EOD17 v Minister for Immigration and Anor (No.2) - [2019] FCCA 3493

FEDERAL CIRCUIT COURT OF AUSTRALIA

EOD17 v MINISTER FOR IMMIGRATION & ANOR (No.2)

[2019] FCCA 3493

Catchwords:
MIGRATION – Part 7AA of Migration Act 1958 (Cth) – whether legal unreasonableness established in circumstances where IAA does not seek information from applicant as to probability of requirement for or ability to post bail or proffer surety for bail – applicable principles – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.7.01, 13.03C

Migration Act 1958 (Cth), ss.65, 425, 473BB, 473CA, 473CB, 473CC, 473DA,

473DB, 473DC, 473DD, 473DF, 473FB

Cases cited:

Abebe v Commonwealth (1999) 197 CLR 510

AIC16 v Minister for Immigration and Multicultural and Indigenous Affairs

(No 2) [2019] FCA 531

AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89

BOZ v Minister for Immigration and Border Protection [2018] FCA 418

BVD17 v Minister for Immigration and Border Protection [2019] HCA 34

BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44

CUP16 v Minister for Immigration and Border Protection [2017] FCCA 2438

DPI17 v Minister for Home Affairs [2019] FCAFC 43

ELA18 v Minister for Home Affairs [2019] FCA 1482

EOD17 v Minister for Immigration and Border Protection [2018] FCCA 3323

Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367

Hong v Minister for Immigration and Border Protection [2019] FCAFC 55

Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77

Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475

Minister for Immigration and Border Protection v SZQTS (2015) 148 ALD 507

Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408

Minister for Immigration and Citizenship v Li, (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

NABE v Minister for Immigration and Multicultural and Indigenous Affairs

(No 2) (2004) 144 FCR 1

Navoto v Minister for Home Affairs [2019] FCAFC 135

Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018)

353 ALR 600

SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404

Applicant:

EOD17

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

IMMIGRATION ASSESSMENT AUTHORITY

File Number:

MLG 2178 of 2017

Judgment of:

Judge A Kelly

Hearing date:

7 February 2019

Date of Last Submission:

7 February 2019

Delivered at:

Melbourne

Delivered on:

12 December 2019

REPRESENTATION

Counsel for the Applicant:

Mr A. Aleksov

Solicitors for the Applicant:

Kerdo Legal

Counsel for the Respondents:

Mr A. Yuile

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The name of the first respondent be amended in the title of the proceeding to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The application for leave, now for then, to further amend the amended application filed on 19 October 2018, by deletion of the amended grounds of review and substitution of the proposed ground of review as drafted on 7 February 2019, be dismissed.
The amended application filed on 19 October 2018 be dismissed.
The applicant pay the costs of the first respondent fixed at $7,464.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2178 of 2017

EOD17

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 9 October 2017, the applicant seeks judicial review of a decision of the second respondent, the Immigration Assessment Authority (IAA) dated 4 September 2017 affirming a decision of a delegate of the first respondent (Minister) made on 20 March 2017 not to grant the applicant a Protection visa pursuant to s 65 of the Migration Act 1958 (Cth) (Act).
For the reasons which follow, I have concluded that the application for leave to further amend the amended application filed on 19 October 2018 should be dismissed. Having further considered the application on the basis that, contrary to my decision, leave ought to have been granted, I have also concluded that by not seeking information from the applicant about whether he could secure bail, in circumstances where he had an opportunity to provide such submissions, the IAA’s decision was not tainted by legal unreasonableness.

Procedural history

It is convenient to rehearse the unfortunate procedural history of this matter before turning to the underlying facts and the course of events which resulted in the consideration of the matter by the IAA.
On 9 October 2017, the applicant filed an application seeking review of the decision of the IAA. By that application, an extension of time was sought within which to seek judicial review. The extension was sought on the stated basis that, by clerical error, the application had been lodged electronically, some eight minutes beyond the 35 day time limit fixed by the Act for doing so. The applicant’s solicitor made an affidavit on that date which exhibited a copy of the IAA’s decision and which adduced evidence explaining the circumstances in which the application for judicial review had been lodged 8 minutes out of time.
By a response filed on 30 January 2018, the Minister sought dismissal of the application, including the application for an extension of time, on the basis that each had no prospects of success since the IAA’s decision was not affected by jurisdictional error.
The application was dismissed pursuant to Rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), on 21 November 2018. The dismissal of the application occurred in circumstances where the applicant’s solicitor had, by administrative error, incorrectly diarised the scheduled hearing date. For the purposes of reinstatement, where a solicitor’s error has induced dismissal of an application, it has been accepted that the application may have been dismissed in error.[1]
[1] Goldie v Minister for Immigration and Multicultural Affairs [2002] FCAFC 367, [29].
Orders were made reinstating the application and providing a timetable to regulate the preparation of the matter for final hearing: EOD17 v Minister for Immigration and Border Protection.[2] The achievement of that outcome variously involved the filing of an application in a case, supporting affidavit, outlines of submission, an amended application in a case, a further affidavit. Orders were also made on 14 September 2018, 24 October 2018, 9 November 2018 and on 24 January 2019.
[2] [2018] FCCA 3323.
The amended application was filed on 19 October 2018. By that application, the applicant abandoned the two grounds of review contained in the original application and advanced three alternative grounds of review.
The Minister filed submissions which addressed those grounds. However, the applicant did not do so.
The application was set down for hearing on 7 February 2019.
Shortly before that hearing, the applicant retained counsel who had not previously been involved in the matter. The applicant’s new counsel prepared submissions which were filed on 4 February 2019.
By those submissions, counsel for the applicant abandoned the three grounds of review contained in the amended application. At the hearing before me, counsel confirmed that those grounds were abandoned.
On 6 February 2019, counsel for the Minister filed written submissions which responded to the applicant’s submissions filed on 4 February 2019. By those submissions, the Minister opposed the grant of leave to further amend the amended application. However, those submissions also addressed the proposed further amended ground of review on the basis that the Minister sought the determination of the substantive application.
At the hearing on 7 February 2019, I determined that the matter would be most conveniently addressed by reference to the parties’ submissions on the substantive application and that the question of leave to further amend the application would be dealt with on the basis of the parties’ written submissions. The adoption of that course commended itself to me in circumstances where, although the applicant had filed a submission which both abandoned the amended grounds of review and foreshadowed the making of a proposed ground of review, that proposed ground had not yet been formulated in writing. Upon enquiry, counsel for the Minister confirmed that the proposed ground of review could be sufficiently discerned from the applicant’s written submissions.
Nonetheless, the applicant was directed to formulate the proposed further amended ground of review in writing and did so.
The proposed amended ground of review was stated as follows:
The decision of the IAA is affected by legal unreasonableness.
Particulars
The IAA unreasonably failed to consider whether to request information from the applicant as to whether he could arrange for a family member to come to court and collect him as a condition of being released on bail for charges under the Immigrant and Emigrants Act.
Thus, the ground of review was one of legal unreasonableness grounded upon an alleged failure to consider the exercise of discretionary power.

Background

The factual background to the present application is set out in EOD17 v Minister for Immigration and Border Protection.[3] The Minister correctly observed that the applicant had not challenged that background or asserted it to be inaccurate. I restate that background to avoid the need to refer to the earlier judgment. I also recount the course of events before the IAA as described in that judgment.
[3] [2018] FCCA 3323, [4]-[14].
The applicant is a Sri Lankan national aged 50 years who first arrived in Australia at the Cocos (Keeling) Islands on 8 September 2012 as an irregular maritime arrival.
By his statutory declaration made on 4 November 2013, the applicant claimed that in 1984, his father was killed by persons believed to be Sri Lankan army soldiers. The applicant contemplated joining the LTTE in revenge and told the Grama Sevaka (local village leader) of his intention to do so. The applicant further claimed that in 1986 he was arrested, detained, interrogated and tortured and later imprisoned for 18 months. He claimed that after he was released from jail, he was required to report every two months and that he was further interrogated.
In 1997, the applicant left Sri Lanka for Qatar where he remained until 2002. The applicant returned to Sri Lanka in 2002 where he was harassed by the Karuna Group. In 2005, he returned to Qatar. In 2012 the applicant was located in Qatar by a group of people whom he believed to be Sri Lankan army (SLA) personnel and who came to his workplace looking for him. The applicant claimed that he then returned to Sri Lanka in 2012 where he received a call threatening harm if he returned to Qatar. In May 2012, Tamil men speaking Sinhalese came to the applicant’s house while he was at work. After that, the applicant said that he had kept a low profile in Sri Lanka.
The applicant claimed to fear harm by the Karuna Group, the CID and SLA due to his previous detention.
On 13 July 2015, a solicitor and migration agent lodged an application for a Safe Haven Enterprise visa on behalf of the applicant.
On 13 October 2015, the applicant was invited by the Department to apply for a Temporary Protection (subclass 785) visa or a Safe Haven Enterprise (subclass 790) visa.
The applicant made a further statutory declaration on 10 July 2016.
On 5 December 2016, the applicant was invited to attend an interview on 23 December 2016 to discuss his application and claims. He did so.
On 20 March 2017, the delegate refused the application for a Safe Haven Enterprise visa. The Department provided a detailed decisional record.
On 23 March 2017, the applicant was notified that the delegate’s decision to refuse the Protection visa application had been referred to the IAA for review.
On 4 September 2017, the IAA notified the applicant that it had made a decision to affirm the decision under review. The applicant was provided with a copy of the IAA’s reasons for its decision (Reasons).

IAA decision

By way of overview, although the IAA accepted several aspects of the applicant’s claims, it expressed serious concerns about his credibility and regarded as implausible several other of his claims.
I adopt and distil the respondent’s summary of the IAA’s decision:
a)the IAA accepted the applicant to be a Sri Lankan Tamil of Christian faith;
b)both the delegate and the IAA accepted that the Sri Lankan army had shot the applicant’s father, that the applicant had told the Grama Sevaka that he wanted to join the LTTE, and that the applicant had been arrested in 1986;
c)however, unlike the delegate, the IAA did not accept that the Grama Sevaka was an informant to the authorities. Nor did it accept the applicant’s claims of torture whilst he was detained. The IAA also noted a number of inconsistencies in the applicant’s evidence and did not accept several of his claims below:
i)of harassment and violence against him by the army and police;
ii)that he had been refused a passport due to his prior imprisonment;
iii)of harassment by the Karuna group between 2002 and 2005 when he was operating a trucking business;
iv)to have been followed for three years by the CID without the CID doing more than detaining him for more than 1 to 2 days;
v)of being pursued by Sri Lankan authorities in Qatar.
d)furthermore, the IAA noted that although Tamils suspected to be associating with the LTTE could be subject to serious harm, it found that there was no real chance of the applicant suffering any harm because he was released from detention and was of no interest to the authorities;
e)despite country information indicating that the applicant would be charged, bailed and fined upon his return from Australia to Sri Lanka, the IAA concluded that the applicant would not face serious harm, was not a refugee and for like reasons, was not owed complementary protection.
It is in relation to the final issue – being charged, detained, bailed and fined – that the applicant now seeks to advance a ground of review.
Contextually, the IAA considered country information that there were ongoing instances of serious harm being inflicted against Tamils suspected of association with the LTTE. The IAA was not satisfied the applicant faced a real chance of suffering any harm on the basis of a suspected LTTE involvement or affiliation or his past detention, doing so on the basis that the applicant had not been of any interest to the Sri Lankan authorities since his release from prison in 1987: [33]-[37].
The IAA considered the applicant’s position as a person who had departed Sri Lanka illegally and that the authorities would infer he had claimed asylum. It examined DFAT country information which advised that upon arrival in Sri Lanka all involuntary returnees were processed by the authorities, including by checks against databases, interviews, enquiring with family and neighbours and court records. It also noted country information indicating that the processing of returnees could take several hours and that returnees were often processed en masse: [39].
The IAA did not accept that by simply having claimed asylum or spent time abroad would lead to the applicant being of adverse interest to the authorities. It noted that thousands of asylum seekers had returned to Sri Lanka since 2009, that the risk of torture and mistreatment was low and reducing and that relatively few allegations were made: [40]. It also accepted that persons who were of adverse interest faced the risk of more prolonged detention; however, it considered that the applicant did not have such a profile and did not accept that his prior detention (some 30 years earlier) would result in him being identified as a person of interest. It observed that the applicant had left Sri Lanka and returned illegally through Columbo airport on at least four separate occasions: [41].
The IAA also accepted that, as an illegal departee, the applicant would be charged with the offence of illegal departure contrary to the Immigrants and Emigrants Act 1949 and that the offence carried maximum penalties of imprisonment for up to 5 years and fines of up to 200,000 Sri Lankan rupees: [41]-[42]. It also accepted that, upon being charged, the applicant would be arrested and taken from the airport, his fingerprints would be taken, he would be photographed and taken to the nearest Magistrates Court. It found that persons so charged would remain in police custody for up to 24 hours and, even in circumstances where no magistrate was available, may be held in a prison. By reference to DFAT country information, the IAA found that: (1) most illegal departees were issued with a fine; (2) no returnee who was merely a passenger on a people smuggling boat had been given a custodial sentence: [43]. The IAA found at [44] as follows:
If a returnee pleads guilty, they will be fined and released. If they plead not guilty, returnees are immediately granted bail by the magistrate on personal surety or may be required to have a family member act as guarantor, in which case the person may need to wait until a family member comes to court to collect them. There are rarely any conditions in relation to bail and if they are, they are imposed on a discretionary basis; the person will only need to return to court when the case against them is being heard (or if required to give evidence as a witness in another case). (Footnotes omitted)
Having regard to its findings, the IAA concluded that the applicant would be subject to those routine checks, arrested, charged and fined. It also accepted that the applicant may be detained in custody, both at the airport (for up to 24 hours) and perhaps for a number of days pending bail. While noting the country information as to Sri Lankan prison conditions, it did not accept the applicant would face a real chance of discriminatory conduct or serious harm amounting to persecution: [46]-[49]. In those circumstances, the IAA concluded the applicant did not meet the criteria for protection as a refugee or complementary protection: [50]-[56]. The IAA affirmed the decision not to grant a visa.

Leave to amend

The court may allow a party to amend any document in a proceeding.[4] A question arises whether leave should be granted so as to add the proposed ground of review in substitution of the earlier amended grounds, each of which has been abandoned.
[4] Federal Circuit Court Rules 2001 (Cth), Rule 7.01(a).
Leave to argue a ground of review not raised before a decision-maker where an applicant had an opportunity to adduce evidence and raise arguments on the decision under review should only be permitted where it is expedient and in the interests of justice to do so: cf BOZ v Minister for Immigration and Border Protection.[5] There, Allsop CJ endorsed the proposition that in the consideration of whether to allow an amendment to add a further ground of appeal, the merit of the proposed ground was an important consideration together with the question of prejudice to the respondent. While this is not an appeal, I consider those principles are somewhat instructive to the present application.
[5] [2018] FCA 418, [66] (Allsop CJ).
Although the applicant was assisted in relation to his visa application, the present application arises in the context where the applicant was self-represented before the delegate and IAA. In a related context it has been said that, “as a practical matter, a court may be more willing to draw the line in favour of an unrepresented party than a party represented by counsel. Or, expressed differently, the issue may be more likely to arise in those cases where one party is not represented.” Kasupene v Minister for Immigration and Citizenship.[6] The principle there stated by Flick J has been accepted on many occasions.[7]
[6](2008) 49 AAR 77, [21] (Flick J).
[7]See, eg, ELA18 v Minister for Home Affairs [2019] FCA 1482, [31] (Abraham J); Navoto v Minister for Home Affairs [2019] FCAFC 135, 103 (Middleton, Moshinsky and Anderson JJ); Hong v Minister for Immigration and Border Protection [2019] FCAFC 55, [48] (Logan, Bromwich and Wheelahan JJ); AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18(d)] (Collier, McKerracher and Banks-Smith JJ).

For the reasons which follow, I consider that the proposed ground of review was not sufficiently arguable that it is appropriate to grant leave to amend. As stated above, despite that view, I have considered the application on the basis that such leave ought to have been granted.

Legal unreasonableness

Where the process of arriving at, or the result of, an administrative decision is held to be legally unreasonable, the court is not involved in the conduct of merits review. Instead, “the court is asking whether the decision-maker’s purported exercise of power was beyond power because it was legally unreasonable.”[8] It is settled that an administrative decision-maker is to be allowed an area of genuine decisional freedom within which reasonable minds might properly differ upon what constitutes the correct or preferable decision.[9] Expressed another way, it is not enough that the court would have taken a different view of the matter.[10] A decision which is made within that area of decisional freedom is not affected by jurisdictional error on the ground of legal unreasonableness.[11]
[8]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [83] (Nettle and Gordon JJ), citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.
[9]Minister for Immigration and Citizenship v Li, (2013) 249 CLR 332, [28] (French CJ), [65]-[66] (Hayne, Kiefel and Bell JJ); SZVFW, supra (2018) 357 ALR 408, [51] (Gageler J), [89] (Nettle and Gordon JJ).
[10]Li, Supra (2013) 249 CLR 332, [75] (Hayne, Kiefel and Bell JJ); [30] (French CJ), 107 (Gageler J).
[11] SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ), [51] (Gageler J).
Ascertainment of the standard by which a test of legal unreasonableness is to be measured then requires that consideration be given to the statutory source of the relevant power, the scope and purpose of the statute conferring that power and the objects of that statute.[12] An evaluation whether a decision is tainted by legal unreasonableness requires assessment of the quality of the decision within the framework of those of those matters.[13] The evaluative task requires an assessment of the quality of the decision having regard to the evidence and materials before it and the submissions which were made. The determination of legal unreasonableness is heavily fact dependent and inherently sensitive to context.[14] The test of legal unreasonableness is strict[15] and stringently applied.[16] Accordingly, the claims in which it is established that an administrative decision turning on the exercise of a discretionary statutory power was affected by legal unreasonableness will be rare.[17] A high bar is faced to a challenge against the exercise of a discretionary power based upon legal unreasonableness where the reasons otherwise demonstrate a justification for that exercise of power.[18]
[12]Li, supra (2013) 249 CLR 332, [67], [72]-[74] (Hayne, Kiefel and Bell JJ); [23] (French CJ), 109 (Gageler J); (2018) 357 ALR 408, [12] (Kiefel CJ), [79], [90] (Nettle and Gordon JJ), 134 (Edelman J).
[13]Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408, [9] (Nettle and Gordon JJ) citing Li, supra (2013) 249 CLR 332, [67], [90], 109; Klein v Domus Pty Ltd (1963) 109 CLR 467, 473-474.
[14]           SZVFW, supra (2018) 357 ALR 408, [59] (Gageler J), [84] (Nettle and Gordon JJ).
[15]SZVFW, supra (2018) 357 ALR 408, [51], citing Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J);
[16]           Li, supra (2013) 249 CLR 332, 108; SZVFW, supra (2018) 357 ALR 408, [11] (Kiefel CJ).
[17]Li supra (2013) 249 CLR 332, 112-113; see also DPI17 v Minister for Home Affairs [2019] FCAFC 43, 110-111 (Mortimer J).
[18]           SZVFW, supra (2018) 357 ALR 408, [84] (Nettle and Gordon JJ).

Legal unreasonableness under Pt 7AA

It was common ground that what is legally reasonable in a given case will always depend on the statutory scheme within which the decision is made.[19] The present case arises under Pt 7AA of the Act.
[19] Li at [67].
Part 7AA of the Act concerns the subject Fast track review process in relation to certain protection visa applications and is arranged in 8 Divisions comprising ss 473BA – 473J. Relevantly, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the IAA must review, a fact track reviewable decision.[20]
[20] Act, ss 473CA, 473CC.
Section 473CB identifies the material that must be provided to the IAA. Relevantly, it includes the delegate’s decisional record.[21]
[21] Act, s 473CB(1)(a).
By Pt 7AA of the Act, the core function that is imposed on the IAA is to conduct the review a fast track reviewable decision.[22]
[22]Act, s 473CC(1); Cf Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
In contrast with a review under Pt 5 or Pt 7 of the Act, the fast track scheme provided by Pt 7AA is a mechanism of limited merits review.[23] Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the IAA;[24] requires that the IAA should ordinarily conduct its review on the papers;[25] provides for the exceptional, and strictly circumscribed,[26] circumstances in which new information or documents may be sought or employed[27] and; authorises and prescribes the manner in which the IAA may conduct an interview of the applicant or otherwise obtain further information.[28]
[23]           BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[24] Act, s 473DA.
[25]           Act, s 473DB.
[26]           BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [31].
[27]           Act, s 473DC-473DE.
[28]           Act, s 473DF.
In general, the IAA must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[29] The IAA may, but is under no duty to, get any documents or information that was not before the delegate.[30] Section 473DD proscribes the IAA from considering any new information unless the conditions provided by that section are satisfied.
[29] Act, s 473DB(1)(a)-(b).
[30] Act, s 473DC(1)-(2).
Nothing in Part 7AA otherwise constrains the application of the law respecting the duty of an administrative decision-maker to consider the claims and issues arising from the material that is before it and the issues that may arise from its own findings.[31] For that reason, the IAA must consider each articulated claim and each claim that clearly arises from the review material before it.[32]
[31]AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).
[32]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [60] (Black CJ, French and Selway JJ).
For the same reason, the powers conferred on the IAA by Div 3 of Pt 7AA are so “conferred on the implied condition that they are to be exercised within the bounds of [legal] reasonableness.”[33]
[33]Plaintiff M174/2016 v Minister for Immigration and Border Protection, (2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ); BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, [10], [14]-[15] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
Upon the primary rule provided by Pt 7AA, the IAA is required to conduct a fast track review ‘on the papers’ and to do so by reference to the review material[34] that is provided by the Secretary and, save as to the strictly circumscribed exception afforded by s 473DD, is proscribed from considering new information[35] in conducting such review.[36] In Minister for Immigration and Border Protection v CRY16,[37] the Full Court observed with respect to the primary obligation imposed by s 473DB(1) to review a referred decision ‘on the papers’ as confirming the restrictive nature of the system of review provided by Pt 7AA “in which the Authority may (and in many cases must) proceed to make a decision without any input from a referred applicant.” Robertson, Murphy and Kerr JJ held that s 473DB(1) suggested that the IAA was empowered to seek information or comment from a referred applicant only to the extent permitted by an express provision in Pt 7AA.
[34] Act, ss 473BB, 473CB(1).
[35] Act, ss 473BB, 473DC(1).
[36]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [33] citing Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 253 ALR 600, [22]; Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, [19].
[37] (2018) 253 FCR 475, [30].
Accordingly, in conducting a de novo review of a delegate’s decision, it is generally open to the IAA to disagree with the delegate’s evaluation of the material without providing to the applicant an opportunity to respond or affording him or her an invitation or hearing.
In DPI17 v Minister for Immigration and Border Protection,[38] Griffiths and Steward JJ considered that the following propositions had been distilled in the High Court’s consideration of Pt 7AA in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[39]
(1)as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2)the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3)the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li[2013] HCA 18; 249 CLR 332 (Li) (at [21]);
(4)the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE“as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5)although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6)s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
[38] [2019] FCAFC 43, [35].
[39](2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing).
More recently, in BVD17 v Minister for Immigration and Border Protection[40] the plurality described s 473DA as codifying the natural justice hearing rule for the purposes of Pt 7AA of the Act. Their Honours also observed that the exhaustiveness of the rule of procedural fairness in Pt 7AA was more extensive than that stated in relation to Pt 7, in that it extended to the entirety of the performance of the IAA’s overriding duty to review a fast track reviewable decision.[41] In the result, the court held that having regard to the codifying (i.e. exhaustive) effect of s 473DA(1), “procedural fairness analysis is not the ‘lens’ through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined,” except to the extent that it overlapped with legal unreasonableness.[42]
[40] [2019] HCA 34, [34].
[41] [2019] HCA 34, [31], [35] (plurality); cf [51], [62] (Edelman J).
[42][2019] HCA 34, [34], approving Minister for Immigration and Border Protection v CRY16 (2018) 253 FCR 475, [67]; Minister for Immigration and Border Protection v DZU16 (2018) 253 FCR 475, [99].
Thus, it is now settled that a challenge of the present kind is to be approached within the statutory framework of Div 3, Pt 7AA and upon principles of legal unreasonableness, not through a lens of procedural fairness.[43] Legal unreasonableness then assumes a dominant place in the consideration of a challenge by way of judicial review upon the exercise or non-exercise of a discretionary power under Pt 7AA of the Act.
[43] Ibid.
A referred applicant may provide a written statement on why they disagree with the decision under review and on any claim or matter which he or she presented to the Department that was overlooked.[44] Aside from the exhaustive statement of the natural justice hearing rule, the referred applicant is entitled to participate in that review.
[44]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].
On judicial review, the onus of demonstrating jurisdictional error lies upon the applicant who must, where relevant, establish the factual foundation for a finding on the balance of probabilities that the IAA failed to consider whether to exercise a power conferred by Pt 7AA.[45] If such a finding can be inferred from the underlying facts, it is then a separate question whether the quality of the decision or the process by which it was arrived at indicates that the conduct of the IAA (whether by act or omission) was legally unreasonable.
[45]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [35] citing BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, [41]; see also, BVD17 v Minister for Immigration and Border Protection [2019] HCA 34, [38].

Resolution

The applicant correctly submitted that the IAA may get any documents or information that were not before the Minister when the Minister made his or her decision, and that the IAA considers may be relevant.[46] It was accepted that the IAA did not have a duty to get, request or accept any such new information: s 473DC(2). The applicant also pointed to the power conferred on the IAA by s 473DC(3) of the Act to invite a person to give such new information in writing, or at an interview; whether conducted in person, by telephone or in any other way. It was also accepted that the IAA was proscribed from considering any new information[47] unless, relevantly, it was satisfied that there were exceptional circumstances to justify it doing so. As the authorities confirm, to be “an exceptional circumstance, it need not be unique or unprecedented or very rare.”[48]
[46] Act, s 473DC(1).
[47] Act, s 473DC(1).
[48] Plaintiff M174/2016 v Minister for Immigration and Border Protection, (2018) 353 ALR 600, [30].
The applicant submitted that the IAA’s decision was tainted by legal unreasonableness arising from, it was said, a failure to seek out from the applicant new information in relation to an issue that emerged for the first time in the course of its review.
The ground of review relied upon the IAA’s reasoning that the applicant would not be exposed to significant harm in light of its findings as to the nature of the treatment he would most likely receive as an illegal departee and in particular that he would not face prolonged detention. Counsel for the applicant correctly submitted that the IAA had recognised country information recorded the conditions in Sri Lankan prisons to be very poor. The submission focused upon the finding that the applicant would probably be granted bail which, in turn, might have required the provision of surety by a family member: Reasons, [44].
Counsel for the applicant properly conceded that this had not been “the highest wave of the applicant’s case” but nonetheless submitted that it remained an essential part of his claim to protection. It was submitted that nothing in the information before the IAA indicated whether there was any family member available to the applicant who might be able and willing to proffer surety for his bail. It was further observed that the delegate had not made any finding on this issue.
Counsel relied upon Minister for Immigration and Border Protection v CRY16,[49] and, by analogy, Minister for Immigration and Border Protection v SZQTS [50] as supporting the ground of review.
[49] (2017) 253 FCR 475.
[50] (2015) 148 ALD 507.
Counsel for the Minister correctly submitted that consideration of the question of legal unreasonableness arose within the statutory framework of Part 7AA of the Act and that the applicant bore the onus of demonstrating that the IAA had failed to consider whether it should exercise its discretionary power to seek information from the applicant, alternatively, that it had considered, but unreasonably decided not, to seek such information.
I accept the Minister’s submission that the applicant’s reliance upon Minister for Immigration and Border Protection v SZTQS is flawed by reason that it does not take sufficient account of the significantly different statutory framework in which that decision arose. I also accept that the result in SZTQS must be understood in light of later authority. In SZTAP v Minister for Immigration and Border Protection,[51] Robertson and Kerr JJ held that SZTQS did not stand for a high level proposition that a failure to address a question of whether a family member would be required, or able, to provide surety in every case would entail a breach of the obligation to invite an applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.
[51] (2015) 238 FCR 404, [76].
Further, SZTAP fell for consideration within the quite distinct statutory framework of Part 7 – not Part 7AA – of the Act. In the present case, the fast track review process provided by Part 7AA of the Act does not impose an obligation akin to s 425(1) of the Act.
As SZTAP confirms, the question whether any member of an applicant’s family would be required, or able, to proffer surety for bail is a fact specific enquiry which is dependent upon the unique circumstances of the particular case. In the first instance it may well depend upon whether the issue has been raised. By extension, where this would be the reason or part of the reason for refusing a visa application, the question whether a failure to invite an applicant to address those matters will may ground jurisdictional error, will differ in the contexts of the different statutory frameworks provided by Part 7 and Part 7AA respectively.
Indeed, the circumstances of SZTAP stand in marked contrast to the present case. In SZTAP, the applicant, before leaving Sri Lanka, had been arrested and detained at a local court house where his mother had been forced to pay money to secure his release. The applicant sought protection grounded upon an express claim that he feared being re-arrested including by reason of his Tamil ethnicity.[52] The Full Court did not accept that those circumstances alone were sufficient to engage an obligation in the Tribunal under Part 7 of the Act to seek information from the applicant upon the question of his family’s ability to provide security for his bail.
[52] (2015) 238 FCR 404, [77]-[78].

As observed by counsel for the Minister, here the IAA’s reasoning at [44] was in many respects very similar to the reasoning adopted by the Tribunal in SZTAP,[53] which the Full Court found to be without error. There was no aspect of the applicant’s background or claims which distinctly raised the prospect that he would encounter difficulty in securing surety for his bail. To the contrary, the material before the delegate included that the applicant’s wife, mother, father and children all lived in Sri Lanka. By way of context, the applicant’s application for a Safe Haven Enterprise Visa contained the statement “I’m in regular contact with my family in Sri Lanka. We talk on average once a week via mobile.” Further, the attachment to his visa application identified no fewer than nine family members. Although the delegate had raised the issue, the applicant made no submissions respecting the grant of bail following arrest. Both the delegate and IAA referred to, and were conscious of, his familial links.
[53] (2015) 238 FCR 404, [34].
I also accept the submission that there was nothing before the IAA as to warrant a conclusion that it should have departed from the usual practice of conducting the review “on the papers”. Indeed, as was properly conceded, the country information upon which the IAA had examined the treatment of illegal departees and, in particular, the manner in which they would be investigated, charged, arrested, detained, fined and bailed was not “new information” but had been before the delegate. Considered in this way, it was neither accurate nor sufficient, in my view, to assert that the delegate had not addressed these issues. To the contrary, the delegate had addressed the matter, but had done so in circumstances where the applicant had not raised any submissions in relation to it. Had the applicant wished to contend that the issue had not been properly considered by the delegate and that this flaw should be revisited in the course of a fast track review, no submission of that or any kind was made.
Where the material remains at a level of generality, an administrative decision-maker’s findings may address an issue in relatively short compass. An applicant cannot be heard to complain of a want of consideration in the absence of evidence or submissions which make an express claim or one which clearly arises on the material. In my opinion, those principles apply to complaints respecting supposed difficulties in securing bail, whether surety for bail will be required or cannot be provided, just as much as they apply to complaints respecting a brief period of detention in prison.[54] By extension, the brevity or absence of evidence or submissions on an issue may properly inform consideration whether it had been legally unreasonable not to exercise a discretionary power to seek new information from a fast track applicant.
[54]CfAIC16 v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2019] FCA 531, [60]-[61] (Mortimer J).
Relatedly, no evidentiary basis was shown for an assumption that the provision of surety would be conditioned upon a requirement for the payment of money.[55] In those circumstances, no basis is shown for a conclusion that the IAA ought to have considered the exercise of its statutory power to obtain information from the applicant had it exercised its discretion to do so.
[55]Cf SZTAP, (2015) 238 FCR 404, [80]; see also, CUP16 v Minister for Immigration and Border Protection [2017] FCCA 2438, [48] (Smith J).
Accepting that this issue had not been the “highest wave” of the claim, it is also important to recognise that in the process of the fast track review, the applicant was given an opportunity to make submissions. Notwithstanding the nature of the fast track review process, it was for the applicant to advance whatever evidence he wished to rely upon in support of the contention that he satisfied the criteria for the Protection visa.[56] Accepting that the scope of the opportunity to participate in the review process before the IAA was more confined, the applicant made no submissions to the IAA at all. In all of the circumstances, I am not satisfied that the decision is tainted by legal unreasonableness on the basis suggested by the further ground for which leave had been sought to further amend the amended application for review.
[56]cf Abebe v Commonwealth (1999) 197 CLR 510, [187] Gummow and Hayne JJ); see also SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 151, [40] (The Court).

Conclusion

For the foregoing reasons, the application for leave to further amend the amended application for review is dismissed.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate:

Date: 12 December 2019