FEDERAL COURT OF AUSTRALIA

ALR17 v Minister for Home Affairs [2019] FCAFC 182

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

THE COURT:

1    These two appeals were heard together. According to the appellants, they raise a single issue, namely whether or not, notwithstanding provisions in Pt 7AA of the Migration Act 1958 (Cth) (Act), the Immigration Assessment Authority (IAA) was obliged by natural justice (or procedural fairness) requirements to put in writing any matters which it considered to be adverse to a referral applicant and to invite the person to comment on those matters in writing. Resolution of this issue turns on the proper construction of relevant provisions in Pt 7AA.

2    As will shortly emerge, however, there is an anterior issue which was not confronted by the appellants until it was raised by the Court during the hearing. It concerns the fact that neither below, nor on the appeals, has there been any identification of the particular “adverse material” the subject of the appellants’ procedural unfairness claims. Accordingly, independently of the proper construction of relevant provisions in Pt 7AA, the appeals must fail because the appellants have not established a denial of any procedural fairness which was owed to them. By not identifying relevant “adverse matters” as a subject of their procedural fairness complaint, the appellants have not demonstrated that they were deprived of an opportunity to respond (assuming that procedural fairness so required).

3    Before addressing these matters, it is desirable to set out briefly the relevant background to each appeal.

Summary of background facts in ALR17

4    The appellant, a citizen of Sri Lanka, entered Australia as an “unauthorised maritime arrival”. After the Minister lifted the bar under s 46A(2) of the Act, the appellant applied for a Safe Haven Enterprise (subclass 790) visa (SHEV). He claimed protection on the basis that, if he returned to Sri Lanka, he would be persecuted because of his Tamil race, Catholic religious beliefs, membership of particular social groups comprising failed Sri Lankan asylum seekers and members of the Catholic Youth Committee of the Parish of St Sebastian’s and an imputed pro-Liberation Tigers of Tamil Elam political opinion.

5    After the delegate refused his application on 20 August 2016, the matter was referred automatically to the IAA on 2 September 2016 for review under Pt 7AA of the Act.

6    The IAA affirmed the delegate’s decision. Its reasons for doing so may be summarised as follows:

(a)    Having regard to country information, the appellant did not have a well-founded fear of serious harm based on the practice of his religion, nor of being harmed for being a Catholic Christian ([9]).

(b)    While accepting that the appellant had been involved in a number of community projects, including distributing food after the civil war ended, this did not, and would not, draw him to the attention of the authorities. The IAA found that he would not be targeted because of his community work ([11]).

(c)    While accepting that the appellant had a low level involvement in human rights rallies in 2011/2012, the IAA found that this did not bring him to adverse attention by the authorities then, nor would it in the future ([12]).

(d)    While accepting that it was plausible that the appellant came to the attention of the CID after a rally in 2012 this was because the CID saw the appellant as a means of gathering information, but it was significant that the appellant made no complaints in 2012 about any CID harassment of him ([14]).

(e)    The IAA was not satisfied that visits to the appellant’s family home since he left Sri Lanka were visits from the CID, but rather were visits as part of a general bureaucratic process in Sri Lanka relating to the registration of citizens ([16]-[17]).

7    The above summary is not an exhaustive account of the IAA’s reasons for rejecting the appellant’s claims for protection.

8    The appellant sought judicial review in the Federal Circuit Court of Australia (FCCA). His principal ground of review was that he had been denied procedural fairness by the IAA because it failed to inform him of the nature of the material before it or of any conclusions adverse to him which were open on the material before it, or provide him an opportunity to respond. The appellant’s core proposition was that, despite the terms of s 473DA of the Act, his right to be heard in relation to matters adverse to him had not been excluded by that or any other provision in Pt 7AA. That is because any such exclusion:

(a)    was not expressed in clear and unmistakable language;

(b)    there was no “clear manifestation of a contrary statutory intention”, citing Kioa v West [1985] HCA 81; 159 CLR 550 at 584;

(c)    there were no “plain words of necessary intendment”, citing inter alia Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598;

(d)    the text was not “unambiguously clear” and “the court will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice”, citing Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106 at 110; and

(e)    the text was not expressed with “irresistible clearness”, citing Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 at [15].

9    The appellant’s procedural fairness case was rejected by the primary judge on the basis that he was bound by the decision in DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 per Barker J. His Honour held that s 473DB(1) excludes any common law entitlement that the appellant might otherwise have to be heard in respect of any matters adverse to him in the review conducted under Pt 7AA.

Summary of background facts in DYG18

10    This appeal concerns three family members, each of whom is a citizen of Iran and who entered Australia as an “unauthorised maritime arrival”. After the Minister lifted the bar, DYG18 applied for a SHEV and included his wife and child as members of his family unit. The application was refused by the Minister’s delegate on 7 September 2017 and that decision was automatically referred to the IAA on 13 September 2017. The IAA affirmed the delegate’s decision. Its reasons were summarised pithily by the primary judge in DYG18 v Minister for Home Affairs [2019] FCCA 1142 at [5], the accuracy of which has not been disputed on the appeal:

The Authority summarised the adult applicants' claims at [15] of its reasons. It made factual findings regarding those claims from [17]. In summary, the Authority found that none of the applicants faced a real chance of serious or significant harm, including for reason of the first applicant's attendance at a political rally in 2009, his rollerblading, the complaint he lodged in late 2009, or any combination of these matters. With respect to the second applicant, the Authority found she did not face any harm and would not be of ongoing interest to Iranian authorities arising from her breaches of the dress code over a decade ago.

11    The appellants sought judicial review of the IAA’s decision in the FCCA. Relevantly, they complained that they had been denied procedural fairness because the IAA had failed to inform them of the nature of the material before it, of any conclusions adverse to them and to provide them with an opportunity to address those matters. The primary judge noted at [9] of his reasons for judgment, the then judicial review applicants conceded that they could not succeed in the FCCA on the basis of binding authorities upon that Court.

12    Judge Driver dismissed the judicial review application on the basis that he was bound by the decisions in DBE16 at [59] per Barker J; DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at [72] per Reeves, Robertson and Rangiah JJ and CRJ17 v Minister for Immigration and Border Protection [2018] FCA 1404 at [49]-[51] per Banks-Smith J, all of which, in one way or another, held that there were no procedural fairness obligations under Pt 7AA for the IAA to put dispositive matters to a referral applicant or to notify him or her that a matter might be determined on a different basis from how the matter had been determined by the delegate. Those cases highlight the differences between a referral under Pt 7AA and the principles found in authorities such as SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152, which are directed to review under Pt 7 of the Act.

Consideration and determination of the appeals

13    We will not summarise the parties’ respective submissions as they are addressed, where relevant, in our reasons for dismissing the appeals.

14    As outlined above, there is a fundamental flaw in the appeals which provides a sufficient basis for them both to be dismissed. That is because, assuming for the moment (and without deciding) that the IAA’s procedural fairness obligations extend as far as the appellants claim, the appellants have not established any denial of procedural fairness. That is simply because they have not identified any particular “adverse matters” which were taken into account by the IAA and in respect of which the appellants were denied an opportunity to respond. This omission necessarily means that the appellants cannot demonstrate that they were deprived of the opportunity to comment on those adverse matters, nor can they establish any practical injustice which is the central concern of procedural fairness.

15    During the course of the hearing, the Court raised these matters with Mr Kline, who appeared for the appellants. Mr Kline candidly acknowledged that no particular adverse material was identified. He submitted that the appellants were unable to identify the particular material because they were not invited by the IAA to address it on any particular matter. We cannot accept that submission without some qualification. The referral applicant will have been provided with a copy of the delegate’s reasons and is afforded an opportunity to make submissions to the IAA and to rely upon any “new information” which meets the relevant requirements relating to that matter in Pt 7AA. It is true that there may also be other adverse material before the IAA, which was not before the delegate, and which is not disclosed to the referral applicant for comment. But if that material is used by the IAA adversely to the referred applicant, that should be apparent in the IAA’s reasons and the practical injustice will also be apparent.

16    As the Court pointed out during oral address, part of the difficulty for the appellants in not identifying any particular adverse material relied upon by the IAA and which was not disclosed to them for comment lies in the central role of “practical injustice” in procedural fairness, which has been recognised and established in cases such as Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37] per Gleeson CJ; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 at [156] and [157] per Hayne, Crennan, Kiefel and Bell JJ; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326 at [57] per Gageler and Gordon JJ and Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at [82] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.

17    Mr Kline submitted that the practical injustice for the appellants was the fact that there was a failure to provide a hearing, citing WZARH at [60]. The difficulty with that submission, as Gleeson J pointed out during the course of the hearing, is that the right to a hearing is removed by the terms of Pt 7AA themselves and, in particular, s 473DB(1).

18    The appellants’ failure to particularise any “adverse material” the subject of their procedural unfairness case, and the related failure to identify any practical injustice, are picked up in the Minister’s notice of contention dated 27 August 2019. These matters are fatal to the appeals, which will be dismissed, with costs. It is therefore unnecessary to determine the balance of the notice of contention.

19    For these reasons, it is also unnecessary to determine the issue of statutory construction which is described in [1] above. In view of the parties’ detailed submissions in respect of the matter, however, we make the following general observations.

20    It is desirable at the outset to set out s 473DA(1), which is located in Pt 7AA:

473DA    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.

21    This provision should not be looked at in isolation. It needs to be considered in the context of other relevant provisions in Pt 7AA which illuminate the confined nature of the review process and highlight the differences between the Pt 7AA review process and review processes under Pts 5 and 7 of the Act.

22    Section 473BA provides that Pt 7AA provides “a limited form of review” of fast track decisions and that the IAA “does not hold hearings” and is required to review decisions “on the papers”.

23    Section 473DA(2) provides that the IAA is not obliged to give to a referred applicant any material that was before the Minister when the decision was made under s 65 of the Act.

24    Section 473DB(1) requires the IAA to review a fast track reviewable decision by “considering the review material” provided to it under s 473CB and, subject to Pt 7AA, prohibits the IAA from accepting or requesting new information and from “interviewing” the referred applicant.

25    Section 473DB(2) empowers the IAA to make a decision on review “at any time after the decision has been referred to [it]”, which again highlights the IAA’s ability to determine a referral without holding a hearing.

26    Although the particular issue of statutory construction which arises in these appeals did not arise in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600, helpful guidance is provided by the High Court’s observations concerning the limited review regime under Pt 7AA. Those observations include that:

(a)    a Pt 7AA review is of a limited kind, as is reflected in ss 473BA and 473FA(1) (at [1]);

(b)    consistently with s 473DB(1), Div 3 of Pt 7AA “is taken to be an exhaustive statement of the natural justice hearing rule in relation to reviews conducted by [the Authority]” (at [20]);

(c)    the IAA is obliged to conduct a review by considering the “review material” provided to it under s 473CB(1) without accepting or requesting new information and without interviewing the referred applicant (s 473DB(1)) (at [22]);

(d)    the IAA is not obliged to give to a referred applicant material that was before the Minister or a delegate when a decision was made under s 65(1) (s 473DA(2)) (at [26]);

(e)    restrictions are imposed by s 473DD on when the IAA can consider new information (at [28]);

(f)    there is a general exhortation in s 473FA that the IAA is pursue the objective of providing a mechanism of “limited review” that is “efficient, quick, free of bias and consistent with Division 3 (conduct of review)” (at [36]);

(g)    in contrast with the review in the General Division of the AAT, the IAA’s dispositive powers are not as broad, because it cannot set aside the referred decision and substitute its own decision, nor is it authorised to exercise all of the powers and discretions conferred upon the Minister (at [42]);

(h)    there are “limitations on the form of review for which Pt 7AA provides” (at [52]); and

(i)    Pt 7AA is framed on the assumption of the Minister having complied with the requirements of the code of procedure in Subdiv AB of Div 3 of Pt 2 (at [45]).

27    These matters all highlight that Pt 7AA reviews are more restrictive than those conducted under Pts 5 and 7 of the Act.

28    There is a further relevant aspect of Plaintiff M174/2016. It relates to the significance which the High Court attached to s 57(2) in construing Pt 7AA. Section 57(2) imposes obligations on the Minister to give to a visa applicant particulars of relevant information, to ensure as far as is reasonably practicable that the applicant understands why the relevant information is relevant to consideration of the visa application, and to invite the applicant to comment on it. This obligation arises at the level of primary decision-making i.e. before a Pt 7AA review. The plurality (Gageler, Keane and Nettle JJ) noted at [11] that compliance with s 57(2) is a condition of the valid performance of the Minister’s duty to consider a valid application and that non-compliance rendered a decision to refuse to grant a visa invalid and amenable to judicial review. The relevance of this to Pt 7AA was explained by the plurality at [47]:

Non-compliance with s 57 is different, because it denies an applicant an opportunity to respond to prejudicial adverse information and to have any response included in the review material to be given to the Authority in a review under Pt 7AA. If the procedures for which Pt 7AA provides were so constrained as to preclude the Authority from conducting the review in a manner which would negate the want of procedural fairness that would be occasioned by an applicant having been denied the opportunity that s 57 required, that would be a powerful and potentially decisive consideration weighing in favour of the plaintiff's construction. The procedures, however, are not so constrained.

29    As noted above, in DYG18, Judge Driver dismissed the judicial review application on the basis that there was binding authority against the then judicial review applicants’ claim that they had been denied procedural fairness because the IAA failed to inform them of the nature of the material before it and any adverse conclusions which it felt were open to it on that material.

30    In these appeals, the appellants contended that the three decisions to which Judge Driver referred (i.e. DBE16, DGZ16 and CRJ17) were either plainly wrong or had been decided per incuriam because the Courts there had not been presented with the contentions made in these two appeals, with particular reference to the contention that neither s 473DA, nor any other provision in Pt 7AA, manifested a sufficiently clear intention to exclude all aspects of natural justice, including the rules relating to the disclosure of adverse material and providing an opportunity to comment on it.

31    We will focus first on the Full Court’s decision in DGZ16. There, at [72], Reeves, Robertson and Rangiah JJ stated:

In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant’s case and to provide the appellant with an opportunity to respond.

32    Far from being persuaded that this statement is plainly wrong, we consider that it is plainly correct having regard to the matters set out at [20] to [28] above. It is noted that the statement is directed to a narrower issue than that raised in these appeals. The issue in DGZ16 was whether the IAA is required to notify the referred applicant that it is considering taking a different and adverse view to the referred applicant of material which was considered by the delegate. In those circumstances, the statement in DGZ16 covers part, but not all, of the appellants’ contentions here because their claims of procedural fairness extend to any adverse material taken into account by the IAA, not merely that which was before the delegate. The relevant passages in DBE16 and CRG17 are also directed to a narrower operation of procedural fairness.

33    The position is not altered by reference to the appellants’ propositions as summarised at [8] above in support of their contention that DBE16, DGZ16 and CRJ17 were decided per incuriam. In our respectful view, the combined effect of s 473DA, together with the other relevant provisions in Pt 7AA which we have outlined at [22] to [28] sit uncomfortably with that contention.

34    The appellants submitted that their construction of the relevant provisions in Pt 7AA is supported by the fact that, in the Explanatory Memorandum to the Migration and Maritime Powers Legislation (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), which inserted Pt 7AA into the Act, the purpose of s 473DA was said to be to make clear that ss 473GA and 473GB and Div 3 of Pt 7AA “are an exhaustive statement of the requirements of the natural hearing justice rule in relation to the matters they deal with” (emphasis added). That is reminiscent of the wording of s 51A(1) as considered by the High Court in Saeed. That submission must be rejected on the basis that the plain text of s 473DA prevails over an incorrect and inconsistent statement in the Explanatory Memorandum.

35    It should be noted that after judgment was reserved in these two appeals, the High Court published its judgment in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34. The parties in the present appeals availed themselves of the opportunity to provide supplementary submissions on the relevance of that decision. While we acknowledge that, unlike the present appeals, the primary issue there related to the relationship between ss 473DA and 473GB(2)(a) within the scheme of Pt 7AA, we consider that, contrary to the appellant’s post-hearing contentions, the reasoning of the plurality at [29]-[36] is consistent with the views we have expressed above concerning the effect of s 473DA.

36    It is, however, both unnecessary and inappropriate to take the matter of statutory construction any further in these proceedings. That is simply because, as emphasised above, the appellants have not identified the “adverse material” which lies at the heart of their procedural fairness complaint. It is well established that the obligation to afford procedural fairness to parties in controversy depends upon the particular statutory framework and what is appropriate in terms of procedural fairness depends on the circumstances of the case, including the nature of the inquiry, the subject matter and the rules under which the decision-maker is acting (see, for example, Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504 per Kitto J and Kioa at 584-585 per Mason J). The circumstances of the case must include an appropriate identification of the material which is said to be adverse and in respect of which the person affected was denied an opportunity to comment. That has not occurred in these appeals and, therefore, they must be dismissed.

Conclusion

37    For these reasons, both appeals will be dismissed, with appropriate orders for costs.

Associate:

Dated:    18 October 2019