CQY16 v Minister for Immigration & Anor
[2017] FCCA 236
•10 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CQY16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 236 |
| Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant fearing harm in Pakistan as a teacher – applicant not believed – other fears found not to be well-founded – general grounds of review advanced – different issues arising in argument – whether the Authority should have alerted the applicant to its proposed rejection of the teacher claim as the delegate had accepted it – whether the Authority based an adverse credibility assessment on a false factual foundation of alleged inconsistency – whether the Authority was empowered to receive a submission from the applicant pursuant to the Practice Direction issued by the President of the Administrative Appeals Tribunal and, if so, whether the Authority was entitled to draw adverse credibility conclusions from it – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.48A, 65, 189, 357A, 359A, 422B, 424A, 473BA, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FB, 473GA, 473GB, 473JA Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 BMB16 v Minister for Immigration & Anor [2017] FCCA 203 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 CCW16 v Minister for Immigration & Anor [2017] FCCA 2 CVK16 v Minister for Immigration & Anor [2017] FCCA 235 DGZ16 v Minister for Immigration & Anor [2017] FCCA 623 DZU16 v Minister for Immigration & Anor [2017] FCCA 851 Minister for Immigration v Li (2013) 249 CLR 332 Minister for Immigration vWZARH (2015) 256 CLR 326 NAHI v Minister for Immigration [2004] FCAFC 10 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 SZASX v Minister for Immigration & Anor [2004] FMCA 680 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZBYR v Minister for Immigration (2007) 81 ALJR 1190 SZECF v Minister for Immigration (2005) 89 ALD 242 SZTGV v Minister for Immigration (2015) 318 ALR 45 Tin v Minister for Immigration [2000] FCA 1109 WZAVW v Minister for Immigration [2016] FCA 760 |
| Applicant: | CQY16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 420 of 2016 |
| Judgment of: | Judge Driver |
| Hearing dates: | 1, 6 February, 8 May, 16 October 2017 |
| Date of Last Submission: | 16 October 2017 |
| Delivered at: | Sydney, via telephone link to Perth |
| Delivered on: | 10 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr F A Robertson, pro bono publico |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 24 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 |
PEG 420 of 2016
| CQY16 |
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 24 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 Minister filed on 25 January 2017.
The applicant is a national of Pakistan[1]. He entered Australia as an unauthorised maritime arrival on 6 July 2013 and was taken into immigration detention thereafter, pursuant to s.189(3) of the Migration Act 1958 (Cth) (Migration Act).
[1] Court Book (CB) 79
On 6 November 2015, an officer in the Minister's Department (Department) wrote to the applicant to advise him that the Minister had exercised the power under s.46A(2) of the Migration Act to permit him to lodge a valid application for, relevantly, a temporary protection visa[2].
[2] CB 34-39
The applicant made an application for a temporary protection visa on 1 December 2015[3]. In summary, the applicant feared that he would be killed if he were to return to Pakistan. He claimed that he had been a private teacher, had received a “serious threat” prior to his departure and that he could not afford to relocate to another area[4]. That application was subsequently withdrawn on 28 April 2016[5].
[3] CB 40-78
[4] CB 73-75
[5] CB 165-166
On 12 April 2016, the applicant made a further application for a temporary protection visa, with legal assistance[6]. In support of that application, the applicant made a statutory declaration on 1 April 2016 in which he set out his claims for protection[7]. The applicant claimed to fear harm from the Taliban by reason of his Shia religious beliefs, his employment as a teacher and his political opinion as a result of attendance at a protest[8]. The applicant further claimed that he would face harm as a result of having sought asylum in Australia and the so called “data breach” event that occurred in February 2014[9].
[6] CB 86-156
[7] CB 129-132
[8] CB 129 [2], 130 [14] and 131 [20]
[9] CB 131 [17]
On 31 May 2016, the applicant participated in an interview with the delegate[10].
[10] CB 179-181 and 202 [6]
On 21 July 2016, the delegate made a decision to refuse to grant a temporary protection visa to the applicant[11].
[11] CB 200-217
Merits review
On 22 July 2016, the Minister referred the delegate's decision to the Authority pursuant to s.473CA of the Migration Act[12]. In a letter and accompanying information sheet of the same date, the Authority wrote to the applicant, relevantly advising him that he could provide new information in support of his case, but that the Authority could only consider such information in limited circumstances[13]. The information sheet also informed the applicant that he could make a submission to the Authority about why he disagreed with the delegate’s decision and about any claim or matter that was not considered.
[12] CB 218
[13] CB 218-222
On 29 July 2016, the applicant provided the Authority with a copy of the delegate's decision with handwritten notations[14].
[14] CB 230-252
On 9 August 2016, the applicant provided the Authority with written submissions[15].
[15] CB 254-257
On 24 August 2016, the Authority affirmed the delegate's decision[16].
[16] CB 261-274
The Authority commenced its reasons by stating that it had regard to: the material which the Secretary of the Department provided to it pursuant to s.473CB; the submissions provided by the applicant which it did not consider to be “new information”; as well as country information in relation to the data breach[17]. Although the country information comprised “new information” as defined in s.473DC(1) of the Migration Act, the Authority considered it as it was satisfied that there were exceptional circumstances for doing so[18].
[17] CB 262 [3]-[5]
[18] CB 262 [5]
The Authority did not accept the applicant's claims that he was a teacher or that he had received letters threatening him[19]. It found that the applicant's evidence in relation to those claims was inconsistent and implausible and could not be sufficiently explained by his mental health[20].
[19] CB 264 [12] and 266 [22]
[20] CB 265-266 [18]-[22]
The Authority did, however, accept that the country information supported the applicant's claims of past violence and that militant groups, including the Taliban, targeted his home area “due to the high number of Turi tribe members who reside there and because the majority of Turi are Shia”[21]. However, the Authority also found that the applicant faced only a remote or speculative chance of serious harm singularly or cumulatively as a result of his membership of the Turi tribe, as a Shia Muslim and/or because he came from his home area[22].
[21] CB 267 [26]
[22] CB 267 [26]
The Authority further accepted that the applicant's personal information was included in the data breach and that the applicant would return to Pakistan as a failed asylum seeker, and was open to accepting the possibility that the authorities in Pakistan may have accessed the document on the Minister’s Department's website which contained the personal details of persons including the applicant[23]. The Authority, however, having noted that both of the applicant's visa applications had been made after the date of the data breach, did not accept that the authorities would have had access to any information in relation to the nature of the applicant's claims or that the data breach created any independent or cumulative real chance of serious harm at the hands of the Pakistani authorities[24].
[23] CB 267-268 [28]-[29]
[24] CB 268 [30]
The Authority noted that there was no suggestion that the applicant had been involved in people smuggling or unlawful emigration or that the Pakistani authorities targeted returnees who had sought asylum overseas[25]. Accordingly, it was not satisfied that the applicant faced serious harm from the Pakistani authorities because he would return as a failed asylum seeker[26].
[25] CB 268 [31]
[26] CB 268 [31]
From [34]-[37][27], the Authority considered the applicant's claims for complementary protection. At [36][28], the Authority found, for the reasons that it had given with respect to the applicant's claims for protection under the Refugees Convention, that he would not face a real risk of significant harm by reason of being from the Turi tribe, being a Shia Muslim, being from his home area, the Departmental data breach, and/or his returning to Pakistan as a failed asylum seeker.
[27] CB 268-269
[28] CB 269
The present proceedings
These proceedings began with a show cause application filed on 20 September 2016. The applicant continued to rely upon that application at the trial of this matter on 1 and 6 February 2017. There are three grounds in the application:
1. The Decision of IAA member is an unfair judgement based on general information available rather than specific case, considering every case is unique and different in detail.
2. There was a denial in procedures of fairness in IAA interview.
3. There are also legal errors made by the IAA members.
(errors in original)
The application is supported by an affidavit filed with it which annexes documents relating to the review by the Authority. I received the documents as evidence to the extent that they were not duplicated in the court book filed on 22 November 2016, which I also received.
During the course of the hearing of this matter, the applicant handed up written submissions to which a number of documents are annexed. I declined to receive those documents as evidence as they bore on the applicant’s claims to be a refugee and were obtained after the decision of the Authority.
The applicant also tendered as evidence an audio recording of an interview conducted with him by the Department. Parts of the audio were played in court on 1 February 2017.
Consideration
The development of the issues
As is evident from the Minister’s written submissions, there is no substance in the grounds of review originally advanced, at least in the absence of particulars.
Ground 1 appears to be a complaint in relation to the Authority’s reliance on independent country information in its assessment of the applicant's claims.
It was plainly open to the Authority to have regard to independent country information. Further, the choice and assessment of country information was a factual matter for the Authority[29].
[29] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13] per Gray, Tamberlin and Lander JJ
In the present case, it is apparent that the Authority considered the applicant's claims by reference to his particular circumstances and in light of the relevant country information[30] and made findings open to it on the available evidence.
[30] see, for example, CB 266 [24], 266-267 [25]-[26] and 268 [31]
Ground 2 contends that the applicant was denied “procedures of fairness” in the Authority interview. This ground is misconceived, as no interview took place before the Authority. To the extent that the applicant claims, by this ground, that the Authority failed to comply with any procedural fairness requirements more generally, such a contention requires a consideration of the statutory regime within which the Authority is required to operate.
Given that Division 3 of Part 7AA of the Migration Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the conduct of reviews by the Authority[31], the applicant's arguments must be assessed against the provisions in that Division.
[31] see s.473DA of the Migration Act
Part 7AA of the Migration Act was introduced on 18 April 2015 as part of a package of reforms designed to deal with what Parliament described as the “asylum legacy caseload”[32]. As the simplified outline in s.473BA explains, Part 7AA “provides a limited form of review of certain decisions ... to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.”
[32] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), Schedule 4
The visa applicants in question are known as “fast track review applicants”, and decisions to refuse to grant to them certain visas are known as “fast track reviewable decisions”[33].
[33] It is not in dispute that the present applicant is a “fast track review applicant” and that the delegate's decision to refuse to grant him a temporary protection visa is a “fast track reviewable decision”
The Authority was obliged, by s.473CC(1), to “review” the delegate's decision to refuse to grant the applicant a temporary protection visa. The purpose of the review was to decide whether to exercise one of the two alternative dispositive powers available to the Authority under s.473CC(2): to “affirm the ... decision”; or to “remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation”[34].
[34] Regulation 4.43 of the Migration Regulations 1994 (Cth) prescribes directions that the Authority is permitted to make in relation to the review of a fast track reviewable decision
Section 473DA completely and exhaustively codifies the natural justice hearing rule in relation to reviews conducted by the Authority (while not seeking to codify or otherwise disturb the other requirement of natural justice, namely, the “no bias” rule[35]). The terms of s.473DA “leave no room for the implication of the requirements of procedural fairness beyond what is already provided”[36] in Division 3, together with ss.473GA and 473GB[37].
[35] Consistent with this proposition, s.473FA provides that the Authority is to pursue the objective of providing a mechanism of limited review that is "free of bias" and "consistent with Division 3 (conduct of review)" (which codifies the natural justice hearing rule)
[36] Minister for Immigration v Li (2013) 249 CLR 332 at 360 [55] per Hayne, Kiefel and Bell JJ in relation to s.357A
[37] AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron
Importantly, s.473DB(1) provides that the Authority must review a fast track reviewable decision by considering the review material provided to it under s.473CB “without accepting or requesting new information” and “without interviewing the referred applicant”.
In this matter, having heard the submissions of the parties at the trial, it seemed to me likely that the Authority complied with its procedural fairness obligations for the following reasons:
a)the applicant was put on notice of the referral of the delegate's decision to the Authority and the relevant procedure of the Authority review (including the possibility of providing new information and the requirement that there be exceptional circumstances for new information to be considered). The applicant placed further information before the Authority and the Authority considered it;
b)the Authority considered the review material given to it by the Secretary under s.473CB, as required by s.473DB(1);
c)subject to Part 7AA, the Authority was required to review the delegate's decision without interviewing the referred applicant. Accordingly, it would seem that the principles espoused in cases such as Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd[38] and SZBEL v Minister for Immigration[39] have limited if any application to reviews conducted by the Authority;
d)the Authority assessed the information provided to it by the applicant and found that it was entitled to consider that information in circumstances where it was not “new information” for the purposes of s.473DD[40];
e)although the Authority was not required to get any documents or information or invite any person to give new information,[41] it properly exercised its power under s.473DD to consider the new information in relation to the data breach, there being exceptional circumstances for doing so; and
f)the Authority was not required to give to the applicant the new information, as it fell within the exception under s 473DE(3)(a)[42].
[38] (1994) 49 FCR 576
[39] (2006) 228 CLR 152
[40] CB 262 [4]
[41] Section 473DC(2)
[42] AFK16 v Minister for Immigration & Anor (No 2) [2016] FCCA 1827 at [31] per Judge Cameron
Ground 3 claims that the Authority made legal errors. The ground is on its face no more than an unparticularised assertion that the Authority made a mistake and does not give rise to jurisdictional error. That would have been a sufficient basis for this ground to be dismissed[43].
[43] WZAVW v Minister for Immigration [2016] FCA 760 at [35] per Gilmour J
Nevertheless, in the course of oral argument, the applicant identified as a key issue of concern to him that the Authority had rejected as untrue his claim to be a teacher in Pakistan whereas the Minister’s delegate had accepted that claim. It is noteworthy that, while the Authority relied on asserted inconsistencies in rejecting the claim, the delegate had found the applicant to be consistent in that claim. Relevantly, the delegate stated[44]:
The applicant has consistently maintained – since the Biodata interview conducted on 3 October 2013[45] - that he was employed as a teacher at the [“O”] Public School from 2008 until 2013 and was able to provide detailed information about his employment when questioned at interview.
I am satisfied that the applicant was employed as a teacher from 2008 until 2013 at the [“O”] Public School. However, I note that the applicant clarified that [“O”] was not a government run school but rather a private school.
[44] CB 206 [36]-[37]
[45] Department file ADD2013/1409210: *74168292880 – PIS013 – Case Assessment and Biodata Interview – 3.10.2013
In contrast, the Authority found as follows[46]:
[46] CB 264-266 [12]-[22]
The applicant has claimed he fears harm from unknown persecutors because he was a teacher at a school which received two threat letters in June 2013. The delegate accepted the applicant was a teacher. I note the delegate quoted country information from the FATA research centre and media reports in Pakistan confirming schools in the FATA were targeted by militant groups. But while mindful of that supportive country information, for the following reasons, I however have concerns about the applicant's claims he was a teacher and that he worked at a school that received threat letters. In my assessment below, I have redacted the names of the schools and the towns.
In his entry interview (and in the application forms accompanying his TPV application), the applicant stated he worked as an English teacher at 'O public school - tuition centre' in town A from 2008 to 2013. However at the entry interview, he did not raise any claims regarding any threat letters against the school at which he worked. He referred only to general violence against Shias in his home area and his suspicion the Taliban was responsible for that violence.
In the statement accompanying his TPV application (“the TPV statement”), he claimed he began working as an English teacher in 2005. He further stated that as well as being a teacher he was a second principal. He did not name the school. It was in the TPV statement he first raised claims regarding the threat letters against the school.
The applicant provided to the delegate a photograph of a handwritten 'experience certificate' dated 10 May 2013 from 'U community model school' in town S. That certificate states the applicant taught Urdu, Pakistani study (sic), mathematics and drawing. It does not state the dates he worked. The certificate is signed by an unnamed 'Principal'.
During the TPV interview, the applicant told the delegate he worked at 'U community public school' in town S. It had 400 students and 30-40 teachers. He worked there from 2008 until 3 weeks before he departed Pakistan in June 2013. He taught 4 subjects: drawing, social studies, Urdu and mathematics for 6 days a week from 8am-2pm. The applicant explained how he got the job. A man in the applicant's home town, Mr I was a government school teacher who then opened the school. Mr I needed teachers and offered the applicant a job, then slowly, slowly the applicant took the job. The applicant stated in his home area, having a year 10 level education was sufficient to do this job. He added that Mr I was the principal. The applicant became vice-principal one month before he came to Australia and was acting principal when Mr I was absent. He got that position because Mr I trusted the applicant and asked him to look after the school.
In the second IAA submission, the applicant states he became a school teacher two years after he finished year 10 (which equates to 2006). Due to his lack of experience, he was not a good teacher, but after two years, he became a popular teacher. He taught the same four subjects mentioned during his TPV interview and coached various sports. The school has 14-18 teaching staff. He was sometimes acting principal.
I am concerned by the number of material inconsistencies in the applicant's claims regarding his work as a teacher. I am mindful the names of school O and school U are very close and the difference may be attributable to variations in rendering the school's name into English. However, if the applicant worked at that school for the number of years he claimed, I consider it reasonable he would consistently state the correct location of the school, not both town A and town S. I consider it reasonable he would consistently name the school, not variations of 'public school - tuition centre', 'community public school' and 'community model school'. I further consider it reasonable if the applicant was an acting principal/second principal/deputy principal (and I accept these are all different ways of expressing the same concept) that the 'experience letter' would note the applicant held that role and that the experience letter would state the years the applicant worked at the school. I am concerned too regarding the inconsistencies in the year the applicant commenced work, the evidence before me variously states 2005, 2006 and 2008. That is a variance of three years. I am concerned too regarding the inconsistencies in the number of staff 30-40 or 14-18. In relation to that, I consider it possible the evidence at the TPV interview was 13-14, not 30-40. But 13-14 is still significantly different to 14-18. Finally, I am greatly concerned by the inconsistencies in whether the applicant was an English teacher or a teacher of drawing, mathematics, Pakistani studies (which I accept could be the same as social studies) and Urdu.
I note some of the inconsistencies I have identified are from information the applicant provided in the entry interview. That would usually be a reason to put lessor weight on those inconsistencies. However, he repeated the same inconsistent information (being an English teacher, commencing work in 2008 and working for O public school - tuition centre in town A) in his TPV application form in April 2016. Further, his work as a teacher is in essence the applicant's central claim for protection and receipt of the threat letters is his claimed motivation for leaving Pakistan, I consider it weighs against the applicant that he did not raise any claims regarding the threat letters during the entry interview.
I am concerned too regarding the plausibility of the applicant's explanation how he obtained employment as a teacher, that Mr I would offer him a job although the applicant had no teaching qualifications. I found the applicant's evidence at the TPV interview was not persuasive on this point.
The applicant's evidence regarding the two threat letters also contained inconsistencies. During the TPV interview, he told the delegate there was a two week gap between the first and second threat letters, but I note elsewhere in the interview he stated it was a one week gap. His TPV statement and the second IAA submission also state there was only a one week gap between the two threat letters. I put lessor weight on the applicant stating there was a two week gap during the TPV interview. The delegate put to the applicant too an inconsistency in his evidence from his TPV statement wherein he claims he waited weeks between the second threat letter and [his] departure from Pakistan, whereas elsewhere in the TPV interview he waited only [one] week. The applicant's response was not persuasive. He claimed by weeks, he was referring to between the first letter and his departure. However, the reference in his TPV statement is clearly a reference to waiting weeks after the second letter. The applicant's evidence too was inconsistent about his reaction to the first letter. In the TPV interview he stated he did not take … the first letter too seriously, but took some precautions by walking a different route to school. In the second IAA submission, he claims he thought the first letter was a joke and it was only after he received the second letter did he take any precautions for his safety by walking home a different direction after closing the school. I consider these inconsistencies regarding the threat letters to be of a lessor nature to those I discussed above in relation to his claims he was a teacher, but the inconsistencies regarding the threat letters also weigh against the applicant.
On the evidence before me, I am not satisfied the applicant's mental health sufficiently explains the multiple and material inconsistences and implausibilities in his evidence as outlined above. I am not satisfied the applicant was a teacher. It follows that I reject the applicant worked at a school that received threat letters and I reject that he was named in any threat letters to any school. I reject the 'experience certificate' is a credible document and I consider the applicant providing such a non-credible document to support his claims further undermines his credibility. In making that finding, I am mindful of the information in the DFAT country report[47] regarding the prevalence of fraudulent documents in Pakistan. I consider the applicant has fabricated his claims to be a teacher and to have work at a school that received threat letters as a basis upon which to apply for protection. It follows too that I reject anyone will target the applicant for harm because he was a former teacher. I am not satisfied there is a real chance the applicant will be harmed by the Taliban and/or other anti-Shia militants because of his claim to be a teacher, now or in the reasonably foreseeable future, if he returns to Pakistan.
(emphasis added)
[47] CIS38A801264: “DFAT Pakistan Country Information Report January 2016”, Department of Foreign Affairs and Trade, 15 January 2016
The applicant is concerned that the Authority focused on minor variations in his evidence, which he says were explained and some of which he asserts were factually wrong. He also asserts that some of the Authority’s factual conclusions are wrong. The purpose of playing the audio recording was for him to seek to demonstrate that he had in fact been consistent in his claims to be a teacher.
The applicant’s assertions, to my mind, gave rise to two issues: first, whether the Authority’s adverse credibility conclusion in relation to the teacher claim was based on a false factual foundation and unreasonable. This required a detailed examination of the information before the Authority and the interview recording; secondly, whether the Authority was obliged to alert the applicant to the fact that it proposed to deal with the review on a different basis to the decision of the delegate, in rejecting the applicant’s core claim which the delegate had accepted. In that regard, while the applicant had been permitted, consistently with the President’s Practice Direction, to make submissions in relation to the delegate’s decision to the extent that he disagree with it,[48] he was not invited to make any submission in support of the delegate’s decision insofar as he agreed with it. Under the general law, the applicant would be entitled to proceed on the basis that the delegate’s decision identified the relevant issues unless advised otherwise by the Authority. It occurred to me at the conclusion of the trial that a question must be whether the general law fair hearing rule, as enunciated by the High Court in SZBEL, has any application in light of the apparently exclusive procedural code binding the Authority. In that regard, it is important to note that there is no right to a hearing before the Authority, which performs a limited function of review of delegate’s decisions.
[48] CB 221
I invited further submissions from the parties on two issues:
a)whether it was open to the Authority to reach the opposite conclusion to the delegate as to whether the applicant was a teacher as claimed, based on material before it; and
b)whether the Authority should have given some opportunity to the applicant to provide further submissions once the Authority had reached a point that it was considering reversing the delegate’s finding on that issue.
That was when the real problems in this case began.
The applicant’s submissions on the issues raised
The applicant sensibly obtained legal representation and on 20 February 2017, submissions prepared by Mr F A Robertson of counsel were filed. Those submissions dealt with the questions in reverse order. Relevantly, the applicant submitted:
Question 2 - whether the Authority should have provided an opportunity for further submissions
The applicant submits that the legislation, particularly s.473DE of the Migration Act, required the Authority to obtain further submissions from him once it had reached a point that it was considering reversing the delegate’s finding on the issue of his employment as a teacher.
In summary, once the Authority reached a point where it was considering reversing the delegate’s finding (presumably on the basis that did not accept the applicant’s evidence on this point) that would fall within the very wide definition of “new information”. That would then engage the operation of s.473DE(1)(a), (b) and (c), requiring the Authority to be obligated to provide particulars of that new information (i.e. the credibility concerns), explain the relevance of that information (i.e. that the decision would likely be affirmed) and provide an opportunity to give comments either in writing or at an interview.
The framework within which fast track decisions are subject to review was set out in my judgment of CDR16 v Minister for Immigration & Anor[49] at [23]–[39] and is discussed above at [29]-[33].
[49] [2016] FCCA 2759
Division 3 of Part 7AA is taken to be an exhaustive statement of the natural justice hearing rule “in relation to reviews conducted by the Immigration Assessment Authority”.[50] This is in wider terms than s.422B(1) and operates to exclude the common law natural justice hearing rule.[51]
[50] Section 473DA(1)
[51] CDR16 at [34]; AFK16 v Minister for Immigration [2016] FCCA 1826, [12] (Judge Cameron)
The function of the Authority is to review the decision sent to it.[52]
[52] CDR16 at [32]
The form of review is a form of “limited review” that is “efficient, quick, free of bias and consistent with Division 3”.[53]
[53] Migration Act, s.473FA
Division 3 requires that:
a)the Authority is to conduct the review on the papers by considering the review material without accepting or requesting new information and without interviewing the referred applicant;[54]
b)the Authority may get any documents or information that were not before the Minister and the Authority considers relevant;[55]
c)notwithstanding that the Authority is to review the decision “on the papers”, the Authority has power to invite a person, orally or in writing, to give new information in writing or at an interview;[56]
d)the Authority has an ability to invite a person to give new information either orally or in writing;[57]
e)the Authority is obliged to give to the referred applicant particulars of “any new information” that has been or is to be considered by the Authority and would be the reason, or a part of the reason, for affirming the decision;[58] and
f)the Authority is obliged to explain to the applicant why the new information is relevant to the review and invite the applicant to give “comments” on the new information either in writing or at an interview.[59]
[54] CDR16 at [35]
[55] Migration Act, s.473DC(1)
[56] Migration Act, s.473DC(3)
[57] Migration Act, s.473DC(3)
[58] Migration Act, s.473DE(1)(a)
[59] Migration Act, s.473DE(1)(a) and (b)
The applicant submits that the invitation to give “any new information” pursuant to s.473DC and/or the invitation to give “comments” on what might be described as adverse information pursuant to s.473DE(1)(c) extend to the provision of a submission in relation to the matters that are in issue in the review.
Where the Authority is considering reversing a finding of the delegate, particularly a finding which the Authority noted that “[the applicant’s] work as a teacher is in essence the applicant’s central claim for protection…”,[60] this must be considered “new information” which would be the reason, or part of the reason, for affirming the decision.
[60] see Authority decision at [19]
The “new information” is the Authority’s adverse conclusion (contrary to that of the delegate) that the applicant’s evidence about working as a teacher was inconsistent and implausible.
Is the Authority’s adverse conclusion considered ‘information’?
Although in a different context, s.424A of the Migration Act requires decision-makers to give applicants clear particulars of certain types of “information” in certain situations. The scope of the term “information” was discussed in Alphaone in which Northrop, Miles and French JJ found at [30] that “a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question”. The High Court later endorsed this view in SZBEL.
However, the Full Court in Alphaone did provide an important qualification 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)
In Alphaone, the Full Court envisaged that there may be some types of “adverse conclusions” that were so obscure (i.e “not obviously… open on the known material”) that they go beyond being merely part of the decision-maker’s “mental processes or provisional views” and become information that should be put to an applicant. Similarly, the term “information” (in s.473DC of the Migration Act) should also be interpreted broadly to encompass an adverse conclusion which has been arrived at by the Authority and which would not obviously be open on the known material.
The Authority’s “adverse conclusion” (i.e. that the applicant had not been a teacher) was not obviously open on the known material. To the contrary:
a)the documents and information (“review material”) provided to the Authority by the Minister under s.473CB of the Migration Act indicated that the applicant was in fact a teacher: “I am satisfied that the applicant was employed as a teacher from 2008 until 2013”;[61] and
b)the Authority’s letter dated 22 July 2016 enclosing a practice direction[62] invited the applicant to “provide a written submission on why [he] disagree[s] with the department’s decision, and any claim or matter [he] presented to the department that was not considered.” There was no indication by the Authority that the applicant should (or could) provide further submissions in relation to those findings of the delegate which he agreed with.
[61] see delegate’s decision CB 206 [37]
[62] CB 218 – 229
The applicant contends that by deciding to reverse a finding of fact made by the delegate, the Authority was relying on an “adverse conclusion” (or “information”) that was not obviously open on the known material.
Is the Authority’s adverse conclusion considered “new information”?
Section 473DC of the Migration Act defines “new information” as “documents or information” that:
a)“were not before the Minister when the Minister made the decision under section 65”; and
b)“the Authority considers may be relevant.”
First, the Authority’s “adverse conclusion” (i.e. that the applicant had not been a teacher) was not before the Minister when the delegate made the decision under s.65. The delegate’s decision stated the contrary: “I am satisfied that the applicant was employed as a teacher from 2008 until 2013”.[63] Therefore, it is undisputed that this “adverse conclusion” only arose after the delegate’s decision and during the Authority’s review.
[63] see delegate’s decision CB 206 [37]
Secondly, by the Authority’s own admission, the applicant’s past occupation was considered relevant: the applicant’s “work as a teacher is in essence the applicant’s central claim for protection…”.[64]
[64] see Authority decision at [19]
For these reasons, the applicant submits that the Authority’s “adverse conclusion” should be considered “new information”.
Did the Authority’s adverse conclusion fall within the scope of “certain new information” that must be given to the applicant?
The Authority is obliged to give to the referred applicant particulars of “any new information” that has been or is to be considered by the Authority and would be the reason, or a part of the reason, for affirming the decision.[65] The Authority’s “adverse conclusion” (i.e. that the applicant had not been a teacher) was considered by the Authority in detail and formed part of the reason for affirming the decision.
[65] Migration Act, s.473DE(1)(a)
Such a conclusion is supported by the fact that, as outlined at [48] above, the form of review is expressed to be “limited…and consistent with Division 3”.[66]
[66] Migration Act, s.473FA
The applicant submits that where the Authority intends to depart from a finding of the delegate which can be characterised as central to the claims for protection, the Act requires the Authority to engage, at a minimum, the mandatory requirements of s.473DE, failing which, the Authority makes a jurisdictional error.
Whilst in this case, the Authority did invite the applicant to “give new information” by inviting the applicant to make a submission and the applicant did so,[67] he was deprived of being able to make a submission that actually engaged with the issues arising in the review because he did not have notice that the Authority intended to reverse the delegate’s finding.
[67] CB 254 – 257
In SZBEL Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ explained at [35] that an applicant will be entitled to assume that the issues arising in relation to the delegate’s decision are those that the delegate considered dispositive in deciding his or her protection visa application, and if the issues are considered by the Tribunal to be different, the Tribunal will be required to take steps to draw them to the applicant’s attention:
Also relevant in SZBEL is the following statement at [40]:
More than once it has been said that the proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant's claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant's claim, it would not be apt for the Act to describe the Tribunal's task as conducting a “review”, and it would not be apt to speak, as the Act does, of the issues that arise in relation to the decision under review. (footnotes omitted)
As far as the applicant could have reasonably been aware, the issues in the review did not extend to the delegate’s finding that he was a teacher. Whilst there was no joinder of that issue, the review did not need to extend to that finding, absent notice being given to the applicant that the Authority was considering departing from that course.
Such a conclusion would not contravene the proposition that procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given.[68]
[68] see SZBEL at [48]
Rather it merely ensures that the applicant is able to deal with the real issues which arise on a process which is described as “limited review”.
Question 1 - whether it was open to the Authority to reach the opposite conclusion to the delegate
The applicant’s submissions on this question have been overtaken by new authority. The Full Federal Court answered this question in the affirmative in BMB16 v Minister for Immigration.[69]The applicant nevertheless submits, consistently with his submissions on the other question, that the Authority’s power to reverse the finding of the delegate was constrained by the need to afford the applicant an interview to discuss, clarify or hear his evidence in relation to those issues – an advantage which the delegate had when making findings relevant to the applicant.
Minister’s submissions on the issues raised
[69] [2017] FCAFC 169
First question
On 7 March 2017 further submissions were filed on behalf of the Minister. I have included those submissions because they are consistent with the Full Federal Court decision in BMB16.
Relevantly, the Minister submits that the Authority was empowered, under Part 7AA of the Migration Act, to reach a conclusion different from that which has been reached by the delegate with respect to the question whether the applicant was a teacher in his home country, even if the same material were relied upon by the Authority.[70] In particular, as Judge Brown held in BMB16 v Minister for Immigration[71] (and as the Full Federal Court affirmed on appeal), the Authority is empowered, in affirming a decision, to do so for different reasons to that which informed the original decision maker. There is nothing preventing the Authority from doing so on the same material.
[70] BMB16 v Minister for Immigration [2017] FCCA 203 at [98]-[104] per Judge Brown; AMA16 v Minister for Immigration & Ors [2017] FCCA 303 at [12]-[21] per Judge Riley
[71] [2017] FCCA 203 at [98]
In these circumstances, there cannot be any irrationality or illogicality, which the applicant has not alleged in his submissions, in the Authority’s finding at [22][72], extracted at [37] above.
[72] CB 266
In any event, the factual premise underlying this question, which the applicant has accepted in making his submissions, is not correct. The material before the Authority was not the same as that which was before the delegate. The Authority had, in addition, the applicant’s submissions email on 29 July 2016[73] and those emailed on 9 August 2016.[74] The latter[75] advanced submissions with respect to the applicant’s time as a school teacher, including the year in which he commenced teaching, the number of teaching staff at that school, and the times at which he received threatening letters. These matters were referred to, and compared with the applicant’s other evidence on those matters, in the Authority’s reasons at [17]-[21].[76]
[73] CB 230, 253
[74] CB 254-257
[75] at CB 255-256. See the final sentence under the heading, “Education”, and the first paragraph under the heading, “Job & Serious Threat Letter & Significant Harm”
[76] CB 265-266
Second question
The combined effect of ss.473DA(1), 473DB(1) and 473DC(2) is that the Authority is required to conduct a review of the delegate’s decision on the papers (that is, without inviting an applicant to an interview and without accepting or requesting new information) and that the common law rules of procedural fairness do not govern the way in which reviews are to be conducted under Part 7AA.[77]
[77] See, for example, CCW16 v Minister for Immigration & Anor [2017] FCCA 2 at [69] per Judge Driver, referring to AFK16 v Minister for Immigration & Anor [2016] FCCA 1826 at [12] per Judge Cameron
The Minister contends that the arguments advanced in the applicant’s submissions, which rest on notions of procedural fairness at common law by reference to cases such as Alphaone and SZBEL cannot, therefore, be maintained. The requirements of the natural justice hearing rule identified in those cases do not apply.[78]
[78] AMA16 v Minister for Immigration & Anor [2017] FCCA 303 at [20]-[21]
One such adverse issue may be that the Authority is proposing to reach a conclusion on a claim advanced by an applicant different from that which had been reached by the delegate. The Authority is empowered to do so; it is empowered, in affirming a decision, to do so for different reasons to that which informed the original decision maker and it is not correct to say that it cannot do so on the basis of the documentary materials before it.
The Authority is, of course, empowered to invite an applicant to give new information pursuant to s.473DC(3). By reason of s.473DC(2), however, it is not under any obligation to do so. The Authority may, for example, exercise that power where it considers that it is not in a position to make a decision on the review without inviting the applicant to give new information. That, however, is not the present case.
There are a number of difficulties with the applicant’s contention that the Authority’s finding, in the second sentence at [22],[79] comprised “new information” and that, therefore, the Authority was obliged to extend an invitation pursuant to s.473DE or s.473DC.
[79] CB 266
First, the word “information”, as it appears in provisions such as s.473DE(1) (and s.473DC), refers to “the existence of evidentiary material or documentation” and not to the Authority’s “subjective appraisals, thought processes or determinations”.[80] Analogous provisions in the Migration Act such as ss.359A(1) and 424A(1) have been construed in this manner. There is no good reason why s.473DE(1) ought not to be construed in the same way if there is to be fidelity to the principle of statutory construction that words used in an Act should be read consistently, unless there is a legislative intention to the contrary. There is no such intention.
[80] SZBYR v Minister for Immigration (2007) 81 ALJR 1190 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ, referring to VAF v Minister for Immigration (2004) 206 ALR 471 at 476-477 per Finn and Stone JJ
On this view, the finding at [22][81] did not comprise information.
[81] CB 266
Secondly, it is difficult to see how the conclusion could be said to be something that is “considered” by the Authority pursuant to s.473DD, thereby enlivening s.473DE(1)(a)(i). The Authority’s finding was one that it made, based upon other information. The finding was not subjected to the requirements of s.473DD, as it was not new information.
Thirdly, if the obligation to give new information under s.473DE(1) is not enlivened, it would not be appropriate to construe s.473DC(3) in such a way as to require the Authority to extend an invitation to the applicant. Not only does that result in a construction of the two provisions that is not harmonious and offends the principle in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia,[82] but it also highlights a misreading of s.473DC(3). That provision says nothing about the Authority having to give new information to an applicant; it is only s.473DE(1) that does so.
[82] (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J
The Minister also contests the applicant’s assertion that the Authority’s conclusion at [22][83] was not “obviously open on the known material”. Even if it were necessary to consider this question (which the Minister does not concede, in the light of the discussion above as to the effect of the provisions in the code of procedure under Part 7AA within which the Authority operates), the Minister submits that the applicant’s submission should be rejected. The known material comprised the evidence given by the applicant during the visa application and merits review processes. It was that evidence, and the inconsistencies identified in it, upon which the Authority relied in concluding that the applicant was not a teacher.
[83] CB 266
A new issue emerges
Some time after judgment was reserved, the Minister’s solicitors contacted my chambers to advise that the Minister was contemplating conceding the case. However, it transpired that there was an obstacle to that outcome and the matter was relisted on 8 May 2017 to deal with that issue. For the purposes of that directions hearing, the Minister made the following submissions:
2.It has come to the Minister’s attention that the IAA may have fallen into jurisdictional error in a manner not alleged by the applicant: it considered the submission that he provided on 9 August 2016 (second submission) notwithstanding that it found, at CB 262 [4], that it did not comprise new information, yet used parts of the submission to make adverse findings against the applicant at CB 265-266 [18]-[22]. On one view, it may be said that, by doing so, the IAA took into account a matter to which it was not empowered to have regard. On another view, it may be said that the IAA was permitted to do so having regard to Practice Direction 1 (‘Practice Direction for Applicants, Representatives and Authorised Recipients’) issued by the President of the AAT, Kerr J, on 21 April 2016 (Practice Direction).
3. The purpose of these submissions is merely to highlight the issue has arisen.
The issue
4. Section 473CA compels the Minister to refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made.
5. Pursuant to s 473CB(1), the Secretary of the Department is required to give to the IAA the following material at the same time as, or as soon as reasonably practicable after, the decision has been referred to the IAA:
(a) A statement that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based and gives the reasons for the decision.
(b) Material provided by the applicant to the decision-maker before the decision was made.
(c) Any other material in the Secretary’s possession or control and is considered by him or her (at the time the decision is referred to the IAA) to be relevant to the review.
(d) Various contact details for the applicant.
This material, collectively, is referred to as the “review material” in s 473CB(1).
6. Section 473CC(1) of the Act requires the IAA to “review a fast track reviewable decision referred to [it] under section 473CA”.
7. However, the manner in which the IAA is to review a fast track reviewable decision is detailed in Division 3 of Part 7AA, which is entitled, “Conduct of review”. That Division contains ss 473DB, 473DC and 473DE, which relevantly provide as follows:
Immigration Assessment Authority to review decisions on the papers
(1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a) without accepting or requesting new information; and
(b) without interviewing the referred applicant.
…
Getting new information
(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
…
Considering new information in exceptional circumstances
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.
8. The IAA is a statutory body established under s 473JA(1) of the Act. Its powers and functions are contained in Part 7AA. Some of those powers and functions are express; others may be implied from the terms of the provisions in Part 7AA.[84] If a certain power or function is neither express nor implied, it does not exist. That is, the IAA’s powers and functions are not ascertained by asking whether Part 7AA prohibits the IAA from doing certain things; on the contrary, they are ascertained by asking whether Part 7AA empowers the IAA to do so.
9. Generally speaking, the IAA, in reviewing a fast track reviewable decision, is required to do so only by considering the “review material” provided under s 473CB(1). That is the effect of s 473DB(1). In certain limited circumstances, subject to the requirements of s 473DD being met, the IAA may review a fast track reviewable decision by considering “new information” (as defined in s 473CB(1)).
10. On one view, ss 473CB, 473CC, 473DB, 473DC and 473DD of the Act may be construed in such a way that the IAA does not have power to consider material that comprises neither “review material” nor “new information”. If such view were adopted, and the IAA does have regard to such material, and its having done so materially affects its decision, it will have “do[ne] something which [it] lacks power to do” and “depart[ed] from [the] limits upon the exercise of [its] power[s]”,[85] thereby falling into jurisdictional error. It will have “rel[ied] on irrelevant material” in such a way that its “exercise or purported exercise of power is thereby affected”.[86]In this connection, it should be noted that whether a breach is significant does not go to the exercise of the Court’s discretion to grant relief, but, rather, “whether the [ir]relevancy ground has been made out.”[87] That is the way in which the observations of Mason J (as his Honour then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 were interpreted by Moore and Lander JJ in Lansen v Minister for Environment and Heritage (2008) 174 FCR 14 at 34 [90]-[91] and 40 [120], [124]-[125].[88]
11. In the present case, the contents of the second submission were found by the IAA not to comprise new information. For that reason, they were considered. If the construction of the provisions identified at [10] above were adopted, it follows that the IAA was not empowered to have regard to the contents of the second submission. In most cases, that would not amount to jurisdictional error, as the IAA’s decision would not be materially affected (i.e. consideration of a submission would not be adverse to a referred applicant). In the present case, however, the IAA’s having considered the second submission did materially affect its decision, as its adverse findings at CB 265-266 [18]-[22] were based, in part, upon those parts of the second submission that dealt with the applicant’s occupation (see under the heading, “Job & Serious Threat Letter & Significant Harm” at CB 255-256). Consequently, in the circumstances of the present case, the IAA took into account irrelevant material and made a jurisdictional error.
12.On another view, it may be that the provisions listed above recognise a difference between information and submissions addressing the delegate’s decision with the result that the latter falls outside of the definition of “new information” in s 473DC(1). Judge Driver made similar observations at the hearing of DZU16 v Minister for Immigration and Border Protection (Proceedings SYG3657/2016) on 28 April 2017 by reference to the Practice Direction. On this view, [20]-[21] of the Practice Direction may have permitted the IAA to have regard to the second submission without it having to meet the requirements of ss 473DC and 473DD. Whether the IAA was empowered to do so turns upon the proper construction of the provisions listed in [10] above and s 473FB (pursuant to which the Practice Direction was issued), the status of the Practice Direction—that is, whether it is administrative or legislative in character, and whether, on a proper construction of the Practice Direction, it is consistent with provisions in Part 7AA of the Act.
[84] Compare, in respect of the implied powers of courts created by statute, DJL v Central Authority (2000) 201 CLR 226 at 241 [25] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, 268 [104] per Kirby J.
[85] Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J.
[86] Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
[87] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017) at [5.190].
[88] See also Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301 at 322-325 [116]-[125] per Gilmour, Foster and Barker JJ.
Counsel for the Minister informed the Court that some time would be required in order to see if a difference of opinion about these issues as between the Department and the Authority could be resolved. Counsel was unable to rule out the possibility that he might be instructed to put one set of submissions to the Court on behalf of the Department and a different set of submissions on behalf of the Authority. That was not an attractive prospect, either for the Court or counsel and I encouraged the parties to attempt to resolve their differences.
The applicant elected not to make any submission at that point on the issues raised.
Nothing further was heard from the parties for some time and the matter was followed up with the Minister’s solicitors in July 2017. The Minister’s solicitors subsequently advised that the issues as between the Department and the Authority could not be resolved and the Minister requested a further hearing. The applicant did not consent to a further directions hearing but my chambers advised the parties that, given the unusual circumstances, which had been explained at the hearing on 8 May 2017, the Court would provide a further opportunity for the Minister to explain his current position. In particular, I wished to be advised whether the Minister would concede the case or whether the judgment of the Court was required. Further, if the Court’s judgment was required, I wanted to be informed whether the parties saw the issues different from those already dealt with in submissions and, if so, whether they sought any further opportunity to make submissions. The matter was then listed on 16 October 2017.
At the hearing on 16 October 2017, counsel for the Minister read the affidavit of Ellen Lucy Goldsworthy Tattersall made on the same day. She deposed as to communications with the Authority concerning the submissions made on 8 May 2017.
In a letter dated 9 June 2017 to the Minister’s solicitors, annexed to Ms Tattersall’s affidavit, the Registrar of the Tribunal relevantly stated as follows:
The Tribunal, and within it the IAA in particular, is conscious both of the Minister's role in the general administration of the Migration Act and of its statutory duty to conduct independent assessment in cases which come to it. Given the latter and having regard to R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 17, 35-36, the Tribunal and thus the IAA does not consider that it would be appropriate for it to depart from the present, submitting appearance in the proceeding. It is further considered that it would not offend the Hardiman principle or the nature of the existing appearance if the Court, the Minister and the other party were each informed of the following in relation to the IAA's present practice and procedure:
It is common practice for the IAA, consistently with its Practice Direction 1, to have regard to submissions that comprise legal argument and opinion.
By way of explanation, that practice has been adopted on the basis that the relevant distinction is between information, which may be alternatively described as factual material, and legal argument or opinion. That distinction has been drawn on the basis that the meaning of “information” in the context of sections 359A and 424A of the Act, is informative, with Courts regularly drawing the distinction between “information” (relating to the existence of evidentiary material or documentation[89]) and other matters (such as opinion, thought processes, inferences, legislation and caselaw[90]
The IAA offers that explanation of the existing practice solely for informative purposes as to why the practice has been adopted, without seeking to advance any active, persuasive case based thereon.
[89] SZTGV v MIBP (2015) 318 ALR 45
[90]SZASX v MIMIA [2004] FMCA 680 (Barnes FM, 18 October 2004); SZFTE v MIMIA [2005] FMCA 1561 (Scarlett FM, 18 October 2005); SZHUO v MIAC [2007] FMCA 1688 (Raphael FM, 12 October 2007); Tin v MIMA [2000] FCA 1109 (Sackville J, 14 August 2000) at [54], SZEEU v MIMIA (2006) 150 FCR 214 at [206]-[207] per Allsop J. See also Paul v MIMIA (2001) FCR 396 at [95]; VAF v MIMA (2004) 206 ALR 471 at [24]; and SZASX v MIMIA [2004] FMCA 680 (Barnes FM, 18 October 2004) at [19]; NBKT v MIMA (2006) 156 FCR 419 per Young J at [30]; SZECF v MIMIA (2005) 89 ALD 242; SZBDF v MIMIA (2005) 148 FCR 302 and SZSOG v MIAC [2014)
FCCA 769 (Judge Barnes, 17 April 2014) at [108]
Counsel for the Minister left the matter on the basis of the Minister’s position that submissions about a delegate’s decision (and the material before the delegate), to the extent that they constitute new information for the purposes of Part 7AA of the Migration Act, could not be considered by the Authority except as permitted by that Part. To the extent that such submissions are not part of the review material before the Authority and are not new information, the Minister contends that there is no statutory authority for consideration of them by the Authority. The Minister contends that the President’s Practice Direction cannot be the source of any power to consider such material.[91] The Minister contends that, to the extent that the Practice Direction permits the Authority to receive new material otherwise than is permitted by Part 7AA, it is invalid.[92]
[91] cf DGZ16 v Minister for Immigration & Anor [2017] FCCA 623
[92] cf CVK16 v Minister for Immigration & Anor [2017] FCCA 235
Importantly, the Minister concedes that the Authority used information in the submission made by the applicant to impugn his credibility and, as that information was not properly before the Authority, it fell into error in the use it made of it, which goes to jurisdiction.
This would suggest that the applicant should, consistently with the Minister’s concession, receive the relief he seeks. However, before acceding to that outcome, I should consider the contrary position as explained by counsel and the Authority.
The applicant made no further submissions.
Resolution
If this case turned on the grounds of review in the application, or the two questions raised by the Court, I would prefer the Minister’s submissions. The case, however, turns instead on the new issue which emerged on 8 May 2017. On that issue, about which the applicant makes no submissions, it is necessary to address the competing views outlined by the Minister about the consequences of what the Authority did in this case.
There is no doubt that the Authority fell into error in dealing with information contained in the applicant’s submission, which had been received by the Authority consistently with the President’s Practice Direction and was considered by it. The more difficult question is what the error was, in a jurisdictional sense.
The key to answering this question is to consider what the Authority receives in response to a notification of a referral. The President’s Practice Direction, and the letter sent to applicants following the referral, distinguish between a submission about the delegate’s decision and new information. That distinction is an important one. I maintain the view I expressed in DZU16 v Minister for Immigration & Anor[93] at [81] concerning the distinction between asserted facts and circumstances, which is information, and submissions about existing facts or circumstances which is an expression of opinion, thought processes, inferences and legal submissions.
[93] [2017] FCCA 851
The distinction is consistent with the High Court’s decision in SZBYR v Minister for Immigration[94] and other cases. To that extent, I accept the Minister’s submission set out at [81] above: but it cuts both ways. In my view, the word “information” and the expression “new information” should be given a consistent meaning throughout Part 7AA of the Migration Act. It would be absurd (and highly unfair) for the Authority to be relieved of any obligation to disclose its own thought processes about a review to an applicant, pursuant to s.473DE of the Migration Act, on the basis of one meaning of information and new information, but for an applicant to be denied the opportunity to express his own opinions and thought processes, draw inferences or to make legal submissions about the material the subject of the review on the basis of contrary meaning. It seems to me that such an expression of thought or opinion is either information for all purposes within Part 7AA or it is not information for the purposes of that Part. In my opinion, it is not information.
[94] (2007) 81 ALJR 1190
As such an expression of thought is not information, it cannot be “new information”. It does not follow, however, that a submission cannot be considered by the Authority (bearing in mind that a submission by the applicant to the Authority following a referral is not new information and neither is it part of the review material provided by the Secretary of the Department). In my opinion, the authority for consideration of material that is neither new information nor part of the review material comes from s.473FB which empowers the President of the Tribunal to make a Practice Direction, provided (relevantly) that it is not inconsistent with Part 7AA. Where Part 7AA is silent about the conduct of reviews by the Authority, a Practice Direction is authorised to deal with such circumstances. Part 7AA is silent about the consideration of a submission from an applicant in response to a notice of referral. Part 7AA, however, envisages that a submission might be made by an applicant, if, for example, the Authority decided to invite “comments” from an applicant in writing or at an interview pursuant to s.473DF of the Migration Act.
In my opinion, there is nothing in the President’s Practice Direction which is inconsistent with Part 7AA and the Authority is entitled to consider submissions received from applicants in response to a notification of a referral.
There is, of course, a difference between theory and practice. In practice, applicants do not draw a clear distinction in making a submission between an expression of their opinion and the presentation of new facts and circumstances. That is what occurred here. An examination of Authority decisions reveals that the Authority has to deconstruct submissions on a regular basis in order to differentiate between what is a submission and what is an assertion of some new fact or circumstance, which can only be considered by the Authority if the requirements of s.473DD are met. Whether a submission or other document provided to the Authority contains new information is a jurisdictional fact which can be determined by the Court.
This was the error made by the Authority in this case. The applicant provided a submission which asserted new facts or circumstances. Those asserted facts or circumstances were new information but the Authority determined that they were not. The Authority erred by failing to identify the new information in the applicant’s submissions made to it. It incorrectly treated the whole submission as not being “new information”. As a consequence, the Authority failed to consider whether it should accept the new information in accordance with the requirements of s.473DD. Until such time as the Authority had met its obligations under Part 7AA in relation to the new information, the information was not available to the Authority to consider. Accordingly, it could not use the new information in order to support an adverse credibility finding against the applicant. These errors go to jurisdiction and the applicant should receive the relief he seeks.
I will hear the parties as to costs.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 10 November 2017
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