CZC19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor

[2022] HCATrans 97

[2022] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S177 of 2021

B e t w e e n -

CZC19

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MAY 2022, AT 1.30 PM

Copyright in the High Court of Australia

MR D.H. GODWIN:   May it please the court, I appear MR T.J. DAVIE for the applicant.  (instructed by David Godwin)

MR J.B. KAY HOYLE:   May it please the Court, I appear on behalf of the first respondent.  (instructed by Clayton Utz)

KIEFEL CJ:   Yes, Mr Godwin.

MR GODWIN:   Thank you, your Honour.  Slightly unusually in this case, the applicant is seeking an order nunc pro tunc that the filing of the application is within time.  The circumstances surrounding the filing of this application were set out in an affidavit at application book pages 78 to 79.  The bottom line was that all the documents and the filing fee were lodged in the Registry, but they were under two different lodgement portals because of a technical issue ‑ ‑ ‑

KIEFEL CJ:   I see.

MR GODWIN:   ‑ ‑ ‑ and Registry could not accept it.

KIEFEL CJ:   Is there any problem with that, Mr Kay Hoyle?

MR KAY HOYLE:   No, there is not, your Honour.

KIEFEL CJ:   You have the extension of time sought.

MR GODWIN:   It is actually a deeming of filing the application within time.

KIEFEL CJ:   Deeming it to be in time?

MR GODWIN:   Yes.

KIEFEL CJ:   Very well.

MR GODWIN:   Thank you, your Honour.  Your Honour, there are two grounds before the Court.  We say these are independent of each other and so one or the other or both could ground special leave. 

In this case, the evidence given by H, the brother of the applicant, was capable of directly or indirectly rationally affecting assessment of the probability of the existence of some facts about which the Authority might be required to make a finding.  It was thus relevant within the meaning of section 473CB(1)(c).

Review material within the scope of 473CB(1)(c) is not confined to material that was before the Minister and for that proposition is this Court’s judgment in Plaintiff M174/2016 at paragraph 25.  The difficult recording of H’s evidence was material in the Minister’s possession.  It is not actually - because the brother’s delegate’s decision is not in the application book you cannot - that fact is not apparent on the papers, but it is apparent from that decision that there was a digital record made of the brother’s evidence.

KIEFEL CJ:   The trouble is the applicant did not make those claims himself.

MR GODWIN:   He did not give that evidence himself.  No, that is right.

KIEFEL CJ:   He did not make any claims based upon it.

MR GODWIN:   As I endeavoured to explain in the special leave application, the timing of events was that the brother gave evidence, followed by the applicant giving evidence.  Until they got the delegate’s decision, they did not realise that the delegate was not taking into account the brother’s evidence.  So, although he has not expressly said, “I want you to take into account all of my brother’s evidence”, the assumption was there on the part of the applicant.

GLEESON J:   Mr Godwin, at paragraph 80, page 59 of the application book, Justice Yates records that the appellant’s submission was that the brother’s interview and the information in it was before the Minister.  Is that an accurate statement of the submission or is there an issue about that?

MR GODWIN:   It is accurate to the extent that that was in the written submissions that the applicant made before Justice Yates.  I do not have a transcript of the way I put it specifically before Justice Yates, but my belief was that I drew his attention to it not necessarily having to be before the Minister in order for it to fall within 473BC.

GLEESON J:   Are you arguing that the Secretary considered the…..review and should have put that ‑ ‑ ‑

MR GODWIN:   Yes, that was the ground as framed below, that it was legally unreasonable for the Secretary not to consider that the digital recording of the brother’s evidence was relevant to the applicant’s case.  So, we say Justice Yates erred, in paragraph 82, by finding that the recording of H’s interview could not be material within 473CB(1)(c) ‑ ‑ ‑

GLEESON J:   But the application is not quite put like that, is it…..page 19 of the application book.

MR GODWIN:   The way it was put in the Federal Circuit Court is in some respects the same as before the Federal Court but, in the Federal Court, there was this additional ground in relation to section 473CB(1)(c).

GLEESON J:   Page 37- AB 37.

MR GODWIN:   Yes, it is ground 5 on AB 37.  When I start off saying that the two grounds put to this Court are independent of each other, the first ground in this Court is ground 5 in the Federal Court and it is completely separate.  It is a legal unreasonableness argument in relation to failure of the Secretary to provide the digital recording of the brother’s interview to the Authority.

GLEESON J:   Is it implicit in that that it could be put either on the basis that the records were before the Minister or that the Secretary considered them to be relevant to the review?

MR GODWIN:   It was not necessary for them to be before the Minister at the time but if it was, then, as long as it was relevant, the Secretary would have to provide it to the Authority.  That is the second way we say Justice Yates erred, in paragraph 82, because he construed the relevance of the purposes of 473CB(1)(c) as being framed by reference to what was before the Minister when it does not necessarily have to be before the Minister.  The reasons that the Authority gave at application book page 8, paragraph 11, for excluding the adviser’s account, included that it considered that the new information was:

no more than an assertion by the agent, not supported by any evidence from H -

Your Honours, what happened was when the applicant’s adviser learned that the delegate had not taken into account H’s evidence, he wrote a submission to the Authority and that submission effectively summarised H’s evidence to the delegate and it is that document that the Authority was looking at and one of the reasons it gave for excluding that as new information that did not need the 473DD test was that what the adviser had written was a second‑hand account of what H had said. 

So, what we say is that the outcome of this case could have been different if the information in H’s interview had been provided in the digital disc and that was the first‑hand account of what H had told the delegate.  Then the Authority may have taken a different view of the probative value of what H had said.  But in its reasoning for excluding the information under section 473DD it did not give it probative weight because it found it was in a second‑hand document - the adviser’s second‑hand account of what H had said.

We say this first question raises a matter of general importance, as it will give guidance to the Department as to what constitutes relevant information for the purposes of section 473CB(1)(c) and if not corrected will lead to information caught by the section not being provided by the Department to the Authority.  Further, the Federal Circuit and Family Court of Australia will be bound to follow the incorrect interpretation of the section, that being that in order for something to fall within 473CB(1)(c) it has to be before the Minister when, in fact, that is not the case.

Also, in considering what information to provide to the Authority, if there is another applicant whose claims are co‑dependent or intermingled with the applicant that the Department is considering whether to send the information to the Authority about, then the Department needs to bear in mind that that information from that other applicant’s matter may still be relevant to the applicant which the Department is considering referring material to the Authority about.

The second ground relates to 473DC(1)(b) and the words “before the Minister”.  The phrase “before the Minister” is expressly subject to a temporal limitation of when the Minister made the decision under section 65.  There is no further express limitation.  The word “before” in the phrase “before the Minister” is an ordinary English word.  A thing is before a person in a spatial sense if it is in front of them or in their presence. 

Justice Yates found no error in the Authority’s decision to not consider the information submitted by the adviser because the claims arising from that information had not been made by the applicant in his application.  He reasoned that the claims and the information concerning H’s evidence to the delegate was not before the Minister when the delegate made her decision.  The natural meaning of the word “before” encompasses information in the possession of the Minister which was not information in the applicant’s protection visa application if the information was in front of the Minister’s delegate at the time when they made their decision, as was the case here.

KIEFEL CJ:   Does it not have to be before the Minister in relation to the application in question?

MR GODWIN:   That is how Justice Yates has construed the section and we say by doing so he has added words to the section.

KIEFEL CJ:   The consequences of the construction for which you contend are quite wide, though?

MR GODWIN:   Your Honour, we say not necessarily so because 473BC(3) is conditioned by the need for the Minister to provide information that is relevant to the Authority – 473DC(1)(b) requires information to be relevant before it can be new information.

KIEFEL CJ:   But it has wide ramifications, does it not, because the way in which you are reading “before the Minister” simply means having an awareness of.

MR GODWIN:   Yes, within the temporal limitation of a reasonable time before the decision is made.  But the way we see the structure of the section is that the Authority is exercising its power under 473DC(1)(b) which requires relevance.  It follows that the universe of information the Authority has to make a determination about, whether it was before the Minister, is information relevant to the fast‑track review which it is undertaking.  The Authority will be greatly assisted by the fact that the Minister has to provide all relevant material within his or her possession under section 473CB(1)(c).

If the information is contained within that material, then it could be assumed, unless the contrary appears on the face of the material or by necessary inference, that the Minister’s delegate had the information in front of him or her when the decision was made.  It follows that if relevant information is not contained within the material provided by the Minister under section 473CB(1)(c) then it is unlikely to have been before the Minister.  However, that is subject to evidence to the contrary. 

Now that is the additional burden, if you like, that the Chief Justice is referring to.  So, the Authority says, “I am interested in this information because I think it is relevant”, consults the review material, if it is not there then it prima facie was not before the Minister and it has to exercise its power in 473DC to get it.  However, that is not necessarily the case.  There may be some other reason for it to believe that the material was before the Minister.

So, to apply the section the Authority first determines whether the information is relevant.  It next considers whether it is found within the review material.  If it is, then it is likely not new information.  If it is not in the review material, then, unless it has evidence to the contrary, it can proceed on the basis that it was not before the Minister.

GLEESON J:   How is it relevant unless the applicant indicates that he wishes to rely on that interview in his protection ‑ ‑ ‑

MR GODWIN:   Your Honour, in probably 99 per cent of cases it would not be because - it is just the special circumstances of this case where the interviews were consecutive, involved the same delegate and there was an implicit assumption that that delegate would be relying on the evidence of both of them.  It is only later that they find out that was not the case. 

GLEESON J:   But the Secretary would know about the implicit assumption.

MR GODWIN:   No, the Secretary did not.  But that did not stop the Secretary still considering that the evidence of H was relevant because clearly, given the nature of the claims made by both brothers, the applicant’s claim is entirely dependent on what H did in Iraq and communications by H about that.  In particular, one threat was made to the applicant about the brother undertaking tasks that the militia organisation wanted him to do, and that involved him freeing prisoners and giving people access to the green zone and that information itself was within H’s material, but not the applicant’s.  So, there is a clear interdependence between the two claims. 

If your Honours go to application book page 9 – sorry, before I take your Honours to that there is one other factor I have just recalled that is important and that is that H disclaimed his written statement.  So, it was because of that it was not ‑ ‑ ‑

KIEFEL CJ:   Well, they both did, did they not?

MR GODWIN:   They did, yes.  But it was not as if the applicant could have said well, here is H’s written statement to the delegate, I want you to take that into account, because at the time of the interview with the applicant, the only evidence as to what H’s case was, was his oral evidence to the delegate that had just been given.  So, it was not possible for the applicant – well, the applicant could have said “Yes, you have just heard his evidence, I want you to take it into account”.  But, just having been heard, it is understandable that that did not happen.  Had H not disclaimed his statement, and the applicant had not provided that statement to the delegate, yes, you could say, well, he is not relying on what H has said.  But that is not this case. 

So, I was taking your Honours to application book page 9.  If you can see at paragraph 14 there, that is the applicant’s oral evidence to the delegate, and you can see just by how many times H is referred to in that how co‑involved the two matters were.

Now, in this case, the Authority did not turn its mind to whether the delegate had H’s evidence before her at the time she made her decision about the applicant.  Had the Authority correctly applied the law, it could only have taken the view the information had been before the delegate and

thus, not new information and that it was not precluded from considering it.  We say this is material.  The Authority proceeded on the basis that there had been no approach to the father after the applicant and H had left Iraq.  The excluded information, if accepted, said otherwise. 

Further, the Authority made no findings at all upon the risk to the applicant from Al Qaeda arising from the brother’s actions against them.  It is worth noting that in the Authority’s decision it does make findings about Al Qaeda on application book page 15, paragraphs 39 and 41, to the effect that Al Qaeda is still operating in Baghdad and that the applicant, if he was to return to Iraq, even though he does not live in Baghdad, will have to travel through Baghdad to get to his home area.

We say that the question raises a matter of general importance as it will give guidance to the Authority as to the scope of information it is able to consider without using its power under section 473DC of the Act.  Those are the submissions.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn briefly to determine the course that it will take.

AT 1.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.52 PM:

KIEFEL CJ:   We need not trouble you, Mr Kay Hoyle.

MR KAY HOYLE:   May it please the Court.

KIEFEL CJ:   In our view the decision of the court below is not attended with sufficient doubt to warrant the grant of special leave.  Special leave is refused with costs.

The Court will now adjourn.

AT 1.53 PM THE MATTER WAS CONCLUDED