DFW16 v Minister for Immigration
[2017] FCCA 2726
•8 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFW16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2726 |
| Catchwords: MIGRATION – Protection visa application – review of decision of Immigration Assessment Authority – whether the IAA acted unreasonably and denied the applicant procedural fairness by not exercising its power under s.473DC of the Migration Act 1958 (Cth) to invite the applicant to provide “new information” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 349, 357A, 360, 415, 425, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DE, 473DF, 473FA, 474, 476, div.5 of pt.5, pt.7, div.3 of pt.7AA Migration Regulations 1994 (Cth), regs.4.15, 4.33, 4.43, cl.690.222 of sch.2 Other materials cited: |
| Cases cited: Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35; [2014] FCAFC 173 Yasmin v Attorney-General (Cth) (2015) 236 FCR 169; [2015] FCAFC 145 |
| Applicant: | DFW16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2981 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 4 August 2017 |
| Date of Last Submission: | 4 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | HWL Ebsworth Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2981 of 2016
| DFW16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Statement of the issue
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) affirming a decision to refuse to grant the applicant a protection visa. The principal issue in the proceedings is whether it was legally unreasonable for the IAA not to exercise its power to invite the applicant to comment on, and respond to, inconsistencies between various versions given by him of the events upon which his claim for protection was based. In particular, the applicant complains that the inconsistencies arose from documents that did not form part of the specific visa application that came to be considered by the IAA.
Essentially, the applicant argues that it was unfair that he was not put on notice that the IAA might base its decision on those inconsistencies when the decision under review was not based on them. The applicant’s argument is cast in terms of legal unreasonableness rather than procedural fairness both due to, and in recognition of, the limited scope of the obligation of the IAA to afford procedural fairness, although the applicant also argues that there was a denial of procedural fairness.
For the reasons that follow there was nothing unfair about the procedure adopted by the IAA and its failure to obtain new information from the applicant did not amount to legal unreasonableness.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia in the Cocos Islands by boat on 27 September 2012. He did not have a visa and so, for the purposes of the Migration Act 1958 (Cth) (Act) was an unlawful non-citizen. This meant that the applicant was also an offshore entry person under the Act, was not able to make a valid application for a visa and was taken into immigration detention.
On 17 October 2012, the applicant participated in an interview (arrival interview) with an officer of the Department of Immigration and Citizenship (Department). The written record of that interview shows that the applicant was asked whether he was seeking Australia’s protection and why he left his country of nationality. He answered “yes” to the first question and in response to the second, said that he was “seeking protection from the Sri Lankan government”. When asked whether he had ever been arrested or detained, the applicant said that he was “Detained/Abducted in July 2010 because of his fathers (sic) political affiliation, held for 3 days, no harm done”. The applicant signed and dated the record of the interview.
The applicant was interviewed again on 17 January 2013 (entry interview). The questions and answers given at this interview were recorded in a document entitled “Irregular Maritime Arrival Entry Interview”. In this interview, the applicant was again asked why he had left his country of nationality. The answer recorded was:
I am seeking protection in Australia from the Sri Lankan government.
ADDED 17 Jan – After I finished my education I was a leader in a youth group and in my temple, I did a lot of good things for my village, during the election time some of the weapon groups tried to use my youth group because they had good support in my village. They tried to use the youth club, I also studied Political Science that’s why I have got some political knowledge, they tried to misuse our young boys. Gold Star Youth Club – Onthanchimadam. I tired to explain to the youth group that they are trying to misuse you and then I got trouble. The groups were, Kuruma Group & Pillian Group.
(Errors in original)
The applicant again stated that he had been abducted in July 2010 because of his father’s affiliation and held for 3 days but that no harm was done.
At the end of the interview, the applicant was asked if there was anything else he would like to say. He answered “yes” and then:
The other reason I left Sri Lanka was because I was hiding with no food and shelter to save my life, so they came and looked for me and couldn’t find me so they cut my father and he was wounded with a sword.
By letter dated 12 August 2013 the applicant’s migration agents wrote to the Department enclosing an application for a protection visa (2013 PVA). The claims made by the applicant in support of the 2013 PVA were set out in a written statement attached to the application. The applicant explained that:
a)in 2010 he had become the secretary of the Gold Star Youth Club (Club) that was involved in helping children in the village. Paramilitary groups (including the Sri Lanka Freedom Party (SLFP or Karuna group)) wanted the club members to assist them but the applicant refused;
b)when he was threatened by the Karuna group, the applicant went to live in another place for 7 months;
c)he returned home after his father was attacked and was detained in the SLFP’s offices for 2 days and assaulted;
d)he then agreed to help the SLFP including at the provincial Council elections; and
e)when the opposing party, the Tamil Makkal Viduthalai Pulikal, also wanted the applicant’s club to help them, the applicant was abducted by the SLFP, managed to escape after being bitten by a snake and left Sri Lanka for Australia.
Nothing appears to have happened in relation to the 2013 PVA until 8 September 2015 when an officer of the Department wrote to the applicant. In that letter, the officer:
a)stated that the applicant had previously submitted a “purported application” for a protection visa, noted that this application was invalid and could not be processed any further;
b)noted that the Department “returned a copy of your original application form” with the letter;
c)informed the applicant that the Minister had exercised his power under s.46A(2) of the Act to allow the applicant “to lodge a valid application for a Temporary Protection (subclass 785) visa (TPV) or a Safe Haven Enterprise (subclass 790) visa (SHEV)”; and
d)invited the applicant to apply for either a TPV or a SHEV.
The applicant quickly took up this offer. On 25 November 2015, with the assistance of the same migration agents who had lodged the 2013 PVA, he lodged an application for a SHEV (SHEV application). The applicant’s claims in support of this application were set out in a statement attached to the application.
These claims, like those made in support of the 2013 PVA, centred on the applicant’s involvement in the Club. There were however, marked differences between the two claims. For example, the relevant narrative in the SHEV application started in 2011 when the applicant became the president of the club and the reasons for the applicant leaving his home town in the first instance were different and given in greater detail than in the 2013 PVA.
On 14 June 2016, the applicant was interviewed by an officer of the Department for the purposes of the SHEV application (SHEV interview).
On 22 July 2016, a delegate of the Minister made a decision to refuse to grant the applicant a SHEV. The delegate accepted that the applicant had some limited association with the Club in a minor capacity but found that the applicant had exaggerated adverse interactions between the Club and paramilitary groups to enhance his profile. Given his conclusions about the level of the applicant’s involvement in the Club, the delegate found that the applicant was of no particular adverse interest to the Sri Lankan authorities, or any associate paramilitary groups or anyone else prior to his departure from Sri Lanka. These findings were based on the applicant’s answers to questions at the SHEV interview about his role in and knowledge of the Club.
The delegate’s decision was referred to the IAA under pt.7AA of the Act for review. The applicant was informed of the referral in a letter dated 28 July 2016. An information sheet enclosed with that letter stated:
…
The department will provide the IAA with all documents the department considers relevant to your case. This includes any documents you provided to the department in connection with the protection visa application. Generally, we will conduct a review of the department’s decision solely on the basis of the information provided by the department.
…
The applicant engaged a different migration agent for the purposes of the review. On 25 August 2016, the new agent sent a number of documents to the IAA by email including documents purporting to corroborate the applicant’s claims and a submission directed at the reasons for the delegate’s decision. The agent subsequently sent the IAA a statutory declaration made by the applicant on 31 August 2016, setting out details of the applicant’s duties as president of the club, activities undertaken by him and other details about the club.
On 11 October 2016, the IAA made a decision affirming the decision of the delegate not to grant the applicant a SHEV.
IAA’s reasons for decision
Given the nature of the issue in these proceedings it is unnecessary to examine all of the reasons for the IAA’s decision. It is sufficient to set out only the bases on which the IAA found that the applicant’s claims concerning the Club were not credible.
The IAA wrote at [14], that it considered that the applicant’s evidence had been “materially inconsistent and implausible and that those inconsistencies and implausibilities undermine the credibility of his claims.” It explained that the inconsistencies and implausibilities referred to included:
15.His position with the youth club: The applicant variously described himself as the secretary and the president of the youth club. At his entry interview, he stated he was the president of the youth club. In the statutory declaration accompanying his invalid PV application dated August 2013 (“the PV statement”) he said after he completed school in 2010, he became the secretary of the youth club. He made the same claim in the statutory declaration accompanying his SHEV applicant [sic] dated November 2015 (“the SHEV statement”). In the PV statement he claimed to become president after he was released from detention by the Karuna group, which was after he returned to his home village and after he had been in hiding for several months. However in the SHEV statement he claimed he became president in December 2011, which he also claims is before he went to hide in the other village. And, at the SHEV interview, he claimed he became secretary in 2010 and was already the president at the time the supporters of the Karuna group first approached the youth club for support in December 2011. He claimed he was appointed president at a meeting because the former president was not performing well – which he suspects was because the former president was being pressured by supporters of the Karuna group. Contrary to all of that, in the support letters he provided with the SHEV application from the Temple trust board and from the youth club … I consider these multiple inconsistencies in the applicant’s claimed role with the youth club undermine his claim to have had any role with the youth club.
16.Club membership: The applicant variously claimed the youth club had 67 members (PV statement), 240 members (SHEV statement) and 180-210 members (SHEV interview). In addition, in the PV statement, he claimed after he was threatened by both the Karuna group and the Pillayan group, he dissolved the youth club. He did not repeat that claim in the SHEV statement and in the SHEV interview he stated he heard the youth club continued to operate but had only a few members who met at the GS office. While the number of members claimed in the SHEV statement and at the SHEV interview is within a tolerable variance, the membership numbers in the SHEV application are approximately three times the membership numbers he claimed in the invalid PV application. I consider that is a material inconsistency which further undermines the applicant’s credibility. … These inconsistencies in the applicant’s evidence further undermine the credibility of his claims he had any role in the youth club.
17.Attack on his father: The applicant has consistently claimed at the entry interview, in the PV statement, the SHEV statement and at his SHEV interview that his father was attacked and injured by a sword on his way home from attending the police station. However, his evidence as to what injuries his father suffered has been inconsistent. In the PV statement, the applicant claimed his father was cut on the neck, was hospitalised with nerve damage, is paralysed in one arm and one leg and cannot work. In the SHEV statement he declared his father suffered injuries to his neck and legs and can no longer walk. … I consider the applicant’s inconsistent claims as to the injuries his father suffered and the implausible circumstances surrounding the attack undermine the credibility of the applicant’s claims.
18.Timing of attack on father and hiding in other village: Another concern I have regarding the attack on his father is the date it occurred. He claims the attack was a result of his father complaining to the police about what had happened to the applicant when Karuna group supporters came to his home and took the applicant’s laptop and ID card. That incident at the applicant’s home happened a few days after the first incident with the Karuna group at the youth club, which he stated at the SHEV interview occurred in December 2011 (his PV and SHEV statements reveal no dates of these events). In the PV statement, he claimed his father went to the police station so a new ID card could be issued to the applicant. The applicant’s evidence is elsewhere that after the incident where the supporters of the Karuna group took his ID, his parents sent him to live with the family friend in another village. His evidence elsewhere too is that he stayed in that village for seven months in the PV statement, yet at the SHEV interview, he said he stayed at the village for about five months, he added at the SHEV interview the family friend worked in a GS (Grama Niladhari) office, but elsewhere said during the SHEV interview the family friend was a youth services officer. However, in his PV application forms, he declared he resided in the other village from April to November 2011. He declared an address in the other village in his SHEV application form from April to 6 September 2012. At his entry interview he declared he lived in the other village from 2008 to 2010. There is a distinct lack of consistency in the applicant’s claims regarding his living in another village with a family friend.… The inconsistencies in the timing in the claimed chain of events undermines the credibility of the applicant’s claim he ever lived in hiding with a family friend in another village and undermines the circumstances under which he claims his father was attacked.
19.He further claimed in the PV statement and the SHEV statement, the supporters of the Karuna group threatened to use his ID to implicate him in a crime. I note, while the PV and SHEV statements are unclear as to any gap in time between his father being attacked and his learning of the attack, during the SHEV interview, he stated he learned about it the day after the attack. … I consider the implausible nature of the applicant’s claims further undermines the credibility of the applicant.
20.Meeting on the beach: In the PV statement, the applicant claims he was threatened by the supporters of the Karuna group when he met them at a pre-arranged meeting on a beach. In the SHEV statement and at the SHEV interview, he claimed supporters of the Karuna group came to the youth club and took him to the beach, that meeting was not pre-arranged. He further added in the SHEV statement and at the SHEV interview, while on the beach, he was threatened at gunpoint, a claim he did not raise in the PV statement. I consider being threatened at gunpoint to be a particularly memorable event and it concerns me the applicant did not make that claim consistently throughout his claims. That lack of consistency and the inconsistency as to the pre-arranged nature of the meeting on the beach are further instances which weigh against the applicant being a credible witness.
21.Detention by Karuna group: The applicant claims on returning to his home village after the attack on his father, he learned his brother was missing and went to the camp of the Karuna group to find his brother. I find it difficult to accept as plausible the applicant would go alone to the Karuna group camp if his father had just been injured in a sword attack and he had been threatened himself by the supporters of the Karuna group. In the PV statement, the applicant claims he found his brother at the camp, he was detained and beaten for two days, but released after he agreed to personally help the Karuna group. He washed their cars, delivered pamphlets and arranged a public meeting with the help of others, which 180 people attended. In the SHEV statement, he claimed he only learned his brother was at the Karuna camp at the time they were both released following his being detained and assaulted for two days. He held a meeting at the youth club to arrange the public meeting for the Karuna group, which 200 people attended. At the SHEV interview he claimed the members of the youth club helped him to arrange the public meeting to which 250 people attended. He made new claims his brother witnessed a killing and he witnessed a man being tortured while detained by the Karuna group. Other new claims he made at the SHEV interview were the applicant witnessed three murders while working with the Karuna group and that he was photographed holding a weapon while appearing at the public meeting, the CID have a file on him and have been looking for him. It concerns me such important matters such as witnessing killings and being photographed holding a weapon were raised by the applicant only at the SHEV interview and were not made consistently during the course of his application for protection. It concerns me too that similar to the member numbers discussed above the applicant keeps increasing the size of the people involved in his activities in the SHEV interview, compared to earlier evidence in the PV statement and SHEV statement. I consider the applicant not consistently making claims of such important matters and his increasing participant numbers are further reasons supporting a finding the applicant was not a credible witness and undermine the credibility of his claims.
22.Snake bite: In the PV statement, the applicant claims during the second time he went into hiding (although he does not say where he hid), he was found at a Temple by supporters of the Karuna group, taken to a dark room, where he was bitten by a snake. … He did not repeat this claim in his SHEV statement. Rather, he says before leaving Sri Lanka, he went again to live with the family friend in the other village after the Pillayan group asked him to help them the day after he arranged a meeting for the Karuna group. At the SHEV interview, however, he claimed it was supporters of the Pillayan group who took him to a room, surrounded by paddy fields, where he was bitten by a snake. He did not state when that happened or how he escaped or how he obtained treatment. I consider this yet another instance of the applicant providing material inconsistent evidence which undermines the credibility of his claims.
23.Abduction due to father’s political affiliation and forced labour of brothers: At the entry interview, the applicant claimed he was abducted for three days due to his father’s political affiliation. He did not repeat these claims elsewhere, nor did he claim elsewhere his father had any political affiliations. While I note this claim was made at the entry interview, shortly after he arrived in Australia and while the applicant was unrepresented, I still place weight on the applicant making such an otherwise unsubstantiated claim as another example of his not being a credible witness. Similarly, in the PV statement, he claimed while he was living in the other village, supporters of the Karuna group forced his brothers to do unpaid, hard manual labour. He did not repeat these claims in his SHEV statement, but rather said after he left Sri Lanka, the Pillayan group ordered his brother to distribute leaflets. When asked about his brother being forced to work during the SHEV interview, the applicant’s answers were not related to the claim in the PV statement. I consider these to be further examples of the applicant providing inconsistent evidence, which undermines the credibility of his claims.
(Emphasis in original and citations omitted)
The IAA then went on to consider the documents produced by the applicant in support of his claims before referring briefly to some country information that appeared to support, at a general level, what the applicant said about the paramilitary groups. It concluded at [27], that “… due to the multiple material inconsistencies, implausibilities and non-persuasive explanations of the applicant as well as his providing what I consider to be non-genuine documents …”, the applicant’s claims of past harm were not credible and that the applicant had fabricated those claims in their entirety as a basis upon which to apply for protection.
The IAA then went on to deal with a number of other claims; however, as I have observed, it is unnecessary for present purposes to refer to these in any detail. The IAA concluded that it was not satisfied that the applicant met the criteria for the grant of a SHEV and so affirmed the decision of the delegate.
Consideration
The applicant’s arguments
The central propositions in the applicant’s case are that the IAA:
a)first, made its decision on the basis of issues not previously put or identified to the applicant (new issues) such that the applicant did not have the opportunity to comment on the issues;
b)secondly, did not exercise its power under s.473DC(3) of the Act, or consider whether to exercise its power to invite the applicant to give new information concerning the new issues; and
c)thirdly, thereby acted unreasonably and denied the applicant procedural fairness.
The first of those propositions is uncontroversial if “issues” is understood at a granular level. That is, if it is understood to mean that the IAA made its credit findings on a different basis than the delegate. As the passages set out above reveal, the IAA based its credit findings on inconsistencies between the versions of relevant events given by the applicant at various times whereas the delegate did not. The delegate did make credit findings adverse to the applicant and so, at a broader level, the “issue” of the applicant’s credit was not a new one on review.
Section 473DC of the Act provides:
473DC Getting new information
(1)Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:
(a)were not before the Minister when the Minister made the decision under section 65; and
(b)the Authority considers may be relevant.
(2)The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.
(3)Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a)in writing; or
(b)at an interview, whether conducted in person, by telephone or in any other way.
(Emphasis in original)
The applicant accepted that, in light of ss.473DC and 473DB of the Act (which is set out at [55] below), the IAA had no duty to put the new issues to the applicant for comment; however, he argued that it was both unreasonable that it did not and that it did not consider doing so.
First, he argued that the Department letter of 8 September 2015 (see [10] above) was misleading to the extent that it suggested that his 2013 PVA was not kept in the Department’s files.
Secondly, he argued that a discretionary power must be exercised reasonably: Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [29], [47] and [63]; [2013] HCA 18 (Li).
Thirdly, he relied on the following passages in the judgment of Judge Driver in DZU16 v Minister for Immigration & Border Protection (2017) 321 FLR 306; [2017] FCCA 851 (DZU16):
…
120In the absence of clear words to the contrary, a statutory discretion has to be exercised reasonably. In considering what is “reasonable” close attention must be given to the scope and purpose of the statutory provision which confers the discretion and other related provisions. What is reasonable in the context of Pt 7AA must be seen in the context of:
a)there being considerable restrictions on the natural justice hearing rule;
b)the lack of requirement for an oral hearing;
c)the fact that the Authority did not have the power to remit the application to the delegate with a direction that he or she consider a particular factual issue; and
d)as Gageler J said in Li at [99], albeit in the context of Part 5 of the Migration Act, restrictions on natural justice gives added significance to the implied requirement of the review authority to act reasonably. His Honour continued at [102]. Again in the context of Part 5:
The permissive terms in which the power to adjourn is conferred on the MRT make clear that the power itself carries no duty on the MRT to consider its exercise. The overriding duty of the MRT to review a decision may nevertheless require the MRT, acting reasonably, to consider exercise of the power in a particular case. (Footnote omitted.)
121Applying those principles to the current case, the discretion in s 473DC(3) exists to be exercised in an appropriate case, in aid of the objective of making the correct or preferable decision. In circumstances where, as here, the applicant could not have known of the issue dispositive of the review of his case without being informed, and where there is a power to inform him of that issue and seek information or comment relevant to it, the failure to exercise or consider exercising the relevant power to inform him of the issue lacks an evident and intelligible justification, in addition to having resulted in an unfair procedure.
122Thus, contrary to the Minister’s submissions, it was unreasonable for the Authority not to consider giving the applicant an effective opportunity to address the issue that it found dispositive. …
…
(Citations omitted)
The applicant argued that the IAA’s failure to exercise the power under s.473DC of the Act involved a denial of procedural fairness for the following reasons.
Contrary to a number of decisions in this Court, s.473DA of the Act did not operate to exclude the principles of procedural fairness which would otherwise have required the IAA to give the applicant the opportunity to address the new issues. Section 473DA of the Act provides:
473DA Exhaustive statement of natural justice hearing rule
(1)This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.
(2)To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
(Emphasis in original)
Relying on the decision of the High Court in Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23 (Saeed), the applicant argued that s.473DA of the Act did not apply to ss.473DC(1) and (3) because those provisions were not “requirements” but powers.
The Minister’s arguments
The Minister argued that the applicant’s ground was both factually and legally flawed.
First, the Minister did not agree that the IAA relied on any issue of which the applicant was unaware. He submitted that, for the purposes of determining whether there has been a denial of procedural fairness, there is a distinction between an “issue” and the evidence that goes to that issue. Here, the IAA only relied on material that the applicant had himself given to the Department.
Secondly, the Minister disputed that the Department’s letter of 8 September 2015 was misleading: it stated in plain terms that a copy of the 2013 PVA was enclosed with the letter, not that the original and all copies of it were enclosed.
The Minister made the following points about the legal aspect of the applicant’s case.
First, unlike a review of a delegate’s decision under pts.5 and 7 of the Act, there is no obligation under pt.7AA to hold a hearing at which an applicant is invited to “give evidence and present arguments relating to the issues arising in relation to the decision under review.” (cf. ss.360 and 425 of the Act).
Secondly, unlike the provision considered in Saeed (s.51A of the Act), s.473DA is not qualified by the phrase “in relation to the matters it deals with”. In light of that, the requirements found in div.3 of pt.7AA of the Act are the only requirements of the natural justice hearing rule, irrespective of whether only some or all of the provisions in that Division satisfy what are ordinarily the fundamental aspects of that rule.
Thirdly, the application of legal unreasonableness to a discretion that has not yet been exercised is too much of an extension of the principles applied by the High Court in Li: Yasmin v Attorney-General (Cth) (2015) 236 FCR 169 at [120]; [2015] FCAFC 145. To the extent that Judge Driver found otherwise in DZU16, his Honour’s decision was inconsistent with binding authority and was wrong.
Fourthly, the IAA cannot have acted unreasonably in circumstances where there was never a request for it to obtain new information. The mere fact that credit is in issue is not sufficient to compel the IAA to invite the applicant to give new information under s.473DC(3) of the Act. To find otherwise would be to undermine the scheme of pt.7AA of the Act.
Fifthly, the approach in DZU16 in relation to whether the IAA was obliged to consider whether to exercise the power in s.473DC(3) of the Act, depended on the particular circumstances of the applicant in that case. That approach was erroneous. The correct approach to statutory construction requires that there is either a duty to consider exercising a power or there is not. Generally speaking, there is no such duty: Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [22]; [2011] HCA 1 (French CJ and Kiefel J) and Animals’ Angels e.V. v Secretary, Department of Agriculture (2014) 228 FCR 35 at [89]; [2014] FCAFC 173 (Kenny and Robertson JJ, Pagone J agreeing). More particularly, the context of s.473DC of the Act suggests that there is no duty in this case.
Sixthly, in the event DZU16 is not found to be clearly wrong, it is distinguishable.
Resolution
To the extent that the submissions of either party focussed on the nature of an “issue” or the existence of a “duty” they did not grapple with the real question for resolution. Given the nature of this Court’s jurisdiction under s.476 of the Act in light of s.474, that question is always whether the IAA’s decision was affected by jurisdictional error. Broadly stated, that means that the applicant must establish that the IAA’s decision to affirm the delegate’s decision after a “review” of that decision was somehow affected by an error. Too fine a focus on the concepts of “duty” and “issues” can operate to distract from that question.
As was demonstrated in Li, a decision-maker can fall into jurisdictional error in connection with the failure to exercise a power that it has, generally speaking, no duty to exercise. Similarly, a decision-maker can deny a person procedural fairness if it does not give a person affected, a reasonable opportunity to respond to material that has the potential to affect his or her credit when credit is clearly a matter that is open to be determined.
Further, while questions of statutory construction are involved here, that does not mean that the outcome is to be determined without any regard to the facts of the case. Questions of both legal reasonableness and procedural fairness turn not only on the relevant statutory context but also, subject to the level of prescription in the statute, the factual context. Both issues can be said to have a chameleon-like quality that adjusts according to the circumstances of each case.
With those prefatory remarks in mind, one issue in the proceedings can be dealt with briefly. The applicant’s contention that s.473DA of the Act must be construed so that the hearing rule of natural justice has some application to a review under pt.7AA is inconsistent with binding authority and must, for that reason alone be rejected.
In DBE16 v Minister for Immigration & Border Protection [2017] FCA 942, Barker J said at [62]:
Section 473DA(1) of the Migration Act makes clear that Div 3 of Pt 7AA, together with s 473GA and s 473GB, is an exhaustive statement of the natural justice hearing rule in relation to reviews by the Authority. The provision may be contrasted with s 422B(1), which deals with reviews by the Administrative Appeals Tribunal under Pt 7 of the Migration Act. Section 422B(1) provides that Div 4 of Pt 7 is an exhaustive statement of the natural justice hearing rule “in relation to the matters it deals with”, suggesting that there is still some scope for the operation of common law principles of natural justice that are able to operate consistently with the provisions in Div 4 of Pt 7. See Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23. Markedly, s 473DA(1) is not qualified in this manner.
In light of that authority, the argument that the applicant was denied procedural fairness must fail.
The principal issue of unreasonableness requires more detailed consideration. First, it is necessary to have regard to the statutory context in which the IAA was operating.
The obligation of the IAA was to “review” the delegate’s decision: s.473CC of the Act. The applicant submitted that this duty required the IAA to determine the correct or preferable decision on the basis of its consideration of the material available to it. That is the orthodox view of the meaning of review. Some doubt has been expressed about that view in the context of pt.7AA of the Act and particularly in light of the significant differences between the IAA’s function and powers and those of the Administrative Appeals Tribunal (Tribunal): see Minister for Immigration & Border Protection v AMA16 [2017] FCAFC 136 at [90] (Griffiths J).
In DRG16 v Minister for Immigration & Border Protection [2017] FCCA 2063, I expressed the view[1] (at [69]) that the word “review” carried the same meaning in pt.7AA as it did in pts.5 and 7 of the Act. That decision is on appeal and it remains to be seen whether that aspect of it was correct.
[1] By reference to the principle of statutory construction referred to in Kline v Official Secretary to the Governor General & Anor (2013) 249 CLR 645 at [32]; [2013] HCA 52.
In the meantime, in BMB16 v Minister for Immigration & Border Protection [2017] FCAFC 169 (BMB16), the Full Court of the Federal Court has rejected an argument that the duty of the IAA under s.473CC of the Act to “review” the delegate’s decision requires it to find error in the delegate’s reasons. Dowsett J found little assistance in other parts of the Act dealing with merits review and accepted that the scope of the “review” was somewhat limited (see [16]). Besanko J at [38], found that:
… subject to the express limitations and restrictions identified in Part 7AA, a review under that Part involves a fresh consideration by the Authority of the decision with power to make such findings as it considers appropriate.
Charlesworth J found that the duty of the IAA to review was sui generis and that it was inaccurate to say that that entailed the duty to arrive at the “correct and preferable decision”: [87]. However, her Honour did not accept that that meant that the IAA must first find error in the delegate’s decision before departing from findings made by the delegate: [88].
There is little doubt that the novelty of pt.7AA of the Act and the differences between the reasons of each of the judgments in BMB16 will provide fertile ground for debate in the months to come. That much should come as no surprise to anyone with experience in the field of migration law: see, for example, Stephen Gageler SC (as his Honour then was), ‘Impact of migration law on the development of Australian administrative law’ (2010) 17 AJ Admin L 92. However, given the approach of the parties, that debate can wait for another day.
The power of the IAA upon conducting a review (as opposed to the powers that may be exercised for the purpose of the review) are set out in s.473CC(2) of the Act:
(2)The Immigration Assessment Authority may:
(a)affirm the fast track reviewable decision; or
(b)remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.
As Judge Driver noted in DZU16, those powers do not include the power to remit the matter to the Minister with a direction to consider a particular factual issue. It is not entirely clear why that was important to his Honour’s decision: see DZU16 at [120]. That sort of power does not appear to arise in a review under either pts.5 or 7 of the Act (cf. ss.349 and 415 of the Act and compare reg.4.43 with regs.4.15 and 4.33 of the Migration Regulations 1994 (Cth)). The plain fact is, that there are more than one or two criteria for the grant of a protection visa. One example, in respect of a SHEV, is the medical examination criterion in cl.790.222 of sch.2 to the Regulations. That means that, if the IAA (or, in other instances, the Tribunal) is satisfied that one of the criteria in s.36 is satisfied by an applicant, there remains the question of whether the other criteria are also met. That question will ordinarily be dealt with by a delegate rather than by the IAA or Tribunal. This does not mean that the duty to “review” is something less than a determination of what is the correct decision on the material before the IAA (leaving aside “preferable” for the moment because there is no relevant discretion to be exercised).
The “review” must be conducted by considering the material provided to the IAA by the Secretary of the Department under s.473CB and without accepting or requesting new information and without interviewing the applicant: s.473DB(1). That, however, is subject to pt.7AA of the Act, other provisions which give the IAA the power both to accept and request new information and to interview the applicant: see ss.473DC – 473DF. “New information” is, essentially, information or documents that were not before the Minister (or delegate) when the decision on review was made: s.473DC(1).
The power to get new information is, in a sense, qualified by the fact that the IAA’s power to consider that information is limited by s.473DD. That section provides:
473DD Considering new information in exceptional circumstances
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a)the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b)the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims.
(Emphasis in original)
As I have mentioned, s.473DA(1) of the Act operates to exclude the requirements of the natural justice hearing rule in relation to reviews conducted under pt.7AA by making div.3 (which includes ss.473DA-473DF) an exhaustive statement of those requirements. Section 473DA(2) makes it plain that:
… nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.
Given that there is no free-standing obligation to invite an applicant to a hearing or to provide new information, the only requirement which might fall within the “natural justice hearing rule” relates first, to “new information” and secondly, to “new information” that falls within s.473DE(1). The possible exception to that arises by implication from the requirement in s.473DD(b) that the applicant satisfy the IAA of either of the two matters in sub-ss.473DD(b)(i) and (ii).
The limited scope of the requirements of the natural justice hearing rule give added force to the following observations made by Gageler J in Li at [99] in respect of the duties of the Tribunal under div.5 of pt.5 of the Act:
The legislative declaration that Div 5 of Pt 5 “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with” (s 357A(1)) gives added significance to the implied requirement for the MRT to act reasonably in the performance of its procedural duties and in the exercise or non-exercise of its procedural powers. The significance is that the implied statutory requirement for the performance of those duties and the exercise of those powers always to be reasonable results in the division providing a measure of procedural fairness sufficient to meet the statutory description of it as a statement of the requirements of the natural justice hearing rule.
It may be noted however, that unlike the Tribunal, there is no exhortation on the IAA to act in a way that is “fair and just” (cf. s.357A(3)). By contrast, the IAA is to “pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3”: s.473FA(1). The parameters of the IAA’s “area of decisional freedom”[2], that is, the area within which reasonable minds might differ, must be seen in light of the objective expressed in s.357A of the Act, as well as the limited scope of the requirements of the natural justice hearing rule in div.3 of pt.7AA.
[2] See Li at [28] (French CJ).
The difficulties with the applicant’s argument are immediately apparent once the statutory context is considered. His arguments spring from, and to a large extent, rely upon decisions that concern very different statutory contexts. Although not expressly relied on by the applicant, the following passage from the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591‑592; [1994] FCA 293 appears to form the basis of the applicant’s contention that there was unfairness involved in the IAA’s conduct of the review:
…
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. …
However, the first sentence in this passage is important. What is fair is determined in the first instance by what the statute requires. The statute here requires very little and nothing in terms of the material that was before the delegate.
Even if I were wrong about that, the fact here is that the material relied on by the IAA came from the applicant in the first place, related directly to his claim for protection and was before the delegate. I do not accept that the applicant was misled by the letter of 15 September 2015. He did not give evidence to that effect and the obvious inference from the letter was that the original 2013 PVA was kept by the Department. In addition to all of that, the plain requirements of the statute that the Department give the IAA relevant material, and the IAA consider the material that was given to it by the Department, made it obvious that the IAA was going to consider the material.
Unlike the circumstances in DZU16, this was not a case where the applicant could not have known that the IAA might consider the material.
Further, given the plain inconsistencies between that material and the later evidence given by the applicant in support of the SHEV application, it was obvious that the IAA might draw adverse inferences from the material. The fact that the delegate did not draw those inferences did not make them any less obvious. There is no provision the equivalent of ss.360 or 425 in pt.7AA which sets, as the starting point for consideration of compliance with the statute, the identification of the reasons for the delegate’s decision: see SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63.
The IAA did not, in its statement of reasons, expose any reasoning concerning its power under s.473DC. Thus, this is not a case where unreasonableness might be found by the identification of some form of recognised species of error. Rather, the applicant’s case was “outcome focused”: see Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44]. In particular, the outcome was a failure to exercise, or to consider the exercise of power that would have afforded the applicant a fair opportunity to address the possibility that the IAA might rely on inconsistencies that were no part of the delegate’s reasons.
As the Full Court noted in Minister for Immigration & Border Protection v Eden (2016) 240 FCR 158; [2016] FCAFC 28 at [58]-[65], determination of unreasonableness in judicial review of administrative decisions involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.
In light of the statutory provisions discussed above, and the conclusion that the IAA’s reliance on the earlier material provided by the applicant was obvious, neither the failure to exercise, nor any failure to consider the exercise of power to obtain new information under s.473DC of the Act was legally unreasonable. That conclusion makes it unnecessary to determine whether the IAA did, or did not consider the exercise of that power.
Conclusion
There is no jurisdictional error in the IAA’s decision. The application must be dismissed.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 8 December 2017
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