticulated’ or ‘implied’ claims. That is the Authority is required to consider claims which, even if not articulated by an applicant as claims for protection, are matters which nonetheless arise ‘tolerably clearly from the material’ before the Authority.[33]
[33] NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; 219 ALR 27 at [55] and [68].
Whilst these general principals are not in dispute, counsel for the Minister referred to the decision in AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 in which the Full Court of the Federal Court considered the application of those principles to cases under Part 7AA of the Act.
Relevantly, the Full Court in that case stated (case references omitted):
17.By s 473CC of the Migration Act, the IAA is required to ‘review’ the decision referred to it pursuant to s 473CA. In performing its review the IAA is provided the material identified in s. 473DB of the Migration Act.
18.It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act … affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:
·The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers …
·The Tribunal is only required to consider such claims where they are either:
(a) The subject of substantial clearly articulated argument, relying on established facts; or
(b) Clearly emerge from the materials …
·These principles apply to the IAA regime …
·As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67] – [68]):
(a) Such a finding is not to be made lightly …
(b) The fact that a claim might be said to arise from materials is not enough …
(c) To clearly emerge from the materials, the claim must be based on “established facts” … In SZUTM, Markovic J said:
37.…A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.
38. Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35] the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach; the decision in NABE must be read in light of the principle set out in Dranichnickov.
(a) While there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party … and
(b) Understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.[34]
[34] AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 at [17]-[18].
It was submitted on behalf of the applicant that when regard is had to the applicant’s materials as contained in the court book, the applicant did make claims based on his Catholic religion. In particular, the applicant referred to the following:
a)he identified his religion immediately on his arrival in Australia and indicated that he would like to attend church on Sundays;[35]
b)he said one of the main purposes in leaving Vietnam was to ‘find freedom’[36] and in that referred to the fact that as a Catholic certain positions were not open to him unless he leave Catholicism;[37]
c)he reiterated these claims in other documents;[38]
d)he provided Country information which went to the issue of the lack of freedom of religion in Vietnam and its dismal record in this regard;[39]
e)the delegate recorded as one of the claims by the applicant that he was seeking ‘personal freedom and religious freedom are not guaranteed’[40]; and
f)in submissions to the authority, the applicant through his agent drew attention to discrimination the applicant faced as a Catholic.[41]
[35] Court book page 13.
[36] Court book page 31.
[37] Court book page 31.
[38] Court book pages 30 and 33.
[39] Court book pages 121, 123, 130, 135 and 152.
[40] Court book page 190.
[41] Court book page 230.
On this basis, the applicant argued that he either made express claims on the basis of his Catholic religion or at the very least, there were unarticulated claims which arose clearly from the material.
In response, it was submitted on behalf of the Minister that the authority did consider the applicant’s claim to fear harm on the basis of his religion at paragraph 21 of the court book where it stated:
It is common ground that the applicant is a Roman Catholic. He has not claimed at any point to fear persecution due to this and I find that there is not a real chance that he will be seriously harmed due to his religion[42] (emphasis added).
[42] Court book page 243 at paragraph [21].
It was submitted further that this paragraph is evidence that the Authority considered the subjective element of whether the applicant had a well-founded fear of persecution. Having concluded that he did not have such a subjective element, there was no obligation on the Authority to go on and consider whether there the objective element was made out, namely whether any such fear was well-founded and was also satisfied.
Moreover, it was submitted on behalf of the Minister that whether the subjective element was satisfied was a question of fact for determination by the authority and that there was a logical and probative basis for the finding made. It was said that the authority had before it:
a)The delegate’s reasons, which relevantly stated that at when:
…asked three times at the PV interview why he feared returning to Vietnam, the applicant made no claims of fear on the basis of his religion. I am satisfied the applicant does not fear harm on the basis of his religion.[43]
b)In his arrival interview, the applicant stated that he was not a member of any particular social or religious group (as distinct to stating his religion).
c)Moreover, as the Authority rejected that the applicant joined the communal core army at all, there was no need for it to consider whether the applicant's religion played a part in him deserting the communal core army.
[43] Court book page 192.
It was further submitted that the comment by the applicant's representatives in its submission on the applicant’s behalf to the Authority that ‘the only form of work he is able to obtain is self−employment’[44] must be seen in the context of what the applicant actually stated. In his supplementary statements, the applicant stated that he was ‘not allowed to work freely in careers related to politics; if we wanted to apply for those jobs, we had to join the Vietnamese Community Party as well as leave Catholicism.’[45]
[44] Court book page 230.
[45] Court book page 31.
It was said that these broad statements, divorced from any suggestion that the applicant himself had attempted to gain employment in politics or the public service, did not establish that the applicant claimed to subjectively fear persecution on the basis of his religion. This is particularly so in circumstances where these fears were not raised in the protection visa (“PV”) interview.
Counsel for the Minister also argued, in the alternative, that the applicant's assertion to fear harm as a Catholic was not based on established facts[46] or probative material[47] or was not a submission of substance[48] such to give rise to an obligation on the Authority to consider a specific claim to fear harm on the basis of religion (though the first respondent's primary argument is that it in fact did so).
[46] Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088; 197 ALR 389.
[47] Appellant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; 236 FCR 593; 75 ALR 630; 75 ALD 630 at [45].
[48] SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365; 142 ALD 150 at [82].
The applicant also argued that if the court were to conclude that the authority did ‘consider’ his claims regarding religion, then
paragraph 21 of the authority’s reasons do not disclose that the authority grappled with the claim in the requisite sense. That is, it did not engage in an active intellectual process in disposing of the claim.[49][49] MZZQI v Minister for Immigration and Border Protection [2015] FCCA 2177 at [35] and cases cited therein; see also Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431; 126 ALD 547 at [39].
Consideration
Having considered the submission outlined above, I find that this ground is made out for the following reasons:
a)Paragraph 21 is the only paragraph in the Authority’s reasons in which reference is made to the applicant’s religion and any possible claims relating to that; and
b)The Authority states that the applicant did not claim to fear persecution due to his religion.
c)The Authority says:
He has not claimed at any point to fear persecution due to this and I find that this is not a real chance that he will be seriously harmed due to his religion.[50]
d)whilst it is correct that the delegate’s decision does record the fact that the applicant when asked (three times) at the protection visa interview why he feared harm, he did not make any claims of fear on the basis of his religion, there was other material before the Authority in which the applicant did make such a claim. See in particular the matters set out at paragraphs 35.b), 35.c), 35.e) and 35.f) above.
e)In the submission made on the applicant’s behalf on 7 March 2017, his representatives relevantly say:
…as (the Applicant) has explained through his application process that he was self-employed mechanic whose business was acquired by the authorities. (The applicant) has also explained that due to the fact he is a Catholic the only form of work he is able to obtain is through self-employment. This is due to the fact that the Vietnamese authorities are Communist and communism is at odds with Catholicism. Therefore, when his business was forcefully acquired Mr Nguyen faced consequences more significant than those which would have affected a non-Catholic able to obtain work within the various areas of employment controlled by the Communist Party.[51]
[50] Court book page 243 at paragraph [21].
[51] Court book pages 229 to 233.
In oral submissions, counsel for the Minister argued that a proper reading of the applicant’s material did not give rise to a claim that the applicant had a subjective fear of persecution on the grounds of his religion.
I agree with the submission that the country information is not relevant to the question of whether the applicant had a subjective fear of persecution on this ground and that such information could only go to the question of whether any such fear was well founded.
Having said that, I have some difficulty with the remainder of the submissions made on behalf of the Minister in relation to this ground. First it was said that to the extent that the submission provided on behalf of the applicant,[52] the applicant’s representative, mischaracterises the applicant’s claim and in particular, the following statement by the applicant’s representative misstates the actual claims made by the applicant:
The applicant has also explained that due to the fact he is a Catholic, the only form of work he is able to obtain is through self-employment. This is due to the fact that the Vietnamese authorities are communist and communism is at odds with Catholicism.
[52] Court book pages 229 to 230.
I am not persuaded by this submission. The applicant is represented. Any submission made by the applicant’s representative ought properly be understood to be submissions made by the applicant. Whilst it may have been appropriate for the Authority to have considered this claim and whether it was consistent with other claims made elsewhere by the applicant, and after such consideration concluded that it was not satisfied, either that the applicant had a subjective fear of persecution or that such fear was not well founded, that does not detract from the fact that this raises a claim which the Authority ought to have considered. This is particularly so, when this claim is seen in the context of the other references to his concerns about his religion.
Paragraph 21 of the Authority’s decision is not evidence of the Authority considering the subjective element of the applicant’s claim; rather it is a statement that the applicant made no such claim.[53]
[53] Court book page 243 at paragraph [21].
There is no active intellectual engagement with this claim by the Authority in the sense required. At its highest, the Authority simply restates the conclusion reached by the delegate. It does not in any way engage with the apparent inconsistency between what is noted by the delegate to have occurred in the protection visa interview and the other claims made by the applicant in his written material.
For the reasons set out above, I am satisfied that the applicant did make a claim of fearing persecution on the basis of his religion, or at the very least such a claim clearly emerged from the materials in the NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1; 219 ALR 27 (“NABE”) sense.
The Authority was obliged to then consider this claim.
Whilst it is correct that whether the applicant had a subjective fear of persecution was a question of fact for the Authority, an incorrect assertion by the Authority that no such claim was made or reasonably arose gives rise to a finding of jurisdictional error.
For each of these reasons, this ground is made out.
New issues in review and departure from reasons of delegate – grounds 1, 2 and 4
Having come to the conclusion I have in relation to ground 3, it is not strictly necessary for me to consider these additional grounds. However, given that the matters were fully argued before me, I will also deal with them.
The applicant’s first ground of review is:
The Second Respondent denied the Applicant procedural fairness in its failure to alert the applicant to new issues arising before the Authority of which the applicant was not previously aware.[54]
[54] Applicant’s amended application filed 7 August 2018.
The applicant’s second ground of review is:
The Second Respondent denied procedural fairness because the Authority’s reasoning departed from the Department’s reasoning, resulting in a practical injustice to the Applicant.[55]
[55] Applicant’s amended application filed 7 August 2018.
The applicant’s fourth ground of review is:
The Second Respondent acted unreasonably by failing to consider exercising, alternatively by deciding not to exercise, its powers to obtain new information.[56]
[56] Applicant’s amended application filed 7 August 2018.
Particulars
The Second Respondent made adverse findings on matters which had been accepted by the delegate of the First Respondent, concerning (a) the Applicant’s having been beaten and insulted by the authorities in connexion with the resumption of land on which his business was based; and (b) the Applicant’s having avoided his military service.[57]
[57] Applicant’s amended application filed 7 August 2018.
In oral submissions, counsel for the applicant acknowledged that although ground 1 and 2 are drafted in terms of procedural fairness, these grounds together with ground 4 ought to be viewed ‘through the lens of unreasonableness rather than procedural fairness. [58]
[58] Transcript page 12 at line 8.
By grounds 1, 2 and 4, the applicant alleges that the Authority acted unreasonably by not considering the exercise of, or exercising, its discretion to seek new information about certain issues arising before the Authority.
In considering whether the Authority has been unreasonable, regard must be had to the principles summarised in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28; 240 FCR 158:
[58]First, the concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making: …
[59]Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory … It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: … Nor does it involve the Court remaking the decision according to its own view of reasonableness…
[60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an “outcome focused” conclusion without any specific jurisdictional error being identified: …
[61]…
[62]Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of “decisional freedom” within which a decision-maker has a genuinely free discretion: … Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: … Such a decision falls within the range of possible lawful outcomes of the exercise of the power: …
[63]Fifth, in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute… The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making… The evaluation is also likely to be fact dependant and to require careful attention to the evidence…
[64]Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable…Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable… However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes…
[65]Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary … That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. … The expressions that have been utilised include decisions which are “plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise: … Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
In this case, it was argued that before making certain findings, which were contrary to the findings made by the delegate, the authority had a duty to consider whether it was appropriate to seek further information in relation to those matters. In particular, the applicant relies upon the finding by the authority that:
a)the claim that the applicant had been beaten by government officials was a fabrication;[59] and
b)the applicant had not been required to complete military service so that his claim that he would be fined or gaoled by the government on return for having evaded that service ought to be rejected;[60]
in circumstances where contrary findings were made by the delegate.
[59] Court book page 241 at paragraph [13].
[60] Court book page 243 at paragraph [22].
It was submitted for the applicant that it was unreasonable for the authority to:
…depart so markedly from the substratum of facts accepted by the delegate without at least considering the exercise (or without exercising) its powers to obtain further information and comment on those matters. [61]
[61] The applicant’s outline of submissions filed 6 August 2018, page 4 at paragraph [16].
The legislative framework established in part 7AA of the Act was recently summarised by the plurality of the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALR 481; 353 ALR 600 (“Plaintiff M174”) at paragraphs [6] to [38].
In particular:
a)the Authority when conducting a review ... is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it…the task of the Authority under
s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. [62]b)Any new information sought by the Authority must be information not before the Minister or delegate at the time of decision and be considered relevant by the Authority.[63]
c)However, before it can have regard to any such new information, the Authority must comply with section 473DD and, where applicable, section 473DE of the Act. Even if the Authority finds that there are exceptional circumstances under section 473DD(a), that information can only be considered if it additionally meets the criteria in either section 473DD(b)(i) or (ii). A criterion includes that the new information was not, and could not have been, provided to the Minister.[64]
[62] Plaintiff M174 /2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALR 481; 353 ALR 600 at [17].
[63] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALR 481; 353 ALR 600 at [24]
[64] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALR 481; 353 ALR 600 at [27]; and [29] to [31].
As noted in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551.[65]
…the starting point must be the terms of Pt 7AA and, subject to Pt 7AA, the obligation on the Authority to review a fast track reviewable decision by considering the review material without accepting or requesting new information and without interviewing the referred applicant.
[65] DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [69].
Having regard to that statutory framework, I am not satisfied that the Authority acted unreasonably in reaching the conclusions that it did, even where those conclusions were contrary to those reached by the delegate or in its failure to consider or to exercise its discretion to seek new information.[66]
[66] See DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [72]-[75].
The applicant relies on the case of Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 (“CRY16”) in which it was held that it was unreasonable for the authority not to consider giving the applicant in that case an opportunity to address the issue of relocation.
It was submitted on behalf of the Minister that CRY16 is easily distinguishable from this case. I agree with this submission.
The unreasonableness of the failure to consider exercising the discretion to obtain or consider new information in CRY16 arose because of the particular circumstances of that matter whereby the entirely new issue of relocation was considered by the Authority in circumstances where the delegate had not raised that issue. The Full Court found it was legally unreasonable for the Authority not to consider getting documents or information from the applicant in circumstances where relocation was not in issue before the delegate but was determinative before the Authority and the issue depended on the particular circumstances of the applicant. The Authority was faced with a new and additional determinative issue that had not previously arisen and, in those circumstances, the applicant had not had a meaningful opportunity to be heard. Accordingly, seeking new information was the only way the Authority could hear from the applicant on that issue.
It was further submitted on behalf of the Minister that the applicant's complaint regarding how the Authority dealt with the "Applicant's imprisonment fears" in relation to complementary protection is no relevant given the Authority’s rejection of the claim that the applicant was ever required to complete military service, there was no need to consider imprisonment claims for evasion of military service because the Authority did not accept there had been any evasion of or any need to evade military service.
I agree with this submission.
For each of these reasons, I find that grounds 1, 2 and 4 are not made out.
Conclusion
Having concluded that ground 3 is made out, the applicant’s application for judicial review is granted and orders made in the terms sought by the applicant in the amended application filed 7 August 2018.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 20 March 2019
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