CVP16 v Minister for Immigration
[2020] FCCA 73
•20 January 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVP16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 73 |
| Catchwords: MIGRATION – Application for review of decision of the Immigration Assessment Authority (IAA) – whether the IAA failed to comply with s.473DF of the Migration Act 1958 (Cth) (the Act) when inviting the applicant to an interview to give information – whether the IAA denied the applicant procedural fairness by failing to advise the applicant of the existence of a certificate pursuant to s.473GB of the Act – whether the IAA breached s.473DE of the Act by failing to give particulars of new information to the applicant which formed the basis of affirming the delegate’s decision – whether the certificate itself was new information – whether the IAA failed to give a direction under s.473GD concerning restrictions on publication of some of the material it chose to disclose to the applicant during the IAA interview – no jurisdictional error revealed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.438, 473BB, 473CB, 473DC, 473DD, 473DE, 473DF, 473GB, 473GD, 476 |
| Cases cited: BMV16 v Minister for Home Affairs [2018] FCAFC 90; (2018) 261 FCR 476 | ||
| Applicant: | CVP16 | |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2676 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 28 August 2018 |
| Date of Last Submission: | 27 November 2019 |
| Delivered at: | Sydney |
| Delivered on: | 20 January 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Hodges Legal |
| Legal Representative for the Applicant: | Mr S. Tambimuttu |
| Post-hearing written submissions for the Applicant drafted by Counsel: | Mr D. Godwin |
| Counsel for the Respondents: | Mr G. Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The name of the first respondent is amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
The application made on 30 September 2016 and as amended is dismissed.
The applicant pay the first respondent’s costs set in the amount of $7300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2676 of 2016
| CVP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 September 2016, amended on 9 July 2018 and yet further amended on 28 August 2018, seeking review of the decision of the Immigration Assessment Authority (“the IAA”) made on 2 September 2016 which affirmed the decision of the Minister’s delegate to refuse a Safe Haven Enterprise Visa (“SHEV”) (“protection visa”) (“the visa”) to the applicant.
The evidence before the Court is contained in:
1 The Court Book – “CB” – “RE1”.
2 A Supplementary Court Book – “SCB” – “RE2”.
3 The affidavit of Sudarshan Sanjeevakumar Tambimuttu, solicitor, sworn and filed on 30 July 2018, annexing a transcript of the interview of the applicant by the IAA conducted on 16 August 2016.
Background
The applicant is a citizen of Sri Lanka (item 18 at CB 117) who arrived on Christmas Island on 28 September 2012 (item 47 at CB 124). On 29 October 2015 he made an application for the visa (CB 106 – CB 170).
The applicant claimed to be a Hindu Tamil who feared harm from the Tamil Makkal Viduthalai Pulikal (“TMVP”) because in the past he had refused to join them (in 2004), in spite of being held in a camp and threatened with death.
He departed Sri Lanka and went to the United Arab Emirates (“UAE”). He returned to Sri Lanka in August 2007. He went to his home in Batticaloa and found his cousin had been severely burned following an argument with the TMVP. His cousin subsequently died in hospital.
In the meantime his cousin had revealed to doctors that the TMVP had sexually assaulted her. The applicant and his mother complained to police at the hospital. The applicant went to stay at the house of a Tamil National Alliance (“TNA”) member of the Sri Lankan parliament.
He and his younger brother departed Sri Lanka in July 2012. Since he left, people went to his parents’ home searching for him and his younger brother. Members of the applicant’s extended (but not immediate) family were members of the Liberation Tigers of Tamil Eelam (“LTTE”).
The Minister’s delegate refused the visa on 27 June 2016 (CB 261 – CB 294). The matter was referred to the IAA on 29 June 2016 (CB 296). The applicant made written submissions to the IAA on 12 July 2016 (CB 310 – CB 314) wherein he raised further claims. He was invited to an interview by the IAA to be held on 16 August 2016 ([3] at CB 331 and SCB 1 – SCB 2).
The IAA Decision
The Minister’s submissions set out a fair summary of the IAA’s decision (at [6] – [10]):
“6. On 2 September 2016 the Authority affirmed the decision under review: CB 330.
7. In the IAA Submission the applicant advanced for the first time that he was a member of the LTTE intelligence wing from 1997-2004, and that his involvement with the LTTE had led to problems with the TMVP. The Authority considered the applicant’s evidence that information he had obtained from ‘Mr N’ (a PLOTE member) had led to a successful LTTE suicide bomb mission. The Authority questioned the applicant about this evidence at interview, and did not find the applicant’s responses to its concerns to be convincing. It was not satisfied the new information was credible personal information for the purposes of s.474DD(b) of the Act: [5]; CB 332-333. Nor was the Authority satisfied that the information could not have been provided to the delegate: [4]; CB 332.
8. The Authority found plausible the applicant’s account of the events with the Karuna Group described as having occurred in 2004: [10]; CB 334. However the Authority had concerns with various aspects of the applicant’s claims. The Authority was not satisfied on the evidence provided that his cousin was killed by Tamil paramilitaries: [13]; CB 225. Further, the Authority was not satisfied that the applicant and his friend who were left abandoned by the Karuna Group were of adverse interest to the group: [17]; CB 336. The Authority found it implausible that the applicant could have been of such interest to the Tamil paramilitaries as he claimed during 2007-2012 yet had gone unharmed during this period: [18]; CB 336. The Authority noted country information that referred to the ‘aggressive stance’ taken by the TMVP during this period, and was not satisfied with the applicant’s explanations that he had avoided harm by living with the TNA MP: [18]; AB 336-337.
9. The Authority did not accept the applicant’s claim that he was politically involved himself in the TNA referring to inconsistencies in the presentation of this claim: [20]; CB 338. The Authority was not satisfied that the incidents with the thieves led the applicant to decide to leave Sri Lanka, on the basis of the applicant’s subsequent conduct and observing that the applicant’s own evidence was that the men took no action against the applicant and his friends other than to threaten them: [21]; CB 338. The Tribunal also took into account country information relating to circumstances for Tamils in Sri Lanka at present: [28]-[34]; CB 340-342. It also considered, but rejected, that the applicant had protection obligations arising from having departed Sri Lanka illegally: [35]-[41]; CB 342-345.
10. The Authority concluded that the applicant was not owed protection obligations either under s.36(2)(a) or s.36(2)(aa) of the Act.”
The Grounds of the Application to the Court
At the final hearing of this matter the applicant was granted leave to proceed on the basis of three grounds of the latest version of his amended application. For ease, I will continue to refer to the remaining grounds as they are numbered in the yet further amended application:
“Ground 2
The Authority committed jurisdictional error, namely a denial of procedural fairness, because it failed to advice the applicant of the existence of a Ministerial Certificate issued under s473GB of the Migration Act and or the documents covered under the Ministerial Certificate.
Particulars
· A Ministerial Certificate was issued under s473GB of the Migration Act [CB 294].
· The applicant was not advised of the existence of the Ministerial Certificate nor was the applicant given an opportunity to make submissions on the validity of the Ministerial Certificate.
· The reason for issuing the Ministerial Certificate was because documents or information in the documents titled QAN070 (the applicant's brother) were contained in the applicant's portfolio of documents referred to the Authority [CB 294].
· It is clear that the Authority had before it and considered QAN070's material referred to it [CB 336, 16].
· The documents covered by the Ministerial Certificate were relevant for the purpose of the applicant's review conducted by the Authority.
· It would be appropriate to adjourn the instant matter until appeals currently before the High Court of Australia from the decisions of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 and BEG v Minister for Immigration and Border Protection [2017] FCAFC 198 are brought to finality.
Ground 3
The Authority committed jurisdictional error, namely that it failed in its statutory obligation to give the referred applicant particulars of new information that it had considered which formed part of the reason for affirming the fast track reviewable decision.
Particulars
· The Authority received a document (Ministerial Certificate issued under s473GB of the Migration Act - [CB 294]) that,
oWas not before the Minister when the Minister made the decision under section 65 [CB 291] and
oThe Authority considered that document to be relevant [CB 329].
· Section 473DE (1) of the Migration Act states
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision;
· The Authority did consider the Ministerial Certificate [CB 329], because the Direction issued under s473GD(1) of the Migration Act was issued on the basis of Ministerial Certificate it had considered.
· Notwithstanding the inference made concerning the documents or information covered under the Ministerial Certificate [CB 336, 16], it cannot be said that the Ministerial Certificate was not part of the reason for affirming the fast track reviewable decision.
· The Authority did not give the referred applicant particulars of the Ministerial Certificate or notify the applicant of the existence of such a certificate.
· Therefore the Authority has breached its statutory obligation under s473DE (1) of the Migration Act.
Ground 4
The Authority fell into jurisdictional error, because it failed to specify in its invitation "a period" "within" which comments "are to be given" by the referred applicant.
Particulars
· S473DF (2) of the Migration Act states "The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation ".
· In BMV16 v Minister for Home Affairs [2018] FCAFC 90 (21 June 2018) at paragraph 73 the Full Court of the Federal Court stated,
(5) Section 473DF(2) contemplates that the Authority specify in its invitation "a period" "within" which comments "are to be given" by the referred applicant: "The comments are to be given within a period that is prescribed by regulation and specified in the invitation".
· The Authority invited the applicant for an interview [CB 320].
· The Record of Invitation dated 10 August 2016 did not specify a period" "within" which comments "are to be given" by the referred applicant.
· The Authority failed in meeting its statutory obligations under the Migration Act (s473DF) and Migration Regulations (reg 4.42).”
[Errors in the Original.]
The applicant was also granted leave to proceed on a further ground (see applicant’s written submissions at [15]):
“15. Proposed new ground
15.1. Ground - The Authority failed to give a direction under s473GD concerning restrictions on the publication of some material it chose to disclose to the applicant during the IAA hearing.
Particulars
1. At page 25 of the Transcript of the IAA hearing (attached to the Affidavit of 30 July 2018) the Reviewer stated "So your brother claims that he first became aware that you were of interest to the TVMP [sic] after he returned from Qatar in June 2011”.
2. At page 25 of the Transcript of the IAA hearing (attached to the Affidavit of 30 July 2018) the Reviewer stated “…he believes men who belong to the Karuna Group came to your home in…sorry, that’s not in…so he claims to have…”.
3. At page 25 of the Transcript of the IAA hearing (attached to the Affidavit of 30 July 2018) the Reviewer stated "And he claims to have been told by the Karuna Group…”.
5. The IAA gave a Direction under s 474GD [CB 329].
6. The Direction covered evidence and information that related to the applicant's brother (Brother -2) contained in paragraph 12, 14 and 16 of the IAA decision [CB 329].
7. The relevant paragraphs (12, 14 and 16) referred to in the IAA decision did not refer to information (referred above at particulars 1, 2 and 3) that the IAA chose to disclose during the IAA hearing.
8. The IAA failed to give a Direction given under s 474GD of the Act concerning restrictions on the publication of some material it chose to disclose to the applicant during the IAA hearing.”
[Error in the Original.]
This is referred to as ground five below.
During the hearing it became apparent that some of the applicant’s arguments were dependent on matters before the High Court. Ultimately, both parties made subsequent written submissions, dated 23 October 2019 and 27 November 2019 respectively. These are considered, where appropriate, below.
The applicant also sought to make submissions before the Court not in the order in which the grounds were pleaded. It is convenient to address the grounds in the order as submitted by the applicant.
Consideration: Ground 4.
Ground 4 directs attention to s.473DF of the Act. At the relevant time this was in the following terms:
SECT 473DF – Invitation to give new information or comments in writing or at interview
(1) This section applies if a referred applicant is:
(a) invited under section 473DC to give new information in writing or at an interview; or
(b) invited under section 473DE to give comments on new information in writing or at an interview.
(2) The information or comments are to be given within a period that is prescribed by regulation and specified in the invitation.
(3) The Immigration Assessment Authority may determine the manner in which, and the place and time at which, an interview is to be conducted.
(4) If the referred applicant does not give the new information or comments in accordance with the invitation, the Immigration Assessment Authority may make a decision on the review:
(a) without taking any further action to get the information or the referred applicant's comments on the information; or
(b) without taking any further action to allow or enable the referred applicant to take part in a further interview.
The applicant’s contention is that in inviting the applicant to an interview to give information, the IAA failed to comply with s.473DF(2).
The factual background to this, as it emerged from the evidence before the Court, is as follows. The applicant was invited to attend an interview with the IAA to give new information about a new claim made by him, in written submissions to the IAA, that he had been an LTTE intelligence member.
At CB 318 – CB 319 is reproduced a Case File Note drafted by an employee of the IAA. The note records that on 10 August 2016 the employee telephoned the applicant, ultimately, with the assistance of an interpreter in the Tamil language.
The applicant was advised that he was invited to a “hearing” with the IAA scheduled for 16 August 2016. He was also told that confirmation of this invitation would be sent to him in writing. The applicant gave an address to which this could be sent to him.
The letter subsequently sent to the applicant is reproduced at SCB 1 – SCB 2 and also dated 10 August 2016.
As set out above, s.473DF(2) provides that the: “…information or comments” which are the subject of the invitation, are to be given within a prescribed period. This is set out in reg.4.42 of the Migration Regulations 1994 (Cth) (“the Regulations”). That regulation was at the relevant times in the following terms:
REG 4.42 – Periods for giving information or comments
For subsection 473DF(2) of the Act, the period for giving information or comments in response to an invitation given by the Immigration Assessment Authority to a referred applicant is as follows:
(a) for a referred applicant in immigration detention--3 working days after the referred applicant is notified of the invitation; and
(b) in any other case:
(i) for an oral invitation to give information or comments in writing--7 days after the invitation is given; and
(ii) for an oral invitation to give information or comments at an interview--14 days after invitation is given; and
(iii) for a written invitation to give information or comments in writing or at an interview--14 days after the referred applicant is notified of the invitation.
The applicant’s argument now is as follows. The IAA invited the applicant to the interview orally on 10 August 2016 and in writing also on 10 August 2016. The interview was scheduled for 16 August 2016. The applicant’s argument is that given the requirement of reg.4.42(b)(ii), and further, that there was no mention of the 14 days in the “oral” invitation, the IAA failed to give the applicant notice in accordance with the regulatory requirement. That is, a 14 day period.
To make good his argument the applicant referred to BMV16 v Minister for Home Affairs [2018] FCAFC 90 (“BMV16”) at [73](5):
“73.This appeal concerns the operation of sub-ss 473DF(2) and (3) and r 4.42(b)(ii) in relation to an oral invitation made pursuant to s 473DE to provide oral comment at an interview, that invitation being made to a referred applicant who is not in detention. Regulation 4.42(b)(ii) and ss 473DE(1)(c) and 473DF operate in the following ways relevant specifically to the present circumstances:
…(5) Section 473DF(2) contemplates that the Authority specify in its invitation “a period” “within” which comments “are to be given” by the referred applicant: “The comments are to be given within a period that is prescribed by regulation and specified in the invitation”.”
It must be said that it is not clear why the applicant sought to press this ground in light of what, with respect, was made clear in BMV16, even that part specifically relied upon by the applicant.
BMV16 was, in part, concerned with the operation of s.473DF of the Act and reg.4.42 of the Regulations. On the facts of this case, as derived from the evidence before the Court, the IAA issued an oral invitation to the applicant to provide information or comments orally at an interview.
The applicant’s attempt before the Court to argue that somehow the subsequent invitation in writing altered the character of the invitation, as initially issued orally, must be rejected. The applicant was invited both orally, and then confirmed in writing, to give his comments at an interview. The initial oral invitation to give oral information or comments at the interview remained unaltered.
BMV16 was concerned with such an invitation to give information or comments at an interview. The operation of s.473DF and reg.4.42 was considered in BMV16. As is, with respect, made clear, s.473DF provides that the comments are to be given within a period prescribed by regulation (see in particular at [74] of BMV16). The relevant regulation prescribes a 14 day period “within” which the oral comments are to be given. The invitation given to the applicant specified a date within that period. That is, six days after the invitation was given.
As the IAA’s letter of 10 August 2016 made clear, it was a “record” of the notification issued to the applicant at an earlier time, on the same day, by telephone (SCB 1.7). The record made clear what had been said in the telephone call previously. That is, the applicant was being asked to attend the interview to orally explain why the new claims to fear harm raised in his statutory declaration of 12 July 2016 (at CB 310 – CB 314) provided to the IAA could not have been raised before the Minister’s delegate. Further, why the information was credible personal information which was not previously known, and had it been known may have affected consideration of his claim.
Given the statutory scheme which governed the review by the IAA, in particular in this case s.473DE, the IAA’s invitation was reasonable, if not appropriate, in the circumstances.
Before the Court, faced with what was clearly a poor argument in the circumstances of this case, the applicant did not abandon the ground, but sought to argue that somehow the invitation issued by the IAA was deficient, because it did not explain in its invitation how the statutory scheme operated, or failed to state that the prescribed period was 14 days.
The applicant, however, was unable to satisfactorily explain, beyond assertion, where the obligation to provide such explanation arose.
As was, with respect, made clear in BMV16: “…The intention the legislature should be taken to have had in setting the time in r 4.42 for the provision of a comment within 14 days is that it was the outer limit of what the Authority could provide a referred applicant” (at [74]).
The IAA complied with the relevant statutory requirements in this regard.
Further, the applicant sought to develop an argument that in circumstances where a written invitation was issued, it was unreasonable of the IAA to invite the applicant to an interview within six days of the date of the invitation, given delays in postal delivery.
This plainly overlooked two things. One, the applicant was, on the evidence before the Court, given actual notice by telephone.
Two, the applicant’s complaint misunderstands the legislative intent, and the consequent scheme. Section 473DE, s.473DF and reg.4.42 are not concerned with giving the referred applicant a minimum period of notice. For example, in the current case, that the applicant should not be required to attend an interview until after 14 days.
Rather, what is required in this case, is compliance with s.473DF and reg.4.42, which provide an outer limit within which the information or comments may be given.
There is no legal error in the IAA’s approach to, and application of, s.473DE, s.473DF and reg.4.42. Ground four is not made out.
Consideration: Ground Two
Ground two asserts that the IAA denied the applicant procedural fairness, and thereby fell into jurisdictional error, because it failed to advise the applicant of the existence of a certificate issued pursuant to s.473GB of the Act.
The certificate in question is reproduced at CB 294. It is dated 27 June 2016. The certificate, said to be issued pursuant to s.473GB of the Act, was said to restrict disclosure by the IAA of documents and information relating to a protection visa application by the applicant’s brother.
At the final hearing in this case the applicant’s position was explained as follows. A certificate was issued. The matter of certificates is the subject of consideration, variously, by the High Court. This Court should await the finalisation of those cases, and “adjourn” consideration of ground two.
Ultimately the applicant was unable to satisfactorily explain the exact legal error in this case. However, as best as I understood it, the applicant wanted to keep his options open, and “preserve” his position, just in case the High Court may have something to say that was of assistance to him.
While his written submissions made reference to the Federal Court judgments of Minister for Immigration and Border Protection v Singh (2016) 244 FCR 305 (“Singh”) and MZAFZ v Minister for Immigration and Border Protection (2016) 243 FCR 1 (“MZAFZ”), the applicant’s argument appeared to be that on the one hand the documents covered by the certificate in the current case may have been relevant to the consideration of the applicant’s case before the IAA, but on the other hand may not have been (see applicant’s submissions at [12.5] – [12.7]).
The applicant achieved the requested adjournment because of awaiting developments in relation to another ground which was the subject of subsequent written submissions by both parties on 23 October 2019 and 27 November 2019. Nothing further, however, was pressed by the applicant in relation to this ground.
In the absence of any reasonable explanation, despite opportunity to provide such explanation, the applicant’s ground is not made out.
In any event, the following is of note. The non-disclosure certificate and the consideration in Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194 (“CQZ15”) on which the applicant relied, was issued under s.438 of the Act. This relates to Part 7 of the Act, and was not, in this case, a certificate issued pursuant to s.473GB of the Act, which relates to Part 7AA of the Act. [Subsequently considered with SZMTA v Minister for Immigration and Border Protection [2017] FCA 1055 (“SZMTA”) by the High Court].
As set out above, in the current case the applicant’s argument, absent reference to awaiting developments, was generally to rely on what was said by the Federal Court in MZAFZ in relation to s.438 certificates.
The answer to the applicant’s ground is to be found in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 (“BBS16”) at [96] – [100]. In short, the statutory regime under Part 7 (to which s.438 certificates apply) is so different to Part 7AA (to which s.473GB certificates apply) that MZAFZ has no application to a review under part 7AA (at [96] – [100] of BBS16):
“96. Fourthly, having regard to the statutory regime in Pt 7AA, and s 473GB in particular, if the IAA is given a s 473GB certificate/notification and related information, it is a matter for the IAA to consider whether or not it will have regard to any matter contained in that material. One of the things which the IAA will need to consider in determining whether or not it should exercise that power is whether it considers that the certificate/notification is valid or not. If the IAA determines to have regard to any such material, it then must turn its mind to whether it thinks it appropriate to disclose any matter contained in the material to the referred applicant. In making that decision the IAA must have regard to any advice given to it by the Secretary under s 473GB(2)(b).
97. The scheme of Pt 7AA is such that the only opportunity which a referred applicant will get to comment on such material is if the IAA decides for itself to disclose the material to the applicant prior to it making a decision on the review. The regime does not create any duty on the part of the IAA (or any entitlement on the part of the referred applicant) to be involved in the IAA’s determinations as to whether the certificate/notification is valid or not, nor whether the IAA should accept or reject any written advice provided to it by the Secretary under s 473GB(2)(b). For completeness, it might be noted that, if in the exercise of its discretion, the IAA decides to disclose some material to the referred applicant under s 473GB(3)(b), the IAA must give a direction under s 473GD concerning restrictions on the publication of the relevant material or its further disclosure (s 473GB(4)).
98. As senior counsel for the Minister frankly acknowledged in oral address, this is truly “a remarkable scheme”. That is an accurate characterisation of those parts of the statutory scheme in Pt 7AA which relate to s 473GB certificates and notifications because of the severe limitations imposed upon disclosure to the referred applicant of any such certificate/notification and the related material, no matter how prejudicial or favourable the material may be. Moreover, even though the discretionary powers conferred upon the IAA by s 473GB have to be exercised reasonably in the legal sense, the opportunity for a referred applicant to challenge the exercise or non-exercise of those discretionary powers will in practice be limited because the person normally will have no knowledge or awareness of the existence of the certificate/notification or related information. That will be the case even if the IAA has had regard to such material in conducting its review but has determined, in its discretion, not to disclose the existence of that material or any of its contents.
99. For these reasons, we consider that the first limb of Beach J’s analysis in MZAFZ has no application to a Pt 7AA review.
100. For similar reasons, Beach J’s second limb has no application. That is because a referred applicant’s “procedural fairness” entitlements in respect of a s 473GB certificate/notification and related information are exhaustively stated in s 473GB(3). For the reasons explained above, those “entitlements” all depend upon how the IAA exercises its discretionary powers under that provision. Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.”
In any event, in the circumstances of this case, even if notions of procedural fairness were broadly to apply, the applicant was not able to demonstrate any procedural unfairness.
On the evidence, both the delegate and the IAA discussed with him matters arising from the documents covered by the certificate. That is, documents relating to his brother’s protection visa application.
It is of note that no non-disclosure certificate had been issued when the matter was before the delegate. (In any event, the non-disclosure certificate pursuant to s.473GB relates only to the IAA). The delegate discussed his brother’s claims, to the extent that they related to the applicant’s claims, with the applicant (see [62] and [65] at CB 275 – CB 277). The applicant was given the opportunity, which he took up, to explain inconsistencies in their respective accounts. In relation to one matter, the delegate accepted the applicant’s explanation ([66] at CB 277).
In setting out the applicant’s claims as to past events and the claimed fear of harm, the IAA made reference to the discussion and exchanges between the applicant and the delegate which included references to the information provided by his brother ([12], [14] at CB 335 – CB 336).
It noted several inconsistencies between the evidence given by the applicant and his brother. This was contained in the respective interviews given by them with the delegate, and which were a part of the material referred to it ([16] at CB 336).
The IAA found: “…I draw no adverse conclusions on the basis of these inconsistencies…”. The IAA found adversely to the applicant for other reasons ([16] at CB 336).
The ground as pleaded, and as explained in submissions, to the limited extent that it was explained, is not made out.
Consideration: Ground Three
Ground three asserts that the IAA failed in its statutory obligation in relation to s.473DE(1) of the Act because it failed to give particulars of new information to the applicant which it had considered formed part of the reason in affirming the delegate’s decision.
The applicant’s initial submissions before the Court did not assist his case at that time. In essence, the applicant submitted that what was relevantly said in BBS16 and AYF16 v Minister for Immigration and Border Protection [2018] FCAFC 129 (“AYF16”) is binding on this Court, and ground three as pleaded must fail.
The applicant’s post hearing submissions seek to change the focus of this ground in light of what he says is more recent authority (see the terms of the ground set out above at [10] of this judgment).
The ground as pleaded asserts that the IAA committed jurisdictional error because it failed, pursuant to s.473DE(1), to give the applicant particulars of “new information” that it considered had formed part of the reason for affirming the delegate’s decision. That “new information” was said to be the certificate issued on 27 June 2016 (CB 294) pursuant to s.473GB(5) of the Act.
Section 473DE(1) was at the relevant time in the following terms:
SECT 473DE – Certain new information must be given to referred applicant
(1) The Immigration Assessment Authority must, in relation to a fast track reviewable decision:
(a) give to the referred applicant particulars of any new information, but only if the new information:
(i) has been, or is to be, considered by the Authority under section 473DD; and
(ii) would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and
(b) explain to the referred applicant why the new information is relevant to the review; and
(c) invite the referred applicant, orally or in writing, to give comments on the new information:
(i) in writing; or
(ii) at an interview, whether conducted in person, by telephone or in any other way.
At the time of the final hearing in the current case, the High Court had not handed down judgment in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 (“BVD17”) (one of the cases which the applicant, hopefully, thought may provide a favourable argument for him).
In any event, against the background of the ground as pleaded, the applicant sought to make the following submissions. At the time of the final hearing the applicant conceded that the Full Court judgments in BBS16 and AYF16 held that such certificates were “review material” (given to the IAA pursuant to s.473CB of the Act) and not “new information” (for the purposes of s.473DC, s.473DD, s.473DE or s.473DF of the Act).
However, since that time in CED16 v Minister for Immigration and Border Protection [2018] FCA 1451 (“CED16”) the Federal Court held, with reference to Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 (“Plaintiff M174”), that the s.473GB certificates were “new material”. The applicant now submits that there is nothing in BVD17 which is contrary to that part of the decision in CED16.
To be clear, the assertion of legal error as pleaded in the ground is that the IAA failed in its statutory duty pursuant to s.473DE(1) to give to the applicant particulars of the new information. That is, the IAA did not even notify the applicant of the existence of the certificate. That “new information” is said to be the certificate itself.
The explanation of the IAA’s claimed statutory breach as provided in the particulars to the ground extends only to the certificate itself. While the particulars make reference to the documents, or information, covered by the certificate, the assertion of legal error does not appear to extend to those documents or information.
Rather, that reference is made to reinforce the “argument” that even though some of the documents and information were referred to by the IAA, the certificate can still be seen to be a part of the reason for affirming the delegate’s decision.
The applicant’s submissions now also focus on the certificate as “new information”. Again the applicant argues that the IAA took some action in relation to the documents and information covered by the certificate (the material relating to the applicant’s brother), and in those circumstances, the IAA ought to have considered the operation of s.473DE in relation to the certificate.
That is, it ought to have provided particulars of the certificate to the applicant. Its failure to do so reveals jurisdictional error.
As set out above, the applicant relies on CED16. In doing so he submits that there is nothing in BVD17 to contradict CED16 in relation to whether the s.473GB certificate was new information. That, respectfully, may be the case. However for current purposes this case still does not assist the applicant.
The applicant in BVD17 was not told by the IAA of the s.473GB certificate that was issued (see [21]). The High Court held that, having regard to the relevant statutory scheme (at [34]):
“34.The consequence of the codifying effect of s 473DA(1) was correctly stated by the Full Court of the Federal Court constituted by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY1630 and in Minister for Immigration and Border Protection v DZU1631. The consequence is that, except to the extent that procedural unfairness overlaps with legal unreasonableness, procedural fairness analysis is not the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined.”
[Footnotes Omitted.]
In that light, what is left, therefore, of the applicant’s argument in this case, is that the circumstances of this case are similar to the circumstances in CED16, and therefore, similarly in the current case, the IAA’s failure to have also considered the operation of s.473DE in the current case similarly reveals jurisdictional error.
Contrary to the applicant’s submissions, the material before the Court reveals a number of distinctions between the circumstances in CED16 and the current case.
In CED16 the Court proceeded on the basis that the “new information”, that is, the documents or information to which the certificate related, was new information in circumstances where the certificate was invalid (see in particular at [19] of CED16). The Minister conceded as such in that case. The Court, I note respectfully, was not inclined to follow aspects of the Full Court reasoning in BBS16, essentially on this basis (see at [49] – [52] of CED16).
In the current case, there was nothing from the applicant at the final hearing, or in his subsequent written submissions, to even indicate, let alone argue, that the certificate in the current case was invalidly issued. Nor does the Minister make any such concession.
The reasons for the issue of the certificate in the current case are stated on its face (at CB 294.4):
“…In my view, these documents or information should not be disclosed to the referred applicant or the referred person's representative because the documents and information, or any matter contained in the documents or the information was given to the Minister, or to an officer of the Department, in confidence.”
Section 473GB(1) states:
SECT 473GB – Immigration Assessment Authority's discretion in relation to disclosure of certain information etc.
(1) This section applies to a document or information if:
(a) the Minister has certified, under subsection (5), that the disclosure of any matter contained in the document, or the disclosure of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 473GA(1)(a) or (b)) that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed; or
(b) the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence.
There was nothing from the applicant’s ground, oral submissions at the final hearing, or any of his written submissions, to even attempt to argue that the circumstances of this case did not fall within s.473GB(1)(b). Given that the documents covered by the certificate related to another person’s claim for protection, it is reasonable to assume that that information was in fact provided to an officer in the Minister’s department in confidence.
As set out above, the applicant’s focus in his ground was on the certificate itself. As, with respect, is clear in CED16, the focus was on the certificate and the information to which it related. There was nothing in the applicant’s written submissions to “broaden” the applicant’s ground to include any information beyond the certificate itself.
In any event in the current case, the evidence is that the delegate, and then the IAA, did put the information relevant to the certificate to the applicant for comment. (See [12] – [14] at CB 335 – CB 336). That is, in particular, inconsistencies in his evidence and information given by his brother in his protection visa application. As set out above, the IAA drew no adverse inference from these inconsistencies ([16] at CB 336).
In the current case, therefore, unlike CED16, the applicant has not indicated, let alone shown, that the certificate was not validly issued. Nor can it be said that in the current case, the IAA relied on the certificate to avoid putting to the applicant the information to which the certificate was said to relate.
It is to be remembered that the applicant’s ground, and the focus of his submissions, was on a claimed breach of s.473DE(1). The subject of the breach is said to be the certificate itself. There is nothing in the ground, or the submissions, to indicate that the applicant now seeks to rely on the documents which were the subject of the certificate, and to argue that as new information, the IAA’s treatment of them breached s.473GB.
In fact, the applicant’s closing submission is that the IAA used the information in the documents (that, in the circumstances, can only be understood as that it put the information to the applicant) therefore: “…in these circumstances the Authority ought to have considered the operation of s.473DE in relation to the certificate and provided the applicant with the particulars of the certificate” (applicant’s post hearing submissions at [4]).
That the IAA did not do so cannot be disputed. However, the applicant’s submissions make no attempt to address the provision itself, which the ground seeks to invoke (s.473DE).
In the current circumstances, even if the certificate itself was “new information”, the applicant has not shown that the elements of s.473DE have been met, such that a breach of this section is made out.
One, the obligation in s.473DE to give the applicant the new information arises where the IAA has considered, or is to consider, the new information under s.473DD (s.473DE(1)(a)(i) of the Act). There is no evidence before the Court that the IAA had considered or was to consider the certificate itself. Given that the IAA (as had the delegate before it) had given the applicant the information which was the subject of the certificate, in that sense there is a reasonable inference to be drawn that far from considering the information in the certificate itself (as opposed to the information to which it sought to restrict disclosure), the IAA ignored it.
This, in the circumstances, is understandable. The delegate had already put the information which was the subject of the certificate to the applicant. Why the certificate was issued in this circumstance remains unexplained. In any event, no legal error by the IAA is revealed as alleged by the applicant now.
Two, there is nothing in the material before the Court to show that the contents of the certificate itself: “…would be the reason, or a part of the reason, for affirming the fast track reviewable decision” (s.473DE(1)(a)(ii)).
The material in the certificate was simply a description of certain information in the Minister’s departmental file, and the effect of the certificate itself.
The applicant’s submissions appear to proceed on the basis that it is sufficient for him to present authority that proposes that such certificates are “new information”, rather than “referred information” for the purposes of the Act.
However, the ground asserts a breach of s.473DE. The applicant has not shown that important elements of that section are enlivened, such that the obligation in s.473DE is engaged. Ground three is therefore not made out.
Consideration: Ground Five
Ground five (the proposed new ground) asserts that the IAA failed to give a direction under s.473GD concerning restrictions on publication of some of the material it chose to disclose to the applicant during the IAA interview.
Section 473GD was at the relevant time in the following terms:
SECT 473GD – Immigration Assessment Authority may restrict publication or disclosure of certain matters
(1) If the President is satisfied, in relation to a review, that it is in the public interest that:
(a) any information given to the Immigration Assessment Authority; or
(b) the contents of any document produced to the Authority;
should not be published or otherwise disclosed, or should not be published or otherwise disclosed except in a particular manner and to particular persons, the President may give a written direction accordingly.
(2) A direction under subsection (1):
(a) must be in writing; and
(b) must be notified in a way that the President considers appropriate.
(3) If the President has given a direction under subsection (1) in relation to the publication of any information or of the contents of a document, the direction does not:
(a) excuse the Immigration Assessment Authority from its obligations under section 473EA; or
(b) prevent a person from communicating to another person a matter contained in the evidence, information or document, if the first-mentioned person has knowledge of the matter otherwise than because of the evidence or the information having been given or the document having been produced to the Authority.
(4) A person must not contravene a direction given under subsection (1) that is applicable to the person
Penalty: Imprisonment for 2 years.
At the final hearing before the Court, the applicant’s submissions on this ground were essentially that the ground was an “add on”, or an enhancement of ground four, which was the “main ground” on which the applicant relied.
Ground four is addressed above. To the extent that ground five relies on what was said in relation to ground four, it is not made out for the same reasons set out above.
What remained of ground five was explained as being that a direction should have been issued pursuant to s.473GD.
As is clear in the terms of s.473GD, there is discretion vested in the President (of the Tribunal, as defined in s.473BB) to issue a certificate restricting publication of information given to the IAA.
The difficulty for the applicant in the current case is that he has not explained how the alleged breach occurred, and therefore, importantly, has not demonstrated how jurisdictional error in the IAA’s decision arises.
In the current case, a direction dated 5 September 2016 was issued pursuant to s.473GD(1) of the Act (see at CB 329). It is in the following terms:
“Being satisfied that it is in the public interest, and pursuant to s.473GD(1) of the Migration Act 1958, I direct that the information in paragraphs 12, 14 and 16 of the IAA decision of 2 September 2016 that refer to evidence and information given by "Brother-2" as part of his visa application must not be published or otherwise disclosed by the referred applicant or his representative.”
In his original written submissions (it is not clear to what extent the post hearing submissions were meant to supersede the original submissions), the applicant appeared to argue that the direction refers to information that the delegate put to the applicant, and does not include material the IAA disclosed to the applicant during the IAA hearing.
This argument is not made out, particularly at the factual level. The direction is plainly focused on information referred to in the IAA’s decision record, and to specific paragraphs of that record ([12], [14] and [16] at CB 335 – CB 336).
It is the case that at those paragraphs, the IAA referred to, in part, what the delegate and the applicant discussed at the interview with the delegate.
It appears that the applicant’s argument in his original written submissions is that there was other information disclosed to the applicant at the IAA hearing, which is not referred to in [12], [14] or [16] of the IAA’s decision record (at CB 335 – CB 336). The argument appears to be that a direction should also have been given in relation to this other information.
The interview with the IAA took place on 16 August 2016 (see the affidavit of Mr Tambimuttu at “annexure A”, page 1). The date of the direction is 5 September 2016. At the time of the interview, the IAA member was not in breach of the direction, as it had not been given at that time.
Even if the applicant could show that there was other information disclosed to the applicant at the IAA interview (it was never satisfactorily explained before the Court at the final hearing), what remains is that there was also no satisfactory explanation from the applicant as to how any failure by the President to issue a direction reveals jurisdictional error in the IAA’s decision. Absent such an explanation, the applicant’s ground is not made out.
Conclusion
None of the applicant’s grounds reveal jurisdictional error. It is therefore appropriate to dismiss the application to the Court. I will make that order.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 20 January 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Statutory Construction
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Natural Justice
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