SZSMU v Minister for Immigration
[2015] FCCA 3373
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3373 |
| Catchwords: MIGRATION – Protection visa application – review of decision of an officer of the Department of Immigration and Border Protection under the Protection Obligations Evaluation process – whether the officer was persuaded by the previous decision to refuse to grant the applicant a visa – the use which may be made of the reasons for a previous decision – whether the officer’s decision was affected by bias – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.46A |
| Coal & Allied Operations Pty Ltd v Australian Industrial Relations Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615 |
| Applicant: | SZSMU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | CA SHIELDS IN THE CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
| File Number: | SYG 2588 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 7 December 2015 |
| Date of Last Submission: | 17 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr S. Hodges, Solicitor |
| Solicitor for the Respondents: | Ms L. Buchanan, Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2588 of 2015
| SZSMU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| CA SHIELDS IN THE CAPACITY AS INDEPENDENT PROTECTION ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is a citizen of Iran who arrived in Australia by boat and without a visa on 14 November 2011. As such, he was not entitled to apply for a protection visa unless the Minister exercised his dispensing powers under s.46A of the Migration Act 1958 (Cth). Those powers are non-compellable.
The applicant did, however, make claims to be owed protection by Australia. Those claims were assessed as part of the process by which the Minister considered whether to exercise his dispensing powers. The first part of that process was an assessment by an officer of the Department of Immigration in what was called a Protection Obligations Evaluation (“POE”). The second step in the process was called an Independent Protection Assessment (“IPA”).
The recommendation made in each of those steps was that the applicant not be recognised as a person to whom Australia owed protection obligations. The applicant successfully sought judicial review in respect of the second step and, on 10 December 2013, this Court made a declaration that the second step was affected by an error of law.
The applicant’s claims were then considered by another officer of the Department. It is the recommendation of that officer that is the focus of these proceedings.
The applicant’s claims for protection were accurately summarised in his written submissions to this Court as follows (citations omitted):
[9]The applicant is a citizen of Iran. … the applicant is recorded as having fears of harm at the hands of his former employer. The applicant claimed that the company was owned by a member of the Basij and at the other employees were members of the Basij. The applicant recounted allegations of incidents at his place of employment and or associated with his employment which he asserted would draw him to the unfavourable attention of the Basij.
[10]… the applicant alleged that his family had been involved in politics for a long time, his mother disappeared when he was fourteen years old and that his uncles and sisters fled and obtained asylum in the United States.
[11]… the applicant claimed that he was a Christian convert since arriving in Australia and his practice of Christianity would be known to the authorities in Iran.
The officer who conducted the second assessment after the Court’s decision accepted that the applicant had an adverse family background but otherwise rejected his claims and found that the applicant would not be of any adverse interest to the authorities in Iran.
Consideration
There were five grounds in the application. The applicant abandoned grounds 1, 4 and 5. Grounds 2 and 3 relied on the same essential argument and, for that reason, can be dealt with together.
The officer interviewed the applicant prior to making a recommendation. The reasons for the recommendation include the following summary of what occurred at that interview:
I said the question of [the applicant] understanding these assessments [i.e. the previous recommendations] was relevant because, although I am making a fresh decision on his case, I will have regard to the reasons contained in the primary and the review decisions. I said I have considered in detail the reasoning contained in those decisions and found it persuasive. I asked the claimant if there are reasons why he disagrees with those findings or why I should make a different finding.
…
I noted this issue [conversion to Christianity] had been discussed with him by the reviewer [i.e. on the IMA] who examined his case. A number of aspects of his claimed conversion had been discussed, and the reviewer found the conversion was not genuine. Two years have now elapsed since that decision, and I explained I am now trying to gauge whether he is a genuine convert.
…
I commented that when he first claimed protection, it was based on the photograph on his mobile phone of a Basij hitting a political protestor who he later learned was his employer. I noted that in the first assessment of his claims, it was concluded that this claim was not credible. I noted that it was again discussed during his review, and the claim was again found to be not credible. … I asked the claimant if he wanted to make any comments about that or tell me why he might disagree with the findings that the claim is not credible.
…
I said I thought the reasons given in the previous decisions were persuasive. …
The applicant argued that these passages revealed two matters: first, that the officer offended the rule in Tennakoon v Minister for Immigration & Multicultural Affairs [2001] FCA 615 (“Tennakoon”) and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 (“Coal & Allied Operations”). Secondly, he argued that they supported a finding of a reasonable apprehension of bias.
The applicant’s reliance on Tennakoon and Coal & Allied Operations is misplaced. The first of those cases turned on the content of the obligation of the Migration Review Tribunal to “review” a decision of a delegate (Tennakoon at [15]) and the second turned on the content of a statutory appeal (Coal & Allied Operations at 203 [12]-[13] (Gleeson CJ, Gaudron and Hayne JJ)). The distinction between those cases and the present case was pointed out to the applicant’s solicitor at the hearing of this matter and leave was granted to file further submissions addressing the distinction and any ramifications of it.
In his supplementary submissions, the applicant argued that there was a principle that the reasons for the decision of one decision maker should not play any operative part in the reasons of another. He relied on the decisions in Collins v Minister for Immigration (1981) 58 FLR 407 (“Collins”), NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734 (“NANX”), SZHSE v Minister for Immigration & Multicultural Affairs [2006] FCA 1459 (“SZHSE”) and SZKOX v Minister for Immigration & Border Protection [2015] FCA 990 (“SZKOX”) as well as Sobolevea v Minister for Immigration & Multicultural Affairs [2001] FCA 528; 113 FCR 353 (“Sobolevea”). None of those cases assists the applicant.
Collins concerned a decision in which the primary judge had given weight to the fact that the Minister had made a particular decision rather than considering the reasons for that decision. The Court distinguished the circumstances where the reasons themselves are considered:
… Moreover, we do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the Tribunal because of the fact that the Tribunal is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the Tribunal may give weight to the Minister’s reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. …
That passage is contrary to the applicant’s argument.
In NANX, Gyles J found that the reasons for the previous decision were considered rather than the fact of the decision.
In SZHSE, Nicholson J found that earlier findings were utilised for the purpose of explaining the development of the application and were not on the face of the reasons the source of any findings and did not have any constraining effect upon the second Tribunal in their terms.
In SZKOX, Reeves J rejected the contention that the Tribunal had placed over reliance on earlier reasons.
In Soboleva, Moore J rejected an argument that the Tribunal erred by failing to consider earlier, positive, findings.
Although neither party referred to it, the decision in Minister for Immigration & Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 is instructive. The Full Court of the Federal Court had found that the Tribunal’s decision was affected by an error of law and so remitted the matter to the Tribunal for redetermination. However, the Court was concerned to preserve the largely favourable factual findings that had been made by the Tribunal and so, ultimately, ordered that the matter be remitted to the Tribunal as originally constituted. The High Court found that this order was made in error. Critically, the ultimate issue for the Tribunal was its satisfaction that a particular criterion had been met and that had to be formed on the material available to it at the time of the decision: see Gleeson CJ at [18], Gummow and Hayne JJ at [77]. Justices Gummow and Hayne also discussed the close, if not inseparable, relationship between findings of fact and the Tribunal’s appreciation of the principles of law as disclosed by the decision in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323. However, the decision, like those relied on by the applicant, turned on the statutory context in which the decision was, or was to be made.
All of these cases also involved the process of “review” of an earlier decision. It is at least arguable that the different statutory context relevant to these proceedings means that none of these cases has any relevance to this case. However, it is not necessary to decide that issue. That is because, even accepting the applicant’s proposition of law, the officer who made the recommendation did no more than indicate to the applicant that it found the earlier reasoning persuasive and then gave the applicant an opportunity to address that issue. As the Full Court explained in Collins, there is no general prohibition on referring to the reasons of another decision maker.
The claim of apprehended bias must also fail. In order to succeed, the applicant must establish that a fair minded lay observer might reasonably apprehend that the officer might not bring an impartial mind to the resolution of the question. In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 the Court added:
… Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover – and on this the parties are in substantial agreement – regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned.
(Citations omitted)
Here, there was no express statutory process, only one that was established in order to assist the Minister in respect of what to consider exercising his dispensing power under s.46A of the Act. There was no contradictor; however, there was an obligation to afford procedural fairness: Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319. As part of that obligation, the officer was obliged to inform the applicant of matters that might be relied on that were adverse to his interests. That is precisely what the officer was doing when she referred to the earlier decisions at the interview. A fair minded lay observer with knowledge of the processes involved would understand that the officer was entitled to read all of the material and was obliged to inform the applicant of adverse matters. There is no room to argue, in my view, that in spite of this knowledge, the observer might reasonably apprehend that the officer might not be impartial.
For those reasons, the second and third grounds are rejected.
Conclusion
The officer’s recommendation is not affected by any error of law or denial of procedural fairness. The application must be dismissed.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 21 December 2015
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