DRG16 v Minister for Immigration
[2017] FCCA 2063
•31 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DRG16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2063 |
| Catchwords: MIGRATION – Temporary Protection (subclass 785) visa application – review of Immigration Assessment Authority decision – denial of procedural fairness – scope of the Authority’s power to review the delegate’s decision – no jurisdictional error – application dismissed. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), sub-s.10(2)(b)(ii) Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), s.3, sch.1, item 8 Other materials cited: |
| Cases cited: Brennan v New South Wales Land & Housing Corporation (2011) 83 NSWLR 23; [2011] NSWCA 298 Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292; [2015] NSWCA 327 Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 MZZYD v Minister for Immigration & Border Protection [2014] FCCA 1894 MZZYD v Minister for Immigration and Border Protection [2015] FCA 60; [2015] HCASL 99 Navazi v New South Wales Land & Housing Corporation [2015] NSWCA 308 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 |
| Applicant: | DRG16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 3393 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 21 August 2017 |
| Date of Last Submission: | 21 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms F Graham |
| Solicitors for the Applicant: | Wotton & Kearney Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3393 of 2016
| DRG16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (IAA) dated 2 November 2016. The IAA affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
In summary, the applicant argues that he was denied procedural fairness by the delegate because he was prevented from referring to a notebook to refresh his memory during an interview with the delegate. The applicant argues as a consequence of that, the delegate’s decision was a nullity and the only decision open to the IAA on review was to remit the matter to the delegate. At the heart of this argument, was the submission that the review process engaged in by the IAA was truncated and so did not operate to “cure” the defect in the delegate’s decision.
For the reasons that follow, there was no denial of procedural fairness involved in the delegate’s decision. In any event, even if there had been, that would not have affected the IAA’s authority to affirm the decision. The application will be dismissed.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia on 14 November 2012 by sea without a visa. There was no issue between the parties that, in the circumstances, at the time relevant to these proceedings, the applicant had become an unauthorised maritime arrival within the meaning of s.5AA of the Migration Act 1958 (Cth)[1] (Act). One of the consequences of that status was that, unless the Minister decided otherwise, the applicant was prevented from making a valid visa application.
[1] Section 5AA was introduced into the Act with effect from 1 June 2013 by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act2013 (Cth), s.3, sch.1, item 8. Prior to that, the applicant came within the description of an “offshore entry person”, a term considered in Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41.
The Minister exercised his power to allow the applicant to apply for a visa and on 7 April 2016, the applicant lodged an application for a Temporary Protection (subclass 785) visa. In those circumstances, the applicant became a fast track applicant within the meaning of that term in s.5(1) of the Act.
In support of his visa application, the applicant claimed to fear persecution by the Tamil Makkal Viduthalai Pulikal (TMVP), the Sri Lankan Army (SLA) and Police authorities. The applicant additionally claimed to fear harm on account of being a young Tamil male from an area that formerly had a strong Liberation Tigers of Tamil Eelam (LTTE) presence; and being a Tamil who departed Sri Lanka illegally and claimed asylum in Australia.
By letter dated 11 August 2016, the applicant was invited to attend an interview with a delegate of the Minister to “discuss [his] visa application and [his] claims that [he is] a person in respect of whom Australia has protection obligations.” The letter informed the applicant that he should bring to the interview, amongst other things, any evidence he had relating to his protection claims.
The applicant attended the interview on 2 September 2016 and was assisted by an interpreter in the Tamil language.
On 5 September 2016, the delegate made a decision refusing to grant the applicant a protection visa.
The delegate’s decision was referred automatically to the IAA for review on 9 September 2016. The applicant was informed of that referral and given certain information about the process of review conducted by the IAA.
The applicant did not make or give to the IAA any submissions, or ask it to get, or consider, any information that was not before the delegate.
On 2 November 2016, the IAA made a decision to affirm the delegate’s decision.
The applicant now seeks orders quashing the IAA’s decision and requiring the IAA to remit the decision to the delegate for reconsideration under sub-s.473CC(2)(b) of the Act.
Consideration
The applicant only pressed the first ground in the application:
1.The decision of the Immigration Assessment Authority (“IAA”) was affected by jurisdictional error, namely, the IAA erred in affirming a decision of the Minister for Immigration and Border Protection (or his delegate) (“the Minister”) that was a nullity (due to denial of procedural fairness).
Particulars
a.The Applicant was denied procedural fairness by the Minister in the hearing on 2 September 2016 and giving rise to the decision of the Minister on 5 September 2016.
See recording of hearing on 2 September 2016 at approximately 35:30 minutes and following, particularly in relation to the Minister’s prohibition on the Applicant referring to any notes.
b.The decision of the IAA was based ‘on the papers’ and therefore the IAA did not cure the procedural unfairness to the Applicant.
c.The conduct of the Minister at the hearing on 2 September 2016 so infected the process that it was necessary for the IAA to remit the decision for reconsideration pursuant to s 473CC(2)(b) Migration Act 1958 (Cth).
Applicant’s arguments
The applicant argued that it was uncontroversial that he was entitled to procedural fairness in the interview with the delegate and the related decision-making process. He accepted that the content of procedural fairness depended on all the circumstances of each case and argued that here, they included the fact that he was unrepresented before the delegate, was vulnerable due to trauma that he had suffered in Sri Lanka and that the merits review available to him was, in essence, to be conducted on the papers.
Procedural unfairness was said to have arisen in the following way.
On 11 August 2016, the Minister wrote to the applicant inviting him to attend an interview. The correspondence enclosed a document entitled “Important Information About Your Protection Visa Interview” (Information Sheet). The Information Sheet requested that the applicant bring to the interview, amongst other things, any evidence the applicant had relating to the applicant’s protection claims.
Amongst other documents, the applicant took a notebook as an aide memoire to the interview. There were no express instructions in the invitation to the applicant that such documents could not be brought to the interview. Nor was there any express prohibition on their use by an applicant to assist them to provide information, or make submissions, during the interview.
The Information Sheet set out information about “What happens during a Protection visa interview”, including the following:
Towards the end of the interview, there will be a short break. During this time, you can consider if there is anything else you want to tell the officer. If you have a representative or migration agent, you can discuss any matters with them privately during this break.
During the course of the interview, the delegate responded to the applicant’s suggestion that he refer to notes to assist in answering the delegate’s question in the following exchange:
Delegate: Okay. Now you’ve talked about an incident in 2006 where you were stopped by the TMVP and they asked you to throw a bomb and I’m not going to be talking to you in any much detail about that. So I’m not going to be asking you about that. I accept that that’s very possible. But what I want to ask you is apart from that time when the TMVP took you and held you for a few hours and threatened you about the bomb, have you been detained or arrested, or stopped by anybody else for any reason apart from that?
Applicant: Actually other than this incident there’s another incident that happened I already mentioned in my interview one occasion the army caught me, they tortured me and I had some problem with the spinal cord.
Delegate: And when was this?
Applicant: Can’t remember, I got some notes.
Delegate: No no I don’t want you to look at notes. Sorry. I’m asking for your own testimony. I don’t want you to look at notes at all. So was this before you went to Qatar?
Applicant: No after I come back from Qatar.
Delegate: Okay so was it before the war ended?
Applicant: It [sic] think on 2009 period.
The applicant says that he was “shocked” at the statement by the delegate because he thought that he could refer to his notes at the interview and was now prohibited from looking at any notes to help him during the interview.
Following on from the extract between the delegate and the applicant above at [20], the following exchange took place:
Delegate: So if you haven’t mentioned this in your claims, you haven’t, this is the third interview you’ve had to discuss your claims with the Department? So you haven’t mentioned this incident at all previously. So what is this incident?
Applicant: I think I mentioned it in my Christmas Island interview.
Delegate: No, you didn’t.
Applicant: So when I was in the Perth detention centre they took me to check my spinal cord, they believe some issues in my spinal cord.
The applicant argued that the delegate’s assertion that he had not raised this claim before was incorrect. He said that his health records show that, as early as 10 December 2012, he had complained about suffering back pain from being beaten by the SLA.
Three things may be said about the submission: first, the delegate’s comments related specifically to interviews held with the Department to discuss his claims, not to health checks; secondly, apparently without any recourse to his notes, the applicant was able to clarify that he had raised this claim at a health check; and thirdly, the delegate accepted the applicant’s claim to have been injured when he was kicked in the back by soldiers. In other words, the delegate was not wrong.
The applicant argued that, with the benefit of his notebook, he could have better articulated his claims. Given the importance of his credibility to the delegate’s decision, he argued that his inability to refer to his notes curtailed the opportunity he was given to be heard, and materially affected the decision-making process.
The applicant also relied on the fact that, being unrepresented, he was unable to confer with anyone about what evidence he should give. Further, contrary to what was said in the letter inviting the applicant to the interview, there was no break towards the end of the interview. This meant that he was unable to privately consider his position as to whether there was anything else he wanted to tell the delegate.
The applicant argued that those circumstances amounted to a denial of procedural fairness by the delegate. He argued that this affected the IAA’s decision for the following reasons.
First, because it was affected by procedural unfairness, the delegate’s decision was a nullity. This meant that the IAA had no jurisdiction to affirm the decision.
In this respect, the applicant argued that the availability of merits review did not save the delegate’s decision from error. In particular, given that fast track review decisions such as that of the delegate, are automatically referred to the IAA, it could not be said that the applicant had chosen the review process in preference to asserting his rights by way of judicial review: cf. Twist v Randwick Municipal Council (1976) 136 CLR 106 at [116]; [1976] HCA 58 (Mason J) (Twist).
It was also argued that s.69 of the Act did not render valid a decision vitiated by “fundamental jurisdictional error of this nature” or where full merits review was not available. That section was addressed only to breaches of particular provisions in the Act and not to procedural fairness.
The applicant argued that the IAA did not exercise the power of the original decision maker, and so the review conducted by it was not a hearing de novo.
For those reasons, the applicant argued that the only decision the IAA could have made was to remit the matter to the delegate for reconsideration pursuant to sub-s.473CC(2)(b) of the Act.
Minister’s arguments
The Minister argued that the applicant’s case had four threshold problems. First, the Court did not have jurisdiction in relation to it because it was a “primary decision” within the meaning of ss.476(2) and 476(4) of the Act.
Secondly, the applicant’s arguments did not grapple with the effect of s.51A of the Act, which provides that sub-div.AB of div.3 of pt.2 of the Act is taken to be an exhaustive statement of the natural justice hearing rule in relation to the matters it deals with.
Thirdly, s.69 of the Act clothes the delegate’s decision with sufficient validity to enable a valid referral to the IAA for the purposes of a review.
Fourthly, there was no reason why the applicant could not have made submissions and provided further information to the IAA: in particular, concerning the alleged defects in the procedure adopted by the delegate. The applicant was made aware that he could do so but did not.
In addition, the Minister argued that the attack on the delegate’s decision was without merit. First, there is nothing wrong with a decision maker testing a claimant’s memory. Secondly, the complaint about the notes goes nowhere because the claim in issue was ultimately accepted by the delegate. Thirdly, the complaint about a lack of a break does not overcome the fact that the applicant did not ask for a break. In any event, the applicant was offered further time to offer further information. The Minister relied in particular on the following passage at the end of the hearing:
Delegate: Well look thank you very much for your time today [applicant] that’s all the questions I’m going to be asking you. Okay, now an assessment on your application can be made at any time. Now I’m not requesting any further information from you. Okay if you provide any further information before a decision is made on your application it will be considered.
Applicant: No I haven’t got anything new.
Delegate: So have you provided all your claims for protection?
Applicant: No more.
Delegate: Is there anything else you’d like to say before we finish?
Applicant: No. I have nothing to say. If you have anything to say just tell me.
Resolution
First issue: was the delegate’s decision affected by procedural unfairness?
In SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63, the High Court said at 160 – 161 [26]:
It has long been established that the statutory framework within which a decision‑maker exercises statutory power is of critical importance when considering what procedural fairness requires. It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case. As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation:
“[T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [‘to correct or contradict any relevant statement prejudicial to their view’] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place.”
(Citations omitted)
The threshold question in this case, is whether the applicant was denied procedural fairness by the delegate. That cannot be answered without examining, as a first step, the statutory provisions surrounding the delegate’s exercise, or purported exercise, of power.
As its heading suggests, pt.2 of the Act deals with the arrival, presence and departure of persons into and from Australia. Division 3 of pt.2 concerns visas for non-citizens. This Division is divided into a number of parts including: general provisions (sub-div.A); applications for visas (sub-div.AA); the procedure for dealing with visa applications (sub-div.AB) and the grant of visas (sub-div.AC). These proceedings are concerned with the procedure adopted by the delegate and so it is necessary to examine the critical provisions in sub-div.AB.
First, as noted by the Minister, s.51A of the Act provides that sub-div.AB is “taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.” The question that arises in every case concerning s.51A of the Act is the identity of the “matters” with which the subdivision “deals with.” The answer depends on the particular conduct said to give rise to procedural fairness and the scope of the specific provisions in the subdivision.
The balance of the subdivision was summarised by the High Court in Saeed v Minister for Immigration & Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [10] (Saeed):
Subdivision AB concerns how an application for a visa is dealt with after it is lodged and before a decision is made. Section 52 provides for the way in which a visa applicant may communicate with the Minister after lodging an application. Sections 54 and 55 require the Minister to have regard to information forming part of the application, or which is provided subsequently, but prior to a decision being made. Sections 56 and 57, which assume importance on the appeal and are set out below, provide, respectively, that further information may be sought from a visa applicant and that certain information received by the Minister must be provided to a visa applicant for comment. Section 58 makes provision for how the additional information, invited under s 56, or the comment on relevant information, invited under s 57, may be given. Section 63 provides for the time when a decision may be made, having regard to whether invitations for information or comment are outstanding.
As later observed by the Court[2], ss.56 and 57 of the Act are the only provisions in sub-div.AB containing powers by which visa applicants may be given an opportunity, after lodging their application, to provide further information (s.56), or comment on information provided to the Minister (s.57). Section 56 provides:
[2] Saeed at [16].
Further information may be sought
(1)In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
(Emphasis in original)
An invitation under s.56 of the Act may be to give information at an interview with an officer of the Department: sub-s.58(1)(d). There is no prescription of the content of the interview. That is to be contrasted with provisions such as ss.360 and 425 of the Act which require the Administrative Appeals Tribunal (Tribunal) to invite an applicant to “appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
The differences between those provisions and ss.56 and 58 of the Act are stark. First, while s.56 gives the Minister the power to obtain more information and a discretion as to the way in which it is to be given, the Tribunal is, subject to certain exceptions, obliged to invite an applicant to a hearing. Secondly, under s.56 the Minister may either “get any information” or invite the applicant to “give additional information”. Unlike ss.360 and 425 of the Act, this power does not necessarily include an opportunity to address the “issues” arising in the application.
These differences suggest that it is unsafe in the present case to rely generally on the authorities dealing with the obligations imposed by ss.360 and 425 of the Act.
As I have observed, s.56 of the Act does not prescribe the manner in which the Minister’s power is to be exercised. For that reason, s.51A is not addressed to s.56: Saeed at [40]. Similarly, other than providing for the provision of additional information in writing, at an interview or by telephone, s.58 of the Act does not mandate procedures to be followed. In light of that, s.51A has little or no operation in the present circumstances, and the Minister’s reliance on it is misplaced.
Before turning to the conduct of the interview, it is necessary to examine with some precision what the interview was.
The letter inviting the applicant to an interview indicates that it was held for the purpose of allowing the applicant to give additional information. The letter relevantly stated that the applicant was invited to attend an interview to discuss his visa application and claims. The applicant was also invited to bring with him certain things including any evidence he had relating to his protection claims. That supports the conclusion that the delegate was not simply getting “any information that he or she consider[ed] relevant”.
It is important, however, that the invitation letter specified that the additional information was to be given at an interview and, more precisely, that the applicant’s application and claims were to be “discussed”. It was not an open-ended process in which the applicant could do and say as he pleased.
In that context, there was no procedural unfairness in the way that the delegate conducted the interview.
First, there was nothing unfair in the delegate’s insistence on hearing the applicant’s oral evidence about his claims. It was an “interview” in which the applicant was given the opportunity to “discuss” his claims. It was not an opportunity for the applicant to deliver a prepared speech. The process conducted by the delegate was, in the large part, a written one. The applicant had lodged a written application supported by written claims. The applicant was invited to bring further “evidence” to the interview, but the notes were not “evidence”; they were, on the applicant’s own case, an aide memoire.
Further, I agree with the following response by Judge Maguire to a similar claim made in respect of the Refugee Review Tribunal[3] in MZZYD v Minister for Immigration & Border Protection [2014] FCCA 1894[4] at [47] :
The role of the Tribunal is inquisitorial. The Tribunal is called upon to make findings of credit and disputed fact. As such, it is entirely reasonable for the Tribunal to insist on the applicant answering questions other than by reference to notes.
[3] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
[4] Upheld on appeal (MZZYD v Minister for Immigration and Border Protection [2015] FCA 60), application for special leave to appeal dismissed ([2015] HCASL 99).
Contrary to the applicant’s submission, his Honour there was stating a legal principle. It is one that applies to this case in spite of the different statutory context. Like the Tribunal, a delegate must determine whether he or she is satisfied that the criteria for the grant of a visa are satisfied (s.65). In doing so, all the material in the application must be considered (s.54) and, when additional information is obtained, that too must be considered (s.56(1)). The delegate’s ability to obtain further information makes his or her task inquisitorial: see Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [1].
Secondly, the applicant has not established that there was any practical injustice occasioned by the delegate’s insistence on him giving oral responses to questions unaided by his notes: see: Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]; [2003] HCA 6 (Lam); and Minister for Immigration & Border Protection v WZARH (2015) 256 CLR 326 at [36], [57]; [2015] HCA 40 (WZARH). The particular matter in respect of which the applicant sought to confirm by reference to his notes, was the timing of the incident during which he received an injury to his back. A translation of the notes was in evidence. The applicant did not point to any part of that translation that referred to the date on which he received the injury, and none is apparent from my reading of them.
In his affidavit, the applicant stated that, with the assistance of his notes, he could have better identified the likely dates on which he was assaulted. The generality of that evidence is particularly unhelpful and I give the evidence little weight. Neither the incident, nor the year in which he said it occurred (2009), is mentioned in the notes.
More importantly however, the applicant’s claim about his back injury, including when and how it was incurred, was accepted by the delegate. That acceptance meant that any assistance that could have been obtained by reference to the notes in respect of that claim, could not have made any difference to the delegate’s decision. Put another way, the applicant had every reasonable opportunity to present his case about that issue.
The applicant’s argument was that, given the opportunity to refer to his notes, the applicant could have given clearer evidence, and so could have impressed as a more credible witness. It may be accepted that the determination of credibility is not a linear matter; however, the submission ignores the delegate’s reasoning. In particular, its acceptance of the relevant claim, and gives significance to the issue that it does not bear on the facts.
Thirdly, there was no unfairness in the fact that, contrary to the suggestion in the invitation letter, there was no short break towards the end of the interview. The applicant does not rely on the concept of legitimate expectation[5], but submits that a representation that a particular procedure will be followed may affect the content of procedural fairness. At that level of generality, the submission may be accepted: Lam at [33] (Gleeson CJ). However, once again, there must be some practical unfairness.
[5] As to which, see WZARH at [28] – [30].
It is insufficient to say, as the applicant does, that if there was a break in the interview, he might have consulted his notes and made further representations based on them. The applicant did not give evidence that that is what he would have done. The applicant did not ask for a break and, when asked by the delegate whether he had anything more to say, he said that he did not. The applicant was also told at the end of the interview that he could submit further material after the interview and that it would be considered. Further, even if there had been a break and the applicant had consulted his notes, for the reasons I have already given, there would have been no difference in the decision.
The applicant was denied no reasonable opportunity to present his case. There was no procedural unfairness that affected the delegate’s decision. That conclusion means that the application must fail and it is strictly unnecessary to consider the arguments concerning the scope of the IAA’s authority to review the delegate’s decision. However, as the matter was argued, I will give brief reasons as to why the applicant’s arguments on that issue must also be rejected.
Second issue: the scope of the IAA’s authority to ‘review’ the delegate’s decision
There was a subtle shift in the applicant’s arguments on this issue. At first it appeared that he argued that the IAA had no authority to review the delegate’s decision at all because the decision was a nullity. Ultimately, the argument was that, while the IAA could review the decision, the only power it had upon review was to remit the decision to the delegate for reconsideration. Given the ultimate form of the argument, it is unnecessary to deal with all of the submissions concerning this issue. It is, however, expedient to say something about the authority of the IAA to review.
There is a long line of authority concerning the existence and scope of the duty to “review” an administrative decision. It is well-established that, subject to the relevant statutory scheme, the authority to review a decision exists in spite of an error that might, for other purposes, have rendered the decision a nullity: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 313-317 (Bowen CJ) and 331-340 (Smithers J); [1979] FCA 21 .
In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 344; [2004] FCAFC 248 (Zubair) the Full Court considered the question in respect of the Migration Review Tribunal. The Court said, at [28]:
The expression ‘decision’ is not otherwise defined in the Act. There is no textual suggestion that the expression ‘MRT-reviewable decision’ should be restricted in some way so as to refer only to decisions which have been made by a delegate of the respondent after full compliance with the mandatory procedural prescriptions of ss 119 – 121 (in the case of the cancellation of a visa) or other procedural prescriptions applicable to other forms of MRT-reviewable decisions. There is no qualification upon the use of the word ‘decision’ requiring it to be a ‘decision under the Act’: cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. In particular, there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it (see s 347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal’s decision as to the existence of a valid delegate’s decision (a jurisdictional fact on the appellant’s argument) to review by a Court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see e.g. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [38] — [39].
The scope of the authority of any administrative decision, including the IAA, must be determined by reference to the relevant statutory context in which it arises. That said, the passage set out above has some, although not complete, resonance with the provisions of the Act concerning the IAA.
Section 473CA of the Act requires the Minister to “refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made”. Subject to various matters that it is neither necessary nor convenient to examine, a fast track reviewable decision is a decision to refuse to grant protection visas to certain applicants.
The IAA “must review” a fast track reviewable decision referred to it: s.473CC of the Act.
There is no requirement that the decision in question is one made under the Act: cf. s.474(2) of the Act and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. That supports the conclusion that the “decision” under review may, or may not be affected, by jurisdictional error: it simply does not matter.
That conclusion is fortified by the unadorned use of the word “review” in s.473CC of the Act. That is the same word used in respect of the Tribunal (and formerly in respect of the Migration Review Tribunal and Refugee Review Tribunal) which has power to review certain “decisions”. As such, the words “decision” and “review” should be given the same meaning as it has in respect of reviews by those Tribunals: Kline v Official Secretary to the Governor General & Anor (2013) 249 CLR 645 at [32]; [2013] HCA 52.
The decision in Zubair establishes that power and duty to “review” in that context includes the power to determine afresh the merits of an application, a decision in respect of which was affected by jurisdictional error. There is nothing in the context of s.473CC of the Act to suggest that the word has another meaning.
For those reasons, regardless of any denial of procedural fairness in the process conducted by the delegate, the IAA had the authority to review the delegate’s decision.
The applicant’s argument as ultimately framed must also be rejected. Section 473CC(2) of the Act provides:
(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.
For the reasons already given, the “decision” referred to in s.473CC(2) of the Act, is the decision in fact made by the delegate regardless of whether it is affected by jurisdictional error. That means that there is power to affirm the decision even if it was arrived at without according the applicant procedural fairness.
In this context it is necessary to address the argument that the fact that the process of review before the IAA is truncated means that any procedural unfairness affecting the delegate’s decision is not cured. With all respect to the carefully framed submissions of Counsel for the applicant, the argument is wrongly focussed on the IAA’s decision.
While the precise scope of the effect of decisions such as Twist may remain an open question, it is clear at least, that there is often an overlap between the availability of merits review and judicial review. In those cases, the availability of merits review will give rise to discretionary considerations in any application for judicial review of the original decision: see Community Housing Ltd v Clarence Valley Council (2015) 90 NSWLR 292 at [32]; [2015] NSWCA 327 (Leeming JA) referring to Brennan v New South Wales Land & Housing Corporation (2011) 83 NSWLR 23 at [101]; [2011] NSWCA 298; Navazi v New South Wales Land & Housing Corporation [2015] NSWCA 308 and Day v Sanders (2015) 90 NSWLR 764; [2015] NSWCA 324; see also Aronson, Groves and Weeks, Judicial Review of Administrative Action & Government Liability (Thomson Reuters (Professional) Australia Limited, 6th ed, 2017) at [7.340]. This is similar to the discretion that arises in applications for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): see sub-s.10(2)(b)(ii) of the ADJR Act and Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 25 FCR 523.
The difficulty for the applicant here, and no doubt the reason why his argument focussed on the decision of the IAA, is that this Court has no jurisdiction in relation to the delegate’s decision. That decision was reviewable under pt.7AA of the Act and, for that reason, was a primary decision: sub-s.476(2)(a) and s.476(4). The applicant’s argument may have greater force in an application to the High Court.
The second reason for which the applicant’s ultimate argument must fail is that it pays no attention to the qualification in s.473CC(2) of the Act. The IAA does not have the power to remit the decision to the delegate with any direction or recommendation it sees fit, but only those that are permitted by regulation. Regulation 4.43 of the Migration Regulations 1994 (Cth) (Regulations) prescribes directions for the purposes of s.473CC(2) of the Act. That regulation relevantly provides:
Permissible directions on remittal
…
(2)It is a permissible direction that:
(a)the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or
(b)the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or
(c)subsection 36(3) of the Act does not apply to the referred applicant; or
(d)the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.
(3)However, it is not a permissible direction that:
(a)subsection 5H(1) of the Act applies to the referred applicant; or
(b)subsection 5H(1) does not apply to the referred applicant because of subsection 5H(2); or
(c)the referred applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act; or
(d)the referred applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:
(i) the referred applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or
(ii) the referred applicant committed a serious non-political crime before entering Australia; or
(iii) the referred applicant has been guilty of acts contrary to the purposes and principles of the United Nations; or
(e)the referred applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:
(i) the referred applicant is a danger to Australia's security; or
(ii) the referred applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.
(4)It is a permissible direction that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Act.
The scope of that power is inconsistent with the proposition that, where there is some procedural unfairness in the process before the delegate, the IAA must remit the decision without any direction or recommendation.
Conclusion
The applicant has not established that the IAA’s decision was affected by jurisdictional error. The application must be dismissed.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 31 August 2017
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