GNW18 v Minister for Home Affairs

[2019] FCCA 2753

FEDERAL CIRCUIT COURT OF AUSTRALIA

GNW18 & ORS v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 2753

Catchwords:
MIGRATION – Application for a Safe Haven Enterprise Visa – Authority erroneously made adverse findings as to credibility – erroneous adverse findings on credibility could have changed the result of the exercise of power – jurisdictional error established – decision quashed.

Legislation:

Migration Act 1958 (Cth), ss.473CB(1), 473DC(1).

Cases cited:

Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216.

Hossain v Minister for Immigration (2018) 359 ALR 1.

Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599.

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

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

First Applicant: GNW18

Second Applicant: GNY18

Third Applicant: GNW18 AS LITIGATION GUARDIAN FOR GNX18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: BRG 1288 of 2018

Judgment of: Judge Egan

Hearing date: 4 September 2019

Date of Last Submission: 4 September 2019

Delivered at: Brisbane

Delivered on: 26 September 2019

REPRESENTATION

Counsel for the Applicant: Mr M. Black

Solicitors for the Applicant: Salvos Legal

Counsel for the Respondents: Mr J. Byrnes

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the further amended application for review filed on 4 September 2019 be granted.

2. That the decision of the Immigration Assessment Authority made on 27 November 2018 be quashed.

3. That a writ of mandamus issue directed to the Immigration Assessment Authority requiring it to determine according to law the applicants’ application for review of the second respondent’s decision, and that the matter be remitted to the Immigration Assessment Authority for rehearing.

4. That for the purpose of the Immigration Assessment Authority determining the applicants’ application, that it be constituted differently from the Authority which handed down the decision on 27 November 2018.

5. That the first respondent pay the applicants’ costs of and incidental to the proceedings fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1288 of 2018

GNW18

First Applicant

GNY18

Second Applicant

GNW18 AS LITIGATION GUARDIAN FOR GNX18

Third Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant (male applicant 1) and the second applicant (female applicant 2) are citizens of Iran. They arrived in Australia on 9 September 2013. The third applicant is a child born of the union of the first applicant and the second applicant on 27 November 2013.

2. On 15 February 2017, the applicants lodged a combined application for a Safe Haven Enterprise Visa (SHEV).

3. On 29 March 2018, a delegate of the Minister refused to grant the visa. After such refusal, the matter was referred to the Immigration Assessment Authority (the Authority) for review.

4. On 27 November 2018, the Authority affirmed the decision of the delegate to refuse the SHEV.

5. On 14 December 2018, the applicants filed an originating application for review of the decision of the Authority.

6. On 4 September 2019, pursuant to leave granted by the Court, the applicants filed a Further Amended Application for Review. The grounds for review are as follows:

   Grounds of application

   1. The Immigration Assessment Authority and the delegate of the Minister for Home Affairs erred in law in making his decision.

   1. The decision of the Immigration Assessment Authority (the “Authority”) is affected by jurisdictional error because it was not given, or did not consider, all “review material” as required by ss 473CB and s 473DB of the Migration Act 1958.

   Particulars

   1.1. On about 18 July 2014, the Third Applicant’s agent (the Refugee and Immigration Legal Service) gave to the Minister’s Department a letter dated 8 July 2014 in relation to a protection visa application on behalf of the Third Applicant, along with the following documents (together, the “2014 Documents”):

   (i) A Form 956 (Part A application for a protection visa).

   (i) A Form 956 (Advice by a migration agent).

   (ii) A passport sized photo of the Third Applicant.

   (iii) A From 866 (Part B application for a protection visa).

   (iii) A Form 866 (Part A and B application for a protection visa).

   (iv) A statutory declaration made by the First Applicant on 28 May 2014.

   (v) A copy of the Third Applicant’s birth certificate.

   1.2. At all relevant times, the Secretary of the Minister’s Department had possession or control of the 2014 Documents.

   1.3. On about 13 February 2017, the Applicants’ agent (Hayes Australia Migration and Visa Services) gave to the Minister’s Department an application for a Safe Haven Enterprise Visa, along with various supporting documents.

   1.4. On about 29 March 2018, a delegate of the Minister made a decision rejecting the Applicants’ application for a Safe Haven Enterprise Visa (the “Fast Track Reviewable Decision”).

   1.5. On about 4 April 2018, the Secretary of the Minister’s Department (or a delegate thereof) referred the Fast Track Reviewable Decision to the Authority but, in doing so, the Secretary or delegate failed to comply with s 473CB(1) of the Migration Act 1958 as follows:

   (i) The 2014 Documents were material that had been provided by the Applicants to the person making the decision before the decision was made, so the failure to give the 2014 Documents to the Authority was a breach of s 473CB(1)(b).

   (ii) Alternatively, the Secretary or delegate failed to take any reasonable steps to identify or consider whether the 2014 Documents were (or included) material that should have been given to the Authority under s 473CB(1)(e).

   (iii) Alternatively, the Secretary or delegate’s conclusion that the 2014 Documents were not relevant to the review for the purposes of s 473CB(1)(e) (if such a conclusion was reached) was legally unreasonable.

   1.6. In the alternative, if the 2014 Documents were in fact given to the Authority, then the Authority failed to consider the 2014 Documents as required by s 473DB(1) of the Migration Act 1958.

   1.7. The 2014 Documents were material to the Authority’s review, because if the 2014 Documents had been properly given to and considered by the Authority this could realistically have resulted in a different decision.

   2. The decision of the Immigration Assessment Authority (the “Authority”) is affected by jurisdictional error because it unreasonably failed to get new information, or consider whether to get new information, under s 473DC of the Migration Act 1958.

   Particulars

   2.1. In making its decision, the Authority relied inter alia on findings that:

   (iii) There were “significant discrepancies in the address histories provided by the applicants” which “significantly undermine[d]” the Applicants’ claims (Authority’s reasons, paras 12-13).

   (iv) “[E]arlier in the protection visa process the applicants presented a quite different reason for their decision to leave Iran” (namely, that the Second Applicant’s “family was involved in illegal drug running and weaponry”) and that the First Applicant’s “later claim” as set out in his 2017 statement was “a significant change in his evidence” (Authority’s reasons, paras 21-22).

   2.2. The issue of whether there were “significant discrepancies in the address histories provided by the applicants” and, if so, how that should affect the making of the decision:

   (iii) Was not raised or considered by the Minister’s delegate either in the delegate’s statement of reasons or at any time prior to the making of the delegate’s decision.

   (iv) Was not raised by the Authority with the Applicants at any time prior to the making of the Authority’s decision.

   2.3. The issue of the Second Applicant’s family being “involved in illegal drug running and weaponry”:

   (iii) Was addressed by the Minister’s delegate by the delegate noting that it had not been relied on as a ground for protection and so the delegate would “not be considering this element further” (CB227).

   (iv) Was not raised by the Minister’s delegate or by the Authority as being a factor relevant to credibility or as being a factor showing a “significant change in … evidence” at any time prior to the making of the Authority’s decision.

   2.4. The Authority had the power under s 473DC (albeit not a duty) to get any documents or information that was not before the Minister (or Minister’s delegate) and which the Authority considered to be relevant.

   2.5. If the Authority had exercised its power under s 473DC to get new information, the Applicants could have relied on the 2014 Documents (referred to in para 1.1 above) which included a May 2014 statutory declaration

   2.6. The Authority unreasonably failed get, or consider whether to get, any new information under s 473DC about the issues outlined in para 2.1 above.

7. At [2] of its reasons, the Authority stated that it had had regard to the material provided to it by the Secretary pursuant to the provisions of s. 473CB of the Migration Act 1958 (Cth) (the Act). That statement is of particular relevance to Ground 1 of the application for review, particularly in the light of the decision of the Full Court of the Federal Court in Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216 at [45] per Rares and Robertson JJ where it was said:

   [45] What is required is the reality of consideration by the decision-maker. On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection[2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being “apt to encourage a slide into impermissible merit review”: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.

8. The claims of the applicants are as set out in [9] of the reasons of the Authority, and are as follows:

   Applicants’ claims for protection

   9. Applicant 1 is the primary applicant in this matter. Applicant 2 makes her own claims and claims as a member of Applicant 1’s family as does Applicant 3. Written statements of claims were provided for all three applicants with the combined SHEV application. Generally, the three applicants rely on the incidents set out in detail in Applicant 1’s statement which can be summarised as follows:

   ·He and his wife (Applicant 2) left Iran as they feared members of his wife’s family. He is a non-Sayyid and his wife is a Sayyid. He claims Sayyids forbid outside marriage in order to keep the bloodlines pure.

   ·Applicant 2’s father consented to their marriage but passed away before they could be married. Instead, he sought permission from his wife’s mother and one of her brothers. They attended the secret wedding along with his wife’s sister, N, as witnesses.

   ·The day after their wedding, his mother-in-law’s house was set alight and they believe it was committed by his wife’s younger brothers and cousins. Her brothers would have told the family members and cousins of their marriage so they couldn’t be blamed and have their own prospective marriages to Sayyid women put at risk.

   ·Later that year, Applicant 1’s car was set alight and was repeatedly vandalised over the next few months. They believe his wife’s family and cousins were doing this to intimidate him and make him divorce Applicant 2.

   ·One day, Applicant 1 was attacked by masked men outside of his home with a large sword and received a large wound to his head. The attackers had their faces covered but they believe the people were his wife’s cousins.

   ·In around March 2011 they moved to Mahshahr to get away. They didn’t tell anyone in Applicant 2’s family where they were going.

   ·On 23 April 2011, his wife’s brother, the one who had supported their marriage, was found murdered. They believe he was murdered by his wife’s cousins in retaliation for participating in their wedding.

   ·By the beginning of 2012 they started to receive threatening phone calls.

   ·Applicant 1 was attacked with a rod and brick. They had their faces covered but he believes it was his wife’s cousins who attacked him. His wife was verbally abused and punched, and told they would throw acid in her face because she married a non-Sayyid and brought shame on the family.

   ·In May 2012, they moved again to Bushehr to avoid the harassment and physical attacks. Applicant 2 became pregnant.

   ·The outside of their house was shot at. Phone calls to Applicant 2 threatened that if she had the child they would kill them both.

   ·On 4 July 2013 they fled Iran in fear of their lives.

   ·They believe Applicant 2’s family were always able to find them because a port director who had access to worker records was passing the information to Applicant 2’s cousins.

   ·They did not report the incidents to police as Sayyid people are powerful and have powerful contacts within the government and police. The government and police do not get involved in family and tribal disputes.

   ·His wife’s family will still be seeking retribution and revenge particularly as she is still married to a non-Sayyid and has a child from this marriage.

   ·His son will be killed because his wife’s relatives are dangerous people.

   ·Applicant 3 will be persecuted because he has been born in Australia and he will be automatically considered a foreigner and not an Iranian citizen.

   ·The family was affected by the Department’s data breach.

9. As to Ground 1 of the application for review, such Ground constitutes an assertion that the Authority failed to consider certain documents referred to as ‘the 2014 documents’. Those documents, as listed in Particular 1.1 of Ground 1, significantly included a statutory declaration made by the first applicant on 28 May 2014. [1] In such statement, the first applicant, under the heading ‘Problems in Iran’ on page 32 thereof, said as follows:

   [1]        Pages 31 – 35 of the Attachments to the Affidavit of Georgina Ellis filed on 2 August 2019.   

   12. My wife and I fled Iran in fear of our lives as my wife’s relatives were in

   13. In approximately 2006, I meet my wife after being introduced through friends. Soon after meeting I found out that my wife was an Arab and Sayyid.

   14. My wife informed me that as a Sayyid it is customary for a woman such as my wife to marry her cousin. Sayyid’s do not want their daughters to go to a stranger should remain with a person who is also a Sayyid. They don’t consider woman as a human beings they consider them as an object.

   15. My wife told me that this had happened to her sister. Her sister had married her cousin as their tradition required. During my wife's sister marriage was brutalised and harassed and tortured and this lead to her sister developing a condition during her pregnancy and this caused her and her baby died.

   16. My wife told me that as an educated women who has a degree and masters she was not happy to marry and end up like her sister. Even my wife's father was against this sort of marriage for my wife because of what had happened to his daughter.

   17. On 3 January 2010, my wife's father passed away. After that happened became really concerned because she lost her supporter and we were afraid that we would be forcefully given to her cousin. She had four brothers and one brother was advocating for me.

   18. One day in a very secret way I went and asked her mother and brother for my wife's hand in marriage.

   19. On 22 April 2010, we got married in secret at the registration office with only a few witnesses. The people present were her mother, sister and brother.

   20. On 23 April 2010, my wife's mother's house was placed on fire after her two brothers found out we had gotten married. They were unhappy with our marriage because they wanted her to marry her cousin.

   21. In approximately July 2010, my car was set on fire. The car was parked at house on the street. During the next few months my car was continuously vandalised. We believe that my wife's family and cousins were doing this in order to intimidate me and make me divorce my wife.

   22. One day I was attacked by a number of people in front of my house with a sword. I received a large cut to my head. I still have the scar. The people who attacked me had their faces covered but I believe the people were my wife's cousins.

   23. As a result of the continuing harassment we knew our lives were in danger and we decided to leave and live in a different area.

   24. In approximately March 2011, we moved to Mahshahr.

   25. After we moved my wife found out that her older brother, who had attended our wedding, had disappeared. On 23 April 2011, my wife's brother's body was found by the riverside. We believe my wife's relatives had killed him.

   26. For approximately a year in order to make sure no one found out our address my wife did not meet her mother. They soon again discovered where we were living and started to contact us by phone.

   27. In February 2012, they again found me and I was attacked. I was getting out of my car when I was hit with a rod and brick. The people had their faces covered but I believe they were my wife's cousins.

   28. They also approached my wife and started to verbally attack her and punched her. They threatened that they would throw acid on her face because she had brought shame to her family.

   29. In May 2012, we moved again to avoid the harassment and physical attacks. We moved to Bushehr.

   30. On 16 March 2013, we discovered my wife was pregnant.

   31. In April 2013, they again found me and shot at our house. They then started to contact us by phone and threaten my wife that is she had the child they would kill both her and the child.

   32. As a result of the harassment and threats my wife became very sick and started to bleed. I knew that my wife's family was never going to stop and would continue to pursue us until they kill me, my wife and her unborn child.

   33. On 4 July 2013, we fled Iran in fear of our lives.

10. The first applicant’s expressed fears arising out of his cross-religious marriage to his wife, as were set out in his statement dated 28 May 2014,   was the subject of consideration, and the making of erroneous findings, by the Authority at [21] and [22] of its reasons, where it was said:

    [21] Thirdly, information before me indicates that earlier in the protection visa process the applicants presented a quite different reason for their decision to leave Iran. On 4 November 2014 Applicant 1 provided information to the Australian Federal Police (AFP) that the reason they came to Australia was because Applicant 2’s family was involved in illegal drug running and weaponry.

    [22] Their later claim – that they feared Applicant 2’s relatives because of their opposition to the applicants’ Sayyida/non-Sayyid marriage – is a significant change in his evidence. When questioned about that earlier evidence, Applicant 1 stated in his SHEV interview that guns aren’t a big deal over there and when he was interviewed by the AFP on Christmas Island he told them he didn’t know anything more about Applicant 2’s family’s involvement in those matters just that they were dangerous people.

11. It is clear from a reading of the above paragraphs in the reasons of the Authority that the Authority was in error when it found, as it did at [22], that the applicants’ fears of violent retaliation by applicant 2’s relatives was a ‘later claim’. It is clear that such claim had been made in the first applicant’s statement of 28 May 2014, that being at a much earlier time than either the 4 November 2014 statement to the AFP, or when it was later referred to by the first applicant in paragraphs 6 – 24 inclusive of his statement dated 4 February 2017, [2] or by the second applicant in paragraphs 7 – 19 of her statement dated 4 February 2017. [3]

    [2]        CB pages 149 – 151.

    [3]        CB pages 152 – 153.

1. The Authority, at [27] of its reasons, made adverse credibility findings against the applicants as follows:

   [27] Overall, having considered the entirety of their evidence, I am not satisfied that the applicants have provided a truthful account of the circumstances which led them to leave Iran. I have had regard to the generally unsatisfactory nature of their evidence and when this is taken into consideration along with the various discrepancies, changes, omissions and implausible aspects of their claims, I do not accept the applicants’ account of what led them to leave Iran. The assertion that it is customary for Sayyids to marry only within the Sayyid culture has been repeatedly made both by, and on behalf of, the applicants but as the delegate noted, no country information has been provided in support of the claim that they will suffer persecution amounting to serious harm from state and non-state actors on account of the marriage between a Sayyid and a non-Sayyid. In any case, even if I were to accept that members of Applicant 2’s family did not support her marriage to Applicant 1, I do not consider their claims about what flowed from this to be credible.

2. It made such finding having earlier identified five respects in which it cast doubts upon the applicants’ credibility – namely at [12], [15], [21], [24] and [25] of its reasons. It is of significance that the applicants’ claims concerning their fearing serious harm from the second applicant’s family, if they were returned to Iran, were central to three of the five bases on which the Authority arrived at its adverse credibility findings – namely those findings advanced by the Authority in [15] – [20], [21] – [23] and [25]. As such, the applicants’ claims regarding serious harm being inflicted upon them by the second applicant’s family, which were erroneously rejected by the Authority as being incredible, constituted the majority of the bases upon which the Authority made its adverse credibility finding against the applicants.

3. The Authority’s error at [22] cannot be isolated from its other related adverse findings as last referred to. The Authority formed an adverse view about the applicants’ claims in large part because it erroneously rejected the applicants’ claims about fearing harm from the second applicant’s family as being claims of recent invention. Such erroneous finding so coloured the Authority’s appreciation of each of the applicants’ claims concerning the second applicant’s family that such finding could not but have influenced the Authority when arriving at its final decision. That error was fundamental to the Authority’s decision making process, and erroneously could have deprived the applicants of a successful outcome. As was said by Edelman J in Hossain v Minister for Immigration (2018) 359 ALR 1 at [69] – [72] inclusive:

   [69] The decision in SZIZO illustrates a common manner in which this concept of materiality is part of the implication that a decision will not be invalid or beyond authority where the error could not have affected the result of the decision. Another example was contemplated in the joint judgment in this Court in Kirk v Industrial Court (NSW). In that case, the erroneous reversal of the onus of proof was a jurisdictional error. However, the joint judgment observed that there may be some departures from the rules of evidence that would not warrant the grant of relief in the nature of certiorari. In other words, the joint judgment contemplated that a non-material departure from the rules of evidence might not be either a jurisdictional error or a material error of law on the face of the record.

   [70] This approach to materiality as part of the implication concerning when an action by a decision maker will go beyond power can also be seen in the classic description by this Court of the range of possible jurisdictional errors in Craig v South Australia. In that case, the Court gave examples of errors of law by an administrative tribunal that could be jurisdictional errors: identifying the wrong issue; asking the wrong question; ignoring relevant material; relying upon irrelevant material; and, in some circumstances, making an erroneous finding or reaching a mistaken conclusion. Speaking of the usual implication that arises from the statute, the Court said that if one of these errors is made:

   and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

   [71] In Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ reiterated the usual implication that for an error to be jurisdictional, what “is important” is that the error is made “in a way that affects the exercise of power”. More recently, in a context relevant to the availability of relief under s 75(v) of the Constitution in light of s 474 of the Migration Act, Gageler and Keane JJ described jurisdictional error as “a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act”.

   [72] In summary, although the issue will always be one of construction of the express or implied terms of the statute, an error will not usually be material, in this sense of affecting the exercise of power, unless there is a possibility that it could have changed the result of the exercise of power. In other words, materiality will generally require the error to deprive a person of the possibility of a successful outcome. There may be unusual circumstances where an error is so fundamental that it will be material whether or not a person is deprived of the possibility of a successful outcome. One circumstance, for reasons that could include respect for the dignity of the individual, may be an extreme case of denial of procedural fairness. Another may be the circumstance discussed by Nettle J, where a decision maker fails to exercise jurisdiction to decide a question according to the applicable criterion. No such circumstances arise on this appeal.

4. The Court further relies upon the judgment of Bell, Gageler and Keane JJ in  Minister for Immigration and Border Protection v SZMTA (2019) 363 ALR 599 at [45] and [46] where it was said:

   [45] Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.

   [46] Where materiality is in issue in an application for judicial review, and except in a case where the decision made was the only decision legally available to be made, the question of the materiality of the breach is an ordinary question of fact in respect of which the applicant bears the onus of proof. Like any ordinary question of fact, it is to be determined by inferences drawn from evidence adduced on the application.

5. The Court finds that the error on the part of the Authority was jurisdictional in nature. It matters not, in the circumstances of this matter, whether the error arose because the Authority had had no regard to the “2014 Documents”, perhaps because it didn’t read them, or whether its consideration of them, and of the contents of the first applicant’s statutory declaration of 28 May 2014 in particular, lacked an appropriate engagement with the evidence such that it could not be said that the Authority had, “as a matter of substance”, had due regard to such evidence, and to the representations or submissions made about it.

6. As to Ground 2 of the application for review, it is asserted that the Authority acted unreasonably in failing to obtain new information pursuant to the provisions s. 473DC(1) of the Act. That section provides as follows:

   (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that:

   (a) were not before the Minister when the Minister made the decision under section 65; and

   (b) the Authority considers may be relevant.

7. The applicants assert that the Authority ought to have sought further “new information” concerning:

   a)“significant discrepancies in the address histories provided by the applicants”; [4] and

   b)information relating to the earlier stated reason for the applicants having decided to leave Iran. [5]

   [4]        [12] of Authority reasons at Court book page 263.

   [5] [21] and [22] of Authority reasons at Court book page 264 – 265.

8. Whether or not the Authority fell into error in failing to consider the exercise of the power in s. 473DC(1) is based upon a consideration of whether no other reasonable decision maker would have made a different decision. As was said by Allsop CJ in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]:

   [21] The difficulty with the reasoning is that it is expressed as the primary judge’s view as to what was reasonable. He, himself, makes an evaluation of what is necessary for the protection of the Australian community, principally, if not wholly, however, by reference to the young children in Mr Stretton’s immediate family. It would seem that this approach was brought about by a view of the need for the assessment to be objectively unreasonable. This does not carry with it the authority for the Court to reach its own view of what is reasonable or not, or what is necessary, and then, without more, to supplant the view of the Minister. It is not a correct approach for the Court on judicial review to assess the lawfulness of the decision under s 501 by asking whether the exercise of discretion was necessary for the purpose. That an assessment whether the decision-maker’s conclusion was legally unreasonable may involve some consideration of disproportionality does not authorise the Court to decide for itself what is necessary for the relevant purpose and to declare a decision beyond that assessment as unreasonable. The correct question, or perspective, if one is looking at the outcome in question, is not whether the Court thinks the decision is reasonable, or necessary for the purpose, or not, as the case may be; rather it is whether a decision-maker could reasonably come to the conclusion. Depending upon the nature of the decision, its attendant considerations and the statute in question, the Court may or may not have a degree of familiarity and confidence in assessing how a decision-maker ought to approach the matter. The decision and statutory context in Li was an example of this. Here, the decision was not a procedural decision; it was a substantive one concerned with an evaluation of the protection of the Australian community by a Minister of the Crown, personally.

9. Each of the claims made by the applicants in Ground 2 are without merit. It was for the Authority to properly assess whether it ought to seek out any new information or not. That it considered that it needn’t do so was unremarkable.

10. It cannot be said that no other reasonable decision maker would not have made the same decision that the Authority did to not consider exercising the power to obtain new information. [6] The Authority closely considered all of the evidence and submissions made to it. It was not bound to seek out such information.

    [6]        Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130].

11. The decision was not legally unreasonable, or one lacking an evident and intelligible justification as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li where it was said:  [7]  

    [7] (2013) 249 CLR 332 at [66] and [76].

    [66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

    …

    [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

12. This ground is without merit.

13. For the reasons of the Court as to Ground 1 of the application for review, the decision of the Authority made on 27 November 2018 is quashed and the Court makes orders accordingly.

14. The Court will hear the parties as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate: 

Date: 26 September 2019