CSR16 v Minister for Immigration
[2017] FCCA 2222
•13 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CSR16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2222 |
| Catchwords: MIGRATION – Decision of the Immigration Assessment Authority – Part 7AA considered – certificate given under s.473GB of the Act – whether decision to withhold from visa applicant the documents the subject of the certificate was legally unreasonable – no legal unreasonableness – application dismissed. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.36(2), 47, 65, 422B, 425, 438(b), 473BA, 473CA, 473CAE, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473JA, 473GB Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) |
| Cases cited: AKD16 v Minister for Immigration & Anor (2016) 315 FLR 228 |
| Applicant: | CSR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2057 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 28 August 2017 |
| Date of Last Submission: | 28 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 13 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms C. Symons |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondent: | Clayton Utz |
ORDERS
The application filed 23 September 2016 is dismissed.
The applicant pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2057 of 2016
| CSR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
(as corrected)
Introduction
This application for judicial review raised a fascinating and presently uncharted issue concerning the construction of Part 7AA of the Migration Act 1958 (Cth) (“the Act”).
By application filed 23 September 2016, as amended on 31 July 2017, the applicant sought judicial review of a decision of the
Immigration Assessment Authority (“the IAA”) made on
13 September 2016.[1] The IAA affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
[1] Court Book filed 23 November 2016 at pp.348-368.
The applicant’s visa application was determined under the regime established by Part 7AA of the Act. That part commenced operation on 18 April 2015. Part 7AA of the Act was a component of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). In the Parliament of the Commonwealth of Australia, that piece of legislation became known as the “Asylum Legacy Caseload”. In the passages that follow, I have canvassed the detailed provisions of Part 7AA.
Suffice it to say at this juncture, under Part 7AA the applicant in this case was given the description of a “fast track review applicant” and the decision to refuse the grant of a protection visa was given the description of a “fast track reviewable decision”. No dispute existed in this case about those descriptions. Pursuant to s.473CA of the Act the Minister referred the delegate’s decision to the IAA. Under s.473JA of the Act, the IAA is part of the Migration and Refugee Division of the Administrative Appeals Tribunal (“the Tribunal”).
In this case the applicant contended that the decision of the IAA was affected by jurisdictional error. The applicant advanced three grounds for his assertion.
First, the applicant contended that the IAA unreasonably exercised its discretion. Specifically, the applicant said the IAA’s decision not to disclose the notification and all relevant documents or information the subject of the notification was legally unreasonable.
Second, the applicant contended that the IAA failed to properly apply s.473DD(b)(ii) of the Act. Specifically, it was said that the IAA’s comment that it was satisfied that the applicant did not have a genuine fear revealed that the IAA misunderstood the operation of s.473DD(b)(ii) of the Act.
Third, the applicant said the IAA erred in rejecting his contentions
that the applicant was shot in the leg in August 2008 by the
Muttahida Qaumi Movement (“MQM”).
The Minister contended that the IAA made none of the errors alleged and that the decision made by the IAA was a privative clause decision, properly so-called, and therefore it was not amenable to review.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review were made out. The decision of the IAA was correct. I dismiss the proceeding.
Short factual narration
In written submissions dated 14 August 2017, Mr Brown of counsel for the Minister conceded that the factual background to this case as recorded in written submissions dated 31 July 2017 by Ms Symons of counsel for the applicant was correct. Those submissions from
Ms Symons, in her characteristically helpful way, condensed the contents of an extremely dense court book and some complex legal concepts into manageable portions.
At all relevant times, the applicant was a national of Pakistan,
a Sunni Muslim and member of the Hindko minority ethnic group. According to paragraph 8 of the reasons of the IAA, the applicant’s protection claims were recorded as follows –
a)the applicant was shot in both legs when he was near a local office of the Awami National Party (“ANP”) in a suburb in Karachi;
b)
the applicant was later told that the person who shot him was
Mr MI, who worked for an organisation or movement known as MQM;
c)while in hospital, the applicant reported the matter to police;
d)in March or April 2009, MQM supporters told the applicant to withdraw his police report and that he would be seen as an ANP supporter if he did not, in response to which the applicant did not withdraw the police report;
e)in July 2009 two people warned the applicant’s father that the applicant must withdraw the police report;
f)local MQM supporters stared at the applicant viewing him as an ANP supporter;
g)MQM supporters are armed and they have shot persons who MQM supporters decide are ANP supporters;
h)in January 2010, fearful of being harmed by MQM, the applicant moved to Kemari, about half an hour’s drive from Gulshan Iqbal where the applicant was shot;
i)after planning unsuccessfully to travel to Saudi Arabia in 2011, the applicant departed Pakistan for Australia in 2013;
j)the applicant fears he will be imputed to be an ANP supporter because he lived near an ANP office and reported an MQM member to police, the report in respect of which was still open;
k)MQM have caused the applicant psychological and physical harm and the applicant feared they will kill him if he returned to Pakistan;
l)the applicant is unable to locate to other parts of Pakistan because MQM supporters are active throughout Pakistan;
m)as a member of the Hindko minority ethnic group the applicant feared harm from insurgent terrorist groups;
n)the applicant also feared harm from insurgent terrorist groups on the basis that the applicant was considered to be pro-Western having been in Australia since 2014 and because he was affected by the 2014 data breach of the department’s website;
o)as a result of that data breach, the applicant feared harm if details of it became known to the Pakistani Government and by reason of a letter from the Australian Embassy to the local Pakistani authorities dated June 2016; and
p)the applicant feared the data breach would lead to his being tortured or killed for being pro-Western or anti-Taliban.
On 24 May 2013 the applicant was interviewed by a departmental officer at an immigration detention centre.
In response to an invitation so to do by a departmental officer,
on 23 November 2015 the applicant applied for a safe haven enterprise visa.
On 23 April 2016, on letterhead of Refugee Advice Casework Service (“RACS”) but signed by the applicant, the applicant withdrew his previously lodged 790 application and substituted an application for a Class XE (subclass 790) safe haven enterprise visa.
On 28 April 2016 the applicant attended an interview with a departmental officer. Pausing at that point in the narrative, Ms Symons pointed out in paragraph 9 of the written submissions[2] that the departmental officer who conducted the interview was not the Minister’s delegate who ultimately determined the visa application. She contended that phenomenon was relevant to ground three of the amended application and she called in aid the High Court’s decision in Minister for Immigration and Border Protection v WZARH[3] (“WZARH”) as well as my decision in AKD16 v Minister for Immigration & Anor[4] (“AKD16”).
[2] Applicant’s outline of submissions filed 1 August 2017 at p.3.
[3] (2015) 256 CLR 326.
[4] (2016) 315 FLR 228.
Returning to the narrative, on 3 May 2016 RACS on behalf of the applicant made written submissions to the department.[5]
[5] Court Book filed 23 November 2016 at pp.247-255.
On 16 May 2016 a representative of the applicant submitted a translated first information report as part of the applicant’s visa.[6]
[6] Court Book filed 23 November 2016 at p.261.
That report was the police report mentioned previously. In it the applicant stated that a bullet hit his right leg and another bullet hit his left leg passing through the leg. In the report the applicant stated –
I am making this report against [omitted] son of [omitted],
and the four unknown persons accompanying him, for causing serious injury to me by shooting, with the intention to kill me.
I am seeking legal action against them.[7]
[7] Ibid.
The Minister’s delegate refused to grant the visa on 11 July 2016.
On 12 July 2016 the applicant was notified of that decision. In essence, the delegate refused the visa application on the basis that the applicant did not satisfy s.36(2) of the Act because of the adverse view the delegate formed of the applicant’s credibility. In particular, the delegate considered that the applicant’s failure to raise in his entry interview his claims concerning his ethnicity, his relocation to Kemari in 2010 and the shooting incident in 2008 certainly undermined the applicant’s credibility.
On 12 July 2016 the Minister’s delegate issued a certificate under s.473GB(5) of the Act notifying the IAA that s.473GB(1)(b) of the Act applied to a specific document or information on the basis that the document or information was given to the Minister or departmental officer in confidence.
It is as well to set out the certificate’s contents verbatim, although the document itself was entitled a “notification” –
The Senior Reviewer
Immigration Assessment Authority (IAA)
NOTIFICATION REGARDING THE DISCLOSURE OF CERTAIN INFORMATION COVERED BY SECTION 473GB OF THE MIGRATION ACT 1958
I notify the Immigration Assessment Authority that section 473GB of the Migration Act 1958 applies to a document or information in the document titled [omitted] contained in PDF Portfolio [omitted].
In my view, this document or information should not be disclosed to the referred applicant or the referred applicant’s representative because:
(a)the document, or any matter contained in the document, or the information was given to the Minister, or to an officer of the Department,
in confidence.
The Immigration Assessment Authority’s use and disclosure of a document or information covered by this certificate is subject to subsections 473GB(3) and 473GB(4) of the Migration Act 1958.
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.[8]
[8] Court Book filed 23 November 2016 at p.298.
In her written submissions at paragraph 14 Ms Symons stated that on 13 July 2016 the secretary of the department gave the IAA material characterised as “review material” in respect of the delegate’s decision and she footnoted the document at court book page 300 to 301.
The document at those court book pages was the IAA’s acknowledgment of referral addressed to the applicant. It referred to the provision of those documents to the applicant.
On 17 August 2016 the Asylum Seeker Resource Centre (“ASRC”) provided a written submission to the IAA in support of the applicant’s review application together with the applicant’s statutory declaration made 16 August 2016.[9] In that submission, ASRC contended that the material (presumably meaning the applicant’s statutory declaration of 16 August 2016) did not constitute “new information” for the purposes of s.473DD of the Act or that if it did, exceptional circumstances existed on the basis that the elements of s.473DD(a) and (b) of the Act were met. A further written submission was provided by ASRC to the IAA on 31 August 2016 making similar observations.[10]
[9] Court Book filed 23 November 2016 at pp.331-339.
[10] Court Book filed 23 November 2016 at pp.341-342.
At 12:27:07 on 13 September 2016 the IAA decided to affirm the decision not to grant the applicant a protection visa.
A précis of Part 7AA of the Act
Before examining the IAA’s decision in detail, it is useful to set out a précis of the legislative scheme proposed in Part 7AA of the Act.
In recording the matters that appear below, I have drawn from the Minister’s written submissions[11] as formulated by Mr Brown for which I record my gratitude.
[11] The first respondent’s outline of submissions filed 14 August 2017.
The simplified outline of Part 7AA is set out in s.473BA of the Act. While that section may seem at first blush to be in the nature of commentary, a simplified outline provision in legislation has been held to be not only part of the Act itself but that it can be used
for interpretation purposes for whatever value that may have.
The Full Court of the Federal Court of Australia held as much in
H v Minister for Immigration and Citizenship & Anor.[12] The salient portions of s.473BA of the Act state, relevantly paraphrased,
[12] [2010] FCAFC 119 at [88].
that –
a)Part 7AA of the Act provides a limited form of review of certain decisions to refuse protection visas to some applicants;
b)decisions to refuse to grant protection visas to fast track review applicants are known as “fast track reviewable decisions”;
c)fast track reviewable decisions must be referred by the Minister to the IAA as soon as reasonably practicable after a decision is made;
d)decisions to refuse to grant protection visas to fast track review applicants are generally not otherwise reviewable under the Act, although some decisions are reviewable by the Tribunal;
e)in reviewing fast track reviewable decisions, the IAA is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review);
f)the IAA does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it; and
g)in exceptional circumstances, the IAA may consider new material and invite referred applicants to provide or comment on new information in an interview or in writing.
In greater detail, as recently as 30 August 2017 the Full Court of the Federal Court of Australia (Dowsett, Griffiths and Charlesworth JJ) set out the operation of Part 7AA of the Act between paragraphs 11 and 27 in Minister for Immigration and Border Protection v AMA16[13] (“AMA16”).
[13] [2017] FCAFC 136.
In this case, no dispute existed that the delegate’s decision was a
“fast track reviewable decision”. Under s.473CA of the Act the Minister was required to refer that fast track reviewable decision to the IAA as soon as reasonably practicable after the decision was made
(the actual phrase in the section was “must refer”). The Minister duly referred the delegate’s decision to the IAA on 13 July 2016 and notified the applicant that such a referral had been made on 13 July 2016.
By operation of s.473CB of the Act, the Secretary was required
(again, the section used the word “must”) to provide to the IAA material prescribed in s.473CB(1)(a)-(d) of the Act. The section called that material the “review material” and by the terms of s.473CB(2) of the Act, the Secretary was required to give the review material to the IAA at the same time as the Secretary referred the decision to the IAA or as soon thereafter as was reasonably practicable.
Having had the delegate’s decision referred to it and having received the review material, s.473CC of the Act set out what the IAA was to do by way of review. That section said no more about the content of the review obligation. For that matter, of s.477CC(1) the Full Court of the Federal Court of Australia in AMA16 said no more than the fact that the IAA was obliged to “review” fast track reviewable decisions referred to it under s.473CAE and it cited s.477CC(1) of the Act, importantly recording the verb review in parenthesis.
The heading immediately above s.473DB of the Act is “review on the papers”. Curiously, in s.473DB of the Act, nowhere is the phrase “review on the papers” used. High Court authority in Silk Bros Pty Ltd v State Electricity Commission of Victoria[14] held that division and part headings in a statute are not to be used to limit the scope of the provision and that headings can be taken into consideration in determining the meaning of a provision where the provision is ambiguous. On the other hand, the High Court held that where the enacting words are clear and unambiguous, the title or headings must give way and full effect must be given to the enactment, as was held in Bennett v Minister for Public Works (NSW).[15] Therefore, while s.473DB of the Act may not actually use the phrase “review on the papers”, the enacting provisions of subsections (1) and (2) are clear and unambiguous. Section 473DB(1)(b) of the Act provides that the IAA is required to review the fast track reviewable decision by considering the review material “without interviewing the referred applicant”. Further, in AMA16, the Full Court of the Federal Court of Australia held as follows –
In other words, the review is generally conducted on the papers and focuses on the review material provided by the Secretary to the IAA.[16]
[14] (1943) 67 CLR 1.
[15] (1908) 7 CLR 372.
[16] [2017] FCAFC 136 at [19].
Returning to s.473CC of the Act, the IAA has the power to dispose of the fast track reviewable decision in the way set out in subsection (2) namely, by –
a)affirming the fast track reviewable decision; or
b)remitting the decision for reconsideration in the manner there stated.
In his written submissions at paragraph 10 Mr Brown made quite a deal about whether the IAA when exercising its power to affirm the fast track reviewable decision under s.473CC(2)(a) of the Act was limited to “assessing or settling” the reasons given by the delegate for the making of the fast track reviewable decision. It seemed to me the
Full Court in AMA16 has provided the answer to that submission by stating at paragraph 19 that the legislative scheme obliges the IAA to conduct its review of a fast track reviewable decision referred to it by considering the review material provided to it under s.473CB of the Act without accepting or requesting information and without interviewing the applicant.
With that rather lengthy introduction, let me now go to the grounds of review.
Grounds of review
In his amended application filed 1 August 2017 the applicant relied on three grounds of review that were different to those in the original iteration of his application to this court pursuant to which he sought judicial review of the IAA’s decision. The amended grounds of review were as follows, verbatim –
1. The Authority’s exercise of its discretion as to whether to disclose to, or withhold from, the Applicant documents and/or information (or material derived therefrom) the subject of a certificate issued in purported compliance with s 473GB(5) of the Act on 12 July 2016 (certificate), as contemplated by
s 473GB(3)(b) of the Act, was unreasonable as to the outcome of its exercise, in circumstances where the Authority had not disclosed to the Applicant the existence of and identity of the certificate.
2. The Authority committed jurisdictional error in its treatment of information identified at [6] of its statement of reasons by misapplying the statutory criteria or ‘test’ for the consideration of ‘new information’ in s 473DD(b)(ii) of the Act and by taking into account an irrelevant consideration, being the Authority’s findings as to the subjective belief of the Applicant that he would suffer harm as a result of having made complaints against the MQM whilst in Australia.
3. The Authority misunderstood its statutory task in its review as required under s 473CC(1) of the Act by making adverse findings as to the credibility of the Applicant’s claim to have been shot in August 2008 solely by reference to the answers given by the Applicant in his entry interview.[17]
[17] Amended application filed 1 August 2017 at p.4.
It is necessary to address each in turn. But before going to them,
Mr Brown for the Minister wrote in his submissions that the
Federal Circuit Court of Australia only has power to grant the relief sought in this proceeding if the decision of the IAA is not a privative clause decision within the meaning of s.47 of the Act and is affected by jurisdictional error.
I agree.
The High Court has held as much in cases such as Plaintiff S157/2002 v Commonwealth of Australia[18] and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs.[19] Naturally, those authorities, as well as Minister for Immigration and Multicultural Affairs v Bhardwaj,[20] are the most cited definitive pronouncements on point.
I discussed them in some little detail in Kaur v Minister for Immigration and Border Protection.[21]
[18] (2003) 211 CLR 476.
[19] (2005) 228 CLR 294.
[20] (2002) 209 CLR 597.
[21] (2016) 304 FLR 436.
Ground 1
This ground invited a consideration of the decision to withhold from the applicant the documents and information that were the subject of the certificate given under s.473GB(5) of the Act. The applicant contended that the exercise of the relevant discretion in the making of the decision was legally unreasonable. Conversely, the Minister contended that on the plain construction of s.473GB of the Act an express discretion was conferred. The Minister submitted that according to principles espoused most recently in Minister for Immigration and Border Protection v Stretton[22] (“Stretton”) and Minister for Immigration and Border Protection v Eden[23] (“Eden”),
no jurisdictional error was committed.
[22] (2016) 237 FCR 1.
[23] (2016) 240 FCR 158.
Let me commence the consideration of this ground with an analysis of s.473GB of the Act. That section is in Division 6 of Part 7AA of the Act, the heading of which is “disclosure of information”. The specific heading above s.473GB is the IAA’s “discretion in relation to disclosure of certain information etc”. Subsection (1) provides that s.473GB of the Act applies if the Minister has certified under subsection (5) in the manner stated in subsection (1). Alternatively, under subsection (1) the section applies where the document, the matter contained in the document or the information was given to the Minister in confidence.
In this case, the relevant certificate at page 298 of the court book stated that s.473GB of the Act applied to “a document or information in” a specified document there set out. The certifier stated that in his view, the particular document or information should not be disclosed because the document or any matter contained in the document was given to the Minister in confidence.
On its face, the document dated 12 July 2016 was expressed in the following terms –
This certificate is made pursuant to subsection 473GB(5) of the Migration Act 1958.[24]
[24] Court Book filed 23 November 2016 at p.298.
The wording on the certificate corresponded precisely with the wording of s.473GB(5) of the Act that is in the following terms –
The Minister may issue a written certificate for the purposes of subsection (1).
While the certificate itself did not refer to subsection (1) in terms,
it picked up the wording of s.473GB(1)(b) of the Act in its reference in paragraph (a) of the certificate to the document or any matter contained in the document in the information having been given to the Minister or to an officer of the department in confidence.
Accordingly, from that examination of the section, there was no doubt on the facts of this case that subsection (1) was enlivened as was subsection (5). Having given the certificate under subsection (5), subsection (3) became relevant, namely, the use to which the IAA could make of the document and the information the subject of the certificate. Under subsection (3)(a) the IAA was permitted to have regard to any matter contained in the document or in the information and it also was permitted to disclose any matter contained in the document or the information to the applicant, once the IAA had regard to any advice given by the Secretary.
Here, the applicant contended that the IAA’s decision not to disclose the documents described in the certificate given under s.473GB(5) of the Act was legally unreasonable. The applicant contended that he was not aware of the existence of the certificate dated 12 July 2016 until after commencing this proceeding.
The applicant argued that the certificate dated 12 July 2016 given under s.473GB of the Act was review material for the purposes of s.473GB and that the IAA was required to consider it when undertaking its statutory task of review under s.473DB(1) of the Act. The applicant called in aid the decision of Beach J in MZAFZ v Minister for Immigration and Border Protection[25](“MZAFZ”).
Of course, in MZAFZ Beach J was concerned with s.438(b) of the Act whereas this case is concerned with Part 7AA and Part 7AA contains provisions very different to the section of the Act with which Beach J was concerned in MZAFZ. For that matter, counsel for the applicant helpfully recorded in paragraph 37 of her written submissions that those differences included –
a)the difference in language employed in s.473DA(1) compared with s.422B of the Act;
b)the plain meaning in s.473DA(2) of the Act pursuant to which the IAA is under no obligation to give to the applicant any of the material that was before the Minister when the Minister made the decision under s.65 of the Act; and
c)unlike the obligations imposed on the Tribunal under s.425 of the Act, the IAA is not required to conduct a hearing.
[25] (2016) 243 FCR 1.
Ms Symons referred to a decision of another judge of this court in which examination was given of a s.473GB certificate. In that case, unlike this case, it was common ground that the certificate given under s.473GB of the Act was invalid. To my mind, little can be drawn from that decision for that reason alone. Mr Brown told me that the case involving the invalid s.473GB certificate is on appeal to the Full Court of the Federal Court of Australia. At one stage I considered deferring my decision in this case pending the outcome of the appeal on the other case involving the invalid s.473GB certificate. However, that other case is so different to this that no useful purpose would be served by waiting.
It seemed to me that the issue in relation to ground 1 did not so much concern principles flowing from Beach J’s decision in MZAFZ as it did the proper approach to the statutory construction of Part 7AA of the Act. There can be no doubt that under Part 7AA the IAA operates in a statutory regime that is vastly different to the regime under which
cases involving non-fast track reviewable applications operate.
The Full Court of the Federal Court of Australia spoke of the differences in decision-making functions between the IAA and the Tribunal in AMA16.[26]
[26] [2017] FCAFC 136 at [90].
The material available to the IAA was the subject of comment in AMA16. There, the Full Court held as follows –
As noted above, the circumstances in which the IAA is entitled to have regard to material which is not included in the
“review material” referred to it by the Secretary is severely limited by provisions in the Act concerning “new information”. Furthermore, the IAA is not vested with a power to exercise all the powers that were available to the primary decision-maker. The IAA is confined by s 473CC(2) to either affirming the primary decision or remitting the decision for reconsideration in accordance with such directions or recommendations of the IAA as are permitted by regulation. These matters alone are sufficient to highlight the danger of describing the IAA’s decision-making function in terms of having to determine what is the correct or preferable decision.[27][27] [2017] FCAFC 136 at [92].
Returning to the substance of ground 1, the applicant did not contend that he was denied the opportunity of seeing the documents the subject of the s.473GB certificate nor did he say that those documents were “new information” for the purposes of ss.473DC, 473DD or 473DE of the Act. Instead, he said the IAA’s exercise of discretion whether to disclose or withhold those documents to the applicant was legally unreasonable.
In my view, there was no legal unreasonableness in the IAA’s decision in not disclosing any matter contained in the document the subject of the s.473GB certificate or the information to the applicant. In my view, the applicant failed to establish that legal unreasonableness permeated the IAA’s decision.
The concept of legal unreasonableness has been the subject of a huge amount of attention of federal courts exercising power under the Act since the decision of the High Court in Minister for Immigration and Citizenshipv SZMDS[28] (“SZMDS”). The Full Court of the Federal Court of Australia has had occasion to consider the issue since
SZMDSon three separate occasions, namely Stretton, Eden and in ARG15 v Minister for Immigration and Border Protection.[29]
I catalogued those authorities in AUV15 v Minister for Immigration and Border Protection & Anor[30] pointing out the observations in Eden as follows –
It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a “checklist” exercise. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[31] (footnote omitted)
[28] (2010) 240 CLR 611.
[29] [2016] FCAFC 174.
[30] [2017] FCCA 1951.
[31] [2016] FCAFC 28 at [65].
Was the IAA’s decision to not disclose the document and information to which the s.473GB certificate applied such that it fell outside of the range of lawful outcomes? In my judgment the answer must be in the negative. I say that for several reasons.
First, Part 7AA has installed significant differences to the regime that preceded the inauguration of the IAA. Next, the IAA conducts its considerations on the papers or at least in the absence of a hearing. Next, the IAA either affirms the primary decision-maker or remits the matter. Next, the IAA considers the review material and such new information as the exceptional circumstances set out in s.473DD of the Act might justify. Further, it must not be overlooked that the legislative intendment of Part 7AA, as recorded in s.473BA of the Act, is to require the IAA –
… to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).
To my way of thinking, it was not outside the range of lawful outcomes, as that phrase was used in Eden, for the IAA to decide to not disclose the documents or information the subject of the s.473GB certificate.
In my view ground 1 failed.
Ground 2
Under this ground, the applicant invited an examination of s.473DD(b)(ii) of the Act. Focusing specifically on paragraph 6 of the decision of the IAA, the applicant took issue with the conclusion that the IAA was not satisfied s.473DD(b)(i) and (ii) of the Act were met.
At its heart, this ground was concerned with “new information” as defined. To put this ground in context it is necessary to trace the salient provisions of subdivision C of Division 3 of Part 7AA. In relation to a fast track reviewable decision, the IAA is authorised to get any documents or information that were not before the Minister when the decision under s.65 of the Act was made and that the IAA considers may be relevant. New information can be given to the IAA in writing or orally at an interview, whether conducted in person, by telephone or in any other way.
The IAA may use new information in the manner set out in s.473DD of the Act. Prima facie, a prohibition exists on IAA’s consideration of new information. That is the import of the following phrase in s.473DD of the Act –
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 …
That phrase is followed by the word “unless”. That word has been judicially interpreted to mean “except” in that it creates a condition precedent, as was held in In re Dickinson; Ex parte Rosenthal.[32]
[32] (1882) 20 Ch D 315.
Subsections (a) and (b) of s.473DD of the Act are connected by the word “and” but subsection (b) is in two alternative parts. For the purposes of subsection (a) the first criteria to be met by which the IAA is relieved of the seemingly mandatory requirement of not considering new information relates to the IAA being satisfied of the existence of exceptional circumstances that justify the IAA considering new information. That is the gravamen of s.473DD(a) of the Act. But in addition to the IAA’s satisfaction of the existence of exceptional circumstances justifying the IAA’s consideration of new information, the referred applicant has to satisfy the IAA about one of two further matters. Both relate to any new information that is proposed to be given. First, any such new information is not and could not have been provided to the Minister before the Minister made the decision under s.65 of the Act. If not that, the second is that the proposed new information is credible personal information that was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
In paragraph 45 of her written submissions Ms Symons referred to the statement, described in paragraph 6 of the IAA’s reasons, as
“new information”. In respect of that paragraph, the applicant contended that the IAA “manifested a misapprehension of the statutory test”[33] or that the IAA took into account an irrelevant consideration. The real issue that paragraph 6 of the IAA’s reasons addressed was the assertion that the applicant had made complaints against MQM in Australia. The IAA stated that such information was new information. Having reached the conclusion that such information was new information, the IAA was by operation of s.473DD of the Act required not to consider such new information unless subsection (a) was met in addition to one of the matters in subsection (b). The IAA seemed not to be concerned with subsection (a) or inferentially the IAA was not satisfied that exceptional circumstances existed justifying its consideration of the new information. In this case, the IAA addressed the matters relevant to subsection 473DD(b) of the Act. In reliance upon subsection (b)(i), the IAA stated it was not satisfied that the information could not have been provided to the delegate before the delegate made his decision. Having reached that conclusion, it was not necessary for the IAA to consider the elements of subsection (b)(ii). The fact that the IAA went on to consider the second element of subsection (b), that is to say, the credible personal information element, did not militate against the correctness of the IAA’s consideration of the first element of subsection (b).
[33] Applicant’s outline of submissions filed 1 August 2017 at [47].
Mr Brown submitted that the applicant’s point under this ground failed at the threshold because, so he said, the IAA was not satisfied that the information was “credible personal information which was not previously known”. Mr Brown said the following –
Now, that finding, I’m not satisfied that the applicant has a genuine fear, must be referable to the earlier sentences about the timing of the raising of the claims. Now, of course, what’s happening here is the authority is required to do – make an appraisal of the material. It’s not required to go and conduct a full review forensic order the case, as it were, but it’s required to do – make an appraisal to determine whether it falls within the exceptions in 473DD, and it’s required to form a view as to whether it’s credible or not, and that’s what, in my submission, the authority has done here. It has undertaken the task that’s set for it of this – to form an opinion about first, whether it’s credible; second, whether it’s satisfied of the matters it’s required to be satisfied.[34]
[34] Transcript of proceedings, 28 August 2017 at p.29.
I agree.
I do not accept the applicant’s contentions recorded in paragraph 47 of Ms Symons’ written submissions.
In my view ground 2 failed.
Ground 3
Under this ground the applicant agitated whether the IAA misunderstood its statutory task by making adverse findings about the applicant’s credibility, specifically his statement that he was shot in August 2008, by reference to the applicant’s answers given by him in his entry interview. In essence, at the entry interview the applicant did not raise how he had been shot in August 2008. The applicant submitted that the IAA rejected the applicant’s version of events in relation to the events of August 2008, mainly on the basis that his answers during the entry interview told a different story. The IAA stated in its reasons that it expected the applicant would have raised at the entry interview that he had been shot and threatened by MQM.
The applicant made the following written submissions –
The Applicant contends that the Authority’s approach in relying solely on what was said in the entry interview to determine the credibility of this discrete factual claim, demonstrates jurisdictional error of the kind identified by the Full Federal Court of Australia in MZZJO v Minister for Immigration & Border Protection & Anor [2014] FCAFC 80; (2014) 239 FCR 436.[35]
[35] Applicant’s outline of submissions filed 1 August 2017 at [52].
Despite the reference to the High Court’s decision in WZARH and to my decision in AKD16 in written submissions, in oral submissions counsel for the applicant relied only on the decision in MZZJO. She did not otherwise develop submissions referrable to WZARH or to AKD16.
The important portion of the decision in MZZJO for which the applicant contended lay in paragraph 56 of the Full Court’s reasons.
It is useful to record that passage in precise terms –
On the latter issue, some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns
questions designed to elicit information about so-called
“people smuggling“. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them.The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.[36][36] (2014) 239 FCR 436 at [56].
Mr Brown submitted that between paragraphs 12 to 16 of the IAA’s reasons was its considered assessment of the evidence about injuries to the applicant’s leg. Between those paragraphs was a significant, detailed examination of the entry interview. The IAA officer even recorded in the IAA’s reasons that he had listened to a recording of the interview itself. The IAA’s reasons recorded how the entry interview officer was attentive and that he gave the applicant the opportunity to speak freely and that the applicant was not hurried. Even a cursory reading of paragraphs 12 to 16 of the IAA’s reasons reveals that careful consideration was given by the IAA to the details in the absence of certain information from the entry interview. Two extracts from paragraph 14 of the IAA’s reasons make the point –
I expect that if the applicant had been shot and threatened by the MQM that he would have raised this claim when he was asked why he had departed Pakistan. He did not.
…
If the applicant had been shot in 2008 as he claims, and if he feared harm from the MQM for refusing to withdraw an FIR,
I expect that he would have said so. I consider that this seriously undermines the applicant’s subsequent claim to have been personally targeted in this way. [37]
[37] Court Book filed 23 November 2016 at p.353.
Not only was that line of enquiry open but it was logical and it accorded with common sense. The conclusion reached was open, in my view.
I take the view that the IAA did not fall into jurisdictional error in the manner contended for under ground 3.
Conclusion
None of the grounds of review have succeeded.
I dismiss this application for judicial review and order the applicant to pay the Minister’s costs.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 13 September 2017
CORRECTIONS
The name of second respondent was changed from ‘Administrative Appeals Tribunal’ to ‘Immigration Assessment Authority”.
3
15
3