CVP17 v Minister for Immigration
[2020] FCCA 2744
•6 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CVP17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2744 |
| Catchwords: MIGRATION – Application for judicial review of decision of the Immigration Assessment Authority – applicant Vietnamese Catholic – application for protection visa – fast track applicant – jurisdictional error – inconsistencies in evidence – breach of procedural fairness – applicant not invited to comment or give further evidence about data breach identified by IAA – legal unreasonableness – conclusions reached by IAA said to be illogical or unreasonable – matters to be considered – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE |
| Cases cited: BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179 BMV16 v Minister for Home Affairs [2018] FCAFC 90 BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 Minister for Home Affairs v AYJ17 [2019] FCA 591 Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437 Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 Re Minister for Immigration & Citizenship: ex parte Lam (2003) 195 ALR 502 |
| Applicant: | CVP17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 253 of 2017 |
| Judgment of: | Judge Brown |
| Hearing date: | 31 March 2020 |
| Date of Last Submission: | 31 March 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 6 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Jacobi |
| Solicitors for the Applicant: | Camatta Lempens Lawyers |
| Counsel for the Respondents: | Ms Milutinovic |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application filed 27 June 2017, as amended 3 September 2019, is dismissed.
The Applicant pay the First Respondent’s costs in the amount of seven thousand four hundred and sixty seven dollars ($7,467.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 253 of 2017
| CVP17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Immigration Assessment Authority[1] made on 9 June 2017 not to grant the applicant a protection visa, pursuant to the provisions of the Migration Act 1958.[2]
[1] Hereinafter referred to as the IAA
[2] Hereinafter referred to as “the Act”
The applicant is a citizen of Vietnam, who arrived at Christmas Island, by boat, on 8 May 2013. This resulted in him being classified as an unauthorised marine arrival for the purposes of the Act.
This classification prescribes the manner through which he can potentially claim protection in Australia. He was held in immigration detention following his unauthorised arrival.
In simple terms, unauthorised marine arrivals are prevented from making any application for asylum until authorised to do so and thereafter the manner in which their applications are to proceed is stipulated.
On 30 November 2015, the Minister for Immigration & Border Protection lifted the bar, enabling the applicant to apply for Australia’s protection, on the basis that he satisfies the definition of refugee pursuant to the definition contained in section 36(2)(a) of the Act.
Again, in simple terms, the applicant must satisfy the relevant decision-maker that he is subject to a real chance of suffering persecution on the basis of his ethnicity, religious believes or political views.
On 13 April 2016, the applicant applied for a safe haven enterprise visa[3] on the following grounds:
·He was a practising Roman Catholic, who had regularly participated in church and community activities, whilst in Vietnam;
·He had taken part in masses and church protests, which were critical of the government and which had come to the notice of the army;
·His mother had attended one such mass and had been beaten by soldiers, sustaining injuries, which had led to her death;
·The applicant had sent petitions to the government, complaining about the action of the authorities in respect of his mother;
·As a consequence, he had come to the notice of the police, who had requested he attend for questioning;
·As a consequence, the applicant had gone into hiding;
·In January 2013, the applicant had returned to his home. He discovered that one of his siblings had been interrogated and tortured to ascertain his whereabouts;
·These various matters had resulted in the applicant leaving Vietnam illegally.
[3] Hereinafter referred to as SHEV
In the circumstances, the applicant claims to be entitled to the protection of Australia because he is a refugee as he would be subject to a real chance of suffering persecution, on the basis of his Catholicism and his illegal departure from Vietnam, at the hands of the Vietnamese authorities.
Whilst the applicant was in immigration detention, on 31 January 2014, a report was unintentionally placed on the website of the Department of Immigration, which had the effect of releasing information about individuals, including the applicant, who were in detention at the time.
The information released included personal information, such as names, dates of birth, nationality, gender, detention details and details of any other family members in detention but not specific details of any claims for protection.
The central issue in these review proceedings centres on whether or not the IAA committed a jurisdictional error in failing to invite the applicant to provide information about the possible consequences of this data breach for him personally and therefore failed to acquit the jurisdiction conferred upon it pursuant to the Act.
The Review Process
The applicant was assisted by a migration agent in respect to his application for a SHEV. He submitted a statement in support of his claim for asylum dated 6 April 2016.[4] This made no reference to the data breach and its possible implications for the applicant personally.
[4] See Case Book at 68 – 69
On 23 January 2017, the applicant was interviewed by a delegate of the Minister, who on 3 March 2017 declined to grant the applicant the visa in question. I have been provided with a transcript of the relevant interview.[5]
[5] See affidavit of Emily Grace Rutherford filed 13 March 2020
Although the applicant has deposed that he referred to the data breach in this interview, this is not the case. However, in the relevant decision, the delegate referred to the fact that the applicant had been affected by the data breach, which had occurred in 2014, but noted that he had not specifically raised the claim in either his written statement or during interview.
As such, it was not an explicit integer of the applicant’s claim for protection that the Vietnamese authorities could have been aware that he had sought asylum in Australia, as a consequence of the data breach, and had therefore been alerted to his circumstances specifically, which might potentially draw the attention of such authorities to him.
However, by necessary implication, the delegate considered that, notwithstanding the fact that the applicant was not in a position to know whether the Vietnamese authorities were aware he was in immigration detention in Australia, their knowledge of this state of affairs remained a possibility.
In this context, the delegate wrote as follows:
“The applicant did not claim in his written statement or during the PV interview any fears associated with the departmental data breach. As the applicant was involved in the data breach and there is no evidence to support that the Vietnamese authorities were aware of the data breach and accessed the applicant’s information, the possibility cannot be discounted.”[6]
[6] See Case Book at 102
As a consequence of this finding, the delegate considered country information relating to the attitude of the Vietnamese authorities, in respect of Vietnamese nationals, who had departed the country unlawfully.
It noted that DFAT[7] was unaware of any cases where provisions, within the Vietnamese penal code, had been used against failed asylum seekers. In this context, the delegate found as follows:
“Considering the above information, and based on the fact the applicant has not been involved in any high level political or dissident activity whilst in Vietnam, any high level political activity in Australia, nor been involved in people smuggling activities, I do not accept the applicant’s details are of interest to the Vietnamese authorities.”[8]
[7] The Department for Foreign Affairs & Trade
[8] See Case Book at 102
In addition, the delegate, whilst accepting the applicant was a practising Catholic, did not believe that he would be of interest to the Vietnamese authorities on this basis. The delegate found as follows:
“There is no evidence before me to suggest at the time of departing Vietnam the applicant had profile of interest to the Vietnamese authorities. There is no evidence before me to suggest that she [sic] has publicly or privately advocated her [sic] religious beliefs in such a manner that would draw the adverse attention of authorities, or has engaged in any behaviour that would bring her [sic] to the attention of authorities for any reason. I do not accept the mass he was involved in July 2012 would bring him to the attention of the authorities as a person of interest.”[9]
[9] Ibid at 101
Because the applicant was authorised by the Minister to apply for protection, the method to be utilised in respect of any subsequent review of a delegated ministerial decision is stipulated by the Act. In particular, individuals such as the applicant are designated as fast track applicants and, as such, the manner in which their applications are to be determined and any review process arising is prescribed by Part 7AA of the Act.
Part 7AA of the Act mandates a process of review in respect of all decisions made by ministerial delegates in respect of such fast track applicants. In broad terms, if the delegate declines to grant a protection visa under the Act, the decision in question must be referred to the IAA, for review, as soon as practicable after it has been made.
The delegate’s decision was referred to the IAA on 8 March 2017. The IAA made its decision in respect of this referral on 9 June 2017. As indicated above, the IAA affirmed the decision of the delegate not to grant the applicant a protection visa.
The nature of the proceedings before the IAA
The procedure to be followed by the IAA does not entail a fresh re-hearing of the application before the ministerial delegate. Rather the material to be reviewed by the IAA is mandated by various provisions within Part 7AA of the Act.
Section 473CB sets out the material, which the Secretary of the Department[10] must provide to the IAA. It includes the reasons of the delegate; any material provided by the applicant concerned to the original decision-maker; and any other material considered to be relevant.
[10] Hereinafter referred to as “the Secretary”
Section 473CC provides as follows:
“(1) The Immigration Assessment Authority must review a fast track reviewable decision referred to the Authority under section 473CA.
(2) The Immigration Assessment Authority may:
(a) affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.”
The procedure of the IAA and how it is to conduct its fast track review function is delineated in section 473DA, particularly what application the rules of natural justice have to fast track matters, including any requirement to refer documents to an applicant for comment. The section, which is headed Exhaustive statement of natural justice hearing rule, reads as follows:
“(1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.”
Section 473DB indicates that a fast track review is to be conducted only in respect of the material referred to the IAA by the Secretary without accepting or requesting any new information or interviewing the applicant concerned. In the jargon of administrative review, the review arising under Part 7AA is to be “on the papers” alone.
In this context, the IAA’s authority to access additional review material, to that provided to it by the Secretary, is limited and delineated exhaustively in Subdivision C of Part 7AA.
Section 473DC grants the IAA a discretion to obtain new information not previously before the Minister at time of decision if it might be relevant. Section 473DC(3) provides the IAA with a further discretion to invite an applicant to provide further information either in writing or through the medium of an interview.
The specific provisions of the section read as follows:
“(1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a) were not before the Minister when the Minister made the decision under section 65; and
(b) the Authority considers may be relevant.
(2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.”
In the context of the current controversy, it is necessary to point out the salient features of the provision:
·Clearly, the IAA is under no obligation or duty to obtain such information regardless of whether it is requested to do so by the applicant whose case has been referred to it or any other person;
·The power is discretionary and relates to information which the IAA considers might be relevant and was not before the ministerial delegate.
Section 473DE deals with what the IAA is required to do in respect of new information which it obtains, of its own volition, pursuant to section 473DC. Such information is to be referred to any referred applicant but only if it is considered by the IAA and forms part of the reason for affirming a decision. Thereafter an explanation of relevance is to be provided and comment sought.
However, the provision does not apply to generic country information or information about the class of person to which any applicant belongs [section 473DE(3)].
The exercise of the discretion provided by section 473DC is subject to the satisfaction of two cumulative but overlapping considerations,[11] provided by section 473DD. The IAA is prohibited from considering new information unless two overlapping considerations are satisfied, namely:
·The IAA is satisfied that there are exceptional circumstances sufficient to justify it considering such material; and
·The applicant concerned satisfies the IAA the new information:
oeither could not have been provided to the Minister at time of decision; or
ois credible personal information not previously known and had it been known, may have affected the consideration of the claims made.
[11] See BVZ16 v Minister for Immigration & Border Protection [2017] FCA 958 at [9] per White J
As a consequence of the Full Court decision in BMB16 v Minister for Immigration & Border Protection[12] it is clear that the function of the IAA is to evaluate, for itself, the review material provided under section 473CB together with any new information it obtains and then to either affirm the delegate’s decision or remit the decision for reconsideration, in accordance with such directions or recommendations as are permitted under the Regulations. Accordingly, it is open to the IAA to reach a different conclusion to the delegate in respect of matters arising in the review in question.
[12] BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 179
Relevant authorities recognise that the discretion to obtain new information must be exercised in a legally reasonable manner. However, care must be taken to ensure that in assessing any issue of legal unreasonableness reference is made to the specific statutory scheme created by Part 7AA, which modifies natural justice considerations applicable to other administrative decision makers.
In BCQ16 v Minister for Immigration & Border Protection[13] Thawley J said as follows:
“Part 7AA modifies (by restricting) the common law principles of procedural fairness. The analysis of what might be an unreasonable exercise of, or failure to exercise, a discretionary power contained in Part 7AA must proceed against the statutory context, which includes that modification. Whilst the legislature is taken to have intended that a discretionary power will be exercised reasonably … that which is reasonable is informed by the subject matter, scope and purpose of the legislation under which it is conferred. Part 7AA requires the Authority to review a decision and to conduct that review on the basis of the ‘review material’ and, subject to the statutory exceptions contained in Part 7AA, without obtaining ‘new information’ or affording the referred applicant a hearing. The reasonableness of an asserted failure to consider a discretionary power to disclose material to the referred applicant, and the reasonableness of the exercise of the discretion itself, must be assessed against that statutory scheme.”
[13] BCQ16 v Minister for Immigration & Border Protection [2018] FCA 365 at [71]
The central issue in the current matter turns on what is to be considered legally unreasonable within the context of the statutorily created review scheme arising under Part 7AA which restricts the capacity of the IAA to obtain further information from referred applicants.
The grounds of review
The applicant commenced these review proceedings, within time, on 27 June 2017. He prepared his own grounds for review, which were generic and unspecific in nature, alleging only jurisdictional error.
On 3 August 2017, the Registrar made necessary directions to prepare the matter for hearing, including directing that the applicant file any amended application by 29 September 2017. It is common ground that the applicant did not comply with this direction. On 7 May 2019, his current solicitors filed a notice of address for service.
Thereafter, on 3 September 2019, the applicant’s solicitor made an application to amend the application and to file a further affidavit, in support of such an application. The amendment sought is based on alleged jurisdictional errors referable to the data breach and, in particular, submissions that the IAA failed to deal with the applicant in a legally reasonable and fair manner by failing to exercise its discretion arising under section 473DC to invite the applicant to provide it with new information referable to the possible consequences, for him, arising from the data breach.
The amended grounds of review
In his application to amend, the applicant seeks to pursue the following grounds of review:
“The IAA acted unreasonably in that it did not exercise, or did not consider the exercise, of its discretion under s473DC of the Migration Act 1958 to seek information from the applicant or his representative, arising from its publishing of the identity of the applicant as an applicant for a protection visa, and that error was a jurisdictional error.
Particulars
On 10 February 2014, the then Department of Immigration and Border Protection (Department) published a detention report containing the applicant’s details and detention on their website (the Data Breach).
The circumstances of that Data Breach, and the downloading of that information by unknown persons and its potential for further distribution, are explained in the report of KPMG prepared by the Department in relation to the breach.
The applicant was entitled to be informed that he was affected by the Data Breach prior to the making of a decision by IAA, as conceded by the Department in its Onshore Protection Interim Procedures Advice No. 38 – Processing cases affected by the 10/02/2014 data breach (the Data Breach Policy).
The applicant was not notified that he was affected by the Data Breach as required by the Data Breach Policy, or of its relevance to the decision to be made about him by IAA.
The IAA identified that the applicant was affected by the Data Breach, and that he had not raised claim in respect of that issue, but failed to identify that the applicant had not been notified by the Department.
The IAA accordingly did not exercise, or alternatively, did not consider whether to exercise its power under s473DC to invite the applicant to an interview to comment on the effect that the Data Breach had on his claims.
It was unreasonable in the relevant sense for the IAA to so act in the circumstances of the case, and that amounted to a jurisdictional error.
The error was material, in that, had the applicant been invited to an interview at the IAA, it could not be said that the new information he would have been able to provide and invite the decision-maker to consider (and who had a corresponding duty to consider whether to receive it) could not have realistically have affected the outcome of the IAA’s review.”
It is axiomatic that, at the time of his original application, the applicant was self-represented. As will become evident, it is also the applicant’s contention that his previous lay advisor has let him down in respect of issues which could conceivably have been raised before the IAA.
Most significantly, it is the applicant’s position that he only became aware of the potential ramifications of the data breach when he instructed his current solicitor, as he alleges that the Department itself failed to advise him of it in dereliction of its own policy.
In these circumstances, he contends that any prejudice likely to be accorded to the first respondent is either non-existent or very modest, whereas, on the other hand, the prejudice to him is very great as it will deprive him of being able to argue the central aspect of his case, namely that he was subject to legal unreasonableness, which has resulted in him suffering a level of practical injustice.
The Minister neither consents to nor opposes the grant of leave to amend. In these circumstances, other than in respect of any implications for costs, I will grant leave to amend and will proceed on the basis of the amended grounds, which were formally filed on 3 September 2019.
Affidavit material provided in support of the amendment
The applicant filed an affidavit, in support of his amended application, on 3 September 2019. In this affidavit, he deposed as follows:
·He was in detention on 31 January 2014 and was only advised of the data breach after consulting his current solicitor;
·Whilst in detention, sometime in mid-2015, but prior to his release in October 2015, an unspecified person, presumably nominated by the Department of Immigration, came to his detention centre and spoke to asylum seekers, as a group, to inform them that there had been an accidental leak of asylum seekers’ details on the internet;
·Otherwise, he did not receive any details, in writing, in respect of the data breach or any specific invitation to comment on any personal implications of it, for him, if he was to be returned to Vietnam.
In these circumstances, on the advice of his solicitor, in June of 2018, he applied to the Department, pursuant to the provisions of the Freedom of Information Act 1982, for any documents pertaining to him, which related to the data breach. As a consequence, he was provided with the following information, which resulted from a computer screenshot:
“Client was in detention on 31/01/2014 and as such maybe affected by the unintentional access to personal information in the public domain. Officers to consult relevant guides for advice.”[14]
[14] See Annexure TVH2 to applicant’s affidavit filed 3 September 2019
In addition, the applicant’s solicitor obtained the Department’s policy for decision makers to apply in respect of asylum applicants, whose names and details had been affected by the data breach. Amongst other things, the policy provided as follows:
·All applicants so affected were to be informed in writing and thereafter it was the responsibility of any applicant concerned to raise a claim relating to the breach;
·More specifically, the policy required decision makers to evaluate whether any applicant might have been potentially affected by the data breach prior to a final decision being made.
In particular, the policy provided as follows:
“The case officer is to send a letter to the applicant requesting they provide in writing any claims they may have in relation to this matter.
…
The following text should be included in a letter to an applicant about this matter:
‘In March 2014 you were notified that you were affected by a routine report released on the department’s website. The report unintentionally enabled access for a short period of time to personal information about people who were in immigration detention on 31 January 2014.
…
If you have concerns regarding the impact of the data breach in your case, then you are invited to put those concerns to the department in writing.”[15]
[15] Ibid at Annexure TVH3
It is the applicant’s evidence that, at no stage, did he receive any such letter or other form of notification that he had been subject to the data breach. In these circumstances, he asserts that he was not aware that there was some formal mechanism directed towards permitting him to comment upon the data breach and its potential implications for him personally, prior to a decision being made on his asylum status.
As a consequence of the data breach, the Department engaged a consultancy company to prepare a report on the effect of the data breach. The consultancy company concerned was KPMG.
The applicant was advised of the existence of this report by his current solicitor. But, due to a lack of English proficiency, the applicant was not able to read the KPMG report in its entirety. However, he deposed that he has been informed that the data concerned was accessed on over 100 occasions, including from countries other than Australia.
In these circumstances, he deposed to being fearful that the Vietnamese government may have been able to access his personal information and become aware of the fact that he had sought asylum in Australia. In this context, the applicant deposed as follows:
“If I had been notified in writing, or asked about it in my interview, I would have explained that the Data Breach made my fear of what would happen to me, if I were returned to Vietnam worse, to the Department or the IAA.”[16]
[16] Ibid at [24]
The applicant also provided evidence regarding lay assistance, which he had received from two individuals, in the period around the time of his interview with the Departmental delegate, in January of 2017. These individuals were respectively Sister Pat Sealey, a pro bono migration agent and Lesley Walker, a person who assisted Sister Sealey in the provision of clerical and administrative services.
The applicant deposed that he had met Sister Sealey, after being introduced to her by Ms Walker, to whom he had been introduced by a friend, at the end of 2016.
Sister Sealey indicated a willingness to assist him and, in this context, the applicant asserts that he contacted his sister, presumably in Vietnam, with a view to obtaining from her a summons, which he alleges he received from the Vietnamese authorities, shortly prior to his departure from Vietnam, along with other relevant documents supporting his claim.
The applicant further asserts that, when he received the relevant documents from his sister, he did not know how to provide them to the Department or how to get them translated. However, he alleges that he provided them to Sister Sealey and requested that they be provided to the IAA.
It is the effect of the applicant’s evidence that Sister Sealey failed to action his request in respect of the documents produced by his sister. In this context, Ms Walker has deposed as to the chaotic nature of Sister Sealey’s administrative arrangements and the fact that the Sister herself was suffering memory issues around about the time in question.
The documents allegedly provided to Sister Sealey, but not forwarded to either the delegate, at the Departmental interview stage, or to the IAA, comprised the following:
·A statutory declaration of the applicant dated 16 March 2017, in which he advised that he was waiting for his sister to send him the following documents:
oThe summons allegedly issued in respect of the applicant by the Communist police;
oA statutory declaration from a Catholic priest, in Vietnam, detailing the treatment allegedly received by him in Vietnam; and
oA medical report concerning his brother.
·A summons dated 5 August 2012 under the hand of the Chief of the relevant police ward, directing that the applicant attend at a police station to explain his involvement in an incident of public order disturbance which occurred at the church of Nghi Tan and Thu Thuy;
·A certificate of sacrament in respect of the applicant dated 14 March 2017;
·A statement of the applicant’s sister supporting his claim that the applicant was a participant in a demonstration on 6 July 2012, during which he was targeted by local police.
The summons dated 5 August 2012 is crucial to the applicant’s case. It is his contention that this document belies any suggestion that he did not have an adverse profile with the Vietnamese authorities, prior to his departure from Vietnam, because of his Catholicism and his engagement in protests against its conduct towards the Church.
The applicant was formally advised that his case had been referred to the IAA for review on 8 March 2017. Along with this notification, he was advised of the formal protocols applicable to the provision to the IAA of new information.[17]
[17] See Case Book at 110 - 119
In this context, the applicant has deposed that he instructed Sister Sealey to provide these documents to the IAA along with a further statement from him. The documents were not provided.
In these circumstances, it is the applicant’s case that, if the IAA had directly asked him of any possible implications, for him personally, of the data breach, he would have provided these documents and therefore, in the light of these documents, it is conceivable that the outcome of the review could have been different.
It is on this basis that the applicant submits it was legally unreasonable for the IAA not to have sought further information, from the applicant, pursuant to the discretion conferred upon it by section 473DC of the Act.
Ms Walker has deposed as follows:
·She assisted Sister Sealey on a voluntary basis between 2010 and 2019;
·She helped the applicant lodge his judicial review application, in this court, on 27 June 2017;
·From July 2017 onwards she began to be concerned that Sister Sealey was becoming forgetful and misplacing documents;
·In this context, she began to scan original documents provided by Sister Sealey’s clients and to store them electronically;
·In August of 2019, she was contacted by the applicant’s current solicitor who asked her to find the documents said to have been provided to Sister Sealey by the applicant;
·She found these documents, which had been scanned on 19 July 2017, and provided them to the applicant’s solicitor on 9 August 2019;
·Ms Walker personally was unaware of the date on which the documents had been provided to Sister Sealey;
·Sister Sealey currently has no capacity to recognise Ms Walker notwithstanding their long relationship.
The applicant’s evidence, as to when he himself provided the documents to Sister Sealey, which he had obtained from his sister, is very imprecise. He deposes that he did not have the documents at the time of his interview with the delegate (23 January 2017).
In his statutory declaration of 16 March 2017, which was made approximately a fortnight after the delegate’s decision, the applicant indicated that he was “waiting for his sister to send me the summons from the Communist Police”.
The pro forma letter, from the IAA, regarding the provision of new information was sent on 8 March 2017. The applicant does not indicate when he got the relevant summons – presumably after 16 March 2017. However, he deposes that Sister Sealey helped him prepare his statutory declaration and he provided her with documents received from Vietnam prior to the IAA decision (9 June 2017) and requested that they be sent to the IAA.
Sister Sealey is not in a position to refute the implied criticism that she was remiss in her responsibilities towards the applicant by failing to lodge the documents alluded to in his statutory declaration, which pre-dated the IAA decision.
In his affidavit filed in support of his application to amend his grounds of review, the applicant deposed that he had “tried to explain about the summons in [his] interview”.[18] During the current proceedings, I was not taken to any part of the interview which supported this assertion.
[18] See applicant’s affidavit filed 3 September 2019 at [29]
The applicant was asked, during the interview, who was likely to mistreat him, if he was returned to Vietnam, to which he replied “The police”. When asked for clarification, he replied as follows:
“The police unit in charge of my area was overlooking of all the things that were happening to the area and me was a case of interest to them”.[19]
[19] See transcript of interview attached to the affidavit of Emily Grace Rutherford filed 13 March 2020 at page 45
Thereafter, when asked what distinguished the applicant from other Catholics living in Vietnam, the applicant indicated the only difference was that he had stood up and been assertive, and attempted to take an action against the communist police force.
The decision of the IAA
The IAA accepted that the applicant was a practicing Catholic, who had undertaken voluntary work on the Church’s behalf. It was not accepted that he had been targeted by the Vietnamese authorities because of his attendance at Church or his voluntary activities or that his employment opportunities had been curtailed because of his religious activities.
In assessing the applicant’s claim for protection, the IAA considered a range of country information available to it relating to the situation of Catholics in Vietnam. In this context it noted the following:
·The Catholic Church is a registered church in Vietnam and has a significant number of adherents in the country;
·New congregations had been approved in 2013;
·Catholics who were not politically active and who attend registered churches were unlikely to be subject to the attention of the authorities.
The IAA noted inconsistencies in the applicant’s evidence in respect of the incident at Con Cuong, which he claimed had resulted in his mother being assaulted by police, leading to her suffering terminal injuries. In this context, the absence of her death certificate led to the IAA expressing doubts as to the cause of her death, which in turn led it to doubt that the applicant had petitioned the Government or complained to it in respect of the issue.
The IAA also rejected the applicant’s claim that he had been visited by police and that his brother had also been interrogated and tortured by them in order to ascertain his (the applicant’s) whereabouts. This was because the IAA considered there were inconsistencies arising from the employment history provided by the applicant and medical material provided in respect of the brother indicated a diagnosis of schizophrenia.
In summary, the IAA did not accept that the applicant had in any way modified his religious practices because of fear of the Vietnamese authorities or had any adverse profile, with them, prior to his leaving the country illegally.[20]
[20] See Case Book at 126 [16]
This specific finding of an absence of any adverse profile is crucial to the applicant’s review application. It is the applicant’s contention that he has evidence, in the form of the police summons directed towards him, of such an adverse profile, and if the IAA had sought information from him regarding the potential ramifications of the data breach for him personally it would have been forthcoming, with the significant probability that the outcome of the review would have been different.
The IAA also considered the applicant’s submission that he would be targeted by the Vietnamese authorities on the basis that he had illegally left Vietnam in order to seek asylum in the West. In this context, the IAA also considered the possible consequences of the data breach for the applicant.
In this context, the IAA found as follows:
“Although not raised by the applicant, the delegate noted that in February 2014, a report released on the Department of Immigration’s website unintentionally enabled access to certain personal information about people who were in Immigration Detention on 31 January 2014. That data breach was removed from the website. The delegate has stated that as the applicant was in detention on 31 January 2014, his personal information (name, date of birth, nationality, gender, detention details and details of any other family members in detention) may have been accessed from the Department’s website during the period of the data breach. I accept that the applicant’s details would have been available on the website at that time and may reveal that he has sought asylum in Australia. Details of his claims for protection would not however have been available. There is no evidence before me that suggest that the information was accessed by the Vietnamese authorities. I nevertheless accept that the applicant may be identifiable on re-entry as a person who sought asylum in Australia.”[21]
[21] Ibid at 126 [17]
The applicant does not submit that the IAA misconstrued or misconceived the various criteria specified in section 5H(1) of the Act, which the applicant was required to satisfy to establish he was entitled to the grant of the relevant protection visa. In particular, whether he was likely to be subject to persecution as a member of a particular social group, relevantly that of a failed asylum seeker.
However, on the basis of country information available to it, the IAA did not accept the applicant would be targeted on this basis. It noted that fines applied to individuals found to have left the country illegally and DFAT information indicated that no different treatment was applied to persons known to or believed to have applied for asylum in overseas countries.
For analogous reasons, the IAA did not accept that the applicant was at risk of suffering significant harm, on any of the complementary grounds, provided by section 36(2)(aa) of the Act. On these various bases, the IAA affirmed the decision not to grant the applicant a protection visa.
The submissions of the applicant
Counsel for the applicant, Mr Jacobi, submits that the IAA failed to exercise the discretion, conferred upon it by section 473DC, to obtain further information from the applicant, particularly in terms of the potential consequences for him personally of the data breach.
This, it is submitted, has had the consequence of rendering the IAA review function, as delegated to it pursuant to section 473CC of the Act, nugatory in nature, as it has not in either practical or legal terms conducted the review required of it.
In all the circumstances of the case, Mr Jacobi contends that there is no evident or intelligible justification available to explain why the IAA did not simply ask the applicant to explain to it what might happen to him because of the data breach, if he was returned to Vietnam. Mr Jacobi further contends that the materiality of this error is compounded by the fact that it is contrary to departmental policy that each individual, who was subject to the breach, be given an opportunity to comment.
In this context, Mr Jacobi points to the fact that:
·The KPMG report indicates that the information contained in the data breach was downloaded on many occasions by unknown individuals both in and outside of Australia;
·The Department’s own policy recognised that this had potential ramifications for those affected by it, as it might entail their identification in their countries of origin;
·The IAA itself, in its decision, explicitly recognised the potential risk arising for the applicant personally in this regard;
·The applicant’s evidence is that he was not appropriately advised of the data breach, in contravention of departmental policy;
·As a consequence of its own policy, the Department was required to consider any submissions made by individuals who were subject to the data breach;
·As such, the applicant has been subject to a level of practical injustice because he was not able to so comment;[22]
·In turn, the IAA, through the mechanism provided by section 473DC, had the capacity to obtain new information from the applicant about the potential consequences, for him personally, of the data breach;
·This information must be regarded as satisfying the stipulations provided by section 473DD in the sense that the overall circumstances must be regarded as exceptional and necessarily it could not have been provided to the Minister previously;
·In addition, the information, particularly in the form of the summons, must be regarded as both personal and credible.
[22] See Re Minister for Immigration & Citizenship: ex parte Lam (2003) 195 ALR 502
The consequence of these various matters, in Mr Jacobi’s written submissions, is as follows:
“[T]he only way the IAA could have ascertained the potential effect of the publication of the applicant's information on the applicant was by asking him. The IAA did not, and in any event could not have come to the conclusion without first inviting the provision of information from the applicant.
There is no logical explanation for why it was not relevant to the assessment by the IAA to know the effect the publication would have on him, given that the Policy recognises the importance of this consideration.
In the circumstances, in the absence of an intelligible justification for not doing so, the failure to consider the exercise of the power, or to exercise the power, under s. 473DC of the Act to obtain new information from the applicant was legally unreasonable.”
In summary, Mr Jacobi contends that there has been a failure of jurisdiction because the IAA did not ask the applicant what were the implications of the data breach for him. Rather, it fell into error by assuming that it would not have any adverse consequence for him. As such, it did not utilise the power conferred upon it, by section 473DD, in a legally reasonable manner.
As indicated previously, Mr Jacobi places significant emphasis on the IAA’s finding that the applicant had no adverse political profile in Vietnam as he was to be characterised as an otherwise unexceptional person of the Catholic faith, who attended a registered church, and it was not accepted he had in fact taken part in any demonstrations directed against the government.
In these circumstances, the IAA ultimately concluded that the data breach could have no idiosyncratic significance for the applicant, as the Vietnamese authorities were not likely to have any adverse interest in him anyway.
It is Mr Jacobi’s contention that the existence of the police summons dated 5 August 2012 belies the IAA’s finding that the applicant could not be the subject of any adverse interest from the Vietnamese authorities. To the contrary, the document in question indicates otherwise and therefore has the potential to be material to the outcome of the case.
In these circumstances, Mr Jacobi submits as follows:
·The applicant was demonstrably in a position to show that his disclosure in the data breach could put him at risk of his political activities and practice of Catholicism being linked, by the Vietnamese authorities, to his application for asylum in Australia;
·This link may potentially lead to him being persecuted, if returned to Vietnam;
·Accordingly, in the circumstances, the failure of the IAA to invite the applicant to an interview or provide information in another way about the consequences of the data breach, resulted in the IAA determining the review without all relevant information;
·This information had the potential to be material in the sense that it could conceivably have resulted in the IAA reaching a different conclusion to the one which it did.
The submissions of the first respondent
Counsel for the Minister, Ms Milutinovic, points to the fact that it was not up to the IAA to make the applicant’s case for him as he bears the onus of establishing there was a failure of jurisdiction on the basis that the IAA did not exercise its discretion to obtain new information from him in a legally reasonable fashion.
In particular, Ms Milutinovic submits that, following the delegate’s decision, the applicant was notified, in a formal manner, through the release of the relevant decision, of the potential moment of the data breach. In this context, when the case was referred to the IAA for review, he was put on notice of the possibility that he could seek to provide new information in respect of the issue but did not do so.
In addition, she submits that the applicant has conceded that he had some knowledge of the data breach as he has deposed to being informed of it, whilst in detention, when someone from the Department came to speak to a group of asylum seekers.
In all these circumstances, it is submitted that there has been no procedural unfairness accorded to the applicant, as he was afforded a reasonable opportunity to make submissions to the IAA and provide any new information to it regarding the application of the data breach to him personally.
It is further Ms Milutinovic’s submission that both the delegate and the IAA considered the possible implications of the data breach of their own volition, notwithstanding the fact that the applicant himself had not alluded to the issue himself.
As such, there can be no procedural unfairness accorded to him by any failure to invite him to comment on the issue. This is because there was no need for the IAA to resolve any material inconsistencies arising between the material provided to the delegate and that provided to it, as each decision maker referred to the same material.
In this context, Ms Milutinovic points to the statutory framework of Part 7AA, which is to provide a limited form of review, which precludes the accepting or requesting of new information in anything other than exceptional circumstances.
Essentially, it is Ms Milutinovic’s submission that the decision of the IAA not to exercise its discretion to obtain new information from the applicant, given that he had not sought to adduce such information, need not be specifically alluded to in any resulting reasons. However, that does not mean that the discretion was not exercised in a manner which lacked intelligibility, given the overall circumstances of the case.
Finally, Ms Milutinovic does not concede that the failure to invite the applicant to comment on the data breach can be considered material in the sense that any information likely to be provided by the applicant had the potential to lead the IAA to reach a different conclusion to the one which it did.
In this context, Ms Milutinovic characterises the applicant’s reliance on the summons attached to his affidavit – and significantly relied upon by Mr Jacobi – as an attempt to adduce further evidence, which was not available before the IAA and therefore convert what are judicial review proceedings into a rehearing involving the admission of further facts and evidence, which is impermissible.
Otherwise, she contends that the IAA did consider the implications of the data breach and concluded that it would have no application to the applicant on the basis of its findings based on country information and the applicant’s lack of political activism in the context of his practice of Catholicism in Vietnam.
Essentially, Ms Milutinovic contends that the IAA considered the material referred to it, by the delegate, and conducted its review function in a procedurally fair way pursuant to the limited mechanisms provided by Part 7AA, which do not require it actively to seek out material from any referred applicant.
In particular, although the applicant had not himself specifically raised it as an issue, it considered the data breach, as had the delegate before it, but concluded, as it was entitled to do, that the applicant did not have any adverse profile, with the Vietnamese authorities, because of any political or other activities undertaken by him, including the illegal manner of his departure from Vietnam and the manner of his practice of Catholicism, and therefore was not likely to be subject to any form of persecution.
In these circumstances, notwithstanding the failure of the IAA to seek the applicant’s formal comment on the data breach, there was no realistic possibility that, if it had done so, the result would have been different. Therefore the applicant has not established any jurisdictional error.
Discussion
It is an inherent requirement of the exercise of any power, conferred on a decision maker, such as the IAA, that such power be exercised reasonably and, if it is not so exercised, it amounts to a failure of jurisdiction. To be exercised reasonably, it must be possible to glean from the relevant decision record “an evident and intelligible justification” for the pertinent decision in question.[23]
[23] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [75] – [76] per Hayne, Kiefel & Bell JJ
In Li, Gageler J expressed the principle as follows:
“Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.” [24]Citations removed
[24] Ibid at [90]
Again in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness, His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[25]
[25] Ibid at [105]
Essentially, an administrative decision maker is required to provide an intelligible and reasonable explanation as to why a particular decision has been reached – in this case, it is the applicant’s case that there is a lack of transparency, coherence and overall rationality in respect of how the IAA approached the issue of the data breach and therefore its decision should not be allowed to stand.
It is also clear from what was said by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection[26] that the various powers conferred upon the IAA, including those contained in section 473DC, must be exercised within the bounds of legal reasonableness, in the sense explained in Li.[27]
[26] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [21]
[27] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225
As I understand the applicant’s case, the unreasonableness to which he contends he has been subjected, relates to the following issues:
·The Department did not follow its own policy in respect of formally informing him of the data breach in writing;
·The IAA itself did not specifically raise with him the issue of the data breach and ask him personally if he considered that the breach might bring him to the adverse attention of the Vietnamese authorities;
·As a consequence, it did not exercise its discretion arising under section 473DC in a legally unreasonable way.
It is further the applicant’s position, as I understand it, that these various considerations are to be considered in the context that the applicant is a person who is not legally qualified; has limited English skills (if any at all); and, on his case, was let down by his lay advisers during the IAA review.
Given all these factors, it is submitted that it was legally unreasonable that the IAA did not specifically ask the applicant about the possible ramifications of the data breach for him.
Following Li, the Full Court provided further analysis of the concept of legal unreasonableness in Minister for Immigration & Border Protection v Singh.[28] The Full Court identified two distinct but related species of unreasonableness – one based on errors arising in the decision making process itself and the other based on what was the actual outcome of the decision making process.
[28] Minister for Immigration & Border Protection v Singh (2003) 231 FCR 437
In the first, the court, in its supervisory role on judicial review, is able to identify a jurisdictional error in how the decision maker has approached the statutory task conferred upon it. In the second, being outcome focussed, the reviewing court is satisfied that the exercise of power, by the original decision maker is arbitrary, capricious or outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
As I understand the applicant’s case, he contends that the process followed by the IAA was unreasonable, in the circumstances, particularly given the fact that the applicant had not been informed of the data breach properly.
In addition, Mr Jacobi contends that the outcome itself can be characterised as being arbitrary, given the applicant currently contends that he has material available to him to indicate that he does in fact have an adverse profile, with the Vietnamese authorities, contrary to the finding of both the delegate and the IAA.
In his written submissions, Mr Jacobi made reference to the concept of practical injustice. This was an expression coined by Gleeson CJ in Re Minister for Immigration & Multicultural Affairs: Ex-parte Lam.[29] He said as follows:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
[29] See Re Minister for Immigration & Multicultural Affairs: Ex-parte Lam (2003) 195 ALR 502 at [48]
However, in the same case, McHugh & Gummow JJ observed that:
“… the particular requirements of compliance with the rules of natural justice will depend upon the circumstances. Different procedures may be required, even of the same repository of power, from one situation to the next … ”
It has been indicated by the High Court that, in certain confined circumstances, the failure by a decision maker not to ask an obvious question may result in some species of procedural unfairness resulting in jurisdictional error. In Minister for Immigration & Citizenship v SZIAI[31] the majority of the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) said as follows:
“It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”
[31] Minister for Immigration & Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]
As I understand Mr Jacobi’s submission, he contends that a consideration of all the overall circumstances of the applicant – his situation as a non-English speaking asylum seeker; his detention; the failure of the Department to formally advise him of the data breach; the alleged omissions of Sister Sealey; - when coupled with the outcome of the review, indicate that he has suffered a level of injustice in this practical sense, as a consequence of the failure of the IAA to ask an obvious question.
However, I note that the statutory review mechanisms provided by Part 7AA are very different to that pertaining to other administrative decision-makers. The IAA’s powers are closely prescribed and its obligations to apply the rules of natural justice are modified by section 473DA, along with its power to obtain new information, which is not unfettered. The review jurisdiction of the IAA is significantly different to that accorded to the AAT.
In this context, in DGZ16 v Minister for Immigration & Border Protection[32] the Full Court, after contrasting the jurisdiction of the AAT with that of the IAA, said as follows:
“…the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.”
[32] DGZ16 v Minister for Immigration & Border Protection [2018] FCAFC 12 at [75]
In DBE16 v Minister for Immigration & Border Protection[33] Barker J, after summarising the stipulated mechanisms applicable to fast track reviews, said as follows:
“The burden of this scheme and these provisions is that the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding. It might be said that this is part of the nature of the fast track system as envisaged by Pt 7AA.”
[33] DBE16 v Minister for Immigration & Border Protection [2017] FCA 942 at [61]
This is essentially Ms Milutinovic’s contention. She submits that the IAA was under no obligation to garner further material from the applicant, particularly in circumstances where it had considered the issue of the data breach and the applicant himself had not specifically sought to agitate the issue or adduce any fresh information concerning it in the review process of which he had been advised and formally told, albeit in a pro forma circular, of the mechanisms to be followed in the event he did wish to provide new information to the IAA.
Further, although she has not put it as such, it is her position that there was nothing obvious arising in respect of any need to ask the applicant specifically about any possible ramifications of the data breach for him personally, given it was not a clearly defined or articulated component of his case.
In Minister for Immigration & Border Protection v Stretton[34] Allsop CJ indicated the difficulty arising for courts, particularly those exercising appellate or supervisory jurisdictions, of attempting to define, in a prescriptive sense, what was meant by legal unreasonableness. In His Honour’s phraseology it is a concept “not amenable to minute and rigidly-defined categorisation or a precise textual formulary”.[35]
[34] Minister for Immigration & Border Protection v Stretton (2016) 237 FCR 1
[35] Ibid at [10]
This was particularly so in respect of the application of the concept to the outcome of the decision in question, particularly given that decision-makers necessarily are endowed with a certain level of freedom in which to make their decision and within such freedom, decision-makers may make different decisions, which cannot be criticised on the basis of being different.
Accordingly, the task of reviewing for jurisdictional error is not one of definition but of characterisation. Allsop CJ said as follows:
“The boundaries of power may be difficult to define. The evaluation of whether a decision was made within those boundaries is conducted by reference to the relevant statute, its terms, scope and purpose, such of the values to which I have referred as are relevant and any other values explicit or implicit in the statute. The weight and relevance of any relevant values will be approached by reference to the statutory source of the power in question. The task is not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.” [36]
[36] Ibid at [11]
In summary, in determining whether an established failure to consider exercising a discretionary power was legally unreasonable, it is necessary to:
·identify the failure with precision;
·examine the terms, scope and purpose of the statutory power which the decision-maker failed to consider; and
·evaluate the failure to see whether it has the character of being legally unreasonable, perhaps in lacking a rational foundation or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking in common sense.[37]
[37] See BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [80]
In Minister for Immigration and Border Protection v SZVFW[38] the High Court (Nettle & Gordon JJ) said as follows:
“…legal unreasonableness is invariably fact dependent and requires a careful evaluation of the evidence. That is, assessment of whether a decision was beyond power because it was legally unreasonable depends on the application of the relevant principles to the particular factual circumstances of the case, rather than by way of an analysis of factual similarities or differences between individual cases. Where reasons are provided, they will be a focal point for that assessment. It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.”
[38] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [84]
They went on to indicate that the applicable standard of what was reasonable, in any given situation, was to be derived from “the applicable statute but also from the general law”. In this matter, although the IAA has the authority to gather new information, the applicable statutory regime does not ordinarily envisage the interview of referred applicants.
Minister for Immigration & Border Protection v CRY16[39] is authority dealing specifically with issues of procedural fairness, within the context of section 473DC and a limited review conducted by the IAA. In the case, the Full Court accepted that the discretion provided by section 473DC(3) was subject to considerations of procedural fairness. CRY16 was a case concerned with the principle of internal relocation contained in section 36(2B)(a) of the Act.
[39] Minister for Immigration & Border Protection v CRY16 [2017] FCAFC 210
The applicant in CRY16 was a citizen of Lebanon, who originated in Tripoli. The ministerial delegate did not accept his claim for asylum on the basis of credit, rejecting his evidence that he was at risk of harm in his home city. On review referral, the IAA rejected his claim on a different factual basis, accepting that he might be at risk in Tripoli but would be safe in another part of Lebanon, namely Beirut, and found he could safely relocate there.
The issue of relocation was not examined by the delegate nor raised by the IAA on review. Accordingly, the case was noteworthy in the sense that it was reviewed on a different and unspecified basis to that which had been determined by the original decision maker and conveyed to the applicant concerned.
In this context, the Full Court was asked to consider whether the IAA had fallen into jurisdictional error by not inviting the applicant concerned to comment, in some way, on the new information, which clearly was central to the case in question, which was to be reviewed pursuant to section 473CC.
In a formal sense the question posed was as follows:
“…reasonableness is closely linked to procedural fairness. Nevertheless, in light of the terms of s 473DA it is important to consider the present issue through the lens of Div 3 and the principles of legal reasonableness rather than the principles of procedural fairness. In other words, was it legally reasonable in the circumstances of the particular case for the Authority not to consider the exercise of its power to get documents or information?”[40]
[40] Ibid at [67]
In CRY16, the Full Court recognised the dichotomy, previously referred to, between procedural fairness and what was unfair in an ordinary sense. In the case, it was accepted that the applicant concerned could have had no inkling that the IAA would accept the case put by him to the delegate and then decide the case on a different basis, of which he was unaware and in respect of which he had not been able to comment. That this outcome was unfair to the applicant was patently apparent.
Ultimately, the Full Court answered the question it posed for itself, as follows:
“Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority’s statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority’s failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of ‘practicable’, in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error.”[41]
[41] Ibid at [82]
CCQ17 v Minister for Immigration & Border Protection[42] was also a case dealing with the issue of whether it was legally unreasonable for the IAA not to invite comment from an applicant in respect of an aspect of the case referred to it. The issue related to country information, which was general in nature but had not been before the delegate.
[42] CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641
In the case, Thawley J considered that there were “no fixed categories of circumstances in which it would be legally unreasonable to consider the discretion under section 473DC.”[43] However, His Honour considered that the issue of whether the discretion to obtain new information had been unreasonably exercised was likely to be determined by reference to the issue’s attachment to a point, which had the potential to be dispositive of the review as a whole.
[43] Ibid at [42]
By way of example, in CRY16, the issue of the potential practicality of the applicant concerned living in Beirut was such a dispositive issue but was one which had clearly not been referred to the applicant, leading to the failure to exercise jurisdiction in a legally reasonable way.
However, His Honour also cautioned about the risk of a court, such as this one, overlooking the fact that the statutory scheme provided by Part 7AA is “one of limited review on the papers with a default position of not accepting or requesting new information.” In addition, the Part contains its own exhaustive statement of natural justice.
As such, questions of legal unreasonableness, in referred review cases arising under Part 7AA, were to be approached:
“[T]hrough the lens of the specific statutory scheme and not through the lens of the principles of natural justice unaffected by statute.”
The relevant aspects of the scheme being:
·The limited nature of review provided;
·The restriction on the rules of natural justice;
·The obligation of the IAA to consider the review material referred to it without accepting or requesting new information and without interviewing the referred applicant.[44]
[44] See DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69]
In DGZ16 the Full Court said as follows:
“In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate.”[45]
[45] Ibid at [72]
In DGZ16, the IAA took a different view to the delegate in respect of a number of issues of credit relating to the applicant’s account of various incidents said by him to entitle him to asylum in Australia. As such, it was argued that the IAA should have sought information from him in order to resolve these inconsistencies and the fact that it had not done so was legally unreasonable.
In the case, the Full Court again placed significant emphasis on the fact the regime provided by Part 7AA was different to that provided in respect of other forms of review for migration decisions. As such, principles arising in respect of procedural fairness in such forums were not applicable.[46] The Full Court found as follows:
“There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
It was open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond.”[47]
[46] Ibid at [69]
[47] Ibid at [75] – [76]
In the current matter, the IAA completed its review function on the basis of the material provided to it. It considered the same information in respect of the data breach, which was before the delegate, and reached the same view of it. There were no inconsistencies between the material provided to the IAA and that considered by the delegate. The IAA reached that view in circumstances in which the applicant had not sought, as far as the IAA was concerned, to agitate to produce new information to it.
Accordingly, from the perspective of the IAA, in the review case before it, no new issue arose in it, certainly not one which was dispositive of the review. As such, this case can be distinguished from the circumstances prevailing in CRY16, in which additional information was obviously required to complete the review because the review was being completed on a different basis to that utilised by the delegate.
CCQ17 was a case concerned with new information not specific to the applicant concerned, which had not been referred to him. As such, it potentially fell within the purview of section 473DE(3). The applicant concerned sought review on the basis that the IAA had not sought comment from him in respect of this new information and of which he was unaware.
Thawley J found as follows:
“The appellant submitted that the failure to ‘invite comment’ under s 473DC(3) was legally unreasonable because the failure had the effect that a decision was made by the Authority in reliance upon information the significance of which the appellant was left unaware. The appellant submitted that there was no intelligible justification for doing so.
This submission incorrectly views the matter through the lens of natural justice. It fails to recognise that the statutory scheme expressly contemplates review decisions being made on the basis of information the significance of which the review applicant is unaware. Section 473DE(3), for example, expressly contemplates such a result. What the appellant had to show was that in circumstances where:
(1) the statutory scheme restricted the natural justice hearing rule; and
(2) s 473DE(3)(a) disengaged what otherwise would be the operation of s 473DE(1) (for present purposes it is not necessary to decide whether s 473DE(1) would in fact have applied – that is whether s 473DE(1)(a)(i) and (ii) were satisfied),
there was nevertheless a legally unreasonable failure to exercise the discretion conferred by s 473DC.
The appellant has failed to do so.”[48]
[48] CCQ17 v Minister for Immigration & Border Protection [2018] FCA 1641 at [55] – [57]
In the present case, the applicant submits that the decision in question is tainted by the fact that he had not been fully appraised of the circumstances surrounding the data breach, in contravention of departmental policy. It is clear from CCQ17 that it is open to the IAA to reach a decision on the basis of material of which an applicant is unaware, given the restricted nature of the review process in question.
However, it is clear that the Court still retains the authority to quash any decision which it finds to be otherwise legally unreasonable. But, as previously indicated, it is impossible for any authority to encompass all the circumstances which may represent such unreasonableness.
What is important to recognise is that such circumstances should amount to a reviewer going beyond the statutory source of the power under which the review is being conducted. In this context, caution should be taken to ensure that proper reference is given to the limited nature of Part 7AA review proceedings to ensure that they are not viewed through the lens of other review matters, to which principles of natural justice apply. In addition, as with all judicial review matters, great care must be taken to avoid unwittingly turning the proceedings into a re-hearing encompassing the merit of the case.
Minister for Home Affairs v AYJ17[49] turned on a factual scenario analogous to that arising in CRY16 and was resolved on the same basis, namely it was a matter in which the IAA required further information to complete its review function, which was available to the applicant concerned and therefore it was legally unreasonable for the IAA not to obtain it.
[49] Minister for Home Affairs v AYJ17 [2019] FCA 591
In summary, one aspect of the applicant’s claim for protection centred on the traumatic circumstances surrounding a relative’s death. The delegate found the evidence provided in respect of this issue at the delegate interview stage to be inconsistent with evidence provided by him during his arrival interview.
Objection was taken that the IAA had not sought to clarify these inconsistencies through the mechanism provided by section 473DC(3) and this was legally unreasonable because it could be characterised as being perverse given the nature of the arrival interview, which was not specifically intended to elicit every aspect of any applicant’s claim for protection.
Moshinsky J accepted this submission, holding as follows:
“This is not to suggest that the IAA is obliged to provide an opportunity to comment simply because it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. Clearly, there is no such obligation: DGZ16 … But the circumstances here are quite different. The IAA proposed to rely on a matter that had not been explored before the delegate and about which the respondent was likely to be able to provide evidence. This is not merely a matter concerning credibility. Accordingly, I do not regard the above analysis as inconsistent with DYK16…”[50]
[50] Ibid at [36]
Conclusions
The review application is focussed on the discretion provided to the IAA by section 473DC(3) to invite an applicant to give new information. The manner in which this discretion is to be exercised must be informed by the overall structure of Part 7AA and the limited form of review, which it provides. As such, I must not view the case through the lens of natural justice.
In my view, what is significant about the current matter is that neither prior to nor during interview with the delegate did the applicant specifically raise issues relating to the data breach. It was the delegate who alluded to the issue.
In addition, following the formal advice, provided by the IAA, in respect of the mechanisms to be followed in the event he wished to provide new information to it, the applicant himself did not seek to provide any such further information to the IAA.
He (and ostensibly) his representatives alone knew of the existence of the additional documents sent from Vietnam by the applicant’s sister. It was not the role of the IAA to attempt to intuit or guess what the applicant’s case might be following the referral of the case to it. Its function was to review the materials available to the delegate.
The only reference to the fact that the applicant might have some form of adverse profile with the Vietnamese Police was the reference in his Departmental interview to police in his area regarding his situation of being of interest to them because he had taken action against them.
The delegate and then the IAA did not accept that the applicant had so protested to police and other authorities in respect of the circumstances of his mother’s death. It rejected these assertions on the basis of findings of credit. I do not consider that the IAA was under any legal obligation to invite the applicant to attempt to clarify the discrepancies identified by it.
On the material before the IAA, the issue of the data breach, as it pertained to the circumstances of the applicant, cannot be regarded as being dispositive of the review before it, given its findings regarding the situation for Catholics in Vietnam and its view of the profile of the applicant.
In essence, the effect of the applicant’s submission is that it should have checked with the applicant about the issue, in effect, just in case the applicant revealed something. In my view, this is the essential flaw in the applicant’s case – the proceedings before the IAA are not inquisitorial in this sense.
In the circumstances of this case, particularly given the silence of the applicant in regards to the issue, it cannot, in my view, be characterised as procedurally unreasonable that the IAA elected not to seek further information from the applicant in respect of the data breach, particularly given that it was under no specific obligation to interview the applicant personally or obtain information from him.
Certainly, this was not a case in which the IAA determined the case on a basis which had not previously been explored by the delegate as in CRY16. Nor was it a case in which it can be regarded as perverse or in some other way unconscionable that the IAA did not seek to solicit further information from the applicant, particularly about the data breach, given what it had found about the interest the Vietnamese were likely to hold in the applicant personally.
In these circumstances, the IAA took the path of largely adopting the position of the delegate in respect of the data breach, which was informed by its view that the evidence available did not indicate that the applicant had any adverse profile, with the Vietnamese authorities, which might cause the data breach to have some particular ramifications for the applicant personally.
In reality, the major piece of new information, on which the applicant now seeks to rely, is the police summons, ostensibly issued in Vietnam in August 2012. The existence of this summons is a circumstance about which the applicant had not previously alerted either the delegate or the IAA in any formal manner.
The IAA was oblivious in respect of the existence of the summons. Its ignorance of the summons provides the axiomatic, compelling and intelligible reason why it saw no necessity to seek further information, from the applicant, in respect of the implications of the data breach for him personally.
As such, in my view, in this context, there can be no finding of legal unreasonableness, in the first sense envisaged by the Full Court in Singh; namely, there has been no failure in the application of the statutory process created by Part 7AA.
In these circumstances, in my view, the situation in this case is materially different to that prevailing in either CRY16 or AYJ17, in which new information was required to complete the review task. Accordingly, in these circumstances, there is an intelligible justification for the IAA not exercising the discretion provided to it pursuant to section 473DC(3) – it had not been alerted to the fact that there was any need for further information to be solicited in respect of the data breach because the applicant had been hitherto silent about the issue.
In addition, the IAA was not dealing with an application brought pursuant to section 473DD to consider new information as a consequence of some exceptional circumstance. As previously indicated, the IAA is under no obligation to interview any referred applicant or seek any information from such applicant [section 473DB(1)].
The IAA may consider new information but its authority to do so is closely confined. Any applicant, who seeks to provide new information to the IAA, bears an onus of establishing that the information concerned could not have been provided to the delegate earlier, is credible and personal to the applicant concerned and, in addition, the information concerned may have affected the outcome of the overall application.
In my view, the import of the applicant’s contention is that the IAA should have utilised the discretion provided by section 473DC(3) as an alternative to him using the mechanism available to him, pursuant to section 473DD, of putting the new information, which he held, before it.
In my view, this proposition lacks logic, when considered in the overall context of Part 7AA. Essentially, there was no reason, given the ostensible silence of the applicant, for the IAA to have attempted to solicit further information from him.
It would have been illogical for it to have attempted to solicit such information, given the status of the review materials referred to it. It is not the IAA’s role to attempt to garner evidence for any applicant or make a case for him or her.
The real gravamen of the applicant’s case is that he is of the view that he has been let down, by Sister Sealey, in how she has attended to his affairs before the IAA. It would have been open to both him and Sister Sealey, prior to the IAA review, to attempt to place new information before the IAA and thereafter satisfy the various requirements of section 473DD.
The applicant asserts that he personally did not know how to go about the process, given his language skills and left it to Sister Sealey. Ms Walker has deposed that, due to mental frailty, Sister Sealey was not capable of doing as she was instructed. Accordingly, the applicant’s case suffered.
This may be so. The information about the summons might have been considered credible by the IAA and given his name was on it, personal to the applicant. In addition, the IAA might have considered there was some level of exceptionality attaching to the material, which justified its consideration. Finally, there may have been an acceptable reason provided as to why the information had not been provided earlier.
These are all matters of conjecture for me. However, I accept that if all of these hurdles had been overcome, it is conceivable that the existence of the summons may have caused the IAA to doubt that the applicant did not have an adverse profile, with some arm of the Vietnamese State, which might have been enlivened by access to his identity through the data breach.
The question remaining is is this state of affairs sufficient to warrant this court’s intervention on the basis that the outcome of the review is legally unreasonable in the second sense envisaged in Singh, namely that the outcome is one which can be characterised as being arbitrary, capricious or otherwise offensive to ordinary concepts of justice and common sense, so as not to warrant being considered as a review at all.
Again, in my view, the answer to this question must reside in the statutory context provided by Part 7AA, which requires the IAA to review only the materials referred to it, with a limited capacity to go beyond those materials. I must be vigilant in respect of admitting new information, which converts these proceedings into a merits re-hearing, which is beyond the jurisdiction conferred on this court.
In my view, it is not open to this court to re-open the review process and tangentially admit the new information, which the applicant, in his current application contends the IAA should have elicited through asking the applicant directly what the consequences of the data breach were potentially for him.
It is conceivable that if Sister Sealey or indeed the applicant himself had sought to avail themselves of the provisions of section 473DD of the Act the outcome of the case may have been different. However, the principles of judicial review provide that the legal reasonableness of a decision by a Tribunal must be determined by reference to what was before it at the time of its decision, not what may have been before it had certain events transpired.
I have found that it was not legally unreasonable for the IAA not to have sought information from the applicant, concerning the data breach, pursuant to section 473DC. For me, in effect, to determine that it was legally unreasonable for the IAA to reach the conclusion which it did on the basis of evidence of which it was unaware and which was not presented to it due to the deficits in the applicant’s case would, in my view, essentially constitute a full merits review based on conjecture, which I do not have the authority to do.
For these reasons, the application will be dismissed. The usual rule that costs should follow the event should be applied, which I will fix in the amount of $7,467.00, which is the applicable scale amount.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety-four (194) paragraphs are a true copy of the reasons for judgment of Judge Brown.
Associate:
Date: 6 October 2020
[30] Ibid at [37]
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