FEDERAL COURT OF AUSTRALIA

CVS16 v Minister for Immigration and Border Protection [2018] FCA 951

ORDERS

THE COURT ORDERS THAT:

1.    The appellant be granted leave to rely upon the proposed amended notice of appeal accompanying the appellant’s submissions dated 4 April 2018, with that document being treated as an amended notice of appeal in these proceedings.

2.    The appeal be dismissed.

3.    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

BROMWICH J:

1    This is an appeal from orders made by a judge of the Federal Circuit Court of Australia. His Honour dismissed an application for judicial review of a decision of the Immigration Assessment Authority. The authority had affirmed a decision of a delegate of the first respondent, then known as the Minister for Immigration and Border Protection, now the Minister for Home Affairs, to refuse the grant of a particular type of protection visa known as a Safe Haven Enterprise (subclass 790) visa (SHEV) to the appellant.

2    The appellant is from Iran. His history from arrival does not need to be detailed. It suffices for present purposes to note that:

(1)    he arrived by boat in Darwin;

(2)    he has spent a period of time in the community, a period of time in gaol for an offence committed here, and a period of time in immigration detention following the cancellation of a bridging visa; and

(3)    the basis for his claims for protection turns on an asserted fear of persecution for religious beliefs, based on conversion to Christianity as a Jehovah’s Witness, and an asserted fear of persecution for being homosexual.

3    On 4 July 2016, the Minister’s delegate refused the grant of the SHEV. On 8 July 2016, the delegate’s decision was automatically referred to the Authority for a limited form of review.

4    The Authority conducts reviews of protection visa refusals in relation to “fast track” applicants, being protection visa applicants who arrived by boat after 13 August 2012 and before 1 January 2014. The Authority does not have the power to grant protection visas, but only to either affirm the delegate’s decision or refer the case back to the Minister’s Department for further consideration, for example, after making a finding that the applicant is a refugee.

5    On 7 September 2016, the Authority affirmed the delegate’s decision not to grant the applicant the SHEV. The appellant subsequently sought judicial review of the Authority’s decision. On 15 February 2017, the appellant appeared for himself before the primary judge by video link at a hearing of his application for judicial review. His Honour received additional submissions after the hearing, the last being on 19 April 2017. On 18 May 2017, his Honour dismissed the application with costs, publishing reasons for doing so at the time of making those orders.

Pro bono legal assistance

6    The Court gratefully acknowledges the assistance given by Mr Chris Peadon in accepting a pro bono referral from the Court, and in furnishing detailed written submissions, together with a proposed amended notice of appeal. Those submissions were responded to by written submissions for the Minister.

Before the primary judge

7    The application for judicial review in the Federal Circuit Court of Australia, filed on 30 September 2016, was cast in terms that largely mirrored the grounds of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth), without particulars. Accordingly, those grounds do not need to be considered further, especially as they were not the basis upon which his Honour conducted the judicial review hearing. Rather, counsel for the Minister, quite properly, raised alternative grounds arising from the possibility that the Authority had not considered some of the material provided to it by the appellant. The Minister ultimately submitted, and his Honour in substance accepted, that it was not established that this had, in fact, occurred.

8    The primary judge succinctly summarised the findings of the Authority as follows (omitting footnotes containing court book references):

14.    In summary, the Authority:

•    accepted that the applicant had attended some Jehovah’s Witnesses services and had participated in some bible study groups, but did not accept that the applicant had converted to Christianity or that he has a genuine interest in the religion;

•    found that there was not a real chance of the applicant being harmed for engaging in Christian activities in Iran or Australia;

•    did not accept to be credible the applicant’s claim to be homosexual;

•    did not accept the applicant’s claim that he had set up a homosexual relationship and tore up the Koran;

•    did not accept that the applicant’s family or the Iranian authorities had been informed about his activities in Australia;

•    accepted that the applicant may have been assaulted in 2005 or 2006 for talking to a girl in the street and that he had been mistreated by the Basij in 2007 for smoking and eating in the street during Ramadan, but considered that these were isolated events that occurred many years ago, that no subsequent harm resulted, and that there was not a real chance that he would experience such harm in the reasonably foreseeable future;

•    acknowledged that the applicant had been detained and punished for his past use of alcohol and observed that there was no indication that he faced a real chance of serious harm on account of being convicted for alcohol-related offences;

•    rejected the applicant’s claim to fear harm by reason of the “data breach” incident that occurred in Australia in February 2014;

•    rejected the applicant’s claims to fear serious harm for being a failed asylum seeker or for having departed Iran unlawfully; and

•    rejected the applicant’s complementary protection claims.

9    The primary judge summarised the real issue before his Honour as follows (again omitting footnotes containing court book references):

21.    … the issue of whether the Authority overlooked some of the material that the applicant had provided to it and, if so, whether that amounts to a jurisdictional error, was raised by counsel for the Minister in his written submissions.

22.    The Minister addresses that issue in the following way. On 29 July 2016 the applicant provided a number of documents to the Authority under cover of an e-mail. They were as follows:

•    a letter from the applicant dated 28 July 2016 in which he challenged aspects of the delegate’s decision and referred to some items of country information on how being lashed could have very minimal to no scarring; [first document]

•    a letter of support from Callen Mckinley dated 28 July 2016 in which he attested to the applicant’s devotion to Christianity and his participation in bible sessions with Jehovah’s Witnesses; [second document]

•    an ASETTS Torture and Trauma Assessment Report dated 24 May 2016; [third document]

•    a photograph of the applicant’s arms; [fourth document]

•    a Yongah Hill IDC People in Detention – Request Form completed by the applicant on 12 July 2016 requesting that some documents be translated; [fifth document]

•    translated copies of the applicant’s brother’s national identification card and his driver’s licence; [sixth document]

•    a translated copy of a Facebook exchange between the applicant and another person between 30 November and 4 December 2015; [seventh document]

•    country information concerning baptism requirements for Jehovah’s Witnesses from Mr Mckinley. [eighth document]

23.    The first, third, fifth and seventh documents listed above were referred to, and discussed, by the Authority at [4]-[5] and [7]38. The second, fourth, sixth and eighth documents, however, were not expressly referred to in the Authority’s reasons for decision.

10    By way of detailed submissions before the primary judge, the Minister asserted that the appellant had not established that the documents listed above as the second, fourth, sixth and eighth documents had been overlooked. The Minister submitted in the alternative that even if those documents had been overlooked, there was no jurisdictional error in the circumstances. The primary judge inferred that documents that were not specifically referred to by the Authority were not considered by it to be material to its decision, relying upon s 473EA(1) of the Migration Act 1958 (Cth), read with s 25D of the Acts Interpretation Act 1901 (Cth). Accordingly, no jurisdictional error was found to be established upon that basis.

11    The primary judge also received evidence about certain other documents. The appellant asserted that he had provided those documents to his departmental case worker. His Honour made an unassailable factual finding that none of those documents were furnished to the case worker prior to the Authority’s decision. That conclusion is not challenged on appeal and does not need to be considered further.

The grounds of appeal

12    The Minister did not make any submissions to oppose (or to consent to) the appellant relying upon a proposed amended notice of appeal, which was provided by counsel for the appellant by email. Leave should therefore be granted to that end. The proposed amended notice of appeal should be treated as an amended notice of appeal in the proceeding. The grounds relied upon are as follows (replacing the appeal book references with the document number references set out in [9] above):

1.    The learned Primary Judge erred in concluding that the Second Respondent (IAA) did not make a jurisdictional error by failing to determine whether the documents identified below comprising “new information” (Migration Act 1958 (Cth) (Act), s 473DC(1)) should be considered by the IAA pursuant to s 473DD of the Act in making a decision in relation to the appellant’s fast track reviewable decision:

a.    A letter from Mr Callen McKinley dated 28 July 2016 [second document]

b.    A photograph of the appellant’s arms [fourth document];

c.    Translated copies of the appellant’s brother’s national identification card and driver’s licence [sixth document]

d.    Country information [eighth document]

2.    In the alternative, if the IAA did not overlook the documents identified in ground 1 above, the learned Primary Judge should have concluded that the IAA made a jurisdictional error by failing to give reasons in respect of the discretion conferred by s 473DD of the Act, as required by s 473EA of the Act and s 25D of the Acts Interpretation Act (Cth).

The nature and scope of appeals to this Court

13    In Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25, it was observed at [45]:

Appeals to this Court are by way of a rehearing (Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 (Branir) at [20]). An appeal by way of rehearing requires this Court to decide the case for itself as to both facts and law and give effect to its own judgment (Warren v Coombes (1979) 142 CLR 531 at 552; 23 ALR 405 at 406). However, this does not remove the need to find error on appeal before intervening (Branir at [21]). In practice, the application of these principles may involve accepting the findings of the trial judge, especially factual findings, including as to the reliability and credit of witnesses and the weight that should be given to competing evidence, unless shown to be wrong (Cabal v United Mexican States (2001) 108 FCR 311; [2001] FCA 427 at [223]–[224], quoted with approval in Branir at [23]). However it should be observed that as there was no oral evidence in this case and all the representations were before this Court in documentary form, this Court is under no disadvantage compared to the primary judge in relation to consideration of the facts and evidence. The requirement for error to be established nevertheless remains.

14    It is worth emphasising the passage from Warren v Coombes (1979) 142 CLR 531 at 552 that is referred to in the preceding quote. Gibbs ACJ, Jacobs and Murphy JJ observed, in that much cited passage:

… we can see no justification for holding that an appellate court, which, after having carefully considered the judgment of the trial judge, has decided that he was wrong in drawing inferences from established facts, should nevertheless uphold his erroneous decision. To perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process. The duty of the appellate court is to decide the case-the facts as well as the law-for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

15    While this Court may be called upon to form its own view as to what transpired before the Authority, this may only be done in the context of the need to find error on the part of the primary judge. This Court has no original jurisdiction in most migration matters, including judicial review of decisions of the Authority, and therefore no business reconsidering the Authority’s reasons as though it was conducting judicial review at first instance, effectively overlooking the vitally important role of the primary judge. This particularly important manifestation of the role of this Court in migration appeals from the Federal Circuit Court is supported by both long-standing and current authority: see the Full Court decision in Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]; see also SZJHE v Minister for Immigration and Citizenship [2008] FCA 1771 at [6]-[8]; CNN15 v Minister for Immigration and Border Protection [2017] FCA 579 at [13]-[14]; and DPE16 v Minister for Immigration and Border Protection [2018] FCA 61 at [11]. As Flick J pointed out in BGZ15 v Minister for Immigration & Border Protection [2017] FCA 1095 at [8], taking such an approach impermissibly reduces proceedings before the Federal Circuit Court to a “preliminary skirmish”, as decried in Coulton v Holcombe (1986) 162 CLR 1 at 7.

16    Although an appeal court cannot shy away from finding error in an appropriate case, a conclusion as to error must still be reached. It must be found that the conclusion reached by the primary judge was wrong. In this case, the primary judge had the benefit of seeing better quality copies of the documents that the appellant had furnished, and was therefore in a better, albeit slightly better, position to ascertain whether the additional four documents were relevant to the case being advanced for judicial review. This Court is otherwise in the same position as the primary judge.

Legislative scheme

17    The provisions of the Migration Act that are relevant to this appeal are as follows:

473DC    Getting new information

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

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

(b)    the Authority considers may be relevant.

(2)    The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances.

(3)    Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information:

(a)    in writing; or

(b)    at an interview, whether conducted in person, by telephone or in any other way.

473DD    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.

473DE    Certain new information must be given to referred applicant

(1)    The Immigration Assessment Authority must, in relation to a fast track reviewable decision:

(a)    give to the referred applicant particulars of any new information, but only if the new information:

(i)    has been, or is to be, considered by the Authority under section 473DD; and

(ii)    would be the reason, or a part of the reason, for affirming the fast track reviewable decision; and

(b)    explain to the referred applicant why the new information is relevant to the review; and

(c)    invite the referred applicant, orally or in writing, to give comments on the new information:

(i)    in writing; or

(ii)    at an interview, whether conducted in person, by telephone or in any other way.

(2)    The Immigration Assessment Authority may give the particulars mentioned in paragraph (1)(a) in the way that the Authority thinks appropriate in the circumstances.

(3)    Subsection (1) does not apply to new information that:

(a)    is not specifically about the referred applicant and is just about a class of persons of which the referred applicant is a member; or

(b)    is non-disclosable information; or

(c)    is prescribed by regulation for the purposes of this paragraph.

Note:    Under subsection 473DA(2) the Immigration Assessment Authority is not required to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65.

Ground 1 – asserted error below as to failure by the Authority to apply s 473DD of the Migration Act to particular documents

18    The submissions for the appellant accept that the omission of any direct reference by the Authority to the four documents in question does not necessarily mean that they were overlooked, acknowledging the decision in Applicant WAEE v Minister for Immigration and Border Protection [2003] FCAFC 184; 236 FCR 593 at [46]. The appellant also accepts that the Authority’s reasons were required to be read beneficially by the primary judge in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. However, the appellant submits that the part of the Authority’s reasons under the heading “Information before the IAA” should have compelled the conclusion by the primary judge that the four documents were overlooked and that the Authority therefore failed to consider whether s 474DD permitted or prohibited them being considered, because:

(1)    none of the documents were referred to in that part of the reasons;

(2)    a number of documents provided by the appellant to the Authority after the delegate’s decision were referred to;

(3)    that part of the reasons:

(a)    distinguished between documents that comprised “new information” within the meaning of s 473DE and those that did not;

(b)    explained why the Authority was not satisfied that there were exceptional circumstances to justify considering the “new information” in several of those documents; and

(c)    explained why the Authority was satisfied that there were exceptional circumstances justifying it considering the Association for Services to Torture and Trauma Survivors (ASeTTS) Torture and Trauma Assessment Report dated 24 May 2016;

(4)    it was apparent from the above that this part of the reasons was intended to refer to all additional information provided to the Authority after the delegate’s decision that could potentially be new information, and to explain the conclusions reached as to whether the material was indeed “new information” and, if so, whether the Authority had formed the relevant state of satisfaction for such material to be considered in accordance with s 473DD.

19    The appellant further submits that the information in the four documents related to the appellant’s claims for protection, such that in no sense would the exercise of the discretion to have regard to them have been futile. For example, the second document directly addressed the appellant’s claims concerning his conversion to Christianity.

20    The Minister, emphasising that the appellant bears the onus of establishing that the four documents were overlooked and thus that the primary judge erred in failing to find error in this respect, relies upon and repeats his submissions made before the primary judge, which were succinctly but thoroughly summarised by his Honour as follows, citing weighty authority (footnotes incorporated into the text):

24.    The Minister submits that the Court should hold that the documents in question were not overlooked or that, if they were, the Authority having overlooked them does not amount to a jurisdictional error.

25.    First, the Minister notes that the onus is on the applicant to demonstrate that the documents in question were overlooked, that is, that the Authority was ignorant of their existence [Cf Minister for Immigration v SZGUR (2011) 241 CLR 594 at 616 [67]-[68] per Gummow J ]. The fact that the documents have not been referred to in the Authority’s reasons does not necessarily mean that they have been overlooked [See, for example, Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [46] per French, Sackville and Hely JJ; Minister for Immigration v SZSRS (2014) 309 ALR 67 at [43] per Katzmann, Griffiths and Wigney JJ]. In reviews conducted under Parts 5 and 7 of the Migration Act, for example, it is well-established law that, ordinarily, if a matter has not been addressed in a decision-maker’s reasons, it may be inferred by a reviewing court that that is because the decision-maker formed the view that the matter is not material to his or her decision [Minister for Immigration v Yusuf (2001) 206 CLR 323 at 330-331 [5], 331-332 [10] per Gleeson CJ, 338 [35] per Gaudron J, 346 [68]-[69] per McHugh, Gummow and Hayne JJ]. There is no good reason why those principles ought not to apply to reviews conducted by the Authority, given the similarities between ss.368(1) and 430(1), on the one hand, and s.473EA(1) [read with s.25D of the Acts Interpretation Act 1901 (Cth)], on the other. The Minister submits that the application of those principles leads to the conclusion that the Authority can be taken not to have considered the information contained in the documents to be material.

26.    Secondly, the Minister submits that the Authority may have formed the view that the material in question comprised new information (as defined in s.473DC(1)), with the consequence that it had no power to consider it under s.473DD. The Authority is under no obligation to give reasons for deciding whether or not certain information comprises new information; s.473EA(1)(b) does not, to borrow some words of Gummow J in Minister for Immigration v SZGUR [(2011) 241 CLR 594 at 616 [69]] in respect of the relevantly identical obligation in s.430(1), require the Authority “to describe or state the procedural steps taken by it in reviewing the [delegate’s] decision”, but only the “reasons why the [IAA] considers the application should be dismissed.” [Minister for Immigration v Yusuf (2001) 206 CLR 323 at 396 [235] per Callinan J. See also Re Minister for Immigration; Ex parte Durairajasingham (2000) 74 ALJR 405 at [65] per Hayne J].

27.    The Minister submits in the alternative that the Court should infer from the absence of any express reference in the Authority’s reasons to the documents in question that the Authority considered the documents not to be relevant (and, therefore, not to comprise new information as defined in s.473DC(1)). That is because the applicant’s brother’s identity documents were irrelevant to any issues arising on the review; the photo of the applicant’s arms was immaterial since “[t]he absence of scarring d[id] not factor into [the Authority’s] assessment of the applicant’s claims” and the Authority accepted, at [22], that the applicant was mistreated in 2007 by the Basij for smoking and eating in the street during Ramadan; the letter from Mr Mckinley was immaterial because the Authority accepted, at [13], that “the applicant may have attended some Jehovah’s Witness church services in Sydney in 2014 and in immigration detention has participated in bible study groups” but found that the applicant was not genuine in his beliefs due to his lack of knowledge of the key precepts of the Jehovah’s Witness faith; and the summary of the baptism requirements of Jehovah’s Witnesses was immaterial for the same reasons.

28    The Minister submits that the Authority’s reasons at [13] are illustrative of the immateriality of the abovementioned documents, particularly the letter from Mr Mckinley. At [13], the Authority referred to the “letters of support [which] provided that the applicant may have attended some Jehovah’s Witness church services in Sydney in 2014 and in immigration detention has participated in bible study groups”. The Court may infer that those letters comprised the letter from Mr Mckinley dated 29 September 2015 and the letter dated 6 March 2016, the elder belonging to the Jehovah’s Witnesses, which the applicant gave to the delegate on 10 March 2016. The second letter from Mr Mckinley adds nothing of substance to the first letter. If that much were accepted, it is then but a short step to take to say that the Authority, by not referring to the second letter, can be taken to have formed the view that it was not relevant, since it did not add anything material to what Mr Mckinley had said about the applicant during the visa application process.

29.    Thirdly, the Minister submits that, if the documents in question comprised new information as defined, and it is assumed that the Authority did not ask itself the questions posed by ss.473DD(a) and (b) (that is, that it overlooked the documents), the result is not jurisdictional error, for the following reasons.  

30.    To determine whether a jurisdictional error has been made, the critical question will always be whether the decision-maker has made a decision outside of the limits of the functions and powers conferred upon him or her or does something which he or she lacks power to do or whether the decision-maker has “incorrectly decid[ed] something which [he or she] is authorised to decide” [Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 141 [163] per Hayne J].  The former is a jurisdictional error; the latter is an error within jurisdiction.

31.    In the present context, much will depend upon the circumstances and the nature of the new information.  For example, it cannot be said that invalidity is the result if, on judicial review, the information is determined not to meet the requirements of s.473DD(b) - which the Minister submits can be said of the four documents under consideration. The information contained in each document could have been provided to the Minister before a decision was made under s.65 of the Migration Act [cf s.473DD(b)(i)), or, if such information can be said to comprise credible personal information vis-à-vis the applicant, was previously known (cf s.473DD(b)(ii))].

32.    Accordingly, in the Minister’s submission, even if each item met the definition of new information, the Authority’s failure to ask the questions posed by s.473DD did not, in the circumstances of the present case, affect the exercise of its decision-making power under s.473CC, since none of the four items could have been considered under s.473DD in any event.  If the Authority’s exercise of power is unaffected, jurisdictional error cannot be the result.

21    The Minister, in response to the submissions for the appellant outlined above, also submits that the appellant’s submissions relying on the part of the Authority’s reasons headed “Information before the IAA” did not provide a sufficient basis for the inference that the four documents were overlooked. The Minister submits that it is not enough that an inference could be drawn that the four documents were overlooked if an equally plausible explanation was that they were not overlooked, but that they were not referred to because, for example, they were not considered material in the sense of being relevant. In this regard, the Minister relied, by way of example, on the submissions as to relevance that were summarised by the primary judge at [27]-[28], as reproduced above. In considering those submissions, it is instructive to have regard to the observations of Gummow J in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [67] to [70], which indicate the steep hurdle to be surmounted in proving that something not referred to has been overlooked in circumstances where there was no obligation to make such a specific reference.

22    The Minister further submits that, in any event, focussing on the Authority’s reasons in support of the primary judge’s conclusion that the documents were not shown to have been overlooked, the inference sought to be drawn by the appellant was not fairly available because:

(1)    there was no basis for inferring, or otherwise concluding, that the heading “Information before the IAA” was intended to refer to all additional information before the Authority, as opposed to the information that it considered material;

(2)    the mere fact that some, but not all, of the documents were referred to was not determinative of whether or not other documents were overlooked;

(3)    there was not a sufficient basis for an inference that documents not referred to were overlooked merely because the Authority:

(a)    drew a distinction between some documents as comprising “new information” and others which did not meet that description;

(b)    gave an explanation as to why it was not satisfied that there were exceptional circumstances warranting departure from the prohibition in s 474DD in relation to documents it identified as “new information”; and

(c)    found that there were exceptional circumstances that warranted consideration of the Assessment Report.

23    Upon a careful examination of the four documents (albeit that the photograph being document four is not a clear reproduction) and the passages of the Authority’s reasons, in the context of the primary judge’s reasons, the Minister’s submissions should be accepted. The submissions for the appellant rise no higher than asserting that the primary judge could have come to a different conclusion, rather than that his Honour erred in the conclusion reached. As the primary judge has not been shown to have been wrong, this ground of appeal must fail.

24    The primary judge has not been shown to have erred in his Honour’s assessment of the Authority’s approach to the application of s 473DD of the Migration Act. For completeness, I should add that not only do I not find error on the part of his Honour, but I agree with his Honour’s conclusion upon my own assessment of the Authority’s reasons.

Ground 2 – in the alternative, error below as to asserted failure to provide reasons for the process under s 473DD of the Migration Act

25    The submissions for the respondent advance this ground upon the basis that “it is held that the [Authority] did not overlook the ‘new information’ that it omitted to mention …”. This opening comment requires correction as to the task of the primary judge, and, on appeal, the function of this Court. It suggests that the primary judge was required to find that the documents had not been overlooked, as opposed to the appellant having failed to establish that they had been overlooked. With that adjustment, the appellant contends in the alternative that the Authority fell into jurisdictional error in failing to state its reasons in respect of the discretion in s 473DD.

26    Reliance is placed by the appellant on the terms of the reasons requirement in s 473EA, coupled with s 25D of the Acts Interpretation Act 1901 (Cth), together with CHF16 v Minister for Immigration and Border Protection [2017] FCAFC 192 at [40]-[42]. The appellant submits that the absence of any statement in the Authority’s reasons as to whether the new information was or was not excluded under s 473DD left the parties in the dark. He submits that it was nothing more than supposition for the primary judge to have drawn the inference at [38] that the documents were not referred to because they were not considered to be material.

27    The submissions for the appellant refer to, but seek to distinguish, the decision of Thawley J in BCQ16 v Minister for Immigration and Border Protection [2018] FCA 365, wherein his Honour found, at [50], after quoting SZGUR at [31]-[32], that “s 473EA does not require a statement of decision to refer to a procedural decision taken in the course of a review and, secondly, the statutory scheme is such that a challenge to the failure to exercise, or the exercise of, the discretionary powers in s 473GB are practically limited”; see also Thawley J’s earlier observations in BCQ16 at [45]. The basis for distinction was said to be that both BCQ16 and SZGUR were concerned with the exercise of a discretion to gather information, rather than, as in this case, information relevant to the making of a finding on a material question of fact, citing SZGUR at [32].

28    The Minister submits in response that:

(1)    the obligation to give reasons that is imposed by s 473EA(1)(b) of the Migration Act (when read with s 25D of the Acts Interpretation Act) is confined to the ultimate decision, and does not extend to procedural or antecedent decisions made during the review process;

(2)    CHF16 did not support the appellant because the Full Court in that case, at [49], did not consider it necessary to resolve the question of whether there was a statutory obligation to give reasons for the exercise of the discretion;

(3)    the decision in BCQ16 at [45] and [50] should be followed to the effect that “s 473EA does not require a statement of decision to refer to a procedural decision taken in the course of a review”; and

(4)    this case is not distinguishable from BCQ16 and SZGUR because the reasons that the appellant contends were required went to a procedural issue of whether otherwise prohibited material should be considered, not the ultimate findings on material questions of fact.

29    The Minister’s submissions must again be accepted. Far from finding that BCQ16 was distinguishable or should not be followed, I am satisfied both that it was correctly decided and that it is relevantly indistinguishable in its application to the present point. The same conclusion is inevitable without the benefit of BCQ16. Section 473EA(1) is directed to the decision, and reasons for decision, on the review itself, as well as the day and time that statement of reasons is made. Such a precise requirement, at a particular date and time, is inconsistent with procedural decisions along the way needing to be the subject of any record at all, let alone a formal record of the type that the appellant contends is required. That is especially so when the decision in question is as to a discretion to depart from a statutory mandate that otherwise prohibits consideration of such material.

30    There was no obligation on the Authority to give reasons for failing to state its reasons in respect of the discretion in s 473DD, and therefore no jurisdictional error in not doing so. It follows that no error on the part of the primary judge has been established and this ground of appeal must therefore fail.

Conclusion

31    The appeal must be dismissed with costs.

Associate:

Dated:    22 June 2018