FSG17 v Minister for Home Affairs
[2019] FCCA 2050
•22 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FSG17 v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2050 |
| Catchwords: MIGRATION – Protection visa application – delegate finds applicant to be a stateless person born in Iraq to Iraqi parents – country information before delegate acknowledges that persons whose paternal ancestry is Iranian may secure citizenship under Iranian laws – Authority finds that applicant not stateless – whether decision not to invite applicant to interview was legally unreasonable – whether decision affected by legal unreasonableness – applicable principles – finding of Authority not irrational or illogical – unreasonableness not established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss 5H, 5J, 5M, 36, 46, 65, 348, 414, 425, 473, 473BB, 473CA, 473CB, 473CC, 473DA, 473DB, 473DC, 473DD, 473DF, 473FA, 473FB, 473GB, 473JA, 476 |
| Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 AUH17 v Minister for Immigration and Border Protection [2018] FCA 388 AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89 AZZ16v Minister for Home Affairs [2019] FCA 844 BLS17 v Minister for Home Affairs [2019] FCA 1079 BMV16 v Minister for Home Affairs [2018] FCAFC 90 BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114 BVW16 v Minister for Immigration and Border Protection [2017] FCA 1508 BWT16 v Minister for Immigration and Border Protection [2019] FCA 404 BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44 Candemir v Minister for Home Affairs [2019] FCAFC 33 CKV16 v Minister for Immigration and Border Protection [2019] FCA 342 CNY17v Minister for Immigration and Border Protection [2018] FCAFC 159 Craig v South Australia (1995) 184 CLR 163 Crowley v Holmes (2003) 132 FCR 114 DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 DPI17 v Minister for Home Affairs [2019] FCAFC 43 DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 EAJ18 v Minister for Home Affairs [2019] FCA 1057 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Holmes v Mercado (2000) 111 FCR 160 Hossain v Minister for Immigration and Border Protection [2018] HCA 34 Isbister v Knox City Council (2015) 255 CLR 135 Kioa v West (1985) 159 CLR 550 Livesey v NSW Bar Association (1983) 151 CLR 288 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214 MZAOL v Minister for Immigration and Border Protection [2019] FCAFC 68 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328 NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118 NSW v Fahy (2007) 232 CLR 486 O’Sullivan v Medical Tribunal [2009] NSWCA 374 Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 227 CLR 152 SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70 W375/01A v Minister for Immigration and Multicultural Affairs (2002) 67 ALD 757 Webb v The Queen (1994) 181 CLR 41 WZARH v Minister for Immigration and Border Protection (2014) 316 ALR 389 |
| Other materials cited: Gageler J, ‘Why Write Judgments?’ (2014) 36 Sydney Law Review 189 Wistrich, Guthrie and Rachlinski, ‘Can Judges Ignore Inadmissible Information? The difficulty of deliberately disregarding’ (Paper No 20, Cornell Law Faculty Publications, 2005) |
| Applicant: | FSG17 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | MLG 2837 of 2017 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 23 August 2018 |
| Date of Last Submission: | 3 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Albert |
| Solicitors for the Applicant: | Asylum Seeker Resource Centre |
| Counsel for the Respondents: | Mr A. Yuile |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the first respondent be amended in the title of the proceeding to Minister for Home Affairs.
The further amended application for judicial review be dismissed.
By 4.00pm on Friday, 30 August 2019 the first respondent file and serve any submissions as to costs, not exceeding 3 pages, including the quantum of costs sought and reasons upon which that is justified.
By 4.00pm on Friday, 6 September 2019 the applicant file and serve any submissions, not exceeding 3 pages, responding to the application for costs.
The question of costs be decided on the papers.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2837 of 2017
| FSG17 |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By further amended application filed on 2 August 2018, judicial review is sought of a decision of the Immigration Assessment Authority (Authority) made on 28 November 2017 affirming a decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
The application for judicial review arises in the particular context that while a delegate of the Minister accepted the applicant to be stateless (but otherwise found some of his claims not to be credible), the Authority doubted his claim to be stateless and found the applicant had become an Iranian citizen. A further controversy which emerged at the point of review was that the Secretary had provided the Authority with information concerning charges of criminal offences which had been laid against the applicant involving allegations of the persistent sexual abuse of a child over a three year period. Although the Authority expressly disregarded that information, the fact that it was provided was relied upon as grounding a claim that the Authority’s decision was tainted by apprehended bias.
The grounds of review arise within the statutory framework of a decision that was made under Pt 7AA of the Act. For the reasons that follow, I have concluded the application should be dismissed.
In short, I have concluded that the claim of bias is not made out. The Authority was not silent as to the receipt of the information respecting the charges arising in relation to alleged sexual offences. To the contrary, it acknowledged them, ruled them to be irrelevant and stated expressly that those matters would be excluded from its consideration of the assessment under review. I reject the submission that, having regard to the content of the information which was supplied by the Secretary and ruled to be irrelevant, the Authority was obliged to refer the fast track referral to another member for the conduct of the review.
Further, I have concluded that the Authority’s decision was not affected by legal unreasonableness. Although the delegate found that the applicant was a stateless person born in Iraq to Iraqi parents, there was country information before the delegate which acknowledged that persons whose paternal ancestry is Iranian may secure citizenship under Iranian laws. The Authority had regard to that country information. The finding by the Authority that the applicant was a citizen of Iran was not irrational or illogical. The Authority was not required in the circumstances to invite the applicant to an interview before making a decision on this issue.
Background
The applicant, who is of Faili Kurd ethnicity and of Shia Muslim faith, was born in Iraq. On 22 September 2012, he arrived on Christmas Island as an irregular maritime arrival. While there is uncertainty about the applicant’s precise date of birth, he is claimed to have been born in 1985.
In summary, the claim for protection was grounded upon the applicant being stateless, of Faili Kurdish ethnicity and having formally been resident in Iran but with no right of return or citizenship to that country. He also relied upon his membership of a particular social group, being persons who had been refused renewal of a white card and of being a failed asylum seeker, an imputed pro-Kurdish political opinion and at risk because of alleged threats of harm from the family of an Iranian woman with whom he claimed to have had sexual relations.
The applicant claimed that his parents and grandparents were also born in Iraq, and that soon after his birth the Iraqi authorities imprisoned his family and stripped them of their citizenships and possessions (including their identity documents), before forcibly deporting them to Iran. The applicant further claimed that as it was not possible for him to acquire Iranian citizenship, he was stateless.
The applicant claimed that, upon moving to Iran, his family initially resided in Ahwaz before moving to Qom. According to the applicant, he was not allowed to attend school beyond year 5 in Iran as he was a stateless person from Iraq, and Iranians treat Faili Kurds differently because they are considered to be Iraqis. The applicant claimed that his only period of employment in Iraq was for a brief time in 2011, when he worked as a shoe maker/repairer. He described the employment circumstances of his father as equally precarious and that the family also relied upon his mother’s income from her dress-making activities and assistance from relatives living elsewhere overseas. The applicant also described how a difficulty arising from being stateless was that his family was unable to gain access to medical insurance and cited, by way of example, that in 2003, his father had been denied medical treatment for a stroke. He also described how he and his father were subject to unlawful demands by police and suffered beatings from them.
The applicant’s claim for protection was grounded in part upon problems that arose from his having had a relationship with an Iranian woman. He claimed that whilst visiting a shrine in Mashhad in 2007, he had met a woman, Mahine, who was from Astara in northern Iran. He further claimed that although Mahine departed Mashhad the day immediately after their meeting, they had regularly communicated with each other by telephone and that about a month after the applicant returned home from Mashhad, he visited her in Astara where he stayed for about a week, and returned to visit her every 4-5 months.
The applicant claimed that in 2010, Mahine’s father refused to let him marry his daughter. Then, about a week later, the applicant and Mahine had eloped to a rented house in another part of Qom, where they stayed for about a month, during which time they had sexual relations. As the applicant’s financial resources became depleted and Mahine’s family were constantly calling to find her, after a month she returned to her family. The applicant claimed that thereafter: he received death threats from Mahine’s brothers; he feared her family had reported him to Iranian authorities, and; he may be detained and harmed because he had sexual relations with an Iranian woman outside of marriage.
The applicant claimed that since 2011, the Iranian authorities had refused to renew his refugee identification card, which is commonly referred to as a ‘white’ card.
The applicant claimed that in August 2012, he had borrowed $10,000 and paid an agent to arrange his journey to Australia which he made by boat, arriving on Christmas Island on 22 September 2012.
On 11 April 2015, the applicant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV) and provided a statement in which he claimed to fear harm if he returned to Iran because he would suffer “significant discrimination” as a Faili Kurd, making it impossible for him to live freely as he would not be protected by the Iranian authorities.
On 30 August 2017, the applicant attended an interview with a delegate of the Minister to discuss his visa application and claims for protection. On 13 September 2017, the applicant’s migration agent provided the delegate with post-interview submissions outlining the claims for protection, country information and copies of his family members’ green and white cards issued by the Iranian government.
The applicant’s submissions addressed his claims:
a)to fear serious harm: he said that because of his ethnicity as a Faili Kurd, Iranian authorities would impute to him a pro-Kurdish political opinion. His claim was one of discrimination in Iran on the basis of his ethnicity;
b)to be stateless: in the SHEV interview the delegate suggested that because the white card attached to the applicant’s visa application was dated 2004, the applicant may have obtained Iranian citizenship at a later date. In response, by his submission the applicant clarified that when he had asked his family for copies of his ID, they had scanned and supplied him with an old card. After the SHEV interview, the applicant again contacted his family, and they provided his most recent white card which was issued in 2011;
c)arising from his relationship with Mahine: in his 2012 entry interview the applicant had failed to disclose various aspects of this relationship, which led the delegate to believe this claim had been introduced later “just for the sake of enhancing his protection visa”. The applicant submitted that his entry interview had lasted only 46 minutes, which considering the trauma he had suffered, was insufficient time for him to provide a clear precis of his life history and claims for asylum; particularly when he was already fearful of state authorities. The applicant further submitted that he had not enhanced his claims but had been honest at all times with the Department, and that as an asylum seeker he should be granted the benefit of any doubt regarding his claims of statelessness and his relationship with Mahine;
d)based upon a lack of Iranian citizenship: according to the applicant, being excluded from gaining Iranian citizenship had “consequences of a severely prejudicial nature that have impacted every aspect of his and his family’s lives”. The applicant argued that because he was a stateless Faili Kurd he had no work rights, no ability to purchase property or to open a bank account, and had limited access to health and education services. He further submitted that in 2011, after the Interior Ministry had refused to renew his white card, he subsequently departed Iran seeking asylum. The applicant submitted that due to his departure from Iran, he would no longer be eligible to hold a white card; and
e)to face persecution on the grounds of an imputed political opinion due to his Kurdish ethnicity: the applicant provided country information indicating that the activities of some Kurds in Iran had been deemed to be offences of a political nature, giving rise to a perception of Kurds as being anti-government.
The applicant’s claim was assessed based on him returning to Iran.
Delegate’s decision
On 19 October 2017, a delegate of the Minister refused to grant the applicant a Protection visa. The delegate accepted that the applicant was a Faili Kurd who, although born in Iraq, was stateless by reason of his having been stripped of his Iraqi citizenship and then forcibly relocated to Iran as a child. The delegate also accepted that the applicant had lived in Iran as a registered refugee and that he had suffered discrimination in that country until his departure in 2012. However, upon consideration of the available country information, the delegate did not accept that the forms of discrimination or harm experienced by the applicant in Iran were sufficiently grave to be regarded as serious or significant harm.
The delegate also accepted that, when in Mashhad in 2007, the applicant had met Mahine and that he had subsequently travelled to Astara to visit her. However, the delegate did not accept that the applicant, and Mahine had shared a house in Qom for about a month, that they had a sexual relationship or that this had led to Mahine’s family threatening to kill the applicant. The delegate did not accept that the applicant genuinely feared harm from members of Mahine’s family or, if he returned to Iran, from Iranian authorities, due to a sexual relationship with Mahine. The delegate considered it significant that the applicant had not made any mention of a claim to fear harm from members of Mahine’s family during his arrival interviews at Christmas Island and Curtin. The delegate considered the applicant’s explanations for omitting reference to these matters in relation to this claim (as given in his SHEV and post-interview submissions), to be unsatisfactory where this claim was a material consideration that had ostensibly contributed to his decision to leave Iran.
The delegate also noted that the applicant remained living with his parents in Qom for an extended period after ostensibly receiving death threats by his telephone from Mahine’s family members. The delegate questioned why the applicant had not taken the threats seriously and left Iran immediately or changed his telephone number. The delegate regarded the applicant’s decision to continue to go about his daily business as inconsistent with the actions of a person who was in genuine fear of serious or significant harm.
The delegate concluded that the applicant was not a person in respect of whom Australian owed protection obligations, either as a refugee under s 36(2)(a) or to complementary protection under s 36(2)(aa) of the Act.
Referral to Authority
As the applicant was deemed to be a fast track applicant, he was subject to the merits review framework and procedure set out in Pt 7AA of the Act. The delegate’s decision was referred under Pt 7AA to the Authority for a fast track review.
On 25 October 2017, the Secretary referred this matter to the Authority and, pursuant to s 473CB, provided the Authority with all the documents which were considered by the Secretary to be relevant to the review. In particular, the Secretary furnished to the Authority information which disclosed that the applicant had been charged by NSW police with criminal offences related to indecent dealing with a child.
By letter dated 26 October 2017, the Authority notified the applicant that the delegate’s decision had been referred to it for review, advising in part that:
The Department of Immigration and Border Protection . . . has provided us with all documents they consider relevant to your case . . . The IAA will proceed to make a decision on your case on the basis of the information sent to us by the department . . .
The applicant was provided a Practice Direction indicating the manner in which the Authority would conduct the review and the steps in which the applicant might take in the course of that review, including, by making submissions. The Practice Direction noted that, in carrying out its functions, the Authority was required to provide a means of limited review that was efficient, quick, free of bias and to do so consistently with Div 3, Pt 7AA of the Act. The Practice Direction stated that the Authority would only consider new information or conduct an interview with the applicant in very limited circumstances.
The applicant had an opportunity, by 15 November 2017, to make submissions to the Authority in relation to the referral.
On 16 November 2017, the applicant’s representative sent an email to the Authority enquiring as to the deadline for making submissions. A request was made for a copy of the recording of the applicant’s Protection visa interview conducted on 30 August 2017.
On 17 November 2017, the Authority provided the applicant’s representative with a copy of the applicant’s SHEV interview and stated that submissions should have been provided by 15 November 2017.
In the period 15 – 28 November 2017, no request was made by or on behalf of the applicant for an extension of time in which to make submissions.
Authority’s decision and reasons
On 28 November 2017, the Authority affirmed the delegate’s decision to refuse the applicant a Protection visa, providing a statement of its reasons (Reasons) for doing so. The Authority had regard to the applicant’s claims to protection and noted the delegate’s decision to grant a visa had been made on the basis that, although the applicant’s claim to be stateless was accepted, some of his claims for protection were found not to be credible and there was not a real chance or real risk he would suffer harm amounting to serious or significant harm: [1].
As stated above, the Authority referred to the material that had been considered relevant, and supplied to it, by the Secretary under s 473CB and which related to the criminal charges laid against the applicant and the information which related to those charges: [3].
The Authority found, correctly, that there was no evidence of a conviction having been recorded against the applicant, and stated that it considered those matters were irrelevant to the assessment of the credibility of the applicant’s claims for protection and the criteria to be determined by the Authority. The Authority stated that this information had been disregarded by it in making the assessment: [3].
The Authority noted that the applicant had been represented by “an experienced migration agent from the same firm which represented him in the proceedings before the delegate” and determined to proceed to make a decision upon the referral: [4].
The Authority addressed the applicant’s claims for protection in detail at [5], doing so under a series of 16 bullet points. Relevantly, the Authority found that “The applicant was born in Iraq, as were his parents and grandparents.” This statement was relied upon by the Authority in its consideration of whether the applicant had a well-founded fear of persecution, and in particular, with respect to its consideration of the applicant’s identity and status in Iran: [26].
In undertaking its ‘Refugee assessment’, no criticism was made of the statement of the applicable definition of ‘refugee’ in s 5H(1) of the Act or its statement of the elements comprised in the expression ‘well-founded fear of persecution’ in s 5J of the Act: [6]-[7].
The Authority began its consideration of whether it was satisfied that the applicant had a well-founded fear of persecution by reference to his claims to have been severely emotionally and mentally affected by his time in detention and prison: [8]-[9].
The Authority considered in detail the subject of the applicant’s identity and status in Iran: [10]-[34]. While it is convenient to examine further aspects of this subject in the context of amended Ground 2, the following may be noted. The Authority:
a)accepted that the applicant had been born in Iraq and spent the majority of his life in Iran, and also that he appeared to be a Shia Muslim: [12];
b)did not accept the green and white cards presented by the applicant were genuine, or the applicant’s explanation as to why his card had not been renewed or other aspects of the Iranian identity card system: [14], [17]-[19];
c)held concerns as to the claim of his family having moved to Qom and lived there without difficulty when their identity cards required them to live elsewhere: [21];
d)considered the claimed relationship with Mahine to be inconsistent with his claims about his family’s citizenship and financial circumstances: [22]-[25];
e)did not accept the applicant was a stateless Faili Kurd on the basis that he had probably gained Iranian citizenship: [26]-[27];
f)was not satisfied the applicant was at risk of harm by reason of being stateless without identity documents, or that the level of discrimination levelled at Faili Kurds amounted to serious harm within the meaning of the Act: [30]-[34]; and
g)did not accept the claims as to risk of harm from Mahine’s family, the attacks on him or his father by police, or that the applicant was at serious risk of harm as a returned asylum seeker: [36]-[40]; [43]-[46].
The Authority concluded that it was not satisfied the applicant faced a real chance of suffering any harm beyond low-level discrimination, harassment or questioning. It accordingly found that such treatment did not amount to serious harm within the meaning of the Act, or that the applicant had a well-founded fear of persecution: [47]-[49]. Concerning its complimentary protection assessment, the Authority identified the criteria for protection and referred to the definition of ‘significant harm’ in s 36(2A) of the Act. The Authority noted that, apart from the matters considered in relation to the claim to a well-founded fear of persecution, the applicant had not made any additional claims as founding a basis for complementary protection. The Authority was not satisfied of substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there was a real risk that the applicant would suffer significant harm: [50]-[54]. It affirmed the decision not to grant a visa.
Procedural history
On 22 December 2017, the applicant filed an application for judicial review of the Authority’s decision made on 28 November 2017 together with an affidavit to which he exhibited a copy of the Authority’s Reasons but which adduced no further evidence in support of his application for judicial review.
By a Response filed on 29 January 2018, the Minister sought dismissal of the application on the basis that the decision under review was not affected by jurisdictional error.
On 6 March 2018, orders were made by consent listing the application for hearing. Further orders were made regulating the preparation of the matter for hearing. On 19 April 2018 an amended application was filed.
On 12 July 2018, a solicitor for the Minister affirmed an affidavit in which she deposed to having perused, in electronic format, a file maintained by the Department in relation to the applicant. Exhibited to the affidavit was a notice described as follows: “Notification regarding the disclosure of certain information covered by section 473GB of the [Act].” By this document the Authority was notified that s 473GB applied to a document or information in the document which was identified. The Authority was further notified of the view that disclosure of any matter contained in the document, or disclosure of the information it contained, would be contrary to the public interest on the ground that it was a departmental working document. The certificate was expressed to be made pursuant to subs 473GB(5), and being subject to subs 473GB(3) and 473GB(4) of the Act.
The document to which the certificate related was exhibited in a sealed envelope and recorded that its author had examined and determined that a document, designated Item D2007–00648–001: Republic of Iran ‘White Card’ numbered 100436400319 was considered to be consistent in format with other exemplars of Iranian ‘White Cards’ but that its generation created a significant limitation in the assessment of whether it was “a legitimately manufactured and issued document.”
On 12 July 2018, the Minister filed a supplementary court book. Contained within the supplementary court book were four documents, each of which was described in an index. The documents related to the criminal charges laid against the applicant. For convenience, the description of each document as set out in that index is below:
No Document Description Date Page
1. Court attendance notice 23-09-2-16 1-4
2.Internal [Departmental] email regarding
the applicant’s criminal behaviour
attaching: 23-09-2-16 5
a) Incident report 23-09-2-16 6-7
3.Correspondence regarding bogus document
(names . . . redacted – not relevant) 23-09-2-16 8-10
4.Document examination report 23-09-2-16 11-18
A summary of the information contained in the documents follows.
As to Item 1, being a Court attendance notice (pp. 1-4), the four pages comprising this document: (a) notified the applicant that he was required to attend court on 23 September 2016 to answer the charge laid against him, following his arrest the previous day, and; (b) included a Facts Sheet which noted that bail had been refused. The details of the offences were described in the Court attendance notice as arising from the alleged persistent sexual abuse of a child in the period August 2013 – March 2016 and that the accused had on three or more occasions[1] engaged in sexual intercourse with a child
[1]As appears below, the conduct involved far more frequent episodes of sexual intercourse than merely three occasions; however, it is assumed that the description of the charge was framed in that way to address the statutory elements of an offence of persistent dealing with a child.
In the Facts Sheet, a section entitled Full Facts described that the accused and victim had made contact through a social media dating site at a time when the victim was aged 13 and the accused aged 27. After describing the nature of their initial communications, it was stated that those parties had engaged in sexual intercourse over a period of three years on about every third day until the accused determined to terminate the relationship and move his place of residence. It was further stated that the victim had pursued the accused despite his statements he did not want a relationship with her; a position which the victim had not accepted. It then stated that, after the victim had attended the accused’s home and gained entry via an unlocked door, a heated argument ensued with the result that police had been called, the parties interviewed, further enquiries were made and that the accused had voluntarily participated in an interview during which he made admissions. In the course of the interview the accused had recounted his version of events, stating the victim disclosed on the social media website that her age was 19 and that she had made the same representations to him as to her age when they had met. However, it was also stated that, although at some point the accused had learned from the victim’s mother that the victim was in fact under the age of 16, the applicant had also made admissions that the parties had continued to engage in sexual intercourse thereafter.
As to Item 2, being the Internal [Departmental] email regarding the applicant’s criminal behaviour and attached Incident report (pp. 5-7), the email provided a summary of the matters referred to in the Court attendance notice and Fact Sheet and that the accused had been remanded to reappear in court on 29 September 2016. The Incident report reiterated much the same information.
As to Item 3, being the correspondence regarding a bogus document (pp. 8-10), this was comprised of a chain of emails finally ending with an opinion that an Iranian white card (being the subject of the email chain) was considered “Highly likely to be bogus.”
As to Item 4, being a ‘Document examination report’ (pp. 11-18), I note that attached to the report was a series of seven cards designated items D2017-00696-001 to 007 respectively. The report described those items as being three Republic of Iran Green Cards, three Republic of Iran White Cards and one Republic of Iranian Special Alien Card. In the report, the summary of the examination undertaken was uniformly that each of those seven documents was considered to be “a low quality generation, and no opinion can be stated on the authenticity of the document.” Little further information was contained in the following two pages of “Results/Conclusions.”
The supplementary court book contained no further documents.
On 2 August 2018, a further amended application was filed. While writs of certiorari, mandamus and prohibition were sought, relevantly, by the further amended application, a writ of mandamus directed to the Authority was sought requiring “it, differently constituted, to determine the applicant’s application according to law including with the documents at pp 1-7 inclusive of the supplementary court book not to be provided to the deciding reviewer on remittal.” From the foregoing it is apparent that the documents sought to be excluded on remittal were those related to the laying of criminal charges against the applicant for alleged sexual offences.
By the further amended application each of the original and amended ground of review were largely abandoned. In their place, two new grounds of review were advanced.
Further procedural orders were made on 8 and 16 August 2018 vacating the nominated hearing date and affording further time to the parties to file evidence and submissions. Those opportunities were taken.
On 22 August 2018, in a further affidavit filed on behalf of the Minister, the deponent affirmed that he had examined a Departmental file and the supplementary court book. The affidavit was filed in response to a submission by the applicant which contended the absence of evidence on a topic. In substance, the deponent described the various searches and analyses which he had undertaken and which had led him to conclude that the documents contained in the supplementary court book from pp. 1-18 inclusive, together with a further document examination report, had been placed on the Departmental electronic file and retained on that file up to the time of the delegate’s decision made on 19 October 2017. In particular, the deponent affirmed his belief that (with one exception), all of those documents had been provided to the Authority. The one excepted document, which was included in the supplementary court book but had not been provided to the Authority, was that described at Item 2, pp. 5-7 (being the internal Departmental email which provided a summary of the matters referred to in the Court attendance notice and Fact Sheet as referred to above).
Applicable principles
The process of judicial review is not an appellate procedure enabling a general review by the court of the decision or the substitution of a decision which the court may consider ought to have been made. The jurisdiction, being supervisory, is to quash a decision on established grounds, the most important of which is jurisdictional error,[2] and, if appropriate, to order that the matter be remitted and reconsidered according to law.
[2]Craig v South Australia (1995) 184 CLR 163, 175 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).
Under the Act, the latitude granted to an administrative decision-maker turns upon whether the criteria for the grant of a particular visa are satisfied. By s 65 of the Act, an administrative decision-maker is required to refuse to issue a visa in the absence of an affirmative finding that the criteria applicable to the particular visa application are satisfied.[3] Conversely, where satisfied of those criteria, the visa must be granted.
[3]Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for the grant of a Protection visa are contained in s 36 of the Act.
Part 7AA of the Act concerns the subject Fast track review process in relation to certain protection visa applications and is arranged in 8 Divisions comprising ss 473BA-473J. Relevantly, the Minister must refer, as soon as is reasonably practicable after a decision is made, and the Authority must review, a fact track reviewable decision.[4]
[4] Act, ss 473CA, 473CC.
Section 473CB identifies the material that must be provided to the Authority.
The core function which is imposed on the Authority by Pt 7AA is to conduct the review of a fast track reviewable decision: Act, s 473CC(1); cf Minister for Immigration and Citizenship v SZIAI.[5] By contrast, a Tribunal conducting a review under Pt 5 or Pt 7 of the Act is required by ss 348 or 414 respectively to conduct the review those reviewable decisions. Having regard to the qualitatively different core functions for which Parts 5, 7 and 7AA respectively provide, the legal and statutory framework for such reviews is an important consideration in the assessment of whether jurisdictional error is demonstrated.
[5] (2009) 259 ALR 429, [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The fast track scheme provided by Pt 7AA is a mechanism of limited merits review.[6] Division 3 of Part 7AA variously: provides an exhaustive statement of the natural justice hearing rule respecting a review conducted by the Authority;[7] requires that the Authority should ordinarily conduct its review on the papers;[8] provides for the exceptional, and strictly circumscribed,[9] circumstances in which new information or documents may be sought or employed[10] and; authorises and prescribes the manner in which the Authority may conduct an interview of the applicant or otherwise obtain further information.[11]
[6] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[7] Act, s 473DA.
[8] Act, s 473DB.
[9] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [31].
[10] Act, ss 473DC-473DE.
[11] Act, s 473DF.
In general, the Authority must conduct its review without accepting or requesting new or additional information and without interviewing the applicant.[12] Further, it is under no duty to get any documents or information that were not before the delegate.[13]
[12] Act, s 473DB(1)(a)-(b).
[13] Act, s 473DC(1)-(2).
In the conduct of review by the Authority, s 473DA contains an exhaustive statement of the natural justice hearing rule to be applied upon a review under Div 3 of Pt 7AA.
Section 473DD proscribes the Authority from considering any new information unless the conditions provided by that section are satisfied.
Nothing in Part 7AA otherwise constrains the application of the law respecting the duty of an administrative decision-maker to consider the claims and issues arising from the material that is before it and the issues that may arise from its own findings.[14] For that reason, the Authority must consider each articulated claim and each claim that clearly arises from the review material before it.[15]
[14]AYY17 v Minister for Immigration and Border Protection [2018] FCAFC 89, [18]-[19] (Collier, McKerracher and Banks-Smith JJ).
[15]See NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1, [19], [60] (Black CJ, French and Selway JJ).
For the same reason, the powers conferred on the Authority by Div 3 of Pt 7AA are so “conferred on the implied condition that they are to be exercised within the bounds of [legal] reasonableness.”[16] In carrying out its functions, the Authority is to pursue the objective of providing a mechanism of limited review that is free of bias: Act, s 473FA(1).
[16]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600.
As concerns the exhaustive statement of the natural justice hearing rule, “no denial of natural justice arises from the mere fact that the Authority made different findings to those findings made by the delegate on the limited merits review system available under the fast track scheme”: DBE16 v Minister for Immigration and Border Protection.[17] Pt 7AA provides a mechanism of limited merits review.[18] In DBE16, Barker J held:[19]
The Pt 7AA merits review system appears to operate on the understanding that the reviewer reconsiders all facts and so may make factual findings different to those of the original decision-maker. There is nothing in Pt 7AA of the Migration Act that suggests that the Authority is unable to make findings adverse to an applicant where the delegate made a finding favourable to the applicant in relation to the same issue. In this regard, there is force in the Minister’s submission that the principles in SZBEL v Minister for Immigration[20] do not apply to reviews under Pt 7AA of the Migration Act. I note, without needing to interrogate the proposition further, that the Federal Circuit Court has accepted the proposition in such decisions as DZU16 v Minister for Immigration & Anor;[21] AFK16 v Minister for Immigration & Anor.[22]
His Honour held that “the Authority was under no obligation to offer the appellant an interview or invite him to comment prior to making an adverse finding” and that to do so, was part of the nature of the fast track system as envisaged by Pt 7AA.[23]
[17] [2017] FCA 942.
[18] BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [23].
[19] [2017] FCA 942, [59].
[20] (2006) 228 CLR 152; [2006] HCA 63.
[21] [2017] FCCA 851, [101].
[22] [2016] FCCA 1826, [11]-[12].
[23] [2017] FCA 942, [61].
These statements of principle were endorsed by the Full Court in DGZ16 v Minister for Immigration and Border Protection.[24] There, Reeves, Robertson and Rangiah JJ held[25] that the scheme of review provided by Part 7AA required that the Authority was to review for itself the material that had been considered by the delegate, and did not require it to notify an applicant if it was considering taking a different view of the matter than that taken by the delegate. Their Honours agreed that:[26]
. . . the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.
[24] [2018] FCAFC 12, [50], [70] (Reeves, Robertson and Rangiah JJ).
[25] [2018] FCAFC 12, [70], [73].
[26] [2018] FCAFC 12, [70], [74].
In DGZ16, the Full Court did not accept[27] on the facts of that case that “the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant’s case, and to provide the appellant with an opportunity to respond.” The Full Court concluded that there was no requirement in Pt 7AA, equivalent to s 425, which provided that “the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review”:
Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant.
[27] [2018] FCAFC 12, [75]-[76].
Upon the primary rule provided by Pt 7AA, the Authority is ordinarily required to conduct a fast track review ‘on the papers’ and to do so by reference to the review material[28] that is provided by the Secretary.
[28] Act, ss 473BB, 473CB(1).
Accordingly, in conducting a de novo review of a delegate’s decision, it is generally open to the Authority to disagree with the delegate’s evaluation of the material without providing to the appellant an opportunity to respond or affording him or her an invitation or hearing. In DPI17 v Minister for Home Affairs,[29] Griffiths and Steward JJ considered that the following propositions had been distilled in the High Court’s consideration of Pt 7AA in Plaintiff M174/2016 v Minister for Immigration and Border Protection:[30]
(1)as stated in the simplified outline of Pt 7AA in s 473BA of the Act, Pt 7AA provides “a limited form of review” of a “fast track decision” which is constituted by a refusal to grant a protection visa to an applicant who is statutorily designated to be a “fast track applicant” (at [1]);
(2)the task of the IAA in conducting a review of a fast track reviewable decision is not to correct error on the part of the Minister or a delegate, but rather the IAA “is engaged in a de novo consideration of the merits of the decision that has been referred to it.” The IAA must consider the application afresh and determine for itself whether the criteria for the grant of the visa have been satisfied (at [17]);
(3)the various powers conferred upon the IAA by Div 3 of Pt 7AA (including s 473DC) are conferred on the implied condition that they are to be exercised within the bounds of reasonableness, as explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (at [21]);
(4)the term “new information” must be read consistently when used in ss 473DC, 473DD and 473DE “as limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b).” These two conditions are that the information was not before the Minister or delegate when the protection visa decision was made, and the IAA considers the information to be relevant (at [24]);
(5)although there is no general requirement for the IAA to give to the applicant material provided to the IAA by the Secretary (s 473DA(2)), there is nothing in Pt 7AA to preclude the IAA from giving the whole or some part of that material to the applicant in the context of exercising the power under s 473DC(3) to invite the giving of new information and s 473DA(2) does not address what may be required of the IAA in particular circumstances in order to exercise that power reasonably ([26]); and
(6)s 473DE is concerned to ensure that the referred applicant has an opportunity to address new information that has been, or is to be considered by, the IAA under s 473DD and that would be the reason, or a part of the reason, for affirming the fast track reviewable decision (at [35]).
[29] [2019] FCAFC 43, [35].
[30](2018) 353 ALR 600, [21] (Gageler, Keane and Nettle JJ, Gordon and Edelman JJ agreeing).
A referred applicant may provide a written statement on why they disagree with the decision under review and on any claim or matter which he or she presented to the Department that was overlooked.[31] Aside from the exhaustive statement of the natural justice hearing rule, it follows that the referred applicant remains entitled to participate in that process of review.
[31]Act, s 473FB; Pt 7AA Practice Direction; see also, BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [34].
In an application for judicial review of a decision made by the Authority under Pt 7AA, the onus of demonstrating jurisdictional error lies upon the applicant who must, where relevant, establish the factual foundation for a finding on the balance of probabilities, that the Authority failed to consider whether to exercise a power conferred by Pt 7AA.[32]
[32]BYA17 v Minister for Immigration and Border Protection [2019] FCAFC 44, [35] citing BVD17 v Minister for Immigration and Border Protection [2018] FCAFC 114, [41].
Ground 1 – bias – charge of sexual abuse
In the Further Amended Application, Ground 1 reads:
The Second Respondent’s decision was infected by jurisdictional error in that its processes would give rise to a reasonable apprehension of bias by reason that it received and considered material because it was regarded by the Secretary to have been ‘relevant’, which information detailed charges of ‘persistent sexual abuse of a child’ being a 13 year old girl with whom the Applicant was alleged to have had an abusive and recent relationship over three years.
Bias had not been advanced as a ground of judicial review in either of the two earlier iterations of the application for judicial review.
The catalyst for the allegation of bias was the supply by the Secretary of material considered to be relevant for the purposes of the fast track review. In written submissions, it was put that the impugned conduct grounding the complaint was ‘the receipt and consideration by the Authority of material that was blisteringly prejudicial to the applicant.’
Apprehended bias
The parties were essentially agreed as to the applicable principles. However, the Minister submitted it was necessary to delve a little deeper into those principles than had been undertaken by the applicant’s written submissions and that the apparent lack of detail in the applicant’s submission made it necessary to identify the precise nature of the error which was the subject of complaint. The force of that submission gained support from the not infrequent observation that the application of the test can give rise to difficulty.[33] It was also confirmed by the change in the precise way that the basis for challenge was ultimately framed.
[33]See, eg ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, [35]; Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, [61]-[62]; NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118, [8].
The applicant correctly submitted that the Authority was expressly required by s 473FA(1) of the Act to discharge its function in a way that was free of bias, and that the test for making out bias was well established. The Minister observed that a provision such as s 473(1) was facultative rather than restrictive and exhorted the Authority as to the approach it should adopt in carrying out its functions when pursuing its objective of providing a limited mechanism of review.[34] The inclusion of s 473FA(1) might well be understood as an aspect of Pt 7AA that sets a boundary to those provisions which strictly circumscribe the nature of the review and provide an exhaustive statement of the natural justice hearing rule in the conduct of a fast track review.
[34] Cf Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [15] (French CJ).
The parties were agreed that where a challenge of bias was advanced as a ground of judicial review, the court was required to be satisfied that there was a ‘real possibility’[35] that ‘a fair-minded and appropriately informed lay observer might reasonably apprehend that the [decision-maker] might not bring a fair, impartial and independent mind to the determination of the matter on its merits’.[36] So much may be accepted.
[35] SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70, [25] (Cowdroy J).
[36]Minister for Immigration and Border Protection v AMA16 (2017) 254 FCR 534, [61] (Griffiths J, Dowsett and Charlesworth JJ agreeing); NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (Allsop J, Moore and Tamberlin JJ agreeing).
While in Webb v The Queen (Webb),[37] there was dissent as to the result, all members of the Court agreed that a series of decisions had settled the proper test in Australia of apprehended bias in curial proceedings as to whether fair-minded people might reasonably apprehend or suspect that a judge had or might prejudge the case. Webb was significant, and again the Court was unanimous, in confirming that the same test applied to decisions by jurors and judges alike. The Court recognised that the test was also applied to decisions made by statutory tribunals and certain identified commissions.[38] Deane J considered it was unnecessary to consider the proper formulation of the test for apprehended bias in the case of a domestic tribunal exercising non-statutory powers, but affirmed the application of the test to the holder of a statutory office who was obliged to observe the requirements of procedural fairness.[39] The Authority is established by s 473JA(1) and is conferred the statutory functions and powers in Pt 7AA of the Act.
[37](1994) 181 CLR 41, [47] (Mason CJ and McHugh J), [57] (Brennan J agreeing), [67] (Deane J), [87] (Toohey J).
[38] Ibid.
[39] (1994) 181 CLR 41, [69] (fn 7).
In Ebner v Official Trustee in Bankruptcy (Ebner), the test for apprehended bias was stated to be determined by whether: “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”:[40] In Ebner, two essential elements of the test were identified by Gleeson CJ, McHugh, Gummow and Hayne JJ as follows:[41]
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. . . Only then can the reasonableness of the asserted apprehension of bias be assessed.
See also Michael Wilson & Partners Ltd v Nicholls.[42]
[40] (2000) 205 CLR 337, [6], [33].
[41] (2000) 205 CLR 337, [8].
[42] (2011) 244 CLR 427, [31]-[33], [67]-[68] (Gummow A-CJ, Hayne, Crennan and Bell JJ).
The essentiality of satisfying each of those steps was confirmed as applying in an application for judicial review grounded upon apprehended bias under the Act: ALA15 v Minister for Immigration and Border Protection (ALA15).[43] Under the Act, despite some suggestions to the contrary, bias includes both actual and apprehended bias. [44]
[43] [2016] FCAFC 30, [36] (The Court). The case involved judicial bias.
[44]Cf AMA16 (2017) 254 FCR 534, [2] (Dowsett J); CNY17v Minister for Immigration and Border Protection [2018] FCAFC 159, [23] (Mortimer J); [123] (Moshinsky J); AZZ16v Minister for Home Affairs [2019] FCA 844, [43] (Colvin J).
In ALA15,[45] the Full Court restated the test as being whether a fair-minded and appropriately informed lay observer might reasonably apprehend that the court might not bring a fair, impartial and independent mind to the determination of the matter on its merits. This formulation of the test brings to attention the need to qualify the objective fair-minded lay observer by attributing them with knowledge such as to be appropriately informed of the relevant facts and circumstances, including importantly, knowledge of the statutory framework within which the allegation of bias is being raised. The knowledge to be attributed to that lay observer will differ where, for example, the relevant statutory framework involved a challenge to the conduct of a review under Parts 5, 7 or 7AA.
[45] [2016] FCAFC 30, [35].
The applicant submitted that the Authority was to discharge its functions in a manner both free, and in a manner which was seen to be free, from bias. Although the authority cited[46] for that proposition pre-dated the operation of Pt 7AA of the Act, the application of such principle in curial (as distinct from administrative proceedings) can be traced to Livesey v NSW Bar Association.[47] There are, however, some important distinctions to be recognised in the application of the test of apprehended bias to curial and non-curial proceedings respectively.
[46] NBMB v Minister for Immigration & Citizenship (2008) 100 ALD 118, [8] (Flick J).
[47](1983) 151 CLR 288, 293-4 (the Court) approving Reg. Ex parte Armstrong (1976) 136 CLR 248, 258-263. In Livesey, the proper formulation of the test was in fact common ground; see also RE JRL; Ex parte CJL (1986) 161 CLR 342, 351-351 (Kirby J).
In Re Refugee Review Tribunal; Ex parte H,[48] the High Court recognised some incongruity in applying a test of apprehended bias as stated in relation to curial proceedings to administrative proceedings by reason that the latter were held in private. In the case of private administrative proceedings, it was suggested that the test for apprehended bias might be formulated by reference to a hypothetical fair-minded lay person (as opposed to ‘observer’) who was properly informed as to the nature of the proceedings, the matters in issue and the conduct which was said to give rise to an apprehension of bias:
The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of “a fair-minded lay observer” when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias.
[48] (2001) 179 ALR 425, [27]-[28] (Gleeson CJ, Gaudron and Gummow JJ).
It is settled that the test to be applied in the context of administrative decision-making by a body exercising statutory powers employs a hypothetical lay person: Isbister v Knox City Council (Isbister).[49] Further, the Full Court has confirmed that this is the test is to be applied under the Act: NADH v Minister for Immigration and Multicultural and Indigenous Affairs;[50] ALA15;[51] Minister for Immigration and Border Protection v AMA16 (AMA16).[52] More recently, in MZAOL v Minister for Immigration and Border Protection,[53] the Full Court considered these principles to be well-settled.
[49] (2015) 255 CLR 135, [23] (Kiefel, Bell, Keane and Nettle JJ), [59] (Gageler J).
[50] [2004] FCAFC 328, [14] (Allsop J).
[51] [2016] FCAFC 30, [35]-[36] (The Court).
[52] (2017) 254 FCR 534, [61]-[66] (Griffiths J, Dowsett and Charlesworth JJ agreeing generally).
[53] [2019] FCAFC 68, [80]-[83] (Bromberg, Farrell and Davies JJ).
Apprehended bias is an aspect of a lack of procedural fairness. Procedural fairness ensures that parties are given a fair opportunity to have their case heard and that the decision is made in a manner that is free of bias. This requires that the decision is, and is seen to be one that is free of pre-judgment and has the appearance to a reasonable, properly informed, lay person that the decision-maker will approach their duties with impartiality.[54] As a breach of the obligation to provide procedural fairness constitutes jurisdictional error for the purposes of the s 75(v) of the Constitution,[55]this court may grant relief for a breach of that obligation.[56] Where apprehended bias exists, the decision-maker cannot fulfil his or her statutory function and, if a decision be made, will be affected by jurisdictional error, such decision being no decision at all: SZBLY v Minister for Immigration and Citizenship (SZBLY).[57]
[54]Cf SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70, [24] (Cowdroy J) citing Galea v Galea (1990) 19 NSWLR 263, 277 (Kirby ACJ).
[55] Cf SZBLY v Minister for Immigration and Citizenship (2007) 96 ALD 70, [26] (Cowdroy J).
[56] Act, s 476(1).
[57] (2007) 96 ALD 70, [26].
Yet in reply, it was suggested that the statements in CRY16 and DGZ16 were obiter dictum. In assuming the correctness of that submission as concerns CRY16, I concluded that it was preferable to afford the parties an opportunity to reflect and file submissions on this contention.
By Part 7AA, the Authority’s obligation is to conduct its review of the material that is to be supplied to it under s 473CA. As a general rule, it is to do so without accepting or requesting new information and without interviewing the applicant. The Authority is not required to give a review applicant any material that was before the original decision- maker. As has been stated, the Authority is commanded to observe the objective of conducting a review that is efficient, quick, free of bias and consistent with Div 3 of Pt 7AA: ss 473DA(2), 473FA(1).
As counsel for the Minister submitted, the Authority was to conduct its review de novo and thus was not bound by the delegate’s findings.[132] Part 7AA requires that, after a fast track reviewable decision has been made, the Minister must refer it, as soon as is reasonably practicable, to the Authority. Upon referral, the Authority must ordinarily conduct its review without accepting or requesting new information or interviewing the referred applicant: ss 473CA, 473CC(1), 473DB.
[132]Cf Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 353 ALR 600, [95] (Edelman J).
The exhaustive statement of the natural justice hearing rule provided by s 473DA, does not support the applicant’s submission that the Authority was required to afford him an interview or to obtain other new information before making a decision on review.
However, the Minister correctly accepted that power was conferred on the Authority to get new information, in writing or by interview, being information that was not before the Minister or delegate when the referred decision was made, and which the Authority considered may be relevant: ss 473DC(1), 473DC(3). A failure to do so may be shown to be legally unreasonable in some circumstances.
In DGZ16, the Full Court considered[133] that natural justice was not the appropriate starting point for an examination of whether a delegate’s decision indicated that all aspects of an applicant’s credit were at issue. The Full Court said that to do so would involve viewing the procedure established by Pt 7AA through the lens of natural justice. This may be understood as recognising that, because Div 3 of Pt 7AA is taken to be an exhaustive statement of the natural justice hearing rule, it is inappropriate to employ a broader lens of natural justice at common law.
[133] [2018] FCAFC 12, [73].
The exhaustive statement of the natural justice hearing rule established by s 473DA provides that, in general, the Authority is to conduct its review on the papers in the manner provided by Sub-div B of Div 3, Pt 7AA. Thus, to approach the task of judicial review by re-examining the delegate’s decision is to ignore that the Authority’s core function to review de novo the review material[134] provided to it and to decide whether to affirm or remit the decision under review.[135] To adopt the perspective of re-examining the delegate’s decision may extend the lens of natural justice beyond that provided exhaustively by s 473DA.
[134] Act, s 473CB.
[135] Act, s 473CC(2).
More recently, in DPI17 v Minister for Home Affairs,[136] Griffiths and Steward JJ affirmed that because s 473DA expressed an exhaustive statement of the natural justice hearing rule for the purposes of Pt 7AA, the starting point for analysis in a case which raised the ground of legal unreasonableness was not through a ‘natural justice lens’. Mortimer J, who examined the connection or relationship between legal unreasonableness and procedural fairness, accepted that some decisions cautioned against “looking at legal unreasonableness through a ‘natural justice lens’”.[137] Her Honour considered that s 473DC was a power which reflected the Authority’s obligations to afford procedural fairness, such that the power was conditioned by a requirement that it be exercised reasonably.[138] Mortimer J held that:
The jurisdictional error, if one is identified, may not be described as a denial of procedural fairness, although as the judgments in Li make clear, there may be nothing precluding that characterisation. Rather, the jurisdictional error will be a failure, in the circumstances of a particular review, to observe a condition on a power which is inherently a procedural fairness power – the condition being that it be exercised reasonably, and further, that consideration of its exercise be approached in the way required of a reasonable decision-maker in the same circumstances.
[136] [2019] FCAFC 43, [37].
[137] [2019] FCAFC 43, [78].
[138] [2019] FCAFC 43, [89], see also at [95].
Having regard to the analysis in DGZ16 and DPI17, it appears preferable in the circumstances of this case to examine the subject complaint upon principles of legal unreasonableness, recognising that the powers conferred by s 473DC to get new information, or to invite a person to provide information at an interview, or in writing, are each conditioned by a requirement that consideration of its exercise or non-exercise will be approached as a reasonable decision maker would do.
Two further overarching observations may be made. First is that DGZ16 does not decide that in conducting a fast track review the Authority is never obliged to provide the review applicant with an opportunity to respond in circumstances where it may disagree with the delegate’s evaluation of the material.[139] Second, it is possible that the Authority might be shown to have acted in a way that is legally unreasonable in the exercise or non-exercise of the discretion conferred by s 473DC.[140]
[139]DPI17 v Minister for Home Affairs. [2019] FCAFC 43, [37]-[42] (Griffiths and Steward JJ), [78]-[95], [117] (Mortimer J).
[140] DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222, [63].
The applicant’s reply submission accepted as ‘true’ that in DGZ16 the Full Court had stated that SZBEL is not the appropriate starting point. The submission did not contend that this statement was obiter dictum. Instead, the applicant submitted that the challenge made by Ground 2 did not start with SZBEL but that it ‘starts and ends in the realm of legal unreasonableness.’ The Minister maintained that the passages quoted from DGZ16 above were a direct refutation of the proposition that SZBEL was to be applied as the starting point to the consideration of legal unreasonableness in the statutory context of Pt 7AA and that there was no inconsistency in the approach taken in CRY16 and DGZ16.
I accept the Ministers submission that the holding in DGZ16 contains an express rejection of SZBEL as a starting point in the assessment whether the review of a fast track application under Div 3, Pt 7AA of the Act is affected by legal unreasonableness. I further accept that there is no inconsistency in the statements of principle expressed by the Full Court in DGZ16 and CRY16. Each of those decisions reject the application of procedural fairness principles as applied within the statutory framework of Pt 7 of the Act as the proper starting point or lens through which an assessment of procedural fairness is to be made under Pt 7AA. Once this is accepted, it must be recognised that an evaluation of a challenge based upon legal unreasonableness proceeds upon a quite different basis than occurs where SZBEL applies under Pt 5 or Pt 7. In particular, it is settled that the Authority is generally entitled to form a view on issues different to that reached by the delegate and to do so without being required to invite the applicant, either to comment or attend an interview.
The passage from DGZ16 at [72] has been endorsed in subsequent authorities and I regard it as binding on this court: Candemir v Minister for Home Affairs;[141] DPI17 v Minister for Home Affairs.[142] DYK16 v Minister for Immigration and Border Protection;[143] BVD17 v Minister for Immigration and Border Protection;[144]see also at first instance: BLS17 v Minister for Home Affairs;[145] EAJ18 v Minister for Home Affairs;[146] BWT16 v Minister for Immigration and Border Protection.[147]
[141] [2019] FCAFC 33, [27].
[142] [2019] FCAFC 43, [37]-[42], [78]-[95], [117].
[143] [2018] FCAFC 222, [60]-[74].
[144] [2018] FCAFC 114, [37]-[39].
[145] [2019] FCA 1079, [31].
[146] [2019] FCA 1057, [43].
[147] [2019] FCA 404, [34], [53].
In this case, the Authority did no more than review the country information that was already before the delegate. Put in slightly different terms, the Authority did not reach a decision on statelessness contrary to that arrived at by the delegate on the basis of other new information that had not been provided to the applicant. The Authority recognised that statelessness had been put in issue by the delegate. In short, the Authority came to a different view upon that issue but did so upon the same material. It was not obliged to invite the applicant to comment, provide information or attend an interview before reaching a contrary view. Insofar as it was suggested that in a review under Pt 7, SZBEL might compel a different result, it does not apply to the process of review under Div 3, Pt 7AA of the Act. To the contrary, both CRY16 and DGZ17 either support or require a contrary conclusion.
I am not satisfied that the Authority’s finding that the applicant was not stateless and that he had at some point secured Iranian citizenship was illogical or irrational in the sense necessary to warrant a conclusion of legal unreasonableness. Although minds might differ upon the question, upon the country information before it, the decision was not one which lacked an evident or intelligible foundation. A conclusion of legal unreasonableness occurs in rare cases and is not lightly made. It is not to the point whether a different view might have been taken by other reviewers. Nor is it to the point that the court might do so. Focus is required upon whether the decision-maker’s reasoning was open.
Mental health
Particular (b) to Ground 2 turns on the Authority’s treatment of mental health and related issues as exposed in the Reasons at [8]-[9].
The applicant’s opening written submission conceded that while findings on credibility are ordinarily the province of the decision maker par excellence, they were still susceptible to judicial review for jurisdictional error. It was also accepted that the Authority was entitled by statute to make a decision on the papers, but submitted that in certain circumstances to do so “will be demonstrative of bias that the IAA does not invite the Applicants to a hearing, as it is empowered to do by s 473DC(3)” of the Act. The suggestion of bias was not further explained.
It was further submitted that the Authority’s credibility assessments in this case had been reached without a logical or probative basis and that conclusions of this nature were pivotal to the outcome of the review.
As stated above, the Authority began its consideration of whether it was satisfied that the applicant had a well-founded fear of persecution by reference to his claims to have been severely emotionally and mentally affected by his time in detention and prison: [8]. It noted that while the applicant had been told there was nothing wrong with him he contested that view, indicating at the conclusion of his visa interview, he considered his mind had not been focused for most of the time and he had not understood things properly. The Authority recorded that the applicant had also stated his life had been difficult and that he was emotionally damaged. It also recorded that the applicant appeared to have been vague or forgetful during the interview “repeatedly answering ‘I don’t know’ or ‘I don’t remember’ to questions about his claims and his circumstances in Iran.” The Authority further recorded that the applicant appeared to have been initially unsure of the purpose of the interview. The Authority further identified the submission by his representative which referred to him as ‘a traumatised man, who was most likely suffering from mental health issues, at the time of his arrival in Australia.’ It is apparent that the Authority made a number of findings in the applicants favour in these several respects.
The Authority recorded that the applicant confirmed he had not been diagnosed with a mental illness and that, beyond the assertions of illness as made by him and his representative, there was no evidence before the Authority that the applicant suffered from any mental-health or other condition which had an impact on his capacity to participate in interviews or upon the quality of his evidence: [9]. Despite this finding, the Authority also stated that it had taken into account that the applicant had spent some time in prison and in immigration detention and the passage of time since the occurrence of the events that he was being asked to recall. Overall, the Authority did not accept that the applicant was not capable of properly participating in the interview, or that his claims to difficulty in recollecting his experiences in Iran were attributable to mental-health concerns.
Contrary to the applicant’s submissions, I do not accept that those findings were extraordinary by reason that the reviewer never met, or interviewed, the applicant. The Authority had before it the audio recording of the applicant’s interview. Reliance was placed upon WZARH v Minister for Immigration and Border Protection.[148] There the Full Court observed that the approach of listening to a tape recording was no substitute for extending an opportunity to attend an interview. However, Flick and Gleeson JJ expressly qualified their decision upon the basis that it was subject to any statutory provision to the contrary. Again, the applicant’s reliance on WZARH was subject to the very different regime established by Div 3, Pt 7AA as concerned the general obligation to decide the review on the papers and the limited circumstances in which an interview will occur.
[148] (2014) 316 ALR 389, [14], [28] (Flick and Gleeson JJ), (Nicholas J agreeing at [49]).
Contrary to the applicant’s submission, the statutory regime enacted by Div 3 of Pt 7AA does not erect a ‘broad’ starting point whereby the Authority is entitled to make a decision on the papers. Rather, the regime generally requires that such an assessment be made in that very way.[149] While the absence of an interview may well affect the quality of the quality of the decision-making and the ability of an applicant to explain the circumstances of their claim, the absence of an interview is an established feature of Div 3, Pt 7AA: AUH17 v Minister for Immigration and Border Protection.[150] Where a complaint of legal unreasonableness is grounded upon a decision not to invite a review applicant to an interview, it must be considered within this statutory framework.
[149] DGZ17, [2018] FCAFC 12, [75].
[150] [2018] FCA 388, [51]-[52] (Mortimer J).
The applicant accepted that the failure to invite him to provide new information concerning his mental state and capacity pursuant to s 473DC(3), was open on the statutory scheme established by Div 3, Pt 7AA. This concession, which was properly made, carried with it the consequence that the failure to do so could not be regarded as unreasonable or irrational, even if a different decision might have been reached by another decision-maker.[151]
[151] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99, [148].
For the reasons above, I am not satisfied that a conclusion of legal unreasonableness is open in relation to the adverse findings made concerning the applicant.
I do not consider that the Authority’s findings, either in relation to the question of statelessness or the applicant’s mental health, were legally unreasonable. Neither the finding in relation to statelessness, nor the alleged failure to invite the applicant to an interview was lacking a rational foundation, or an evident or intelligible justification.
Ground 2 is rejected.
Conclusion
The further amended application for judicial review must be dismissed.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 22 August 2019
[130] [2013] FCA 1133.
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