CXP16 v Minister for Immigration
[2019] FCCA 199
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CXP16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 199 |
| Catchwords: MIGRATION – Visa – protection visa – whether decision of Authority tainted by apprehended bias – whether Authority failed to conduct review – whether decision affected by procedural unfairness and hence unreasonable – whether decision illogical or irrational – whether reviewer failed to ask correct question – error demonstrated – writs issued. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth) |
| Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 176 ALR 644; (2000) 205 CLR 337 North Australian Aboriginal Legal Aid Service Inc. v Bradley (2004) 206 ALR 315 Isbester v Knox City Council (2015) 147 ALD 93 Forge v Australian Securities and Investments Commission (2006) 229 ALR 223 Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210 Minister for Immigration and Border Protection v DZU16 (2018) 357 ALR 474 |
| Applicant: | CXP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 328 of 2016 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 25 September 2017 |
| Date of Last Submission: | 25 September 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr E Brooks |
| Solicitors for the Applicant: | National Pro Bono Project |
| Counsel for the Respondents: | Mr D O'Leary |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
There be an order in the nature of certiorari that the decision of the Immigration Assessment Authority dated 13 September 2016 affirming the decision of the delegate of the first respondent made on 1 August 2016 rejecting the applicant’s application for a Temporary Protection (Subclass 785) visa is quashed.
There be an order in the nature of mandamus that the Immigration Assessment Authority review according to law the decision of the delegate of the first respondent dated 1 August 2016 rejecting the applicant’s application for a Temporary Protection (Subclass 785) visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 328 of 2016
| CXP16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (‘the IAA’) made on 13 September 2016. That decision affirmed an earlier decision of a delegate of the Minister refusing to grant the applicant a temporary protection visa.
On 10 February 2017, the applicant filed an Amended Application raising five grounds of review. The matter proceeded before me on the basis of that Amended Application. The grounds are as follows (reproduced verbatim):
“1.The decision of the Second Respondent was the subject of jurisdictional error in that the Second Respondent failed to conduct a review in accordance with the Act by reason that the review was not free of bias.
Particulars
a.The Second Respondent is established within a Division of the Administrative Appeals Tribunal (s.473JA(l)).
b.The Tribunal is established by Administrative Appeals Tribunal Act 1975.
c.The limited review is required to be free of bias (s.473FA(l)).
d.The review was conducted by a Reviewer [CB158].
e.A Reviewer is not a member of the Tribunal. (s.6, Administrative Appeals Tribunal Act 1975). A Reviewer is engaged under the Public Service Act 1999 and is within the staff of the Tribunal (s. 24N, Administrative Appeals Tribunal Act 1975).
f.The First Respondent notified the Applicant that the decision to refuse the Applicant’s application had been automatically referred to an independent office for review. A review conducted, and a decision made, by a Reviewer who is engaged under the Public Service Act 1999, or who is not a member of the Tribunal, is not a review or decision made independent of the First Respondent and is a review or decision that gives rise to a reasonable apprehension that the review or decision is not free of bias.
2.The decision of the Second Respondent was the subject of jurisdictional error in that the Second Respondent failed to conduct a review in accordance with the Act by reason that the Second Respondent did not review the refusal decision.
Particulars
a.The decision of the First Respondent the subject of a review under the Act is the refusal of the First Respondent to grant the Applicant a Protection visa on the basis of the finding by the First Respondent that the Applicant is not a person in respect of whom Australia has protection obligations as outlined in paragraphs 36(2)(a) or (aa) and is not a member of the same family unit as a non-citizen in respect of whom the First Respondent is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the Applicant. [CB123]
b.The First Respondent had determined, inter alia, that the Applicant is not an 'Excluded fast track applicant' and that the decision of the First Respondent is a 'fast track reviewable decision'. The First Respondent consequently referred to the Second Respondent the refusal decision. (s. 473CA, 473CB; para 1, CB123)
c.The Second Respondent did not review the refusal decision. The Second Respondent instead determined that the Applicant had provided bogus documents; that the Applicant had not provided 'convincing explanations'; and that therefore the grant of the visa is prevented by section 91WA of the Act.
d.The Reviewer’s decision relied on a basis that was: contra to a finding and determination made by the First Respondent in favour of the Applicant; not determinative of the refusal decision; and was a basis that is not the subject of the review. The First Respondent found and determined that the evidence of identity and documents produced is satisfactory; that section 91W(2) of the Migration Act 1958 does not apply; that the Applicant had not produced (i.e. provided, given or presented) a bogus document; and was satisfied as to the identity of the Applicant, none of which was a basis for refusal to grant the visa or to characterise the Applicant as other than a fast track review applicant [para 22, CB130; paras 41, 42, CB133; para 140-1, CB149]
e.A review decision based on section 91WA of the Act was not open to the Second Respondent to make by reason that:
i. It was not a basis of the refusal decision of the First Respondent;
ii. The First Respondent had made findings in favour of the Applicant in respect of the characterisation and legal effect of documents provided as to identity, nationality or citizenship; and as to identity; and
iii. In respect of the documents provided as to identity, nationality or citizenship; and as to identity, there was no issue to be reviewed by the Second Respondent.
f.In respect of findings and decisions of the First Respondent made in favour of the Applicant, there was no issue or decision to be reviewed by the Second Respondent:
i. The First Respondent is:
1.functus officio in respect of such finding and decision; and
2.alternatively, is bound by such finding and decision,
namely, that the Applicant has not provided, given or presented a bogus document, whether as to identity, nationality or citizenship or otherwise.
ii. A review under the Act does not include a finding or decision made by the First Respondent that is favourable to the Applicant, or that is not determinative of the refusal decision.
iii. It is not sufficient for the Second Respondent by its Reviewer to merely have a different opinion from the First Respondent about the same documents that were before each of the First and Second Respondents.
3.The decision of the Second Respondent was the subject of jurisdictional error in that the Second Respondent did not raise with the Applicant that the review would go beyond the decision identified by the First Respondent as determinative against the Applicant.
Particulars
a.The Applicant was notified by the First Respondent that the decision to refuse is a fast track reviewable decision; that it had been automatically referred to the Second Respondent for review of the refusal decision; and that the Second Respondent will review the refusal decision. (CB120)
b.Notice was not provided to the Applicant by either the First Respondent or the Second Respondent that the First Respondent’s finding and decision:
i. That the Applicant had not provided a ‘bogus document’; and
ii. As to the identity of the Applicant,
was, or remained, in issue or that it was liable to be the subject to a contrary finding or decision of the Second Respondent.
c.No opportunity was provided to the Applicant to be heard in respect of the information or basis being considered by the Second Respondent for purporting to overturn, re-determine, or have a contrary opinion about, the finding and decision of the First Respondent about a document or identity (which is not conceded as being within the jurisdiction of the Second Respondent to do).
4.The decision of the Second Respondent was the subject of jurisdictional error in that it is lacking in logic and rationality.
Particulars
a.The First Respondent was satisfied, and made findings and decisions about the documents and identity of the Applicant having considered the evidence, including interview of the Applicant.
b.The First Respondent was satisfied that the Applicant is not an ‘Excluded fast track review applicant’; that the refusal decision is a fast track reviewable decision and that the Applicant is a fast track review applicant.
c.The Second Respondent illogically and, with respect, irrationally formed an opinion that the Applicant had ‘disavowed the passport and ID card as evidence of his correct identity’ and ‘disavowed the identity in the passport and the ID card’; and ‘suspects’ that they were not issued in respect of the Applicant. The basis for that opinion is not identified.
d.The Second Respondent illogically and, with respect, irrationally appears to have formed an opinion that the manner of English spelling of the names in the passport and ID card, and how the Applicant is identified in those documents, is determinative of the identity of the Applicant and the veracity of those documents, a conclusion not arrived at by the First Respondent and not determinative of the refusal decision. The basis for that opinion is not identified.
5.The decision of the Second Respondent was the subject of jurisdictional error in that in considering section 91WA, the Second Respondent by its Reviewer failed to ask the correct questions.
Particulars
a.The Second Respondent should have asked:
i. Was there evidence by which the First Respondent decided that the Applicant had not provided, given or presented a bogus document [CB129-133; 149];
ii. Is a document provided by the Applicant a ‘bogus document’ and on what basis can the document be so characterised?
b.If a document is a bogus document, does the Applicant have ‘a reasonable explanation’? The Second Respondent by its Reviewer wrongly asked whether the Reviewer was ‘persuaded’ [para 15; CB161] and had been 'provided convincing explanations' [para 16; CB162] by the Applicant.”
Background
The summary below, of the essential background matters is paraphrased from the outlines of the parties.
The applicant claims to be an ethnic Pashto and Shia Muslim from Quetta in Pakistan. He arrived in Australia on 11 November 2012 as an unauthorised maritime arrival. He was invited to lodge an application for a Temporary Protection (subclass 785) visa (‘the visa’) on 27 May 2015. He lodged a valid application for the visa on 28 July 2015.
Receipt of that application was acknowledged by the Department by letter dated 4 August 2015. At the time that the application was lodged, the applicant was a ‘fast track applicant’ within the meaning of s.5 of the Migration Act 1958 (Cth) (‘the Act’). He was invited to attend an interview with a delegate of the Minister (‘the delegate’) and that interview took place on 16 February 2016. On 1 August 2016, the delegate rejected the applicant’s claim to protection under both ss.36(2)(a) and (aa) of the Act. The delegate made detailed findings and observations including the following:
a)The applicant is a national of Pakistan whose name and details were recorded in his Pakistani papers.[1]
b)The applicant is a ‘fast track applicant’ and is not an ‘excluded fast track review applicant’.
c)Section 91W(2) of the Act did not apply to the applicant.
d)The applicant was invited to provide information about his identity pursuant to s.91W.
e)The applicant provided a coloured copy of a Pakistani identity card, a coloured copy of a Pakistani passport (parts of which were illegible) and an illegible untranslated document (‘the B Form’).
f)The applicant was questioned about a number of variations in his name and date of birth on the documents that he had provided.
g)The applicant’s name was H.[2]
h)The delegate had concerns about the credibility of the applicant’s claims because of inconsistencies in his account and a failure to provide accurate information about the Pakistani passport submitted by him as evidence of his identity.
i)The delegate found that there was no evidence indicating that the applicant has provided, given or presented a ‘bogus document’ to the Department or the Minister and the applicant was not an excluded fast track applicant as defined in s.5(1)(a)(vi) of the definition of that term in the Act.
j)The delegate rejected the applicant’s claims to both protection and complementary protection.
[1] CB pp 87 to 133.
[2] CB p 133 (Note: the applicant’s surname has been anonymised for the purpose of these reasons).
As the applicant was a fast track applicant, the decision of the delegate was automatically referred to the IAA pursuant to s.473CA of the Act.
The IAA found as follows:
a)The applicant’s application for a temporary protection visa was precluded by the operation of s.91WA of the Act. In other words, the IAA found that the applicant had provided ‘bogus documents’. The IAA noted the three documents provided as evidence of identity to the delegate. It accorded no weight to the untranslated document.
b)The IAA noted that the passport and the Pakistani ID card recorded the applicant’s name as ‘H1’ with an alternative spelling of ‘H2’ but that the applicant had denied to the delegate that either of these spellings was his name. He had told the delegate that H1 was his given name, that he had the family name ‘H3’ and a clan name of ‘Y’.
c)The IAA found that the applicant had disavowed the identity in the passport and ID card as evidence of his correct identity. It concluded that he had provided a bogus document as evidence of identification, nationality or citizenship for the purposes of s.91WA(1)(a) of the Act.
d)The IAA found that the applicant had claimed that the ID card had the name H1 on it because it was based on a local ID card but found that this did not explain why the local ID card did not accurately record his identity.
e)It found that the applicant had used a passport that was not genuine to travel from Pakistan in 2012 and concluded that this was relevant to the question of the applicant’s identity generally.
f)The IAA found that the applicant had not provided convincing explanations about the bogus ID card, bogus passport, his use of the passport to travel to Australia, his inability to provide further information about his ID and a translation of the B Form despite requests that he do so.
g)It was also not satisfied that he had provided a convincing explanation as to his illiteracy.
h)The IAA also had concerns about the applicant’s claimed language group and ethnicity which in turn was relevant to the question of his identity.
i)The IAA was not satisfied that the applicant was a Shia Pashtun from Balochistan.[3]
j)It rejected the applicant’s claims that the ID card was issued on the basis of a local ID card, that he was unable to provide evidence of identity because of either the Pakistani postal system or because of lost documents, that the applicant did not know the name on the non-genuine passport he had used to travel from Pakistan and that his evidence with respect to those matters was not credible.
k)The conclusion of the IAA was that it was not satisfied that the applicant had provided a reasonable explanation for providing a bogus ID card, or bogus passport for the purposes of s.91WA(1)(a) and for that reason, s.91WA applied to the applicant.
Submissions
[3] Court Book (‘CB’) p 163 at para [18].
Applicant
In summary, the applicant submits that the IAA failed to conduct a review in accordance with the Act because the purported review by the IAA was not free of apprehended bias (ground one). Further, he contends that the IAA did not conduct a review in accordance with the Act because it did not actually review the refusal decision (ground two). He further submits that the IAA failed to notify him that the review would go beyond the refusal decision of the delegate and thereby occasioned him procedural unfairness which resulted in jurisdictional error (ground three). It is further submitted that the decision of the IAA was illogical and irrational (ground four) and finally that the IAA erred by failing to ask itself the correct questions with respect to s.91WA of the Act (ground five).
With respect to ground one, Mr Brooks for the applicant submitted that the limited form of review provided for a fast-track applicant is required to be conducted by the IAA in a manner which is free of bias. When the Minister notified the applicant that the decision to refuse his application had been referred to the IAA, it described that body as “an Independent Office within the Migration and Review Division (MRD) of the Administrative Appeals Tribunal …”.[4]
[4] CB p 120.
By virtue of s.473JA(1), the IAA is established within the Migration and Review Division of the AAT (‘the Tribunal’). The Tribunal is established by the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’). A member of the Tribunal is appointed by the Governor General and performs that office in accordance with the AAT Act.[5]
[5] Sections 5A and 6.
The limited review conducted by the IAA was conducted and determined by a Reviewer. A Reviewer is not a member of the Tribunal but rather is employed as a Commonwealth public servant engaged under the Public Service Act 1999 (Cth) (‘the PS Act’).[6] For that reason, they are within the staff of the Tribunal and the statutory agency, the head of which agency is the Registrar of the AAT.[7]
[6] Section 473JE.
[7] Section 24N(2).
As a Commonwealth public servant, a Reviewer is required to comply with directions from the person within their Agency with authority to give such direction.[8] An Agency’s Head has the power to give directions, including to determine the terms of conditions of employment and the duties of a Reviewer.[9] Both the Registrar and a Reviewer are subject to Commissioner’s Directions.[10] Further, the Minister may give written directions to a Reviewer[11] and also to an Agency Head.[12]
[8] Section 13(5) of the PS Act.
[9] Sections 24 and 25 of the PS Act.
[10] Section 42(2) of the PS Act.
[11] Section 499 of the Act.
[12] Subject to the limitations in ss.19 and 21 of the PS Act.
It is submitted that a decision made by a Reviewer who is engaged under the PS Act, and who is not a member of the Tribunal, is not a review decision made independent of the Minister, or alternatively is a review or decision that gives rise to a reasonable apprehension that the review or decision is not free from bias. For that reason, it is submitted that a fair minded informed observer might reasonably apprehend the possible impartiality of a Reviewer (who is a Commonwealth public servant) in respect of a decision of the first respondent (who is a Minister of the Commonwealth) because of a perceived lack of independence; or incompatibility.
The applicant referred the Court to a number of authorities, in particular, Ebner v Official Trustee in Bankruptcy[13] where the High Court made the following observation:
“It was said earlier that the fundamental principle to which effect is given by disqualification of a judge is the necessity for an independent and impartial tribunal. Concepts of independence and impartiality overlap, but they are not co-extensive. In order to maintain both the reality and the appearance of independence, as well as impartiality, there must be a prohibition upon a judge sitting in a case to which he or she is a party, and that would include a case where one of the parties on the record is a nominee or alter ego of the judge.”[14]
[13] (2000) 176 ALR 644.
[14] Ibid at para [60].
The decision in Ebner was considered in North Australian Aboriginal Legal Aid Service Inc. v Bradley[15] where Gleeson CJ had this to say:
“The fundamental importance of judicial independence and impartiality is not in question. It was recently affirmed by this court in Ebner v Official Trustee in Bankruptcy. It was declared in Art 2.02 of the Universal Declaration of the Independence of Justice and in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region. The content of the principle that citizens have the right to have disputes decided by an independent and impartial tribunal has been examined in cases concerning Art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and s 11(d) of the Canadian Charter of Rights and Freedoms. In Porter v Magill, the House of Lords cited the statement of the European Court to the effect that, in considering whether a tribunal is independent, regard must be had inter alia to the manner of appointment of its members and their term of office, and the existence of guarantees against outside pressures. The Supreme Court of Canada has said that “[t]he manner in which the essential conditions of independence may be satisfied varies in accordance with the nature of the court or tribunal”. It has also pointed out that “[c]onceptions have changed over the years as to what ideally may be required in the way of substance and procedure for securing judicial independence in as ample a measure as possible”. Within the Australian judiciary, there are substantial differences in arrangements concerning the appointment and tenure of judges and magistrates, terms and conditions of service, procedures for dealing with complaints against judicial officers, and court administration. All those arrangements are relevant to independence. The differences exist because there is no single ideal model of judicial independence, personal or institutional. There is room for legislative choice in this area; and there are differences in constitutional requirements. For example, s 72 of the Constitution does not permit the appointment of federal acting judges. On the other hand, acting judges are commonly appointed for fixed, renewable, terms in some state and territory courts. This court decided in Re Governor, Goulburn Correctional Centre; Ex parte Eastman that acting judges may be appointed in the Supreme Court of the Australian Capital Territory. In the Northern Territory, the legislation with which this case is concerned provides for the appointment of acting magistrates: s 9. (The legislation also provides for the appointment of justices of the peace as Special Magistrates: s 14.)
The role of the magistracy in the administration of civil and criminal justice in the various Australian jurisdictions continues to evolve. In New South Wales, Governor Phillip held a commission as a justice of the peace. From the foundation of that colony, stipendiary magistrates, as well as administering justice in summary proceedings, had extensive administrative responsibilities. Originally, they were organised as part of the colonial, and later State, public service. It was not until 1955 that new recruits to the New South Wales magistracy had to be legally qualified. In 1986, New South Wales magistrates were taken out of the public service, and given structural independence, including judicial tenure. A turning point in the history of the Northern Territory magistracy was the 1976 decision in Fingleton v Christian Ivanoff Pty Ltd, which exposed problems resulting from the circumstance that, in the South Australian public service, magistrates and prosecuting officers were members of the same department. This decision led to the removal of Northern Territory magistrates from the public service by the legislation presently under consideration.”[16]
(citations omitted)
[15] (2004) 206 ALR 315.
[16] See also Isbester v Knox City Council (2015) 147 ALD 93; Forge v Australian Securities and Investments Commission (2006) 229 ALR 223.
It was submitted that the effect of the legislative scheme was such that a review by a Reviewer (who was a Commonwealth public servant) about a decision of a Minister of the Commonwealth in which the Reviewer may affirm or remit the Minister’s decision with directions to the Minister would purport to place a Commonwealth public servant in a position of directing a Minister of the Commonwealth in respect to the making of a decision by the Minister under the Migration Act. This would in effect be analogous to a stream rising above its source.
With respect to ground two, the applicant contends that under s.473CC of the Act, only a “fast-track reviewable decision referred to the Authority [the IAA] under section 473CA” is reviewable. In other words, the IAA must review the actual decision referred to it under s.473CA. The preconditions for review by the IAA are that the Minister must decide that the decision is a fast-track reviewable decision and once that decision has been made, must refer the decision to the IAA automatically. That process requires the Minister to have formed a view that the applicant is not an “excluded fast-track review applicant”. An excluded fast-track review applicant cannot be the subject of a fast-track reviewable decision subject to s.473BC. The term ‘excluded fast-track review applicant’ includes a person who in the opinion of the Minister:
“Without reasonable explanation provides, gives, or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application”.[17]
[17] Section 5.
In this matter, the delegate of the Minister concluded that the applicant was a fast-track review applicant. In other words, the delegate did not make a decision that the applicant was an excluded applicant on the basis of s.91WA of the Act relating to a bogus document or documents. With the exception of the power conferred by s.473BC, the Minister cannot refer an excluded fast-track review applicant for review and the applicant submits, it is functus officio in respect of deciding that an applicant is not an excluded fast-track review applicant and is thus entitled to a review of the refusal decision.[18]
[18] Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 160 ALD 418 at para [155], [165] & [236].
The applicant contends that rather than reviewing the decision referred to it, the IAA reviewed whether s.91WA applied to the applicant.
The applicant accepts, as it must, that what is meant by a ‘review’ in Part 7AA of the Act with respect to a fast-track reviewable decision, will depend upon the context of the matter.[19]
[19] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [10]; Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245.
He submits that the context for the ‘review’ in this matter comes from the provisions applicable to Part 7AA – fast track review process of the Act which provides a significantly more limited process of review by than that created by Part 5 and Part 7 of the Act. The more limited nature of the review provided for fast-track review decisions supports its submission that in this matter the IAA failed to review the decision referred to it.
As to ground three, the applicant submits that given the delegate of the Minister was satisfied that the applicant had not provided bogus documents, and for that reason was not an excluded fast-track applicant, and had provided the applicant with a copy of the reasons for its assessment, it was an error on the part of the IAA to fail to advise and seek information from the applicant about its intention to consider s.91WA. The applicant submits that there is nothing within the refusal decision, or any notification given to it by either the first or second respondents to suggest that the character of the documents or the identity of the applicant as accepted by the delegate would be an issue in the limited review to be conducted by the IAA. He notes that s.91WA was not referred to by the delegate of the Minister and if the Minister had been so satisfied that that section applied, it would have been dispositive of the visa application.
With respect to ground four, the applicant submits that the finding of the IAA, contrary to that of the Minister, that he had provided a bogus document as evidence of his identity, nationality or citizenship for the purposes of s.91WA(1)(a), and that he had “disavowed” the passport and ID card both as evidence of his correct identity and the identity in those documents was both illogical and irrational in the sense discussed in Minister for Immigration and Citizenship v SZMDS.[20] This was so, it was submitted, because there was no basis for finding that the applicant had disavowed the documents and identity. The fact that there were differences in the English spelling of the names in those documents was not determinative of the veracity of those documents or the identity of the applicant.
[20] (2010) 240 CLR 611.
With respect to ground five, the applicant contends that the IAA asked itself the wrong question and identified the wrong issues. It is submitted that the question that the IAA effectively asked itself was whether the grant of a temporary protection visa is prevented by other than the basis on which the first respondent had decided, namely by reason of s.91WA. The question that should have been asked was whether there was evidence and a reasonable basis by which the first respondent decided that the applicant was not a person in respect of whom Australia had protection obligations. With respect to the review that was conducted by the IAA, the applicant relies upon the arguments he raised with respect to ground two.
It was submitted that if the Reviewer was entitled to ask whether s.91WA applied, then the appropriate question was whether there was a reasonable basis or evidence by which the delegate of the Minister could reasonably have decided that the applicant had not provided, given, or presented a bogus document.
It is appropriate at this point to set out the terms of s.91WA which provide as follows:
“(1)The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a)the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b)the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2)Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a)has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b)either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3)For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.”
The applicant submits that the IAA was required to “consider whether the applicant has a reasonable explanation …”[21] In fact, the IAA asked itself whether it was “persuaded” and whether the applicant had “provided convincing explanations.”[22] In the applicant’s submission, the IAA erred in approaching the issue in that way. The question was whether the applicant had a reasonable explanation which required the IAA to focus its mind on the reasonableness of the explanation and not whether it was persuaded or convinced. The decision of the IAA could not be said to fall within a range of possible acceptable outcomes which were defensible with respect to both the facts and the law.[23]
[21] Section 91WA(2)(a).
[22] CB pp 161 - 162 at paras [15] - [16].
[23] Li, op cit at para [105].
First respondent
In the submission of the first respondent, implications of ground one are that the applicant is asserting that all decisions of the IAA necessarily give rise to apprehended bias which, it submits, is misconceived. The first respondent makes the uncontroversial submission that apprehended bias must be firmly established, that such an allegation must be distinctly made and clearly proved.[24] Mr O’Leary submitted that the test was whether a fair minded lay observer might conclude that the decision maker might not decide the issue with an open or impartial mind.[25]
[24] MZZXM v Minister for Immigration and Border Protection [2016] FCA 405 at para [106].
[25] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Isbester op cit; ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30.
Citing is Isbester, the first respondent submits that the test is a two-step process. The first step requires identification of what it is alleged might lead a decision maker to decide a case other than on its merits. The second step requires the articulation of the logical connection between the relevant disabling quality and the feared deviation from deciding the case on its merits.[26]
[26] Isbester op cit at para [21].
In Mr O’Leary’s submission, the only relevant logical connection asserted by the applicant is the fact that the IAA reviewer is engaged under the Public Service Act by virtue of s.473JE(1). In the first respondent’s submission, s.473JB provides a complete answer to the applicant’s contention in that regard. That section provides as follows:
“(1)The President and the Division head are responsible for the overall operation and administration of the Immigration Assessment Authority and, for that purpose, either of them may issue directions or determine policies.
(1A)If a power or function is conferred on the President under this Part, the power may be exercised, or the function performed, by either the President or the Division head.
Example: The Division head may exercise the President’s power to make a direction under section 473FC (Guidance decisions).
(2)The Senior Reviewer is to manage the Immigration Assessment Authority subject to the directions of, and in accordance with policies determined by, the President or the Division head.”
By virtue of s.473JA(1) the IAA is established within the Tribunal. The administrative arrangements established by s.473JB are antithetical to the proposition that a fair minded lay observer may conclude that a decision maker might not decide the issue with an open and impartial mind.
The first respondent submits that the authorities relied on by the applicant are not applicable, none of them dealing with either the AAT or the IAA. Unlike a court, the IAA is an inquisitorial body which exercises the powers of the original decision maker to ensure that a correct or preferable decision is made with respect to the substantive application.[27] Further, it was submitted that the applicant’s reliance on Isbester was misplaced because in that case, the relevant decision maker was disqualified because she had participated in an earlier stage of the decision making process which gave rise to the relevant conflict of interest. Clearly that reasoning does not apply here, because the Reviewer did not participate in the decision made by the delegate. Mr O’Leary submitted that reviewers are not subject to direction by the Minister and have no interest in the outcome of the decisions they make by virtue of s.473CC(2). They are given statutory authority to exercise dispositive power in the same manner as the AAT.
[27] Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15 at para [18].
The first respondent submits that ground two of the application is based on an erroneous premise because s.473CC(1) provides that the IAA must review the ‘decision’ of the delegate and not the reasons of the delegate. Further, the nature of the review provided for under Part 7AA is not limited to the issues identified by the delegate. Rather, the IAA must consider the substantive basis for the application under s.36(2) for the purpose of determining whether the correct or preferable decision was made by the delegate under s.65 of the Act.[28] It is necessary for the IAA to be able to determine those substantive issues in order to determine which of its dispositive powers to exercise under s.473CC(2).[29] The first respondent submits that there is no textural or contextual support for the proposition that the applicant advances, namely that once a delegate has made a decision the IAA is bound by that decision and is precluded from reviewing the substantial criteria applicable under s.65 of the Act.
[28] It should be noted that this submission was made before the Full Court delivered its judgment in BMB16, to which I will refer later in these reasons.
[29] BMB16 v Minister for Immigration and Border Protection [2017] FCCA 203 at para [97] – [100].
The first respondent submits that ground three stands to be dismissed on the same basis as ground two, namely the mistaken assumption that the IAA is precluded from reviewing the substance of the visa application when determining whether to affirm the delegate’s decision or exercise the dispositive power under s.473CC(2)(b). The first respondent also takes issue with the assertion that the applicant was not provided with notice that the status of his passport or identity document may be an issue before the IAA. In the Minister’s submission, the applicant was clearly on notice that there were issues with respect to his identity and the documents that he relied on when he appeared before the delegate. It submits that an analogous factual scenario was dealt with by the Federal Court in DBE16 v Minister for Immigration and Border Protection[30] where the Court, noting that there is no equivalent of s.424A of the Act in Part 7AA, found that the IAA appeared not to be required to give an applicant particulars of any information that it considered would be the reason or part of the reason for affirming the decision under review.[31]
[30] [2017] FCA 942.
[31] Ibid at para [63].
This is particularly so, it was submitted, because s.473DA provides an exhaustive statement of the natural justice hearing rule in relation to reviews. In addition, s.473DA(2) provides that there is no obligation on the IAA to provide information to an applicant that was before the delegate. The passport and ID document clearly fell into that category.
With respect to ground four, the Minister submits that the IAA had before it copies of the relevant documents and that it was open to it and therefore not illogical or irrational to conclude that those documents were ‘bogus’. It submits that the applicant’s focus on, or the use of the word ‘disavowed’ is an example of reading a decision with an eye too keenly attuned to the perception of error. The applicant’s reading of the decision and reasons is unduly narrow and in effect amounts to a request for a merits review.
Finally, with respect to ground five, the Minister disputes that the IAA asked itself the wrong question, or identified the wrong issues. It submits that the use of the words “persuaded” and “convincing explanations” read in the context of the decision as a whole are simply a concise way of describing why the IAA was not satisfied that a reasonable explanation existed for the purpose of s.91WA(2)(a).
Consideration
Ground one
It is well settled that the test for apprehended bias is whether a fair minded and properly informed lay observer might reasonably apprehend that the decision maker might not decide the relevant issue with a fair, impartial and independent mind on its merits.[32]
[32] Ebner, op cit; ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30; Isbester op cit; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283.
As submitted by the first respondent, at least two steps are involved in considering a case alleging apprehended bias:
a)The identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits; and
b)An articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits.[33]
[33] Ebner, op cit.
Such an allegation must be distinctly made and distinctly proved.[34]
[34] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507.
The rationale underlying the law has been explained by Allsop CJ in this way:
“The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome)”[35]
citations omitted
[35] SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at para [2].
In this matter, the only fact which is said might lead the reviewer to determine the outcome of a review contrary to its legal and factual merits is that reviewers are engaged under the PS Act. The applicant has not articulated a logical connection between that fact and the feared deviation of a course of deciding the case on its merits. To my mind, that logical connection is not made simply because a reviewer is not a member of the AAT. As the first respondent has submitted, the IAA is established within the AAT.[36] Both the President of the AAT and the Division Head of the Migration and Refugee Division of the AAT are responsible for “the overall operation and administration of the [IAA] and for that purpose either of them may issue directions to determine policies …”.[37] Further, the Senior Reviewer of the IAA manages it subject to the direction of and according to policies determined by the President or the Division Head.[38] In my view, those administrative arrangements are sufficiently clear to dispose of the allegation of apprehended bias in the mind of a fair minded lay observer cognisant of those arrangements. The circumstances of this matter can be clearly distinguished from, for example, those in AMA16 v Minister for Immigration and Border Protection[39] in which the IAA was provided with the relevant and highly prejudicial material by the secretary of the Department of Immigration and Border Protection in the form of internal Departmental communication which contained information that could have no possible bearing on the question of whether the applicant faced serious or significant harm in his country of origin. In that matter, the logical connection between the material provided and its feared ability to cause the IAA to deviate from determining the case on its merits, was with respect, practically self-articulating. The same can be said for the circumstances in Isbester, where the decision maker had presided over an earlier aspect of the decision making process. I am not satisfied in this matter that the allegation of apprehended bias has either been distinctly made or distinctly proven. I dismiss ground one.
[36] Section 473JA(1).
[37] Sections 473BB & 473JB(1).
[38] Section 473JB(2).
[39] [2017] FCCA 303.
Ground two
Since this matter was argued, BMB16[40] has been subject to an appeal before the Full Court.[41] In that matter, the appellant argued that the review function of the IAA was confined to the detection and correction of error effecting only the issues considered determinative by the delegate, subject only to the exercise of limited discretionary power.[42] It was submitted by the appellant that the IAA had misconstrued its jurisdiction by making a finding of fact inconsistent with a finding made by the delegate which had been in favour of the appellant and having done so, failed to conduct a ‘review’ of the delegate’s decision. The primary judge had rejected that submission and found that the IAA had jurisdiction to conduct the same form of review as the AAT, being a fresh consideration of the visa application in order to arrive at “the correct and preferable decision on the material before it”. The Full Court rejected that finding but upheld the finding of the primary judge that the IAA was entitled to affirm the decision of the Reviewer for different reasons to those found by the Reviewer without first detecting error in the decision under review.[43]
[40] BMB16 v Minister for Immigration and Border Protection [2017] FCCA 203.
[41] BMB16 v Minister for Immigration and Border Protection (2017) 157 ALD 494.
[42] Ibid at para [43].
[43] Ibid at para [45].
In considering the ambit of a review under Part 7AA, Besanko J made the following observation:
“… If the Authority considers the matter afresh and concludes that the decision of the delegate was correct, albeit for different reasons, then the Authority affirms the decision. As counsel for the first respondent pointed out, it is the decision which is affirmed, not the reasons of the delegate. If, on the other hand, the Authority reaches a different decision, then it remits for reconsideration with permitted directions or recommendations …”[44]
[44] Ibid at para [31].
Her Honour Charlesworth J described the review process undertaken by the IAA in that matter as follows:
“It is clear from the content and tenor of its reasons that the Authority did not perform a supervisory role limited to the detection and correction of errors affecting the decision under review. Rather, the Authority engaged in a de novo merits review, at least in respect of the question of whether the appellant satisfied the Refugee Criterion or the Complementary Protection Criterion. In the course of doing so, the Authority rejected the appellant’s claim that he had been the subject of threats without first identifying any error affecting the delegate’s conclusions in respect of that aspect of the appellant’s claims.”[45]
[45] Ibid at para [57].
In considering the review function to be performed by the IAA, Charlesworth J had this to say:
“[87] The Authority’s obligation to “review the decision” is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative. The Authority otherwise has no power to determine that the correct and preferable decision is one granting the referred applicant a visa. Accordingly, the Authority cannot perform a “full merits review” of the s 65 decision.
[88] However, it does not follow that in the performance of its review function, the Authority may not depart from findings of fact made by the Minister that bear upon the question of whether the particular criterion under consideration is met without first identifying an error affecting the Minister’s findings. There is nothing in the text, context or purpose of the provisions at issue to support that construction.”[46]
[46] Ibid at [87] – [88].
In considering the dispositive powers of the IAA under s.473(2)(b), namely the power to remit a decision for reconsideration with directions permitted by regulation, her Honour continued:
“…. The Authority is to be assumed to have such powers as are necessary for the proper discharge of its functions, which include the function of considering whether to remit the decision for reconsideration in accordance with a direction that the appellant “must be taken to have satisfied the criteria for the visa that are specified in the direction”. The power to give such a direction is one that, by necessary implication, includes a power to consider all of the issues arising on the material before the Authority that bear upon the question of whether the referred applicant satisfies either the Refugee Criterion or the Complementary Protection Criterion. The same may be said of the Authority’s power to affirm the decision under review. In order to perform the function of considering whether the original decision should be affirmed, the Authority must be presumed to have such powers as are necessary to determine that an essential criterion is not fulfilled, whether for the same reasons furnished by the Minister or on the basis of alternative findings fairly open on the review material.”[47]
[47] Ibid at para [94].
In this matter, the finding of the delegate that s.91W(2) did not apply,[48] and that there was no evidence before her that indicated the applicant had provided, given or presented a bogus document to an officer of the Department or the Minister[49] was part of the decision made by the delegate in considering the applicant’s claims and determining that the applicant did not meet the criteria for a temporary protection visa. That being the case, and applying the reasoning of the Full Court in BMB16, it was open to the IAA to consider the evidence relating to identity and the documents provided to establish identity and make a contrary finding, as it did, that section 91WA did apply to the applicant. It then affirmed the decision of the delegate, albeit for different reasons. It did not fail to conduct a review in accordance with the Act. For that reason, I dismiss ground two.
[48] CB p 130 at para [22].
[49] CB p 149 at [140] –[141].
Ground three
There is no dispute that the IAA did not put the applicant on notice of the fact that it was reconsidering the application of s.91WA to his circumstances. I have considered the decisions of the Full Court in Minister for Immigration and Border Protection v CRY16[50] and the Minister for Immigration and Border Protection v DZU16.[51]Both matters deal with relocation findings by the IAA. In CRY16 the IAA affirmed the decision of the delegate on a different basis to that found by the delegate. Whereas the delegate did not accept that the applicant faced a real chance of persecution or a real risk of significant harm, the IAA found that the applicant’s fear of harm did not relate to all areas of his country of origin and that he could relocate to another area. The question of relocation had not been considered by the delegate. The Court found that it was unreasonable in the circumstances for the IAA not to consider getting documents or information from the applicant on that matter pursuant to s.473DC. Similarly, in DZU16, the question of relocation to a particular city had not been explored by the delegate. The Court considered CRY16 and concluded that the principles in that matter were applicable to the applicant DZU16 that it was unreasonable not to have considered the exercise of the power in s.473DC.
[50] [2017] FCAFC 210.
[51] (2018) 357 ALR 474.
There is an important feature that distinguishes those cases from this matter. Both dealt with the question of relocation in circumstances where that matter had not been raised with the applicant and it was in that context that the failure to consider exercising the power in s.473DC was unreasonable. That was because:
“… the Authority was considering whether it would be safe for the review applicant to relocate within a country in circumstances where he might otherwise be entitled to protection, and whether it would be reasonable in the sense of “practicable” for him to do so. This depended upon the particular circumstances of the respondent, the applicant for refugee status, and the impact upon that person of relocation of the place of residence within the country of nationality (citations omitted). …”[52]
[52] DZU16, op cit, at para [81]; See also CRY16, op cit, at para [66].
In this matter, as the first respondent has submitted, the question of bogus documents had been considered by the delegate who had requested and received further information from the applicant. The question of his identity and the integrity of the documents he relied on had been a live issue when he appeared before the delegate. The IAA was under no obligation to give the applicant any material that was before the delegate when the refusal under s.65 was made.[53]
[53] Section 473DA(2).
This ground is framed by the applicant in terms that evoke considerations of natural justice and procedural fairness. Section 473DA is an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the IAA. Accordingly, a challenge to the failure to advise the applicant and seek information from him pursuant to s.473DC must be measured against the question of legal unreasonableness.[54] I am not satisfied in the circumstances that it was legally unreasonable for the authority not to consider inviting the applicant to give new information as provided in s.473DC(3). Further, to the extent that the IAA acknowledged that it had considered some new information relating to various languages and the Pashtun ethnic group, that information was not specifically about the applicant, rather about a class of persons of which the applicant may or may not have been a member. Accordingly, the IAA was not required to give that information to the applicant.[55]
[54] DZU16, op cit at para [99].
[55] Section 473DE(1) and (3).
I am not satisfied that jurisdictional error has been established with respect to this ground and I dismiss it.
Ground four
Ground four can only succeed if the applicant can establish that the finding as to bogus documents was not open to the IAA on the evidence, in other words, not based on findings and inferences supported by logical grounds.[56] It is well established that emphatic disagreement with a decision is not sufficient to ground a finding of irrationality or illogicality.[57] What is required is that the decision be one which no rational or logical decision maker could arrive at on the same evidence and which is akin to a decision that is clearly unjust, arbitrary or capricious.[58] That principle has also been expressed in terms of the need to demonstrate “extreme illogicality”:[59]
“… the ground of “engaging in a process of reasoning that was illogical, irrational and not based on findings or inferences of fact supported by logical grounds” is to be taken to refer to extreme illogicality or irrationality, measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the tribunal.”
[56] Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) ALR 12 at para [38]; Minister for Immigration and Border Protection v SZMDS (2010) 115 ALD 248 at para [40] & [102].
[57] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at para [40]; Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59; SZMDS op cit at para [129].
[58] SZMDS op cit at para [130].
[59] Minister for Immigration and Citizenship v SZRKT [2013] 212 FCR 99 at para [148]; See also Minister for Immigration and Border Protection v SZUXN [2016] FCA 516; CQG15 v Minister for Immigration and Border Protection [2016] 253 FCR 496.
Applying the above principles, I am satisfied that the finding as to bogus documents was illogical and or irrational. The material before the IAA showed variations in the names given by the applicant since arriving in this country. The Reviewer made the following findings and observations:
“10.Although the ID card and passport state the applicant’s identity is H1 (alternatively spelt H2), at the TPV interview, the applicant told the delegate his name was not H1 (alternately spelt H2). He said his correct name is that his given name is H1. His family name is H3. He also has a clan name of Y. I note the applicant used H1 as his given name and Y as his family name in the TPV application forms. In a statement accompanying his TPV application (“the TPV Statement”) he used H1 and H3. The TPV statement referred too to the use of the clan name Y.
11.The evidence before me then is the applicant has disavowed the passport and ID card as evidence of his correct identity. He claims his name is not H1 (alternatively spelt H2). He claims his given name to be H1 and his family name to be H3. As the applicant himself has disavowed the identity in the passport and the ID card, I reasonably suspect the passport and the ID card purport to have been, but were not, issued in respect of the applicant. The passport and ID card do not correctly identify the claimed identity of the applicant. I therefore find the passport and the ID card are bogus documents for the purpose of s.5(1). I further find the applicant has provided the passport and ID card as evidence of his identity, nationality or citizenship as part of his TPV application. It follows I find the applicant has provided a bogus document as evidence of his identity, nationality or citizenship for the purpose of s.91WA(1)(a).”[60]
[60] CB pp 160 to 161 at paras [10] & [11].
The IAA had before it the same information available to the delegate. The delegate had noted six variations in name, spelling of the names and at least three alternative dates of birth.[61] The delegate recorded the applicant’s explanations as to his name and the discrepancies in his date of birth.[62] Whilst I accept the applicant’s submission that the difference between the spellings of his name in the passport and ID card may not of itself be determinative, it should be noted that this was not the only anomaly considered by the IAA. The Reviewer also considered the explanation as to H1 being his given name and H3 being is family name, as well as the failure of the applicant to provide his original passport.[63] However, I am of the view that the conclusion by the Reviewer that the applicant had ‘disavowed’ the passport and ID card as evidence of his correct identity is problematic. With respect, I do not accept the submission by the first respondent that the reference to a disavowal was simply a reference to the fact that the applicant had provided explanations inconsistent with the documentary evidence provided.
[61] CB p 131.
[62] CB pp 131 to 132.
[63] CB p 160 at para [10].
In my view, a fair reading of paragraph 11 of the Decision and Reasons strongly suggests that the Reviewer’s conclusion that the applicant had disavowed those documents as evidence of his identity was a significant part of the reason for concluding that the documents were bogus. The Reviewer himself made that link in his reasons describing it as a matter that caused his suspicion to be reasonable. Further, I am not convinced that categorising the applicant’s explanations with respect to those documents as a disavowal of them as evidence of his correct identity is simply an error within jurisdiction. The applicant provided explanations that were directed towards explaining the anomalies in the spelling and names. I regard it as illogical and irrational in the legal sense that the Reviewer should conclude on the evidence before him that the applicant had disavowed those documents as evidence of his correct identity. On the face of it, his explanations appear to have done no such thing. In my view, the only logical and rational conclusion that could have been reached with respect to his reliance or otherwise on the documents was that he did rely on them as evidence of his correct identity but that he was providing an explanation for discrepancies of the description of his name and correct spellings. Further, it was illogical and irrational to conclude that such “disavowal” gave rise to a reasonable suspicion that the documents purported to have been but had not been issued in respect of the applicant. I am satisfied that the applicant has established jurisdictional error in relation to ground four.
Ground five
I dismiss ground five. Firstly, I reject the submission for reasons that I have already given, that the Reviewer was wrong to consider whether the grant of a temporary protection visa was prevented by other than the basis upon which the first respondent had decided. I accept the submission of the first respondent that the Reviewer’s use of the words “persuaded” and “convincing explanations” are no more than a shorthand description by the IAA of the reasons for which it was not satisfied that a reasonable explanation for the purposes of s.91WA(2)(a) existed. I am satisfied that the IAA engaged in the statutory tasks required of it by s.91WA and that it did not identify the wrong issue or ask itself the wrong question. Rather, it was in the application of the statutory tasks that the IAA fell into error as I have described in relation to ground four.
Accordingly, I make the orders to be found at the beginning of these reasons.
I note that counsel for the applicant, Mr Brooks, and his instructor Ms Cox both appeared pro bono. It is appropriate for me to acknowledge the considerable assistance they provided to the Court.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Date: 8 February 2019
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