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) |
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Details
- Case
- [2017] FCCA 2433
- Decision Date
CaseChat Overview and Summary
The applicant, CMH16, contended that the Authority breached the rules of procedural fairness by failing to raise the possibility that certain emails might not be genuine. The applicant further argued that the Authority acted unreasonably, or alternatively, was legally unreasonable, in concluding the emails were fraudulent without first raising this issue, exercising its inquisitorial powers to gather further information, or considering the exercise of those powers. The court was required to determine whether the Authority's conduct constituted a breach of procedural fairness and whether its decision was legally unreasonable in the circumstances.
The court considered the principles of procedural fairness as articulated in *Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd*, which establish a person's entitlement to present information and submissions to a decision-maker, to rebut adverse material, and to be informed of critical issues or adverse conclusions not apparent from the known material. However, the court also noted that a decision-maker is not obliged to expose their provisional views. The court also examined section 473DA(1) of the *Migration Act*, which states that Division 3 of Part 7AA is an exhaustive statement of the natural justice hearing rule requirements for reviews conducted by the Authority. This provision has been interpreted by this Court and the Federal Court of Australia as excluding the common law hearing rule.
The court found that section 473DA(1) of the *Migration Act* provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The language of this provision was held to be sufficiently clear to exclude the common law hearing rule. Therefore, the applicant's arguments regarding a breach of procedural fairness based on the failure to raise the genuineness of the emails or the alleged unreasonableness of the decision were not sustained. The court's reasoning focused on the statutory exclusion of the common law hearing rule by section 473DA(1).
The court considered the principles of procedural fairness as articulated in *Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd*, which establish a person's entitlement to present information and submissions to a decision-maker, to rebut adverse material, and to be informed of critical issues or adverse conclusions not apparent from the known material. However, the court also noted that a decision-maker is not obliged to expose their provisional views. The court also examined section 473DA(1) of the *Migration Act*, which states that Division 3 of Part 7AA is an exhaustive statement of the natural justice hearing rule requirements for reviews conducted by the Authority. This provision has been interpreted by this Court and the Federal Court of Australia as excluding the common law hearing rule.
The court found that section 473DA(1) of the *Migration Act* provides an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. The language of this provision was held to be sufficiently clear to exclude the common law hearing rule. Therefore, the applicant's arguments regarding a breach of procedural fairness based on the failure to raise the genuineness of the emails or the alleged unreasonableness of the decision were not sustained. The court's reasoning focused on the statutory exclusion of the common law hearing rule by section 473DA(1).
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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. 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]
Ratio Decidendi
Legal Principle Established
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