DER16 v Minister for Immigration
[2017] FCCA 3026
•15 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DER16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3026 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the Authority erred by misapplying the relocation test – whether the Authority failed to consider the impediments raised by the applicant including whether he would face harm from persons who recognised him as a social worker and the worsening situation in Iraq – whether the Tribunal made jurisdictional error by acting upon an invalid certificate under s.473GB of the Migration Act 1985 (Cth) and failed to draw the existence of the certificate to the applicant’s attention – jurisdictional error – writs issued. |
| Legislation: Constitution, s.75 Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2) |
| Cases cited: Graham v Minister for Immigration & Border Protection (2017) 91 ALJR 890; [2017] HCA 33 Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51 SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 SZSJB v Minister for Immigration & Border Protection [2017] FCA 229 |
| Applicant: | DER16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2932 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 18 October 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Hughes |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the First Respondent: | Ms R Francois |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 15 April 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application for review of the decision of a delegate of the first respondent dated 25 February 2016 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2932 of 2016
| DER16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Iraq who arrived in Australia by boat on 17 October 2012. On 15 June 2015, he applied for a protection visa. He claimed to fear harm in Iraq based on his service in the antiterrorism forces of the Iraqi army, attacks carried out on him and his brother, and because of his identity with the Shia Muslim faith.
On 25 February 2016, a delegate of the Minister decided to refuse to grant the applicant a protection visa. The matter was then referred to the Immigration Assessment Authority (IAA) for review. Included in the material sent to the IAA was a certificate purportedly issued under s.473GB of the Migration Act 1958 (Cth) (Act). The parties agreed that the certificate was not validly issued.
On 15 April 2016, the IAA made a decision to affirm the delegate’s decision. The applicant seeks judicial review of the IAA’s decision. He argues that the IAA fell into jurisdictional error in 2 respects. First, by failing to properly consider the issue of whether it was reasonable for the applicant to relocate within Iraq; and secondly, by acting on the invalid certificate.
First ground - relocation within Iraq
The criteria for the grant of a protection visa in both sub-ss.36(2)(a) and 36(2)(aa) of the Act involve certain aspects of what is often referred to as the relocation principle. In very broad terms, there arises under both of those provisions the question whether the visa applicant faces a real chance of harm throughout his or her country of nationality. A further question arises under sub-s.36(2)(aa), namely, whether it would be reasonable for the applicant to relocate: sub-s.36(2B)(a). The first issue in the present proceedings is whether the IAA properly addressed that question.
Sub-section 36(2B)(a) of the Act is to be understood as importing the principle explained by the High Court in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 (SZATV). That principle is applied when considering whether a person comes within the definition of “refugee” in Article 1A(2) of the Refugees Convention[1] (Convention). That Article relevantly states:
A. For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
…
In SZATV, the plurality stated at [19], that this principle finds its place in the Convention definition of “refugee” by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department (2006) 3 All ER 305; [2006] 2 AC 426 at 440:
7.The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. …
In Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317 at [40]; [2014] HCA 45, Gageler J explained:
Underlying the principle is a purposive understanding of the causative connection connoted by the words “owing to” within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.
The scope and application of the relocation principle was explained by Tracey and Foster JJ in SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124]; [2009] FCAFC 46, where their Honours said:
The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR at 442-443, especially at 443C-D.
The approach required to be taken to the question of reasonableness of relocation was closely examined by Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 (MZANX). Her Honour said:
[51]In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location.
…
[55]In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. …
Her Honour went on to explain at [58], that while the “framework” set by an applicant was an important factor, the task of the reviewer was not confined to the matters raised by an applicant, but must be based on all of the material before it.
Importantly, although it is necessary in the context of sub-s.36(2B)(a) to consider whether there is a risk of significant harm, that is not the only level or kind of harm which can affect the reasonableness of relocation: MZYQU v Minister for Immigration & Citizenship (2012) 206 FCR 191 at [61]; [2012] FCA 1032 (MZYQU).
In light of those authorities, it is necessary first to consider the applicant’s claims and other material concerning the issue of reasonableness of relocation, and then to examine the IAA’s findings in some detail.
In response to a request from the IAA, the applicant sent the IAA written submissions on 1 April 2016. Amongst the issues addressed in those submissions was the reasonableness of relocation. He wrote that there were a number of impediments to relocation to the southern part of Iran (including Qadissiya). Those impediments included that:
a)the applicant’s family was facing pressure and harassment in Karbala and Qadissiya because of their Sunni name, and so he would face similar pressure and harassment (first impediment); and
b)the applicant had worked as a social worker at a camp near Basra (which is also in the south) and may be recognised in nearby locations, including Qadissiya and might be harmed by militia members who recognised him (second impediment).
The applicant had raised before the delegate the further impediment that there was violence and insecurity throughout Iraq (third impediment).
The IAA accepted that the applicant faced a real chance of being seriously injured or killed by Daesh, or similar militant Sunni groups, in his home area of Baghdad for reason of his Shia religion. However, it found that there was no real chance that the applicant would be seriously harmed in Qadissiya. For that reason, the IAA found that the applicant was not a refugee within the meaning of s.5H(1) of the Act and so did not meet the requirements of sub-s.36(2)(a) of the Act.
The IAA then considered the requirements of sub-s.36(2)(aa) of the Act. In that respect, it considered the issue of relocation under sub-s.36(2B)(a) of the Act.
The IAA concluded that the applicant could reasonably relocate to Qadissiya, an area of Iraq where there was not a real chance that the applicant would suffer significant harm. As a consequence, it concluded that the applicant did not satisfy sub-s.36(2)(aa) of the Act.
The IAA’s critical reasoning in respect of the reasonableness of relocation, was set out in the following passage of its reasons (without correction and omitting references):
56.Asked whether he could safely, and reasonably, relocate to Qadissiya, the applicant has responded that members of his family in Qadissiya have suffered from a lot of pressure and harassment as a consequence of having a Sunni name. The applicant has not indicated how this manifested. I am not satisfied that on the evidence before me that the applicant’s family in Qadissiya have suffered harm that would amount to significant harm. On the evidence, I am not satisfied that the applicant would face a real risk of significant harm in Qadissiya for reason of his surname or his having been born in Al Adhamiyah now or in in the reasonably foreseeable future.
57.As for the question of whether it is reasonable for the applicant to relocate to Qadissiya, I note that DFAT has reported that internal relocation to southern Iraq can be a reasonable and practical option for Shia Iraqis. UNHCR has observed that, in Iraq, family and tribal connections in a given area are crucial and generally ensure a certain level of community protection. Such connections are also said to generally ensure a certain level of access to services. As noted above, the applicant has connections of this kind in southern Iraq in the area of Qadissiya where his parents were born and where two of his brothers currently reside. Moreover, Qadissiya can be accessed through southern Iraq via Basra international airport. And although the surrounds of Basra has seen past instances of infrequent indirect fire attacks, Basra remains a reasonably secure area through which the applicant can safely access Qadissiya without facing a real risk of harm. There have also been reports that internally displaced persons entering southern areas, like Qadissiya governorate, have only been allowed through checkpoints once the sponsorship of relatives was confirmed. The applicant has connections of this kind and I am satisfied that he would be able to access Qadissiya and to do so safely. During 2009 the applicant stayed whether various members of his family and I am satisfied that his family would assist him again. The applicant has stated that his family in Qadissiya have suffered pressure and harassment. I have considered whether the applicant’s claim would make relocation unreasonable. On the evidence I am not satisfied that it would.
58.I note that the southern areas of Iraq, including Qadissiya, have seen the arrival of large numbers of internally displaced person in recent years (seeking safety from the conflict zones in the northwest). It is reported that the displacement of over 80,000 IDPs towards the South of Iraq (Najaf, Kerbala, Babylon and Qadisayah) is placing a huge burden on health care facilities, especially since the new arrivals are suffering from higher rates of communicable diseases (chicken pox, diarrhea and measles) and non-communicable diseases (hypertension and diabetes). The applicant would not, however, be arriving in the manner of an unconnected displaced person. Nor is he without skills and employment experience. Relevantly, DFAT reports that many Iraqis who had sought asylum overseas have now returned to southern Iraq, and taken up senior and middle level jobs in the government and public sector. I note that the applicant has never lived in Qadissiya. However, I am satisfied that the applicant’s family connections in Qadissiya, his health, and his past experience in running a small business, and in government employment as a social worker and administrator, will offset such difficulties and that he will be able to find accommodation and earn a livelihood in Qadissiya. The applicant has a wife and three children who are currently residing in Baghdad. The applicant also claims to be responsible for supporting his brother’s widow and children. It would be reasonable for the applicant to make arrangements that would permit his wife and two children to join him in Qadisayah when he has established himself there; and for the applicant to continue to provide support for his brother’s widow and children. I am satisfied that it would be reasonable for the applicant to relocate to Qadissiya, an area of the country where there would not be a real risk that he will suffer significant harm.
First impediment
The applicant argues that the IAA did not properly consider the first impediment, other than at the level of significant harm, and that it did not consider either the second or third impediments at all. The first respondent argued that the applicant’s first argument relied on an overly critical approach to the IAA’s reasons, that an earlier finding foreclosed the possibility of the second impediment and that the applicant never raised the third impediment however, it was dealt with in any event by the IAA.
At [56], the IAA found that the pressure and harassment suffered by the applicant’s family as a result of their name did not amount to significant harm. The IAA also dealt with that impediment in the context of the reasonableness of relocation at [57]. Its reasons in that respect are sparse, consisting of the following two sentences:
I have considered whether the applicant’s claim would make relocation unreasonable. On the evidence I am not satisfied that it would.
The key to understanding those reasons is found in [56] where the IAA first dealt with the applicant’s claim about his family’s name.
The applicant argues that, in fact, the only consideration of that claim was in [56]. He contends that the words “I have considered” in [57] are a reference to the consideration of the claim in [56]. I reject that contention. It is true that the IAA had considered the claim in [56] however, that consideration was limited to whether the pressure and harassment the family (and the applicant) faced amounted to significant harm. The argument is supported by the fact that the phrase “I have considered” is in the present perfect tense and the sparsity of the reasoning in [57]. However, the tense of the verb in [57], is equally consistent with a separate consideration of the claim in the context of the reasonableness of relocation, and so provides no real basis for the applicant’s argument.
The sparsity of reasoning in [57] is explained by two matters: first, the IAA’s statement in [56] that “the applicant ha[d] not indicated how (the pressure and harassment) manifested”; and secondly, the repeated use of the phrase “on the evidence” in both [56] and [57]. The connection of those two matters suggests that the IAA based its reasoning in relation to this claim on the fact that the applicant had not given any detail about the nature and extent of the pressure and harassment faced by his family.
On a proper understanding of the IAA’s reasons, it did consider the first impediment to relocation relied on by the applicant.
Second impediment
The second impediment to relocation raised by the applicant was that he had worked as a social worker at a camp near Basra and so might be recognised in nearby locations including Qadissiya, and might be harmed by militia members who recognised him. That was not addressed by the IAA at all in connection with relocation. The question is whether that reveals error.
The first respondent argues that earlier findings made by the IAA foreclosed the possibility that the applicant might be harmed in the way and for the reason claimed, and for that reason, the IAA did not have to deal with it in connection with relocation.
The IAA accepted, at [22], that the applicant had been employed by a US firm providing rehabilitation programs to the Mahdi Army and Al Qaeda prisoners at Baghdad airport and Basra’s Camp Bucca from November 2007 to January 2008. In the context of considering the change in the situation in Iraq after 2012, the IAA referred at [35], to an assessment by DFAT that the overall risk of violence to those who had worked with the international community was moderate. However, it noted that there were no reports before it “to indicate that Shia Muslims currently, or formerly, associated with … US employers, are being targeted by Shia armed militias in areas under government control.”
At [36], the IAA dealt with the submission that the reason for the lack of reports concerning targeting by Shia militants was that enemies of those groups were attacked individually, and it was not always clear who the perpetrator was. The IAA found that, in light of the extensive reporting on both targeted and mass casualty attacks in Iraq, “a trend of former members of Iraq’s security forces being killed by Shia militia members”, or unknown assailants, would not go unnoticed and unreported. In addition, it found that the current cooperation between the Shia militias and Iraq’s security forces would not exist if Shia militias were attacking the members and former members of the security forces.
Although the conclusion in [36] was limited to members and former members of the security forces, the IAA dealt with the situation of people who had worked with, or for US forces or firms at [37]. There, the IAA found that there was no evidence that the Mahdi Army (a Shia militant group) was “currently undertaking attacks against Shia Muslims for reason of their having formerly been members of the Iraqi security forces or for having worked with or for US forces or US firms like OSS.”
The IAA concluded, at [39], that the applicant faced no real chance of harm from the Mahdi Army, or any other Shia armed group, for the reasons claimed by him.
The IAA dealt with the risk of harm at the hands of Sunni extremists in the south of Iraq at [42] to [44]. At [44] it referred to the fact that neither the UK Home office nor DFAT reported that “former members of the security forces, or persons who formerly worked with the United States, are currently being targeted in southern Iraq.” The IAA made no express finding about the issue at that stage of its reasons; however, a finding to that effect may be inferred from both its acceptance of the UK Home office and DFAT reports, as well as its statement at [47], that the fact that the security situation in southern Iraq led some Iraqis not to return to Iraq after travelling to Australia, did not “lead to the conclusion that the applicant would face a real chance of serious harm if he were to return to Qadissiya in southern Iraq”. That inference is fortified by the findings at [49], including that there was no real chance that the applicant would be harmed by “Daesh, or a similar Sunni militant group, in Qadissiya …as a consequence of his work … as social worker for OSS in the rehabilitation of Al Qaeda prisoners”.
The IAA made a similar finding, at [55], although stated in terms of “significant harm” rather than “serious harm.”
However, the fact that these findings were addressed at the questions of “serious harm” and “significant harm” does not mean, contrary to the Minister’s submissions, that the issue was foreclosed for the purposes of considering the reasonableness of relocation.
In MZYQU, Dodds-Streeton J held, at [61], that the Independent Merits Reviewer fell into jurisdictional error not merely in considering whether there was a risk of “serious harm” as defined in s.91R of the Act in applying the relocation test, but in “implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation”. See also SZSJB v Minister for Immigration & Border Protection [2017] FCA 229 (Perry J).
In my view, the IAA here, fell into the error identified in MZYQU. It did not find that there was no possibility of any harm coming to the applicant for reason of his past involvement with prisoners, and so did not foreclose the possibility of some harm that did not reach the level of serious or significant harm.
Third impediment
I also consider that the IAA fell into a similar error in connection with the third impediment to relocation, generalised violence.
The evidence accepted by the IAA was that, in the year up to April 2015, there had been “24 security incidents resulting in 10 deaths and 28 other casualties”: [42]. In spite of that evidence, the IAA was not satisfied that the applicant faced a real chance of being harmed as a consequence of mass casualty violence targeting southern Iraqi communities (at [55]). It appears that that conclusion was based on the fact that, there were “only 10 deaths and 28 other casualties” in Qadissiya in contrast to other areas where the number of incidents and casualties were far higher: [43]. In light of that reasoning, the “harm” referred to at [55] of the IAA’s reasons in connection with the mass casualty violence, is properly understood to be a reference to actual physical harm (i.e. death or injury). That is not the only type of harm which might be relevant, on the facts before the IAA, to the question of reasonableness of relocation.
The Minister submitted that the IAA dealt with the issue in the following statement in [57]:
… I note that DFAT has reported that internal relocation to southern Iraq can be a reasonable and practical option for Shia Iraqis. …
(Citation omitted)
The context of the statement suggests otherwise. The balance of [57] reveals the substance of what the IAA considered relevant to the issue of reasonableness in the context of relocation. There is no mention there of the security situation and the accepted fact of mass casualties from targeted militant attacks in the very city to which the applicant was supposed to relocate.
For those reasons, the IAA fell into jurisdictional error in dealing with the question of relocation. There is no reason for which relief ought not to be granted, and so its decision must be quashed and an order made requiring it to complete the task of reviewing the delegate’s decision.
In light of that conclusion, it is not strictly necessary to consider the applicant’s second ground. However, for the sake of completeness, I will give brief reasons why I would reject that ground.
Second ground – an invalid certificate
Amongst the documents sent to the IAA by the Secretary of the Department of Immigration (Secretary) was a document entitled “Notification regarding the disclosure of certain information covered by section 473GB of the Migration Act 1958” (certificate). The document was signed by a delegate of the Minister who notified, in the document, that s.473GB of the Act applied to “a document or information in [a] document” and that it should not be disclosed to the applicant because to do so would be contrary to the public interest. Disclosure was said to be contrary to the public interest because it was a “Departmental working document”.
The certificate was not validly issued under s.473GB: MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1 at [37], [38]; [2016] FCA 1081 (MZAFZ). The question is what, if any, consequence arose from the invalidity of the document.
The applicant argued that the IAA took the certificate into account and that that was sufficient to give rise to jurisdictional error. There were two bases for that argument: first, that the reasoning in MZAFZ applied to the IAA; and secondly, that the decision in Graham v Minister for Immigration & Border Protection (2017) 91 ALJR 890; [2017] HCA 33 (Graham) applied because the IAA misapprehended the scope of its power when it took into consideration the invalid certificate.
The Minister argued that the reasoning in MZAFZ did not apply to the statutory context in which the IAA operated. Secondly, he argued that the IAA did not “act on” the certificate. Thirdly, he argued that, even if it did “act on” the certificate, there was no breach of any provision of pt.7AA of the Act: the applicant’s argument did not grapple with s.473DA(2) of the Act which provides that nothing in pt.7AA requires the IAA to give to a referred applicant any material that was before the Minister when his decision was made. Fourthly, the Minister argued that Graham was distinguishable because there was nothing in the IAA’s reasons to indicate that the IAA treated the certificate as valid.
After the hearing in this matter, the Full Court of the Federal Court handed down its decision in Minister for Immigration & Border Protection v BBS16 [2017] FCAFC 176 (BBS16). The Court there found that the reasoning in MZAFZ did not apply to the IAA. First, it held that the certificate was part of the “review material” before the IAA: [91]. Secondly, it held that the certificate and related information were not “new information” for the purposes of sub-div.C of div.3 of pt.7AA: [92]-[95]. Thirdly, if the IAA is given a certificate, it will have to determine for itself whether it will have regard to any of the material covered by it. One of the matters it must determine for this purpose is whether the certificate is valid or not. If the IAA considers that it is valid, it must determine whether it is appropriate to disclose any matter in the material to the applicant and, if so, must have regard to any advice from the Secretary in that regard: [96]. However, the scheme of pt.7AA is such that the applicant has no opportunity to be involved in any of these decisions: [97].
The parties each filed supplementary submissions that, among other things, dealt with the application of BBS16 to the facts of this case.
The Minister argued that in BBS16 the Court held that there was no error per se for the IAA to act upon an invalid certificate and, for that reason, BBS16 was sufficient to dispose of this ground.
The applicant made two alternative arguments: first, as the certificate was part of the “review material” the IAA was bound by s.473DB(1) of the Act to consider it. For that reason, if it failed to consider the certificate, it fell into error. Alternatively, if it did consider the certificate, the applicant conceded that the Court was bound by the ratio decidendi in BBS16 but argued that that did not touch upon the point made by him arising from Graham.
I accept the applicant’s contention that the IAA considered the certificate. That certificate formed part of the material referred to it by the Secretary and the IAA expressly said that it had considered that material. For that reason, the applicant’s first argument made in light of BBS16 may be left to one side.
In BBS16 the Full Court did not decide that no error could arise from the invalidity of a certificate purportedly issued under s.473GB of the Act. Indeed, the Court said, at [100]:
… Nothing we have said above is intended to indicate that there is no scope for the bias limb of procedural fairness to apply in an appropriate case. Moreover, there may be scope for a judicial review challenge to an adverse decision by the IAA where the IAA has had regard to an invalid s 473GB certificate/notification and related information if the referred applicant somehow becomes aware of this fact.
Graham involved a decision by the Minister for Immigration (Minister) to cancel the plaintiff’s visa under s.501(3) of the Act. The reasons for that decision disclosed that, in making the decision, the Minister had considered information which was protected from disclosure under s.503A of the Act. The plaintiff was not provided with a copy of that information nor given any details of it.
Section 503A(2) relevantly provides that the Minister cannot be required to divulge information which was relevant to the exercise of his power under s.501 to any person, or to a court, if that information was communicated by a gazetted agency on condition that it be treated as confidential.
The plaintiff brought proceedings in the Federal Court of Australia arguing, amongst other things, that s.503A(2) was invalid because it required the Federal Court to exercise power in a manner inconsistent with the nature of judicial power, and interfered with the right to seek relief under s.75(v) of the Constitution. The matter was removed to, and heard by the High Court.
Like the material the subject of the certificate in these proceedings, the information said to have been subject to s.503A(2) of the Act was not before the Court.
The High Court held, by majority, that s.503A(2) was invalid to the extent only that sub-s.503A(2)(c) would apply to prevent the Minister from being required to divulge or communicate information to this Court when exercising jurisdiction under s.75(v) of the Constitution, or to the Federal Court when exercising jurisdiction under sub-ss.476A(1)(c) and (2) of the Act, to review a purported exercise of power by the Minister under ss.501, 501A, 501B or 501C to which the information is relevant.
The critical problem with sub-s.503A(2)(c) was the inflexibility of its application to withhold the information from the reviewing court, irrespective of the importance of the information to the review to be conducted. The Court explained, at [65], that the effect of the provision in that case was “effectively to deny the court evidence, in the case of the applicant the whole of the evidence, upon which the Minister’s decision was based. It strikes at the very heart of the review for which s 75(v) provides.”
Having determined that sub-s.503A(2)(c) was invalid to the extent described in [55] above, the majority turned to consider whether that conclusion meant that the Minister’s decision was relevantly affected by error. It explained why the decision was affected by error at [68]:
The Minister’s reasons for his decisions to cancel the visas of the plaintiff and the applicant refer repeatedly to the Minister having taken into account information described variously as “protected information under section 503A” and “information which is protected from disclosure under section 503A”. The inference to be drawn is that the Minister made the decisions on the understanding that s 503A was valid in its entirety and operated to prevent the Minister from in any circumstances being required to divulge or communicate the information including to a court engaged in the judicial review of the decisions. That understanding was in error. The error was not as to the question to be asked by the Minister in making the decision but as to an important attribute of the decision to be made: whether or not the decision would be shielded from review by a court in so far as it was based on the relevant information. As in Re Patterson; Ex parte Taylor, where the error of the Minister was a failure to appreciate that there would be no opportunity to seek revocation of the decision, “[t]he result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not a real exercise of the power conferred by s 501(3)”.
(Citations omitted)
In Re Patterson; Ex parte Taylor (2001) 207 CLR 391; [2001] HCA 51, the Parliamentary Secretary[2] was found to have exercised her discretion to cancel the plaintiff’s visa on the understanding that, if she did cancel the visa, the legislation required there then to be given to the prosecutor “an opportunity to make representations seeking revocation of [that] decision”. That understanding was incorrect because there was no such opportunity under the Act.
[2] A senator who had been appointed by the Governor at the relevant time to administer the Act.
There are significant difficulties in applying the reasoning in Graham to the facts of this case. First, unlike sub-s.503A(2)(c), s.473GB of the Act does not have an inflexible operation. The IAA may, if it thinks appropriate and having regard to any advice from the Secretary, disclose any matter to the applicant: sub-s.473GB(3)(b). Secondly, and in any event, the IAA is under no obligation to give the applicant any material that was before the Minister when the decision under review was made: s.473DA(2). That means that, even if the IAA acted on the misunderstanding that s.473GB applied to the material the subject of the certificate, that did not affect the conduct of the review. Thirdly, unlike in Graham, there was no repeated reference in the IAA’s reasons to the material the subject of the certificate. The only discernible reference to it was in [5] of its reasons where the IAA said that it had “had regard to the material referred by the Secretary under s.473CB of the Act.” In addition to the statutory context I have referred to, this means that it cannot be inferred that the IAA wrongly understood that it was prevented, by the operation of an invalid certificate, from giving the applicant the material.
For those reasons the second ground fails.
Conclusion
The IAA’s decision is affected by jurisdictional error. Its duty to review the delegate’s decision remains unfulfilled and it is appropriate to order that it complete that task. It is also appropriate to quash its purported decision by issuing a writ of certiorari.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 15 December 2017
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