DQF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 845
•2 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
DQF19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 845
File number(s): SYG 2449 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 2 June 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant not believed – whether the Authority decision is vitiated by bias considered – no jurisdictional error. Legislation: Migration Act 1958 (Cth) ss 5, 36, 473DB, 473DC, 473FA, 473FB Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30
CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47
DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
EEM17 v Minister for Home Affairs & Anor [2019] FCCA 3396
FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456
Isbester v Knox City Council (2015) 255 CLR 135
Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259SCAA v Minister for Immigration & Multicultural &
Indigenous Affairs [2002] FCA 668Wang v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 1
Number of paragraphs: 43 Date of hearing: 28 April 2021 Place: Sydney Counsel for the Applicant: Ms E Grotte Solicitor for the Applicant: Michaela Byers, Solicitor Solicitors for the Respondents: Ms A Zinn of Mills Oakley ORDERS
SYG 2449 of 2019 BETWEEN: DQF19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
2 JUNE 2021
THE COURT ORDERS THAT:
1.The application filed on 23 September 2019 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 31 August 2019. The Authority affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Bangladesh who arrived in Australia on 12 July 2013 as an unauthorised maritime arrival.[1]
[1] Court Book (CB) 138
On 13 August 2013, the applicant participated in an entry interview,[2] where he claimed he left Bangladesh because he was involved in politics as a member of “Jemiah Islami”, which is taken to be Jamaat-e-Islami (JI). He claimed he was beaten one night by unidentified assailants who wore masks. The applicant claimed he did not hold any position with JI and was “just a member”.[3]
[2] CB 2-20
[3] CB 11
On 18 October 2016, the applicant applied for a temporary protection visa with the assistance of his authorised representatives, Migration Education Services Pty Ltd.[4] The applicant claimed that[5] he was beaten on two occasions by people from the Awami League (AL) because he supported JI. He moved to another part of Bangladesh and stayed there for two months but it was not safe.
[4] CB 26-66
[5] CB 58-60
The applicant submitted a letter dated 14 October 2016 purportedly from the President of JI (letter of support).[6]
[6] CB 64
On 6 June 2019, the applicant submitted a one-page statutory declaration made on 5 June 2019[7] in which he sought to correct information previously given.
[7] CB 124-125
On 12 June 2019, the applicant attended an interview with the delegate (protection visa interview).[8]
[8] CB 140-143
The applicant’s claims for protection in summary are:[9]
(a)he was a supporter of the political party JI;
(b)he was attacked and threatened that he would be killed by the opposition party, AL, because of his support for JI and because it was believed that he had recruited people for JI;
(c)in February 2013, he was walking home from attending a rally in support of JI, when he was attacked by three people, one of whom used a bamboo stick;
(d)he was attacked again in April 2013 when he was stabbed in the leg and hand with a knife while he was riding a bicycle;
(e)he sought protection from the local leader but no action was taken;
(f)he is unable to relocate to another part of Bangladesh as he would be required to register his identity with the local police whenever he changed his place of residence; and
(g)he moved to Chittagong, where he stayed for two months. While there, his mother and another person told him that it was unsafe for him to return home as he would be killed.
[9] CB 139
On 1 August 2019, the delegate refused to grant the applicant a protection visa.[10] The delegate did not accept that the applicant was a supporter or member of JI or was ever threatened by the AL. The delegate found the applicant’s responses during the protection visa interview were vague and inconsistent and that he was not forthcoming with his responses. The delegate also found the applicant’s explanation of various events (namely, the two attacks) was implausible.
[10] CB 135-150
The reasons for the visa refusal in summary are:[11]
(a)the applicant’s responses to questions posed in the interview were considered to be generic and vague, to lack depth, and to be inconsistent with the country information;
(b)the applicant’s testimony as to his JI membership papers were considered to be implausible;
(c)the applicant failed to offer any information about a JI personal report card while answering questions about his membership card;[12]
(d)the letter of support dated 14 October 2016 was not accepted as genuine because of discrepancies/inconsistencies with the applicant’s testimony, and so the delegate placed no weight on it;
(e)the applicant was not accepted as having any political profile;
(f)the applicant’s testimony regarding the second attack was not accepted as plausible because it was already found that he did not have a political profile, and because of inconsistencies; and
(g)the applicant’s testimony that he had to leave his home region was not accepted.
[11] CB 140-143
[12] country information before the delegate stated that JI recruits were required to fill in a daily personal report card
The decision to refuse the visa was referred to the Authority for a merits review under Part 7AA of the Migration Act 1958 (Cth) (Migration Act).[13]
[13] CB 156
On 7 August 2019 the Authority wrote to the applicant attaching a copy of the Practice Direction given under s 473FB of the Migration Act.[14]
[14] CB 158
The Practice Direction noted at [20][15] that reviews were generally conducted on the papers provided by the Department of Home Affairs, but that written submissions could be provided, and that in exceptional circumstances, the Authority would consider new information.
[15] CB 159
The Practice Direction also informed the applicant and his authorised recipient that written submissions could be forwarded to the Authority for the purposes of the merits review. An interview may also be held but in very limited circumstances to obtain specific new information, or to comment on any new information that may be considered to be adverse to the case.[16]
[16] CB 160 [23], 162 [39]
On 9 August 2019, the applicant’s migration agent wrote to the Authority requesting that it exercise its discretion under s 473DC(3) of the Migration Act and invite the applicant to comment in an interview or in writing on new information.[17] Section 473DC provides:
(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.
[17] CB 163-168
It was submitted on behalf of the applicant that the submissions were based on extensive notes taken by the applicant’s representative who was present at the interview. There had been insufficient time to obtain a recording of the interview.
It was submitted to the Authority that:
(a)the delegate appeared to have internal criteria about what would be expected of a member or supporter of JI that were not stated or put to the applicant;[18]
[18] CB 165
(b)the delegate ignored relevant evidence from the applicant that he initially supported JI because his older brother was a supporter. This was not included in the delegate’s reasons. This was important because, coupled with the fact that the applicant did not finish a primary school education, his participation was significantly influenced by family loyalty rather than personal informed political conviction;
(c)the delegate relied on a purported statement by the applicant that his reasons for supporting JI were that JI was “helping everyone regardless of what their religion was” which, according to the applicant’s representative’s notes, the applicant did not say;
(d)the applicant’s reasons for supporting JI were consistent with JI’s pro-Islamic policy and they were ignored by the delegate who preferred the internal criteria that were not disclosed. The reasons for supporting JI were expressed by the applicant during the course of the interview to be that JI:
(i)was not corrupt;
(ii)provided employment;
(iii)gave instruction of the Koran;
(iv)would provide greater justice;
(v)would stop false cases being brought against innocent people; and
(vi)would spread peace.
(e)the delegate also was said to have ignored other pertinent answers given by the applicant which demonstrated knowledge about JI and the elections;[19]
(f)the delegate’s decision was said to be internally inconsistent in that it acknowledged that official records in Bangladesh tended be haphazard, but then concluded that the letter of support was not genuine because of discrepancies in relation to dates. The applicant’s testimony was that he joined JI when he was over 20, and he then proffered the age of 24. The delegate then determined that he joined in 2007 and then considered the letter of support to not be genuine because it stated that the applicant began to carry out work for JI in 2003;
(g)another matter of concern for the delegate was that the letter of support named the applicant as a “ward secretary”, but the applicant had not mentioned this role. It was submitted that the adverse finding in relation to this matter was unreasonable because it was simply a title given to a role that entailed little more than carrying messages, keeping track of members and trying to ensure that they attended meetings;
(h)the delegate also expressed concern that the applicant did not have a membership card, but “did not take sufficient pains to understand the applicant” in this regard. The applicant’s evidence is that the paperwork that he was referring to that was taken back by JI, was his application form, which he completed, was read back to him and signed by him and then filed. He was not provided with a copy;[20]
(i)the delegate misunderstood and misconceptualised the applicant’s role. His evidence is that he did not recruit people. The only reference is an answer to question 89 of his application for a protection visa that this was an accusation levelled against him by his opponents;[21] and
(j)the delegate gave no weight to the applicant’s evidence that his older brothers had fled the AL to Dhaka long before, and one of them had left Bangladesh, and the delegate preferred the view that, because the applicant’s parents and his younger brother continue to live without harassment in his home village, he would be safe to return to Bangladesh.[22]
[19] CB 166
[20] CB 167
[21] CB 167
[22] CB 168
The submission at CB 168 also included a new claim that one of the applicant’s older brothers had left Bangladesh (the brother claim).
The Authority’s decision
As noted above, on 31 August 2019, the Authority affirmed the delegate’s decision not to grant the applicant a protection visa.[23] In summary:
(a)the Authority had doubts at [13] about the applicant’s claimed JI involvement and the purported threats/ assaults on him and found significant aspects of his evidence were not credible;
(b)the applicant demonstrated no awareness of the levels or obligations of JI membership and his evidence was “significantly inconsistent” with country information at [14]-[17];
(c)the Authority did not accept that the letter of support was a reliable source of evidence. It found at [18]-[20] that the letter contained information about dates and detail about the applicant’s position with JI that was inconsistent with his own evidence. It also had regard to country information on the prevalence of document fraud in Bangladesh, and did not accept that the letter of support was a reliable source of evidence;
(d)the Authority accepted at [22] that the applicant demonstrated awareness of JI’s time in government and that his evidence of JI’s objectives and agenda was generally credible. However, it found the events surrounding JI that the applicant had referred to would be largely public knowledge. It found the applicant’s responses during the protection visa interview about the ideology or objectives of JI to be in “broad generalities” and was not satisfied that the applicant demonstrated any genuine attachment to or support of JI;
(e)it was not accepted at [23] that any limitation in the applicant’s knowledge of JI could be attributable to his support being based on family connection to the party;
(f)the applicant’s evidence about the AL attacks lacked credibility. In particular, his evidence at [25]-[29] about how he knew that his assailants were from the AL was unpersuasive and shifting, his evidence about his escape from the first attack was “somewhat implausible” and his evidence about the nature of the second attack changed; and
(g)overall, the Authority found the applicant’s evidence inconsistent and changeable and not credible at [31]. It was not satisfied that the applicant’s claims genuinely reflected his real circumstances. It did not accept that the applicant was ever a JI worker or member or had any engaged interest in the party. It did not accept he was of any interest to the AL or was ever threatened or assaulted by them, nor did it accept he went into hiding from them or that any family members were so threatened.
[23] CB 173-183
The Authority found at [39] that the applicant was not a refugee under s 5(H)(1) of the Migration Act and did not meet s 36(2)(a). It otherwise referred to its anterior findings and found that the applicant did not meet s 36(2)(aa) of the Migration Act at [40]-[43].
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 23 September 2019. The applicant continues to rely upon that application. There is one particularised ground in the application as follows:
1.The IAA fell into jurisdictional error in failing to exercise its review jurisdiction by reasons of there being a reasonable apprehension of bias.
Particulars
a. The fact-finding by the IAA was performed in a manner which was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision maker might not have brought an impartial mind to bear on the decision;
b. The findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include:
i.The finding that the applicant’s evidence did not demonstrate any closer insight into or deeper appreciation of the JI party then would be gleaned by any person exposed to JI election campaign material or who had witnessed a campaign meeting or really or news media about the JI;
ii.The findings that the applicant responded with broad generalities to questions about JI ideology or objectives;
iii.The finding that the applicant was unable to point to any JI works or programs that attracted him to JI, or that were discussed in party meetings, even at his local level;
iv.The finding that the applicant did not highlight the difference of JI to the main stream parties being its stance against all secularism, including politics and law or more significantly point to his Muslim faith being of any importance to him when asked what he liked about JI;
v.The finding that the applicant made no mention of any discussions, at meetings or rallies he claimed to have attended, having been about any issues concerning the threat to the political existence of the JI party by the court challenge to its charter policies or the subsequent enforced changes to it, including regarding the role of women and treatment of non-Muslims;
vi.The finding that the applicant made no mention of the subsequent arrests and trials of many leaders and members, including on war crime charges, after the AL came into power;
vii.The finding that the applicant made no mention of any party responses to those issues, which had stirred the party to protests, on the country information before the IAA and which issues all arose during the time he claims to have been so significantly involved in the party;
viii.The finding that the applicant made a bare claim to know of secret killings of some JI leaders in Dhaka in 2013 known only to the members of JI; and
ix.Furthermore, the IAA acted unreasonably in not considering to put any of the above mentioned findings to the applicant for comment under s473DC(3) as requested in his submissions dated 9 August 2019.
(errors in original)
Particular ix is better seen as a freestanding ground of review. As was explored in the applicant’s submissions, the applicant contends that the exercise of the discretion in s 473DC(3) was necessary in order to dispel the asserted apprehension of bias.
The only evidence I have before me is the court book filed on 25 November 2019.
Both the applicant and the Minister filed pre hearing written submissions and made oral submissions through their representatives at the trial on 28 April 2021.
CONSIDERATION
The applicant’s contentions
The applicant contends that the Authority fell into jurisdictional error by failing to exercise its review jurisdiction by reason of there being a reasonable apprehension of bias. The particulars of the asserted error are as follows:
(a)the fact-finding by the Authority was performed in a manner which was capricious, arbitrary, unreasoned, consisted of assertion, lacked rational or reasoned foundations, and/or was in relation to the preponderance of findings selective of material or conclusions going one way only, such that a fair-minded and informed person might reasonably apprehend that the decision-maker might not have brought an impartial mind to bear on the decision;
(b)the findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include:
(i)the finding that the applicant's evidence did not demonstrate any closer insight into or deeper appreciation of JI than would be gleaned by any person exposed to JI election campaign material or who had witnessed a campaign meeting or rally or news media about JI;
(ii)the finding that the applicant responded with broad generalities to questions about JI ideology or objectives;
(iii)the finding that the applicant was unable to point to any JI works or programs that attracted him to JI, or that were discussed in party meetings, even at his local level;
(iv)the finding that the applicant did not highlight the difference of JI to the mainstream parties, being its stance against all secularism, including politics and law or more significantly point to his Muslim faith being of any importance to him when asked what he liked about JI;
(v)the findings that the applicant made no mention of any discussions, at meetings or rallies he claimed to have attended, about any issues concerning the threat to the political existence of JI by the court challenge to its charter policies or the subsequent enforced changes to it, including regarding the role of women and treatment of non-Muslims;
(vi)the finding that the applicant made no mention of the subsequent arrests and trials of many leaders and members, including on war crime charges, after the AL came into power;
(vii)the finding that the applicant made no mention of any party responses to those issues, which had stirred the party to protests, on the country information before the Authority and which issues all arose during the time he claims to have been so significantly involved in the party;
(viii)the finding that the applicant made a bare claim to know of secret killings of some JI leaders in Dhaka in 2013 known only to the members of JI; and
(ix)furthermore, the Authority acted unreasonably in not considering to put any of the above mentioned findings to the applicant for comment under s 473DC(3) as requested in his submissions dated 9 August 2019.
In oral submissions, counsel for the applicant developed the proposition that the Authority is not seen to have brought an impartial mind to the fact finding process, given heavy reliance upon the reasons for the delegate’s decision. Indeed, the applicant takes issue with both the adoption and expansion of adverse credibility findings made by the delegate. The applicant contends that an apprehension of bias having arisen, it was unreasonable for the Authority not to seek to dispel that apprehension by inviting the applicant to attend a further interview.
Resolution
I do not accept the applicant’s contentions. I accept that the Authority is under an obligation to conduct the review free of bias (or the apprehension of it) in the light of the statutory duty imposed by s 473FA of the Migration Act. I also accept that there may be circumstances in which the discretion conferred by s 473DC(3) needs to be exercised in order to avoid a finding of unreasonableness, because of the existence of an apprehension of bias in the absence of a positive exercise of the discretion.[24] This is, however, not that case. First, it is clear from [7] of the Authority’s reasons[25] that the Authority considered the applicant’s submissions in relation to the delegate’s decision and considered whether to invite him to furnish further information. Further, the Authority provided extensive reasons for making adverse credibility conclusions in relation to the applicant’s claims of political involvement, which were not limited to the reasoning of the delegate. In that regard, I agree with and adopt the Minister’s submissions.
[24] CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47 at [92]-[103]
[25] CB 174
The relevant principles relating to apprehended bias in an administrative decision-making context are well-settled.[26] The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question that the decision-maker is required to decide.[27] The applicant accurately identifies that this is a two-step test:
(a)first, it is necessary to identify “what it is that might lead a decision-maker to decide a case other than on its legal and factual merits”;[28] and
(b)secondly, there must be an articulation of the logical connection between the identified “thing” (ie the thing that gives rise to partiality on a decision-maker’s part) and the feared deviation from the course of deciding a case on its merits.[29]
[26] See, for example: CNY17; FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 274 FCR 456; Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 at [61]; ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 at [35]-[36]
[27] CNY17 at [17]
[28] CNY17 at [57], citing Isbester v Knox City Council (2015) 255 CLR 135 at [21]
[29] CNY17 at [57], citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8]
The identified factual conclusions, on their own, do not support a claim of apprehended bias, establish that the Authority held a “prejudged view”, or otherwise point to anything that led the Authority to decide the case on anything other than its legal and factual merits.
Properly understood, the ground appears to allege that the Authority, by engaging in a “scientific exercise” or utilising some sort of internal checklist in assessing the applicant’s adherence to JI, held a “prejudged view”. There is no basis for such a claim.
Relevantly, the Authority’s decision-making process was as follows:
(a)the Authority referred to extensive country information on JI, including its main objectives and ideologies, its “rigidly hierarchical” structure and its onerous requirements for membership;[30]
(b)the Authority considered the applicant’s evidence that he gave at the protection visa interview. It found that, notwithstanding that the applicant described himself as a JI supporter who attended 50 – 60 JI meetings, “his evidence amounted to little more than that he thinks he filled in a form…. which the party leader retained…”. It found the evidence of his claimed JI involvement was not credible and noted that his evidence of his membership admission was “significantly inconsistent” with country information on the admission process;[31]
(c)the Authority also considered the letter of support and found that it was not a credible or a reliable source of evidence, given the claims within it were inconsistent with the applicant’s other oral and written claims and in light of country information on the prevalence of document fraud in Bangladesh;[32] and
(d)the Authority, whilst accepting that the applicant’s evidence about JI was “generally credible”, was not satisfied that the applicant’s oral evidence had demonstrated any genuine attachment to or support for JI.[33]
[30] CB 175-178, [11], [12], [14], [17]
[31] CB 176, [16]
[32] CB 177, [18]-[20]
[33] CB 177-178, [21]-[22]
No jurisdictional error is identified for the following reasons.
First, there was nothing impermissible about the Authority adopting such an approach. It did not prescribe some sort of specific level of doctrinal knowledge as a precondition to the applicant being accepted as a JI member,[34] or impose an arbitrary minimum expected standard to justify being regarded as a JI member.[35] Rather, it simply concluded, after exploring the matter without any preconception as to what knowledge a believer would demonstrate, that the applicant’s particular lack of knowledge indicated that he was not a genuine adherent. It was entitled to adopt this approach.[36]
[34] Cf., Wang v Minister for Immigration and Multicultural Affairs (2000) 179 ALR 1 at [16]
[35] Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 at [31], [37]
[36] SZLSP at [37]
Secondly, the applicant effectively argues that the Court should infer that there was some sort of bias or prejudgment on the Authority’s part from mere adverse credibility findings. Such an argument cannot succeed.[37] Moreover, it would be a rare case where bias could be made out on the basis of a decision-maker’s reasons alone.[38]
[37] SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J
[38] Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ
Thirdly, the factual conclusions cited by the applicant also overlook the broader context of the Authority’s findings. It did not simply find that the applicant’s knowledge of JI was insufficient for him to be considered a genuine adherent. It also considered his evidence in light of the letter of support, which was inconsistent with his other claims, and his oral evidence at the protection visa interview which was also patently inconsistent with country information. Put another way, it was not simply that the applicant did not show “enough” knowledge about JI, it was also that his knowledge was in direct contradiction to other information on the issue, including documentary evidence that he submitted in support of his visa application.[39]
[39] see, for example CB 176, [16]
The applicant’s reliance on four particular findings by the Authority also fail to establish a rare case of bias:
(a)there was nothing impermissible about the Authority finding that the applicant’s knowledge about JI events was “generally credible” before considering that this knowledge would have been public knowledge. This complaint in effect does no more than cavil with the merits of the decision;[40]
(b)the Authority did refer to the applicant’s submission that he supported JI for reasons of family loyalty. It simply did not accept it;[41]
(c)the Authority did not expressly refer to the applicant’s brief references to his level of education[42] or the “ordinariness” of his involvement[43] but it did not need to do so. First, the applicant[44] had submitted that his limited education supported the inference that his JI involvement was due to family loyalty and not “personal informed political conviction”, but the Authority cited the applicant’s own evidence that he joined the party because he thought it was a good party and was inspired by its work in finding that family loyalty was not a reason for joining.[45] Secondly, there is no evidence that the Authority misunderstood the applicant’s claimed JI involvement.[46] It refers to him as describing himself as a JI supporter who attended 50-60 meetings, called meetings, invited people to attend, and distributed information and letters; and
(d)there was no obligation on the Authority to address the applicant’s submission that the delegate utilised some sort of “internal criteria” in considering the applicant’s JI support.[47] The Authority was conducting a de novo review. To the extent that the applicant now alleges the Authority utilised this same nebulous criteria, such a claim is baseless.
[40] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272
[41] at CB 178, [23]
[42] see CB 165
[43] see CB 167
[44] at CB 165, [9]
[45] CB 178, [23]
[46] see CB 176, [15]
[47] CB 165, [10]
The finding that the decision of the Authority is free from an apprehension of bias means that the applicant’s second complaint, concerning the non-exercise of the discretion in s 473DC(3), falls away. To the extent, however, that there is some other asserted basis for the contention of unreasonableness in the non-exercise of that discretion, I agree with the Minister’s submissions on the point.
First, and critically, the Authority did expressly consider the applicant’s request for it to exercise its discretion under s 473DC(3),[48] such that there is no basis to the applicant’s complaint that the Authority acted unreasonably in “not considering” to put adverse findings to the applicant. For reasons that were open, the Authority decided not to invite any further information from the applicant or put any information to him.[49]
[48] CB 173, [4]
[49] CB 174, [7]
Secondly, the Part 7AA regime contemplates that the Authority will evaluate for itself the material considered by the delegate. It does not require the Authority to notify the referred applicant that it is considering taking a different view, adverse to the applicant, of the material considered by the delegate. It is not required to inform an applicant of specific reservations about the applicant’s case and to provide the applicant with an opportunity to respond.[50] In this context, the Authority’s findings were reasonably open.
[50] DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [72]
Thirdly, this is also not a case where there was additional information that was necessary to complete the review such that s 473DC(3) should have been considered or exercised.[51] The applicant provided the information that he wished to rely upon, and the Authority was entitled to form its own view on the material without inviting the applicant to comment on it. That is, in effect, the nature of the Part 7AA fast track review regime.[52] To determine that the Authority was somehow obliged put its adverse findings to the applicant for comment would undermine the entire regime.
[51] DGZ16 at [70]
[52] EEM17 v Minister for Home Affairs & Anor [2019] FCCA 3396 at [82]
CONCLUSION
The applicant has failed to establish that the decision of the Authority is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 2 June 2021
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