CMH16 v Minister for Immigration
[2017] FCCA 2433
•17 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CMH16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2433 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Iran because of events relating to the breakdown of her marriage in Australia – applicant disbelieved in part and other fears found not to be well-founded – whether the Authority misapplied the “real chance” test or failed to comply with its procedural code or exercised its powers in an unreasonable way or whether the Authority acted on an invalid ministerial certificate considered – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 65, 360, 422B, 424A, 424AA, 425, 427, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473FA, 473GB Migration Regulations 1994 (Cth) |
| Cases cited: AEK15 v Minister for Immigration (2016) 244 FCR 328 CMR16 v Minister for Immigration & Anor [2017] FCCA 1715 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 DJO16 v Minister for Immigration & Anor [2017] FCCA 944 DVE16 v Minister for Immigration & Anor [2017] FCCA 2084 DZU16 v Minister for Immigration & Anor [2017] FCCA 851 Minister for Immigration v BBS16 [2017] FCAFC 176 Minister for Immigration v CZBP [2014] FCAFC 105 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration v Rajalingam (1999) 93 FCR 220 Minister for Immigration v SZMOK (2009) 257 ALR 427 Minister for Immigration v SZQRB (2013) 210 FCR 505 Minister for Immigration v SZRKT (2013) 212 FCR 99 Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZGUR v Minister for Immigration (2011) 241 CLR 594 WACO v Minister for Immigration [2003] FCAFC 171 WAJR v Minister for Immigration (2004) 204 ALR 624 Waterford v Commonwealth (1987) 163 CLR 54 Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 |
| Applicant: | CMH16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2405 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 5 & 10 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D'Ambra Murphy Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 11 August 2016 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Immigration Assessment Authority to reconsider according to law the review referred to it.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2405 of 2016
| CMH16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 11 August 2016. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Iran. She arrived in Australia by boat in August 2013. On 11 August 2015 she applied for a protection visa.[1] The application was made on the basis of her membership of her husband’s family unit. She made no claims of her own at that time. On 15 June 2016, the delegate decided to refuse the application.[2] Only her husband was interviewed by the delegate.[3]
[1] Court Book (CB) 13
[2] CB 192 – 227
[3] CB 533 [15]
On 17 June 2016, the applicant was notified that the delegate’s decision had been referred to the Authority for review.[4]
[4] CB 480
By the time of the referral, the applicant had separated from her husband and had new claims to fear harm in Iran based on their separation and the punishment in Iran for adultery, and threats she had received from her husband and from her own family. In support of those claims she provided the following new material:
a)a statutory declaration made by the applicant;[5]
b)translations of emails from her brother, said to contain threats;[6]
c)a statutory declaration made by the applicant’s new partner;[7]
d)statutory declarations made by two witnesses to an incident involving the applicant’s husband;[8] and
e)a temporary protection order issued by the Brisbane Magistrates Court, prohibiting the applicant’s husband from approaching within 100 metres of the applicant or her residence, amongst other orders.[9]
[5] CB 502 – 504
[6] CB 509, 510
[7] CB 513 – 514
[8] CB 515 – 516, 517
[9] CB 523
On 11 August 2016, the Authority decided to affirm the delegate’s decision.[10]
[10] The decision record is at CB 531 – 542
The Authority’s decision
The Authority was satisfied that the new material could not have been provided to the delegate, and that exceptional circumstances justified considering the material pursuant to s.473DD of the Migration Act 1958 (Cth) (Migration Act).[11]
[11] [16]
The Authority considered that material, but was not satisfied that any of the claims were made out. It made the decision on the papers, and did not seek to call any of the witnesses put forward by the applicant. Nor did it put the applicant on notice of any concerns about that material.
The new material contained, in particular, the following claims made in statutory declarations:
a)the applicant’s husband had attacked the applicant and her friends on 16 April 2016, after he had eavesdropped on a conversation regarding the possibility of the applicant seeing other men.[12] This claim was supported by statutory declarations by each friend who was present;[13]
b)the applicant’s husband had made numerous threats to the applicant, and attacked her, once he had learned of the applicant’s new relationship.[14] This claim was also supported by the temporary protection order;
c)the applicant’s fear that her husband would harm her in Iran, or denounce her to the authorities as an adulterer;[15]
d)the applicant’s fear that her husband’s family would harm her, or denounce her to the authorities in Iran;[16] and
e)the applicant’s fear that her own family, and in particular her brother, who had made threats by email, would harm her or denounce her to the authorities.[17] This claim was supported by translations of emails from the applicant’s brother.[18]
[12] CB 503 [19] – [25]
[13] CB 515, 517
[14] CB 503 [30]
[15] CB 504 [40] – [41]
[16] CB 504 [34]
[17] CB 504 [39]
[18] CB 509
The Authority accepted that the applicant was “currently in a relationship with someone else”. It also stated that there was “no evidence” to indicate the relationship was sexual.[19] The Authority was prepared to accept that the applicant might be “perceived” to have had a sexual relationship outside of her marriage.
[19] [25]
The Authority referred to the evidence in relation to the attack which occurred on 16 April 2016. The Authority recorded the claim as that the husband “jumped over” a fence and started verbally abusing the applicant and her friends[20]. In fact, the evidence was that the husband attempted to jump the fence but was unable to do so, and so let himself in the front door with the keys to the house that he still possessed.[21]
[20] [17] last bullet point
[21] CB 517 [22], [3], bullet point 6
The Authority doubted that this incident occurred, including for the reason that it was “implausible” that the applicant’s husband “was able to jump over the fence as claimed”.[22]
[22] [28]
The Authority accepted, however, that the applicant may have been confronted by her husband and that a protection order had been issued. The Authority placed some significance on the fact that the order was a temporary order.[23]
[23] at [28]
At [28] of its reasons, the Authority stated that it was “not satisfied” that the applicant’s husband will pursue her or cause her any harm upon her return to Iran.
The Authority was “not satisfied” that the family of the applicant’s husband would cause her harm, because the threat had come through a third party, and no direct threats had been made by her husband’s mother herself.[24] The Authority also took into account the fact that the husband had described himself, in an earlier temporary protection visa interview, as having a strong opposition to the Iranian regime, and that his family held the same view.[25]
[24] [30]
[25] [33]
The Authority was not satisfied that the applicant’s own family would harm or denounce her, based on her statements at an arrival interview suggesting that she came from a “fairly liberal family, in the context of Iran”.[26] It seems that the Authority inferred the family’s liberality from her education, work experience and history. It found that it was “not satisfied of the genuine nature of the emails which the applicant has presented to the [Authority] from her brother”.[27]
[26] [35]
[27] [35]
The current proceedings
These proceedings began with a show cause application filed on 6 September 2016. The applicant now relies upon an amended application filed by leave on 9 October 2017. The grounds in that application are:
1.The Assessment Authority (AA) made a legal error in that it misapplied or misunderstood the 'real chance' test.
Particulars
(a) When the AA's reasons are read as a whole, it is clear that many of its findings regarding the possibility of future harm were made on the balance of probabilities, or some other standard which was more onerous than the 'real chance' test it was bound to apply.
(b) The AA did not ask itself the question 'what if I am wrong' when the real chance test required it to do so.
(c) See, eg, paragraphs [27], [28], [30], [33], [35], [36], [40].
2. The AA denied the applicant procedural fairness, or alternatively failed to apply the mandatory procedural requirements of Division 3 of Part 7AA of the Migration Act 1958 (Act), or alternatively acted in a way that was legally unreasonable.
Particulars
(a) The decision under review by the AA was made on 15 June 2016.
(b) After that decision, the applicant made a new claim for protection arising from her recent separation from her husband and her new relationship. She claimed to fear persecution or harm if returned to Iran from both his family and her own family who disapproved of her new relationship.
(c) In support of the new claim, the applicant provided to the AA emails from her brother containing threats, which were sent after the decision under review was made.
(d) The AA found at [9] that the emails were “new information” which it could consider pursuant to s 473DD of the Act.
(e) The AA was not satisfied, however, that emails put forward by the applicant in support of her claims were genuine: at [35].
(f) The AA did not raise with the applicant the fact that the genuineness of the emails might be an issue in the review, and therefore denied the applicant procedural fairness.
(g) The IAA did not exercise any inquisitorial powers in relation to the new information.
(h)Further, Division 3 of Part 7AA of the Act, and in particular section 477DD(b)(ii) of the Act, required that the applicant be given a meaningful opportunity to satisfy the AA that the emails were credible, which in these circumstances required the AA to raise the issue of the genuineness of the emails with the applicant and offer her an opportunity to respond and, if necessary, provide further evidence to support their genuineness.
(i) Alternatively, if the provisions of Division 3 of Part 7AA prevented the AA from raising with the applicant the issue of the genuineness of the email, or from receiving further information from the applicant, then the AA ought to have considered whether to remit the matter to a delegate so that the issue could be determined in a fair way.
(j) Further and alternatively, it was not open, or was legally unreasonable, for the AA to reject the emails as forgeries without raising the issue with the applicant, or exercising inquisitorial powers, or considering the exercise of those powers.
3. The AA failed to consider, or properly consider in accordance with its duty to conduct a 'review' under s 473CC(1), critical evidence put forward by the applicant.
Particulars
(a) Statutory declaration of Atena Farjami made on 12 June 2016;
(b) Statutory declaration of Atefa Yavari made on 15 July 2016.
(c) The AA referred to these statutory declarations as “letters” at [7] and [15].
(d) The AA did not consider or properly the statutory declarations (or the applicant’s statutory declaration) when considering the applicant's claim to have been attacked by her husband in April 2016 at [28]. This is to be inferred from:
(i) the absence of any reference to the statutory declarations in paragraph [28],
(ii) the fact that the AA docs not deal with the explanation given by Atena Farhami explaining why it was plausible that the husband ‘jumped out’ at a particular point in time;
(iii) the fact that the AA misunderstood the claim, believing that the husband was alleged to have ‘jumped over’ the fence (which was not the claim), something that the AA found was implausible as he would be able to do so; and
(iv) the failure anywhere in the AA's reasons to consider or evaluate the fact that the statutory declarations were sworn evidence.
4. The IAA acted upon a certificate invalidly issued under s 473GB of the Act, or alternatively denied the applicant procedural fairness.
Particulars
Certificate dated 16 June 2016 at Court Book page 478.
(errors in original)
In addition to the court book filed on 7 November 2016, I have before me as evidence the affidavit of Katherine Nicole Hooper made on 4 October 2017, to which are annexed documents purportedly covered by a certificate purportedly issued under s.473GB of the Migration Act. The Minister makes no claim of privilege in relation to those documents.
Both the applicant and the Minister filed written submissions prior to the trial of this matter which commenced on 5 October 2017 and concluded on 10 October 2017. Counsel for the parties also made oral submissions at the trial. I have been assisted by those submissions.
Consideration
Ground 1 – did the Authority misapply or misunderstand the “real chance” test?
Applicant’s submissions
The Authority was required to consider whether the applicant satisfied the criteria for a protection visa contained in s.36 of the Migration Act. Relevantly, this included a determination of whether there was a “real chance” or “real risk” that the applicant would face harm if returned to Iran.[28] The “real chance” and “real risk” tests are the same.[29]
[28] see ss.36(2)(a), 36(2)(aa), 5J(1)(b)
[29] see Minister for Immigration v SZQRB (2013) 210 FCR 505 at [242] – [246]
The “real risk” and “real chance” tests are not as onerous as the balance of probabilities. What is required is a reasonable chance, as distinct from a remote chance.[30] A 10 per cent chance is a real risk.[31]
[30] Chan v Minister for Immigration (1989) 169 CLR 379 at 389 per Mason CJ and 408 per Toohey J
[31] Chan at 429 per McHugh J
Further, where a decision-maker is not satisfied that an event occurred, but cannot rule out the possibility that it might have occurred, the decision-maker is required to consider the risk of persecution on the possibility that its finding was wrong. In Minister for Immigration v Rajalingam[32] Sackville J stated at 240 [62] (North J agreeing):
[I]t is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the RRT is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution.
[32] (1999) 93 FCR 220
If, however, the decision-maker is in no real doubt that an event did not occur, then it does not have to consider the possibility that it is wrong.[33]
[33] Dhiman v Minister for Immigration [2000] FCA 221 at [12]
The applicant contends that, when the Authority’s reasons are considered, it is clear that it made many of its findings on the balance of probabilities. A number of its findings as to facts are said to be couched in language which suggests that a “balance of probabilities” test was applied, including the following:
a)April 2016 incident: the Authority accepted that the applicant was confronted by her ex husband, but doubted as implausible her claim that he jumped over the fence, entered her house and abused the applicant and her friends.[34] The Authority was therefore “not satisfied that the applicant’s husband will pursue her or cause her any harm upon her return to Iran, now or in the reasonably foreseeable future”. This assessment is not expressed in terms of risk;
b)risk from her husband’s family: the Authority considered the claim that the applicant’s mother-in-law would report her to authorities was “speculative” because the applicant had not heard directly from her mother-in-law.[35] However, its other findings were less certain and were not couched in the language of risk. The Authority accepted that the husband’s family were aware of the break up but was “not satisfied” that they would cause the applicant any harm.[36] Based on the husband’s political and religious ideology presented at the temporary protection visa interview, the Authority was “not satisfied the applicant’s husband or his family would notify Iranian authorities of her committing adultery or her current relationship”;[37] and
c)risk from her own family: the Authority was not satisfied that the applicant came from a family with extreme ideology, by reason of her responses during an arrival interview which reflected that she comes from a “fairly liberal family, in the context of Iran”.[38] Given this, the Authority was “not satisfied of the genuine nature of the emails which the applicant has presented to the [Authority] from her brother.”[39] It therefore was “not satisfied” that they would harm her.
[34] at [28]
[35] [30]
[36] at [30]
[37] at [33]
[38] at [35]
[39] [35]
In all of these examples, the applicant contends that the Authority engaged in reasoning that is suggestive of a finding on the balance of probabilities, as well as using language which corresponds to the balance of probabilities. That is said to have been the wrong test. Where findings were equivocal, or were simply findings of non-satisfaction, the Authority was obliged to consider the possibility that it was wrong.
Minister’s submissions
The Minister contends that, when the Authority’s reasons are read fairly and as a whole, it is clear that it understood that the applicant could only have a well-founded fear of persecution if, relevantly, there was a real chance that she would be persecuted for one or more of the reasons referred to in s.5J(1)(a) (being the five Refugees Convention reasons) if she were returned to Iran.
Although the Authority did not use the words “real chance” in [28], [30] or [33] of its reasons, that does not, alone, demonstrate that the Authority misapplied the correct test or reasoned on the balance of probabilities, contrary to [24] of the applicant’s submissions. Throughout its reasons, the Authority expressly stated that it was not satisfied that there was a “real chance” of serious harm or persecution being suffered by the applicant. [40] Crucially, the Authority concluded the part of its decision on the applicant’s claim to fear persecution at the hands of her family members for having engaged in adultery by stating that it was “not satisfied there is a real chance of serious harm from anyone, on the basis of the applicant being a female who has committed or has been perceived to have committed adultery and not adhered to religious mores, in Australia now or in the reasonably foreseeable future”.[41] This is said to be telling: it, together with the Authority’s findings at [35],[42] was part of the specific reasoning process critical to the outcome of the review (and not part of any template). In addition, it would be an odd construction of the Authority’s decision to claim that, although it correctly stated the test at the start and end of the relevant part of its reasons,[43] it failed to do so in the intervening part of its decision.
[40] at 535[19], 538 [35], 539 [37], 541 [45], [49], 542 [49], [50], [51], [52] and [53]. The Minister contends that it is of no consequence that some of these findings are contained in the section of the Authority’s decision dealing with the applicant’s claims for complementary protection, as even where reasons are expressed sequentially, findings in respect of one issue cannot, and should not, be divorced from findings in respect of another: see, for example, Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1169 [14] per Gleeson CJ; Baker v Minister for Immigration [2012] FCAFC 145 at [43]-[44] per Nicholas, Yates and Griffiths JJ. In any event, at CB 541-542 [49] the Authority confirmed its earlier finding that there was “no real chance of harm on the basis of the applicant, a woman, who has committed or has been perceived to have committed adultery in Australia and not adhered to religious mores.”
[41] CB 539 [37]
[42] CB 538
[43] i.e. at CB 535 [19] and 539 [37]
For these reasons, the Minister submits that those of the Authority’s findings impugned by the applicant at [24] of her submissions ought to be read as findings that the applicant’s chance of persecution upon being returned to Iran was remote.
The Minister submits that, while not raised in her amended application, the applicant appears also to be contending that the Authority erred by failing to ask itself the question, “what if I am wrong?”[44]
[44] see [22]-[23] and [25] of the applicant’s submissions
The Minister submits that, contrary to the assumption underlying the applicant’s submissions, there is no indication that the Authority had any uncertainty as to any of its findings impugned by the applicant, including those relating to her claim to fear persecution for having committed adultery while in Australia. The passages cited by the applicant, at [22]-[23] of her submissions, from Rajalingam[45] per Sackville J and Dhiman v Minister for Immigration[46] per Hely, Katz and Sundberg JJ do not support her case. Any need to ask “what if I am wrong?” may only arise where there is uncertainty by the decision-maker about an event significant to the ultimate question. Here, as in Dhiman, the findings in question were “positive and unqualified” or “positive and unhesitant”.[47] It follows, therefore, that the Authority was not required actually to state that its findings were without doubt.
[45] at 240 [62]
[46] [2000] FCA 221 at [12]
[47] Note also the observations of Sackville J in Rajalingam at 240 [64]-[65] as to the lack of any obligation upon a decision-maker to make “express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct” and the danger of merits review that would lie in imputing a lack of conviction or confidence that findings are correct to therefore warrant a holding that such findings ought not to have been relied upon in finding that a fear of persecution was not well-founded
Resolution
In this ground, the applicant contends that the Authority misapplied or misunderstood the “real chance” test in s.5J(1)(b) of the Migration Act.[48]
[48] While reference is made to “real risk” in [20]-[21] of the applicant’s submissions, it is not referred to in her ground of review and none of the Authority’s complementary protection findings is impugned either in the particulars to the ground or in [24] of her submissions
I prefer the Minister’s submissions on this ground. In my opinion, the Authority was aware of the test it was required to apply and engaged actively with the applicant’s submissions. The Authority expressly referred to the real chance test at [19], [35], [37], [45] and [49]-[53]. Further, the application of the real chance test is implicit in [28], [30] and [33] of the Authority’s reasons.
In my opinion, there is nothing in Authority’s reasons generally or in particular by reference to [30], [33] and [35] that suggests any misapplication of the real chance test or, indeed, any doubt in relation to the Authority’s findings. In those circumstances, the “what if I am wrong” consideration arising from the decision in Rajalingam has no application.
Ground 2 – did the Authority deny the applicant procedural fairness, or fail to apply the mandatory procedural requirements of Division 3 of Part 7AA of the Migration Act, or alternatively, did the Authority act in a way that was legally unreasonable?
Applicant’s submissions
As extracted at [16] and [24] above, the Authority was “not satisfied of the genuine nature of the emails which the applicant has presented to the [Authority] from her brother.”
The applicant contends that, if the real chance test was properly applied, then this finding must amount to a finding that the emails were a forgery. This is not a finding that the Authority can make lightly, and ordinarily fairness will require that the person accused of forgery, or the applicant, be given the opportunity of answering it.[49]
[49] WACO v Minister for Immigration [2003] FCAFC 171 at [53], [54]
Division 3 of Part 7AA contains an exhaustive statement of the requirements of the natural justice hearing rule for a review conducted by the Authority.
Section 473DD restricts the new information that the Authority may consider. It provides:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
The applicant contends that, implicit within this section is the requirement that an applicant must have a meaningful opportunity to satisfy the Authority of the matters in subsection 473DD(b), including in particular whether there is credible personal information which may have affected the consideration of the referred applicant’s claims.[50]
[50] Minister for Immigration v Li (2013) 249 CLR 332 at [60]-[61]
In this case, the genuineness of the emails was an issue raised by the Authority itself after the emails had been provided. The applicant submits that, in order to be given a meaningful opportunity to make submissions on whether the email was credible personal information, the Authority needed to raise this issue with the applicant.[51]
[51] see WAJR v Minister for Immigration (2004) 204 ALR 624 at [58]
In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd,[52] the Full Court (Northrop, Miles and French JJ) said at [30]:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.
(applicant’s emphasis retained)
[52] (1994) 49 FCR 576
In the present case, it is said to be arguable that the Authority breached the rules of procedural fairness by its failure to raise the possibility that the emails may not be genuine.[53]
[53] See also SZBEL v Minister for Immigration (2006) 228 CLR 152
Further and alternatively, in circumstances where the Authority was armed with inquisitorial powers to get information or invite persons to give information,[54] it is said not to have been open to the Authority, or alternatively it was legally unreasonable of the Authority, to find on the evidence before it that the emails were fraudulent without raising the issue, exercising these powers, or considering their exercise.[55] The unreasonableness is said to have been compounded (and separately supported) by the errors identified in the applicant’s submissions at [12]-[19].
[54] Section 473DC
[55] DZU16 v Minister for Immigration & Anor [2017] FCCA 851
Further, the applicant submits that, given that she was making, for the first time, claims that had not been heard by the delegate (and which the Authority agreed at [16] could not have been made to the delegate), the Authority needed to consider whether its limited review functions were adequate to the task of considering the claims. The applicant contends that the Authority needed to consider, but did not consider, whether to remit the decision for reconsideration by a delegate who did not have those restraints.
Minister’s submissions
Procedural unfairness
Section 473DA(1) of the Migration Act provides that Division 3 of Part 7AA “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the … Authority.” The language used in this provision, it should be noted, is different from that which is used in s.422B(1). Unlike that provision, s.473DA(1) contains a “global reference to the conduct of reviews by the [Authority]”.[56] It supplies the “plain words of necessary intendment”[57] required to exclude the hearing rule at common law. This Court has so held on several occasions.[58] So, too, has the Federal Court of Australia.[59]
[56] WAJR v Minister for Immigration (2004) 204 ALR 624 at [57] per French J (as his Honour then was) See also Minister for Immigration v SZMOK (2009) 257 ALR 427 at [9] per Emmett, Kenny and Jacobson JJ
[57] Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ
[58] See, for example, AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [11]-[12]; AMA16 v Minister for Immigration & Anor [2017] FCCA 303 at [18]-[21]; DBE16 v Minister for Immigration & Anor [2017] FCCA 487 at [63]; DZU16 v Minister for Immigration & Anor [2017] FCCA 851 at [101]; DJO16 v Minister for Immigration & Anor [2017] FCCA 944 at [33]
[59] DBE16 v Minister for Immigration [2017] FCA 942 at [61]-[65]
The Minister submits that none of the authorities to which the applicant has referred at [30]-[32] of her submissions takes her complaint of procedural unfairness any further, for at least the following reasons:
a)Part 7AA, unlike Parts 5 and 7, does not require the Authority to conduct a hearing with the referred applicant.[60] Consequently, the principles in SZBEL v Minister for Immigration[61] have no application to reviews conducted by the Authority;[62] and
b)section 473DD, which operates as a prohibition on the Authority considering new information unless certain requirements can be satisfied, does not carry with it “the requirement that an applicant must have a meaningful opportunity to satisfy the [Authority] of the matters in subsection 473DD(b)”.[63] Such language does not appear in s.473DD or anywhere else in Part 7AA. It is unhelpful to take, as the applicant has at [30]-[31] of her submissions, expressions (such as “meaningful opportunity”) that appear in cases dealing with the operation of s.425(1) of the Migration Act[64] and to transpose them to Part 7AA.
[60] see ss.473DA(1), 473DB(1) and 473DC(2), and the absence of any provision equivalent to ss.360(1) and 425(1)
[61] (2006) 228 CLR 152
[62] see the cases referred to in footnote 57 above
[63] applicant’s submissions at [30]
[64] such as Minister for Immigration v SCAR (2003) 128 FCR 553 at 561 [37], 562 [41] per Gray, Cooper and Selway JJ
Accordingly, the Minister submits that the combined effect of ss.473DA(1), 473DB(1) and 473DC(2) entitled, indeed required, the Authority to conduct a hearing on the papers without inviting the applicant to attend an interview to address its proposed adverse finding or to give new information. In fact, contrary to the applicant’s submissions, not even the fair hearing rule at common law would have required the Authority to put the applicant on notice of its proposed adverse finding, being one that was obviously open on the known material (i.e. the applicant’s own evidence).[65]
[65] Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592 per Northrop, Miles and French JJ
Legal unreasonableness
The Minister submits that there are several difficulties with the applicant’s complaint of legal unreasonableness.
First, as the Full Court of the Federal Court observed in Yasmin v Attorney-General (Cth),[66] the principles of legal unreasonableness stated in Minister for Immigration v Li[67] and Minister for Immigration v Singh[68] have no application to discretionary powers that have not been exercised at all. The Authority’s non-exercise of the power in s.473DC(3) to invite the applicant to comment on its proposed adverse finding as to the genuineness of the e-mail from the applicant’s brother may be characterised in that way. An unreasonableness challenge could only be maintained if the Authority did, in fact, consider whether it should exercise its discretion in s.473DC(3), but then did so in a manner adverse to the applicant. There is nothing in the material before the Court to suggest that the Authority did so. The Minister submits that, in so far as I reasoned to the contrary in DZU16 v Minister for Immigration & Anor,[69] that judgment is, as Judge Cameron recently held in DVE16 v Minister for Immigration,[70] inconsistent with Yasmin and takes the concept of legal unreasonableness well beyond Li and Singh. In this respect, the Minister submits that DZU16 is “plainly wrong”.[71]
[66] (2015) 236 FCR 169 at 197 [120]
[67] (2013) 249 CLR 332
[68] (2014) 231 FCR 437
[69] [2017] FCCA 851
[70] [2017] FCCA 2084 at [32]
[71] Compare AEK15 v Minister for Immigration (2016) 244 FCR 328 at 334 [27] and the cases cited therein
The Minister submits that in any event, it is difficult to see how the Authority could be said to have fallen into jurisdictional error by not exercising its discretion in s.473DC(3) in circumstances where the applicant never made such a request, despite her then representative having sent to the Authority comprehensive submissions and evidence in support of her claims. The mere fact that a referred applicant’s credibility is in issue is not sufficient to compel the Authority, in every case before it, to invite him or her, pursuant to s.473DC(3), to give new information orally and/or in writing.[72] Such a construction of s.473DC(3) would be inconsistent with s.473DC(2) and the Authority’s objective as stated in s.473FA(1) and would undermine the Fast Track Review Process generally.
[72] DBB16 v Minister for Immigration & Anor [2017] FCCA 375 at [28]; AJE17 v Minister for Immigration & Anor [2017] FCCA 1458 at [35]-[36]
Secondly, the Minister submits that, contrary to the applicant’s submissions, it is inappropriate to read into s.473DC(3) an obligation on the Authority to put to a referred applicant the dispositive issues arising on the review.[73] That is not the purpose of that provision and it flies in the face of ss.473DA(1) and 473DC(2). The Authority is entitled to affirm a decision under review for reasons different from those given by the delegate without having to alert an applicant to those reasons in advance of its decision.[74]
[73] Cf SZBEL v Minister for Immigration (2006) 228 CLR 152
[74] See the cases cited in footnote 57 above as well as BMB16 v Minister for Immigration & Anor [2017] FCCA 203 (affirmed on appeal: BMB16 v Minister for Immigration [2017] FCAFC 169)
Thirdly, the Minister submits that the discretionary power in s.473DC(3) does not carry with it a duty to consider its exercise. There are a number of reasons why that is said to be so:
a)there is no general rule or presumption that a discretionary power carries with it a duty to consider whether it should be exercised. While that is not to say that such a duty cannot, in a particular case, be shown to exist, it is a useful rule of thumb to say that, absent any legal obligation to exercise a power, “by a parity of reasoning … there is no legal obligation to consider whether one should exercise that power”;[75]
b)nothing in the text of s.473DC(3) supports a duty, imposed on the Authority, to consider exercising that power;
c)the context of s.473DC(3) does not support a duty, imposed on the Authority, to consider exercising that power. That context relevantly includes ss.473DB(1), 473DC(2) and 473FA(1). Those provisions militate against a duty to consider being read into s.473DC(3). Section 473DC(2) is particularly telling: if, as the subsection provides, there is no duty to exercise a power to get, request or accept new information, it must necessarily follow that there cannot be a duty to consider exercising that power;
d)reading a duty to consider into s.473DC(3), as the applicant seeks to do, would give rise to a spectre of difficult questions. For example, what circumstances must be present before the duty can be said to arise, even if no request has been made to the Authority by the referred applicant (or a person acting on his or her behalf)? How often must the duty be performed? Must reasons be given for its exercise? If so, where is the obligation to be found in Part 7AA and how comprehensive must they be? Must the applicant be unrepresented before it can be said that the duty arises? Would it make a difference if the applicant were represented? How important must an issue be before the Authority can be said to be under a duty to consider exercising its power in s.473DC(3)? By what standard is importance to be judged? When can the Authority consider exercising the duty to invite an applicant to give information in writing, and not at an interview? These are but some of the questions that would need to be answered by the applicant before any duty to consider could be read into s.473DC(3). The fact that none has a clear answer is a strong indication that such a duty does not exist; and
e)this Court so held in DVE16 at [31].
[75] SZGUR v Minister for Immigration (2011) 241 CLR 594 at 603 [22] per French CJ and Kiefel J (as her Honour then was). See also Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35 at 63 [89] per Kenny and Robertson JJ, with whom Pagone J agreed; Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 at 195-196 [113] per Kenny, Robertson and Mortimer JJ; DVE16 v Minister for Immigration & Anor [2017] FCCA 2084 at [31]
The Minister submits that, in so far as DZU16 may suggest otherwise, it is “plainly wrong” for the reasons that it overlooks or ignores the effect of s.473DC(2), the immediate context of s.473DC(3) (which comprises not only s.473DC(2) but also ss.473DB(1) and 473FA(1)), and higher authority which suggests that, absent any legal obligation to exercise a discretionary power, by a parity of reasoning there is no legal obligation to consider its exercise.[76]
[76] SZGUR v Minister for Immigration (2011) 241 CLR 594 at 603 [22] per French CJ and Kiefel J; Animals Angels e.V. v Secretary, Department of Agriculture (2014) 141 ALD 158 at [69] per Edmonds J; Animals Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35 at 63 [89] per Kenny and Robertson JJ (with whom Pagone J agreed); Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 at 195-196 [113] per Kenny, Robertson and Mortimer JJ
Fourthly, the Minister submits that DZU16 is distinguishable factually. As my reasons in that case at [116]-[125] reveal, an issue had arisen on the review, being whether relocation was reasonable, of which it was found that the applicant was not aware during the visa application process. The Authority issued to the applicant an invitation to comment on new information (namely, country information) purportedly pursuant to s.473DE(1), notwithstanding that it was not required to do so by reason of s.473DE(3)(a). The Authority not only made an error in setting the time for a response, but it was also in possession of information which suggested that the applicant was illiterate and required a considerable amount of time to respond to the invitation to comment. It was in those circumstances that I held that the Authority’s failure to consider whether to exercise the discretion in s.473DC(3) was legally unreasonable.
Fifthly, and in any event, the Minister submits that on the facts of the present case, the Authority’s failure to consider exercising its power in s.473DC(3) was not unreasonable. Put another way, on an outcome-focused view of the matter, the Authority’s non-consideration and non-exercise of the discretion fell within the area of decisional freedom and did not lack an evident and intelligible justification. All that the Authority relevantly did in the present case was to assess the genuineness of a document that the applicant herself gave to the Authority. The Minister submits that it was entitled to do so without seeking any further input from the applicant.
At [35] of her submissions, the applicant submits that, given that she “was making, for the first time, claims that had not been heard by the delegate”, the Authority “needed to consider, but did not consider, whether to remit the decision for reconsideration by a delegate who did not have those restraints”. The applicant has not identified the source of the obligation to consider whether to remit the matter to the Minister. The Minister submits that no such obligation exists. Nor is the applicant’s argument consistent with regulation 4.43 of the Migration Regulations 1994 (Cth), which lists permissible directions on remittal. That a new claim for protection be considered is not such a direction.
Counsel for the Minister further explored those submissions orally at the resumed hearing on 10 October 2017.
Resolution
In this ground, the applicant says that the Authority denied the applicant procedural fairness or acted in a legally unreasonable manner by finding that it was “not satisfied of the genuine nature of the emails which the applicant has presented to [it] from her brother” without first putting her on notice of that proposed finding.
Procedural fairness
I accept the Minister’s submissions concerning this element of this ground. I adhere to my statements concerning the procedural fairness obligations of the Authority, which I set out in DZU16 at [82] and [101]-[103].
The procedural code under which the Authority operates does not require the conduct of a hearing or the extension of an invitation to make written comments simply because the Authority contemplates reasoning differently from the delegate or is dealing with a new issue or new information.
Legal unreasonableness
The Full Federal Court has recently held that reviews before the Authority are not restricted to the correction of error by the delegate.[77] In particular, the Full Court made clear that the Authority, while operating under a different statutory regime to the Administrative Appeals Tribunal, is conducting a review which may extend beyond the matters considered by the delegate and may adopt different reasoning to that of the delegate. At [85] Charlesworth J described the review function of the Authority as one that is sui generis. At [87]-[88] her Honour stated:
The Authority’s obligation to “review the decision” is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative. The Authority otherwise has no power to determine that the correct and preferable decision is one granting the referred applicant a visa. Accordingly, the Authority cannot perform a “full merits review” of the s 65 decision.
However, it does not follow that in the performance of its review function, the Authority may not depart from findings of fact made by the Minister that bear upon the question of whether the particular criterion under consideration is met without first identifying an error affecting the Minister’s findings. There is nothing in the text, context or purpose of the provisions at issue to support that construction.
[77] BMB16 v Minister for Immigration [2017] FCAFC 169
It follows, in my view, that the Authority was entitled to deal with the sur place claim made by the applicant. The question is whether the Authority acted unreasonably in doing so, in circumstances where the applicant’s claims had never been tested at an interview and she was restricted to minimal engagement with the Authority for the purposes of the review.
I considered the issue of legal unreasonableness in DZU16 and, to this point, and notwithstanding the contrary authority in DBE16, I have not changed my views. While it is true that my decision in DZU16 would extend the concept of legal unreasonableness beyond that which has previously been endorsed by superior court authority, the unique character of the reviews conducted by the Authority calls for an expansion of that ground of review in circumstances where the principles of procedural fairness under the general law have no application and the circumstances are extraordinary.
I accept, however, the Minister’s submission that DZU16 is distinguishable factually for the reasons advanced above at [53]. In the present case, it is not apparent that the Authority saw any need to elicit any further information from the applicant about her claims, having found that it should consider them. In saying that, I infer that the Authority turned its mind to the question, given that it was dealing with entirely new claims by an applicant who had previously made no claims of her own. In deciding not to seek further information or comment from the applicant and in deciding not to conduct an interview with the applicant about her claims, the Authority took a risk, because the claims were being considered for the first time. It was not unreasonable for the Authority to take that risk, but, as will be demonstrated in relation to Ground 3, the risk of proceeding in that way was that the Authority might misunderstand the applicant’s claims and evidence and thus fall into error.
Ground 3 – did the Authority fail to act in accordance with its duty to conduct a “review” under s.473CC(1) of the Migration Act in relation to critical evidence put forward by the applicant?
Applicant’s submissions
The applicant provided statutory declarations from two eyewitnesses to the April 2016 incident. The Authority referred to these statutory declarations as “letters” at [7] and again at [15], and appears to have found that exceptional circumstances existed justifying their consideration.[78]
[78] CB 534 [16]
The letters provide first hand sworn corroboration of the applicant’s claim that her husband jumped up from behind a fence, threatened her, then entered the house through the door. In considering the claim, the Authority did not refer to the statutory declarations. Rather, the Authority considered it implausible that the husband was listening to her conversation at the exact time one of her friends offered to give her the telephone number of a man interested in a romantic relationship.[79]
[79] CB 537 [28]
The Authority does not suggest any reason for finding the account implausible other than the timing attack, and the unlikelihood of the husband being able to jump over the fence.
The applicant submits that, to the extent that the Authority relied on the timing of the attack, that suggests that it did not have regard to the applicant’s statutory declaration. She stated that the husband had been “hiding in the darkness and listening to our conversation”.[80] The submissions contained a photo of the fence,[81] which is very close to the balcony, and this explanation is said to be plausible. The possibility that the husband was waiting and listening was not considered by the Authority.
[80] CB 503 [21]; see also CB 517
[81] CB 508
To the extent that the Authority relied on the implausibility of the husband jumping the fence, that finding stemmed from a misunderstanding of the evidence.
The Authority also “ignored” the fact that the statutory declarations were “solemnly sworn”.[82] To dismiss them out of hand or to fail to evaluate them is said to be, in the relevant sense, capricious and unreasonable.[83]
[82] applicant’s submissions at [41]
[83] Minister for Immigration v CZBP [2014] FCAFC 105 at [94] – [96]
The applicant submits that it follows that the Authority failed to consider the statutory declarations, or failed to properly consider them. As the error in this case was serious, it amounts to jurisdictional error.[84]
[84] see Minister for Immigration v SZSRS [2014] FCAFC 16 at [50]; Minister for Immigration v SZRKT (2013) 212 FCR 99 at [111]- [112]; Minister for Immigration v CZBP [2014] FCAFC 105 at [102]
Minister’s submissions
The Authority referred to the statutory declarations of the applicant’s friends at [7][85] and [15] of its reasons.[86] It was therefore cognisant of, and had considered, those statements. Contrary to the applicant’s submissions, her friends’ statements did not relevantly add anything of substance to the information contained in her statement, in circumstances where the Authority:
a)acknowledged, at [28],[87] that the applicant “submitted to the [Authority] a temporary protection order issued by the Brisbane Magistrate’s Court on 28 July 2016, against her husband on the basis of domestic violence”;
b)accepted, at [28],[88] that the applicant “has been confronted by her husband since their separation”; and
c)noted, in the sentence immediately thereafter, that the applicant had “continued to see her husband in public places and he has visited her home since the April 2016 incident.”
[85] CB 532
[86] CB 533-534
[87] CB 537
[88] CB 537
The Authority, thus, accepted that the applicant had been the victim of domestic violence at the hands of her husband and had been confronted by him since their separation in February 2016. The statements of the applicant’s friends, although considered by the Authority, are said not to have been important to the Authority’s assessment of the applicant’s claims in the sense described by Robertson J in Minister for Immigration v SZRKT.[89]
[89] (2013) 212 FCR 99 at 130-131 [111]-[112]
The Minister concedes that the applicant did not say that her husband did, in fact, “jump over the fence”, but that he “tried to” do so “but was unable to”.[90] The Minister invites the Court to infer that the Authority’s reference to the applicant’s statement that “her husband jumped over her fence”[91] was merely a slip and not a misunderstanding of the applicant’s claim. This is said to be borne out by the Authority’s reference, in the same sentence, to the applicant having claimed that her husband “entered her house using the keys which he had”. The applicant did make that claim. The Court should avoid reading the Authority’s reasons in such a way that the Authority is contradicting itself in the same sentence. The Minister submits that, at worst, the Authority made an error of fact, but there is no error of law simply in making a wrong finding of fact.[92]
[90] CB 503 [22]
[91] CB 537 [28]
[92] Waterford v Commonwealth (1987) 163 CLR 54 at 77 per Brennan J (as his Honour then was); Minister for Immigration v SZNPG (2010) 115 ALD 303 at [20] per North and Lander JJ
Resolution
In this ground, the applicant asserts that the Authority failed to consider certain pieces of evidence that she gave to the Authority, namely, the statutory declarations made by her friends on 12 July 2016[93] and 15 July 2016,[94] and failed properly to consider her statutory declaration made on 15 July 2016[95] because it misstated one of her claims.
[93] CB 517-518
[94] CB 515-516
[95] CB 502-504
I prefer the applicant’s submissions on this ground. The Minister concedes that the Authority made an error at [7] of its reasons where it asserted that the applicant had claimed that her husband jumped over the fence. The applicant had in fact claimed that her husband had tried and failed to jump over the fence and had then let himself into the house using his own key. The Minister seeks to portray this as a simple factual mistake with no jurisdictional consequence. I disagree. The problem is, in my opinion, that at [28] the Authority made an adverse finding based in part upon a false factual foundation. Relevantly, the Authority stated:[96]
I find it implausible that her husband would have been listening to her conversation at that very point in time and that he was able to jump over the fence as claimed. The applicant has not provided any corroborating evidence from the police officers who she claims attended her apartment that evening. However, the applicant has submitted to the IAA a temporary protection order issued by the Brisbane Magistrate’s Court on 28 July 2016, against her husband on the basis of domestic violence. I accept that the applicant has been confronted by her husband since their separation. I note the applicant has continued to see her husband in public places and he has visited her home since the April 2016 incident. The last known face to face engagement the applicant had with her husband was on 22 June 2016. I note the applicant may have to maintain ongoing contact with her husband on the basis of their child and I accept her and her husband have been involved in some confrontations in Australia. I note the protection order issued by the court in Brisbane and note that it is a temporary order. On the evidence before me, I am not satisfied that the applicant’s husband will pursue her or cause her any harm upon her return to Iran, now or in the reasonably foreseeable future.
[96] CB 537
Further, the error portrays an inattention to the detail of the claims put forward by the applicant. In my opinion, this, together with the other considerations addressed by the applicant in her submissions referred to above at [64]-[68] in relation to this ground, is sufficient to establish a constructive failure of jurisdiction as alleged.
As noted above, the Authority could have sought further information or comment from the applicant or it could have invited her to a hearing to further explore her claims and evidence. It did not do so. In such circumstances, it is imperative for the conduct of reviews by the Authority that it understands new claims and evidence made by an applicant which have not been previously considered. That is because the review constitutes the only opportunity for those new claims and evidence to be considered.
The Authority’s mistake identified above was not trivial. It was substantive and bore on the finding made by the Authority on the applicant’s claim. The error was a factual one but it was of sufficient significance to go to the jurisdiction of the Authority.
I find that this ground has been established.
Ground 4 – did the Authority act upon an invalid certificate or deny the applicant procedural fairness in relation to it?
Applicant’s submissions
Ground 4 relies upon the certificate at CB 478. That certificate purports to identify as a public interest, within the meaning of s.473GB, the non-disclosure of internal working documents.
In this regard, the certificate was invalid.[97]
[97] MZAFZ v Minister for Immigration (2016) 243 FCR 1 at [37], [38]
The Authority is said to have taken the certificate into account.[98]
[98] CB 532 [4]
There is a line of authority in this Court that the Authority was not obliged to draw to the applicant’s attention the existence of the certificate.[99]
[99] see CMR16 v Minister for Immigration & Anor [2017] FCCA 1715 at [25] and the cases there referred to
At the time of the hearing in this matter, that issue was before the Full Federal Court in proceeding NSD242/2017,[100] and the Court delivered its judgment on 10 November 2017.[101]
[100] an appeal from my decision in BBS16 v Minister for Immigration & Anor [2017] FCCA 4
[101] Minister for Immigration v BBS16 [2017] FCAFC 176
Minister’s submissions
The Minister’s submissions are consistent with the decision of the Full Federal Court in BBS16 and I include them for completeness. First, the Minister submits that it is not clear how the applicant contends that the Authority “acted on” the certificate. The Minister accepts that the certificate issued in the present case was invalid, for the reasons given by Beach J in MZAFZ at 10-11 [37]. The Authority’s reasons at [4],[102] upon which the applicant relies in her submissions, do not reveal that it “took the certificate into account”, in the sense that the Authority acted upon it or treated it as valid. The certificate is not a document that was referred by the Secretary pursuant to s.473CB of the Migration Act. It did not form a part of the “review material” as defined in s.473CB(1); rather, it was issued by the Minister pursuant to s.473GB(5).
[102] CB 532
The provision of an invalid certificate to the Authority does not, itself, have any consequences for the validity of its decision. The Authority might perceive the invalidity and ignore the certificate. Or it might, in the purported exercise of its discretion in s.473GB(3), deal with the documents or information consistently with its normal statutory obligations. In the latter case, any potential error would not be material to the conduct or outcome of the review and would not go to jurisdiction. Thus, it was critical to the result in MZAFZ that the Administrative Appeals Tribunal (Tribunal) had acted in some unspecified way on the certificate which Beach J had held to be invalid.[103] No such inference can be drawn in the present case.
[103] at 11 [40]-[44]
Secondly, the Minister submits that what Beach J said at 11-15 [40]-[65] cannot be read in a vacuum: his Honour’s reasoning there needs to be understood in the light of the particular provisions contained in Division 4 of Part 7 (ss.424A, 424AA, 425 and 427) to which the Tribunal had not turned its mind. There are no equivalent provisions in Part 7AA of the Migration Act. In addition, s.473DA(1) substitutes for the words in s.422B(1) (a provision which was in issue in MZAFZ) the broader formulation, “in relation to reviews conducted by the Immigration Assessment Authority”. Thus, by force of s.473DA(1), Division 3 of Part 7AA, together with s.473GB, “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the [Authority].”
The distinguishing significance of s.473DA is even broader, given the terms of subsection (2). That provision, it should be noted, is not confined just to Division 3 of Part 7AA, but applies to the entire Part. The “material” referred to in s.473DA(2) would include any material given by the Secretary of the Department to the Authority under s.473CB of the Migration Act. In other words, a fast track applicant will not be entitled by anything in Part 7AA to be given the documents that were before the Minister’s delegate when the s.65 decision was made.
The Minister contends that Part 7AA of the Migration Act also does not contain provisions equivalent to ss.424A or 424AA. Instead, s.473DE(1) imposes on the Authority an obligation to give particulars of “new information” that “has been, or is to be, considered by the Authority under s.473DD” and also “would be the reason, or a part of the reason, for affirming the fast track reviewable decision”. Section 473DE(1) would have no application in relation to a certificate issued under s.473GB, or a document that was the subject of that certificate, regardless of whether the certificate were valid, at least because neither would be “new information” considered under s.473DD. A document before the Minister when the s.65 decision is made does not fall within s.473DC(1) and the certificate itself is not “new information” for the reasons footnoted below.[104]
[104] First, the certificate was a notification under s.473GB(2)(a), upon knowledge of which the Authority would decide whether, and, if so, how, to act under s.473GB(3). This is not to consider the certificate itself as relevant to the applicant’s claims (as envisaged by s.473DC(1)(b)). Similarly, the prohibition in s.473DD is not engaged by knowledge of the certificate, because the Authority is not “considering” the certificate in the step of evaluating the claims for protection. Secondly, the chapeau to s.473GB(3) distinguishes between the Authority being “given a document or information” and being “notified that this section applies to it” – the certificate being the latter, not the former. Thirdly, the Authority could not apply ss.437GB(3)(a) and (b) unless it had regard to the notification. For the Authority to ask itself the questions posed by s.473DC and 473DD before it could have regard to the certificate would not fit with s.473GB(3). Fourthly, if the certificate were “new information”, the Authority could refuse to accept it under s.473DC(2), which would be an absurd result.
It may also be noted that s.473DB(1) compels the Authority, subject to Part 7AA, to review a fast track reviewable decision referred to it on the papers – i.e. “by considering the review material provided to the Authority under s.473CB:
a)without accepting or requesting new information; and
b)without interviewing the referred applicant”.
There is no opportunity to appear, as there may be under ss.360(1) or 425(1). New information that was not before the delegate can only be considered if the Authority is satisfied that the conditions in ss.473DD(a) and (b) are met.
The Minister submits that, even assuming (as the applicant contends at [45] and [48] of her submissions, referring to the Authority’s statement at CB 532 [4]) that the Authority did consider the document covered by the certificate, which was an “Identity Assessment Report”,[105] or assuming that the Authority did “act upon” the certificate in the sense of treating it as valid, the Authority did not exceed its authority under the Migration Act, or breach any procedural obligation under the Migration Act.
[105] CB 478
In particular, the Authority did not breach Division 3 of Part 7AA or s.473GB. It would be inconsistent with the scheme of those provisions to require the Authority either to give to the applicant a document that was before the delegate (notwithstanding s.473DA(2)), or to give to the applicant particulars that are not required to be given by s.473DE(1). In the face of ss.473DA(1) and (2), 473DB(1), 473DC(1)(a) and 473DE(1)(a), it cannot be said that, by acting upon an invalid certificate under s.473GB (which the Minister does not concede the Authority did), or by taking into account the Identity Assessment Report, the Authority made a decision “outside the limits of the functions conferred on [it]” or “did something which [it] lack[ed] power to do”,[106] thereby falling into jurisdictional error. There is nothing in the provisions governing the Authority that required it to give to the applicant the certificate, the document the subject of the certificate, or particulars of either.
[106] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J
Thirdly, the Minister submits that the applicant’s complaint at [48] that she was “denied … access to all [of] the information before the [Authority]” does not grapple with s.473DA(2), which provides that nothing in Part 7AA requires the Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under s.65. The Identity Assessment Report was a document that was before the Minister when he made the decision to refuse to grant a visa to the applicant under s.65. The Minister does not understand this to be in dispute, the applicant not having so suggested in her submissions.
Resolution
In Ground 4, the applicant contends that the Authority made the errors identified by Beach J in MZAFZ v Minister for Immigration.[107]
[107] (2016) 243 FCR 1
In BBS16 the Full Federal Court found at [85]-[100] that neither limb of Beach J’s analysis in MZAFZ has any application to a s.473GB certificate and related information, for reasons similar to those advanced by the Minister in this case. The Full Federal Court decision is binding upon me and forecloses this ground of review.
I find that this ground has not been established.
Conclusion
The applicant has succeeded in establishing jurisdictional error in respect of Ground 3. I will make orders for the issue of writs in the nature of certiorari and mandamus.
I will hear the parties as to costs.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 17 November 2017
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