Cur21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 523
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CUR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 523
File number(s): PEG 173 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 29 June 2022 Catchwords: MIGRATION – whether ICSE screenshots are “business records” – sixth applicant not named in delegate’s reasons – whether a decision was made in respect of sixth applicant Legislation: Australian Citizenship Act 2007 (Cth) s 12
Corporations Act 2001 (Cth)
Evidence Act 1995 (Cth) ss 48, 59, 69, 135, 144, 183
Migration Act 1958 (Cth) ss 36, 65, 66, 67, 411, 476
Taxation Administration Act 1953 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: AEW18 v Minister for Home Affairs [2019] FCA 208
Australian Securities and Investments Commission v Activesuper Pty Ltd (in liq) (2015) 235 FCR 181
BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Commonwealth Director of Public Prosecutions v The Country Care Group Pty Limited (Ruling No. 8) [2021] FCA 365
DQX16 v Minister for Home Affairs [2019] FCA 1705
DQX16 v Minister for Immigration and Border Protection [2018] FCCA 1915
DZE17 v Minister for Immigration and Border Protection (2018) 162 ALD 147
FUS17 v Minister for Immigration & Anor [2019] FCCA 1179
FUS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 272
Guest v Commissioner of Taxation 2007 ATC 4265
He v Minister for Immigration and Border Protection (2017) 255 FCR 41
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305
Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324
NAB Ltd v Rusu (1999) 47 NSWLR 309
SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of last submission/s: 30 May 2022 Date of hearing: 4 February 2022 Place: Sydney Counsel for the Applicants: Mr MGS Crowley Solicitor for the Applicants: AUM Legal Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: Minter Ellison ORDERS
PEG 173 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CUR21
First Applicant
CUS21
Second Applicant
CUT21 (and others named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
29 JUNE 2022
THE COURT ORDERS THAT:
1.The application as amended on 9 December 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE GIVEN:
By an application to show cause filed with this Court on 17 August 2021, the applicants seek judicial review pursuant to s 476 of the Migration Act 1958 (Cth) (Act) of a decision made by the Administrative Appeals Tribunal (Tribunal) on 5 August 2021 which affirmed a decision of a delegate of the first respondent (delegate) made on 24 August 2017 not to grant them a Protection (Class XA) (subclass 866) visa (visa). In issue in this proceeding is, inter alia, whether that decision by the delegate included the sixth applicant.
The applicants are all citizens of Pakistan. The first and second applicants are husband and wife respectively and the other applicants are their children (the fifth and sixth applicants were born in Australia but are citizens of Pakistan by birth and by descent (Court Book (CB) 70, 192, 200 to 201 and 562). The first to fourth (inclusive) applicants initially arrived in Australia on 13 December 2007 (CB 212).
The first to fourth applicants returned to Pakistan on 17 February 2009 and came back to Australia travelling on a student visa on 23 March 2009 (CB 212). The first to fourth applicants again departed to Pakistan on 18 January 2011 and returned to Australia holding a student visa on 7 April 2011 (CB 212). On 29 June 2012 the fifth applicant was born in Australia (CB 201). The Court is told that the fifth applicant will become an Australian citizen not later than 30 June 2022 by operation of s 12 of the Australian Citizenship Act 2007 (Cth).
On or about 8 August 2013, the first applicant applied for the visa on behalf of the family unit which at that time comprised the first to fifth applicants (CB 22). On 18 October 2013, the sixth applicant was born in Australia (CB 200) and on 16 December 2013 the first applicant sought to add the sixth applicant to the visa application by filing a form 866D (CB 191-197).
Only the first and second applicants made substantive claims for protection. The other applicants rely on their membership of the family unit.
The first applicant claims to fear harm in Pakistan because of his political opinions and affiliation as a former supporter and (student) member of the Pakistan People's Party (PPP). The first applicant claims to fear harm because of his refusal to be recruited to the Taliban in Pakistan Party (TTP) and to have experienced harassment and intimidation from members of the political party Jamaat-e-Islami because of his opposing political affiliations. He claimed to have been kidnapped by TTP members in 2011 when he returned to Pakistan.
The second applicant claims to fear harm on the basis that she is a member of a particular social group, namely as a woman in Pakistan who teaches primary school aged children and who supports the education of women and girls.
The applicants made a further claim to fear harm in Pakistan because the first applicant is said to be blamed for the death of his brother, who was killed by assassins in 2016. The Tribunal also considered whether the applicants would suffer harm in the form of “generalised violence” if they returned to Pakistan.
On 24 August 2017, the delegate refused to grant the visa (CB 206).
On 10 September 2017 (all six of) the applicants applied to the Tribunal seeking review of the delegate's decision (CB 224 to 226).
The first and second applicants appeared at three hearings before the Tribunal on each of:
(a)22 March 2021;
(b)8 June 2021; and
(c)26 July 2021.
On 5 August 2021, the Tribunal affirmed the decision not to grant the applicants a protection visa (CB 560 to 589).
Tribunal decision
After setting out the background and the applicants' claims for protection, the Tribunal summarised the evidence given to it by the first and second applicants at the various hearings.
In relation to the first applicant’s claims relating to the PPP, the Tribunal found that he was no more than an interested student member of his local branch. The Tribunal considered that while the first applicant may have experienced some harassment or intimidation from student members of Jamaat-e-Islami, he had not experienced anything equating to serious or significant harm (CB 581 at [102]).
The Tribunal found that because the first applicant had essentially been absent from Pakistan since 2007 he was no longer a target of any potential agents of harm on the basis of his political opinions (CB 582 at [103]). Similarly, the Tribunal considered that having returned to Pakistan on two occasions and waited until after the expiration of his student visa to seek protection belied the first applicant’s claim to have a genuine, well-founded fear of persecution on the basis of political opinion (CB 582 at [103]).
While the Tribunal accepted that the first applicant had been kidnapped, it found that the first applicant had not been targeted for the kidnapping for any reason other than the capacity of his family to pay a ransom. Having considered country information regarding the prevalence of kidnapping in Pakistan (CB 582 at [104]), the Tribunal found that because the first applicant had remained in Pakistan for 2.5 months after the kidnapping, that the incident had not been reported to the police and that the first applicant had not sought protection at the first available juncture in Australia, this combined to mean that the first applicant himself believed that the kidnapping and beatings to which he was subjected were opportunistic criminal endeavours and not due to any Convention-related reason. The Tribunal also found that the absence of any “particularisation” (presumably meaning as to motive) for the kidnapping satisfied it that there was also no complementary protection obligation arising from the claim (CB 582 at [105]).
In relation to the first applicant’s claim that the death of his brother in 2016 was somehow connected to him, the Tribunal noted that since December 2007 the first applicant had been resident in Australia, and spent only 4 months in Pakistan. The Tribunal accepted that there was some inter-familial animosity between the applicants and the first applicant’s extended family which occurred after his brother’s death in 2016. The Tribunal accepted the statements of the first applicant at hearing that the situation was a private family matter and, as such, that it did not amount to a threat of harm of any kind to any of the applicants, specifically the first applicant. The Tribunal made note of the relatively recent timing of the claim and described the suggestion that the claim would amount to a well-founded fear of harm in Pakistan as being without credibility (CB 582 at [106]).
The Tribunal considered the claims relating to the first applicant’s mental health and found it was entirely understandable that the applicant’s mental wellbeing had been undermined by the events which had occurred in relation to his kidnapping and beating and the death of his brother. The Tribunal took into account the evidence regarding treatment techniques the first applicant had been utilising. The Tribunal accepted that on return to Pakistan the first applicant may require mental health support and treatment but noting that the applicants have extensive family support in Pakistan on both sides and that the first applicant had not suggested that he would not be able to access various types of therapeutic assistance in Pakistan, it was open to conclude that the first applicant would be able to seek such services/assistance (CB 582 to 583 at [107] to [108]).
Overall the Tribunal was not satisfied that the first applicant had a genuine well-founded fear of harm from anyone in Pakistan for any essential and significant reason relating to his student membership of the PPP, his mental health or any other reason (CB 583 at [109].
In relation to the second applicant, the Tribunal accepted her claims regarding her employment as a primary school teacher in Pakistan and that she felt that on occasion she was being followed during her commute to and from work. The Tribunal noted that, despite this, the second applicant gave evidence that she had not experienced direct harassment in Pakistan from anyone and that while the first applicant’s mother had reported receiving threatening phone calls to her home, it noted the lack of corroborative evidence, personal knowledge held by the second applicant and the fact it was apparently not reported to police and the Tribunal considered the evidence to be of little weight (CB 583 at [110]). The Tribunal also considered instances of violent extremism which targeted female students and teachers but found that the second applicant had not been engaged in teaching since 2010 and there was no suggestion she would resume teaching in Pakistan on return (CB 583 at [112]).
Similar to its findings in relation to the first applicant and the death of his brother, the Tribunal was not satisfied that the strained relationship with the family of the first applicant following the death of his brother did give rise to a claim of persecution, relying on MMM v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324 at 327 (CB 583 at [111]).
The Tribunal found that the second applicant did not have a well-founded fear of harm in Pakistan for the essential and significant reason that she was a member of a particular social ground being women in Pakistan who teach primary school aged children and support the education of woman and girls (CB 583 at [113]).
The Tribunal went on to extensively consider claims of generalised violence in Pakistan as regards the family unit (CB 584 to 589 at [114] to [131]). The significance of the Tribunal’s findings in this regard are the subject of dispute between the parties. In particular, the applicants contend that the Tribunal conflated the refugee and complementary protection tests in making findings in relation to this issue.
The Tribunal concluded its decision by expressing that it is not satisfied that any of the applicants is a person in respect of whom Australia has protection application and that “the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa” (CB 589 at [132]).
APPLICATION TO THIS COURT
The applicants seek review of the Tribunal’s decision and the hearing before me proceeded on an Amended Application filed on 9 December 2021 in accordance with a grant of leave made by the Court (by consent) on 23 September 2021.
The grounds of that application are as follows (emphasis in original):
1A. The decision of the second respondent was vitiated by a constructive failure to exercise jurisdiction in that the second respondent misconstrued or misapplied paragraph 36(2B)(c) of the Migration Act 1958 (Cth), or in that there was no logical connection between the evidence and the finding at [131] of the decision record.
Particulars
1A.1 In finding at [105], in falsification of refugee claims under 36(2)(a), that the first applicant’s kidnapping demonstrated ‘his family’s capacity to the ransom’, and, again at [105], ‘an imputed capacity to pay a ransom’, the second respondent supplies the very reason why the ‘risk is [not] one faced by the population of the country generally and is … faced by the non-citizen personally’ under 36(2B)(c).
1A.2 Further or alternatively, the second respondent adopted country information at [104] which stated, expressly, that kidnapping is ‘common in parts of Pakistan’, but implicitly not all parts, with the consequence that the risk of kidnapping faced by the first applicant in Khyber Pakhtunkhwa could not logically be attributed to the population of Pakistan generally.
2A. The decision of the second respondent was vitiated, in respect of the sixth applicant, for want of any jurisdiction at all under Part 7 of the Migration Act.
Particulars
2A In respect of the sixth applicant, there was no ‘Part 7-reviewable decision’ to review because the Minister had not in fact made a ‘decision’ granting or refusing a protection visa under section 65 of the Migration Act.
At hearing before me, particular 1A.2 to ground 1A was not pressed. Therefore, the grounds will simply be numbered as grounds 1 and 2.
Evidence
The Court received the 2 volume Court Book which was tendered for the first respondent, without objection, and marked Exhibit “1R”.
The first respondent also sought to read the Affidavit of Andrew Shinnick affirmed on 11 January 2022 (Shinnick Affidavit). Mr Shinnick is a solicitor in the employ of the solicitor for the first respondent.
The Shinnick Affidavit was filed to address ground 2 and was relied upon in the written submissions filed for the first respondent on 21 January 2022.
On 19 January 2022 a document was filed for the applicants notifying the following objections to the Shinnick Affidavit:
(a)The second sentence of [5], relying on s 59(1) of the Evidence Act 1995 (Cth) (Evidence Act);
(b)The whole of [6], relying on s 59(1) of the Evidence Act; and
(c)The whole of Annexure “AS1”, relying on ss 59(1) of the Evidence Act and asserting that the exceptions in ss 69(1) and (2) of the Evidence Act did not apply.
The Shinnick Affidavit was read, subject to the above objections upon which the Court reserved its rulings to these reasons for judgment, consequent upon the parties also being granted leave to file supplementary submissions on that evidentiary issue (and to address an issue of futility that was raised for the first respondent), which they did. I have been assisted by all the submissions made for the parties.
Paragraphs [5] and [6] of the Shinnick Affidavit state as follows:
[5] Annexed here to and marked 'AS1' is a bundle of three screenshots. I am instructed and verily believe that the screenshots annexed to this affidavit and marked AS1 were captured within the Department of Home Affairs' Integrated Client Services Environment (ICSE).
[6] I am instructed and verily believe that ICSE is a computer system utilised by the Department of Home Affairs to enter and record information concerning, inter alia, decisions made by the Department in respect to visa applications.
The following sections of the Evidence Act are pertinent to the resolution of this issue:
48 Proof of contents of documents
(1) A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods:
(a) adducing evidence of an admission made by another party to the proceeding as to the contents of the document in question;
(b) tendering a document that:
(i) is or purports to be a copy of the document in question; and
(ii) has been produced, or purports to have been produced, by a device that reproduces the contents of documents;
(c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing)—tendering a document that is or purports to be a transcript of the words;
(d) if the document in question is an article or thing on or in which information is stored in such a way that it cannot be used by the court unless a device is used to retrieve, produce or collate it—tendering a document that was or purports to have been produced by use of the device;
(e) tendering a document that:
(i) forms part of the records of or kept by a business (whether or not the business is still in existence); and
(ii) is or purports to be a copy of, or an extract from or a summary of, the document in question, or is or purports to be a copy of such an extract or summary;
(f) if the document in question is a public document—tendering a document that is or purports to be a copy of the document in question and that is or purports to have been printed:
(i) by the Government Printer or by the government or official printer of a State or Territory; or
(ii) by authority of the government or administration of the Commonwealth, a State, a Territory or a foreign country; or
(iii) by authority of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament.
(2) Subsection (1) applies to a document in question whether the document in question is available to the party or not.
(3) If the party adduces evidence of the contents of a document under paragraph (1)(a), the evidence may only be used:
(a) in respect of the party’s case against the other party who made the admission concerned; or
(b) in respect of the other party’s case against the party who adduced the evidence in that way.
(4) A party may adduce evidence of the contents of a document in question that is not available to the party, or the existence and contents of which are not in issue in the proceeding, by:
(a) tendering a document that is a copy of, or an extract from or summary of, the document in question; or
(b) adducing from a witness evidence of the contents of the document in question.
Note 1: Clause 5 of Part 2 of the Dictionary is about the availability of documents.
Note 2: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.
59 The hearsay rule—exclusion of hearsay evidence
(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
(2) Such a fact is in this Part referred to as an asserted fact.
(2A) For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Note: Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R. v Hannes (2000) 158 FLR 359.
(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.
Note: Specific exceptions to the hearsay rule are as follows:
· evidence relevant for a non‑hearsay purpose (section 60);
· first‑hand hearsay:
– civil proceedings, if the maker of the representation is unavailable (section 63) or available (section 64);
– criminal proceedings, if the maker of the representation is unavailable (section 65) or available (section 66);
· contemporaneous statements about a person’s health etc. (section 66A);
· business records (section 69);
· tags and labels (section 70);
· electronic communications (section 71);
· Aboriginal and Torres Strait Islander traditional laws and customs (section 72);
· marriage, family history or family relationships (section 73);
· public or general rights (section 74);
· use of evidence in interlocutory proceedings (section 75);
· admissions (section 81);
· representations about employment or authority (subsection 87(2));
· exceptions to the rule excluding evidence of judgments and convictions (subsection 92(3));
· character of and expert opinion about accused persons (sections 110 and 111).
Other provisions of this Act, or of other laws, may operate as further exceptions.
69 Exception: business records
(1) This section applies to a document that:
(a) either:
(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or
(ii) at any time was or formed part of such a record; and
(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.
(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:
(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or
(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.
(3) Subsection (2) does not apply if the representation:
(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or
(b) was made in connection with an investigation relating or leading to a criminal proceeding.
(4) If:
(a) the occurrence of an event of a particular kind is in question; and
(b) in the course of a business, a system has been followed of making and keeping a record of the occurrence of all events of that kind;
the hearsay rule does not apply to evidence that tends to prove that there is no record kept, in accordance with that system, of the occurrence of the event.
(5) For the purposes of this section, a person is taken to have had personal knowledge of a fact if the person’s knowledge of the fact was or might reasonably be supposed to have been based on what the person saw, heard or otherwise perceived (other than a previous representation made by a person about the fact).
Note 1: Sections 48, 49, 50, 146, 147 and subsection 150(1) are relevant to the mode of proof, and authentication, of business records.
Note 2: Section 182 gives this section a wider application in relation to Commonwealth records.
135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; …
183 Inferences
If a question arises about the application of a provision of this Act in relation to a document or thing, the court may:
(a) examine the document or thing; and
(b) draw any reasonable inferences from it as well as from other matters from which inferences may properly be drawn.
Note: Section 182 gives this section a wider application in relation to Commonwealth records and certain Commonwealth documents.
Dictionary
Part 2—Other Expressions
1 References to businesses
(1) A reference in this Act to a business includes a reference to the following:
…
(b) an activity engaged in or carried on by the Crown in any of its capacities;…
The relevant effect of the aforementioned sections on the issue to be resolved is as follows:
(a)s 48 of the Evidence Act deals with the proof of the contents of documents and is largely directed to how the contents of media such as digital files, tapes, videos and computer documents can be adduced;
(b)if a question arises as to the relevance of a document or thing, s 58 of the Evidence Act permits the Court to examine it and to draw any reasonable inference from it, including an inference as to its authenticity or identity;
(c)s 183 of the Evidence Act allows to Court to draw reasonable inferences from the screenshots themselves, as well as from other matters from which inferences may be reasonably drawn;
(d)the term “business” is defined by clause 1(1)(b) of Part 2 to the Dictionary of the Evidence Act as including “an activity engaged in or carried on by the Crown in any of its capacities”; and
(e)s 69(2)(a) of the Evidence Act has the effect that the hearsay rule will not apply to a document which contains a previous representation made by a person who had or might reasonably be suspected to have had personal knowledge of the asserted fact.
Applicants’ contentions
The applicants submit that unlike other legislation (such as the Corporations Act 2001 (Cth) or the Taxation Administration Act 1953 (Cth)) the Act does not include an express provision to the effect that a document is prima facie evidence of the matters to which it speaks. The applicants contend that the Annexures to the Shinnick Affidavit require proof as to their content.
It was submitted that although s 183 of the Evidence Act allowed to Court to simply “make whatever inferences as may be thought are warranted” from the face of the documents, these documents were said to not “say much” (Transcript, 4 February 2022, p.4.38-41). In particular, emphasis was placed on the fact that the documents did not contain notations to say that they were records from the Integrated Client Services Environment (ICSE) database, let alone that they are business records.
It was submitted that the Shinnick Affidavit was not an appropriate vehicle for the placement of the screenshots before the Court because Mr Shinnick is not an employee of the Department (unlike the deponents of similar Affidavits in previous cases, albeit these cases were not identified) such that he could verify the provenance of the screenshots and because there was no information at all to sustain an inference that the representation implicitly contained in Annexure “AS1” to the Shinnick Affidavit (namely that refugee and complementary protection claims were refused) was made by a person who might reasonably be supposed to have had personal knowledge of that fact, or that the information was supplied by such a person.
First respondent’s contentions
The first respondent submits that the existence and use by his Department of a computerised system to record information concerning decisions made by him is a matter of knowledge not reasonably open to question, referring to s 144 of the Evidence Act. The first respondent says that this system has routinely been recognised by the Courts in this jurisdiction (citing DQX16 v Minister for Immigration and Border Protection [2018] FCCA 1915 per Judge Smith at [25]-[26]).
The first respondent says further that a screenshot of an underlying record is sufficient to prove its contents for the purposes of s 48(1)(c) of the Evidence Act and that the Court should be satisfied that the Annexure “AS1” to the Shinnick Affidavit is admissible as being business records of the Department.
In response to the applicant’s contentions about the lack of identifying features on the screenshots to demonstrate they do in fact come from the ICSE, the first respondent says that it is open to the Court to infer from the unique identifiers and the personal, visa-related nature of the information recorded in the screenshots that information which forms the records has been entered into a database in respect of the application for the protection visa the subject matter of these proceedings.
Consideration
The first respondent submits that it is well established that his Department (however it may be styled from time to time) maintains the ICSE database and that Judges of this Court and of the Federal Court have had regard to those records as such.
In this regard reliance was placed on the decision of Judge Smith in DQX16 where his Honour said:
25. The Department of Immigration maintains two databases relevant to the making of decisions to grant or refuse visas. The first is the Integrated Client Services Environment (ICSE). This database contains records relating to matters including the lodgement and processing of protection visa applications. The second system is the Total Records Information Management (TRIM) database. This is where copies of documents are kept.
26. The system followed by delegates when a decision to refuse to grant a visa is made is as follows:
a) when refusing a visa application, a delegate prepares written reasons in the format of a “Protection Visa Decision Record”, saved into TRIM and printed;
b) the delegate will then generate the notification of refusal letter through the Department’s Enterprise Correspondence System (ECS). Once the delegate has finalised the letter in ECS, it is automatically saved into TRIM and he or she will print a copy of the letter;
c) the delegate will then compile the letter, the written reasons for decision and any other relevant documents to be sent to the applicant and place them in a registered post envelope for dispatch;
d) the delegate will record the refusal decision as an event in ICSE, including the registered post tracking number.
In DQX16, his Honour then went on to have regard to the screenshots from the ICSE database which were placed before him. In FUS17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 272 her Honour Markovic J made similar observations to those of Judge Smith in DQX16 (relying on the primary Judge’s reasons in FUS17 v Minister for Immigration & Anor [2019] FCCA 1179 per Judge Baird) at [25] to [29].
I have also had regard to the much earlier decision of Lee v Minister for Immigration & Multicultural Affairs [2002] FCA 303 per Hely J, in which his Honour made a finding (at [19]) that the Department’s ICSE database is a business record of the respondent for the purpose of s 69 of the Evidence Act. The decision in Lee was upheld on appeal to a Full Federal Court albeit the Court did not find it necessary to fully determine the evidence point: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 305. In that appeal, the Full Federal Court did give consideration to the decision of NAB Ltd v Rusu (1999) 47 NSWLR 309 which it described as a “controversial” decision in which his Honour Bryson J held that there needed to be an evidentiary basis for a finding that a document was what it purported to be because documents were not ordinarily taken to prove themselves. However, the decision in Rusu continues to be treated with caution in this regard: see Australian Securities and Investments Commission v Activesuper Pty Ltd (in liq) (2015) 235 FCR 181 at [94] per White J.
As noted above, the applicants say that there is no evidence at all beyond Annexure “AS1” itself which identifies its source, its purpose or its author.
Sometimes, it will be possible to identify such a person. Other times, for example in situations involving a large scale database used by businesses or government departments it simply will not be. Section 69 of the Evidence Act does not specifically require that the person who made the representation or contributed the information upon which it is based need be expressly identified: see DZE17 v Minister for Immigration and Border Protection (2018) 162 ALD 147 per Allsop CJ at [21] to [23]; Guest v Commissioner of Taxation 2007 ATC 4265 at [25]; Lee (supra) at [22] cited with approval in Commonwealth Director of Public Prosecutions v The Country Care Group Pty Limited (Ruling No. 8) [2021] FCA 365 at [39] per Bromwich J.
I have reviewed the 3 screenshots which form Annexure AS1 to the Shinnick Affidavit.
I accept that the screenshots do not expressly contain any notation (or branding) to say that they are extracts from the Department’s ICSE database. However, one would not necessarily expect that to be so. As I understand it, the ICSE database is a working software system which is concerned with internal records and data management of the Department and not some sort of branded, public or client-facing information portal.
From the information contained within them, the screenshots appear to a record of matters pertaining to the lodgement and processing of protection visa applications in relation to the applicants in this case. The respective Departmental client numbers, names, dates of birth and genders of all six applicants are recorded, together with their roles in the application, the dates of various events, and certain outcomes. Those details are consistent with corresponding information in Exhibit “1R” which pertains to the applicants.
Having regard to the consistency of that information, I am prepared to infer from that consistency and the fact that the information clearly pertains to the lodgement and processing of their visas that they are from the Department’s records. Given also the veracity of the factual information within it which is verifiable by reference to other sources in Exhibit “1R”, I am also prepared to infer that the screenshots are authentic.
The applicants say that neither of the exceptions in ss 69(1) and 69(2) of the Act are met in relation to the documents which form Annexure “AS1” to the Shinnick Affidavit.
In that regard I find as follows:
(a)s 69(1) provides that the exception applies to a document which either is or forms part of the records belonging to or kept by a person, body or organisation for the purposes of a business, or contains a previous representation record in the course of or for the purposes of a business. In my view, Annexure “AS1” satisfies this description, having regard to my finding at [51] above that they form part of the records of the Department for the purpose of its business as defined in the Act; and
(b)in relation to whether s 69(2) is met, I am prepared to infer that while the identity of persons who may have contributed to the content of the Department’s database in relation to these applicants is not known, I am satisfied that given this is a database maintained by and for the Department, the persons who have contributed the factual content of it are persons within the Department who might reasonably be supposed to have personal knowledge of the facts within it and/or that information supplied to them might also reasonably be supposed to have knowledge of those facts.
Having regard to the earlier decisions which have readily accepted the ICSE database and its contents as being business records of the first respondent’s Department, the previously accepted use by this Court and the Federal Court of screenshots from it as being business records (in particular the decision of Lee), and having examined the documents that form Annexure AS1 to the Shinnick Affidavit, I am satisfied on balance that the screenshots are business records and, therefore, are not the subject of the hearsay rule.
Lastly, I agree with the submission made for the first respondent that the admission of Annexure AS1 should not be precluded on the basis of s 135(a) of the Evidence Act because it would be unfairly prejudicial to the applicants (or more specifically the sixth applicant). I disagree.
I am prepared to accept the documents which form Annexure AS1 into evidence. In the course of argument and further submissions, the parties seem to have jettisoned the issue of whether [5] and [6] were relevant. The documents which form Annexure AS1 to an Affidavit could equally have been tendered. Given that the paragraphs give context and at least in relation to the first sentence of [5] provide the mechanism of the Annexure itself, I would allow it. The balance of [5] and the whole of [6] simply provides the nature of the instructions. As Annexure AS1 is in any event a business record, [5] and [6] are not strictly required to verify the truth of the statements in any event. However I will allow them as giving context to the Annexure.
Ground 1
Ground 1 alleges that the Tribunal misconstrued or misapplied s 36(2B)(c) of the Act or that its finding at [131] of the reasons for decision was illogical. At hearing, Counsel for the applicants confirmed that, despite potentially seeming to be a “no evidence ground”, the second part of this ground is cast as an allegation of illogicality.
The ground takes issue with the Tribunal’s complementary protection findings and what is said to be the inter-relationship between a finding under a heading “Applicant 1” at [105] (CB 582) that:
I accept that the thugs who kidnapped the applicant and extorted his parents may have been associated with the TTP. But this does not, of itself, demonstrate that the applicant was targeted for any reason other than his family’s capacity to pay the ransom. Given that the applicant remained in Pakistan for a further two and a half months; the absence of evidence of any subsequent police report; and, the applicant’s failure to seek protection in Australia at the first reasonable subsequent opportunity satisfy me that the applicant subjectively believes his kidnapping and beatings were opportunistic and criminal rather than targeted and particularised for any Convention-related reason. The absence of particularisation beyond the capacity of the applicant’s family having an imputed capacity to pay a ransom also satisfy me that this integer of the applicant’s claims does not meet the threshold tests for complementary protection.
and [131] (CB 589) which was included under a heading “Applicant family unit claims regarding generalised violence” in which the Tribunal said:
Accordingly, to the extent that the applicant’s claims can be characterised as being based on a well-founded fear of harm in Pakistan for the essential and significant reason of generalised acts of violence perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors, they do not give rise to protection obligations in Australia under either s.36(a) [sic] or s.36(aa) [sic] of the Act due to the lack of particularity of the harm that is required by these statutory provisions.
No specific issue was taken by applicants in relation to the incorrect references in [131] to ss 36(a) or (aa) which, it seems, were intended to be references to ss 36(2)(a) and 36(2)(aa). However the applicants do say that the fact that both sub-sections were included in [131] demonstrates that the Tribunal conflated the refugee and complementary protection tests.
Overall, by this ground the applicants allege that the conclusion at [131] was illogical because if the first applicant was prone to kidnapping based on the fact his family were considered a good target for extortion then, while this may lack a Convention nexus, it could still give rise to a complementary protection claim. The applicants say that at [105] the Tribunal had already provided the reason why s 36(2B) did not apply because the fact the first applicant was a person from a family imputed with a capacity to pay a ransom separated him from the population of the country generally.
For the first respondent, it is submitted that on a fair reading of the Tribunal’s reasons, the issues of kidnapping by the TTP and the risk of generalised violence are separate matters and have been dealt with as such. The first respondent says that at [105] the Tribunal deals with both the refugee and complementary protection criteria in relation to the kidnapping claim. The first respondent says that while the Tribunal does not explicitly say so, it must be taken to have been dealing with the possibility that a kidnapping of the sort claimed to have already occurred in the past may again occur in the future. Further, the use in the penultimate sentence of the word “subjectively” can only relate to the refugee criterion.
Then, turning to the final sentence of [105] the first respondent says that while not being a model of clear language, the word “particularisation” must refer back to the previous sentence such that the Tribunal was saying that absent the first applicant having been targeted for any reason other than an opportunistic imputation that his family might be able to pay a ransom, this also went to the question of whether there existed a “real risk” for the purposes of s 36(2)(aa). Counsel for the first respondent submitted that the reference to not meeting “the threshold tests for complementary protection” cannot be reference to s 36(2B)(c) of the Act because that is not the threshold test of complementary protection, but rather an exclusion. So understood, the first respondent contends that the final sentence of [105] should be read as:
The absence of targeting, accordingly to my findings, means that I am also not satisfied that there is a real risk for the purposes of the complementary protection criterion of this sort of event re-occurring.
Consideration
Jurisdictional error is established where a decision is irrational, illogical and not based on findings or inferences of fact supported by logical grounds and can be demonstrated by findings or reasoning along the way to reaching a conclusion, that are illogical or irrational: see BZD17 v Minister for Immigration and Border Protection (2018) 263 FCR 292 at [34] citing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [132] per Crennan and Bell JJ. Relevant error will be found to exist if the finding of fact “was simply not open on the evidence or … there is no logical connection between the evidence and the inferences or conclusions drawn”: SZMDS (supra) at [135] per Crennan and Bell JJ.
In the present case, the illogicality sought to be established would be present if the applicant’s kidnapping claim formed part of the issue of generalised violence, such that there is an inconsistency between [105] and [131] of the Tribunal’s decision.
However, in my view the Tribunal’s consideration at [131] (and in fact from [114] to [131]) was dealing with an issue separate from kidnapping.
Firstly, the subheading is of assistance and indicative of two matters, namely that the section pertains to generalised violence specifically in relation to the “Applicant family unit”.
In so considering, the Tribunal had regard to a variety of independent country information which was said to go to:
generalised violence in the region perpetrated by agents of harm including, but not limited to, the TTP, various non-ideological criminal thugs and other non-state actors…
The independent material which discusses generalised violence deals with deaths related to terrorist attacks, random gun violence and suicide bombings. In fact nowhere within the ambit of the material which was before the Tribunal in relation to generalised violence was kidnapping mentioned at all. Based on the material before it, it was open to the Tribunal to have omitted the issue of the kidnapping of the applicant, which it had accepted as having occurred, from the ambit of what it considered under “generalised violence”.
The Tribunal considered the risk to the applicants in relation to this generalised violence and concluded, in relation to a refugee assessment, that this did not give rise to protection obligations under the Act (CB 588 at [126] to [127]) before then turning its findings to the complementary protection criterion. Its conclusion in relation to generalised violence in Pakistan and whether the complementary protection obligation was met is at [131] of the reasons (CB 589).
A fair reading of the entirety of [114] to [131], and more specifically of [131] itself, does not give rise to any jurisdictional error of the kind alleged. There was nothing before the Tribunal to suggest that the risk of terrorist attacks, gun violence and suicide bombings to the applicants was anything other than one faced by the population of Pakistan generally and to this extent, there is no error arising at [131] from a misapplication of s36(2B)(c) of the Act.
I find that the Tribunal’s findings in relation to the kidnapping claim are included, in their entirety, in [105].
In relation to the question of whether it was open to the Tribunal to find, as it did at [105] that the circumstances of the applicant’s kidnapping met neither the refugee nor complementary protection criteria, consideration must be given to the nature of the claims as made. Before the Tribunal, the applicant contended that the kidnapping was politically motivated (see for example the third bullet point of [70] at CB 577 and [86] at CB 579), however the detail of the claim evolved over time.
By a written submission to the Tribunal dated 5 April 2021 the claim was expressed thusly (CB 339):
During his second trip to Pakistan (in 2011), [the first applicant] had to go outside his home for travelling to Islamabad, for applying for visas for his family. At that time, [the first applicant] was kidnapped by a group of unknown persons. He was pushed into a Suzuki car, then blindfolded and taken to an unknown place. The kidnappers demanded ransom from his family members a sum equivalent to around AUD 4000, which his father paid to them. In the meantime, [the first applicant] was kept in an isolated room for 2 days, and during this time he was tied up, kicked and abused.
By a subsequent written submission to the Tribunal dated 2 July 2021 the claim was detailed as follows (CB 523):
[The first applicant] made a second trip to Pakistan. During this trip, [the first applicant] had to go outside his home for travelling to Islamabad, to give documents pertaining to his family’s visa applications. At that time, [the first applicant] was kidnapped by a group of unknown persons. He was pushed into a Suzuki car, then blindfolded and taken to an unknown place. [The first applicant]’s father contacted a friend who had contacts in the Taliban to try and help in the matter. The friend agreed to talk to his Taliban acquaintances, and told his father that he would need money for paying to the Taliban to arrange for the release of [the first applicant]. An amount of the equivalent of AUD 4000 was given by his father to his friend for onward payment to third (unknown) parties. In the meantime, [the first applicant] was kept in an isolated room for 2 days, and during this time he was tied up, kicked and abused.
The April 2021 account of events suggests that the family were contacted directly with a view to obtaining a ransom. The July 2021 version suggests that the father of the applicant found out about the kidnapping and sought the assistance of a friend to help, following which the friend negotiated with the Taliban for the father to pay to release the applicant. On neither version was there an express suggestion that the applicant was targeted for kidnapping because of his refusal to join the TTP (although there is a reference to the negotiation and payment going to the Taliban). Nor was there any suggestion that some characteristic of the applicant or his family, in the sense of some imputed wealth, was the reason which prompted the kidnapping. In this regard, the finding in relation to the capacity of the applicant’s family to pay a ransom read in context is just that the kidnapping was opportunistic in the sense that by kidnapping a person one can then use their detention as a way to extort money from loved ones, whomever they may be. Therefore to the extent the applicants pose a question as to whether the risk of kidnapping to the applicant was one faced by the population of the country generally, the answer is that on the applicant’s own evidence as accepted by the Tribunal, it was not faced only by him personally.
Given the nature of the applicant’s claims, once the Tribunal was not satisfied that there was a political motivation for the kidnapping, such that it was not satisfied that even the applicant subjectively considered the matter to be anything other than opportunistic and criminal, it was also open to the Tribunal to find that the kidnapping claim did not satisfy the complementary protection criterion.
I accept the submission of the Minister that having been dealt with at [105], the kidnapping claim did not then fall as part of the issue of generalised violence which was dealt with from [114] onwards. I do not accept that [131] can fairly be read as being a conflation of the tests in ss 36(2)(a) and 36(2)(aa) of the Act. As the final paragraph of the section on generalised violence, [131] is making express findings as to the matters it dealt with in relation to the refugee criterion which appears to have finished by [127] (in particular by the uses of the expression “systematic and discriminatory conduct” which reflects the language of s 5J(4)(c) of the Act) and the complementary protection criterion which commences at [128] and concludes midway through [131].
Perhaps it might have been neater and more desirable if the statement about not satisfying ss 36(2)(a) and 36(2)(aa) had been a stand-alone sentence, but on a fair reading of it in the context of the entire decision, at best it is “unhappy phrasing”: see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 per Neaves, French and Cooper JJ and does not give rise to a jurisdictional error.
For the foregoing reasons, ground 1 is not made out.
Ground 2
This ground centres upon the sixth applicant, who is a child born to the first and second applicants in October 2013. The applicants allege that no “Part 7-reviewable decision” existed for review by the Tribunal pursuant to s 411(1)(c) of the Act because the Minister (by his delegate) had not made a “decision” refusing her a protection visa under s 65 of the Act. The applicants contend that this is because the sixth applicant is not referred to in the delegate’s decision.
It is not in dispute between the parties that the sixth applicant was an applicant for the visa. Even if an application had not been expressly lodged on her behalf, r 2.08 of the Migration Regulations 1994 (Cth) has the effect that if an applicant applies for a visa and at a time between that application being made and its determination a child is born to the applicant then the child is also taken to have applied for that visa in the same class, as at the time they were born and their visa application is combined with that of the applicant parent/s.
Relevant to the resolution of this issue are the following sections of the Act:
65 Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.
Note 2: See also section 195A, under which the Minister has a non‑compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.
Note 3: Decisions to refuse to grant protection visas to fast track review applicants must generally be referred to the Immigration Assessment Authority: see Part 7AA.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
66 Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made; and
(e) in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and
(f) in the case of a fast track decision that is not a fast track reviewable decision—state that the decision is not subject to review under Part 5, 7 or 7AA.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
67 Grant and refusal of visa—how and when
(1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:
(a) a decision to grant a visa;
(b) a decision to refuse to grant a visa.
(2) The record must state the day and time of its making.
(3) The decision is taken to have been made on the day and at the time the record is made.
(4) The Minister has no power to vary or revoke the decision after the day and time the record is made.
(5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).
411 Definition of Part 7‑reviewable decision
(1) Subject to subsection (2), the following decisions are Part 7‑reviewable decisions:
…
(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i) subsection 5H(2), or 36(1B) or (1C); or
(iii) paragraph 36(2C)(a) or (b);…
Section 65 of the Act provides the first respondent’s decision-making power in relation to the grant of, or refusal to grant, a visa.
Section 66 deals with the manner in which a decision made under s 65 is notified to visa applicants (including the provision of a statement of reasons). In this regard the wording of s 66(1) is significant because it is premised on the fact that a decision has already been made by the Minister under s 65.
The parties did not direct the Court to any cases with precisely analogous circumstances to the scenario which arises for consideration in this case. However, there are a number of relevantly useful authorities which address other deficiencies in reasons for the decisions of other delegates which may be of assistance.
In AEW18 v Minister for Home Affairs [2019] FCA 208, Burley J considered circumstances in which a delegate’s reasons failed to record the day and time of the making of the decision. The matter, being a fast track reviewable decision was referred as a matter of course to the Immigration Assessment Authority (Authority) for review. His Honour’s reasoning at [37]-[41] merits reproduction at length as it is apposite to the instant case (emphasis in original):
37. Section 67(1) provides that a decision to grant or refuse a visa are taken to be made “by the Minister causing a record to be made of the decision”. Sub-section 67(2) requires that the record must state the day and time of its making. By sub-section 67(3) the decision is taken to have been made on the time and date that the “record” was made. Subsection 67(4) gives the evident reason for precision in maintaining the record, by providing that after that day and time the Minister has no power to vary or revoke the decision.
38. It may be noted that there is a material linguistic distinction between the s 66(2)(c) requirement for the provision of “written reasons” and the s 67(1) requirement that the Minister cause a “record” to be made of the decision. It is the day and the time of the making of the record of the decision, not the written reasons, that s 66(2) requires. The Minister submits that the word “record” is to be given its ordinary English meaning of “a written or otherwise permanently recorded account of a fact or event” (citing the Shorter Oxford English Dictionary, 6th ed, 2007), the fact or event here being the decision to grant or refuse a visa. This is to be contrasted with the “written reasons” identified in s 66. The Minister relies on an affidavit given by an assistant director of the Protection Assessment NSW Section, Humanitarian Program Operations Branch of the Department of Home Affairs, which was admitted into evidence before the primary judge. The affidavit explains that the practice of the Department is to create a permanent record in a database of the fact of a decision having been made under s 65 in relation to a visa application together with the time and day of the decision. The evidence indicates that such a record was created in respect of the decision of the delegate.
39. I accept that the ordinary meaning of the word “record” proposed by the Minister accords with the statutory scheme and suitably defines the subject matter of s 67(1). By creating in the database an entry specifying the day and time of the decision to refuse to grant the appellant’s visa, the Minister satisfied his obligations under s 67(2). In this context, the absence of a date and time on the written reasons provided by the delegate is irrelevant.
40. Furthermore, the argument advanced by the appellant is that by reason of a failure to create a record of the decision the decision itself is invalid. Caution should be exercised in concluding that a referral of an administrative decision for review was invalid on the basis of a technical deficiency. In Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16; (2018) 92 ALJR 481 the High Court considered the nature of a fast track reviewable decision under Part 7AA of the Act. It said at [39], [52] (per Gageler, Keane and Nettle JJ, emphasis added):
39. Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd has been aptly described as a “landmark decision” in the early history of the Administrative Appeals Tribunal. The Full Court of the Federal Court there construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) to a “decision” in respect of which an enactment might provide for review by that Tribunal as a reference to nothing more than “a decision in fact made, regardless of whether or not it is a legally effective decision”. The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal “to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task”: “[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review” and “technicality would be introduced at the outset”. In the context of the Administrative Appeals Tribunal, that construction has not since been doubted.
…
52. The limitations on the form of review for which Pt 7AA provides are in the end insufficient to warrant departure from the Brian Lawlor construction. Applying that construction, a fast track reviewable decision triggering the operation of the Part and forming the subject of the Authority’s review is a decision made in fact to refuse to grant a protection visa to a fast track applicant, regardless of whether or not that decision is legally effective.
41. ...The contention advanced by the appellant in the present case is based on the premise that by reason of the failure of the delegate to record the time and date on the written reasons accompanying the notification of the decision outcome, no “fast track reviewable decision” has been made, and accordingly the IAA had no power to make its decision. However, as the High Court records in Plaintiff M174, it is the decision made in fact to refuse to grant a protection visa to a fast track applicant that is the trigger for the operation of Part 7AA. That decision is made pursuant to s 65 of the Act. This trigger operates regardless of whether or not that decision is legally effective. In any event for the reasons stated in [37]–[39] above, no statutory omission of relevance arises insofar as there was no time or date set out on the written reasons of the delegate. Those reasons are not the “record of the decision” identified in s 67(2). If they were, the terms of s 67(5), which state that failure to comply with s 67(2) does not affect the validity of the decision would in any event deprive the appellant of success on this ground.
On appeal to the Federal Court from the decision referred to in [39] above, Moshinsky J cited AEW18 at [37] to [39] with approval: see DQX16 v Minister for Home Affairs [2019] FCA 1705 (DQX Appeal). Each of AEW18 and the DQX16 Appeal were cited with approval by Markovic J in FUS17 (supra) at [27] to [29].
None of AEW17, DQX16 (or the appeal therefrom) or FUS17 is precisely on all fours with the instant case because firstly, each involved a referral from the delegate for a review by the Authority under Part 7AA of the Act. As noted above in relation to AEW18, a salient feature of that statutory regime is that the matter is referred to the Authority for review automatically, whereas in the instant case the review was pursued by the applicants of their own motion, and included the sixth applicant. However, neither of the aforementioned aspects makes AEW18 relevantly distinguishable from this case and the fact that the applicants actively pursued review is in a sense a fortiori.
Next, and unlike AEW17, FUS17 or DQX16 (or the appeal therefrom), the deficiency in the delegate’s written reasons in this case was not a failure to state the day and time of the making of a record of the decision, for the purposes of s 67(2), but rather a failure to comply with s 66(2) of the Act by not specifying the matters in respect of the sixth applicant which were required.
That is because the delegate’s reasons for decision omitted reference to the sixth applicant entirely. That the sixth applicant was not named in the written reasons is not in dispute. The sixth applicant was not identified in Part 1 of the reasons for decision under the heading: “1. APPLICANT DETAILS” where each of the first to fifth applicants was identified by their family and given names, any known aliases, their dates of birth and citizenship. Nor was the sixth applicant included in the parts of the decision which have the effect of notifying the other applicants of the specific visa criterion they had not met and the reasons for why they had not met them. That is to say, those aspects are extant in the written reasons for decision, but the absence of the sixth applicant’s name from the decision has the effect that there was no such compliance with s 66(2) in relation to the sixth applicant.
To the extent that the applicants seek to make a distinction between the delegate’s written reasons given for decision (which do not expressly refer to the sixth applicant) and the covering letter (which does include the sixth applicant) as being the decision and the notification, respectively, this is misconceived.
There is a clear difference between the Minister’s decision pursuant to s 65(1)(b) of the Act and its notification pursuant to s 66 of the Act. The making of a decision is ethereal, in the sense that it involves a mental process. The written reasons serve to evidence the process by which that decision was arrived at and the underlying mental process engaged in by the decision maker: see He v Minister for Immigration and Border Protection (2017) 255 FCR 41 per Siopis, Kerr and Rangiah JJ at [79] (in a Tribunal context). Notification of that decision takes place by providing to the applicants the information which is required by s 66 of the Act. This is predominantly contained in the written reasons for the decision, with additional matters (such as those prescribed by s 66(2)(d) usually contained in some form of covering correspondence.
A written statement of reasons within the notification provision of s 66 is not the “record” for the purposes of s 67(1) of the Act: see AEW18 (supra) at [41] and as s 66(4) of the Act makes plain, any failure to notify the sixth applicant of the decision would not affect its validity.
The question remains one of fact for the Court as to whether there was a decision made in respect of the sixth applicant. It is resolved thusly by reference to the aforementioned authorities.
If there exists evidence of the creation of a database entry which specifies that the delegate refused to grant the sixth applicant’s visa, then the Minister has satisfied his obligations under s 67 and is taken to have made said decision. Applying AEW18, the omission of the sixth applicant’s name from the written reasons provided by the delegate is, therefore not the determinative factor: see in particular AEW18 at [39].
Turning then to Annexure “AS1” to the Shinnick Affidavit, the following can be discerned:
(a)the first respondent’s Department records the sixth applicant’s visa application having a “Date Requested” of “19/12/2013” (as distinct from the other applicants, 2 of whose entries are visible and which indicates their visa application date as being 9 August 2013): Annexure “AS1” to the Shinnick Affidavit at page 1;
(b)there is an entry dated 24 August 2017 in respect of the sixth applicant which says that in respect of a “Refugee Determination” she was “Not Found to be a Refugee”: Annexure “AS1” to the Shinnick Affidavit at Annexure page 1;
(c)there is an entry dated 24 August 2017 in respect of the sixth applicant which says that in respect of a “Complementary Assessment” this was “Not met”: Annexure “AS1” to the Shinnick Affidavit at Annexure page 1;
(d)there is an entry dated 24 August 2017 in respect of the sixth applicant which says “Protection Obligations Assessed” as “No Obligations” and “s36(2) Not Satisfied”: Annexure “AS1” to the Shinnick Affidavit at Annexure page 2; and
(e)a corresponding database entry is also provided which records the later determination by the Tribunal on 5 August 2021 in respect of the sixth applicant which says “Review Affirmed- Refugee” with a result of “Refusal”: Annexure “AS1” to the Shinnick Affidavit at Annexure page 3.
I am satisfied from the records which form Annexure “AS1” to the Shinnick Affidavit that, on the balance of probabilities, a decision was made by the first respondent’s delegate in respect of the sixth applicant. As a result, I find that the Tribunal had jurisdiction in respect of the sixth applicant pursuant to s 411(1)(c) of the Act.
Prior to concluding this ground, I note in the interests of completeness that when I came to consider the parties’ submissions in relation to ground 2, I observed that section 5 of the delegate’s decision (CB 221) includes findings about an applicant with a name which does not correspond with any of the applicants named in this matter. I had my chambers enquire of the parties as to whether they wish to make further submissions about this because it was not an issue raised at hearing by either party and I apprehended that they may have differing views as to what, if any, significance the error on CB 221 had.
The parties were agreed that further submissions were not required. In so replying, the applicant’s solicitor did go on to say that this mistake supported:
an inference that the delegate has cut-and-pasted at least part of the decision from another decision, and is capable of supplying a basis for a contention of a failure to ‘consider’, the applicant’s point about the delegate’s decision is that there was never any decision at all about the sixth applicant.
For the Minister it was contended that, while unfortunate and unsatisfactory, the mistake did not give rise to an arguable case of jurisdictional error.
I do not accept, nor has it been otherwise contended for the applicants, that the alleged error in relation to the sixth applicant arose by virtue of a “cutting and pasting”-style error of the kind considered in, for example, SZRBA v Minister for Immigration and Border Protection (2014) 142 ALD 211. Further, and unlike SZRBA, there was no suggestion that the delegate had overlooked a submission, or claims, pertaining to any of the applicants. The issue of whether a decision was made in relation to the sixth applicant turns on the question at [95] above and the unfortunate inclusion of another applicant’s name in place of the first applicant (being the primary applicant) at CB 221 does not alter this.
I find that ground 2 is not made out. Having found there to be no error, it is not necessary to consider the first respondent’s contentions relating to the futility of granting the relief sought in respect of the sixth applicant.
Accordingly, I decline to make the declaratory and ancillary relief sought by the second and third prayers for relief in the Amended Application.
CONCLUSION
The applicants have failed to establish that the Tribunal’s decision is affected by jurisdictional error and it is therefore a privative clause decision and the Amended Application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 29 June 2022
SCHEDULE OF PARTIES
PEG 173 of 2021 Applicants
Fourth Applicant:
CUU21
Fifth Applicant:
CUV21
Sixth Applicant:
CUW21
0
21
0