FRW17 v Minister for Immigration
[2019] FCCA 3701
•19 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRW17 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 3701 |
| Catchwords: MIGRATION – Protection visa – decision of the Immigration Assessment Authority – whether the IAA should have exercised the power under s.473DC – whether the IAA’s findings were illogical or unreasonable – whether the applicant is a fast track review applicant – whether the Secretary failed to provide review material to the IAA – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), pt.7AA, ss.5, 36, 48B, 65, 418, 473CB, 473DC, 476 |
| Cases cited: AIB16 v Minister for Immigration & Border Protection [2017] FCAFC 163 WZAUK v Minister for Immigration & Anor [2019] FCCA 3246 |
| Applicant: | FRW17 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 718 of 2017 |
| Judgment of: | Judge Kendall |
| Hearing date: | 12 September 2018 and 20 August 2019 |
| Date of Last Submission: | 1 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 19 December 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M G S Crowley |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the First Respondent: | Mr P R Macliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The applicant have leave to rely on the draft fourth amended application dated 9 August 2019.
The applicant have leave to further particularise ground 2 to include an argument in relation to s.473DC of the Migration Act 1958 (Cth).
A writ of certiorari issue quashing the decision of the second respondent dated 24 November 2017.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicant’s application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 718 of 2017
| FRW17 |
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 in this Court on 21 December 2017 the applicant seeks judicial review of a decision of the Immigration Assessment Authority (the “IAA”) dated 24 November 2017.
The IAA’s decision affirmed a decision of a delegate of the first respondent (the “Minister”) not to grant the applicant a Protection (Subclass 866) visa (the “visa”).
The application for judicial review is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain relief from this Court, the applicant must demonstrate jurisdictional error on the part of the IAA.
The application for judicial review was amended on four occasions. The final application (dated 9 August 2019) contained 5 grounds of review, discussed in detail below. The evidence before the Court consisted of a Court Book (“CB”) numbering 333 pages (marked as Exhibit 1), the affidavit of Jaymee Louise Hick affirmed 29 August 2018 and the affidavit of Arran Niall Gerrard affirmed 1 June 2018. The Court also received detailed written submissions from the applicant dated 30 August 2018 and 1 October 2019 and from the Minister dated 6 September 2018 and 18 September 2019. The matter was heard over two days: 12 September 2018 and 20 August 2019. The Court has reviewed the transcript for both hearing days.
Somewhat unusually, the visa the subject of this application for review was not the first protection visa the applicant had applied for. The applicant had previously applied for, and been refused, a protection visa by the then Refugee Review Tribunal (the “RRT”) in June 2014. That decision was appealed to this Court (and heard by Judge Lucev) in July 2015 (PEG197/2014). Judge Kendall ultimately re-heard that matter in August 2019. In November 2019, Judge Kendall delivered judgment in that matter: WZAUK v Minister for Immigration & Anor [2019] FCCA 3246 (“WZAUK”). Judge Kendall found that the RRT had fallen into jurisdictional error and remitted the matter to the RRT (now the Administrative Appeals Tribunal) for reconsideration.
Prior to Judge Kendall re-hearing WZAUK (and while Judge Lucev still had carriage of that matter), the applicant filed another application for judicial review in relation to a 2017 decision of the IAA that rejected the applicant’s application for the visa. The matter was docketed to Judge Kendall, who first heard the parties on 12 September 2018.
During the course of the 12 September 2018 hearing for this matter, a transcript of the 2014 hearing before the RRT was received into evidence (being Ms Hick’s affidavit). It emerged that the transcript of the hearing before the RRT was not in evidence in WZAUK. The applicant, through Counsel, indicated that he would be seeking leave to re-open WZAUK to introduce the transcript into evidence. At that point in time, Judge Lucev still had carriage of WZAUK. Judge Kendall queried whether, in light of the new evidence in WZAUK, it might be preferable for him to re-hear both WZAUK and the appeal from the IAA the subject of this judgment. The parties agreed that Judge Kendall should hear both matters.
On 1 March 2019, the Court made orders (by consent) allowing the applicant to re-open his case in relation to WZAUK. It was agreed that the same Judge would hear both matters – that is, WZAUK (on appeal from the RRT) and this matter (on appeal from the IAA).
Unfortunately, as a result of judicial unavailability in the Perth Registry, both matters could not be listed for hearing until 20 August 2019. On that date, the Court reconvened and heard further submissions from the parties in relation to both matters.
Judgment was handed down in WZAUK on 13 November 2019. The Court remitted the matter for re-hearing, having determined that the decision was affected by jurisdictional error.
That then left the Court to determine the application the subject of this judgment (on appeal from a decision of the IAA dated 24 November 2017).
The applicant was represented throughout these proceedings by Mr Crowley of Counsel. The Minister was represented by Mr Macliver of Counsel. The Court thanks both parties for the considerable patience they have shown in trying to progress this matter after a rather unfortunate delay. It appears this situation (i.e., where two separate Tribunal’s/legal entities have been tasked with hearing two separate applications for a protection visa from the same applicant) has not occurred previously. It has resulted in a peculiar situation that, arguably, should have been avoided. Unfortunately, that is the situation now faced by the parties and the Court. It is hoped that situations such as this do not arise again and that this judgment (and the Court’s previous judgment in WZAUK) will go some way to resolving what has proven to be a protracted and unsatisfactory legal history.
Background
The factual background to this matter is set out at [8]-[36] of the applicant’s submissions filed 30 August 2018 and at [1]-[19] of the Minister’s written submissions filed 6 September 2018. The Court adopts the summaries provided as its own. With some additions, as noted below, these summaries provide as follows.
The applicant is a citizen of Kenya (CB 28-29). He claims to be a gay male who fears persecution in Kenya because of his sexuality.
The applicant arrived in Australia in June 2006 as the holder of a student visa. That visa was subsequently cancelled by the former Department of Immigration and Border Protection (“the Department”) on 4 August 2009. The applicant sought review of that visa cancellation by the former Migration Review Tribunal. That Tribunal affirmed the Department’s decision on 31 August 2010 (CB 156).
Following the cancellation of his student visa, the applicant was granted two Bridging visas, the second of which ceased on 7 October 2010. The applicant thereafter remained in Australia as an unlawful non-citizen.
On 25 October 2010, the applicant was allocated a “person identification number” by the Department.
On 22 April 2013, the applicant was found to be working illegally and was taken into immigration detention (CB 156).
On 29 April 2013, the applicant applied for a Protection (Class XA) visa (CB 8-43) (the “first protection visa”). On or about 4 June 2013, the applicant’s migration agent lodged a fresh application for the first protection visa. That application was supported by a statutory declaration made by the applicant setting out his claims. The substance of the claims in the 4 June 2013 application did not differ from the 29 April 2013 application (CB 62-97). While not entirely clear why the application was re-lodged, nothing arises from this.
The Department (via undated correspondence to the applicant) asked the applicant to respond to information that “can be seen as further evidence” that he did not fear harm in Kenya and was not gay. The applicant was specifically requested to explain why, having “realised” that he was gay sometime in 2009, he did not apply for a protection visa until May 2013. The applicant responded that he did not know that he could apply for a protection visa until he had been detained and that he would have applied if he had known he had that option. The applicant further indicated that he had not realised that a fear of persecution due to sexual orientation was a basis for seeking a protection visa (CB 147).
On 31 July 2013, the applicant was interviewed in relation to the first protection visa. A representative assisted him at that interview. The applicant provided letters of support to the Department in support of his claims (CB 153-154).
On 4 December 2014, a Ministerial delegate made a decision refusing to grant the applicant the first protection visa. The delegate found that the applicant’s claim that he is gay was not credible (CB 155-166).
On 10 December 2014, the applicant sought review of the delegate’s decision at the RRT. The applicant appeared before that RRT on 14 February 2014 by video-link to give evidence and present arguments in relation to his claims. The RRT received oral evidence from two witnesses (CB 188-189). The applicant again had the assistance of a representative.
On 4 June 2014, the RRT made a decision affirming the decision not to grant the applicant the first protection visa. The RRT was not satisfied on the threshold claim that the applicant was, in fact, gay (CB 185-203).
It is unnecessary here to summarise what occurred at the RRT hearing and the RRT’s decision generally. The Court refers to its summary in WZAUK at [37]-[52].
On 8 July 2014, the applicant filed an application in the Federal Circuit Court (PEG 197/2014) seeking review of the RRT’s decision. The application was heard on 2 July 2015. Judgment was reserved from that date.
On 26 July 2017, the applicant was identified (by his person identification number) in Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017. As a result, on 26 August 2017 the applicant became a “fast track applicant”.
The Minister exercised his power under s.48B of the Act to allow the applicant to apply for the visa the subject of this application (CB 261).
On 13 September 2017, the applicant lodged the application for a second protection visa that is now the subject of these proceedings (CB 224-257). The applicant attended an interview with a delegate of the Minister on 19 October 2017 to discuss his application and claims for protection (CB 273-274).
On 27 October 2017, the delegate refused to grant the applicant the visa. As had occurred in relation to the first protection visa, the delegate was again not satisfied that the applicant was gay and did not accept that the applicant would suffer harm for any other reason (CB 284-295).
The matter was referred to the IAA on 30 October 2017 (CB 297). The materials that were forwarded to the IAA will be discussed below in relation to grounds 2 and 5. The applicant provided no further submissions or information to the IAA and the IAA did not request any further information from the applicant.
On 24 November 2017, the IAA affirmed the decision not to grant the applicant the visa (CB 317).
The IAA’s Decision
The IAA’s decision is 13 pages long and spans 39 paragraphs. Approximately four pages consist of the relevant legislative provisions applicable to the visa. At [6]-[7] and [32]-[33], the IAA summarised the matters relevant to the refugee and complementary protection assessments.
The IAA’s decision is accurately summarised at [26]-[40] of the Minister’s written submissions dated 6 September 2018. The Court adopts that summary as its own. That summary, with some additions, provides as follows.
The IAA noted that it had had regard to the material referred by the Secretary under s.473CB of the Act (CB 318 at [2]).
The IAA also stated that it had obtained new information about post-election inter-tribal violence in Kenya and found that this information could not have been provided to the delegate prior to the decision as it post-dated the delegate’s decision. The IAA found the information was relevant and it was the most recent country information relevant to the assessment of the applicant’s claim (CB 318 at [3]).
The IAA (at [4]) summarised the applicant’s claims as follows:
• He is a homosexual person. Homosexuality is illegal in Kenya and he fears he may be killed due to his homosexuality.
• He told his cousin in the UK about his homosexuality and she told his uncle in Kenya. Consequently, family members will degrade him, torture him or both. They will hand him in to the authorities who will imprison him.
• He fears he will be seriously harmed in inter-tribal conflict as he is a member of two opposing tribal groups.
• His personal details were disclosed on the internet (in the Department data breach on 10 February 2014) and anybody could have accessed his information including the Government of Kenya and possibly terrorists and others.
• If he returns to Kenya he will be subjected to cruel and inhuman treatment and punishment, tortured and/or imprisoned.
At [10]-[14], the IAA discussed the evidence the applicant had provided in relation to his claim to be a gay male. The IAA referred to the evidence that the applicant had provided to the delegate in 2013 and the RRT in 2014 (in relation to the first protection visa application). The IAA also referred to the evidence provided to the delegate in 2017 in relation to the visa application the subject of this judgment.
The IAA noted at various points that the applicant’s evidence about being a gay male was “relatively consistent”. However, at [15]-[16], the IAA stated as follows:
15.I have concerns about the credibility of the applicant’s claims to be a homosexual person. His evidence has been inconsistent about the number of sexual encounters he has had – whether there has only been one relationship or a few sexual encounters in addition to this relationship. One of the witnesses at his RRT hearing in February 2014 had never seen him in any relationships with men despite the fact that she claimed he had told her he was gay at the beginning of 2010 and she had known him since 2007. Despite his single status he has taken no steps to engage with the gay community in either Perth or Sydney. Whilst I accept that he was in detention for over 3½ years and therefore restricted in his ability to pursue any relationships, I place significant weight on the fact that he has not used the Internet to inform himself about the gay community in Australia or places where he may meet other people with the same sexual orientation that would cost him little or no money once he was released from detention. The applicant has been in the community for almost one year and has made no attempt to meet any other gay people or discover where he may meet them. Whilst I accept that he is a “discreet” person, there are no obstacles in Australia to his safely meeting others with the same sexual orientation if he wished to do so.
16. Given one of his witnesses at the RRT hearing of February 2014 stated that in 2012 she had advised him to go to the Department and disclose his sexual orientation and the reasons he feared returning to Kenya, I do not accept the applicant’s explanation that the reason he did not apply for protection earlier than May 2013 was that he was unaware that he could do so on the basis of his sexual orientation or fear of inter-tribal conflict. The applicant stated that he believed protection was granted only for people fleeing from war and claimed that he informed the Department at the time that his student visa was cancelled that the reason he could not return to Kenya was because of post-election conflict between the tribes of which he was a member. He claimed that he was not advised of his options if he feared harm as a result of violence in his own country or that he could apply for protection. Over the ensuing four year period he did not think to investigate or seek advice about whether there were any ways he could regularise his immigration status. I do not accept that if the applicant genuinely feared that he would suffer serious harm if he returned Kenya that he would not seek advice or research on the Internet or learn from other members of the African diaspora about how he would be able to stay lawfully in Australia.
Based on the findings in [15] and [16], the IAA was not satisfied that the applicant was gay or that he told his cousin in the United Kingdom he was gay. The IAA was also not satisfied that any family members in Kenya thought or believed the applicant was gay. Hence, it was found that the applicant did not have a well-founded fear of persecution or that there was any real chance he would suffer serious harm from Kenyan authorities, family members or any other persons if he returned to Kenya, as a result of being gay (CB 321-322 at [17]).
The IAA then turned to consider the applicant’s claims relating to his tribal affiliation. The IAA accepted that the applicant had inherited two different tribal identities from his mother (Kikuyu) and father (Luhya) and accepted there had been significant postelection violence in Kenya, particularly in 2007 and 2017 (CB 322 at [18]). While the delegate and RRT were unable to find supporting country information relating to inter-tribal violence, the IAA obtained relevant up-to-date country information (CB 322 at [18]). That information revealed that there continues to be some generalised inter-tribal violence in the aftermath of the 2017 election (CB 322 at [19])
Based on the country information obtained and the fact that the applicant had never claimed to be a member or supporter of any political party, had not indicated an intention to be a member or supporter of any political party or engaged in any activities to suggest he was a supporter and had also not claimed to have been involved in any inter-tribal violence or conflicts previously, the IAA was satisfied that the applicant’s fear of being harmed due to his mixed tribal background was not well-founded (CB 322-323 at [20]-[22]).
The IAA then considered if the applicant faced a chance or risk of harm as a result of the data breach that occurred in 2014. This breach resulted in the applicant’s name, date of birth, nationality, gender, details about when, why and where he was detained and if he had other family members in detention being released inadvertently (CB 323 at [23]-[24]).
It was noted that the applicant stated at his interview on 19 October 2017 that the main reason he now feared returning to Kenya was because his personal details had been released in the data breach. The applicant was concerned that Kenyan authorities would assume the applicant had applied for protection and that he had claimed to be gay (CB 323 at [25]).
The IAA accepted that it was possible Kenyan authorities would be aware the applicant was in detention on 21 January 2014, the reasons for his detention and the duration of his detention. However, the IAA was not satisfied that the authorities would be aware that the applicant had applied for protection. Nonetheless, it noted it is not an unreasonable assumption that the applicant may have done so (CB 323 at [27]). The IAA was not satisfied, however, that any information was released to indicate that the applicant had made a claim based on his sexual orientation or for any other reason (CB 323 at [27]).
The IAA was not satisfied the applicant was of adverse interest to the authorities when he departed Kenya and was not satisfied he would suffer harm as a result of the data breach.
At [30], the IAA concluded:
30. I have considered the applicant’s claims both individually and cumulatively. I accept that the applicant is of mixed tribal heritage and that there has been, and continues to be generalised inter-tribal violence, particularly post-elections, between the Kikuyu and Luhyo tribes in Kenya. However, I have found that the applicant has never been involved in any inter-tribal conflict himself in Kenya, nor has he ever been involved in political activities in Kenya or in Australia either directly or indirectly. I am satisfied that he was not of adverse interest to the authorities before he departed Kenya. I am therefore satisfied that there is no more than a remote chance that he will be harmed as a result of generalised inter-tribal violence. I am not satisfied that the applicant is homosexual. I am not satisfied that there is a real chance the applicant will suffer serious harm as a result of the Department data breach on 10 February 2014. I am not satisfied that there is a real chance that the applicant will suffer serious harm as a result of any of the cumulative effect of his claims or as a result of any of his individual claims if he is returned to Kenya now or in the foreseeable future.
In relation to complementary protection, the IAA referred to its earlier findings in relation to the refugee criterion and concluded that it was satisfied there was no real risk that the applicant would suffer significant harm based on the cumulative effect of his circumstances and profile if returned to Kenya. On that basis, the IAA determined that the applicant did not meet s.36(2)(aa) of the Act (CB 325 at [35]-[39]).
The IAA affirmed the decision of the delegate not to grant the applicant the visa.
Proceedings in this Court
As noted above, the proceedings in this Court have been somewhat unusual. The application has been amended on a number of occasions. The applicant requires leave to rely on a draft fourth amended application dated 9 August 2019. The application raises a fifth ground that was not previously raised.
The Minister opposes leave being granted to rely on ground 5 (and thus the draft fourth amended application).
The Minister argues that the applicant has had more than sufficient opportunity to raise his grounds of review. The Minister also submits that the proposed new ground (ground 5) lacks merit.
The applicant, in turn, argues that the reason for the delay in raising the further ground was because of a change in the law arising from the judgment in EVS17 v Minister for Immigration & Border Protection [2019] FCAFC 20 (“EVS17”). He argues that as a result of that decision, the proposed ground does now have merit.
The Court accepts that the applicant has been represented by Counsel for some time and that ground 5 was not raised any time previously. Nonetheless, there has been a fairly significant change in the jurisprudence relevant to matters of this sort. In light of EVS17, ground 5 is now at least is arguable. Further, the Minister did not suffer any prejudice as the Court allowed the Minister to file written submissions to appropriately address ground 5.
There will be an order that the applicant have leave to amend the application in the form of the draft fourth amended application.
The applicant indicated in his submissions dated 30 August 2018 that ground 1 was not advanced. No submissions were made in relation to ground 1. On that basis, the Court treats ground 1 as abandoned.
As discussed in detail below, the applicant also sought (and the Court granted) leave to amend the particulars for ground 2.
In light of the above, the grounds of review now before the Court (without particulars) are as follows:
2. The decision of the IAA was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, in that the IAA failed to have regard to, or misunderstood, the testimony before the RRT that the witness O had testified that she had observed the Applicant and his then boyfriend holding hands and kissing.
3. The IAA’s decision was vitiated by a constructive failure to exercise jurisdiction as without an intelligible justification, in finding that the Applicant’s claim to homosexuality was disbelieved because ‘he had not used the internet to inform himself about the gay community in Australia or places where he may meet other [homosexual] people’ and in finding that he ‘had taken no steps to engage with the gay community in either Perth or Sydney’, exposing a latent factual premise that such activity is indicative of homosexuality, for which there was no proper foundation in the evidence or which relied upon stereotypes.
4. The IAA was without any authority in respect of the Applicant because the Applicant was not a ‘fast track applicant’, by reason that the legislative instrument Migration I(MM/ 17/015: Person who is a Fast Track Applicant) Instrument 2017 purporting to specify the Applicant a ‘fast track applicant’ under ss.5(1AA) of the Act is ultra vires or otherwise ineffective where the Applicant has already made a valid application for a protection visa, or where rights to merits review under Part 7 have accrued to the Applicant.
5. The IAA’s decision was vitiated by a constructive failure to conduct the ‘review’ required under section 473CC in that the Secretary disabled the IAA from properly conducting its review by failing to comply with the requirement under section 473CB(1)(c) to provide the audio of the RRT hearing on 14 February 2014.
Ground 2
Ground 2 provides:
2. The decision of the IAA was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, in that the IAA failed to have regard to, or misunderstood, the testimony before the RRT that the witness Ms O had testified that she had observed the Applicant and his then boyfriend holding hands and kissing.
2.1. The IAA found that [Ms O] testified before the RRT that she ‘met the person he was living with on one occasion when she and her partner visited them at their home.’
2.2. The RRT recorded [Ms O]’s testimony to be that she ‘met the person ([Mr G]) the applicant was living with ... visited them while they were living in Carlisle ... went to see them with her partner. She said they would often go together to the Court Hotel between 2008 to 2010. She said they would go there at least once a week.’
2.3. [Ms O’]s independent evidence was that she and her partner had observed the Applicant and his then boyfriend in their home holding hands and kissing which, if accepted, would have undermined the IAA’s ultimate finding inferentially drawn.
Applicant’s Submissions
The applicant’s written submissions in relation to ground 2 can be summarised as follows:
a)the reasons given for the finding that the applicant was not a gay male were:
i)on the basis of an alleged inconsistency ‘about the number of sexual encounters he has had – whether there has only been one relationship or a few encounters in addition to his claimed relationship’;
ii)that ‘[o]ne of the witnesses … had never seen him in any relationships with men despite the fact that she claimed he had told her he was gay at the beginning of 2010 and she had known him since 2007’;
iii)that the applicant ‘has taken no steps to engage with the gay community in either Perth or Sydney’;
iv)a finding (upon which ‘significant weight’ was placed) that the applicant ‘has not used the internet to inform himself about the gay community in Australia or places where he may meet other people with the same sexual orientation that would cost him little or no money’; and
v)that the applicant ‘has been in the community for almost one year and has made no attempt to meet any other gay people or discover where he may meet them’;
b)those reasons omit any reference to explicit evidence of the independent witness Ms O before the RRT on 14 February 2014 which falsified, or could have falsified, the finding made from the subsidiary findings described above. Ms O’s testimony to the then RRT in 2014 corroborated the applicant’s central claim. Specifically, her evidence was that she had visited the applicant at the home he shared with his then partner;
c)the RRT’s decision record does not fully capture this evidence directly (and would itself have been a ground of review) but the reasons do record the applicant’s then representative summarising Ms O’s evidence before the RRT that she had been present with the applicant and his then boyfriend and ‘seen the applicant sitting close and being affectionate with another man.’;
d)the IAA did not state that it disbelieved Ms O’s evidence. The IAA’s ultimate finding in relation to whether the applicant was a gay male was informed by an inference drawn from its subsidiary findings. Ms O’s evidence was direct and independent evidence that, if accepted, falsified the ultimate finding. If the IAA had considered that evidence, it might be expected that it would have addressed it in its reasons. The applicant invites the inference that Ms O’s evidence was not considered;
e)the applicant observes that an audio of the RRT hearing is not identified as among the review materials required to be referred by the Secretary to the IAA under s.473CB(1)(c) of the Act. Nevertheless, the IAA purports to draw upon oral evidence given, inter alia, at the RRT;
f)the IAA was not precluded from requesting the audio of the hearing before the RRT in 2014. Section 473DC of the Act specifically empowers, or would have empowered, the IAA to obtain that information. It was, or would have been, self-evident that independent witnesses had given direct evidence to the RRT on matters about which the IAA ultimately disbelieved;
g)moreover, on the materials (about which there can be no doubt the IAA received) there was a reference in the RRT’s decision record of 4 June 2014 to the applicant’s then representative pointing out that Ms O ‘has seen the applicant sitting close and being affectionate with another man’;
h)if the material is not review material that should have been referred to the IAA (referencing ground 5), the failure to consider exercising the power under s.473DC, alternatively proceeding to decide without obtaining the evidence using the s.473DC procedure, vitiated the decision as legally unreasonable; and
i)alternatively, on the same assumption, the IAA abdicated its fact-finding on matters of impression to previous decision-makers: Collins v Minister for Immigration & Ethnic Affairs (1981) 58 FLR 407 (“Collins”).
At hearing, Mr Crowley for the applicant contended as follows:
a)there are three overlapping propositions “wrapped up” in ground 2:
i)if the IAA had the testimony of the witness Ms O to hand, it must have misunderstood it because it could not have reasoned that the applicant’s claim must be disbelieved because some other witness had never seen him with another man. Ms O had supplied precisely evidence to the contrary. It can be inferred that the IAA did not have the RRT hearing audio or overlooked it or simply did not understand it;
ii)the IAA did not have the audio but it ought to have obtained it because it knew it existed and knew that it was direct independent evidence of the applicant’s homosexuality which would have addressed its express concern; and
iii)if the IAA did not have the testimony of Ms O before it, when it purports to quote what has been said to the RRT and apply it to its own review (and thereby pick up the impressions gained by the RRT in relation to that evidence), the IAA is, in effect, abdicating its fact-finding functions to the RRT;
b)if the IAA seeks to draw conclusions based on credibility concerns of the sort expressed by the RRT, at the very least it needed to obtain the audio of the RRT hearing;
c)here the IAA knew that there was evidence that it did not have but that it could easily obtain. This was fundamental evidence. It undermined the IAA’s finding that, if the applicant really was a gay male, then one of his friends would have surely observed something;
d)by purporting to narrate what was said at the RRT hearing it must follow that the IAA was impermissibly relying on impressions that the RRT had had. By doing so, the IAA abdicated its review functions to the RRT; and
e)in this particular case (where the IAA did not actually have the audio of the RRT hearing but narrates what is being said at the RRT hearing), it is treating the RRT’s decision as probative evidence. This abdicates its review function.
Minister’s Submissions
The Minister’s written submissions in relation to ground 2 can be summarised as follows:
a)the Minister accepts that jurisdictional error may be demonstrated by a failure to consider critically relevant corroborative material;
b)however, in the circumstances here, there was no failure by the IAA to consider the particular evidence given by Ms O before the RRT in relation to the first protection visa. The IAA’s statements as to the evidence of Ms O are clearly based upon the RRT’s reasons at [31]-[34] (CB 189-190) (which do not include the particular testimony relied on by the applicant);
c)the circumstances here are far removed from the circumstances applicable in Minister for Immigration and Border Protection vCRY16 (2017) 253 FCR 475 (“CRY16”) which led the Full Court to find that it was legally unreasonable for the IAA not to have considered exercising its power under s.473DC. The IAA’s failure to consider requesting the audio of the RRT hearing was not legally unreasonable; and
d)this matter is distinguishable to Collins. There is no basis for a finding that the IAA placed any weight upon the RRT’s decision as opposed to reasoning from the evidence set out in the RRT’s decision.
At hearing, Mr Macliver for the Minister further contended:
a)the only inference that can be drawn is that the IAA did not have the audio file of the hearing before the RRT;
b)the claims that were made by the applicant in his visa application were the same as the claims in the first visa application which was subsequently reviewed by the RRT. This is not a matter where the applicant was at any disadvantage. If the applicant had wanted to, he could have obtained a copy of the RRT’s hearing and put that before the delegate and the IAA. He did not do so. It was not legally unreasonable to not exercise the power under s.473DC; and
c)it was perfectly proper for the IAA to have regard to the reasons and facts set out in earlier decisions by a different RRT.
Consideration
The Minister submitted that the applicant required leave to rely upon the second and third propositions outlined in his written submissions at [46]-[51] and as summarised in oral submissions (at [61(a)] above). The Minister contended that these propositions (which relate to the IAA’s powers to seek new information under s.473DC of the Act) were not pleaded or particularised in ground 2 at any stage and should not simply be added to ground 2 at this late stage.
The applicant noted that his s.473DC arguments, if successful, would amount to a constructive failure to exercise jurisdiction.
In deciding whether to grant leave to the applicant to rely on the applicant’s s.473DC argument as outlined above (which seek to add to the particulars provided in relation to ground 2), the Court notes that the Minister was able to address both propositions advanced by the applicant – both orally at hearing and in submissions to the Court. Mr Macliver did so with the expertise one expects of Counsel of his stature. The Court thanks him for the clarity of his submissions in this regard. No prejudice arises to the Minister in these circumstances. This weighs in favour of allowing the applicant to amend his application and rely on the propositions (the new particulars) advanced.
Finally, as will be detailed below, the propositions/new particulars clearly have merit and present an arguable case.
In these circumstances, leave to amend to further particularise ground 2 is granted.
To the extent that the issue is in dispute, the Court is satisfied that the IAA did not have a copy of the audio of the RRT’s hearing or a copy of a transcript of the RRT’s hearing. What the IAA did have was a copy of the RRT’s decision.
In WZAUK, this Court found that the RRT had fallen into jurisdictional error because it failed to consider, or overlooked, the evidence of Ms O that she had seen the applicant and his male partner sitting close and being “affectionate”. It is this corroborative evidence that the applicant again relies on to suggest that the IAA has erred.
In WZAUK (at [88]), the Court found that the RRT had acknowledged, and thus “recorded”, Ms O’s evidence at [33] and [40] of the RRT’s decision. Those paragraphs provided:
33. Ms O told the RRT that she met the person (GD) the applicant was living with. She said that she visited them while they were living in Carlisle. She said she went to see them with her partner Michael. She said that they would often go together to the Court Hotel between 2008 to 2010. She said they would go there at least once a week. She said that as she is Kenyan, she has seen first-hand how difficult it is for Kenyan people to open up about their sexuality.
…
40. The applicant’s agent submitted that the applicant is not the best witness but he has friends who say he is a private person. She submitted the witnesses are credible. She submitted that the applicant had told his friends about his sexuality years before he applied for a protection visa. She submitted that the applicant has been consistent and the witnesses are convincing. She submitted that Ms O has seen the applicant sitting close and being affectionate with another man. Ms O submitted that homosexuality goes along a continuum and that can occur at different points.
(Emphasis added)
As explained in WZAUK, a transcript of the RRT hearing shows that Ms O’s oral evidence was as follows:
MEMBER: How do you know they were living together as a gay couple, not just sharing a house or a room?
MS O: They seemed quite open with each other.
MEMBER: In what way?
MS O: Quite themselves.
MEMBER: What do you mean?
MS O: Like not [indistinct] sat next to each other and hold hands and peck kissing.
MEMBER: Did what?
MS O: Peck. A kiss. Nothing too [indistinct] …
(Emphasis added)
In its decision, the IAA records Ms O’s evidence as follows:
12. The applicant has consistently claimed that he only told a few friends in Australia that he was gay after he had been in his relationship with G for a little while as he was worried about their responses (they are of African origin). Two of these friends appeared at the RRT hearing on 14 February 2014 to give evidence on his behalf. One of these witnesses had met the applicant in 2007. She stated that he told her at the beginning of 2010 that he thought he was homosexual. She had never met his partner or seen evidence of any relationships the applicant had with men. The second witness stated she had met the applicant in 2008 and he had told her about his homosexuality at the end of 2009 when they had both attended the Court Club. They would often go together to the Court Club about once a week between 2008 and 2010. She had met the person he was living with on one occasion when she and her partner visited them at their home. She was aware in about 2011/12 that the applicant had ‘visa problems’ (he was unlawful at the time) and in early 2012 she told him to go to the Department and declare his sexuality and that he could not return to Kenya.
(Emphasis added)
The summary of Ms O’s evidence is restricted to what the RRT recounts at [31]-[34]. This omits Ms O’s reference to the applicant and another man being affectionate. The IAA makes no reference to the RRT’s comments at [40].
The question that arises here, in this specific context, is whether the IAA should have sought further information via a copy of the audio of the RRT’s hearing in circumstances where it was not included in the review material and the RRT’s decision alerted the IAA to the fact that Ms O had seen the applicant being “affectionate” (as it did at [40] of its decision). Hence, was the IAA obliged to have sought the audio to inform itself about the exact nature of the evidence?
Section 473DC(3) provides as follows:
…
(3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:
(a) in writing; or
(b) at an interview, whether conducted in person, by telephone or in any other way.
Section 473DC(3) is subject to the standards of legal reasonableness: CRY16 at [82].
The Court accepts that the IAA’s decision here was not decided on a different basis to that of the delegate (or the RRT for that matter). At all times the credibility of the applicant’s claim to be gay was in issue.
The IAA relied heavily on the summary of the evidence provided by the RRT.
In the context of this particular case, where the IAA (in considering the credibility of the claim to be a gay male) made reference to one witness not having seen the applicant in a relationship and the RRT decision alerted the IAA to the fact that there may have been evidence on this central point but from another witness, the audio of the RRT hearing was “necessary to complete the review” such that s.473DC(3) should have at least been considered if not exercised: DGZ16 v Minister for Immigration & Border Protection (2018) 258 FCR 551 at [70].
The failure to exercise the power to obtain the RRT audio disabled the IAA from considering what was clearly in issue or of concern: the lack of corroboration as to whether the applicant had been in a relationship with another man: CRY16 at [82].
The RRT audio contained information which went directly to a “critical fact” in issue: i.e., the credibility of the applicant’s claim to be a gay male.
The audio could have easily been obtained. It could have been obtained by the applicant if the IAA requested that he do so or it could have been obtained by the IAA from the Secretary (as there is no dispute that the Secretary had it in his possession). A simple reading of the RRT’s decision would have indicated that Ms O had potentially given corroborative evidence of the sort the IAA suggested was absent. Getting that information did not impose a heavy burden on the IAA.
In the circumstances of this case, the IAA should have (pursuant to s.473DC) sought “new information” in the form of the audio of the RRT hearing. Here, it failed to exercise or consider exercising its discretionary power to do so. A mistake of that sort goes to core of jurisdictional error that this Court is empowered to address
On the basis of the above, the Court finds that ground 2, as amended, demonstrates jurisdictional error on the part of the IAA.
Ground 3
Ground 3 provides:
3. The IAA’s decision was vitiated by a constructive failure to exercise jurisdiction as without an intelligible justification, in finding that the Applicant’s claim to homosexuality was disbelieved because ‘he had not used the internet to inform himself about the gay community in Australia or places where he may meet other [homosexual] people’ and in finding that he ‘had taken no steps to engage with the gay community in either Perth or Sydney’, exposing a latent factual premise that such activity is indicative of homosexuality, for which there was no proper foundation in the evidence or which relied upon stereotypes.
Applicant’s Submissions
The applicant’s written submissions advanced as follows:
a)at [15] the IAA states its reasons for disbelieving the applicant’s claim to homosexuality to include:
i)that ‘[d]espite his single status he has taken no steps to engage with the gay community in either Perth or Sydney’; and
ii)that it placed ‘significant weight on the fact that he has not used the internet to inform himself about the gay community in Australia or places where he may meet other people with the same sexual orientation that would cost him little or no money once he was released from detention.’
b)the applicant impugns the IAA’s findings as informed by stereotypes of homosexuality lacking an intelligible foundation in the evidence;
c)firstly, the reference to Sydney was a non sequitur. The applicant claimed no connection with Sydney. He had never been there, and did not express a desire to do so. True, he claimed his first boyfriend, Mr G, came from and returned to Sydney and that he had heard of ‘the big Mardi Gras marches in Sydney and Melbourne’. The relationship with Mr G, however, was said to have ended in 2009;
d)the reference to Sydney was entirely arbitrary. There was no foundation in the evidence for the latent assumption that a gay man in the position of the applicant would attempt to ‘engage with the gay community’ on the other side of the country. That was a latent assumption which belonged in the realm of stereotype;
e)secondly, to place ‘significant weight’ on an observation that the applicant had not ‘used the internet to inform himself about the gay community’ is similarly to indulge in stereotypes. There was no foundation in the material before the IAA;
f)thirdly, the evidence before the IAA was that the applicant had ‘engaged with the gay community’ in Perth by frequently attending (for a time) gay functions at the Court Hotel and ‘associating with a couple of Mr G’s friends who were also gay.’ To reason that the applicant’s credibility was undermined in that context by not performing Google searches of the gay community in Sydney was an abstraction from the facts, and points to an illegitimate a priori benchmark of gay activities;
g)here, the applicant did not make any claim to be interested in meeting other gay men online or otherwise. Rather, his evidence was that he led a comparatively monastic existence, necessitated by lack of working rights and money. Nor did he profess any desire to ‘engage with the gay community’, whatever that means. Nor did he express any wish or interest to go to Sydney to do so;
h)a decision-maker falls into jurisdictional error where its testing of a claimant’s evidence against an arbitrary (or an ‘illegitimate a priori’) standard vitiates the state of ‘satisfaction’ required under s.65 of the Act; and
i)a number of American cases make the salient point that in indulging in stereotypes, a decision-maker will distort the process by implicitly inviting even genuine claimants to themselves ‘ham it up’ in the fear that they may otherwise be disbelieved.
At hearing, Mr Crowley advanced as follows:
a)the essence of ground 3 is that the IAA has simply substituted for evidence cliché and stereotypes. It is not overt or sinister. Rather, it is subtle. Nonetheless, it is important to unpack the logic;
b)to impugn the applicant’s claim on the basis that he had not gone on the internet and searched out the gay community in Sydney is reasoning that is “off the shelf”. It has no foundation in the facts. There was no evidential basis for the proposition that gay men (in particular) scour the internet to find other gay men;
c)the IAA approached its task with an assumption that what was probative of homosexuality was that a person claiming to be gay would make enquiries about the gay community in Sydney, even though you live on the other side of the country, and that you would use the internet to inform yourself about places to meet other gay men; and
d)what the IAA did was simply pluck out clichés and stereotypes that have no foundation in the material before it. It then applied those stereotypes to discredit the applicant’s claim.
Minister’s Submissions
The Minister’s written submissions can be summarised as follows:
a)the IAA’s reasons for its conclusion at [17] that it was not satisfied that the applicant is gay must be read as a whole and in context. Read in this manner, the IAA’s reasons do not indicate any jurisdictional error by reason of a lack of an intelligible justification;
b)the IAA was quite entitled to have regard (at [15]) to the fact that the applicant had not used the Internet to inform himself about the gay community in Australia or places where he may meet other people with the same sexual orientation, given that the Internet is a commonly used means of obtaining information on any topic;
c)if the applicant had given evidence that he had used the Internet to inform himself about the gay community in Australia and of places where he might meet other people of the same sexual orientation, the IAA would have been entitled to accept that evidence. Equally, the IAA was entitled to take into consideration that the applicant had not used the Internet to make such inquiries;
d)the IAA’s statement at [15] that “[d]espite his single status he has taken no steps to engage with the gay community in either Perth or Sydney” does not involve jurisdictional error. This was simply an observation of factual matters by the IAA, in light of the applicant’s residence in Perth and that his claimed first boyfriend came from and returned to Sydney, and that Sydney has a large gay community; and
e)the aspects of the IAA’s reasons relied upon by the applicant in support of ground 3 do not give rise to jurisdictional error by reason of legal unreasonableness as that concept has been explained.
At hearing, Mr Macliver for the Minister submitted as follows:
a)one does not have to engage in sexual relations to be either heterosexual or gay, but it is a fact that the vast majority of heterosexual people do engage in sexual relations and the vast majority of gay people likewise engage in sexual relations. Where in a particular case that does not occur, that is a fact that the IAA is entitled to take into account;
b)if (as was the case here) an applicant is making particular claims and, as part of the evidence, says that they have engaged in a sexual act (or might want to) in support of their claims, there is no bar to the decision-maker taking that into account; and
c)in all the circumstances here, the IAA’s reasoning does not demonstrate legal unreasonableness. The IAA’s conclusion that it lacked the necessary satisfaction that the applicant was gay was one that was open to it on the material before it.
Consideration
The basis for this ground of review is that the IAA adopted an erroneous approach based on stereotypes and preconceived ideas of what it means to be gay. The comments of concern are found at [15] in the IAA’s decision, wherein the IAA states:
15.I have concerns about the credibility of the applicant’s claims to be a homosexual person. His evidence has been inconsistent about the number of sexual encounters he has had – whether there has only been one relationship or a few sexual encounters in addition to this relationship. One of the witnesses at his RRT hearing in February 2014 had never seen him in any relationships with men despite the fact that she claimed he had told her he was gay at the beginning of 2010 and she had known him since 2007. Despite his single status he has taken no steps to engage with the gay community in either Perth or Sydney. Whilst I accept that he was in detention for over 3½ years and therefore restricted in his ability to pursue any relationships, I place significant weight on the fact that he has not used the Internet to inform himself about the gay community in Australia or places where he may meet other people with the same sexual orientation that would cost him little or no money once he was released from detention. The applicant has been in the community for almost one year and has made no attempt to meet any other gay people or discover where he may meet them. Whilst I accept that he is a “discreet” person, there are no obstacles in Australia to his safely meeting others with the same sexual orientation if he wished to do so.
As stressed by Mr Macliver, this passage needs to be read in context, with a particular focus on the evidence to which the IAA had access. That evidence included two interviews with the delegate and is summarised at [11] of the IAA’s decision as follows:
At both his interviews with the delegate in 2013 and 2017 and at the RRT hearing in 2014 the applicant stated that he had no gay friends. He had been to the Court Club in Perth (a known gay club) on a few occasions with other friends who are not homosexual, but otherwise had made no attempts to engage with the gay community in either Perth or Sydney either directly or online. When asked by the delegate at his October 2017 interview why he had not made any attempts to engage with the homosexual community either online or directly, he stated that as he had no work rights and no money he just stayed home and watched television. He didn’t know about other venues other than the Court Club which he had visited once since his release from detention in December 2016. He had heard about one other venue called the Voodoo Club but never visited it. He acknowledged that he had access to the Internet on his mobile phone though it was intermittent depending on whether he had credit on his phone. He stated that when he went to the local library to use the Internet it was mainly for the purpose of dealing with his application for protection. He also acknowledged that he had access to the Internet in detention. The applicant shared a house with friends who are not gay. He told the delegate that apart from the issue of marriage equality and the big Mardi Gras marches in Sydney and Melbourne he didn’t know much about the gay community.
The reference to “Sydney” above does seem to “float” and, arguably, lacks any connection to the evidence before the IAA. On one level, it is at least arguable that the IAA’s references to “Sydney” are derived from discussions between the delegate and the applicant. However, this is not entirely clear from what appears at [11] and [15]. Without more, it appears that the IAA is assuming that, because Sydney has a large LGBTI community, the applicant would have, perhaps instinctively, reached out and sought contact with other gay men in that city. With respect, the connection that seems to have been made does not sit easily with the Court. It seems to lack any logical foundation.
Despite this concern, the Court is satisfied that the reference to Sydney, while perhaps unfortunate, is not significant. The substance of the IAA’s reasons was that the applicant had not “engaged” with the gay community. Where he did that is largely irrelevant. The relevant question is: did he?
In relation to the rest of the passage at [15], when the Court first read this passage it did have concerns in relation to the IAA’s findings.
It initially appears that what the IAA is saying is that all gay men do want, on some level, to meet other gay men (and have relationships with them) and, if they do not want to do so then they are not actually gay. That is an assumption that borders on biological essentialism and is perhaps best avoided given the complex interaction (socially) between sex, gender and sexuality. As put to Mr Macliver, if a heterosexual woman chose not to “look online” for men or “attend bars” for the purpose of “engaging with men”, would the assumption necessarily be that she was not a heterosexual woman. Probably not.
However, the IAA’s comments need to be read in context to determine whether what is said is illogical or unreasonable. When read in context, any concerns the Court initially had are soon addressed.
The leading authority on illogicality is Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611. At [130] and [135], Justices Crennan and Bell stated as follows when discussing illogicality:
130 In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
…
135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
Here, the applicant referred to a number legal authorities from the United States that stand for the proposition that a stereotype is not a basis for a factual finding. Both Razkane v Holder 563 F. 3d 1283 (10th Ci 2009) and Ali v Mukasey 529 F.3d 478 (2d Cir. 2008) found that the use of “stereotypes” as a basis of concluding that an individual was not homosexual was indicative of “bias”, such that a meaningful review could not be conducted.
No allegation of bias is raised here and the cases cited above tend to arise within the context of a more extreme sort of judicial reasoning that, thankfully, is rarely seen in this country. Nonetheless, the Court has considered these authorities and the broader proposition that stereotypes are an unfounded basis upon which inferences can be drawn.
The question here is: do the IAA’s findings rely on stereotypical assumptions that cross into the realm of illogicality?
For the reasons that follow, the Court finds no irrationality, illogicality or unreasonableness here.
As Mr Macliver for the Minister rightly pointed out, the IAA’s analysis of whether the applicant sought to engage with other gay men does not exist in a vacuum. The evidence before the IAA clearly showed that the applicant had, himself, raised or discussed the issue of same sex contact. In that context, the IAA’s findings and the reasoning behind it cannot be said to lack a logical or probative basis in relation to the ultimate question of whether the applicant was a gay male – as he, himself, had claimed.
Here, it cannot be said the IAA applied “a test” based on unwarranted assumptions to determine if the applicant was gay. The IAA referred to questions asked by the delegate that were designed to elicit information that might be consistent with being gay, such as socialising and community engagement. This line of questioning, while perhaps misguided if pushed too far (which was not the case here) is probative. In that context, the IAA’s conclusions, based on the evidence before it, flow logically.
In that regard, it is noted that in SZTJG v Minister for Immigration & Border Protection [2015] FCA 1085 the Tribunal questioned the appellant about his use of the internet and asked him whether he “sought out” other gay men. The Court found that this line of questioning represented no more than a sustained and focused series of questions that sought to elicit information in an appropriate and open-ended way. The Court found that the questions were not pointed toward a stereotypical assumption of how gay men ought to behave. Rather, they sought information as to how the applicant made contact with other gay men, in a context where he himself said he had attempted to do so.
While it easy to focus on certain aspects of [15] in isolation, the Court must read the matters discussed in context. This includes the applicant’s responses to questions put by the delegate (i.e., about his engagement with the community) which was, critically, that he did not engage in the gay community or inform himself about the community because he had no money and was “discreet”.
The IAA’s finding that the applicant could have used the internet to socialise and learn about where he could engage with the gay community expressly took into account the applicant’s own claims that he did not engage with the community because he had no money and was “discreet”. The IAA’s findings were that the applicant could use the internet and engage with the gay community for little or no cost and without obstacles. Hence, the reasoning arose from and responded to the applicant’s own evidence.
This reasoning, in context, is logical and reasonable. In context, it was open to the IAA to have concerns about the applicant’s lack of engagement with the LGBTI community in determining whether the applicant’s claims lacked credibility.
Ground 3, accordingly, is dismissed.
Ground 4
Ground 4 provides:
4. The IAA was without any authority in respect of the Applicant because the Applicant was not a ‘fast track applicant’, by reason that the legislative instrument Migration I(MM/ 171015: Person who is a Fast Track Applicant) Instrument 2017 purporting to specify the Applicant a ‘fast track applicant’ under ss.5(1AA) of the Act is ultra vires or otherwise ineffective where the Applicant has already made a valid application for a protection visa, or where rights to merits review under Part 7 have accrued to the Applicant.
Particulars
4.1. On 26 July 2017 the First Respondent made the legislative instrument Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 which specified at Schedule 1 the Applicant by reference to an identification number.
4.2. In doing so, the First Respondent purported to specify the Applicant a ‘fast track applicant’ under paragraph 5(b) of the definition of ‘fast track applicant’ in the Act.
4.3. The Applicant was detained for the purpose of determining [the first protection visa].
In relation to this ground the applicant seeks a declaration. Specifically, he seeks:
A declaration that the First Respondent’s legislative instrument Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument 2017 of 26 July 2017 is invalid or ineffective to confer jurisdiction on the IAA in respect of the Applicant.
Applicant’s Submissions
The applicant’s written submissions in relation to ground 4 can be summarised as follows:
a)the IAA had no authority to review the decision because pt.7AA of the Act was not engaged. There was no ‘fast track reviewable decision’ because the applicant was not a ‘fast track review applicant’ within the meaning of the definition of that term at s.5 of the Act;
b)the applicant was not a ‘fast track review applicant’ because he was an ‘excluded fast track review applicant’ within the definition as defined in s.5(a)(ii) of the Act;
c)to be an excluded fast track review applicant the Minister should have ‘the opinion’ that the applicant had previously entered Australia and made a claim for a protection visa;
d)here the applicant had previously applied for and been refused a protection visa. The opinion of the Minister here must be attributed to the delegate who refused the previous visa; and
e)there is no need for there to be evidence of a specific opinion having been formed by the Minister. The Minister’s opinion is capable of being inferred from the totality of the evidence.
At hearing, Mr Crowley for the applicant indicated that he did not press this ground. He indicated that, in light of a comment made in AIB16 v Minister for Immigration & Border Protection [2017] FCAFC 163 (“AIB16”), he would be unable to persuade the Court why AIB16 should not be followed. He did, however, indicate that he did not withdraw or abandon the ground as he wished to preserve the right to appeal on this point if necessary.
Minister’s Submissions
The Minister’s submissions in relation to ground 4 can be summarised as follows:
a)the fact that the applicant had previously made an application for a protection visa does not result in the Minister being required to form an opinion that the applicant is an “excluded fast track review applicant”;
b)to the contrary, the reference to a fast track applicant who “has previously entered Australia” is a reference to a non-citizen who entered Australia on a previous occasion prior to making the present visa application and departed and then subsequently re-entered;
c)this is apparent from the fact that “fast track applicant” is in turn defined to include a person who entered Australia on or after 13 August 2012 but before 1 January 2014;
d)the Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [716] also provides:
This provision captures those fast track applicants who have previously made a valid protection visa application in Australia which was refused or withdrawn and have subsequently re-entered and been refused protection as a fast track applicant.
e)in other words, the reference to “has previously entered Australia” in the definition of excluded fast track review applicant is referring to a person who has entered Australia on two separate occasions and who, following their previous entry to Australia, made a claim for protection in an application which was refused or withdrawn and then left Australia, and subsequently entered Australia again and made a further application for a protection visa;
f)here, the applicant has not “previously entered Australia” as he has only entered Australia once. He has not left Australia since arriving in 2006; and
g)accordingly, the applicant is not an excluded fast track review applicant and the IAA had jurisdiction to review the decision of the delegate made on 27 October 2017 to refuse his visa application.
In light of the applicant’s position at hearing, the Minister did not provide further oral submissions in relation to ground 4.
Consideration
The applicant did not press ground 4 because, it was contended, of comments made AIB16 at [72], wherein Justices Tracey, Mortimer and Moshinsky JJ said:
The definition of excluded fast track review applicant in s 5(1) has a number of distinct components, which are not related to each other. For example, subpara (a)(i) relates to persons who may have access to protection in other countries. Subparagraph (a)(ii) concerns people who have previously made an unsuccessful application for a protection visa and have re-entered Australia to make a further application. Subparagraph (a)(iii) concerns people whose claims for protection have been made and refused in another country, and similarly subpara (a)(iv) relates to people who have been refused protection under a UNHCR assessment scheme. Inexplicably, there is no subpara (a)(v).
(Emphasis added)
It is noted that AIB16 did not directly consider s.5(1)(a)(ii) of the Act and the meaning of the phrase “has previously entered Australia”.
There is no definition of “previously entered” in the Act. There are, however definitions provided for the terms “entered” and “enter Australia”.
The Court notes that the extract of the Explanatory Memorandum that the Minister refers supports the interpretation provided in AIB16. The Parliament expressly use the word “re-entered”. This suggests that a “departure” from Australia is necessary before s.5(1)(a)(ii) is enlivened.
Further support for this interpretation is found in Attachment A, p.20 to the Explanatory Memorandum, which provides as follows in relation to s.5(1)(a)(ii):
previously entered Australia and made a claim for protection relying on a criterion in s36(2) in an application that was refused or withdrawn; this provision captures those fast track applicants who have previously made a valid protection visa application in Australia which was refused or withdrawn, have departed Australia and subsequently re-entered and been refused protection as a fast track applicant. It is the Government’s position that such persons have already accessed and been refused protection under Australia’s framework numerous times and should be excluded from merits review as it will unnecessarily delay the finalisation of their cases. Furthermore, while some excluded fast track review applicants may have new protection claims which have emerged since being refused protection, such claims will still receive a full assessment under Australia’s primary assessment, thus ensuring Australia can meet any non-refoulement obligations towards those who may require its protection.
(Emphasis added)
The Court is bound by the remarks of AIB16.
The Court is of the view that the applicant was not an “excluded fast track review applicant” within the meaning of s.5(1)(a)(ii).
As intended by Parliament, the applicant was required to have departed Australia and then re-entered and applied for the visa. He has not done so. The applicant has at all times remained in Australia. He does not, therefore, fall under the definition of “excluded fast track review applicant”.
Ground 4, accordingly, is dismissed.
Ground 5
Ground 5 provides:
5.The IAA’s decision was vitiated by a constructive failure to conduct the ‘review’ required under section 473CC in that the Secretary disabled the IAA from properly conducting its review by failing to comply with the requirement under section 473CB(1)(c) to provide the audio of the RRT hearing on 14 February 2014.
Particulars
5.1. The IAA relied upon what was attributed to the Applicant at the RRT hearing. And purported to contradict or draw adverse inferences from alleged inconsistencies arising from the evidence given at the RRT;
5.2. The audio of the RRT hearing was ‘material’ in the possession or control of the Secretary and was relevant to the IAA’s review and was considered by the Secretary to be relevant for the purpose of section 473CB(1)(c);
5.3. By failing to provide the audio the Secretary disabled the IAA from fulfilling its task of providing an efficient but fair hearing of the kind contemplated by Part 7 AA:
5.4.The Applicant was denied a realistic possibility of success.
Applicant’s Submissions
In written submissions filed 1 October 2019, the applicant submits as follows:
a)it cannot be said here that the direct testimony given by the applicant under oath to the RRT adds nothing. The delegate herself refers to ‘the testimony’ provided to the RRT by the applicant’s witnesses when rejecting an aspect of the applicant’s claim. But for the audio, the IAA had no way of knowing precisely what the witnesses had to say. They had not provided statements;
b)the Minister’s suggestion that it is enough that the content of the evidence in the hearing was narrated by the RRT in its decision is wrong for at least two reasons:
i)first, the Secretary’s view as to relevance under s.473CB(1)(c) is one which must be formed on a correct understanding of the law. If the Secretary did in fact reason that the IAA need not have any means by which it could know what was said in the RRT, because it had the reasons of the RRT, the Secretary misunderstood what was required. It would not be open for the IAA to rely upon the opinion of a third party (here, the RRT) about the significance of what was said, and the relative insignificance of what was omitted, as probative of that fact. To do so would be to fall into the error of treating the RRT’s decision as probative of its own correctness; and
ii)second, the Minister’s contention overlooks that the nature of the review contemplated by pt.7AA. It is a de novo merits review;
c)in any event, on the premise that the delegate was able to simply look to the RRT’s reasons, those reasons themselves only permitted the view that the audio was relevant to the IAA’s de novo review, precisely because they questioned the manner in which the applicant’s testimony was given;
d)EVS17 involved a breach of s.473CB(1)(b) caused by the Secretary’s failure to give ‘material provided by the referred applicant’. Intrinsically, the direct testimony given by the applicant under oath to the RRT is in the nature of claims actually made by the applicant and is more akin to ‘material provided by the applicant’ than the ‘any other material’ contemplated by s.473CB(1)(c);
e)it is not necessary to demonstrate that any decision about relevance was vitiated as, here, the anterior error of not considering the relevance of the material at all can be established; and
f)the availability of the audio of a previous hearing, which also included the only available evidence of the applicant’s two witnesses, places it into the category of ‘clearly critical’ so that it can be inferred that it was simply overlooked and the relevance not considered. There was no prompt on the Disclosure Checklist for the prior RRT audio.
At the hearing on 20 August 2019, Mr Crowley made the following submissions:
a)if the audio had been given, the IAA would have listened to it and it would have found the evidence of Ms O. The IAA, having listened to that evidence clearly could have found that, in fact, this man may well have been gay; and,
b)the “Disclosure Checklist” that gets sent off to the IAA does not reference the RRT’s audio. It is most likely the case that the Secretary just did not think to include it and thereby did not consider the relevance of it.
Minister’s Submissions
The Minister’s submissions dated 18 September 2019 can be summarised as follows:
a)here, the material in question is the audio record of the RRT’s hearing held on 14 February 2014 and not material provided by the applicant to the delegate. The Minister concedes that an audio recording of the RRT hearing was in the Secretary’s possession or control at the time that the delegate’s decision was referred to the IAA and was not provided to the IAA;
b)here, the RRT’s decision sets out in considerable detail evidence given by the applicant at the RRT hearing, and also by Ms S and Ms O. The applicant did not make any claim in his visa application or in his interview with the delegate that the RRT had not accurately set out evidence given at the RRT hearing.
c)in those circumstances, there was an evident and intelligible justification for the Secretary to conclude that the audio record of the RRT hearing was not relevant to the IAA’s review of the delegate’s decision of 27 October 2017, as there was no reason to consider that the relevant evidence at the RRT hearing was different to that set out in the RRT’s reasons;
d)further, and in any event, even if it could be said that the Secretary had failed to comply with the obligation in s.473CB(1)(c) of the Act by not providing the IAA with the audio record of the RRT’s hearing, such a failure would not have been material; and
e)applying the test for materiality to the circumstances here, the applicant has not established that if the Secretary had provided the audio recording of the RRT hearing on 14 February 2014 to the IAA, that that could realistically have resulted in a different decision, namely the visa being granted.
At hearing, the Minister did not advance any further submissions in relation to ground 5.
EVS17
The applicant relies on EVS17. The facts of EVS17 can be summarised as follows:
a)the applicant applied for a visa in 2016. In support of the application the applicant provided medical documents to the delegate;
b)on 15 December 2016, the delegate refused the visa. As the applicant was a “fast track review applicant”, the matter was referred to the IAA’;
c)the material referred to the IAA did not include the medical documents; and
d)the IAA affirmed the delegate’s decision on 10 October 2017.
In EVS17, the Minister conceded on the appeal that the Secretary failed to comply with s.473CB(1)(b) of the Act by failing to provide the IAA with the medical documents. It was also not in dispute that a failure by the Secretary to comply with s.473CB(1)(b) of the Act could deprive the IAA of jurisdiction to conduct a review.
The Full Court discussed the following principles:
a)the legislative scheme of pt.7AA differs from pt.7, therefore previous authorities on similar provisions (such as s.418(3) of the Act) cannot readily be applied: EVS17 at [31];
b)the failure by the Secretary to comply with s.473CB(1)(b) of the Act may prevent the IAA from conducting the “review” contemplated by pt.7AA such that jurisdictional error on the part of the IAA is established: EVS17 at [35]; and
c)a lower threshold of materiality is called for when determining whether the documents that were not provided by the Secretary could have resulted in the making of a different decision. Whether that is so requires reference to an applicant’s claims and the IAA’s reasons: EVS17 at [42].
The Court ultimately found that the failure to provide the medical documents was a jurisdictional error. The medical documents could have affected the outcome of the IAA’s review: EVS17 at [50]-[53].
CQR17
The Minister relied upon CQR17 v Minister for Immigration & Border Protection [2019] FCAFC 61 (“CQR17”) to support his contentions.
In CQR17, it was accepted that the Secretary did not forward to the IAA a number of documents that were in the Secretary’s possession. The appeal was brought on the basis that the failure to give those identified documents to the Secretary was a breach of s.473CB(1)(c) of the Act.
The following principles emerged from CQR17:
a)the point in time at which the relevance of the material falls to be assessed by the Secretary is the point at which the delegate’s decision is referred to the IAA: CQR17 at [2] and [79];
b)the onus is upon the applicant to prove that the Secretary failed to consider the relevance of the documents: CQR17 at [30];
c)the question of whether there is some evidence, even if comparatively slight, that the Secretary did not consider whether the documents were relevant is enmeshed in the question of whether it was legally unreasonable for the Secretary to have concluded that the documents were not relevant: CQR17 at [33]-[34];
d)the test is not whether the Court considers the document might have been or was relevant to the review or whether the Court could have subjectively concluded that the document was irrelevant to the review. The test is whether there is an evident and intelligible justification for the conclusion that the document was not relevant to the review: CQR17 at [39];
e)for the purposes of s.473CB(1)(c), the relevant material is that which is logically probative of the issues which arise on the applicant’s visa application on the date of referral. Any material which tends to prove or disprove any of the issues would be relevant: CQR17 at [107];
f)materiality is a matter of inference from evidence. Where there is an insufficient evidentiary foundation to infer that the alleged error was material it cannot be said to be so: CQR17 at [50]; and
g)in ascertaining whether any non-compliance with a statutory obligation amounts to a jurisdictional error, in the context of s.473CB(1) the failure to give a relevant document to the IAA has to be a material breach such that the giving of the document could realistically have resulted in the visa being granted: CQR17 at [130].
Consideration
The Court is of the view that the RRT audio ought to have formed part of the “review material” that was referred to the IAA.
Section 473CB provides as follows:
(1) The Secretary must give to the Immigration Assessment Authority the following material (review material ) in respect of each fast track reviewable decision referred to the Authority under section 473CA:
(a) a statement that:
(i) sets out the findings of fact made by the person who made the decision; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision;
(b) material provided by the referred applicant to the person making the decision before the decision was made;
(c) any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;
…
The applicant suggests that the audio falls within s.473CB(1)(b) as the audio was “material provided by the referred applicant to the person making the decision”.
The Court does not agree.
Section 473CB applies to “fast track review reviewable decisions”. Hence, it is the Court’s view that when referring to “decision” in s.473CB(1)(b), this is referring to the “fast track reviewable decision” – not any other decision that may have been made. Hence, the material had to have been provided by the review applicant in the context of the “fast track review decision”.
On this basis, the Court is not satisfied that there is a “flat breach” of s.473CB(1)(b).
In the Court’s view, the material more appropriately falls into s.473CB(1)(c).
The High Court recently referred to s.473CB(1)(c) in CNY17 v Minister for Immigration & Border Protection [2019] HCA 50. While a dissenting opinion, the Court’s observations at [6] are nonetheless instructive. Relevantly, Kiefel CJ and Gageler J noted:
6. By operation of s 473CB(1)(c), the review material which it is the duty of the Secretary to give to the Authority also includes “any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review”. To consider material that is in the Secretary’s possession or control to be relevant to the review within the meaning of the provision, the Secretary (who can be expected ordinarily to act through a delegate) obviously needs to form the opinion that the material is capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding in the conduct of its review of the referred decision. Compliance with the duty to provide such material to the Authority accordingly necessitates that the Secretary or delegate of the Secretary turn his or her mind to the range of material that is in the Secretary’s possession or control which pertains to the referred applicant in order to determine whether or not to form that opinion in relation to the whole or some part of that material. The opinion of the Secretary that material is relevant to the review (so as to be required to be given to the Authority) or is not relevant to the review (so as not to be required to be given to the Authority) must be formed reasonably and on a correct understanding of the law.
(Emphasis added)
The Minister conceded that the audio of the RRT hearing was in the “possession or control” of the Secretary at the time this matter was referred to the IAA.
The audio was logically probative of the applicant’s claims. However, the question of probative relevance is one upon which reasonable minds may disagree: CQR17 at [121]. The question here is whether the audio of the hearing was so “obviously relevant” that to not have provided the audio to the IAA was legally unreasonable.
The Minister submits that it would have been reasonable for the Secretary to have formed the view that, in light of there being no disavowal of the RRT’s summary of the evidence, the substance of the RRT hearing would have been before the IAA in the RRT’s decision and the audio was not necessary or relevant.
The Court disagrees.
The RRT audio was directly capable of affecting the probability of the existence of a fact (i.e., that the applicant was gay or had been a relationship with a male).
While the RRT’s summary was not disputed, given that the credibility of the claims advanced was a significant issue for the delegate and the delegate referred to there being witnesses who supported the applicant at the RRT hearing, it is not enough for the Secretary to have assumed that the RRT’s summary was correct or that it appropriately captured the substance of what was said.
While the Court accepts that the test for illogicality and unreasonableness is high, here that test has been met. The failure to provide the RRT audio (which was in the possession and control of the Secretary) lacked an evident and intelligible justification.
There has, accordingly, been a breach of s.473CB(1)(c) of the Act.
Having established a breach, it is necessary to consider whether the breach was material. The Minister says it is not material as it cannot be said that the breach could realistically have deprived the applicant of a successful outcome.
This submission cannot be accepted. The audio “spells out” Ms O’s evidence in full. Had the IAA heard it, it is at least arguable that the IAA could have come to a different conclusion in relation to the applicant’s credibility. The tape was “critical corroborative evidence”.
In the circumstances of this case, it cannot be said that the IAA could not realistically have come to a different outcome had it had access to the audio of the RRT hearing.
Ground 5, accordingly, is allowed.
The Court notes that in the event that it is wrong in relation to ground 5 and the audio is not in fact “review material” that should have been referred to the IAA then (as explained above in relation to ground 2), the IAA’s failure to consider exercising the power under s.473DC (in circumstances where the IAA knew that it did not have corroborative evidence that the applicant was in a same-sex relationship but the audio potentially contained corroborative evidence), the failure to obtain the audio would have vitiated the decision as legally unreasonable in any event.
Conclusion
On the basis of the above, the Court finds that grounds 2 and 5 in the applicant’s application for judicial review dated 9 August 2019 identify jurisdictional error.
Accordingly, the application for judicial review is allowed. The matter is to be remitted to the IAA for reconsideration.
I certify that the preceding one hundred and fifty-nine (159) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 19 December 2019
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