CRW20 v Minister for Immigration
[2021] FCCA 18
•14 January 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CRW20 v MINISTER FOR IMMIGRATION & ANOR | [2021] FCCA 18 |
| Catchwords: MIGRATION – Immigration Assessment Authority – protection visa – matter previously remitted by order of this court – whether Authority acted unreasonably in refusing a brief extension of time for the provision of new information and submissions – applicant in detention at relevant times – COVID-19 pandemic in early stages at relevant times. |
| Legislation: Migration Act 1958 ss.473DB(2), 473DC(1), 473DD |
| Cases cited: CAK19 v Minister for Home Affairs [2020] FCCA 1251 ENJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1079 Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 1783; (2018) 260 FCR 482; [2018] FCAFC 80 |
| Applicant: | CRW20 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File number: | MLG 2014 of 2020 |
| Judgment of: | Judge Riley |
| Hearing date: | 27 October 2020 |
| Date of last submission: | 27 October 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 14 January 2021 |
REPRESENTATION
| Counsel for the applicant: | Min Guo |
| Solicitors for the applicant: | Asylum Seeker Resource Centre |
| Counsel for the first respondent: | Andrew Yuile |
| Counsel for the second respondent: | No appearance |
| Solicitors for the respondents: | Clayton Utz |
ORDERS
The decision of the Immigration Assessment Authority made on 8 May 2020 in matter number IAA20/08121 be set aside.
The matter be remitted to the Immigration Assessment Authority for determination according to law.
The first respondent pay the applicant’s costs of the proceeding fixed in the sum of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2014 of 2020
| CRW20 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First respondent
And
| IMMIGRATION ASSESSMENT AUTHORITY |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Immigration Assessment Authority (“the Authority”). In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant’s claims
The Authority summarised the applicant’s claims in paragraph 11 of its reasons for decision dated 8 May 2020 as follows:
·He is a national of Sri Lanka and an ethnic Tamil and a Roman Catholic Christian who originates from Umanagari village in the area of Mutharippu in the Mannar District of Sri Lanka's Northern Province.
·He fears that if he returns to Sri Lanka he will be detained, imprisoned, and questioned, and tortured, and possibly killed by Sri Lanka's Criminal Investigation Department (CID) because in September 2007 he helped eight personnel of the Liberation Tigers of Tamil Eelam (LTTE) to escape from the Sri Lankan Army (SLA) by transporting these personnel and their bags of weapons with his fishing boat, and as a result there is a perception that he is linked to the LTTE.
·He also fears harm from the CID, and from the Sri Lankan authorities more broadly because he is an ethnic Tamil who formerly resided in an LTTE controlled area and who will be imputed to be a supporter of the LTTE, and because of his political opinion, and because he would be returning as a failed asylum seeker. He also [said] that he would be denied access to services or to earn a livelihood such that this would threaten his capacity to subsist.
The Authority’s reasons
The Authority accepted many of the applicant’s claims, but found it implausible that the police in Sri Lanka would have been looking for him in 2016. The Authority considered that, because of the passage of time and changes in the way LTTE supporters were now perceived in Sri Lanka, the chance of the applicant facing serious or significant harm upon return was remote.
The ground of review
The one ground of review in the application filed on 12 June 2020 is:
The IAA’s decision to refuse the Applicant’s request for a further 8 business days to provide submissions and new information, and making its decision prior to the expiry of the requested time, was legally unreasonable.
Particulars
a.The Applicant’s solicitors sought an extension of 8 business days, by letter on 5 May 2020, and set out the reasons why this extra time was required.
b.The IAA refused the request the same day, without engaging with the reasons the solicitors provided for the extension.
The applicant’s chronology
In his written submissions filed on 30 September 2020, the applicant submitted that it was important to understand the chronology of events leading up to the Authority’s decision to understand why its refusal to give an extension of eight business days to file written submissions and new information was legally unreasonable. The applicant submitted that the relevant chronology was as follows:
5.On 13 May 2016 the Applicant applied for a safe haven enterprise visa (SHEV).1
1CB 644 [1].
6.On 1 June 2017, a delegate refused the visa application.2
2Ibid.
7.On 12 July 2017, the IAA affirmed the refusal (First IAA Decision). Judicial review proceedings were then commenced.
8.On 6 March 2020, this Court quashed the First IAA Decision.3 It is clear from the reasons of this Court that adverse comments [were] made about the quality of the representation that the Applicant had in his dealings at the merits stages (which culminated in the First IAA Decision). The Court referred to the Department’s own file note which recorded concerns about the diligence of a previous migration agent the Applicant had engaged.4 The Court also criticised the diligence of a second migration agent evidently engaged to rectify the problems created by the first migration agent.5 In addition, the Court also observed that the First IAA Decision wrongly assumed that the Applicant had ‘‘legal’ representation at the SHEV interview’ when that was not the case.6
3CB 532.
4CB 562 [73] (the judge quoting from a Departmental file note: ‘he'd provided documents with translations to his lawyer to forward to the department but does not think his lawyer forwarded these documents…’). See also [74].
5CB 565 [80] (‘…the second agent has prepared material addressing the conduct of the first agent that is so lacking in detail and prominence that one has to question whether the second agent even identified its importance’).
6CB 565 [82].
9.In other words, by the time of the First IAA Decision, the IAA was on notice that the Applicant had been deficiently assisted by his two previous migration agents, and that during the merits stage he had not had actually had legal representation, contrary to what the IAA had said.
10.On 8 April 2020, a letter informing the Applicant that the IAA was to reconsider his review was hand-delivered to him.7
7CB 580.
11.Later on 8 April 2020, the Applicant spoke to an IAA officer through an interpreter. The IAA’s file note of that conversation show[s] that the Applicant did not understand the letter (he ‘wanted to know what it said’).8 The same file note also recorded that the Applicant at that stage did not have representation, but that the Applicant indicated an intention to find one (‘[h]e noted that he may appoint Victoria Legal Aid to assist him’).9
8CB 582.
9Ibid.
12.On 22 April 2020, the IAA received a telephone call from a ‘solicitor … seeking to assist the applicant’. The IAA recorded that this lawyer had asked ‘how she could submit an appointment for to (sic) the IAA as the applicant is in detention and has limited English, so it will be difficult to have him complete a form’. The IAA also knew that the lawyer might not be able to get back in contact with the Applicant that day: it recorded that the lawyer would ‘attempt’ to contact the Applicant later that day.10
10CB 583.
13.Later that day, the lawyer emailed the Applicant and asked him to forward that email to the IAA, as evidence of the Applicant’s desire to appoint her as his lawyer.11 The Applicant did so.
11CB 585.
14.Shortly after, the Applicant telephoned the IAA to confirm whether it had received the Applicant’s email. The IAA also recorded the lawyer telling it ‘that she will send something on the applicant’s behalf shortly’.12
12CB 586.
15.Later that day, at 4.10pm, the lawyer asked for an extension of time by 21 days in which she could provide submissions. She said that there were exceptional circumstances justifying the request, and specifically cited as reasons:
a.the COVID19 restrictions;
b.the increased demand on community legal assistance;
c.the Applicant’s ‘serious mental health issues’;
d.the Applicant not having been able to access any legal advice prior to that day (it is obvious from the circumstances that this meant no legal advice as it pertained to the quashing of the First IAA Decision);
e.the Applicant being in detention.13
13CB 587.
16.These matters readily indicated that the lawyer needed time to provide advice and obtain instructions before providing further material to the IAA.
17.The next morning on 23 April 2020 at 11.36am, the IAA emailed the lawyer and said that the request ‘has been considered, but not granted in this case’.14 The email from the IAA did not indicate any consideration or consciousness of the matters that the lawyer relied on by the person who decided not to afford the short extension. The email did however, indicate that the IAA had ‘taken into account that this case was referred … on 6 June 2017’. It did not claim that anything else had been taken into account. The IAA’s email said that the date by which submissions ought to have been provided was 27 June 2017, some three years earlier.
14CB 590.
18.Significantly (as will be developed below), the email also warned the lawyer that because submissions had already been on file (but with no appreciation of this Court’s earlier criticisms of their quality which led to the First IAA Decision being quashed):
Any further submissions which, when considered together with existing submissions, exceed the total allowable length of 5 pages will generally not be considered. You may wish to withdraw or otherwise amend the submissions already provided in order to ensure any new submissions comply with the Practice Direction.15
15Ibid.
19.The assertion of the page limit by the IAA in respect of submissions was one thing, but it eschewed any appreciation that the 5-page document previously provided to it was a mix of submissions and ‘new information’, as the Court had found.16 There was a 5 page limit in respect of submissions, but submissions are not ‘new information’, and the latter could therefore not count towards the page limit.17
16CB 558 [65] (‘The attached statement was a statement of the applicant that runs for five pages which are largely submissions, but also contains evidence. The agent made no effort to distinguish submissions from new information …’).
17Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [35].
20.Later that day the IAA had a telephone conversation with the lawyer.18 The IAA’s file notes record that the lawyer had disputed that the matter had been referred ‘on 6 June 2017’, given that the matter had only been remitted to it by this Court on 7 April 2020,19 and that the lawyer considered that the 21 days contemplated under the practice direction within which submissions and new information should be provided had not yet expired.20
18CB 593.
19Ibid.
20CB 577-578 [24], [32].
21.On 26 April 2020, acting with alacrity following the IAA’s refusal of extension of time, the Applicant’s lawyer submitted a request to the IAA for access to material held by it in relation to the Applicant, pursuant to the Freedom of Information Act 1982 (FOI Act).21 Consistent with that alacrity, she agreed to receive documents ‘without the formality of an FOI request’.22 The terms of the FOI request, coupled with the circumstances of the lawyer’s appointment as recorded in the IAA’s own notes, ought to have put the IAA on notice that the lawyer did not have all the relevant material to give the Applicant informed advice and make informed submissions to the IAA.23
21CB 602.
22CB 607.
23CB 603.
22.On 27 April 2020, the IAA acknowledged the FOI request. However, the acknowledgement carved off part of the request to the Department. With some irony given the lawyer’s reference to COVID as a (rejected) reason for needing more time, when the FOI request was carved out to the Department, the Department responded (sic) to the IAA indicated that a response ‘may not be delivered within expected timeframes’ because of COVID.24 In fact, as it transpired, it seems the Department did not respond to the carved off part of the FOI request prior to the IAA’s decision.
24CB 611.
23.On 30 April 2020, the IAA provided further documents in response to the FOI request.25
25CB 620.
24.On 5 May 2020, the lawyer wrote to the IAA26 and restated the content of her previous telephone discussions that she was unable to provide further submissions because the IAA considered that it had received a 5-page statement (in 2017) and that the page limit had therefore been reached (this statement from the IAA was incorrect for the reasons this Court previously gave27). The lawyer specifically stated that the Applicant ‘should have a reasonable opportunity to provide a new 5-page submission and supporting materials for consideration’ because:
27See [19] above.
a.‘new submissions and materials are necessary to address the applicant's changed circumstances, recent changes to country information and the findings of the Federal Circuit Court’;
b.the 5-page statement provided by the applicant’s previous migration agent ‘failed to distinguish between submissions and evidence and did not adequately outline the grounds in which new evidence can be considered by the IAA. Further to this, it is of little assistance as it is now outdated as it fails to encapsulate the referred applicant's heightened risk profile pursuant to the most recent country information in Sri Lanka’;
c.‘as we have been advised that we are not permitted to submit an additional statement, we request to withdraw the statement dated 29 June 2017 and intend to provide a 5-page submission and supporting material by 15 May 2020’ (this being consistent with the warning and option given by the IAA in its email of 23 April 2020: see [18] above);
d.‘we were only recently appointed as legal representatives and our office only received documents in our Freedom of Information request on 30 April 2020’;
e.‘[w]e have also been constrained to conducting legal appointments by phone with an interpreter following visitation restrictions due to the COVID19 pandemic’;
f.‘the applicant's deteriorating mental health condition necessitates a need for coordination with his counsellor before and after his telephone legal appointments’;
g.the Applicant had instructed that ‘he would prefer to wait three weeks or longer [in detention] … rather than be denied any meaningful opportunity to put forward his case’.28
25.The IAA wrote to the lawyer several hours later, rejecting the request. It did so even though it was aware the lawyer now disclaimed on behalf of the Applicant reliance on the 2017 statement, which was the subject of criticism by this Court and which the IAA itself invited the lawyer to consider doing.29
26.Three days later, on 8 May 2020, the IAA affirmed the visa refusal.30
28CB 634-635.
29CB 637.
30CB 640.
The Minister’s comments on the applicant’s chronology
In his written submissions filed on 13 October 2020, the Minster provided the following commentary on the applicant’s chronology:
3.The factual background to the ground of review now before the Court is generally uncontroversial. Much, but not all, of the background set out by the applicant in his submissions (AS) may be accepted:
a.The first respondent accepts what is said at AS [5]-[7].
b.Regarding AS [8], it is of course accepted that this Court quashed the previous decision of the IAA, though the reasons of the Court speak for themselves. Regarding the conduct of the prior agents, it should be noted that this Court referred at [80] (CB 565) to:
i. “alleged negligent conduct” of the first agent, though without needing to make a firm finding in that regard;
ii. material from the second agent that was lacking in detail about the conduct of the first agent, but without commenting on the other material presented by the second agent as to the merits of the applicant’s case or about the second agent’s conduct more generally;
iii. the natural consequence of policy choices about representation in the AAT which mean that the AAT might often receive less assistance than courts, without making any finding about the substantive content of the second agent’s submissions.
c.It is also necessary to point out that the Court at [82] was referring to legal representation at the SHEV interview, not to legal representation more broadly.
d.It follows from the above that the first respondent would not accept what is said at AS [9].
e.The first respondent accepts what is said at AS [10]-[11], but also notes that the applicant had the IAA’s letter or the substance of its contents translated to him on the spot over the phone.1
f.The first respondent accepts what is said at AS [12]-[14]. As to AS [15], the letter from the applicant’s representative speaks for itself.
g.As to AS [17]-[18], the email from the IAA at CB 590 also speaks for itself. However, it may be noted in response to AS [17] that in circumstances where the IAA did not need to give reasons for refusing to give more time, the statement that the matters raised in the applicant’s email “had been considered” was sufficient to demonstrate consideration.2 In any case, as will be developed, further particulars of the IAA’s reasoning were provided in the IAA’s decision.
h.The first respondent accepts that the applicant’s representatives sought documents by FOI on 26 April 2020, as referred to at AS [21]-[22], though it is of significance and not mentioned by the applicant in submissions that the IAA arranged for documents to be provided to the representative as soon as possible and beginning on the business day that the request was received, on 27 April 2020.3 Critical documents including recordings were provided that day. Further documents were provided 3 days later, on 30 April 2020.4
i.The further email from the applicant’s lawyer, referred to in AS [24], will be discussed further below. It speaks for itself.
j.As referred to in AS [25], the IAA gave its response on the same day as the request.
1Court Book (CB) 582.
2Plaintiff M64 of 2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 25; Goodwin v Commissioner of Police [2020] FCA 950 at [30]-[32].
3CB 614-616.
4CB 619-632.
A more succinct chronology
A more succinct, and uncontroversial, chronology is as follows:
a)on 13 May 2016 the Applicant applied for a safe haven enterprise visa;
b)on 1 June 2017, a delegate refused the visa application;
c)on 12 July 2017, the Authority affirmed the refusal;
d)on 6 March 2020, Judge Riethmuller of this court quashed the Authority’s decision made on 12 July 2017;
e)according to paragraph 1 of the Authority’s reasons for decision (CB680), the matter was remitted to it on 7 April 2020;
f)on 8 April 2020:
i)the Authority advised the applicant by letter that it would reconsider his application; and
ii)the applicant advised the Authority by telephone that he wanted to know what the letter said and that he might appoint Victoria Legal Aid to represent him;
iii)the Authority advised the applicant by telephone that he should act quickly, because the Authority could make a decision at any time; and
iv)the Authority also advised the applicant by telephone that it had a submission from him but he could send a replacement submission if he wished;
g)on 22 April 2020 at 4.10pm, a lawyer from the Asylum Seeker Resource Centre emailed the Authority:
i)advising that she had been engaged by the applicant; and
ii)seeking 21 days, until 13 May 2020, to provide further submissions to the Authority;
h)on 23 April 2020 at 11.36am, the Authority emailed the ASRC lawyer saying that the request for an extension of time of an additional 21 days to make a submission to the Authority had been refused, and saying:
Your request has been considered, but not granted in this case. We have taken into account that this case was referred to the IAA on 6 June 2017. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any submission on why the delegate’s decision may be wrong should be given within 21 days of the date on which the case was referred to us by the department. The 21 day period ended on 27 June 2017 and submissions have already been received in relation to this case.
Please be aware that, should you provide further submissions addressing the delegate’s decision, the length of the submissions already provided will be taken into account when assessing whether any further submissions comply with the Practice Direction. Any further submissions which, when considered together with existing submissions, exceed the total allowable length of 5 pages will generally not be considered. You may wish to withdraw or otherwise amend the submissions already provided in order to ensure any new submissions comply with the Practice Direction.
i)on 23 April 2020 at about 12.50pm, in a telephone conversation:
i)the ASRC lawyer said that the 21 day period to make submissions should run from the date of the remittal, which she said was 7 April 2020, although the court order was on 6 March 2020; and
ii)the Authority said that, although it was a remitted matter, the original date of 6 June 2017 was still the deadline for submissions;
j)on 26 April 2020, the ASRC lawyer made a Freedom of Information request;
k)on 27 April 2020, the Authority acknowledged receipt of the FOI request, although it sent part of it to the Department for action;
l)on 30 April 2020, the Authority provided documents in relation to the FOI request, although the Departmental documents remained outstanding;
m)on 5 May 2020 at 10.37, the ASRC lawyer emailed the Authority saying:
…
… It is our position that the applicant's matter is a de novo review, and the applicant should have a reasonable opportunity to provide a new 5-page submission and supporting materials for consideration. Further, and in the alternative, the IAA is required to exercise its statutory and non-statutory powers reasonably (Li; Jabbour v Secretary, Dept of Home Affairs (2019) 166 ALD 17; (2019) 369 ALR 620; [2019] FCA 452 at [91]-[92]).
We submit than an extension of time should be permitted as new submissions and materials are necessary to address the applicant’s changed circumstances, recent changes to country information and the findings of the Federal Circuit Court. To not allow submissions would not only be unreasonable but undermines the writ of mandamus directed to the IAA by the court to determine the application for review.
On 29 June 2017 the applicant’s previous migration agent provided the IAA with a 5-page statement and supporting evidence pursuant to Practice Direction for Applicants, Representatives and Authorised Recipients under section 473FB of the Migration Act 1958. We note that this statement failed to distinguish between submissions and evidence and did not adequately outline the grounds in which new evidence can be considered by the IAA. Further to this, it is of little assistance as it is now outdated as it fails to encapsulate the referred applicant’s heightened risk profile pursuant to the most recent country information in Sri Lanka.
Notwithstanding our above-outlined arguments, as we have been advised that we are not permitted to submit an additional statement, we request to withdraw the statement dated 29 June 2017 and intend to provide a 5-page submission and supporting material by 15 May 2020. We believe our request is reasonable as we were only recently appointed as legal representatives and our office only received documents in our Freedom of Information request on 30 April 2020. We have also been constrained to conducting legal appointments by phone with an interpreter following visitation restrictions due to the COVID19 pandemic. Further to this, the applicant's deteriorating mental health condition necessitates a need for coordination with his counsellor before and after his telephone legal appointments. (emphasis added)
…
n)on 5 May 2020 at 3.30pm, the Authority emailed the ASRC lawyer refusing the applicant’s request for an extension of time until 15 May 2020; and
o)on 8 May 2020, the Authority affirmed the visa refusal, and in doing so, explained why the request for an extension of time had been refused as follows:
6.… given that some weeks have now passed since not just the remittal of this matter to the IAA but also the 22 April 2020 appointment of the applicant’s current representative, and given the IAA’s administrative release of 27 April 2020, and given that it is not clear why such new country information as might be considered relevant has not yet been provided, or what has changed in the applicant’s circumstances that is relevant to the assessment of his claims to protection, or what it is about the findings of the Federal Circuit Court that the applicant wishes to draw the IAA’s attention to, I was not satisfied that the circumstances warranted the granting of additional time. This noted, the IAA advised that any submission (on why the decision of the Department was disagreed with; or on any claim or matter that was overlooked by the delegate) or any new information which was provided to the IAA before a decision was made may be accepted subject to the requirements of the Practice Direction. It is now 8 May 2020 and given that nothing further has been received I have decided to proceed to a decision having regard to the submission and new information which the applicant provided in June 2017.
Legislation
Section 473DB(2) of the Migration Act 1958 (“the Act”) provided that:
Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
Section 473DC(1) of the Act provided that:
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.
Section 473DD of the Act provided that:
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 practice directions
The Authority issued a practice direction regarding new information and submissions which was effective from 17 December 2018, and updated it with effect from 1 May 2020. The updated practice direction came into effect about one week before the Authority made its decision in this matter, and after the ASRC lawyer made her request for more time on 5 May 2020.
The practice direction effective from 17 December 2018 said:
Submissions and new information
20.Reviews are generally conducted on the papers provided by the Department and are expected to be completed within six weeks of referral. However you may provide written submissions, and in exceptional circumstances we may consider new information. (emphasis added)
…
22.Subject to the requirements of the Migration Act, a decision may be made at any time after referral from the Department.
Submissions
23.For the purposes of the review, you may provide a written submission on the following:
·why you disagree with the decision of the Department
·any claim or matter that you presented to the Department that was overlooked.
24.Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should:
·be no longer than 5 A4 size pages …,
…
·be provided to us within 21 days of your case being referred to us by the Department.
25.We may return longer submissions or submissions that do not comply with these requirements. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions.
New Information
…
32.Any new information you give to us that we have not requested of you, must be given to us within 21 days of the date on which your case was referred to us by the Department. Any new information given to us by the Department that has not been requested, must also be given to us within 21 days of the referral.
The practice direction effective from 17 December 2018 did not specifically address remittals. The practice direction effective from 1 May 2020 contained some new paragraphs which specifically addressed that issue by saying:
25.If we are reconsidering your case following remittal by a court, reviews are expected to be completed promptly, and a decision may be made at any time after a court order is made.
…
29.If we are reconsidering your case following remittal by a court, we will have regard to any compliant submissions already provided, but will generally not accept any further submissions.
…
38.If we are reconsidering your case following remittal by a court, any further new information you wish to provide must comply with the requirements in paragraphs 31-36 of this direction [which concern subjects and format] and should be given to us as soon as possible, as a decision may be made at any time after a court order is made.
In addition, instead of paragraph 25 of the practice direction which was effective from 17 December 2018, the new practice direction said in paragraph 28:
We may not accept submissions that do not comply with these requirements.
The legal framework
The parties were not in dispute about the legal principles relating to unreasonableness in administrative decision making.
There was some debate between the parties about whether the Authority deciding not to give more time for the provision of submissions and new information was the exercise of non-statutory executive power or the exercise of statutory power. However, ultimately, the parties did not require the court to resolve that issue, because it was agreed that the Authority had power to wait for new information and submissions, and that power could be exercised reasonably or unreasonably.
While there are express statutory provisions in the Act relating to new information, the Act is silent on whether submissions may be provided to the Authority and the Authority’s obligations in relation to any submissions that it receives.
The applicant argued that he had a right to make submissions. The Minister argued that there was no right to make submissions, but if they were made, the Authority had power to consider them. That power was confirmed in Minister for Immigration and Border Protection v CLV16 (2018) 260 FCR 1783; (2018) 260 FCR 482; [2018] FCAFC 80 where Flick, Griffiths and Perry JJ said:
35.The Authority, it is concluded, is not precluded by ss 473DC and 473DD from entertaining a “submission” directed to such matters as:
·the information already made available to the Authority and the consequences which it is “submitted” should flow from that already established pool of factual information; or
·the reasons why “new information” should be considered, including a “submission” as to why such “new information” satisfies the criteria in s 473DD.
…
38.Any broadly expressed contention that the Authority could not entertain a “submission” made in relation to the fast track review function being exercised is to be summarily rejected.
The applicant said that it was implicit in CLV16 that an applicant had a right to make a submission. However, the fact that the Authority has the statutory power to consider a submission does not mean an applicant has the statutory right to make one. I accept the Minister’s argument that an applicant does not have a right, as such, to make a submission to the Authority.
Nevertheless, the Authority has said in its practice directions that applicants may make written submissions to it of no more than five pages in length within 21 days of referral. That is not a statutory right. However, if the Authority did not act in compliance with its own practice direction, it is likely that any subsequent decision could be set aside for unreasonableness.
In the present case, the matter was being considered following a remittal. In such cases, the practice direction effective from 1 May 2020 said that, generally, the Authority would not consider any further submissions.
Obviously, the practice directions do not have the force of law, and, indeed, cannot fetter the Authority’s discretion in any particular case.
Whether the Authority exercised its discretion reasonably in this particular case is the question before the court.
Similar cases
The parties accepted that each case must be decided on its own facts.
Nevertheless, the applicant argued this case was very similar to CAK19 v Minister for Home Affairs [2020] FCCA 1251, where Judge Riethmuller found that a refusal by the Authority to allow an applicant an additional 11 days to file an expert report from a psychologist was a decision that no reasonable decision maker could have made.
The Minister said that CAK19 was different to the present case in critical respects. The Minister said that the present case was much more similar to ENJ17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1079, where White J found that the Authority’s refusal to allow an additional 21 days to provide additional submissions and new information, while a decision that many decision-makers would not have made, was nevertheless not arbitrary, capricious, or lacking an evident and intelligible justification.
In CAK19, Judge Riethmuller said:
10.After the remittal of the second decision of the IAA, the applicant’s representative (the Refugee & Immigration Legal Centre) wrote to the IAA seeking to provide new information to the IAA, saying (at CB p.244), inter alia:
Given the nature of [the Applicant]’s claims and current situation, we believe that the IAA will be assisted by expert opinion and detailed submissions in relation to this matter. Including without limitation, we believe the following issues would be determinative in this review:
• [the Applicant]’s current mental health situation; and
• the nature and seriousness of his disclosures to the most recent IAA; and
• His online activity in recent times;
We intend to provide detailed submissions, including specialist psychiatrist report and other expert evidence on or before 11.59pm 3 April 2019. Noting that the six week time period [for completion of the review] referred to in your letter ends on 12 April 2019, we request that the Authority exercise its discretion not to make decision until it has considered our submissions and evidence we intend to provide by 3 April 2019. Given the passage of time since the delegate’s decision, the previous IAAs decisions being affected by jurisdictional error (including with error leading to the Minister remitting by consent in the most recent case), the extremely sensitive nature of the applicant’s personal circumstance, and the applicant being detained at an immigration detention facility with limited access to his representatives, we stress the importance of updated information, expert reports and submissions we intend to provide to the Tribunal within what we consider is a reasonable time of 22 days from today.
I would be grateful for a response confirming that the IAA is minded to accommodate this request.
…
12.Correspondence continued between the representative and the IAA, each time the representative making polite requests supported by cogent arguments (for example, that 962 days had passed since the delegate’s decision), and each time the IAA refusing to extend the time reiterating that the Practice Direction required that any new information be provided within 21 days of the referral of the case from the delegate to the IAA, which in this case was 2 August 2016. On 31 March 2019 the representative wrote saying (at CB p.302), inter alia:
Further medical report from Dr Nguyen
We have requested consultant psychiatrist Dr Tram Nguyen attend MITA in order to conduct a mental health assessment of [the applicant] on 27 April 2019, for the provision of a further report to the IAA by 3 May 2019. We are concerned that [the applicant’s] mental health situation has deteriorated since the time of last assessment by Professor Sundram. 3 May 2019 is the earliest date on which an appropriately qualified medical professional is available to provide a pro bono report. We act on a pro bono basis and given his [impecuniosity] the applicant is unable to obtain a psychiatrist report prior to that date. We request you refrain from making a decision adverse to our client pending the provision of Dr Nguyen’s report.
…
15.The reasons of the IAA are curious in that it is a common turn of phrase for solicitors to use the word ‘we’ in correspondence, which clearly means the view of the solicitor as the relevant guiding mind of the law firm in the context of the particular case. The concern about lack of particulars is also unusual in the context. It would be rare that a solicitor would be challenged to give particulars of why they had formed a view that they are concerned about a client’s mental health (and had a professional report commissioned) for two reasons:
a)The solicitor is not an expert on mental health; and
b)The reasons may well lie in interactions that are subject to legal professional privilege.
…
19.The Practice Direction provides a time frame for submissions and new information of 21 days from the date of the referral of the delegate’s decision to the IAA. However, it does not provide that the IAA cannot receive material outside those time frames, nor proscribe the process with respect to cases that require more than 6 weeks for completion. Obviously the present case is not on the usual pathway within the IAA, as it has been running for nearly 4 years. Regardless of the time that had passed, it was still necessary for the IAA to act in a legally reasonable manner in conducting the review under Part 7AA. This included providing the applicant with a reasonable opportunity to make submissions and provide ‘new information’ for consideration by the IAA.
20.In this case, after a delay of over 960 days since the delegate’s decision (involving two judicial review applications, an appeal to the Full Court of the Federal Court and a Special Leave application to the High Court, where the applicant has succeeded in each judicial process) the Practice Direction time frames were of limited use, other than to reinforce that decisions should be made expeditiously. Given the time this matter has taken it is hardly surprising that there would be a desire to put further information before the IAA. In addition, the underlying nature of the issues has also changed considerably over the years such that mental health issues are now central to the claim.
…
22.The material was plainly likely to be relevant as the applicant’s mental health was a central issue in the decision of the IAA.
23.It is truly remarkable that a request of a further 11 days for a professional report being undertaken expeditiously and pro bono (the psychiatrist attending the detention centre on a Saturday) would be refused. Whether the report would ultimately have been received depended upon decisions that the IAA had to make under ss.473DC and 473DD of the Act.
24.The conduct of the IAA in this regard was legally unreasonable. It lacks any intelligible justification. No reasonable decision maker would deny a person a further 11 days, after delays of over 960 days, when they are seeking to provide an expert report which has already been arranged, addressing a central issue in the proceedings, even in the context of the strictures of ss.473DC and 473DD.
In ENJ17, White J said:
5.On 5 February 2019, the IAA sent an email to the appellant at his personal email address informing him that, on 24 January 2019, “a court” had remitted his case back to the IAA for reconsideration and that it would now proceed to that reconsideration. The email went on to inform the appellant (relevantly):
It is important that you:
· advise us in writing if you wish to appoint a person to receive correspondence on your behalf or act as your representative (to do this, visit and obtain form F2);
· act quickly in your dealings with us (as we aim to complete the review within six weeks of the case being remitted to us); and
·…
(Emphasis added [by White J])
…
7.Mr Chang sent an email to the IAA at 11.03 am on Wednesday, 13 February 2019. The substance of Mr Chang’s email was as follows:
Dear Sir/Madam
We act for [redacted], who has recently sought RASSA’s assistance with submitting a further response to the IAA. Please find attached a signed Form F2 on behalf of our client.
We note your letter dated 5 February 2019, which informs the review applicant that you aim to finalise his case within six (6) weeks.
Noting that
1. RASSA has not previously assisted the applicant and requires time to gather information and documents; and
2. RASSA has limited resources with part-time staff only; and
3. the review applicant has a history of complex medical issues which make it difficult for him to engage with the legal process;
We ask that you please provide us with the following:
1. The exact date on which the remittance from the Federal Circuit Court was received by your office; and
2. A date by which we can provide submissions and additional evidence on behalf of the applicant, without your office first finalising the matter. We ask you to please consider setting this date to be no earlier than four (4) weeks from the date of this email.
Thank you for consideration of our request.
Yours sincerely
…
9.The IAA responded to Mr Chang’s email at 3.03 pm on the same day. The substance of its response was as follows:
Dear [Mr] Chang,
As stated in the IAA letter dated 5 February 2019, a court remitted the applicant’s case back to the IAA for reconsideration on 24 January 2019.
We have considered your correspondence of 13 February 2019 requesting additional time to provide submissions and further information.
We have taken into account that the applicant’s case was referred to the IAA on 10 March 2017. Under the Practice Direction for Applicants, Representatives and Authorised Recipients any new information must be given to the IAA within 21 days of the date on which the case was referred to us by the Department. The Direction also states that any submission on why the delegate’s decision may be wrong should be given within that period. The 21 day period ended on 31 March 2017.
We also note that the applicant previously provided a submission on 3 April 2017 that is before the IAA.
Please note that a decision may be made at any time.
Yours sincerely
Immigration Assessment Authority.
…
19.The IAA accepted that the appellant suffers from a significant congenital health condition. Medical evidence before the IAA indicated that this is a condition affecting the appellant’s blood which has caused irreversible degenerative arthritis, and in turn, significant limitations of the appellant’s mobility and capacity to perform remunerative work. Medical evidence provided in support of the application for judicial review supported the existence and seriousness of these conditions and the appellant’s ongoing receipt of treatment for them. The IAA member also accepted that the appellant had received treatment for his mental health in 2016, but the materials did not indicate the nature of that condition.
…
31.Counsel emphasised that the appellant’s case was not, on the reconsideration, the paradigm case before the IAA. In such a case, the relatively close contemporaneity between the decision of the delegate and the IAA’s review makes it unlikely that there will have been much change in the circumstances of the referred applicant or in the circumstances prevailing in the receiving country. In the appellant’s case, the lapse of nearly two years before the reconsideration gave rise to a greater prospect that there had been changes in the appellant’s circumstances and in the circumstances in Sri Lanka. The IAA’s decision to obtain updated country information was itself a recognition that this was so.
…
50.Section 473DC(1) concerns the discretion in the IAA to “get” new information. Its scope is indicated by Div 3 in Pt 7AA considered as a whole. The Division is concerned with the material on which the IAA review is to proceed. That material and information may be of four general kinds: the review material “provided” by the Secretary (s 473DB(1)); material which the IAA itself “gets” (s 473DC(1)); material “given” to the IAA without invitation (s 473DD); and material “given” to the IAA by “a person” or the referred applicant in response to an invitation from the IAA (s 473DC(3) and ss 473DE and 473DF). The information and submissions foreshadowed by RASSA in its email of 13 February 2019 seems to have been material of the third kind. Accordingly, s 473DC was not engaged.
51.In the oral submissions, counsel referred two alternative sources of the discretion: s 473CC(2) (which sets out the decisions available to the IAA on the review) and to a discretion necessarily implicit in Pt 7AA which allows the IAA to determine when to deliver its decisions.
52.On reflection, I am inclined to the view that the discretion in the IAA to determine when to make its decision is located in s 473DB(2). It provides that, subject to Pt 7AA, the IAA may make a decision on a fast track reviewable decision “at any time after the decision has been referred to [it]”. That is an express source of the discretion in the IAA to determine the time at which the decision on a review will be made.
53.Under common law principles, the IAA would be required to give the appellant a reasonable opportunity to present evidence and make submissions in support of his claims. Section 473DA of the Act modifies the common law position by stating that Div 3 of the Act, together with ss 473GA and 473GB, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in reviews by the IAA. That means, as counsel for the Minister submitted, that the issue of legal unreasonableness in the present context is not to be reviewed through a natural justice lens: DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; (2018) 258 FCR 551 at [73]. However, as the reasons of Mortimer J in DPI17 at [78]-[95] indicate, this does not mean that the underlying principles of natural justice may not inform the evaluation of reasonableness in a given case.
…
70.As counsel for the Minister pointed out, there are features in the circumstances of CAK19 which distinguish that case from the present. First, CAK19 was held in detention, with the consequence that he had difficulties in communicating with his representatives not shared by the present appellant. The detention also made it made more difficult for CAK19’s representatives to obtain an up to date psychiatric assessment because the psychiatrist who was retained, acting pro bono, had to attend at the detention centre for the purposes of the consultation.
…
72.As already noted, the IAA was not told of the nature of the information and documents which RASSA intended to gather. In particular, the IAA was not told that there was anything about the appellant’s medical condition which was regarded as new information or in respect of which RASSA wished to make a submission. RASSA’s email of 13 February 2019 informed the IAA only that the appellant had a history of complex medical issues “which made it difficult for him to engage with the legal process”. That is, RASSA referred to the health condition as matter making appropriate the allowance of additional time, not as a matter which itself required investigation and report.
73.It is pertinent that the IAA was operating within a statutory framework in which new information, as defined in s 473DC(1), could be considered only if, amongst other things, the circumstances were exceptional – see s 473DD(a). Moreover, it had been open to the appellant and RASSA to make submissions on the material already before the IAA (Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [92]) and the appellant had had reasonable time in which to do that if he wished.
Consideration
As the parties acknowledged, no two cases are the same.
CAK19 is significantly different to the present case because the applicant in that case clearly stated that he wished to provide psychiatric evidence, which he could only obtain pro bono following an interview on a Saturday, and which was already in train. On the other hand, in the present case, the applicant was somewhat vague about what he wished to provide, saying it was unspecified country information and submissions. In that respect, the present case is somewhat similar to ENJ17.
However, ENJ17 is significantly different to the present case because, in that case, the applicant was not in detention, with all the attendant difficulties detention entails, whereas, in the present case, the applicant was in detention.
It seems to me that the Authority’s decision in the present case was not a decision that a reasonable decision-maker could have made for the following combination of reasons:
a)the applicant was in detention;
b)he required an interpreter;
c)the Authority was told that the applicant had mental-health difficulties that required any conference that he had with his lawyer to be supported by a counsellor, which made it doubly difficult to arrange a conference with him;
d)the remittal to the Authority, and the requests for an extension of time, occurred early in the COVID-19 pandemic, when people were still adjusting to conducting their legal practices and other enterprises from home;
e)the COVID-19 pandemic was, as has been said many times, unprecedented, and caused a great deal of stress and disruption to normal work practices, and, indeed, by order of the Commonwealth, led to many extensions of time being granted, for example, for mortgage repayments, for rent, and for bankruptcy notices;
f)the Department itself said that COVID-19 might impact on its ability to respond to FOI requests within the expected timeframes, apologised for any inconvenience and said it appreciated people’s patience;
g)there were almost three years between the original Authority decision and its proposed decision in 2020, making updated country information, and submissions about it, of considerable importance;
h)although the applicant was represented by Victoria Legal Aid for the judicial review before Judge Riethmuller, the applicant was not represented on the remittal until 22 April 2020, which was 16 days before the Authority made its decision;
i)the lawyer appointed on 22 April 2020 did not receive relevant documents from the Authority until 30 April 2020, eight days before the Authority made its decision, and did not receive relevant documents from the Department at all prior to the Authority making its decision; and
j)the amount of time the applicant sought was relatively brief and had a clear end date.
While the applicant was not very precise about what he proposed to address in his new information or submissions, working out the detail of them was presumably why he sought additional time.
There are strict limits on the Authority considering new information. However, in the circumstances of this case, the Authority needed to see the proposed new information before deciding whether those strict limits could be satisfied.
Obviously, the Authority’s practice directions cannot bind this court, or determine what this court might find reasonable.
In relation to the materiality question, I am satisfied that it is possible that, if the Authority had received the proposed new information and submissions, its decision may have been different.
For the reasons given, the matter will be remitted, with costs.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 14 January 2021
26CB 634.
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