FDL17 v Minister for Immigration
[2020] FCCA 1317
•27 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FDL17 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1317 |
| Catchwords: MIGRATION – Protection visa – where delegate of Minister failed to comply with s 57 of the Migration Act by not disclosing adverse information – where reliance placed on adverse information – where applicant denied opportunity to respond to adverse information – procedural fairness – whether constructive failure by Immigration Assessment Authority to exercise jurisdiction in failing to consider ‘new information’ – whether failure to consider ‘new information’ unreasonable – error demonstrated – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.5AA, 54, 55, 56, 57, 473DD and 473DC |
| Cases cited: Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 |
| Applicant: | FDL17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | ADG 476 of 2017 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 4 June 2019 |
| Date of Last Submission: | 4 June 2019 |
| Delivered at: | Adelaide |
| Delivered on: | 27 May 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr S McDonald |
| Solicitors for the Applicant: | Camatta Lempens |
| Counsel for the Respondents: | Ms J Battiste |
| Solicitors for the Respondents: | Australian Government Solicitors |
ORDERS
There be an order in the nature of certiorari that the decision of the Immigration Assessment Authority dated 25 October2017 affirming the decision of the delegate of the first respondent made on 13 April 2017 rejecting the applicant’s application for a Safe Haven Enterprise (Subclass 790) Visa is quashed.
There be an order in the nature of mandamus that the Immigration Assessment Authority review according to law the decision of the delegate of the first respondent dated 13 April 2017 rejecting the applicant’s application for a Safe Haven Enterprise (Subclass 790) Visa.
The first respondent do pay the costs of the applicant as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 476 of 2017
| FDL17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review in relation to a decision of the Immigration Assessment Authority (‘the IAA’) dated 25 October 2017 affirming a decision of a delegate of the first respondent (‘the Minister’) not to grant a protection visa to the applicant on 13 April 2017 under the Migration Act 1958 (Cth) (‘the Act’).
The applicant was represented by counsel and the matter proceeded on the basis of 3 grounds (with lengthy particulars), namely grounds 1, 2 and 4 of the Application of the applicant, filed 22 December 2017. The applicant’s counsel did not press grounds 3 and 5 in his outline of submissions or oral argument. The relevant grounds (detailed particulars omitted) are reproduced verbatim as follows:
“1.The IAA constructively failed to exercise jurisdiction because it failed properly to apply section 473DD of the Migration Act 1958 ("the Act"), in that it misunderstood and misapplied pars (a), (b)(i) and (b)(ii) of s 473DD.
…
2. The IAA constructively failed to exercise jurisdiction because it failed properly to apply section 473DD of the Act, due to a failure to appreciate the legal operation of section 57 of the Act and/or the legal and practical effect of the Delegate's failure to comply with section 57 of the Act.
…
4.The decision of the IAA to decline to exercise its power to consider the New Information or obtain any additional information about the applicant's explanation for information contained within the Detention Dossier was legally unreasonable.”[1]
[1] Application of the applicant, filed 22 December 2017, 2-6.
Background
The applicant is an Iranian citizen. He arrived in Australia on 22 March 2013 as an unauthorised maritime arrival within the meaning of s 5AA of the Act and applied for a Subclass 790 Safe Haven Enterprise Visa (‘visa’) on 26 May 2016.
The Immigration Detention Centre in which the applicant was held kept an Individual Management Plan (‘IMP’) which contained records of the applicant’s religious and dietary preferences. The following was documented:
a)On 12 April and 2 May 2013 the applicant identified himself as Muslim and on the latter occasion asked to attend the mosque.
b)On March 2013 the applicant reported to have no dietary requirements but on two subsequent occasions, 12 April and 18 May 2013, requested Halal food.
The applicant underwent an entry interview on the day of his arrival and was subsequently interviewed by the then Department of Immigration and Border Protection (‘the Department’) on 12 December 2016 in relation to his visa application. The applicant was represented by a migration agent at all relevant times.
During the entry interview, the applicant claimed to be of Muslim faith and on the visa application form reported he feared harm as a result of his conversion to Christianity.
At the interview with the Department on 12 December 2016, the applicant was questioned about inconsistencies between the answers provided at his entry interview and those provided on his visa application.
The applicant’s explanation for the inconsistencies was that he feared harm as a result of revealing his Christianity in the presence of anyone who could be a potential spy for Iranian authorities, including the Iranian interpreter who was present at the entry interview. He claimed he had been warned by those close to him not to disclose his religion until it was safe to do so.
The Minister’s decision of 13 April 2017 ultimately found that the applicant had fabricated the claims and rejected his explanations for the inconsistencies.[2] The decision was in part based on the religious and dietary preferences documented in the IMP record.[3] Specifically, the Minister, in its decision record, examined the alleged discrepancies in the applicant’s claims and stated the following:
[2] Court Book (‘CB’), 210.
[3] Ibid, 207-208.
“I do not believe the applicant’s account of his exploration of the Christian faith in Iran, and I remain unconvinced as to the reasons for his claim to now follow the Christian faith.
…
At his Protection visa interview, the applicant claimed he had attended this [sic] home church on 20 to 30 occasions over a four year period prior to his departure for Australia.
In a post-interview submission, the applicant’s migration agent addressed the issue that the applicant had stated at his IMA Entry Interview that he was a Shia Muslim, due to being afraid to leak personal information, and fearing he would be putting himself at risk if he announced this before being absolutely sure he was in a safe place. I find that this statement is not supported by the evidence before the Department, which includes:
·Statement signed by applicant on 22 March 2013 to Serco that he required Halal food and access to a prayer room due to being a Shia Muslim.
·Signed statement on 12 April 2013 to Serco that he ‘identifies himself as being Muslim and requires a halal diet.’ On this occasion he did ‘not wish to visit a place of worship.’
·Statement signed by the applicant in his initial Individual management Plan (IMP) on 2 May 2013 that he would like to attend a Mosque to practice his religion, which he stated as being Shia Muslim.
·Statement signed by the applicant in his IMP on 18 May 2013, stating he was a Shia Muslim with special dietary requirements of Halal food, and stating that all religious and cultural requirements had been met.
The documentation leads me to have some doubts regarding the applicant’s credibility regarding his account of his Christian conversion in Iran.”[4]
[4] Ibid, 207-208.
…
I have considered all of the claims and information the applicant has put forward, and examined this against available country information to establish the veracity of these claims. As a result, I have serious concerns that the applicant has fabricated the majority of his claims …”[5]
[5] Ibid, 210.
The case was referred to the IAA on 20 April 2017 and on 19 May 2017 the applicant made additional submissions with a view to addressing the content of the IMP record. This ‘new information’ was summarised in the applicant’s summary of argument and is reproduced hereunder:
“28.1Iranian asylum seekers will tend to automatically label themselves Muslim as an indication of their cultural background, rather than their individual beliefs;
28.2 Converts will tend to label themselves “Muslim, [but] New Born Christian” to distinguish themselves from Christian-born Iranians; and
28.3 Converted Muslims will tend to continue to prefer Halal food after their conversion due to ingrained reactions to non-Halal foods being dirty.”[6]
[6] Ibid, 236, cited in the applicant’s Summary of Argument, filed 21 May 2019, 7.
The IAA rejected the applicant’s claims on the basis that there were no reasons put forward as to why the new information had not been provided prior to the Minister’s decision, and in all the circumstances, were “not satisfied that there were exceptional circumstances to consider the submissions made on 19 May 2017”.[7] Accordingly, the IAA affirmed the decision of the Minister, finding that the applicant was not a “genuine Christian convert.”[8]
Submissions of the applicant
[7] CB, 248 [5].
[8] Ibid, 255 [32].
Minister’s failure to comply with s 57 of the Act – breach of procedural fairness
The applicant submitted that the Minister’s decision was in breach of procedural fairness because it “failed to invite the applicant to comment on adverse material, as required under s 57 of the Act.”[9] Namely, the information contained within the IMP, which was submitted as crucial to the delegate’s decision.
[9] Applicant’s Summary of Argument, filed 21 May 2019.
The relevant provisions of s 57 of the Act read as follows:
“(1)In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa;
…
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c)was not given by the applicant for the purpose of the application.
(2)The Minister must:
(a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c)invite the applicant to comment on it.”
Both the applicant and respondent identified in their written outlines that no evidence lay in the transcript of interview, nor within the Court Book, as to the applicant being advised of or asked to comment on the information contained within the IMP documentation. The applicant relied on the following passage from the Minister’s decision record to help demonstrate that despite this lack of disclosure, the Minister placed a “clear reliance”[10] on the information in its rejection of the claims made:
“This documentation leads me to have some doubts regarding the applicant’s credibility regarding his account of his Christian conversion in Iran.”[11]
[10] Applicant’s Summary of Argument, filed 21 May 2019, 6.
[11] CB, 208.
It is the applicant’s case that the Minister failed to comply with s 57 requirements resulting in the applicant having had no opportunity to respond to adverse claims which gave rise to a denial of procedural fairness, necessitating a finding of jurisdictional error.
Ground 1 – IAA’s failure to exercise jurisdiction due to misapplication of s 473DD
On the applicant’s submission, the IAA’s rejection of what they referred to as ‘new information’ in relation to the IMP was a consequence of its failure to appreciate that the applicant had not been made aware of the Minister’s reliance on the document prior to the decision, and that nor had he been provided an earlier opportunity to respond to its contents.
Specifically, the IAA concluded the following in relation to the ‘new information’ before it:
“No reasons have been provided as to why this had not or could not have previously been put forward. The applicant has not satisfied me that this information could not have been provided to the Minister before the decision was made or that this is credible personal information, that had it been known, may have affected the consideration of the applicant’s claims. Having regard to the totality of the circumstances, I am also not satisfied there are exceptional circumstances to justify considering it.”
Counsel for the applicant contended that under s 473DD of the Act, “the IAA was obliged to consider the obvious fact”[12] of the Minister’s non-compliance with s 57 in its assessment of whether or not exceptional circumstances existed.
[12] Applicant’s Summary of Argument, filed 21 May 2019, 8.
It was further argued that the IAA committed jurisdictional error when it misapplied s 473DD of the Act and supported its assertion by reference to Plaintiff M174/2016 v Minister for Immigration and Border Protection[13] (‘Plaintiff M174’) where it was stated:
“[N]on-compliance with s 57 would itself be an exceptional circumstance engaging the Authority’s new information powers under ss 473DD and 473DE in Pt 7AA of the Act.”[14]
[13] (2018) 353 ALR 600 (‘Plaintiff M174’).
[14] Ibid, [89].
In order to demonstrate the materiality of the error, the applicant referred to express statements within the IAA’s record of decision and reasons which identified its consideration of the IMP documentation in its decision making process.
“Information before the delegate also indicated that whilst in immigration detention in Australia throughout April and May 2013 the applicant presented himself to centre management Serco as a Shia Muslim on at least four occasions and one time stated he wanted to attend a mosque. It also noted a couple of times he required Halal food.” [15]
[15] CB, 252 [18].
For the reasons provided above, the applicant contends that the IAA failed to exercise jurisdiction as a result of its failure to consider the legal consequences of the Minister’s failure to comply with s 57 and with its own subsequent misapplication of s 473DD of the Act.
Ground 4 – legally unreasonable
The essence of the applicant’s case with respect to ground 4, is that the IAA acted in a manner that was “legally unreasonable” when it did not exercise procedural discretions in such a way that would provide a fair process and enable the applicant to comment on the adverse material upon which they themselves relied in assessing the credibility of the claims made.
Ground 2 – IAA did not appreciate the Minister’s failure to comply with s 57
In relation to ground 4, essentially the applicant submitted that the IAA’s failure to recognise the Minister’s non-compliance with s 57 served to exacerbate the unfairness faced by the applicant. It was possible for the IAA to negate the consequences of this in the exercise of its procedural discretions. It failed to do so by virtue of its improper application of s 473DD of the Act. Consequently, on the applicant’s case, the IAA failed to exercise jurisdiction.
In his reasoning, counsel for the applicant relied in part on the statements of Gageler, Keane and Nettle JJ in Plaintiff M174, who held that non-compliance with s 57 of the Act:
“… denies an applicant an opportunity to respond to prejudicial adverse information and to have any response included in the review material to be given to the Authority in a review under Pt 7AA.”[16]
[16] Plaintiff M174, [47].
Submissions of the respondent
The respondent accepted the contention made by the applicant that the Minister did not discuss the IMP documents with him and submitted that the Minister’s use of the information in the IMP documents to compare with information from the entry interview and claims in the visa application was not ‘relevant information’ for the purposes of s 57(2).[17]
[17] Respondent’s Outline of Submissions, filed 31 May 2019.
The respondent conceded that in consideration of whether exceptional circumstances existed, the IAA is not confined to considering the applicant’s explanation, however contended that the IAA should not be expected to go on a “fishing expedition” in circumstances where they would be required to “scrutinise the legality of the delegate’s decision.”[18] Further stating:
“There was no basis for the IAA to consider that the applicant had been denied an opportunity to respond to prejudicial information.”[19]
[18] Ibid, 10.
[19] Ibid, 13.
The respondent submitted that if an error in relation to s 473DD was found, it was not a jurisdictional error, nor was it material to the ultimate decision.
The respondent took the position that the ‘new information’ did not meet the requirements of ss 473DD(b)(i) or (ii) as it was based on the representative’s observations and as such was neither personal credible information nor information that could not have been provided prior to the Minister’s decision. For these reasons it was submitted that the ‘new information’ could not have been considered by the IAA in any event.
The respondent further submitted that the applicant had been on notice since his interview on 12 December when the Minister identified concerns about inconsistencies between his entry interview and his written submissions and that his post-interview submissions had provided an explanation for this.
In regard to the materiality of the new information to the decision, the respondent claimed that the IAA relied on a number of matters, “much more significant” upon which it based its ultimate decision to deny the applicant’s claim.
In relation to ground 4, the respondent put to the Court that the IAA did consider the new information and that even if it had not, taking into account all the circumstances, the adopted approach was appropriate. The circumstances relied upon are as follows:
“a)the Applicant had engaged in a PV review on 12 December 2016 at which time his failure to raise any mention of Christianity on his arrival to Australia has been discussed;
b)The Applicant had submitted a pot-interview submission dated 19 December 2016 which offered an explanation as to why the applicant chose to conceal his Christianity;
c)the Applicant was aware of the precise contents of Serco documents as he had received the delegate’s reasons for decision;
d)the Applicant had sought to address any perceived adverse information arising from the Serco documents by the provision of the may submission;
e)the Applicant did not suggest to the IAA that there had been a breach by the delegate of section 57 (and if there was such a breach, it was not an obvious one).
f)the IAA found it could not consider the new information that the Applicant wished to provide.
g)the IAA did not refer to or make any use of the Serco documents beyond what was done by the delegate (and may be constructed to have given them less weight).”[20]
Consideration
[20] Ibid, 12-13.
Did the delegate fail to comply with section 57?
It is accepted by the Minister that the delegate did not invite the applicant to comment on the adverse material in the IMP documents and that there is no evidence to suggest that the delegate otherwise raised the existence of those documents with the applicant. The first respondent does not accept that in failing to do so the delegate failed to comply with s 57(2). I am satisfied that the IMP documents were relevant information for the purpose of s 57. The fact that he had made statements to the effect that he was a Muslim, that he required Halal food, and that he wanted to be involved in Muslim prayers was, as submitted by the applicant, adverse information that went to the very subject matter of his claim. In its own right it was an item of evidence that tended against a finding that he was a refugee for the reasons claimed. As such, it was information which if accepted would be part of the reason for refusing to grant the visa. In my view, this was not information of the type identified in SZJBD v Minister for Immigration and Citizenship,[21] (‘SZJBD’) which only had significance when matched with answers given by the applicant. The finding in SZJBD related to factual statements of third parties.[22] The IMP documents recorded statements that had been made by the applicant. What was being referred to in SZJBD and the earlier decision of Minister for Immigration and Citizenship v SZHXF[23] (‘SZHXF’) was apparently objective material against which the accuracy or veracity of the applicant’s claim could be measured. In SZHXF the answers of the applicant were compared with a body of material relating to Ahmadi Muslim beliefs. The Full Court reasoned as follows:
“The second matter to be considered relates to the Tribunal’s mode of assessing the genuineness of the first respondent’s case, namely, by testing his familiarity with the Ahmadi faith and how it differs from the Muslim faith. The material gathered from this questioning process, such as information about figures of religious significance to the Ahmadi, is not, of itself, the reason or part of the reason for affirming the Minister’s decision that a protection visa should not be granted. Rather, it is a body of material used by the Tribunal as part of its evaluation exercise to weigh and consider the first respondent’s claim that he is an Ahmadi and is therefore subject to persecution in Bangladesh.
In this case, the material relating to the Ahmadi faith was used by the Tribunal in a process of reasoning which allowed it to reach a conclusion that the first respondent’s beliefs were not genuine.”[24]
[21] (2009) 179 FCR 109 [104].
[22] Ibid.
[23] (2008) 166 FCR 298.
[24] Ibid, [15]-[16].
The difference between the material considered in SZHXF and the present case is readily apparent. The information in this matter was the prior inconsistent statements said to have been made by the applicant. The reasons of the delegate demonstrate that she clearly placed weight on those inconsistent statements and relied on them as a factual matter which tended against a finding that the applicant was a refugee who satisfied the criteria for the visa.[25] Understood in that way, I am satisfied that it was adverse information. The inconsistent statements were not a finding as to credibility. They were an item of evidence used by the delegate to support a credibility finding but which also went to the fact in issue namely whether or not the applicant was a Christian. It is apparent from the reasons of the delegate that the inconsistent statements were part of the reason for refusing the visa application. The information was specifically about the applicant and not just a class of persons of which the applicant was a member and it was not information that had been given by the applicant for the purpose of the application. I am satisfied that the delegate did not comply with s 57. The result was the applicant was not given an opportunity to respond to adverse information contrary to the requirement in s 57.
[25] CB, 207-208.
Ground one
Section 473DD provides as follows:
“Considering new information in exceptional circumstances
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.”
In considering this ground, it is important to note that the IMP documents subject to the failure to comply with s 57 were not the ‘new information’ the IAA declined to consider. The ‘new information’ was the response to the IMP documents provided to the IAA in the submission provided by the applicant’s migration agent.[26] In my view, the IAA misapplied s 473DD with respects to both s 473DD(b)(i) and in considering the question of exceptional circumstances.
[26] CB 236.
The applicant came to the IAA process in circumstances where he had not been able to provide his response to the IMP documents at an earlier time. This was material to the exercise of the discretion in s 473DD. The IAA regarded the written response of the applicant to the adverse information in the outline of submissions prepared by his migration agent as ‘new information’. It stated:
“No reasons have been provided as to why this had not or could not have been previously put forward. The applicant has not satisfied me that this information could not have been provided to the Minister before the decision was made or that this is credible personal information, that had it been known, may have affected the consideration of the applicant’s claims. Having regard to the totality of the circumstances, I am also not satisfied there are exceptional circumstances to justify considering it.”[27]
[27] Ibid, 248.
I accept the submission of the applicant that the IAA appears to have failed to appreciate the position the applicant was in. The explanation was self-evident and the state of satisfaction required of the IAA pursuant to 473DD(b)(i) (which was necessarily responsive in nature) namely, that the information was not and could not have been provided to the Minister before the decision was made, would necessarily have been reached by the IAA on a plain reading of the information itself had the IAA appreciated or considered the failure of the delegate to comply with s 57. The applicant could hardly have been expected to respond to information contained in documents which the delegate had, but which the applicant did not know existed. Compliance with s 473DD requires more than considering any explanation provided by an applicant for having failed to provide information earlier.[28]
[28] BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958.
The IAA does not appear to have given any consideration to the impact of the failure of the delegate to comply with s 57 which was also a matter capable of going directly to the question of whether exceptional circumstances existed for receiving the information. In Plaintiff M174, Gordon J had this to say:
“The law requires and expects that the Minister, in making a decision under s 65 to refuse to grant a protection visa, will comply with the procedure set out in Subdiv AB of Div 3 of Pt 2 of the Act, which includes s 57. Compliance with that procedure would be the “ordinary” circumstance. But where no opportunity was given by the Minister to a fast track applicant to respond to adverse information contrary to the requirement in s 57, the fact of that non-compliance with s 57 would itself be an exceptional circumstance engaging the Authority’s new information powers under ss 473DD and 473DE in Pt 7AA of the Act.”[29]
[29] Plaintiff M174, [89].
As the applicant has submitted, the failure of the IAA to either appreciate the fact of the failure to comply with s 57 with respect to ss 473DD(b)(i) or comprehend the significance of that fact in considering the question of exceptional circumstances amounted to a misapplication of s 473DD and as a result a constructive failure to exercise jurisdiction. The materiality of the error is demonstrated by the use to which the IAA put the information in the IMP documents.[30] It is not sufficient to submit, as the first respondent does, that there were other matters on which the applicant was disbelieved by the IAA and which significantly contributed to the adverse credibility findings underpinning the rejection of the claims. It is not possible to say that the reliance on the IMP documents did not permeate the other findings on credibility and affect the decision. It was exactly this scenario that Kirby J was referring to in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[31] when he said:
“….decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person’s credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person’s entire evidence in a new light.
When these considerations are taken into account, it cannot be said that the omission to afford the appellant the opportunity foreshadowed at the end of the hearing was immaterial to its outcome having regard to the terms in which that outcome is expressed. ...”[32]
[30] CB, 252 [18], 254 [28].
[31] (2004) 221 CLR 1.
[32] Ibid, [81] – [82].
I am satisfied that jurisdictional error has been demonstrated and that ground one is made out.
Ground 4
This ground is allied to ground one and, as the applicant did in his written and oral submissions, I will deal with it before considering ground two. I am satisfied that it was unreasonable in the legal sense for the IAA to decline to exercise its power to consider the new information which responded to the information in the IMP documents. The attenuated form of procedural fairness provided in a review under Part 7AA relating to a fast track applicant makes it of particular importance that the power be exercised in accordance with the procedures provided for. As the applicant submitted, this was made abundantly clear by the plurality in Plaintiff M174:
“Part 7AA is undoubtedly framed on the assumption that a decision to refuse to grant a protection visa to a fast track applicant will ordinarily have been made in compliance with the code of procedure set out in Subdiv AB of Div 3 of Pt 2. That is what the law requires and it is to be expected that the requirements of the law will be observed. That does not mean, however, that the Part is framed to permit review of a decision to refuse to grant a protection visa to a fast track applicant only if that decision has been made in compliance with the code of procedure. Further analysis is required of the consequences of a want of compliance with the code of procedure on the performance of the duty imposed on the Authority under Pt 7AA.”[33]
[33] Plaintiff M174, [45].
Having observed that non-compliance with ss 54, 55 or 56 in making the decision under review could have no meaningful impact on the quality of the review conducted, they turned to consider the implications of a failure to comply with s 57 and continued:
“Non-compliance with s 57 is different, because it denies an applicant an opportunity to respond to prejudicial adverse information and to have any response included in the review material to be given to the Authority in a review under Pt 7AA. If the procedures for which Pt 7AA provides were so constrained as to preclude the Authority from conducting the review in a manner which would negate the want of procedural fairness that would be occasioned by an applicant having been denied the opportunity that s 57 required, that would be a powerful and potentially decisive consideration weighing in favour of the plaintiff’s construction. The procedures, however, are not so constrained.”[34]
[34] Ibid, [47].
Given the IAA regarded the IMP documents as relevant to its consideration of the claims, it had the power by virtue of s 473DC to seek new information from the respondent. In relying on the information as the reason or part of the reason for affirming the delegate’s decision, without first extending an invitation under s 473DC(3), the IAA acted unreasonably and fell into jurisdictional error.[35] It is beside the point that the applicant, through his migration agent, attempted to provide responsive material to the relevant IMP information. It is not appropriate to speculate as to what if any new information the applicant might have provided if the invitation had been extended to him. The crucial factor is that he would have had an opportunity to provide specific explanations or information directed to rendering ineffective the impact of relevant information the IAA ultimately concluded weighed against his credibility and the veracity of his claims. The resultant unfairness to the applicant by this failure seems not to have been appreciated by the IAA.
[35] Ibid, [47] & [97].
Ground 2
The distinction between this ground and ground one is in my view, subtle. As I have stated above I accept the submission of the applicant that the IAA appears to have proceeded without appreciating the non-compliance with s 57. To that extent it could be argued that it proceeded to conduct the review under a misapprehension as to the range of procedural powers open to it to alleviate the unfairness to the applicant. To conduct a review on that basis would be to approach the jurisdiction conferred in a manner that could be regarded as constructively failing to exercise jurisdiction.
I make the orders to be found at the beginning of these reasons.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 27 May 2020
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Natural Justice
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