FEDERAL COURT OF AUSTRALIA

BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT J:

1    I have read the reasons prepared by Charlesworth J. Her Honour has sufficiently identified the facts of the case and the relevant legislative framework. The primary issue concerns the nature of the review to be conducted by the second respondent (the “Authority”) pursuant to s 473CC of the Migration Act 1958 (Cth) (the “Migration Act”). The Authority has filed a submitting appearance, save as to costs.

AT FIRST INSTANCE

2    At first instance, the appellant submitted that the Authority had fallen into jurisdictional error by going beyond the ambit of the review prescribed by s 473CC. Counsel submitted that such review was quite different in nature from other reviews prescribed by the Migration Act, and that, in particular, such review was not to be a “full merits review”. It seems that the appellant contrasted a “full merits review” with a “limited review”, the latter being dependent upon the demonstration of error. The primary error by the Authority is said to have been its rejection of the appellant’s claim to have been threatened, a claim which, it is said, was accepted by the delegate, although such acceptance was qualified, in that the delegate concluded that the threats had not been to the extent claimed by the appellant.

3    The first respondent submitted that the Authority’s obligation was to review the decision, and that the word “review” in s 473CC should be taken to have the same meaning as it carries in other review provisions in the Migration Act. The first respondent submitted that in all such cases, the reviewer must identify the correct or preferable decision, on the material before it. The primary Judge effectively accepted the first respondent’s submission.

THE APPEAL

4    The grounds of appeal are as follows:

The Federal Circuit Court of Australia erred in:

a.    holding that, on the proper construction of s. 473CC of the Migration Act 1958 (Cth), the review to be undertaken by the Second Respondent was "the same form of review, as the AAT under the Act" (at [100], [103]), being a fresh consideration of the application ; and

b.    not holding that the review was restricted to the correction of error in relation to the issues considered by the delegate, subject to the Second Respondent's exercise of its discretionary powers under Part 7AA; and

c.    thereby not finding that the Second Respondent had committed jurisdictional error by constructively failing to review (within the meaning of s. 473CC) the fast track reviewable decision referred to it on 22 April 2016.

5    In his written submissions on appeal, the appellant submitted:

26.    In this respect, the learned Circuit Court judge has ignored the significant differences between the context and provisions relating to a review conducted under Parts 5 and 7 and that conducted under Part 7AA. In respect of the Authority:

26.1    While not conclusive, the review is expressly described by the Act as "limited" and being conducted "on the papers".

26.2    The review is not voluntarily undertaken by an applicant. It is a compulsory aspect of the process of a "fast track applicant" applying for a visa. Once application is made and determined adversely, there must being a referral under s. 473CA. It would be perverse that it was Parliament's intent that a "review" under s. 473CA could rob an appellant of any positive benefits of a decision.

26.3    A review is conducted by "considering the review material ... provided to" the Authority.

26.4    There is expressly stated to be no duty to obtain "new information". Indeed, the Authority is forbidden from otherwise considering "new information" except in "exceptional circumstances".

26.5    The Authority is not obliged to give notice of adverse issues. The common law rules of natural justice are stated to be exhaustively stated by Division 3.

26.6    The Authority is not obliged to conduct an oral hearing. This restricts the demeanour (and accordingly credibility) findings that may be made by the Authority.

26.7    The Authority has no power to set aside a fast track reviewable decision and substitute a new decision, and the power conferred on it to remit a decision with directions is capable of being, and has been, limited by regulations. The powers under review (in subs. 473CC(2)) are limited to affirming the decision or remitting it for reconsideration. The learned Circuit Court judge appears to have given no consideration to this factor.

27.    By the above provisions, the review must necessarily be more limited than that conducted under Parts 5 or 7. In particular, the restriction on the provision of material and the powers that are given to the Authority do indicate that the review was intended to only be in respect of the issues that the delegate considered dispositive in relation to the application. His Honour's suggestion that there is a full panoply of powers is in error.

(Footnotes omitted.)

6    The references in para 26.1 to “limited review” and review “on the papers” are based upon s 473BA of the Migration Act. This section provides a simplified outline of Part 7AA. In other words, it purports to summarize the effect of the provisions in that Part. The terms “limited review” and review “on the papers” are not terms of art. To say that a review is “limited” says nothing about the nature of the limitation. As to review “on the papers”, that term also appears in the heading of Subdivision B, containing s 473DB. That section provides that the Authority is to review the delegate’s decision by considering the material provided pursuant to s 473CB, and without requesting new information, or interviewing the relevant applicant. However the provisions of s 473DB are “subject to this Part”.

7    The material provided pursuant to s 473CB is not necessarily limited to the material which was before the delegate. The Secretary is obliged to forward all material in his or her possession, which material he or she considers to be relevant to the review. Further, Subdivision C contemplates that in some circumstances, the Authority may consider new information, and may invite the applicant to give more information and/or to comment on new information. The applicant may be invited so to participate either at an interview, or in writing. Hence it is not correct to say that the review is necessarily “on the papers”, if that expression is meant to describe a review in which only the material before the delegate is to be considered.

8    Quite apart from those considerations, the point made in para 26.7 is of some importance in this case. The appellant seems to accept that the Authority’s power to review may be limited by regulation, presumably made pursuant to s 473CC and s 504 of the Migration Act.

9    The first respondent submitted that the word “review” in s 473CC should be given the same meaning as it bears in other provisions of the Migration Act concerning other reviews. In effect, the first respondent submitted that the contemplated review must be a, “fresh consideration of the application which led to the decision under review”. It submitted that the review is not confined to the reasoning of the delegate, nor by any finding of fact or as to credibility. Rather, the Authority must arrive at the correct or preferable decision according to the material before it.

10    At para 28 of his written submissions, the first respondent made a submission which was similar in effect to that made by the appellant at para 26.7 of his submissions. Paragraph 28 reads as follows:

Clearly, Parliament has decided to give less dispositive powers to the [Authority] than it has conferred on the AAT. While Parliament has given both the AAT and the [Authority] the power to “affirm the decision” or “remit the decision” under review, Parliament has conferred on the AAT, but not the [Authority], the power to “vary the decision” or to “set aside and substitute a new decision”. The Explanatory Memorandum to the Bill that became the Amendment Act ... indicated that in making that distinction the Parliament intended that the [Authority] should not be burdened by having to consider whether an applicant satisfies all of the criteria for a protection visa – including “the more procedural criteria” which are more efficiently determined by the Department [at 884]. In any event, the fact that Parliament has given less dispositive powers to the [Authority] does not transform the nature of the powers that the [Authority] shares in common with the AAT (i.e. the power to “affirm the decision” or “remit the decision”) into something else.

11    Paragraph 884 of the Explanatory Memorandum states:

The power to remit a fast track decision will permit the IAA to decide that the Minister’s decision should be reconsidered. The effect of this is that the Minister is required to reconsider the application having regard to any permissible directions or recommendations made by the IAA. The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.

12    Notwithstanding these submissions, neither party seems to have taken into account the effect of s 473CC(2) upon the ambit of the relevant review. Although s 473CC does not expressly provide that in any reconsideration, the Minister (or delegate) is bound to follow any permissible direction or recommendation made by the Authority, the section implies as much. Paragraph 884 of the Explanatory Memorandum expressly so states. The Authority must also give reasons. See s 473EA(1). However any reconsideration after remitter is to be in accordance with permissible directions or recommendations, not in accordance with the reasons. The section identifies no basis for the distinction between a permissible direction and a permissible recommendation. Nor does it indicate whether a permissible direction is to be of more or less significance in any reconsideration than a permissible recommendation. As there are, as yet, no permissible recommendations, I need not address those questions.

13    It is not uncommon for review legislation to provide for remitter, with or without directions. However s 473CC does not do so. A remitter without permissible directions or recommendations would be, in effect, a remitter with a direction to reconsider the matter at large. Such a direction would not be a permissible direction. Regulations 4.43(2) and 4.43(4) prescribe a limited number of permissible directions. They are quite specific and are limited by reg 4.43(3). In my view the ambit of any reconsideration is to be limited to compliance with the permissible directions or recommendations contained in the remitter. It follows that the ambit of the Authority’s review is also limited by the permissible directions or recommendations. There would be no point in the Authority having regard to matters which could not be the subject of a permissible direction or recommendation.

14    The contemplated ambit of the review is, in effect, ambulatory. It depends upon the permissible directions and/or recommendations at the relevant time. Clearly, the Authority would only direct in terms of reg 4.43(2) and reg 4.43(4) if it were satisfied that the relevant matter or matters had been demonstrated. Hence the review must focus on those matters.

15    It may be arguable that the Authority is, nevertheless, bound by findings of fact made by the delegate. However the better view is that the Authority must satisfy itself as to whether there should be a remitter with permissible directions or recommendations. That the Authority may, in certain circumstances, consider new material, leads inevitably to the conclusion that the review is not limited to a review on the material before the delegate. It follows that any review is not dependent upon identifying error in the delegate’s decision. There is no basis for arguing that the form of review will vary, depending upon whether the Authority considers, or does not consider new information. Whilst appropriate deference should be given to findings of fact based on “evidence” given in person to the delegate, such deference does not limit the nature of the review. It is rather a factor to be taken into account in conducting such review.

16    On the other hand, the review cannot be entirely at large. It is limited to a consideration of matters relevant to the available permissible directions or recommendations, pursuant to reg 4.43(2) and reg 4.43(4), but limited by reg 4.43(3). Given that s 473CC plainly contemplates that the extent of the review will be limited by regulation, there can be no justification for assuming that the review is to be of the same nature as reviews prescribed by other provisions of the Migration Act. Nor is there any basis for reading down the ambit of review so as to exclude the rejection of findings of fact or the adoption of a different approach from that adopted by the delegate.

17    I find little assistance in other provisions of the Migration Act, given the virtually unique nature of the review contemplated by s 473CC. Although neither the Authority nor the Circuit Judge adopted this view of s 473CC, it follows from the proposition, advanced by both parties, that s 473CC, by its terms, limits the nature of the contemplated review.

ORDERS

18    My reasons lead to the conclusion that ground 1(b) must fail. As to ground 1(a), the review should have been limited only by the available permissible directions. It is not clear that the Authority, in fact, went beyond that limitation. The appellant did not assert that the Authority had done so. The matter was not in issue before the primary Judge. In those circumstances the appeal should be dismissed with costs.

Associate:

Dated:    27 October 2017

REASONS FOR JUDGMENT

BESANKO J:

19    The facts and circumstances of this appeal are set out in the reasons for judgment of Charlesworth J and I need not repeat them. The following are my reasons for concluding that this appeal should be dismissed.

20    The essential issue as it was identified by the parties is as follows. The appellant contends that the review under Part 7AA of the Migration Act 1958 (Cth) (the Act) is restricted to the correction of error, whether of fact or law, in relation to those issues held to be determinative by the delegate who made the decision to refuse the applicant’s application for a visa. The first respondent contends that the review under Part 7AA of the Act enables and requires the decision-maker (the Independent Assessment Authority (the Authority)) to reach the correct or preferable decision on the visa application and the Authority is not confined or restricted to the issues identified in the reasoning or decision of the delegate. The first respondent accepted that the review under Part 7AA was subject to a number of restrictions which he described as “procedural”, but he submitted that did not affect the “core” function of the Authority in carrying out the review which was to reach the correct or preferable decision.

21    The issue between the parties arises in this case because the Authority considered the matter afresh on the review and, so it was said, made a less favourable finding to the appellant, if I may put it that way, than had been made by the delegate.

22    It is correct to say that the Authority considered the matter afresh. The Authority said that it accepted certain factual matters, not because those were findings of the delegate, but because it accepted those matters on the evidence and information before it. Furthermore, as to one factual matter involving a response to an issue given by the appellant, the Authority said that it had “given significant weight to this response in assessing the applicant’s credibility in relation to this aspect of his claim”. Nevertheless, it seems to me that the fact that the Authority took this approach may not give rise to a “live” issue of the type identified above if the findings of the Authority were identical to those of the delegate. In other words, whatever the Authority said it was doing, the fact that the findings were the same would mean that there were no practical consequences in this case of the differences in approach. This leads to the second matter, namely, whether the Authority made different findings from those made by the delegate. The appellant submitted that the delegate found that he had been threatened by those men who had advanced money to him, whereas the Authority found that he had not been threatened. Although this is not immediately apparent on the delegate’s reasons, it was accepted by the first respondent and was the basis upon which the matter was conducted, both in this Court and below. I am prepared to proceed on this basis.

23    The Court was told that the issue identified above may be considered by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection. The Court was told that written submissions have been filed in that case and they indicate that the plaintiff and the defendant both make similar arguments about the nature of the “review” conducted by the Authority under Part 7AA of the Act to those advanced by the parties in this case. The first respondent told the Court that whilst the High Court’s determination of the issues in that case may deal with the issues raised in the present case, that may not necessarily be so.

24    The appellant advanced six reasons in support of his construction that “review” in Part 7AA means the correction of error in relation to those issues the delegate considered determinative of the application. I will consider each of these reasons in turn, although in fairness to the appellant, he submitted that they ought to be considered cumulatively as well as individually.

25    First, the appellant (accepting that it was not decisive) referred to the fact that the review is expressly described in the Act as “limited” and “on the papers”. Those two descriptions of the review appear in the section which provides a simplified outline of the Part (s 473BA). The reference to the review being “limited” also appears in the section which prescribes the objective of the Authority in pursuing its functions under the Act (s 473FA). Two observations may be made about this point. First, a review which is limited in the process to be undertaken in carrying out the review may be described as limited as readily as a review limited to the correction of error in relation to the determinative issues. Secondly, the subsection which places the obligation on the Authority to review fast track reviewable decisions makes no reference to a limited review (s 474CC(1)). In fact, it is in similar terms to the subsection which requires the Administrative Appeals Tribunal (the Tribunal) to review Part 5 – reviewable decisions (s 348(1)) and Part 7 – reviewable decisions (s 414(1)). I will return to this point.

26    Secondly, the appellant referred to the fact that the review is not voluntarily undertaken by an applicant and that it is a compulsory aspect of the process of a “fast track applicant” applying for a visa. That is true (s 473CA). The appellant then submitted that “it would be perverse that it was Parliament’s intent that a ‘review’ under s 473CA could rob an appellant of any positive benefits of a decision”. I do not accept that this conclusion follows. It is as likely, if not more likely, that a fresh consideration of the previous decision would be seen as enhancing the overall integrity of the decision-making process.

27    The third and fourth matters identified by the appellant may be considered together. The appellant points out the Authority is to conduct the review by considering the review material provided to the Authority by the Secretary under s 473CB (s 473DB(1)) and that it is under no duty to seek or accept new information (s 473DC(2)) and must not consider any new information, save in exceptional circumstances and on the satisfaction of the other matters in s 473DD. There are two points that can be made about these restrictions. First, they are not restrictions that apply to the Tribunal when it is considering Part 5 – reviewable decisions (ss 358 and 360) or Part 7 – reviewable decisions (ss 423, 423A and 425). The Tribunal may receive further information, interview the applicant and then make a decision on the information available to it. These differences must be acknowledged, but I make the point (perhaps obvious) that they do not compel the conclusion that the review conducted by the Authority is limited to a review for correction of error on determinative issues or that the restrictions are inconsistent with a review that involves a fresh consideration of the matter on the review material specified in the Act. Secondly, the appellant accepted that the scope of the review may expand if the Authority considers new information. The appellant accepted that when that circumstance arose, the Authority “would then be entitled to go beyond the issues held to be determinative”. In my opinion, the appellant’s analysis of the scope of the review involves an unlikely construction of the Act. It seems to me a more likely construction that the scope of the review remains constant throughout whether or not new information is received, than a construction where the review is limited to correction of error on determinative issues, but expands to a fresh consideration of the issues before the delegate if new information is received.

28    Fifthly, the appellant relied on the fact that the Authority is not obliged to give notice of adverse issues and the rules of natural justice are said to be exhaustively stated by Division 3 of Part 7AA (s 473DA). I do not see this as a point supporting the appellant’s construction of Part 7AA concerning the scope of the review. The fact is that the scheme of Part 7AA involves a review that takes place by reason of the provisions of the Act and not on an applicant’s request or application and the applicant does not have the right to make submissions or present further evidence to the Authority. In the one case of a departure from those features of the scheme i.e., new information, the applicant is to be given the opportunity to comment on potentially adverse information which may be relied on by the Authority (s 473DE).

29    Sixthly, the appellant points to the fact that the Authority is not obliged to conduct an oral hearing and submitted that this restricts “the demeanour (and accordingly credibility) findings that may be made by the Authority”. It seems correct to say that the Authority is not obliged to conduct an oral hearing (ss 473DA(1), 473DB(1) and 473DC(2)). As the simplified outline states after referring to the limited review and the objectives of the review:

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are provided to it.

Of course, it is trite that demeanour is only one aspect of a witness’ evidence which may lead to credibility findings (Fox v Percy (2003) 214 CLR 118 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ).

30    I agree that there is some substance in this point. It is suggestive of a review limited in scope. However, the point is not decisive and, in fact, does not take the matter very far. As much as a lawyer might consider an oral hearing a necessary part of a “review” which might lead to different credibility findings and, indeed, findings of primary fact, the Parliament addressing a particular issue may assess the different and sometimes conflicting objectives (efficiency, speed, absence of bias, consistency with the Act and the natural justice hearing rule ss 473DA and 473FA) in a different way.

31    Finally, the appellant points to the fact that the Authority has no power to set aside a fast track reviewable decision and substitute a new decision, and further, the power conferred on it to remit a decision with directions is capable of being, and has been limited by regulations made under s 473CC(2). The Authority’s dispositive powers are limited to affirming the decision or remitting it for reconsideration with permitted directions or recommendations. By contrast, the Tribunal has the power to set aside a decision and substitute a new decision in the case of Part 5 – reviewable decisions (s 349(2)(d)) and Part 7 – reviewable decisions (s 415(2)(d)) respectively. Other than noting that difference, I have difficulty in following how the absence of a power to set aside the decision and make a new decision supports a review limited to correction of error in relation to determinative issues. If the Authority considers the matter afresh and concludes that the decision of the delegate was correct, albeit for different reasons, then the Authority affirms the decision. As counsel for the first respondent pointed out, it is the decision which is affirmed, not the reasons of the delegate. If, on the other hand, the Authority reaches a different decision, then it remits for reconsideration with permitted directions or recommendations. The word, “directions” is important because it indicates that, provided it is a “permitted” direction, the Authority may direct the decision-maker on the reconsideration. If reference to the current regulations is permitted (i.e., reg 4.43 Migration Regulations 1994 (Cth)), I note that the Authority may, for example, give a direction that upon the reconsideration by the Minister’s delegate, the applicant must be taken to have satisfied the criteria for the visa that are specified in the direction or that the applicant is a refugee within the meaning of s 5H(1) of the Act. At the very least, the Authority is not just identifying an error; it is reaching its own view and embodying it, where permitted, in a direction.

32    I note what Dowsett J has written about permissible and impermissible directions. I agree that the Authority’s review of fast track reviewable decisions will focus on those matters about which it is able to give a permissible direction. That is a matter which is relevant to the scope of the review in the sense of the matters to be considered, but it is not, it seems to me, relevant to the basis upon which the review is to be conducted. I should add while dealing with permissible and impermissible directions, that I do not see any basis for concluding that the Authority might have considered a matter falling within an impermissible direction.

33    Before leaving this point, I would note that whilst it is true that the Authority is not expressly given the power to set aside a decision, it is difficult to see how remittal with a permissible direction, for example, a direction that a person is a refugee within s 5H(1) of the Act, is not, in practical terms, to the same effect.

34    The question of statutory construction raised by the issue in this case is a difficult one and the answer is far from self-evident. On balance, I am of the opinion that the construction advanced by the first respondent is the correct one.

35    In The Registrar of Titles of the State of Western Australia v Franzon and Others (1975) 132 CLR 611 at 618, Mason J (as his Honour then was) said that it was a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise. The rule must yield to context as Gibbs J (as his Honour then was) noted in McGraw-Hinds (Aust) Proprietary Limited v Smith (1979) 144 CLR 633 at 643 and indeed, a word may be used in two different senses in the same section of the one Act.

36    The Tribunal is an administrative decision-maker under the Act. It is part of an administrative process and it is given the power to review decisions under Parts 5 and 7 of the Act. The Tribunal’s role, including its review function both under the Act and more generally, is well-established and it is to make the correct and preferable decision on the information before the Tribunal. Generally, that information will be that information available and relevant at the time of the Tribunal’s decision (Drake v Minister for Immigration and Ethnic Affairs [1979] 2 ALD 60; (1979) 24 ALR 577 (Full Court); on the remittal [1979] 2 ALD 634 per Brennan J (as his Honour then was); Bushell v Repatriation Commission (1992) 175 CLR 408 per Brennan J; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (Shi v Migration Agents Registration Authority) at [98]-[99] per Hayne and Heydon JJ; at [140]-[142] per Kiefel J (as her Honour then was)). The Authority is also an administrative decision-maker under the Act nominated to deal with a particular class of applications. Its key function is described by use of the same word (review) used to describe the key function of the Tribunal under Parts 5 and 7 of the Act. It is to review a particular type of decision. There is nothing about the type of decision to be reviewed which suggests that the scope of the review would be any different from that of the Tribunal and, like the Tribunal, the Authority is given the power to affirm the decision under review or to remit the decision to the original decision-maker. Parliament has not expressly stated that the Authority’s power of review is limited to a review for correction of error, or as it has in the case of other administrative bodies, set out the grounds upon which the reviewing body might find error established. Furthermore, as I have already mentioned, a construction of the Act where the scope of the review varies depending on whether new information is received is, to my mind, an unlikely one. I will not repeat what I have already said about that point (at [27]).

37    I accept that there are a number of matters which can be put against the notion that the word, “review” is used consistently throughout the Act. The starting point is that the word itself is capable of being used in many different senses and it takes its meaning from the particular statutory or constitutional setting in which it appears (East Australian Pipeline Pty Limited v Australian Competition and Consumer Commission and Another (2007) 233 CLR 229 at [62] per Gummow and Hayne JJ; Shi v Migration Agents Registration Authority at [132] per Kiefel J). For example, if the context or statutory setting is limited to Part 7AA, then the use of the word in Parts 5 and 7 will be of no moment. More importantly, I accept the very substantial differences between the provisions attending the reviews in Parts 5 and 7 and the review in Part 7AA. Without attempting to be exhaustive (and to recapitulate to some extent), there are the following differences:

(1)    There is no provision in Part 7AA entrusting all the powers and discretions of the original decision-maker in the reviewing body as there is in Parts 5 and 7 (ss 349(1) and 415(1));

(2)    In the ordinary case, the Authority makes its decision on the basis of the material before the original decision-maker and does not receive further information or interview the applicant (ss 473DB(1), 473DC and 473DD). The position with the Tribunal under Parts 5 and 7 is quite different (ss 358, 360, 423, 423A and 425); and

(3)    As I have said, the Authority is not given an express power to set aside the decision and make a new decision (see s 473CC). By contrast, the Tribunal has that power (ss 349(2)(d) and 415(2)(d)).

38    The force of these matters may be acknowledged and they make heavy inroads to any assimilation of the review in Part 7AA with the reviews in Parts 5 and 7. Nevertheless, for the reasons I have identified (at [36]), and without necessarily putting the matter in terms of a presumption as distinct from a strong contextual consideration, I am of the opinion that the word “review” has the same core meaning in Part 7AA as it has in Parts 5 and 7. In other words, subject to the express limitations and restrictions identified in Part 7AA, a review under that Part involves a fresh consideration by the Authority of the decision with power to make such findings as it considers appropriate.

39    I should record the fact that the Court was referred to the relevant Explanatory Memorandum and the judge below referred to it at length. I do not find it of any significant assistance in resolving the issue of construction.

40    For these reasons, I am of the opinion that the appeal should be dismissed with costs.

Associate:    

Dated:    27 October 2017

REASONS FOR JUDGMENT

CHARLESWORTH J:

INTRODUCTION

41    This is an appeal from a judgment and orders of the Federal Circuit Court of Australia: BMB16 v Minister for Immigration and Anor [2017] FCCA 203. The primary judge dismissed an application for judicial review of a decision of the Immigration Assessment Authority to affirm a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the appellant a Safe Haven Enterprise (Class XE) (subclass 790) visa under s 65 the Migration Act 1958 (Cth).

42    The Authority exercised powers of review conferred by Pt 7AA of the Act. Part 7AA was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (Amending Act) and came into force on 18 April 2015. This appeal raises an issue concerning the nature of the review to be conducted by the Authority under the recently enacted provisions.

43    The appellant argues that the review function of the Authority was confined to the detection and correction of error affecting only the issues considered determinative by the delegate, subject only to the exercise of limited discretionary powers. It is submitted that the Authority was not permitted to stand in the shoes of the original decision-maker and consider his visa application afresh.

44    The Authority, the appellant submits, misconceived the nature of its jurisdiction by making or purporting to make a factual finding inconsistent with a finding made by the delegate that was favourable to him on his visa application. Before the learned primary judge, the parties’ submissions proceeded on the agreed footing that an inconsistent finding had indeed been made. The primary judge accepted that the Authority had findings of fact afresh on the materials before it and further held that, in so doing, the Authority had not misconceived the nature of its function or the limits of its powers. The review to be undertaken by the Authority was, the primary judge held, the same form of review as that undertaken by the Administrative Appeals Tribunal (AAT) on a review under Pt 7 of the Act, namely a fresh consideration of the visa application so as to arrive at the “correct and preferable decision on the material before it”.

45    For the reasons that follow, it was neither necessary nor appropriate for the primary judge to use the terminology of a “correct and preferable decision” in characterising the Authority’s review function, having regard to the particular statutory context and the limited question arising for determination on the application for judicial review. The question before the primary judge was whether the Authority was entitled to affirm the decision under review for different reasons to that which informed the original decision-maker without first detecting error affecting the decision under review. The primary judge determined that it could. There is no appealable error affecting that aspect of the judgment. The appeal should, accordingly, be dismissed.

THE VISA APPLICATION

46    The appellant is an Albanian national. He arrived in Australia on 13 November 2012 as an “unauthorised maritime arrival” within the meaning of s 5AA of the Act. He did not hold a visa and was, accordingly, an unlawful non-citizen within the meaning of s 14 of the Act. As an unauthorised maritime arrival and an unlawful non-citizen, the appellant was unable to make a valid application for a visa: s 46A(1). Section 46A(2) of the Act confers a discretion on the Minister to make a determination that s 46A(1) does not apply to a person in relation to a visa application of a class specified in the determination. It is assumed that at some point the Minister had determined that the appellant may apply for the safe haven visa at issue on this appeal.

47    A visa may only be granted under the Act if the Minister is satisfied that the prescribed criteria for the grant of the visa are met: s 65 of the Act. It was an essential criterion for the grant of the visa that the appellant satisfy the criterion in s 36(2)(a) (the Refugee Criterion) or s 36(2)(aa) of the Act (the Complementary Protection Criterion): see s 31(3) of the Act and cl 790.221(2) of Sch 2 to the Migration Regulations 1994 (Cth).

48    Section 36(2)(aa) of the Act, together with ss 36(2A), 36(2B) and 36(2C) were inserted by the Migration Amendment (Complementary Protection) Act 2011 (Cth). These provisions give effect, according to their terms, to Australia’s obligations under the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child: Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18] – [20] (Lander, Jessup and Gordon JJ). Section 36(2)(aa) relevantly provides:

36 Protection visas

(2)    A criterion for a protection visa is that the applicant for the visa is:

…

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

…

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

…

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

…

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

…

(b)    the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

49    Section 5 of the Act exhaustively defines the phrase “cruel or inhuman treatment or punishment” as follows:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

50    The “real risk that the non-citizen will suffer significant harm” (as that phrase is used in s 36(2)(aa)) is to be understood as a reasonable possibility, as opposed to a remote chance that such harm will occur: see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, Lander and Gordon JJ (at [242] — [247]). The protection referred to in s 36(2B)(b) of the Act must be “such as to reduce the risk of the applicant being significantly harmed to something less than a real one”: see MZYYL (at [40]).

51    Relevantly, the appellant claimed that there was a real risk that he would suffer significant harm for the purposes of the Complementary Protection Criterion if returned to Albania because, in summary:

(1)    his second son suffered from autism and developmental disorders;

(2)    his earnings of AUD$500 per month were insufficient to cover his son’s school and medical expenses which totalled AUD$1,150.00 per month;

(3)    his wife was unemployed and he had few assets;

(4)    he was unable to secure a loan from a bank to finance the needs of his son;

(5)    from about 2005 he had borrowed money from two businessmen to cover his son’s expenses;

(6)    the businessmen advanced loans every six months for a period of about five years and the loans now totalled AUD$50,000.00;

(7)    he has not repaid, and is unable to repay, any part of the loans;

(8)    from about 2010 or 2011 the two businessmen have asked for repayment; and

(9)    the two businessmen have threatened to kill him if he does not repay the money.

FINDINGS OF THE DELEGATE and the authority

52    The appellant’s submissions on the appeal were premised on an assumption that the delegate and the Authority had made inconsistent findings in connection with the threat.

53    In her record of decision, the delegate said this of the appellant’s claims:

51    I do not accept that the applicant was concerned about his safety in Albania. He conceded that the two men from whom he borrowed the money wanted their money back and had no interest in killing him. He had not been to the police to report the threats. Country information indicates that in general Albanian authorities are able and willing to provide protection to a person fearing non state agents or rogue state agents; however this is dependent on the particular circumstances of the case and profile of the person. The applicant has not declared that he has been involved in any activities that have brought him to the attention of the authorities on a previous occasion. While I note that no State can provide absolute protection against all acts of violence, absolute protection is not required.

52    The applicant was reluctant to consider moving to avoid any harm as he was concerned about where he would live and whether his son would be able to obtain appropriate schooling. I do not consider the applicant had a genuine fear of the persons to whom he owes money and therefore a need to move address to avoid the threats has not been a priority for the applicant. Country information indicates that in general where the threat is from non-state agents internal relocation to another area of Albania is likely to be a viable option but will depend on the nature and origin of the threat as well as the personal circumstances of the person.

53    I accept:

•    That the applicant has borrowed some money to cover costs associated with his son’s medical condition.

•    That the persons from whom he borrowed the money want their money back.

54    I do not accept that the applicant has a real risk of harm from [the businessmen]. The applicant stated that they wanted their money back, ‘not an interest to kill him’. There is no information before me indicating that the applicant is at real risk (real chance) of significant harm, if he were to return to his country of origin. While I am satisfied that violence in Albania is relatively high compared to Australia, I am not satisfied that violence is such that the applicant has a real risk (i.e. real chance) of being arbitrarily deprived of his life. There is no information before me indicating that the applicant will suffer significant harm in the form of intimidation, threats, torture and even death from the individuals the applicant borrowed money from.

…

75    The applicant spent nine months in Greece in 2002/3 and 8 months in 2003/4 without being removed from the country and therefore there is no reason to believe that the applicant would be returned to Albania after three months on any future occasion. The applicant has not been harmed by the persons to whom he owes money in the past. Their interest is to receive their money back. The applicant claimed to have first been threatened in 2010. While the applicant claims to fear harm from the persons he borrowed the money from he made no attempt to repay the money to mitigate this claimed threat.

(footnotes omitted, emphasis added)

54    It is argued by both parties that the delegate should be understood as accepting the appellant’s claim that the two businessmen had made threats to kill him if the loans were not repaid. The appellant submits that the delegate should have found that the threats fell within the statutory definition of cruel and inhuman treatment or punishment. It is in that sense that the orders sought on judicial review were said to have some utility.

55    Contrary to the parties’ common position, the emphasised portions of the delegate’s record of decision (particularly at [75]) indicate that the delegate did not make a conclusive finding that the threats had in fact been made. The record should be understood as expressing a conclusion that, assuming the claimed threats had been made, the threats would not constitute significant harm for the purposes of the Complementary Protection Criterion and did not result in the appellant fearing for his life for the purposes of the Refugee Criterion.

56    The reasons of the Authority are expressed, relevantly, as follows:

3    The delegate accepted that the applicant had borrowed some money to assist in paying for his son’s medical expenses but did not accept that the applicant had borrowed the large amount he had claimed. The delegate accepted that the applicant’s creditors wanted their money back but did not accept that the applicant had a genuine fear of them and, therefore, was not at real risk of significant harm.

…

12    The applicant claims that he borrowed an approximate total of AUD$50,000 over five years from these two men. I accept that, given the amount of expenses for [the son’s] care, the debt may have accumulated to this amount. He claims he was never able to repay any part of this amount to the lenders prior to his departure to Australia. Given his modest income, monthly expenses and few assets I am willing to accept this as true.

13    The applicant further claims that in 2010/2011 the two businessmen started to approach him asking for their money. On the face of it, it seems implausible that the businessmen would continue to lend the applicant money for up to five years before asking for it to be paid back. …

…

17    For the above reasons I do not accept the applicant’s claim that the two businessmen who lent him the money have threatened to seriously harm or kill him if he did not repay them their money.

…

22    The applicant claims that the two businessmen who have lent him money have threatened to kill him if he does not repay the money. He also claimed that he will be threatened, assaulted, tortured by these two men.

23    For reasons already stated I have not accepted this aspect of his claim to be credible and, therefore, do not accept that the applicant faces a real chance of serious harm on return to Albania from his creditors.

24    I have also considered whether the applicant faces a real chance of serious harm from his creditors on return to Albania on the basis that he would not yet have repaid the full debt owed to them. The applicant has claimed that the two men do not want part payments but have demanded the full debt to be paid. I have taken into account his claim that in the eight months between his return from Greece and his departure for Australia in 2012 there was no attempt by his creditors to physically harm him even though he had still not repaid any of the debt. A accept that there may be cause for frustration on the part of these men if the applicant returns to Albania still not having paid the full debt. However, as I have not accepted that they have threatened the applicant as he has claimed and they did not seek to harm him after he returned from Greece, I find that the prospect of the applicant being seriously harmed by his creditors is remote. I am not satisfied that the applicant faces a real chance of serious harm on return to Albania from his creditors for not having paid the full debt.

…

33    I have not ·accepted the applicant’s claims that the two businessmen have threatened to physically harm and kill him if he does not repay them the money he owes and, for reasons already stated, I do not consider that there is a real chance he will be harmed by them on return to Albania because he has not yet paid the full debt owed to them. As ‘real chance’ equals ‘real risk’ I am not satisfied that the applicant will face a real risk of significant harm from his creditors if he were to return to Albania.

(footnote omitted, emphasis added)

57    It is clear from the content and tenor of its reasons that the Authority did not perform a supervisory role limited to the detection and correction of errors affecting the decision under review. Rather, the Authority engaged in a de novo merits review, at least in respect of the question of whether the appellant satisfied the Refugee Criterion or the Complementary Protection Criterion. In the course of doing so, the Authority rejected the appellant’s claim that he had been the subject of threats without first identifying any error affecting the delegate’s conclusions in respect of that aspect of the appellant’s claims.

PROCEEDINGS BEFORE THE PRIMARY JUDGE

58    On his application for judicial review, it was necessary for the appellant to show that the Authority had committed jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; s 474 and s 476A of the Act. It would be sufficient for those purposes for the appellant to show that the Authority asked itself the wrong question or misunderstood the nature or limits of its statutory task: Craig v South Australia (1995) 184 CLR 163.

59    The primary judge held that in discharging its obligation to review the delegate’s decision, the Authority was to “reach the correct or preferable conclusion, on the basis of the material referred to it” (at [97]). The Authority was, his Honour held, empowered to affirm the decision under review “for different reasons to that which informed the original decision maker” (at [98]), as it had done. The learned judge said:

99    In these circumstances, I do not accept that the IAA’s role is confined to a desk top evaluation of the delegate’s reasoning rather, its review must be substantive in nature. As such, it cannot automatically follow that the IAA is automatically prevented from making a credibility finding, in the discharge of its jurisdiction to arrive at the correct or proper outcome.

…

103    These matters confirm my view that the type of review envisaged by Part 7AA is not different in nature from that conferred upon the AAT, other than in procedural terms. In these circumstances, I can find no error of jurisdiction in respect of the relevant decision, in this matter, made by the IAA on 19 May 2016.

GROUNDS OF APPEAL

60    The grounds of appeal are:

1.    The Federal Circuit Court of Australia erred in:

a.    holding that, on the proper construction of s 473CC of the Migration Act 1958 (Cth), the review to be undertaken by the Second Respondent was ‘the same form of review, as the AAT under the Act’ (at [100], [103]), being a fresh consideration of the application; and

b.    not holding that the review was restricted to the correction of error in relation to the issues considered by the delegate, subject to the Second Respondent’s exercise of its discretionary powers under Part 7 AA; and

c.    thereby not finding that the Second Respondent had committed jurisdictional error by constructively failing to review (within the meaning of s 473CC) the fast track reviewable decision referred to it on 22 April 2016.

61    The essence of the appellant’s argument is expressed in the opening paragraph of his written submissions. It is that the Authority:

… failed to perform its statutory task of ‘review[ing]’ (within the meaning of s 473CC of the [Act] a ‘fast track decision’ by, in fact, undertaking a full merits review de novo in respect of the decision, rather than a review restricted to the correction of error in respect of the issues held to be determinative by the delegate who made the decision.

(footnote omitted)

62    The ground in [1(b)] is to the effect that the Authority did not have the power to disturb the delegate’s “finding” that the appellant had been the subject of death threats in connection with the unpaid loans except in the course of correcting an error affecting that finding. As identified earlier in these reasons, I do not consider the delegate made any concluded finding that the threats had in fact been made. It is nonetheless common ground between the parties that the Authority approached its task as a “full merits review”, to adopt the appellant’s expression. That wider agreed position is made good on a fair reading of the Authority’s reasons as a whole in that the Authority clearly did not confine itself to a supervisory role limited to the detection and correction of error in respect of only those issues the delegate considered to be determinative. If the appellant could show that the Authority misconceived the nature of its jurisdiction in that regard, it would follow that the Authority constructively failed to “review” the delegate’s decision and relief on the appeal may be granted on that basis, subject to the proviso that the Court on appeal would not remit the decision to the Authority if to do so would be futile.

STATUTORY FRAMEWORK

63    The parties’ submissions focus on the word “review” in s 473CC of the Act. It is convenient at this juncture to survey the context in which that provision appears.

64    Section 473BA of the Act contains a simplified outline of Pt 7AA. It commences with the words “This Part provides a limited form of review of certain decisions”.

65    The Authority is established within the Migration and Refugee Division of the Authority: s 473JA of the Act. It consists of the President of the AAT, the head of the Migration and Refugee Division of the Authority, a Senior Reviewer appointed under s 473JC and other reviewers engaged in accordance with Div 8 of Pt 7AA: see s 473JA(2). In the performance of its review functions, the Authority is not bound by technicalities, legal forms or rules of evidence: s 473FA. It must “provide a mechanism of limited review that is efficient, quick, free of bias” and consistent with Div 3 of Pt 7AA (which contains provisions limiting the information to which the Authority may refer).

66    By virtue of his status as an “unauthorised maritime arrival” and the timing and circumstances of his arrival in Australia, the appellant satisfied the definition of a “fast track applicant” in s 5 of the Act. The decision of the delegate to refuse to grant the visa was a “fast track decision” as defined in s 5 of the Act and a “fast track reviewable decision” as defined in s 473BB of the Act. The Minister must refer such a decision to the Authority as soon as reasonably practicable after it is made: s 473CA of the Act. The Authority must “review” a fast track reviewable decision referred to it by the Minister: see s 473CC(1).

67    The effect of these provisions is that the Authority’s jurisdiction to review the Minister’s decision is not invoked upon the application of a person affected by the Minister’s decision but by the referral of the decision to the Authority by the Minister himself. That is one of a number of features that differentiates the regime established by Pt 7AA from other mechanisms of review established by the Act. Another distinguishing feature is the manner in which the Authority may obtain the information to which it may or must have regard in the performance of its review function.

68    Section 473CB provides:

Section 473CB. Material to be provided to Immigration Assessment Authority

(1)    The Secretary must give to the Immigration Assessment Authority the following material (review material) in respect of each fast track reviewable decision referred to the Authority under section 473CA:

(a)    a statement that:

(i)    sets out the findings of fact made by the person who made the decision; and

(ii)    refers to the evidence on which those findings were based; and

(iii)    gives the reasons for the decision;

(b)    material provided by the referred applicant to the person making the decision before the decision was made;

(c)    any other material that is in the Secretary’s possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review;

(d)    the following details:

(i)    the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents;

(ii)    the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iii)    the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents;

(iv)    if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct—such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority;

(v)    if the referred applicant is a minor—the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor.

(2)    The Secretary must give the review material to the Immigration Assessment Authority at the same time as, or as soon as reasonably practicable after, the decision is referred to the Authority.

69    The Authority must review the decision referred to it by considering the review material provided to it under s 473CB without requesting new information and without interviewing the referred applicant: s 473DB(1). That requirement is expressly subject to Pt 7AA, which includes s 473DC(1). It provides that the Authority may obtain information (defined as “new information”) that was not before the Minister at the time of the original decision and that the Authority considers may be relevant. However, the Authority does not have a duty to get, request or accept any new information, whether it is requested to do so by a referred applicant or any other person in any circumstances: s 473DC(2). Section 473DD then limits the circumstances in which any new information may be considered by the Authority. It provides:

Considering new information in exceptional circumstances

For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless:

(a)    the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and

(b)    the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information:

(i)    was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or

(ii)    is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant’s claims.

70    Div 3 of Pt 7AA commences with s 473DA. It provides:

Exhaustive statement of natural justice hearing rule

(1)    This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority.

(2)    To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

71    Section 473GA and s 473GB are concerned with the disclosure of information and do not bear critically on the outcome of this appeal.

72    The dispositive powers that may be exercised by the Authority in relation to the referred decision are limited to those conferred by s 473CC(2):

(2)    The Immigration Assessment Authority may:

(a)    affirm the fast track reviewable decision; or

(b)    remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation.

73    Regulation 4.43 of the Regulations prescribes the permissible directions that may be made on a remittal in the following terms:

4.43    Permissible directions on remittal

(1)    For paragraph 473CC(2)(b) of the Act, this regulation prescribes directions that the Immigration Assessment Authority is permitted to make in relation to the review of a fast track reviewable decision in respect of a protection visa application by a referred applicant.

(2)    It is a permissible direction that:

(a)    the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or

(b)    the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or

(c)    subsection 36(3) of the Act does not apply to the referred applicant; or

(d)    the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.

(3)    However, it is not a permissible direction that:

(a)    subsection 5H(1) of the Act applies to the referred applicant; or

(b)    subsection 5H(1) does not apply to the referred applicant because of subsection 5H(2); or

(c)    the referred applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act; or

(d)    the referred applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:

(i)    the referred applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or

(ii)    the referred applicant committed a serious non-political crime before entering Australia; or

(iii)    the referred applicant has been guilty of acts contrary to the purposes and principles of the United Nations; or

(e)    the referred applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:

(i)    the referred applicant is a danger to Australia’s security; or

(ii)    the referred applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.

(4)    It is a permissible direction that the grant of the visa is not prevented by section 91WB of the Act.

74    The word “review” appears elsewhere in the Act in connection with the functions and powers of the AAT in respect of “Part 5 reviewable decisions” (defined in s 338) and “Part 7 reviewable decisions” (defined in s 411). In relation to a Pt 5 reviewable decision, s 348(1) provides:

Subject to subsection (2), if an application is properly made under section 347 for review of a Part 5—reviewable decision, the Tribunal must review the decision.

75    Section 411 of the Act is to the same effect in connection with a Pt 7 reviewable decision.

76    The investigative and dispositive powers of the Authority are considerably more limited than the powers conferred on the AAT under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) in respect of decisions reviewed under Pt 5 and Pt 7 of the Act. The AAT may, in those statutory contexts, exercise all of the powers and discretions that are conferred on the Act by the Minister including, importantly, the power to grant or refuse to grant a visa under s 65 of the Act. It is to make a decision in writing either affirming or varying the decision under review (see s 43(1)(a) and (b)) or, under s 43(1)(c) of the AAT Act:

(c)    setting aside the decision under review and:

(i)    making a decision in substitution for the decision to so set aside; or

(ii)    remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

CONSIDERATION

77    In Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 the Full Court considered the nature of the AAT’s review function in respect of a decision to deport a person under the s 12 of the Act as then in force. The AAT’s power to review the decision was, at that time, conferred by s 25(4) and s 26(2) of the AAT Act. Smithers J said (at 77 — 78):

It might be thought that it would be open to the Administrative Appeals Tribunal not to decide for itself whether a decision made by an administrator was the right decision which ought to have been made in the circumstances but rather to satisfy itself that the decision of the administrator was one which an administrator acting reasonably might have made. But to do this would be to review the reasons for the decision rather than the decision itself. It is the actual decision which by virtue of s 25(1) and (4) of the Administrative Appeals Tribunal Act the Tribunal is authorized and required to review. The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. Merely to examine whether the administrator acted reasonably in relation to the facts, either as accepted by him or as found by the Tribunal may not reveal this. In this connection the observations of Sheppard J in Horne v Locke [1978] 2 NSWLR 88 at 98-100 are in point. It is to permit implementation of the function of the Tribunal, as so understood, that there has been conferred upon the Tribunal extensive powers of investigation. Those powers are conferred so that the Tribunal may equip itself to make an appropriate recommendation or affirm the decision: see s 43 of the Administrative Appeals Tribunal Act and Pt XXII of the Schedule thereto.

78    To similar effect, Bowen CJ and Deane J said (at 68):

The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.

79    That characterisation of the AAT’s function was approved by Kiefel J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 (at [140] – [142]). Her Honour said:

140    The term ‘merits review’ does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the ‘correct or preferable decision’. ‘Preferable’ is apt to refer to a decision which involves discretionary considerations. A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration.

141    The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed. To the contrary of the argument put by the respondent on this appeal, that the Tribunal’s exercise of power is dependent upon the existence of error in the original decision, Smithers J denied that the Tribunal was limited to something of a supervisory role. As his Honour said, the Tribunal is authorised and required to review the actual decision, not the reasons for it.

142    In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal’s general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review.

80    For the Minister it is argued that the core function of the Authority is the same as that performed by the AAT as explained in Drake and approved in Shi. The word “review”, the Minister argues, bears the same meaning as it does in s 348 and s 411, being the provisions conferring review powers on the AAT. In support of that contention, the Minister calls in aid a “principle of construction” that a word used throughout an enactment is to be interpreted consistently: Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523 at [14] (Moore J), [72] (Weinberg J). Accordingly, it is submitted, the primary judge did not err by applying the reasoning in Drake and Shi, nor by equating the jurisdiction of the Authority with that of the AAT, nor by employing the words “correct” and “preferable” to describe the decision resulting from the proper exercise of the Authority’s powers.

81    The principle of construction relied upon by the Minister is more properly understood as a rebuttable presumption. In a case such as the present, the presumption is, in my view, a particularly fragile one. It should not be the starting point for determining the issue arising on the appeal. The word “review” in s 473CC of the Act is not to be construed by immediate and unqualified resort to cases in which the Courts have previously construed the same word in a different statutory context. Rather, the process of construction must begin by examining the particular context in which the provision in question is being construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ). The verb “review” has a chameleon quality in that its meaning must depend on the construction of all of the provisions that prescribe what the reviewing body in question can and cannot lawfully do.

82    The Act itself expressly contemplates that the form of review to be undertaken by the Authority is a “limited form of review”. The word “limited” contemplates that the form of review is limited relative to other forms of review authorised by the Act. The word does not appear in connection with the other review functions of the AAT. The relevant question of construction is whether the Authority’s review function under Pt 7AA is “limited” in the particular respect contended for by the appellant.

83    Counsel for the appellant focused specifically on the limited range of material to which the Authority may have regard in the performance of its functions (ss 473CB, 473DB and 473DC), the statutory curtailment of the rules of natural justice (s 473DA) and the limitations on the Authority’s dispositive powers (s 473CC(2) and reg 4.43). Those limitations, it is submitted, inhibit the Authority from ascertaining for itself the true facts bearing upon the question of whether the visa criteria are satisfied and preclude the Authority from substituting the decision under review (being the Minister’s decision under s 65 of the Act to refuse to grant a protection visa) with a decision that the visa be granted. The limitation on the power to obtain new information was one that necessarily precluded the Authority from standing in the shoes of the original decision-maker and determining the question of whether the relevant visa criteria are satisfied as at the time of the Authority’s own decision. I accept these aspects of the appellant’s submissions. Clearly the Authority is not equipped with all of the powers of the original decision-maker and its powers in that respect are markedly more confined than those that might be exercised by the AAT in other statutory contexts.

84    The use by the primary judge of the phrase “correct and preferable conclusion” must be taken to refer to the phrase “correct and preferable decision” as used in Drake and subsequently explained and approved in Shi. The primary judge adopted the phrase as a means of equating the nature of the review function performed by the Authority with that of the AAT, albeit subject to two qualifications. The first is that the Authority was to make its decision “on the basis of the material referred to it”. The second is that the Authority had “limited procedural powers”.

85    In my view, it was unnecessary for the primary judge to use the phrase “correct and preferable conclusion” to describe the nature of the Authority’s review function in order to determine the narrow issue arising on the application for judicial review. The reference in Drake and Shi to the making of a correct and preferable decision reflects the circumstance that the AAT has, for the purposes of its dispositive powers, all of the powers of the original decision-maker, particularly the power to make a decision to grant or refuse a visa under s 65 of the Act. The Authority does not have the same suite of powers as the AAT. It performs a review function that is sui generis. Attempts to equate the nature of its function to that of the AAT by the use of shorthand descriptions derived from the case law are, at best, unhelpful.

86    By its nature, the fast track decision referred to the Authority will be one based on the Minister’s assessment that an essential criterion for the grant of a protection visa is not fulfilled: s 65 of the Act. The Refugee Criterion and the Complementary Protection Criterion are essential alternative criteria for the grant of a protection visa, but they are not the only criteria. If neither of those alternative criteria is satisfied, it would not be necessary for the Minister to consider and address in his reasons the question of whether all of the other essential criteria for the grant of the visa are met. The Act neither requires nor contemplates that the Authority be provided with material bearing on those criteria for the grant of the visa that were not considered by the Minister. The limitations on the review material is such that the Authority will be disabled, in a very practical sense, from considering or determining whether any criteria other than those considered determinative by the Minister are met. Although reg 4.43(2)(a) of the Regulations empowers the Authority to give a direction to the effect that the referred applicant must be taken to have satisfied those criteria for the grant of the visa that are specified in the direction, the range of criteria to which such a direction will refer will necessarily be limited by the subject matter to which the review material relates.

87    The Authority’s obligation to “review the decision” is, in that sense, an obligation to review the particular findings upon which the refusal decision was based: namely, whether the referred applicant satisfies the particular criteria which the Minister considered to be determinative. The Authority otherwise has no power to determine that the correct and preferable decision is one granting the referred applicant a visa. Accordingly, the Authority cannot perform a “full merits review” of the s 65 decision.

88    However, it does not follow that in the performance of its review function, the Authority may not depart from findings of fact made by the Minister that bear upon the question of whether the particular criterion under consideration is met without first identifying an error affecting the Minister’s findings. There is nothing in the text, context or purpose of the provisions at issue to support that construction.

89    The purposes for limiting the form of review to be undertaken by the Authority are illuminated by the explanatory memoranda (EM) accompanying the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), later enacted as the Amending Act. The EM includes the following statements:

A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the RRT of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.

…

As a limited review body, other than in exceptional circumstances, the IAA is prohibited from considering any new information for the purposes of making a decision, irrespective of whether the IAA obtained it through its discretionary powers or an applicant provided it of their own volition. New information will only be considered if the IAA is satisfied that there are exceptional circumstances to justify the consideration of that new information. For example, exceptional circumstances may be found where there is evidence of a significant change of conditions in the applicant’s country of origin that means the applicant may now engage Australia’s protection obligations. Where an applicant provides or seeks to provide the IAA with new information of their own volition, they would also have to satisfy the IAA that the new information could not have been provided to the Minister before the primary decision was made. The limited review mechanism supports the measures in the Migration Amendment (Protection and Other Measures) Bill 2014 which clarify the responsibility of asylum seekers to specify the particulars of their claim, provide sufficient evidence to establish their claim and encourage complete information to be provided upfront. The measures will prevent those asylum seekers who attempt to exploit the merits review process by presenting new claims or evidence to bolster their original unsuccessful claims only after they learn why they were not found to engage Australia’s protection obligations by the Department of Immigration and Border Protection.

…

The power to remit a fast track decision with directions or recommendations will permit the IAA to review the substantive matters which must be satisfied before the visa application can be approved and, if these are decided in favour of the applicant, to then remit the case back to the Department to consider the more procedural criteria, which would not be appropriate for the IAA to deal with.

90    As the EM makes clear, Pt 7AA is intended to advance the policy objectives of speed and expediency in the processing of protection visa applications of a particular kind. The provisions of Pt 7AA advance that objective not by providing for a form of review other than merits review on the facts and the law, but by (without being exhaustive):

(1)    precluding the Authority from deciding whether the referred applicant is to be granted a visa under s 65 of the Act;

(2)    expressly confining the material to which the Authority may have regard and, by implication, confining the subject matter of the review to those criteria the Minister considered determinative;

(3)    limiting the involvement of the referred applicant in the review process so as to (among other things) prevent the referred applicant from relying upon claims in support of the visa application that were not advanced before the Minister.

91    It is to be acknowledged that the form of review tasked to the Authority under Pt 7AA of the Act lacks features that might be considered desirable or optimal when compared with the form of merits review that has become familiar since the introduction of the AAT Act. But it is for Parliament to decide whether or not mechanisms for external administrative review (as opposed to judicial review) of executive action are to be provided for at all and, if so, the form that the external review process should take. These are considerations of policy that do not inform the particular question of law raised in the grounds of appeal.

92    There are three additional reasons for rejecting the appellant’s argument.

93    First, Counsel for the appellant could not readily articulate the kind of error that must, on the appellant’s construction of the Act, be identified by the Authority in order for it to lawfully interfere with a factual finding made by the original decision-maker. Counsel did not go so far as to say that the Authority is to be bound by the same principles of restraint that are to be observed by a court in the exercise of appellate powers (see, for example Robinson Helicopter Company Inc v McDermott [2016] HCA 22, (2016) 331 ALR 550 at [43]), and yet no alternative test for disturbing the Minister’s findings of fact was postulated.

94    Second, the directions that may be given by the Authority upon remitting a decision for reconsideration are limited to those permitted by regulation. At the time of the Authority’s decision to affirm the delegate’s decision, the permissible range of directions was limited to those prescribed in reg 4.43 of the Regulations, extracted at [73] above. The Authority is to be assumed to have such powers as are necessary for the proper discharge of its functions, which include the function of considering whether to remit the decision for reconsideration in accordance with a direction that the appellant “must be taken to have satisfied the criteria for the visa that are specified in the direction”. The power to give such a direction is one that, by necessary implication, includes a power to consider all of the issues arising on the material before the Authority that bear upon the question of whether the referred applicant satisfies either the Refugee Criterion or the Complementary Protection Criterion. The same may be said of the Authority’s power to affirm the decision under review. In order to perform the function of considering whether the original decision should be affirmed, the Authority must be presumed to have such powers as are necessary to determine that an essential criterion is not fulfilled, whether for the same reasons furnished by the Minister or on the basis of alternative findings fairly open on the review material.

95    Third, if the appellant’s argument were to be accepted, a case may arise in which the Minister makes a factual finding supporting a conclusion that the referred applicant does not fulfil an essential visa criterion, and yet the Authority could not disturb that finding if it preferred one of a number of alternative findings fairly open on the material before it. There is nothing in Pt 7AA to suggest that a referred applicant should not have the benefit of a favourable direction to the effect that he or she satisfies a visa criterion as a result of the Authority substituting its preferred view of the facts.

CONCLUSION

96    The Authority was entitled to find that there had been no threats to the appellant’s life and to affirm the delegate’s decision on that factual basis even if there was no error affecting the delegate’s conclusion in respect of the same subject matter. That is the same substantive conclusion arrived at by the primary judge at [98] of his reasons to justify the dismissal of the judicial review application. Whilst the primary judge ought, in my view, to have avoided the language employed in Drake and Shi, there is no appealable error in that aspect of the judgment upon which the real issue on this appeal turns.

97    I would, accordingly, dismiss the appeal.

Associate:

Dated:    27 October 2017