FEDERAL COURT OF AUSTRALIA

DHS17 v Assistant Minister for Immigration and Border Protection [2018] FCAFC 209

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on the draft amended notice of appeal annexed to the appellant’s outline of submissions filed on 15 August 2018.

2.    The appellant file the amended notice of appeal in terms of the draft annexed to the appellant’s outline of submissions filed on 15 August 2018.

3.    The appellant have leave to adduce the further evidence on the appeal, being the affidavit of Alison Mary Battisson affirmed on 30 July 2018 (consisting of 13 paragraphs) and the annexures thereto; and, insofar as necessary, compliance with rule 36.57(2) of the Federal Court Rules 2011 (Cth) be dispensed with.

4.    The appeal be allowed.

5.    The orders made by a Judge of the Federal Court of Australia on 15 March 2018 be set aside and in lieu thereof, order:

(a)    a writ of certiorari issue to quash the decision of the respondent dated 20 June 2017 not to revoke the cancellation of the appellant’s protection visa under s 501CA(4) of the Migration Act 1958 (Cth);

(b)    a writ of mandamus issue directed to the Parliamentary Secretary to the Minister for Immigration and Border Protection, using the title Assistant Minister for Immigration and Border Protection, to make a decision under s 501CA(4) of the Migration Act 1958 (Cth) according to law; and

(c)    the respondent pay the applicant’s costs of and incidental to the application.

6.    The respondent pay the appellant’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

THE COURT:

1    The appellant is an Egyptian citizen, who first entered Australia on 18 August 2006. He was then 23 years of age. He was subsequently granted a Protection (Class XA) Subclass 866 visa (protection visa). His protection visa was cancelled by a delegate of the Minister for Immigration and Border Protection on 9 June 2015, under s 501(3A) of the Migration Act 1958 (Cth). The respondent Parliamentary Secretary to the Minister for Immigration and Border Protection, using the unofficial title of Assistant Minister, subsequently refused to revoke the delegate’s cancellation decision.

2    The appellant applied to this Court for judicial review of the Assistant Minister’s decision not to revoke the cancellation of his protection visa. This is an appeal from the judgment dismissing his application on 15 March 2018.

3    A notice of appeal, with two grounds, was filed on 7 May 2018, after the primary judge had granted an extension of time to do so. The appellant abandoned these grounds at the hearing of the appeal, relying instead on one ground set out in a draft amended notice of appeal annexed to his written submissions filed before the hearing of the appeal. The appellant also filed an interlocutory application in the appeal proceeding in which he sought leave to rely on the draft amended notice of appeal and to adduce further evidence. This interlocutory application is also addressed in these reasons.

4    The appellant relied on two affidavits, both affirmed by Alison Mary Battisson. The first, consisting of six paragraphs, was dated 30 July 2018. The second, also affirmed on 30 July 2018, consisted of some 13 paragraphs and 10 annexures.

5    For the reasons that follow, we would grant the appellant leave to file and thereby rely upon the new ground raised in his draft amended notice of appeal, as well as to adduce further evidence on the appeal. We would allow the appeal, with costs.

background

6    Between October 2011 and June 2015, the appellant was convicted of a number of offences, including on 20 April 2015 in the Local Court at Wyong in New South Wales. On that date, the appellant was convicted of various offences and sentenced to 12 months’ imprisonment for each offence, to be served concurrently.

7    As already indicated, the delegate made the decision pursuant to s 501(3A) of the Migration Act to cancel the appellant’s protection visa on 9 June 2015. Section 501(3A) mandated visa cancellation where:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

  (ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8    The delegate’s decision was the outcome of the delegate’s satisfaction that the appellant did not pass the character test because of the operation of s 501(7)(c) of the Migration Act and the appellant was at that time serving a sentence of imprisonment, as described in s 501(3A)(b). The effect of s 501(7)(c) is that a person has a substantial criminal record for the purposes of the character test if that person has been sentenced to a term of imprisonment of 12 months or more.

International Treaties Obligations Assessment

9    Meanwhile, the Department of Immigration and Border Protection commenced an International Treaties Obligations Assessment (ITOA) in order to assess whether the circumstances of the appellant’s case engaged Australia’s non-refoulement obligations. The appellant was interviewed for these purposes. The ITOA was completed by a Reviewer (also an officer of the Department) for consideration by the respondent.

10    On 5 September 2016, the appellant was notified by a letter from the Department that the ITOA had been conducted and finalised. The letter advised that the ITOA Reviewer had found that non-refoulement obligations were not engaged in the appellant’s case. A copy of the ITOA was said to be attached to this letter (Redacted ITOA). As explained below, this copy omitted one paragraph (Redacted Paragraph) from the Reviewer’s written assessment (Complete ITOA). The Redacted Paragraph related to the appellant’s claim that he would suffer relevant harm if returned to Egypt because he was homosexual. This appeal concerns the legal effect of this omission.

11    The ITOA stated that the appellant’s interview could not be completed because of a trial fire evacuation and, in consequence, the appellant was given an opportunity to respond to certain questions in writing. In this context, the ITOA set out pertinent parts of the correspondence between the ITOA Reviewer and the appellant’s representatives. The ITOA stated that:

On 18 July 2016 [the appellant] and his migration agent … were sent a letter detailing my remaining six questions … I asked:

1.    I note you have been convicted of domestic violence related offences in Australia. I note that the judge who sentenced you in April 2015, Magistrate McIntyre, stated in his sentencing remarks that you had committed violence against a female who you had been “in and out of a relationship with” from his understanding. Magistrate McIntyre stated that you hit your female victim numerous times with a broom which you had retrieved from the corner of the unit that you and the female shared. This information is potentially adverse, as it conflicts with your claim that you are homosexual. You are invited to comment in writing.

2.    I note you appeared in court in June 2015 in relation to further domestic violence related offences. Information before me suggests that these offences were committed against a different female victim. This information is potentially adverse, as it conflicts with your claim that you are homosexual. You are invited to comment in writing.

3.    I note you were asked during a Detention Client Interview in August 2015 whether there were any reasons why you could not return to Egypt. You made no reference to your sexuality when asked this question. Instead you stated that you could not return due to a) fighting between Christians and Muslims in Egypt and b) someone in Egypt had paid another person to kill you. These new claims suggest your previous protection claims relating to your sexuality were not genuine. You are invited to comment in writing.

4.    Do you genuinely fear harm in Egypt because someone has paid another person to kill you and because there is fighting between Christians and Muslims?

5.    If so, what is the name of the individual who has allegedly been paid to kill you? Who paid him to kill you? When did this occur? Why? Do you have any evidence to substantiate this claim?

6.    Why would fighting between Christians and Muslims in Egypt put you at particular risk of harm? Do you have any evidence to substantiate that you are a Christian?

The claimant’s migration agent provided a response to these questions via email on 3 August 2016 … . In response to question one she stated:

The female referred to by Magistrate McIntyre is Ms [AB]. [The appellant] met Ms [AB] towards the end of 2010. At no time did a romantic relationship occur between them nor did they cohabit. Ms [AB] was divorced, had children and had a disability. Ms [AB], who is of Islamic faith, was in dispute with her family because she did not observe Islam as expected by her family. Ms [AB] resided at [one address] and [the appellant] resided at [another address]. [The appellant] felt sorry for her and eventually became her official carer.

… it does not appear that the Magistrate did specify a spousal or intimate relationship. [The appellant] explains that reference to “in and out of a relationship with” arose due to the fact that Ms [AB]’s brothers were pressuring [the appellant] to convert to Islam.

… it is essential to note that for cultural and religious reasons, it would have been highly unlikely and almost impossible for [the appellant] and Ms [AB] to be involved in any sort of intimate relationship. Apart from the fact that [the appellant] is homosexual, Ms [AB]’s family and community would not under any circumstances allowed contact between the two if they as much as suspected any romantic involvement without marriage.

Clearly a misunderstanding occurred due to the fact that the nature of the relationship between [the appellant] and Ms [AB] was not specified.

In response to question two, [the appellant’s migration agent] stated:

[The appellant] is uncertain of the offence and court appearance in June 2015 referred to in question 2 … .

[The appellant] claims that the only incident that he can recall is a dispute with a female in approximately October 2014. [The appellant] explains that he was waiting outside a church to speak to the priest. A young lady approached him and started to talk to him about Islam. He told the lady that he was not interested but the lady was persistent. Eventually [the appellant] began to suspect that Ms [AB’s] family had sent this lady to harass him. A non physical dispute eventuated and police became involved. [The appellant] became frustrated unable to explain the situation to the police and he swore at police and was taken to police station. [The appellant] can not recall many details of this incident and I do not have access to any police report.

In response to question three, [the appellant’s migration agent] stated:

[The appellant] provided two reasons for not wanting to return to Egypt. The first was based on Christian Muslim tensions in Egypt. …

The second reason given by [the appellant] is absolutely not a new claim. In his original PV application [the appellant] clearly stated that the reason that he was applying for protection was the fact that a person in Australia had told his family and the family of his partner… at the time that they are homosexual. [His partner’s] family blamed [the appellant] and had commissioned a person to kill him. These claims have been outlined in his original protection visa application.

In response to question four, [the appellant’s migration agent] stated:

Both reasons that [the appellant] fears harm if he were to return are very real reasons. …

12    For the reasons set out below, the ITOA Reviewer did not accept that the appellant was homosexual and concluded that Australia’s non-refoulement obligations were not engaged with respect to him.

The Assistant Minister’s decision

13    By letter dated 9 September 2016, the appellant was validly notified of the decision to cancel his protection visa.

14    Sections 501CA(3) and (4) of the Migration Act not only provide for notification of a visa cancellation decision under s 501(3A), they also provide for the making of representations by the former visa holder and the revocation of that decision. Sections 501CA(3) and (4) are in the following terms:

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances;

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

  (b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked.

15    Section 501CA(5) further provides that, if the Minister revokes the original decision, the original decision is taken not to have been made.

16    It is unnecessary to refer to some intervening procedural matters. It suffices to say that, on 24 September 2016, the appellant, through his representative, made representations in which he sought revocation of the delegate’s original decision, including that “if I return to Egypt this will be very dangerous for me and my family”; and “[t]here are people who want to kill me and have been blaming my family because their son is gay”.

17    On 29 May 2017, the Department informed the appellant, by letter, that the ITOA of 5 September 2016 might be taken into account when making the decision as to whether or not to revoke the original decision. A copy of the Redacted ITOA was attached to the letter.

18    On 20 June 2017, the Assistant Minister decided not to revoke the original decision.

19    The appellant was notified of the non-revocation decision by a letter from the Department dated 21 June 2017, enclosing the decision record and statement of reasons, both dated 20 June 2017, a table of attachments, and attachments.

20    In the decision record, the Assistant Minister stated that he was not satisfied that the appellant passed the character test nor that there was another reason why the original decision should be revoked.

21    It was common ground that the Assistant Minister had before him a copy of the Redacted ITOA when he made his decision. In his statement of reasons, the Assistant Minister stated:

14.    As part of his current revocation request, [the appellant] submits that he will face harm if returned to Egypt as he is homosexual.

15.    I am aware that [the appellant’s] fear of being harmed due to his claimed sexuality was addressed in an International Treaties Obligations Assessment (ITOA) that was finalised on 5 September 2016. It was determined that [the appellant] did not engage Australia’s protection obligations as his claims of having a well-founded fear of persecution on the basis of being homosexual lacked credibility.

16.    [The appellant] was provided, via his agent, a copy of the ITOA. In response, [the appellant’s] agent submits that [the appellant] disagrees with the finding regarding his sexuality and is not currently in a position to provide further evidence to support his claim.

17.    I am aware that [the appellant] also raise concerns regarding his fear of persecution in Egypt based on his religion as ‘Christian Orthodox’ which he states is also referred to as Coptic Christian. The ITOA concluded that as a non-practising Christian, [the appellant] would face a ‘remote rather than real risk of persecution’ due to his religion and found him to be not owed protection obligations.

18.    In light of the conclusions of the ITOA, which I accept, I am not satisfied that the claims made by [the appellant] in his request for revocation that he will suffer harm if returned to Egypt constitute “another reason” why the original decision should be revoked.

22    Besides Australia’s non-refoulement obligations, the Assistant Minister also considered the strength, nature and duration of the appellant’s ties to Australia, the extent of impediments if he were removed to Egypt, the protection of the Australian community, the nature and seriousness of the appellant’s criminal conduct, and the risk to the Australian community. In his reasons, the Assistant Minister stated that, “having given full consideration to all these matters”, he was not satisfied for the relevant purposes that there was another reason why the original cancellation decision should be revoked.

Unsuccessful judicial review application

23    As already indicated, the appellant applied for judicial review of the Assistant Minister’s decision, but was unsuccessful before the primary judge. The Court Book and the Supplementary Court Book, which were supplied to the primary judge, included copies of the Redacted ITOA.

24    After the primary judge had delivered judgment, the appellant’s legal representatives had reason to examine the Redacted ITOA and noted, for the first time, that there was a blank space between two paragraphs on page 11 of the Redacted ITOA. This led them to make a request on 10 May 2018 under the Freedom of Information Act 1982 (Cth) on the appellant’s behalf, for access to an unredacted version of the ITOA, or confirmation that no redaction had been made.

25    On 28 May 2018, the appellant’s legal representatives received a response to their request, attaching a complete (and unredacted) version of the ITOA. The Complete ITOA set out the following findings, under the heading “Sexuality”:

The claimant maintains he is homosexual, despite information to the contrary ... After carefully considering all of the information before me, I do not accept that the claimant is homosexual. For the reasons detailed below, I find that this is not a genuine or credible claim:

Firstly, the claimant has provided inconsistent accounts of when and how he discovered his claimed sexuality and who he first confided in regarding his sexuality. …

Secondly, I found the claimant’s account of his alleged relationship with [X] during his ITOA interview to be extremely brief and lacking in detail. …

Thirdly, there is evidence before me to suggest the claimant has been in relationships with women in Australia, despite his claim that he is only attracted to men. As detailed above, the claimant has been convicted of domestic violence related offences in Australia. In April 2015, the Magistrate who sentenced him stated that he had committed domestic violence against a female who he had been “in and out of a relationship with” and who he had shared a unit with. I acknowledge the claimant’s response to this adverse information, detailed above. In summary, the claimant states that he was Ms [AB’s] official carer, that he was never in a romantic relationship with her and that he never lived with her. His migration agent argues that for cultural and religious reasons and due to [the appellant’s] sexuality, any sort of intimate relationship between [them] would have been highly unlikely and almost impossible. I do not accept this explanation. I give significant weight to Magistrate McIntyre’s comments and find, based on the evidence before me, that the claimant was in a de-facto relationship with Ms [AB] in Australia.

That being said, I am prepared to accept that the claimant was not in a relationship with a second female victim of domestic violence in Australia (referred to in question two of my 18 July 2016 letter). After reviewing electronic documents attached to Departmental file … relating to the claimant, I located a New South Wales Police “Facts Sheet”, referring to the claimant’s arrest on 20 September 2014 … . The document (which has not been disclosed to the claimant) indicates that the claimant was arrested following an altercation with a female youth worker outside a church in Kirrawee, NSW. As this information is relatively consistent with the claimant’s explanation regarding his court appearance in June 2015, I do not regard it as adverse.

Nevertheless, based on all of the information before me, I do not accept that the claimant is homosexual. For the reasons detailed above, I find that this is not a genuine or credible claim. I acknowledge that the claimant provided statutory declaration from individuals in Australia attested to his claimed sexuality in his 2009 Protection application and photographs of himself with other men. However, I am not prepared to give these supporting documents any weight.

…

(emphasis added)

26    The Complete ITOA had one more paragraph on page 11 than the Redacted ITOA. This was the Redacted Paragraph, underlined above.

27    In her second affidavit of 30 July 2018, Ms Battisson deposed that the Redacted Paragraph was not contained in any previous versions of the ITOA supplied to the appellant. She further deposed, and it may be accepted, that none of the previous versions clearly indicated that this paragraph had been redacted. The Complete ITOA was not before the primary judge. Nor, as already noted, was the Complete ITOA before the Assistant Minister at the time he made his decision.

APplication to amend notice of appeal

28    The appellant sought to amend his notice of appeal to challenge the Assistant Minister’s decision on the ground that the Assistant Minister based his decision on the Redacted ITOA, rather than on the Complete ITOA, and that this ground could not have been raised earlier because the relevant facts were unknown by the appellant. In his proposed draft amended notice of appeal, the appellant stated:

The Assistant Minister was [for] reason[s] which have not been explained not provided with information that the reviewer had obtained, and which the review[er] correctly considered corroborated the appellant’s evidence regarding the second alleged incident of domestic violence. The information, and the reviewer’s evaluation of it, was capable of having a bearing on the assessment of the appellant’s credibility, and therefore his claim to be a homosexual. The Assistant Minister was not bound by the conclusion of the reviewer; the Assistant Minister might have made a different decision if the Full ITOA (which included a paragraph that corroborated in part the appellant’s evidence and therefore credibility) had been provided to him.

In the context of the appellant’s representations, and the ITOA’s assessment of the appellant’s credibility, that paragraph was important. The failure of the Assistant Minister to consider it means that his decision is affected by jurisdictional error.

29    It is well-established that the Court may grant leave to raise a new ground on appeal where it considers this to be expedient and in the interests of justice. As the Full Court said in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [48], “[t]he Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated”.

30    At the hearing of the appeal, the Assistant Minister did not oppose the grant of leave to the appellant to rely on his draft amended notice of appeal. The Assistant Minister did not dispute that he made his decision on the basis of the Redacted ITOA and did not contend that the grant of leave would work an injustice on him. In all the circumstances, we would grant the appellant leave to amend his notice of appeal as he sought and to raise a ground that was not before the primary judge for the reasons already indicated.

Application to adduce further evidence

31    The appellant also sought orders allowing him to adduce further evidence on the appeal, being Ms Battisson’s 13 paragraph affidavit, with its annexures. Insofar as necessary, the appellant also sought an order dispensing with compliance with r 36.57(2) of the Federal Court Rules 2011 (Cth).

32    Section 27 of the Federal Court of Australia Act 1976 (Cth) provides, so far as relevant, that in an appeal, the Court shall have regard to the evidence given in the proceedings from which the appeal arose and has power, in its discretion, to receive further evidence. As Ms Battisson’s uncontested affidavit evidence indicated, the relevant evidence was not available to the appellant at the time of the hearing before the primary judge. The Assistant Minister did not oppose the Court receiving the further evidence that the appellant sought to adduce.

33    The power to admit the further evidence exists to serve the demands of justice. In exercising the discretion conferred by s 27 an important consideration is whether the further evidence would have produced a different result had it been available at the hearing before the primary judge on 7 May 2018 or, at least, was likely to have produced a different result at that time: see August v Commissioner of Taxation [2013] FCAFC 85; 94 ATR 376 at [116] and [119]. We are of the opinion, for the reasons stated below, that the further evidence was likely to have led to a different result had it been available at the hearing before the primary judge.

34    For these reasons, we would receive the further evidence as the appellant sought and, so far as necessary, we would dispense with compliance with r 36.57(2) of the Federal Court Rules.

Parties’ submissions

35    The appellant submitted that the Assistant Minister, having chosen to adopt the ITOA process to inform himself about the decision to be made, on any view, was misled about the ITOA assessment and analysis. The appellant submitted that the Redacted ITOA was a fundamentally misleading document, because it omitted the ITOA Reviewer’s acceptance that the appellant was not in a relationship with a second female victim of domestic violence, as the Reviewer’s letter of 18 July 2016 had contemplated. The appellant, through his counsel, submitted that the omission of the Redacted Paragraph was apt to mislead the Assistant Minister:

… both positively, because … the balance of the page suggested that there were multiple relationships, but also negatively in the sense that corroborative information – not adverse information, … from New South Wales Police was not provided to the Minister who might have come to a different view overall about the credibility of the claim had that information in fact been put to the Minister.

36    The appellant’s counsel submitted that the supposed evidence of a heterosexual relationship reflected in the “understanding” of the sentencing Magistrate “was not of such a character that it would have been impossible to come to any other view”. Counsel submitted that had the Assistant Minister had the Complete ITOA before him, he might have been more sceptical about the probative significance of the qualified and generic remarks made by the Magistrate.

37    The appellant submitted that there were a number of ways in which the relevant jurisdictional error might be characterised. Referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 31, Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 449; 8 FCR 167 at 178-179, and Buchwald v Minister for Immigration and Border Protection [2016] FCA 101; 242 FCR 65 at [62], the error could, so the appellant submitted, be characterised as a failure to take into account a consideration that the decision-maker was required to take into account. Alternatively, the error could, so the appellant submitted, be characterised as a denial of natural justice, of the kind considered in Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551.

38    The appellant relied on the undisputed circumstance that the Assistant Minister was not bound by the conclusions in the ITOA and that it was open to the Assistant Minister upon consideration of the ITOA to accept or reject those conclusions. Drawing on Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111] and Viane v Minister for Immigration and Border Protection [2018] FCAFC 116 at [28]-[30], the appellant contended that, in supplying the Assistant Minister with only the Redacted ITOA, the Assistant Minister was deprived of information that was sufficiently important for the deprivation to constitute jurisdictional error. The appellant argued that this information was clearly significant in the decision-making process because the Assistant Minister had correctly identified that one of the appellant’s representations was that the original decision should be revoked because of non-refoulement obligations arising from the fact that the appellant was homosexual. In redacting the critical paragraph, there was a wrong finding attributed to the ITOA Reviewer and further, the redacted information was relevant to the appellant’s credibility, upon which depended acceptance of his claim to be homosexual, and therefore to fear harm if returned to Egypt.

39    Referring to Gill v Minister for Immigration and Border Protection [2017] FCAFC 51; 250 FCR 309 at [96]-[100] and BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76 at [23], the appellant further submitted that, in the absence of evidence from the Assistant Minister, there was no basis upon which the Court could conclude that the redacted information and evaluation could not have made a difference to the Assistant Minister’s decision.

40    The Assistant Minister accepted that, whilst he might have regard to the ITOA Reviewer’s findings, in exercising power under s 501CA(4), he was required to make his own decision. The Assistant Minister also accepted that he was bound to extend procedural fairness to the appellant, but affirmed that the appellant had not been denied the opportunity to propound his case. Referring to SZRKT, Buchwald and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431, the Assistant Minister submitted that in a case such as this the “fundamental question” was the “importance of the [redacted] material to the exercise of the statutory function”.

41    The Assistant Minister argued that, in the appellant’s case, there was no single and distinct basis upon which an adverse finding on the credibility of the relevant claim was made. The Assistant Minister submitted that the Reviewer’s findings as to the appellant’s credit were “detailed and comprehensive” and that the Redacted Paragraph was not “corroborative” of the appellant, but simply “not adverse in response to a question that was raised by the Reviewer”. The Assistant Minister drew attention to the three reasons given by the Reviewer for not accepting the appellant’s claim that he was homosexual (set out below at [57]). Regarding the third reason, the Assistant Minister focussed on the Magistrate’s sentencing remarks on 20 April 2015 and the fact that the Redacted Paragraph had not led the Reviewer to form a different opinion of the appellant’s claim. It was submitted that the Assistant Minister was entitled to rely on the conclusions set out in the ITOA and that, in light of the ITOA Reviewer’s findings, the redacted material was “not of such importance that … the exercise of power was affected”. Further, it was noted that the appellant's claim that he would be harmed as homosexual if returned to Egypt was only one matter that the Assistant Minister considered in determining whether he was satisfied that there was “another reason” why the original decision should be revoked.

consideration

42    The Assistant Minister’s conclusion that he was not satisfied that the appellant passed the character test, as defined by s 501, was not challenged. Before the primary judge and on this appeal, the appellant focused on the Assistant Minister’s conclusion that he was not satisfied, for the purposes of s 501CA(4)(b)(ii), that there was “another reason” why the original cancellation decision under s 501(3A) should be revoked.

43    It may be accepted that s 501CA(4) confers a broad discretion to revoke the original cancellation decision. This is implicit in s 501CA(4)(b)(ii): see BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456 at [24]. In exercising the discretion under s 501CA(4), the Assistant Minister was required to consider the reasons advanced by the appellant in his representations in favour of revocation. One reason advanced by the appellant in this case to support the revocation of the original cancellation decision was that Australia owed non-refoulement obligations with respect to him, on account of the harm he would suffer as a homosexual man if returned to Egypt. The Assistant Minister recognised, correctly, that he was obliged to address this claim.

44    The Assistant Minister did so by directing himself to the Redacted ITOA. It is evident from the Assistant Minister’s reasons that he had regard to what he believed to be the ITOA Reviewer’s reasons and findings in deciding whether the appellant’s claim to be homosexual was credible, and whether that claim, if accepted, could constitute a reason why the original cancellation decision should be revoked. It is not said that there was error in so doing. It is also undisputed that the Assistant Minister was not bound by the ITOA Reviewer’s assessment. Rather, it was open to the Assistant Minister, upon consideration of the Reviewer’s findings, to accept or reject the Reviewer’s conclusion as to whether the appellant’s claim to be homosexual was “genuine or credible” and resulted in non-refoulement obligations with respect to him.

45    In the appellant’s case, the Assistant Minister expressly accepted the Reviewer’s conclusions, as set out in the Redacted ITOA, and relied on them in declining to accept the appellant’s claim that his homosexuality gave rise to non-refoulement obligations and, therefore, “another reason” why the original cancellation decision should be revoked. The difficulty in this case arises from the fact that the Redacted ITOA did not contain the Redacted Paragraph, and the redaction was apt to mislead the Assistant Minister as to the Reviewer’s findings and the basis upon which the Reviewer declined to accept that the appellant was homosexual.

46    Reference to the Redacted ITOA shows that one reason the Reviewer seemingly gave for not accepting the appellant’s claim to be homosexual was that there was “evidence” before the Reviewer “to suggest” that the appellant “has been in relationships with women in Australia, despite his claim that he is only attracted to men”. Reference to the Complete ITOA shows that this statement was a reference to the matters that the Reviewer had inquired after in the letter of 18 July 2016, also set out in the ITOA: see [11] above. The first question referred specifically to the remarks of the sentencing Magistrate in April 2015 that the appellant had been “in and out of a relationship” with a woman with whom he shared a unit. This is confirmed by the Reviewer’s subsequent rejection of the explanation proffered by the appellant’s migration agent in the agent’s responsive email of 3 August 2016, also set out in the ITOA: see [11] and [25] above. The second question referred to another court appearance in June 2015 in connection with a second woman, also suggested to be the victim of the appellant’s domestic violence. Both questions in substance invited the appellant to respond to an inference that, contrary to his claim, he was not homosexual.

47    It is apparent from the Complete ITOA, but not from the Redacted ITOA, that the Reviewer accepted the appellant’s explanation regarding his court appearance in June 2015 and, in particular, that the appellant was not in a sexual relationship with a second woman in Australia. This is not disclosed in the Redacted ITOA, because the Redacted Paragraph contains the Reviewer’s acceptance of the appellant’s explanation, which, as the Redacted Paragraph shows, was based on the Reviewer’s location of relevant New South Wales Police records containing information with which the appellant’s account was “relatively consistent”.

48    Absent the Redacted Paragraph, the statement in the ITOA that the evidence suggested the appellant had been “in relationships with women in Australia”, together with the discussion about the sentencing Magistrate’s remarks, tended to indicate that the Reviewer was satisfied that the appellant had been in multiple sexual relationships with women in Australia. When regard is had to the Complete ITOA, this is plainly incorrect. Reference to the Redacted Paragraph shows that the Reviewer’s reference to “evidence” about the appellant’s “relationships with women in Australia” was subject to the Reviewer’s subsequent discussion of that supposed evidence. That discussion makes it clear that the Reviewer did not in fact find that there was any evidence that the appellant had had multiple relationships with women in Australia.

49    The Redacted ITOA was not only misleading about the Reviewer’s factual findings but also about the extent to which the appellant’s own narrative was untrustworthy. The Redacted ITOA indicated that the appellant’s narrative in support of his claim to be homosexual was uniformly untrustworthy, whereas the Complete ITOA showed that the appellant’s explanation that the June 2015 court appearance arose out of an altercation with a female youth worker outside a church was supported by New South Wales Police records. In substance, the Reviewer accepted that the appellant’s account with respect to his June 2015 court appearance was reliable. In other words, the Redacted ITOA deprived the appellant of positive independent support for his narrative.

50    We accept that, in relying on the Redacted ITOA, the Assistant Minister acted not only on an incomplete account of the Reviewer’s reasons and findings but also on a probable misapprehension of the Reviewer’s reasons and findings.

51    We are of the opinion that this circumstance gave rise to jurisdictional error. It is not suggested that the Assistant Minister had actual knowledge of the existence of the Complete ITOA or the contents of the Redacted Paragraph. Where, however, a Minister (or, as here, Assistant Minister) relies on the assessment of a Departmental officer and an officer or officers within the Department withholds or withhold a not insignificant part of that assessment, as happened here, the Minister will be taken to have failed to take that not insignificant material into account. In consequence, the Minister will be taken not to have reached his or her decision according to law and jurisdictional error will arise. It is, of course, for the applicant to persuade a reviewing court that there is jurisdictional error, as contended: see MZYTS at [53]. As explained below, we are of the view that this burden has been discharged in this case.

52    It is common ground that the ITOA Reviewer was an officer of the Department and the Complete ITOA was in the possession of the Department. These circumstances attract some of the principles that informed the High Court’s decision in Peko-Wallsend and Toohey J’s decision in Videto. The present appeal discloses an omission not unlike that considered in Peko-Wallsend. In that case, Departmental correspondence disclosed that certain exploration companies had discovered uranium in a part of land recommended by the Aboriginal Land Commissioner for grant to Aboriginals with a traditional land claim. This fact was unknown to the Commissioner, whose report to the decision-making Minister was therefore apt to mislead the Minister. The High Court held that the Minister’s decision made in reliance on the Commissioner’s report was void. Gibbs CJ, Mason and Dawson JJ did so on the basis that the Minister was bound to take into account information in the possession of his Department that corrected, updated or elucidated the Commissioner’s report, even though the Minister was not himself aware of it: see Peko-Wallsend at 30 (Gibbs CJ), 44-45 (Mason J), 71 (Dawson J). Gibbs CJ explained, at 30-31:

Of course, the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.

In the present case the correspondence in the possession of the Department revealed the material fact that Ranger 68 was within the land recommended to be granted, contrary to the view on which the Commissioner had acted. The circumstance that the correspondence had been addressed to a predecessor in office of the Minister was quite irrelevant, since the letters were not personal, but were among the departmental papers. The material in the possession of the Department must clearly be treated as being in the possession of the Minister: see Daganayasi v. Minister of Immigration [[1980] 2 NZLR 130 at 148]. The summary prepared by the officers in the present case made no mention at all of the facts that the Commissioner was under a misapprehension, and that Ranger 68 was within the area recommended to be granted, and the conclusion of the Federal Court that the Minister did not consider these facts cannot be challenged. The Federal Court therefore rightly concluded that the Minister's power under s.11(1) of the Act was not validly exercised. 

(Emphasis added)

53    The proposition that material in the possession of the Department must be treated as being in the possession of the Minister was developed by Toohey J in Videto, a case concerning a deportation decision where information about the potential deportee’s son was not placed before the Minister. In this context, his Honour said (at 179) that:

If an officer of the Department withholds information from the Minister or his delegate, it is no answer to a complaint that the decision-maker failed to take into account a relevant consideration to say that the matter was not before him. That information was constructively before him.

54    The failure by Departmental officers to forward relevant information had the consequence that the decision to deport was vitiated by a failure to take into account relevant considerations. As his Honour emphasised in that case much depends on the circumstances of the particular case, and the importance of the missing information for the decision at hand: see Videto at 179; see also Buchwald at [74]-[75] (Bromberg J).

55    Having regard to the passages in Peko-Wallsend and Videto referred to above, it must be concluded that the Complete ITOA was constructively before the Assistant Minister, even though he was not aware of it. As Peko-Wallsend and Videto illustrate, however, the fact that the Assistant Minister failed to take into account material that was constructively before him and relevant to his decision under s 501CA(4) does not of itself establish jurisdictional error. Whether or not there was relevant jurisdictional error depends on the importance of that material to the exercise of the statutory task. Thus in Peko-Wallsend, Mason J concluded (at 46) that the Minister was bound to consider the correspondence in the possession of the Department, noting that “it cannot be said that the omitted factor was so insignificant that the failure to take it into account could not have materially affected the decision”. In Videto at 179, Toohey J also emphasised the importance of the missing details in the decision-making process.

56    The focus in such a case as this is on the seriousness of the omission, assessed by reference to the statutory decision-making task and the circumstances of the particular case, including the nature of the omitted material, its cogency and its place in the assessment of the appellant’s claim: compare SZRKT at [111] (Robertson J) and Viane at [28] (Rangiah J). Stated more broadly, the reviewing court is concerned with whether or not the decision-maker has acted in such a way as to warrant the conclusion that the decision-maker failed to perform the task that he or she was required by statute to perform: see also MZYTS at [46], [68].

57    We accept that, as the Assistant Minister submitted, the ITOA Reviewer did not accept the appellant’s claim to be homosexual on account of a number of matters, rather than by reference to any one matter. The matters to which the Reviewer had regard were: (a) inconsistencies between statements made by the appellant in his 2009 protection visa application and in his 2016 ITOA interview; (b) the appellant’s failure to provide a sufficiently detailed account of an alleged homosexual relationship in Australia; and (c) the supposed evidence of his relationships with women in Australia.

58    Regarding the first of these matters, the Reviewer found “it implausible that the claimant would provide such an inconsistent account of pivotal moments in his life during his ITOA interview, if he was genuinely homosexual”, although the Reviewer also acknowledged that “the claimant suffers from mental health issues, that he applied for Protection over seven years ago and that his migration agent allegedly translated his written claims from Arabic to English”. Regarding the second matter, the Reviewer found “it implausible that the claimant would provide such a brief and non-descriptive account if he was genuinely in a de-facto relationship … in Australia”.

59    The Assistant Minister’s reasons for his decision under s 501CA(4) do not disclose whether or not he agreed with the Reviewer’s appraisal of the inconsistencies to which the Reviewer referred. It is possible, for example, bearing in mind the appellant’s mental health, language difficulties, and the passage of time, that the Assistant Minister gave little, even no, weight to this matter. Likewise, the Assistant Minister’s reasons do not disclose the extent to which he agreed with the Reviewer that the brevity of the appellant’s account of a past relationship weighed against him, bearing in mind that the same factors might well be seen as relevant to an appraisal of this account as well.

60    We also accept that, as the appellant submitted, the Reviewer’s non-acceptance that the appellant was homosexual was the cumulative outcome of the Reviewer’s consideration of all three concerns – the suggested inconsistencies, the brevity of the appellant’s account of a past relationship, and the supposed evidence of his relationships with women in Australia. This is evident from the terms of the ITOA. First, in commencing to discuss the appellant’s sexuality, the Reviewer stated that “[f]or the reasons detailed below, I find that [the appellant’s claim to be homosexual] is not a genuine or credible claim” and, subsequently in concluding, the Reviewer stated that “[n]evertheless, based on all of the information before me, I do not accept that the claimant is homosexual” and “[f]or the reasons detailed above, I find that this is not a genuine or credible claim”. The ITOA did not indicate whether or not the Reviewer gave more or less weight to one factor or another. More importantly, the Assistant Minister did not indicate in his reasons whether or not he agreed with the Reviewer’s conclusion, on the same cumulative basis, or on some other basis perhaps attributing significant weight to one matter more than others. It may be, for example, that the Assistant Minister considered that the suggested evidence of multiple relationships with women in Australia was fatal to the appellant’s claim to be homosexual and that the Assistant Minister accepted the Reviewer’s ultimate conclusion for this reason alone. In these circumstances, it does not follow from the fact that the ITOA Reviewer reached a decision adverse to the appellant on the basis of the Complete ITOA that the Assistant Minister would inevitably reach the same decision if he too had the Complete ITOA before him.

61    Further, had the Assistant Minister based his decision on the Complete ITOA, rather than the Redacted ITOA, and been aware that the Reviewer had accepted the appellant’s account of the June 2015 court appearance, it is possible that the Assistant Minister might have been less inclined than the Reviewer to attribute much, if any, weight to the very general and somewhat qualified statement of the sentencing Magistrate in April 2015 that the appellant was “in and out of a relationship … as I understand it”. Unsurprisingly, in light of this latter qualification, the Magistrate’s sentencing remarks provided no details of that relationship. The Assistant Minister might even have considered that the account given of this relationship by the appellant’s migration agent in the 3 August 2016 email was not incompatible with the Magistrate’s sentencing remarks.

62    The fact is that the omission of the Redacted Paragraph from the Reviewer’s assessment of the appellant’s claim to be homosexual and on this account to attract Australia’s non-refoulement obligations was apt to mislead the Assistant Minister about the Reviewer’s reasons for not accepting the claim, including as to the Reviewer’s findings. The omission of the information in the Redacted Paragraph was not insignificant. In circumstances where the Assistant Minister adopted the ITOA process to inform himself about the appellant’s claimed homosexuality and non-refoulement obligations, the fact that he relied on an incomplete and thereby misleading account of that ITOA was serious. The failure to have regard to that information was significant because the Assistant Minister could have reached a different view to the ITOA Reviewer had he known that there was no evidence of the appellant having multiple relationships with women in Australia. The Assistant Minister’s failure to consider the information set out in the Redacted Paragraph was a failure to consider a relevant consideration that the Assistant Minister was bound to consider if he was to inform himself by reference to the ITOA undertaken by a Departmental officer.

63    We would emphasise that the Court in no way seeks to substitute its own decision for that of the Assistant Minister. As we have explained, had the Assistant Minister been aware of the information in the Redacted Paragraph, he might have been more sceptical about the significance of the sentencing Magistrate’s statement that the appellant was “in and out of a relationship … as I understand it”. It is for the decision-maker to consider the information in the Redacted Paragraph and make up his or her own mind about its significance for the decision-making process. It should, however, be clear from what we have said that we do not accept the submission made on the appeal that the information in the Redacted Paragraph was merely “not adverse” to the appellant. As we have already stated, this information showed that the appellant’s account of his June 2015 court appearance was essentially reliable. As we have said, had the Assistant Minister been aware of this, he might well have taken a different view of the appellant’s account in answer to the Reviewer’s question about the Magistrate’s sentencing remarks on April 2015. There is nothing in the reasons of the Assistant Minister that would indicate that he would have reached the same conclusion even if he had had regard to the information in the Redacted Paragraph at the time he made his decision.

64    It follows, in our opinion, from the above discussion that the Assistant Minister would not inevitably reach the same conclusion upon a reconsideration based on the Complete ITOA, notwithstanding that there remain various findings adverse to the appellant’s claim in the ITOA and that relevant non-refoulement obligations were not the only matters considered by the Assistant Minister in his decision not to revoke the original cancellation decision. In our view, there remains a possibility that the Assistant Minister might reach a different conclusion upon a reconsideration of all the matters relevant to the appellant’s claim to be homosexual and that this might lead to a different decision under s 501CA(4) of the Migration Act. We would not therefore deny the appellant relief on the basis of inutility: see Gill at [99].

disposition

65    For the reasons stated, we would allow the appeal and make orders accordingly.

Associate:

Dated:    27 November 2018