Dju20 v Minister for Immigration

Case •

[2020] FCCA 2635

•

17 September 2020

FEDERAL CIRCUIT COURT OF AUSTRALIA

DJU20 v MINISTER FOR IMMIGRATION & ORS [2020] FCCA 2635
Catchwords:
MIGRATION – Application for judicial review of decision of Independent Assessment Authority (IAA) affirming decision of delegate not to grant Safe Haven Enterprise (subclass 790) visa – whether Secretary of the Department (Secretary) gave to the IAA statutory declaration made by the applicant that formed part of a previous but invalid application for a visa – whether Secretary considered whether statutory declaration was relevant to the IAA’s review of the delegate’s decision – whether by not considering the relevance of the statutory declaration the Secretary failed to comply with s.473CB(1)(c) of the Migration Act 1958 (Cth) – whether exercise of IAA’s jurisdiction to review delegate’s decision was conditioned by the Secretary’s strict compliance with s.473CB(1)(c) – whether the Secretary’s giving the statutory declaration to the IAA could have made any difference to the outcome of the IAA’s review – whether assuming the Secretary did consider whether the statutory declaration was relevant to the IAA’s review it was reasonably open to the Secretary to consider the statutory declaration was not relevant to the review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 46, 46A, 47, 65, 91K, 418, 418(3), 473, 496(2)

Public Service Act 1999 (Cth), s.57
Acts Interpretation Act 1901 (Cth), s.19A(1)

Cases cited:

McLean Bros & Regg Ltd v Grice (1906) 4 CLR 835

SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38

WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
Applicant: DJU20
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY
Third Respondent: SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION
File Number: SYG 2181 of 2020
Judgment of: Judge Manousaridis
Hearing date: 11 August 2017
Date of Last Submission: 11 August 2017
Delivered at: Sydney
Delivered on: 17 September 2020

REPRESENTATION

Counsel for the Applicant: Mr J Gormly
Solicitors for the Applicant:  Labour Pains Legal
Counsel for the First Respondent: Mr T Reilly
Solicitors for the First Respondent: Mills Oakley

ORDERS

  1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2181 of 2020

DJU20

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

SECRETARY OF THE DEPARTMENT OF IMMIGRATION AND BORDER PROTECTION

Third Respondent

REASONS FOR JUDGMENT

Introduction

  1. The question in this application for judicial review is whether, when affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise (subclass 790) visa (SHEV), the second respondent (IAA) made a jurisdictional error because a statutory declaration the applicant made that formed part of a previous but invalid application for a protection visa was not included in the material that was given to the IAA purportedly pursuant to s.473CB of the Migration Act 1958 (Cth) (Act).

Background

  1. The applicant is a national of Sri Lanka, a Tamil, and a Christian. He arrived in Australia on 20 August 2012 as an unauthorised maritime arrival.[1] The applicant was detained and underwent a “biodata” interview,[2] and, later, an “Irregular Maritime Arrival Interview”.[3] On 31 January 2013 the applicant was granted a Temporary Humanitarian visa.

    [1] CB1-121

    [2] CB1-213, [64], [65]

    [3] CB1-1-17

  2. On 16 August 2013 the applicant, with assistance, lodged a form of application for a Protection (Class XA) visa (purported PC Application) with the Department of Immigration and Border protection (as the Department of Home Affairs was then known) (Department of Immigration). The applicant included in that application a statutory declaration in which he set out his claims for protection (2013 Statutory Declaration).[4]

    [4] Affidavit of A Williams, [3]

  3. By letter dated 26 May 2014 the Department of Immigration informed the applicant’s representative that the application the applicant lodged “is not currently a valid application”; and that it was invalid because of s.46(2A) or s.91K of the Act or both (as those provisions stood at the time the applicant purportedly applied for a protection visa). The letter further stated that the applicant was prevented from lodging a valid application unless the Minister agreed to lift the bar provided for by those provisions. The letter concluded:

    When the Minister makes a decision, you will be notified and requested to lodge the Visa Application Charge (VAC) for your respective clients within a certain timeframe, when that payment has been correctly made it will render the application valid.

  4. Even though the Department of Immigration treated the purported PC Application not to be a valid application for a visa, the Department of Immigration opened and maintained a file in relation to it.[5] The file contains a copy of the purported PC Application, including the 2013 Statutory Declaration, a copy of the Department of Immigration’s letter dated 26 May 2014, a notification from the applicant’s representatives that they were no longer acting for the applicant, and a request for the payment of the costs of certain health services to the applicant.

    [5] Exhibit A

  5. By letter dated 17 August 2015 the Department of Immigration sent a letter to the applicant, the opening paragraph of which is as follows:[6]

    You have previously submitted a purported application for a subclass 866 Permanent Protection visa. However, as you have arrived in Australia unlawfully and you were affected by one or more application bars in the Migration Act, this application was invalid and cannot be processed any further. We have returned a copy of your original application form to you with this letter.

    [6] CB1-18

  6. The letter then referred to changes in the law about the protection application process for certain illegal maritime arrivals, identifying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). After referring to the “Fast Track Assessment process”, the letter referred to the applicant’s having entered Australia as an unauthorised maritime arrival, and, therefore, to the applicant’s being prevented by s.46A(1) of the Act from lodging a valid application for any visa while in Australia. The letter then stated that the Minister had exercised the 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 SHEV, and the applicant was invited to lodge an application for a TPV or a SHEV within 28 days.

  7. The applicant applied for a SHEV on 17 September 2015.[7] It was accompanied by a statutory declaration made by the applicant in which he stated his claims for protection (2015 Statutory Declaration).[8] The 2015 Statutory Declaration is largely identical with the 2013 Statutory Declaration.[9] The applicant made the following claims:

    a)The applicant was born in Jaffna where he lived until 1996 when he and his family moved to Vanni. The applicant stayed there for two years when he moved to Mannar.

    b)In 2006, while the applicant’s mother, father, and brother were driving by motorbike, a “white van came and rounded them up”. The applicant’s father was beaten as a result of which he was badly injured, lost one eye, and stopped working.

    c)While in Mannar the applicant’s cousin was forced to join the Liberation Tigers of Tamil Eelam (LTTE). The cousin fought, he was injured, and taken prisoner by the Sri Lankan Army (SLA) who detained him until July 2010. After his release the applicant’s cousin stayed with the applicant. In the meantime the applicant’s cousin’s brother was taken by the SLA on suspicion of being a member of the LTTE.

    d)While the applicant’s cousin stayed at the applicant’s house the Sri Lankan “intelligence authorities” came to the applicant’s house regularly, and they questioned him accusing him of being in the LTTE and helping them. He was invited to attend an intelligence camp under the pretence of requesting him to carry out mechanical work, but when he arrived he was interrogated and tortured. They threatened to do to the applicant what they did to the applicant’s cousin. The applicant was released but the applicant attended the camp on a further four occasions during which he was interrogated and, on one occasion, again tortured.

    e)The applicant then realised it was not safe for him to stay in Sri Lanka. On the advice of his mother the applicant left Sri Lanka and came to Australia by boat.

    [7] CB1-25-68

    [8] CB1-63-68

    [9] Applicant’s Submissions, [8]

  8. The delegate did not accept the applicant’s claims and, on 1 April 2016, rejected his application for a SHEV. Although the delegate accepted it was plausible that in 2008 the applicant might have been detained for a brief time for questioning about a motorcycle bomb that had detonated in Manipay, the delegate did not accept the applicant had been repeatedly detained, tortured, and accused of being a LTTE supporter or potential bomb maker. Nor did the delegate accept that the applicant’s cousin’s brother had been detained. The delegate found the applicant had provided contradictory evidence regarding the instances he claimed to have been detained.[10]

    [10] CB1-30, [34]

  9. The delegate’s decision was referred to the IAA on 4 April 2016. There is in evidence a copy of a document titled “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” (Checklist). The Minister produced this document in answer to a notice to produce which called for the production of, among other things, “correspondence including emails relating to the constitution and provision of ‘review material’ by the secretary to the Authority pursuant to s 473CB Migration Act”. Under the heading “File format”, the Checklist states that the “applicant file is contained in a PDFP”, which the Checklist notes stands for “PDF Portfolio”. Under the heading “The PDFP contains the following material” there is a table divided into three columns. The first column, which is headed “Description”, describes documents, the second, which is headed “Status”, provides for the noting of “Yes”, “No”, or “N/A”, and the third is titled “Non-disclosure considerations”. Relevant to the proceeding before me is the document the Checklist describes as “Any referenced visa applications made by the applicant” to which the status of “N/A” is assigned.

  10. The IAA accepted the applicant’s cousin fought with the LTTE, that the cousin suffered serious injuries, later released from a rehabilitation camp, and, when released, came to live with the applicant’s family who cared for him.[11] The IAA also accepted that authorities visited the applicant at his home about two months after the applicant’s cousin had been released, and again one week later.[12] The IAA did not, however, accept that the applicant was questioned or tortured.[13] The IAA particularly relied on the applicant’s failing to mention having been tortured until he lodged his application for a SHEV in September 2015.[14]

    [11] CB1-209-210, [34]

    [12] CB1-210, [36]

    [13] CB1-214, [70]

    [14] CB1-213, [63]

The ground and competing submissions

  1. The applicant relies on the following ground of application:[15]

    [15] The application contains two grounds of application. The applicant, however, abandoned ground 2.

    The Authority’s statutory task under s 473CC Migration Act 1958 (the Act) to review the delegate’s decision miscarried because of the failure of the third respondent Secretary to comply with the mandatory obligation under s 473CB(1)(c) of the Act to provide certain material to the Authority in order for it to carry out its review obligation.

    Particulars

    a.The Secretary failed to give the Authority a statutory declaration made by the applicant in July 2013 setting out his claims for protection, including claims of questioning and torture.

    b.The applicant made the statutory declaration as part of an application for a protection visa which the applicant lodged with the Department prior to the lifting by the first respondent Minister of the s 46A bar against the filing of applications for visas by unauthorised maritime arrivals. Because of this the application was deemed to be invalid, but remained within the Secretary’s possession or control such that the Secretary was under a duty under s 473CB(1)(c) to give the statutory declaration to the Authority for its review.

  2. This ground is premised on an asserted fact, namely, that the 2013 Statutory Declaration was not given to the IAA. The applicant relies on three matters for submitting the asserted fact is true: the IAA did not refer to the 2013 Statutory Declaration; the Department of Immigration created and maintained a separate file in relation to the Purported PC application with the 2013 Statutory Declaration being included in that file, but not in the file that was created in response to the application for a SHEV; and the Checklist does not refer to the 2013 Statutory Declaration.

  3. The matters on which the applicant relies are probative of the 2013 Statutory Declaration’s not having been given to the IAA; and the Minister does not submit the 2013 Statutory Declaration was given to the IAA. I find, therefore, that the 2013 Statutory Declaration was not given to the IAA.

Parties’ submissions.

  1. The applicant’s submissions may be summarised as follows:

    a)Paragraph (c) of s.473CB(1) of the Act was “engaged” by the 2013 Statutory Declaration because it had been lodged with the Department of Immigration in support of an application for a protection visa and remained in the possession and control of the Secretary of the Department (Secretary).[16]

    b)Being in the Secretary’s possession and control, the Secretary was required to “form a view as to the relevance of each document in the Secretary’s possession or control to the review of the decision by the” IAA.[17] The quoted words are from the judgment of the Full Federal Court in WAGP v Minister for Immigration and Multicultural and Indigenous Affairs.[18]

    c)From the fact that the 2013 Statutory Declaration was not given to the IAA, it should be inferred the Secretary did not form a view as to its relevance and, therefore, the Secretary did not discharge the duty provided for by s.473CB(1)(c) of the Act.[19]

    d)The discharge of the obligation prescribed by s.473CB(1)(c) of the Act was an essential precondition to the IAA’s exercise of its jurisdiction; and the consequence of the Secretary’s not having discharged the obligation prescribed by s.473CB(1)(c) is that the IAA’s decision was infected with jurisdictional error.[20]

    [16] Applicant’s submissions, [32]

    [17] Applicant’s submissions, [36]

    [18] [2006] FCAFC 103, at [64]

    [19] Applicant’s submissions, [38]

    [20] Applicant’s submissions, [39]

  2. The Minister submits the applicant has not established on the balance of probabilities that the Secretary failed to comply with s.473CB(1)(c) of the Act. First, the applicant can be taken to have chosen not to refer to the 2013 Statutory Declaration in his application for a SHEV because it was not before the delegate, and the applicant did not mention it in the TPV interview, it having been open to the applicant to have mentioned it had he wished to do so. In these circumstances the Secretary was entitled to consider the 2013 Statutory Declaration was not relevant to the IAA’s review. Second, the Secretary was entitled to consider the applicant’s claims made in the 2015 Statutory Declaration represented his claims in support of the SHEV in their entirety so, for that reason, the 2013 Statutory Declaration was irrelevant. Third, relying on an observation of the Full Federal Court in WAGP,[21] the Minister submits it is normally a difficult task to demonstrate that the Secretary’s view about the relevance of a particular document is erroneous. For that reason it was at least reasonably open for the Secretary not to consider the 2013 Statutory Declaration to be relevant.

    [21] [2006] FCAFC 103, at [64]

  3. The Minister further submits that even if the Secretary failed to discharge the obligation under s.473CB(1)(c) of the Act, that did not result in the IAA’s decision being infected with jurisdictional error. The Minister relies on the judgments of the Full Federal Court in WAGP and SZOIN v Minister for Immigration and Citizenship[22] which considered s.418 of the Act. That section is equivalent to s.473CB but in the different context of applications for review to the Refugee Review Tribunal (RRT) under Part 7 of the Act.

    [22] [2011] FCAFC 38

  4. The Minister’s submissions appear to assume the Secretary did consider whether the 2013 Statutory Declaration was relevant to the IAA’s review. The applicant’s case, however, is that the Secretary did not consider whether the 2013 Statutory Declaration was relevant; and it is the Secretary’s failure to consider that question which the applicant submits constitutes the Secretary’s non-compliance with s.473CB(1)(c) of the Act. The following issues, therefore, arise:

    a)Did the Secretary consider whether the 2013 Statutory Declaration was relevant to the review?

    b)If (a) is answered in the negative, did the Secretary fail to comply with s.473CB of the Act?

    c)If (b) is answered in the positive, was the IAA’s decision affected by jurisdictional error?

    d)If (a) is answered in the affirmative, was it reasonably open to the Secretary to consider the 2013 Statutory Declaration not to be relevant to the review?

Did the Secretary consider the relevance of the 2013 Statutory Declaration?

  1. The expression “Secretary” is defined in s.5(1) of the Act to mean the “Secretary of the Department”. The Act does not define “Department”. The effect of item 1 of s.19A(1) of the Acts Interpretation Act 1901 (Cth), however, is that “Department”, as used in the Act, is the Department of State administered by the Minister at the time the delegate’s decision refusing to grant the applicant a SHEV was referred to the IAA. That Department is the Department of Immigration.

  2. The Minister does not submit the Secretary personally considered whether the 2013 Statutory Declaration was relevant to the IAA’s review; and the applicant does not submit the Secretary was required personally to consider the relevance of that document. Nor, however, does the Minister submit that an officer of the Department holding a delegation under s.496(2) of the Act considered the relevance of the 2013 Statutory Declaration; and the applicant has not submitted that the power conferred by s.473CB(1)(c) of the Act could or could not be exercised by a person other than the Secretary. In other words, neither the Minister nor the applicant addresses the question of the identity of the person who was responsible for complying with s.473CB(1)(c) of the Act. That question, however, must be addressed before the parties’ respective submissions can be considered.

  3. The only evidence before me relevant to the identity of the person who considered what information was relevant to the review by the IAA of the delegate’s decision not to grant the applicant a SHEV is the Checklist; and here there are two possibilities. One is that the person who went through the Checklist and assigned the “Yes”, “No”, or “N/A” status to each of the documents described in the “Description” column held a delegation under s.496(2) of the Act. The other possibility is that another person holding a delegation from the Secretary, or even the Secretary himself or herself, determined in advance the classes of documents that were to be considered relevant or potentially relevant under s.473CB of the Act. Such person then devised a pro forma in the form of the Checklist to facilitate persons who may or may not themselves hold delegations to determine whether there exist documents falling within the description of the classes of documents described in the Checklist, and to give such documents to the IAA.

  1. Which of these two possibilities applies does not matter. It is appropriate to presume, in the absence of evidence to the contrary, and I do presume and, therefore, find, that to the extent the creation of the Checklist or the completion of the Checklist constitutes the act of considering the identification of documents that are relevant to the IAA’s review, and the person who formulated or completed the Checklist required a delegation from the Secretary to permit the person to exercise the power conferred by s.473CB of the Act, such delegation had been given to the person; and to the extent that the person who gave to the IAA the documents identified in the Checklist required a delegation to do so, such delegation had been given. [23]

    [23] I here rely on what Griffith CJ in McLean Bros & Regg Ltd v Grice (1906) 4 CLR 835, at page 849, referred to as “a presumption which arises from the ordinary course of business”. One formulation of that presumption which his Honour reproduces (at page 850) is that given by Brewer J in Knox County v Ninth National Bank (147 U.S., 91, at page 97): “It is a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act”.

  2. The next question is whether, on the evidence before me, the Secretary, or a person holding an appropriate delegation from the Secretary, did not, as the applicant submits, consider whether the 2013 Statutory Declaration was relevant to the IAA’s review of the delegate’s decision not to grant the applicant a SHEV. (In the remainder of these reasons, unless the context suggests otherwise, I use “Secretary” to mean “Secretary or a person holding a delegation from the Secretary”.) I find that the Secretary did not consider the relevance of the 2013 Statutory Declaration. First, there is nothing before me to suggest that at the time the Secretary gave material to the IAA the Secretary was aware of the 2013 Statutory Declaration.

  3. Second, and more significantly, one of the documents or classes of documents the Checklist identifies is “[a]ny referenced visa applications made by the applicant”, and there is assigned to that class of document the status of “N/A”. I find that “[a]ny referenced visa applications made by the applicant” was intended to direct the mind of the person who was to complete the Checklist to consider whether there was any reference in the delegate’s decision rejecting the application for the SHEV or, perhaps, in any document that formed part of the file that was created within the Department of Immigration once the applicant made a valid application for a SHEV, that the applicant had made any application for a visa other than the application for the SHEV. That implies that the Checklist did not intend to direct the mind of the person completing it to consider whether the applicant had made any application for a visa other than the application referred to in delegate’s decision or otherwise referred to in any document that formed part of the file created within the Department of Immigration in response to the applicant’s having made a valid application for a SHEV. That further implies, and I find, that the person who completed the Checklist did not advert his or her mind to whether the applicant had made an application for a visa other than the application for the SHEV the applicant in fact made and, therefore, was not aware of the existence of the 2013 Statutory Declaration, or, if so aware, otherwise did not consider whether the 2013 Statutory Declaration was relevant to the IAA’s review of the delegate’s decision not to grant the applicant a SHEV.

Did the Secretary breach s.473CB by not considering the relevance of the 2013 Statutory Declaration?

  1. As I have already noted, the applicant submits that s.473CB(1)(c) of the Act was “engaged” by the 2013 Statutory Declaration because it had been lodged with the Department of Immigration in support of an application for a protection visa and remained in the possession and control of the Secretary. By this I understand the applicant to submit that, because the 2013 Statutory Declaration was in the possession or control of the Department of Immigration, and also because at the very least the document was reasonably capable of being viewed as relevant to the review by the IAA of the delegate’s decision not to grant the applicant a SHEV, the Secretary was required to consider whether the 2013 Statutory Declaration was relevant to the review.

  2. The applicant’s submission is premised on the proposition that s.473CB(1)(c) of the Act requires the Secretary to consider every document in the Department of Immigration’s possession or control that is relevant or reasonably capable of being considered to be relevant to a review by the IAA of a delegate’s decision not to grant a visa, whether or not the Secretary is actually aware of the document’s existence. The applicant relies on the judgment of the Full Federal Court in WAGP. That case concerned s.418(3) of the Act which requires the Secretary to give to the Registrar of the RRT that which s.473CB(1)(c) of the Act requires the Secretary to give to the IAA, namely, materials[24] “that is in the Secretary’s possession and control and is considered by the Secretary to be relevant to the review of the decision”. Counsel for the Minister in WAGP accepted the Secretary had failed to comply with s.418(3) of the Act. The question the Full Federal Court considered was whether the Secretary’s failure to comply with that section vitiated the RRT’s decision. In the context of its consideration of that question the Full Federal Court said:

    The obligation under s 418(3) is upon the Secretary, not upon the [RRT]. The obligation is upon the Secretary to form a view as to the relevance of each document in the Secretary’s possession or control to review the decision by the Tribunal.

    [24] Section 418 uses the word “documents”, but this is not a material difference.

  3. The applicant relies on this passage; and I accept the passage supports the proposition for which the applicant contends, namely, that s.473CB(1)(c) of the Act requires the Secretary to consider whether every document in the Department of Immigration’s possession or control that is relevant or capable of being considered relevant to a review by the IAA of a delegate’s decision not to grant a visa, is relevant to the IAA’s review of a delegate’s decision, whether or not the Secretary is actually aware of the document’s existence. The Full Federal Court, however, did not consider the question of the nature and extent of the obligation s.418(3) imposed on the Secretary because, as I have already noted, the Minister accepted that the Secretary in that case had failed to comply with s.418(3) of the Act. For that reason I do not consider the passage from WAGP on which the applicant relies to be determinative of whether the proposition for which the applicant contends is correct. Whether or not that proposition is correct depends on the proper construction of s.473CB(1)(c) of the Act.

  4. I begin by briefly reminding myself of the task of construing a statutory provision. That task “must begin with a consideration of the text itself”, with the “language which has actually been employed in the text of legislation” being “the surest guide to legislative intention”.[25] The meaning of the text, however, “may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”.[26]

    [25] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 2009] HCA 41 [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.

    [26] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue 2009] HCA 41 [47] (Hayne, Heydon, Crennan and Kiefel JJ), cases referred to omitted.

  5. I first turn to the text of s.473CB(1)(c) of the Act: it goes no further than requiring the Secretary to give to the IAA material in the Secretary’s possession or control the Secretary considers to be relevant to the IAA’s review. That implies that the Secretary’s duty to consider whether particular material is relevant depends on the Secretary being actually aware of the material’s existence at the time the Secretary gives to the IAA the material described in s.473CB of the Act. Considered in isolation, then, the text implies a very narrow operation of s.473CB(1)(c). But the paragraph must be further considered in the statutory and other contexts in which it appears; and here there are a number of contexts that are relevant.

    a)One relevant context are the provisions in the Act that govern the making and considering of applications for visas, and in particular those contained in Subdivisions AA and AC of Division 3 of Part 2 of the Act. Of some importance is the notion of a valid application for a visa provided for by s.46 and s.46A of the Act, s.47(1) of the Act (which provides that the Minister is to consider a valid application for a visa), and s.47(3) of the Act (which provides that the Minister is not to consider an application that is not a valid application for a visa).

    b)A second relevant context are the provisions of Part 7AA of the Act which deal with the review of a particular class of decisions made by the Minister under s.65 of the Act not to grant a visa, those decisions being identified as “fast track reviewable decisions”. Of importance is the obligation imposed on the Minister by s.473CA of the Act to refer fast track reviewable decisions to the IAA; and the obligation imposed on the Secretary by s.473CB of the Act to give to the IAA materials described in that section.

    c)A third context is the nature of the office and roles of a Secretary of a Department, such as the Secretary of the Department of Immigration. These are to be found, at least in substantial part, in s.57 of Pubic Service Act 1999 (Cth). Of some importance is s.57(2)(c) of that Act which identifies as one of the responsibilities of a Secretary of a Department the implementation of measures directed at ensuring the Department complies with the law.

    d)A fourth context is a matter of which judicial notice may be taken, namely, that the Department is a large and complex Department of State, and that it is unlikely that the Secretary would himself or herself be concerned with considering particular materials with a view to determining whether they are or could reasonably be considered to be relevant to a particular review of a decision not to grant a protection visa.

  6. These matters suggest that the duty imposed by s.473CB(1)(c) of the Act extends beyond the Secretary’s considering the relevance of particular materials of which the Secretary is actually aware to particular reviews by the IAA. They suggest the Secretary would at the very least be expected to cause to put in place and maintain a system designed to ensure that materials of the sort described in s.473CB of the Act, including material that are or may be relevant, are held in a place (whether physically or electronically) where they can readily be identified and accessed by officers of the Department of Immigration for the purpose of their being given to the IAA in connection with the review of any fast track reviewable decision.

  7. Given the contextual matters I have identified, then, what duty does s.473CB(1)(c) of the Act, on its proper construction, impose on the Secretary? In my opinion s.473CB(1)(c) at the very least obliges the Secretary to undertake reasonable searches for the purpose of identifying whether there are materials in the possession or control of the Department of Immigration that are relevant or which are reasonably capable of being considered to be relevant to a review by the IAA of any given fast track reviewable decision. On this construction the Secretary will fail to comply with s.473CB(1)(c) in any given case if the Secretary undertakes no search or no reasonable search for materials that are, or which are, reasonably capable of being considered to be relevant to the IAA’s review of the fast track reviewable decision in question; and in determining in any given case whether the Secretary has failed to undertake reasonable inquiries, it will be relevant to inquire whether the Secretary:

    a)has put in place a system designed to hold, and enable an officer of the Department of Immigration to readily identify and access, documents that are, or which may reasonably be considered capable of being, relevant to a review by the IAA of fast track reviewable decisions; and

    b)whether in any given case that system has been resorted to for the purpose of identifying documents that are or might be relevant to the review by the IAA of a delegate’s decision not to grant a protection visa; and,

    c)if resorted to, whether the system has been used in the manner it was intended to be used.

  8. If my construction of s.473CB(1)(c) of the Act is correct, that the Secretary in the case before me did not consider whether the 2013 Statutory Declaration was relevant to the IAA’s review of the delegate’s decision not to grant the applicant a SHEV does not by itself mean the Secretary failed to comply with s.473CB(1)(c) of the Act. The relevant question is whether the Secretary ought reasonably to have searched for applications for a visa the applicant previously made, including applications for a visa which were not valid applications, that are not referred to in the delegate’s decision or in other documents that formed part of the file the Department of Immigration created in response to the applicant’s application for a SHEV; or whether at the very least the Secretary ought reasonably to have put in place procedures that would have required an officer of the Department of Immigration, when considering what materials were relevant to the IAA’s review of the delegate’s decision not to grant the applicant a SHEV, to consider including in the materials that were to be given to the IAA applications for a visa the applicant may have previously made, including applications that were not valid applications for a visa.

  9. There is evidence on the basis of which it is open to me to make findings about whether, in the circumstances of the case before me, the Secretary made a search for documents that fell within s.473CB(1)(c) of the Act or which could reasonably be considered to fall within s.473CB(1)(c), and whether such search was reasonable. That evidence consists of the Checklist. That document shows that a search was made for materials the Secretary considered would be relevant to the applicant’s review, those materials being the documents that were included in the column headed “Description”; and it may be inferred from the Checklist, and I find, that the Secretary did not consider it relevant to search for materials that showed that the applicant had previously made an application for a protection visa, including an application which was not a valid application for a visa.

  10. In my opinion it was reasonable for the Secretary not to have made a search for such documents for two independent reasons. First, the Secretary was entitled to proceed on the assumption that the applicant intended to and did include in his application for a SHEV all of the claims for protection on which he relied. Second, the 2013 Statutory Declaration formed part of a purported application for a protection visa that was not a valid application for visa. Under s.47(3) of the Act the Minister is not to consider an application that is not a valid application for a visa. It is reasonable, therefore, for the Secretary not to have searched for, or have included in any system a means for determining whether an applicant had previously made an invalid application for a visa with a view to considering whether that application was, or otherwise contained materials that were, relevant to a review by the IAA.

  11. It follows, therefore, that I am not satisfied the Secretary failed to comply with s.473CB of the Act. For that reason the ground on which the applicant relies fails. Notwithstanding that conclusion, I propose to consider the third and fourth issues I identified in paragraph 18 of these reasons on the assumption that, by failing to consider whether the 2013 Statutory Declaration was relevant the Secretary did not comply with s.473CB of the Act.

Was the IAA’s review conditioned by the discharge of the obligation under s.473CB of the Act?

  1. Counsel for the applicant accepts that the Full Federal Court in WAGP held that the Secretary’s failure to comply with s.418(3) of the Act in the circumstances of that case did not affect the validity of the RRT’s decision. Counsel for the applicant, however, relies on the Full Federal Court’s observation in WAGP that the “significance to comply with an obligation to provide information will of course depend upon the particular legislative context”;[27] and counsel submits that the nature of the review provided for by Part 7AA of the Act is materially different from the nature of review provided for by Part 7 of the Act such that compliance with s.473CB of the Act is a precondition of, or an essential preliminary to the exercise of the IAA’s review functions.

    [27] [2006] FCAFC 102, at [66]

  2. I accept that the nature of the review provided for by Part 7AA of the Act is significantly different from the nature of the review under Part 7 of the Act that was considered by the Full Federal Court in WAGP. For that reason I am prepared to assume for the purposes of these reasons that the Secretary’s failure to comply with s.473CB(1)(c) of the Act may affect the validity of the IAA’s exercise of its jurisdiction to review a fast track reviewable decision. The applicant, however, in effect submits that the proper exercise of the IAA’s jurisdiction depends on the Secretary complying in full with the obligation imposed by s.473CB(1)(c) of the Act. In other words, the applicant in effect submits that any failure by the Secretary to comply with s.473CB(1)(c) will invalidate the IAA’s exercise of its jurisdiction. The question that arises is whether the IAA’s exercise of its jurisdiction is conditioned by the Secretary’s strictly complying with s.473CB of the Act.

  3. In my opinion even if the IAA’s jurisdiction is conditioned by the Secretary’s complying with s.473CB(1)(c) of the Act, the IAA’s jurisdiction is not conditioned by strict compliance with s.473CB(1)(c). That is so because it is readily conceivable that in a given case there might exist materials the Secretary could consider to be relevant to a review but which, in the circumstances of a particular review, the consideration of those materials by the IAA, had the Secretary given them to the IAA, could have made no difference to the outcome of the review. To the extent, therefore, that the IAA’s jurisdiction can be said to be conditioned by the Secretary’s complying with s.473CB(1)(c) of the Act, it is conditioned by the Secretary’s providing to the IAA materials the Secretary considers or ought reasonably to have considered to be relevant and which, in the circumstances of a particular case, could have made a difference to the outcome of the review by the IAA had the materials been given to the IAA.

  4. That, then, leads to the question whether the Secretary’s giving the 2013 Statutory Declaration to the IAA could have made any difference to the IAA’s review of the delegate’s decision. In my opinion, that question is to be answered in the negative. As counsel for the applicant acknowledges, the 2013 Statutory Declaration is largely identical with the 2015 Statutory Declaration.[28] The only conceivable relevance of the 2013 Statutory Declaration to the IAA’s review is that it calls into question the correctness of the IAA’s observation that the applicant did not mention claims of questioning and torture until he lodged his SHEV application in September 2015.[29] The IAA’s observation is incorrect because the applicant had made those claims in 2013 when he lodged the Purported PC application. That error, however, is immaterial to the IAA’s not accepting this part of the applicant’s claims.

    [28] Applicant’s Submissions, [8]

    [29] CB1-213, [63]; Applicant’s Submissions, [55]

  1. The IAA found it implausible that given the applicant’s claims that he had been questioned and tortured he did not mention them in the biodata interview or at the Irregular Maritime Arrival Interview.[30] Thus, what the IAA considered significant when arriving at an adverse assessment of this part of the applicant’s clams was not that the applicant first made the claims of questioning and torture in 2015 when he applied for a SHEV; what the IAA considered significant was that the applicant did not mention those claims either at the biodata interview or at the Irregular Maritime Arrival Interview. Given the IAA’s reasoning, the IAA would have attached no less significance to the applicant’s not having made the claims of questioning and torture at either the biodata interview or at the Irregular Maritime Arrival Interview had the IAA been aware that the applicant first made those claims in 2013 when he made the Purported PC application, rather than in 2015 when he applied for a SHEV.

    [30] CB1-213, [64]

Reasonably open to consider the 2013 Statutory Declaration not to be relevant?

  1. The final question I consider is premised on the Secretary’s having considered whether the 2013 Statutory Declaration was relevant to the IAA’s review of the delegate’s decision; and the question is whether it was reasonably open to the Secretary to consider the 2013 Statutory Declaration not to be relevant to the review. In my opinion it would have been reasonably open to the Secretary to consider that the 2013 Statutory Declaration was not relevant to the IAA’s review; and this for two alternative reasons. One is that, as submitted by the Minister, it would have been open to the Secretary to consider that the applicant’s claims made in the 2015 Statutory Declaration represented his claims in support the SHEV in their entirety so, for that reason, the 2013 Statutory Declaration was irrelevant. The other reason is that the 2013 Statutory Declaration was largely identical with the 2015 Statutory Declaration. The near identify of the two documents could reasonably have afforded a basis for the Secretary to have concluded that the 2013 Statutory Declaration added nothing to the claims the applicant made in the 2015 Statutory Declaration and, for that reason, was not relevant to the IAA’s review of the delegate’s decision not to grant the applicant a SHEV.

Conclusion and disposition

  1. The applicant has not succeeded on the ground on which he relies. I propose, therefore, to order that the application be dismissed. I propose to consider the question of costs at the time I pronounce my order dismissing the application.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date: 17 September 2020


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Cases Cited

4

Statutory Material Cited

4

WAGP v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 103
SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38
Kingham v Sutton [2002] FCA 506