FAV17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 411
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FAV17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 411
File number: MLG 2481 of 2017 Judgment of: JUDGE BLAKE Date of judgment: 19 May 2023 Catchwords: MIGRATION – Judicial Review – Immigration Assessment Authority (‘Authority’) – whether unreasonable for Authority not to request Translated version of a statement – whether Authority failed to assess whether new information was capable of being accepted order s473DD and therefore applied a stricter test – whether Authority failed to consider whether new information was credible personal information – HELD Authority applied a stricter test, not required by the Act, when it stated new information ‘had it been true’ – matter remitted for rehearing. Legislation: Migration Act 1958 (Cth) ss 424A(1), 473DC, 473DD, 473DD(b)(i), 473DD(b)(ii). Cases cited: AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2021] FCA 1069
APH17 v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FCA 23
AUS17 v Minister for Immigration and Border Protection [2020] HCA 37
CRS16 v Minister for Immigration and Border Protection [2018] FCA 474
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Minister for Home Affairs v DUA; Minister for Home Affairs v CHK16 (2020) 271 CLR 550
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of hearing: 2 May 2023 Place: Melbourne Counsel for the Applicant: Mr Aleksov Solicitor for the Applicant: Carina Ford Immigration Lawyers Counsel for the Respondents: Ms Lucas Solicitor for the Respondents: Australian Government Solicitor
Table of Corrections 22 May 2023 In paragraph 9, the Applicant’s name has been replaced with ‘the Applicant’. ORDERS
MLG 2481 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FAV17
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
order made by:
JUDGE BLAKE
DATE OF ORDER:
19 MAY 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to ‘Minister for Immigration, Citizenship and Multicultural Affairs’.
2.A writ of certiorari issue quashing the Second Respondent’s decision made on 20 October 2017 in Immigration Assessment Authority matter number IAA17/01883.
3.A writ of mandamus issue requiring the Second Respondent rehear and determine the matter according to law.
the decision of the delegate of the First Respondent.4.The First Respondent pay the Applicant’s costs of the proceeding fixed in the sum of $8,371.30.
AND THE COURT NOTES THAT:
A.These Orders have been amended pursuant to rule 17.05(2)(g) of the Federal Circuit and Family Court Rules (Division 2) (General Federal Law) Rules 2021 on 19 May 2023.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE BLAKE:
This is an application for review of a decision made by the Immigration Assessment Authority (‘Authority’) on 20 October 2017. In that decision, the Authority affirmed a decision of a delegate of the Minister not to grant the Applicant a Safe Haven Enterprise (subclass 790) visa (‘visa’).
For the reasons that follow, I have decided to allow the application for review.
BACKGROUND
The Applicant is a Vietnamese national. The Applicant arrived in Australia on 31 May 2013 (Court Book (‘CB’) 87) as an unauthorised maritime arrival. He applied for the visa on 8 November 2016.
On 12 January 2017, the Applicant attended a protection visa interview. Post-interview submissions were submitted by the Applicant's former representative on 19 January 2017.
On 25 January 2017, a delegate of the Minister (‘delegate’) refused to grant the Applicant the visa.
The decision to refuse the visa application was then referred to the Authority for review. Written submissions were submitted to the Authority by the Applicant's former representative on 14 March 2017 (CB 183), and 20 March 2017 (CB 195).
On 20 October 2017, the Authority affirmed the decision not to grant the Applicant the visa.
The Applicant filed an application for review in this Court on 17 November 2017. The application for review was accompanied by an affidavit of Dushan Nikolic affirmed 17 November 2017.
The Applicant ultimately filed an Amended Application (‘Application’) on 8 April 2022. The Applicant also filed a written outline of submissions on 8 April 2022 and an affidavit of the Applicant. The affidavit of the Applicant was read into evidence before me during the course of the hearing. The Minister filed a Court Book and a written outline of submissions prior to the hearing.
LEGISLATIVE PROVISIONS
The Grounds of Review raised by the Applicant concern the application of section 473DC and section 473DD of the Migration Act 1958 (‘Act’). Section 473DC of the Act concerns the obtaining of new information by the Authority. It is accepted that the power in section 473DC is to be exercised reasonably. Section 473DD relevantly provides as follows:
For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:
(a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and
(b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:
(i)was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or
(ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.
The proper operation of section 473DD was considered by the High Court of Australia in AUS17 v Minister for Immigration and Border Protection [2020] HCA 37 (‘AUS17’).
THE APPLICATION
There are three Grounds of Review in the Application. Each one is addressed below.
Ground one
The first Ground of Review is as follows:
The decision of the Second Respondent is affected by legal unreasonableness because the Second Respondent did not seek out from the Applicant’s Registered Migration Agent the translation of the father’s statement.
On 14 March 2017, the Applicant’s representative wrote to the Authority. In that letter, the representative stated that they had been supplied with new information. The new information was described as ‘police summonses for [the Applicant’s] father to attend at the police station to be interviewed with regard to the activities and whereabouts of [the Applicant]. Copies of the documents with translations is attached’. The representatives also informed the Authority that ‘We are seeking further information from [the Applicant’s] parents regarding the police enquiries and summonses. We expect to be able to submit a sworn statement from [the Applicant’s] father regarding these matters’.
On 20 March 2017, the Applicant’s representative again wrote to the Authority. In that letter, the representative purported to enclose a range of new information. The range of information included the following:
Vietnam Police summons to [Applicant’s father] dated 04/04/2016 (with translation)
Vietnam Police summons to [Applicant’s father] dated 18/01/2017 (with translation)
Statement in Vietnamese by [Applicant’s father] dated 11 March 2017 (with translation)
As it turns out, translations of the summonses were provided to the Authority. No translation of the Applicant’s father’s statement was provided to the Authority.
The Authority dealt with this issue in the following way at paragraph [11] of its reasons:
The applicant has also provided a statement by his father, VBT. The statement post-dates the decision. It is written in Vietnamese. In the representative’s submission she refers to a translation of the statement but no translation has been provided. I am unable to read the statement. In any event, although the applicant has advised that the statement was obtained in response to enquiries made following the receipt of the summonses, as noted above, the applicant has not satisfied me that he was not aware of the summons prior to physically receiving them.
The Applicant’s point before me is a short one. He submits it was unreasonable for the Authority not to have contacted the Applicant’s representative and sought the translated version of the Applicant’s father’s statement. In written submissions, the Applicant referred to Minister for Home Affairs v DUA16; Minister for Home Affairs v CHK16 (2020) 271 CLR 550 (‘DUA16 and CHK16’).
DUA16 and CHK16 is instructive. The High Court, among other things, set out the approach to take in determining legal reasonableness. The High Court noted that the threshold is ‘usually high’ (at [26]). The High Court also noted that ‘there is no general obligation on the Authority to advise referred applicants of their opportunities to present new information. Nor is there any general obligation upon the Authority to get new information. This is so even if the submissions are hopeless, or if they contain errors, even major errors, about facts or law (at [27]).
Ultimately in DUA16 and CHK16, the High Court considered the circumstances of CHK16’s case to be ‘extreme’ (at [28]), but DUA16’s case to be ‘different’ (at [34]). In assessing CHK16’s case, the High Court noted that ‘if the Authority could not have reasonably expected any useful result it could not be unreasonable for it to fail to invite CHK16 to provide submissions with any new information’.
In the present matter, it is plain that the Applicant’s father’s untranslated statement related to the police enquiries and the summonses. There was a link between the summonses and the Applicant’s father’s untranslated statement, and that link was stated expressly by the Applicant’s representatives.
To understand the Authority’s approach to the untranslated statement of the Applicant’s father, it is necessary to understand what the Authority did in relation to the summonses.
The Authority considered the two police summonses and dealt with them in paragraph [10] of its reasons as follows:
The two police summonses pre-date the delegate’s decision. The applicant has not [sic] provided somewhat differing explanations as to why these were not previously provided - initially suggesting because he didn’t physically possess them he couldn’t provide them and indicating that he had no knowledge of them until they came into his possession in Australia. I do not accept this explanation. One of the summons dates from April 2016. No explanation has been provided as to why he was not previously aware of their existence, or why if he did know about them, why he could not advise the Department of the existence.
It can be seen from the above, that in so far as the summonses are concerned, the Authority did not accept the Applicant’s explanation as to why he had no knowledge of them, particularly when one of them was dated April 2016. It did not therefore accept the information could not have been provided to the Minister before the Minister made the decision.
The Authority then proceeded to deal with the Applicant’s father’s statement at paragraph [11] of its reasons (set out earlier). At paragraph [13], the Authority stated that it was not satisfied that the new information in the summonses and the Applicant’s father’s statement could not have been provided to the Minister before the delegate made its decision. The Authority also was not satisfied that the information provided was ‘credible personal information’ (at [14]). The Authority made these decisions knowing the substance of the documents i.e. that local authorities in the Applicant’s home area continue to pursue the Applicant.
The Authority did not seek a translated copy of the Applicant’s father’s statement and that decision was not unreasonable in the circumstances of this case. The Authority knew the substance of what the father’s untranslated statement related to. It related to the summonses and police inquiries. The Authority was not satisfied, however, that the new information could not have been given to the delegate earlier, and was not satisfied the information was credible personal information. In all the circumstances, the Authority could not have reasonably expected any useful result to flow from seeking a translated copy of the Applicant’s father’s statement, given it was apprised of the substance of what the statement related to.
When the circumstances of this case are considered, I am satisfied that the decision of the Authority not to seek a translated copy of the Applicant’s father’s statement was not unreasonable. The threshold for unreasonableness is high. Legal unreasonableness in the circumstances of this case needs to be viewed in a context where there is not any general obligation on the Authority to advise applicants to present new information, and where the Authority was apprised of the information to which the summonses and the Applicant’s father’s statement related. The circumstances of this case are not extreme and do not come anywhere near the circumstances examined by the High Court involving CHK16.
For all of the above reasons, Ground one of the Grounds of Review must be dismissed.
Ground two
The second Ground of Review is as follows:
The Second Respondent did not correctly apply ss 473DD(b)(ii) of Migration Act 1958 (Cth), in that the Second Respondent decided that the summonses were not true which was a stricter test than was required.
Under this Ground of Review, the Applicant takes issue with the treatment by the Authority of new information (constituted by the police summons and the Applicant’s father’s statement) at paragraph [14] of its reasons. In paragraph [14] of its reasons, the Authority stated as follows:
Nor has the applicant has not satisfied me that this information is credible personal information. I am not satisfied that given the claimed significance of this new information to the applicant’s claims for protection, that being the continued investigation of the applicant by the local authorities in Vietnam for political activism, that had it been true, such information would be unknown to the applicant until after the decision was made.
In CSR16 v Minister for Immigration and Border Protection [2018] FCA 474 (‘CSR16’), Bromberg J considered section 473DD(b)(ii) of the Act. Bromberg J found that in applying section 473DD(b)(ii), the Authority is required to be satisfied that the information is capable of being accepted as truthful. Bromberg J noted it is only at the deliberative stage of its review that the Authority will be required to determine whether or not the ‘new information’ is true, and that section 473DD(b)(ii) is concerned with an earlier stage of the review directed at whether the new information should be received, at [41]. Bromberg J emphasised that the task is not to look at whether the new information is true, but rather whether the information is ‘capable of being believed at the deliberative stage of the Authority’s review’ at [43]. These statements were subsequently accepted by a Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v BTW17 [2020] FCAFC 159.
The Minister sought to distinguish the current matter from the decision in CSR16. The Minister submitted that the words ‘had it been true’ in paragraph [14] of the Authority’s reasons does not connote any final view. The Minister submitted that this distinguished the present matter from that considered by Bromberg J in CSR16, where the Authority effectively prejudged the question of whether the Applicant had a subjective fear of the relevant harm. The Minister also submitted that in paragraph [14], the Authority ‘was simply making a finding on the basis of the significance of the information with reference to the time of the purported disclosure to the Applicant; being after the Delegate’s decision was made’.
I accept this case is different from what occurred in CSR16. Here, there is no prejudgment by the Authority of a question the answer to which could only be given once the Authority had before it the whole of the relevant material. However, this does not provide a complete answer. Here, the Authority used the words ‘had it been true’ to describe the new information. In my view, the better inference to be drawn from the use of these words is that the Authority did not regard the new information as being true. By making such a statement, the Authority was not merely assessing whether the new information was capable of being believed or accepted. Rather, it formed a concluded view that the new information was not true. In going that far, the Authority undertook a task at the deliberative stage of its review, and did not undertake the task at the anterior stage of the review, as section 473DD requires. This was an error by the Authority.
The question that then arises, is whether the error by the Authority is material. The Applicant submitted that materiality in relation to this particular error is set at ‘zero’. That submission was advanced on the following bases. First, CSR16 and AEX19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1069 do not contemplate any separate materiality requirement in relation to errors of the type under consideration. Second, the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 (‘Hossain’) left open the possibility that a statute on its proper construction may set a different threshold of materiality. Third, that the provisions under consideration here are similar to section 424A(1) of the Act. It was submitted by the Applicant that the High Court in SAAPv Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2005) 228 CLR 294 found that every failure to comply with section 424A(1) of the Act gave rise to jurisdictional error. The Applicant submitted that section 473DD is similar to section 424A(1) because like section 424A(1), section 473DD forms part of the code of procedure setting out exhaustive requirements of procedural fairness.
I am unable to accept the Applicant’s submissions that materiality is set at ‘zero’. I am not inclined to accept the proposition that section 473DD is similar to section s424A(1). The provisions and the scheme that surrounds each, is different. There is no authority that supports the proposition advanced. At paragraph [30] of Hossain, the High Court stated:
Whilst a statute on its proper construction might set a higher or lower threshold of materiality (36), the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of “the possibility of a successful outcome” (37), or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was “so insignificant that the failure to take it into account could not have materially affected” the decision that was made (38).
There is nothing that I detect in the provisions before me that would cause me to form the conclusion that the question of materiality in relation to a breach of section 473DD, is to be assessed in a way other than in accordance with the usual tests set out by the High Court in Hossain and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. A submission similar to the one put before me was put before Markovic J in APH17 v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FCA 23 (‘APH17’). Markovic J rejected that submission for reasons set out at paragraphs [65]-[67], and I concur with Markovic J’s reasons and respectfully adopt them.
In view of the conclusion above, it is necessary to consider whether the error made by the Authority on this occasion was material, with materiality to be assessed consistently with what the High Court said in Hossain.
The Authority summarised the Applicant’s claims for protection at paragraph [28] of its reasons. Those claims included claims that the Applicant was a practising Catholic, that he was involved in two demonstrations in July 2012 and September 2012, that he thereafter received letters to attend an interview at a local police station, that he never attended the interview and made arrangements to flee Vietnam, and that since his arrival in Australia, local police in Vietnam have harassed his family.
The Applicant’s claims were substantially rejected by the Authority at [43] of its reasons. The claims were rejected by the Authority having regard to ‘inconsistencies in the applicant’s evidence and the evolution of the claims between the applicant’s interactions with the Department’.
The question before the Court, is whether it can be said that proper compliance by the Authority with section 473DD could have made no difference to the decision ultimately arrived at. In my view, it cannot be said that had the Authority performed its task properly, it would have made no difference to the ultimate conclusions the Authority arrived at.
The new information which the Applicant sought to include were police summonses and a statement from his father. That evidence may have proved corroborative of the Applicant’s claims that he had attended the demonstrations. It may have proved corroborative of his claims to be of interest to police. It may have proved corroborative to his claims that his family continued to be harassed by the police. In my view, the new information when weighed against all of the other evidence and the concerns expressed by the Authority about the Applicant’s evidence, may have led to a different path of reasoning and different conclusions.
For these reasons, I allow Ground two of the Grounds of Review.
Ground three
The third Ground of Review is as follows:
The Second Respondent did not consider ss 473DD(b)(ii) of the Migration Act 1958 (Cth) in relation to the letters of reference mentioned at Second Respondent’s Reasons [21]-[25].
This Ground of Review concerns two written references sought to be provided by the Applicant. The Authority dealt with these letters and whether they should be admitted under section 473DD of the Act as follows, noting the following reasons of the Authority have been reproduced inclusive of any errors:
21. The representative submits that the two letters of references are letters from “senior officials in the Vietnamese community” confirming the applicant’s political activism in Australia and his claims for protection.
22. The letter of reference signed by DQN post-dates the decision; however the contents of the letter refers to events which pre-date the decision, that being that DQN witnessed the applicant “attend[ing] the protest at Canberra on 2 May 2016”. The letter signed by VN on behalf of Vietnamese Community in Australia, VIC Chapter also post-dates the decision; however the content of this letter also appears to refer to events which occur prior to the decision being made. To the extent that both letters post-date the delegate’s decision I am satisfied that the actual documents could not have been provided before the delegate’s decision was made. However, no explanation has been provided as to why these letters of support were not sought prior to the decision being made. As noted earlier, the applicant received assistance with his protection visa application and interview and has been provided with a number of opportunities to provide this information to the Department of Immigration and the matters covered in the letters were the subject of discussion at the protection visa interview.
23. The letter signed by VN on behalf of Vietnamese Community in Australia, VIC Chapter, appears to expand on the applicant’s claims, that being that VQ met the applicant a “few times during community events, particularly at human rights rallies and cultural events”. The applicant’s own evidence is that since his arrival in Australia he has been involved in two demonstrations which occurred about one year prior to his protection visa interview. The applicant has not mentioned previously that he has been involved in any other events including cultural or community events.
24. The letter signed by DQN and his confirmation that he witnessed the applicant being involved in a protest in May 2016 also appears to be odd when considered against that his interactions with the applicant were limited to him at that event being involved in a “friendly exchange [of] a few words with the applicant”.
25. Both letters post-dates the decision. However what is not apparent is why such a letters of reference which appear to be have been produced at the applicant’s request, could not have been sought earlier, particularly given that the issues to which the letters appear to pertain were before the delegate. The letters are clearly not referring to the applicant’s claimed involvement in the demonstration in March 2017, given that they pre-date this event. Having regard to all the circumstances, I am not satisfied there are exceptional circumstances to justify the consideration of this new information.
The Applicant contends that that there was a failure by the Authority to consider the letters by reference to the terms of section 473DD of the Act. In particular, it is submitted that at no stage, does the Authority discuss or consider whether the information contained in the letters is ‘credible personal information’ as required by section 473DD(b)(ii).
In APH17, Markovic J considered section 473DD following the decision of the High Court in AUS17. After considering what the High Court had said in AUS17, Markovic J stated at paragraph [79] as follows:
As the Minister submits, notwithstanding the plurality’s statement that “logic and policy” demand that the Authority assess new information obtained from a referred applicant first against the criteria in both s 473DD(b)(i) and (ii) and only then against the criterion in s 473DD(a), it is unnecessary for the Authority to engage in any particular formulaic consideration of s 473DD(b). It will be sufficient if, in a particular case, the Court on judicial review is able to infer from the Authority’s reasons that the requisite assessment has occurred. The question is whether the substance of the criteria prescribed by s 473DD(b) has been considered prior to a consideration as to whether “exceptional circumstances” exist for the purposes of s 473DD(a).
The Applicant accepted that the Authority does not have a duty to address the issue with any particular rigidity, and does not have a specific obligation to address the separate limbs of section 473DD. Notwithstanding that, the Applicant maintained that the proper inference to be drawn from paragraphs [21]-[25] of the Authority’s reasons is that there has been a failure to determine whether the letters of reference were ‘credible personal information’.
I have set out paragraph [23] of the reasons of the Authority above. There, the Authority discusses the referee meeting the Applicant a few times at rallies and events. The information considered in that paragraph is not anything other than the consideration of credible personal information. Similar observations arise in relation to paragraph [24]. In that paragraph, the Authority notes the referee having witnessed the Applicant being involved in a protest, and also notes an oddity in the account of that event. Again, the information contained therein is not anything other than the consideration of credible personal information.
When these matters are considered, the proper inference to be drawn is that when the Authority considered the letters as it did, it was considering whether the letters were ‘credible personal information’.
For these reasons, I do not accept the submissions of the Applicant. It follows that Ground three of the Grounds of Review must be dismissed.
DISPOSITION
The Applicant has succeeded in respect of Ground two. The decision of the Authority should be quashed and a writ of mandamus should issue, directed to the Authority requiring it to determine the Applicant’s application according to law.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake. Associate:
Dated: 19 May 2023
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