DDG17 v Minister for Home Affairs & Anor

[2020] HCATrans 82

[2020] HCATrans 082

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S309 of 2019

B e t w e e n -

DDG17

Applicant

and

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON FRIDAY, 12 JUNE 2020, AT 9.34 AM

Copyright in the High Court of Australia

MR E.G.H. COX, SC:   If your Honour pleases, I appear with MR M.D. SWANSON for the applicant.

MR G.J. JOHNSON:   If the Court please, I appear for the first respondent.  (instructed by HWL Ebsworth Lawyers)

NETTLE J:   Yes, Mr Cox.

MR COX:   Your Honours, the question that arises, we say, is the question of when a decision‑maker not under a duty to make inquiries of third parties is required as part of the review to exercise the discretion under section 473DC to get further documents was not considered in this Court’s earlier decisions in either SZIAI or SZGUR as to the scope of jurisdictional error.

In Minister for Immigration v SZIAI [2009] HCA 39 the question of principle is set out in the judgment at paragraph 25 that we have quoted in the written submissions in the application book at page 69 in paragraph 21 where the Court identified three circumstances where the exercise of the discretion may arise and the three matters identified were an obvious inquiry related to a critical fact where the existence of information could be easily ascertained. The question did not need to be considered further.

Similarly, in Minister for Immigration v SZGUR the question was identified but because of an assumption made by the Federal Court it was not pursued further.  The way in which we say it arises for consideration in this application is once the Authority in conducting their review was concerned about the applicant’s credibility and proposed a question of recent invention; it directly raised the question of what other versions the applicant had provided to international bodies such as the UNHCR or the Red Cross.  The summary of ‑ ‑ ‑

GORDON J:   Mr Cox, may I just ask one question before you undertake that analysis?

MR COX:   Yes, your Honour.

GORDON J:   What is the information, or new information, that gives rise to this obligation?  When I read your submissions there seemed to be three potential matters raised.  One was the representation itself.  The second was, in a sense, what your client had told the international organisations.  The third was what information might be gained from them.  Fourth, was what Justice Abraham seemed to describe as unspecified further material.  What are we actually dealing with here to give rise to this obligation in order to engage that relevant part, Part 7AA?

MR COX:   Yes, your Honour.  So, we say it arises from the submission that was made by the applicant to the Authority – which is set out in paragraph 15 of the Federal Court’s judgment which is on application book, page 49.  That, as your Honour points out, gives rise to three potential sources of information.  One is, in a sense, the version that the applicant provided to the UNHCR, the IOM, the United Nations or Red Cross.  Now, that version itself would not have been relevant before the Minister’s delegate, as her Honour observes at paragraph 23 of the judgment, but we say that became a critical fact once the question of recent invention was raised by the Authority.

Once the Authority decided to say, well, there is a concern about the inconsistencies between the 2013 version provided on the invalid application and the version provided in support of the visa application for the 2016 application, the Authority necessarily had to consider whether the earlier version provided to the UN authorities – which had been made aware – the Authority became aware of by reason of the representation quoted in paragraph 15 of the judgment – as a matter of reasonableness to the applicant in determining the review application, it was necessary to consider what prior versions might support the absence of recent invention.  The reason we say that was open in this case was because it was not simply that an application had been registered with the international bodies, but it had been accepted.

GORDON J:   How do we know that?  And how do we know what date that occurred?

MR COX:   The information that was available to the Authority and the Minister is summarised in the Federal Court judgment at paragraph 24.  We know – and it is on page 51 of the application book at about line 40, in paragraph 24.  There was a letter communicating with the Red Cross in 2005, a Return Form from the UNHCR in 2010, and then references to the UNHCR in 2005 and the IOM in 2009 and 2010.

We say that that information, which was available to the Authority, when combined with the representation, which is in paragraph 15 of the Federal Court’s judgment on application book 49 that I just took the Court to, necessarily gave rise to the Authority considering whether a prior consistent version which would have corroborated the applicant’s credibility on the 2016 visa application should necessarily and reasonably warranted the Authority considering whether to exercise its discretion under section 473DC, either (1) or (3).

So we say that once you are considering a question of recent invention and you know of the existence of a prior version of the reasonable apprehension of persecution it was incumbent, if you are going to disbelieve the applicant by reason of recent invention, to make inquiries to ascertain what that earlier version was.  And we say that that necessarily falls within the three‑stage test stated by this Court in SZIAI at paragraph 25 that I referred the Court to before, namely, it was something that was critical to the determination of the applicant’s case. It was a substantial reason for not believing him. It was readily able to be ascertained because he had consented to inquiries being made with the UN bodies.

No doubt as part of that discretion, there may have been a question of whether the Authority should make the request of those UN bodies on his consent or whether, if that was practically difficult as a matter of discretion, the Authority would have considered seeking further submissions from the applicant under section 473DC(3).  So in a sense, if you are not going to ask for the material yourself from the UN body to find out what the prior version is that may be consistent with his 2016 version, you necessarily had to at least tell him that recent invention was an issue and ask him to provide the prior version that may corroborate his application.

We say that when one reviews the approach of the Authority, they have considered other parts of the application but entirely ignored his statement that he in fact had made applications that had been accepted with those various UN bodies.  This question as to the circumstances when the duty arises, after being identified by this Court in Minister for Immigration v SZIAI, it did not need to be fully explored in SZGUR, as I said, by reason of an assumption made by the Federal Court in the Full Court as to whether a request had been made.

More recently in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34 there was a reference at paragraph 16 to the absence of a requirement to give reasons for why the discretion may or may not have been exercised where one is deciding the review. So, in one sense, the scope of jurisdictional error was not pursued; merely the aspect of reasons was considered.

Then again in M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, the question was dealt with by the Court on the basis that inquiries had been considered by the Authority and the Authority had given reasons as to why that was not an appropriate exercise. That is dealt with in this Court’s judgment at paragraph 74.

So we say that at this stage, other than identifying the three‑stage test in SZIAI, which the applicant adopts in support of this application, the scope of jurisdictional error, both as to when it arises, has not been explored in this Court. There is some ambiguity as to the question in the Federal Court, and that is apparent from the respondents’ submissions and the authorities they refer to at paragraph 12, which is at application book page 81.

The decision of the Full Court that is referred to, and the submission made by the Minister in response to this application is, in effect, that there is some doubt about whether SZIAI applies to the jurisdiction under 473DC and we say that question arises squarely in this application, although it was dealt with in a slightly different way by the Federal Court below.

In the court below, the approach of the primary judge was effectively to dismiss the application as an aspect of a futility in effect, and the primary judge’s reasons on this question are set out in paragraphs 30, 32 and 34 in her judgment, which is in the application book at page 52.  Just before coming to those passages, your Honours will note that on application book page 52, at paragraph 27, her Honour refers to the critical question being the inconsistency between the 2013 and 2016 versions.  So she was considering in the context of a question of recent invention as the primary but not sole credibility question, and then the question of futility of obtaining the reasons seems to be adverted to by the primary judge at the bottom of the page, at the end of paragraph 30, where she says:

Nothing in the appellant’s submission explained that this was different to the information already provided.

NETTLE J:   Was there something in the appellant’s submissions that explained that it was different?

MR COX:   No, your Honour.  So, the extent of the appellant’s submissions on this issue is the passage quoted, as I understand it, in paragraph 15 of her Honour’s reasons.  So, it is the ‑ ‑ ‑

NETTLE J:   That is not her Honour’s proposition, in the last couple of lines of that paragraph ‑ ‑ ‑

MR COX:   In the sense – to the extent her Honour was considering the question under 473DD of whether it was new information before the Minister.

NETTLE J:   In other words, why should the Authority suppose that the information that might be gleaned from these international organisations would be any different to what has already been provided when it is not suggested by the applicant that it is any different to what has already been provided?

MR COX:   The reason we say that the Court can comfortably – the Authority ought to have considered that question in exercise of its discretion is because, prior to the Authority raising recent invention, prior consistent versions would have been irrelevant to the application before the Minister.  The existence of that version would not necessarily have advanced the applicant’s case one way or the other.

GORDON J:   But we do not know whether those documents would have assisted to test the claim or to test the inconsistencies ‑ ‑ ‑

MR COX:   Right.

GORDON J:   ‑ ‑ ‑ because for two reasons.  As I put to you at the outset, it is not clear to me on what basis it is identified.  What is the new information, whether it is merely the representation of the documents themselves or what might be gleaned from them?  What is provided is untranslated documents.  It is a very large order and I think you accept, from what I understand from your submission, that there was no duty given the language of the section for them to undertake this sort of analysis unless there was some material before them which indicated that they might raise this question.  It is very difficult.  

MR COX:   I accept the force of all of those observations, your Honour, but can I just put this submission?  The question before the Authority was, in circumstances where it was about to disbelieve the applicant because of recent invention, it was aware of an earlier version.  The applicant had simply identified that he had made these applications and they had been accepted.  We say that once one considers recent invention as the primary reason, it was incumbent on the Authority to at least consider whether to exercise the discretion. 

It may well have been that the Authority, having considered it, determined that it would not seek the documents.  It may have simply said to the applicant, you can make further submissions and provide us a prior consistent version if you want to.  But the difficulty in the present case is, on the Authority’s reasons, the jurisdiction does not appear to have been exercised at all and the applicant has not had an opportunity to put before the Authority the version that, we say, could reasonably be supposed to be consistent with the 2016 version.

We say that is a reasonable inference because the three international bodies referred to in the applicant’s submission – which is quoted at paragraph 15 – are said to have accepted his claims of persecution.  We say from that fact alone, the Authority should have at least considered obtaining a potentially prior consistent version rather than simply not believing him on what it knew was an incomplete statement of his versions.  

So that, even though the materials are available, in one sense the applicant cannot now tender the versions that are sitting in some UN office but the Authority ought to have at least made the inquiry, if not with the UN

bodies by his consent, but with the applicant under 473DC(3).  That, in a sense, was not a minimal approach but the difficulty is that the jurisdiction does not appear to have been exercised at all so it is a question of the jurisdiction not having been exercised rather than a different view being taken on how the discretion should be exercised.  So, for those reasons we say that the absence of the documents is something that peculiarly arises because the question only becomes relevant once the Authority decides that recent invention is the reason to disbelieve him. 

If no one tells him that that is the issue so that the Authority could get the documents or he could provide the documents, he is effectively disbelieved without the opportunity of putting before the Authority other versions that may support his claim.  We accept that there is some ambiguity as to what the documents might say but their absence, in a sense, demonstrates that the jurisdiction has never been exercised at all and that in itself would have been jurisdictional error on our case even if, for example, the Authority might if it had considered it determined not to get the documents.  Those are my submissions, your Honour.

NETTLE J:   Thank you very much.  Yes, Mr Johnson.

MR JOHNSON:   Your Honours, the starting point for any analysis in a case such as the present is the statute and Part 7AA of the Act needs to be considered, particularly when concepts such as those which the applicant purports to invite the Court to consider in this case arise in relation to different parts of the Act dealing with different kinds of review.  In particular, section 473DB(1) of the Act provides that:

Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)       without accepting or requesting new information; and

(b)       without interviewing the referred applicant.

The…..to that subsection is important because it is a direct reference to those discretionary powers which exist in the Act for the getting of new information, but it is common between the parties that there is no duty to do so.  And fundamental to the applicant’s case is that there was an error, by the Authority in the present case, to consider exercising its power, or to exercise its power to get new information.

Now, I, with respect, adopt the concern expressed by your Honour Justice Gordon in relation to the specification of what the new information was in this case that was said to be engaged.  A submission, a letter, was provided to the Authority in this case, which made reference to the applicant having had contact with several named international organisations, and as having been recognised as a refugee.  That particular statement is referred to in the reasons for judgment of the primary judge at application book 49 at paragraph 15.

Even accepting that the particular statement quoted in that paragraph was, of itself, new information as defined in section 473DC of the Act, what is being suggested in this case is that it gave rise to a form of duty or a reasonable requirement for the Authority to take steps to get the information, which was in effect invited by the applicant to get.

Now, one of the fundamental difficulties with that submission, I respectfully submit, is that it inverts the onus that rests with the applicant to make out his case before the Authority.  There is no reason suggested now, and nor was there any information before the courts below or before the Authority, to explain why the applicant could not have obtained the information that he referred to in that statement.  Indeed, he did provide to the Authority, as the primary judge recognised, more specific information relating to those international organisations, and so the Authority was plainly aware that there was some contact by the applicant with those organisations.

NETTLE J:   But was he on notice that the Authority considered his evidence to be a recent invention?

MR JOHNSON:   No, but ‑ ‑ ‑

NETTLE J:   How was he to know that it was desirable for him to get the international material to corroborate his testimony?

MR JOHNSON:   With respect, your Honour, that then asks a question of procedural fairness which, of itself, is limited under a Part 7AA review.

NETTLE J:   Of course.  Does it not go to consideration by the Authority of whether to exercise its power to seek something further?  In other words, I have made up my mind you are a liar, but I appreciate there might be some more material out there, because you have said there is.  Do you want to get it for me or do you want me to get it?  Should I not go through that sort of exercise?

MR JOHNSON:   If that were the standard by which the Authority needed to consider exercising its power – and I will come in a moment to whether that is an inference that ought to be drawn – then it would, in effect, in most cases require the Authority to be actively exercising its power to get new information, lest it be said that it did not have all the information before it that might be of relevance to the case.  But that, in my submission, is not what the part requires.  The fast‑track review scheme that is legislated in the Act is a restricted scheme of review and, whilst there is power for the Authority to get new information or to invite new information from an applicant or to conduct an interview, those are simply discretionary powers available and no duty exists for them to be exercised.

Now, there can, of course, be cases where such requirements do arise – and there is no issue concerning that – but even if in the present case your Honours were to be of the view that there was an unreasonable failure to consider exercising that power, that is simply an instance of a dispute as to whether there was jurisdictional error.  It falls well short of raising the question of principle that the applicant seeks to contend arises in this case that the Court needs to adjudicate upon.

I have submitted in writing that the applicant had the benefit of counsel in the Federal Court and these arguments were put and explored in some depth before her Honour Justice Abraham, and to the extent that the argument before the present Court is a disagreement with her Honour’s analysis of the Authority’s reasons that, in my submission, would not warrant a grant of special leave.

There is, on a question of principle sought to underpin the argument in this case, a reliance upon or a reference to the principle expressed in obiter dicta by this Court in SZIAI.  I have in my written submissions made reference to a number of judgments of the Federal Court of Australia which have, at least, expressed doubt as to whether that principle would apply or extend to the statutory scheme that applies to the Authority but, in my submission, this is not an appropriate case for any such principle to be analysed.  The case is essentially one of a statutory discretionary power and, as I have submitted, no question of general principle arises from the application concerning section 473DC.

This Court has otherwise had occasion – not many occasions, but a on a few occasions – had reason to engage in some analysis of the statutory scheme under Part 7AA.  My friend has referred to those cases in his submissions and this case does not involve an occasion where anything said by this Court concerning those provisions is to be doubted or questioned and those matters dealt with in those judgments canvasses the law as it is presently understood.

In my submission, the applicant’s argument in the present case that the three limbs of SZIAI, as referred to at paragraph 25 of this Court’s judgment, would apply in this case, do not apply – that is, there was no obvious inquiry concerning a critical fact that could have been easily

ascertained.  By reference to the statement referred to at paragraph 15 of the primary judge’s reasons upon which this application rests, one does not see any reference to any specific information that might have assisted the applicant in his review before the Authority or that might have been critical to the determination of those matters.

As to the question of whether it could have been easily ascertained, that of itself is a serious question in light of the fact that what was being suggested was inquiries to be made of international organisations.  The applicant had an opportunity to put his case before the Authority.  He had made a number of applications ‑ two applications for protection visas ‑ to the Department.

There was, in my submission, an obvious concern in and of itself by reference to those facts that a consideration of different versions of what the applicant had put to the Department would arise for consideration and it was open for the Authority to conduct its review by reference to the material and information it did possess without it needing to go and get further new information in order to consider the applicant’s claims or consider whether it should make credibility findings about the applicant’s claims.  Unless I can further assist, those are my submissions.

NETTLE J:   Thank you, Mr Johnson.  Anything in reply, Mr Cox?

MR COX:   Two very brief matters, your Honour.  In respect of the submission that the applicant’s case reverses the onus, we would simply say that that cannot be the case here because the relevance of the prior consistent statement only becomes important once the Authority raises recent invention.  So, it is not a question of the onus reversing but once the Authority considers disbelieving the applicant because of the prior version, fairness requires that he be given an opportunity to answer it.

The second matter is in relation to the procedural fairness provisions in relation to Part 7AA of the Migration Act.  We would simply say that there is no reason why procedural fairness considerations should not arise on the scope and exercise of the discretion on section 473DC(1).  To put it another way, it could not be reasonable for the Authority if it is about to disbelieve the applicant because of recent invention to know it is going to deny him procedural fairness because it knows there are other versions in existence but it does not seek the documents itself or tell the applicant that this is an issue and they might provide the versions themselves.

So, we say that even though it may not be able to be raised as a square procedural fairness point by reason of other provisions in the part, those discretionary considerations are relevant to whether the Authority could have reasonably exercised the discretion, although, as I said before, it

appears on the materials that the question was not even considered at all.  Those are my submissions, your Honours.

NETTLE J:   The Court is not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant the grant of special leave.  The application is dismissed.

Thank you, gentlemen.

AT 10:06 AM THE MATTER WAS CONCLUDED