FEDERAL COURT OF AUSTRALIA

APP18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1449

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

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

REASONS FOR JUDGMENT

CHARLESWORTH J:

1    The appellant is a citizen of Vietnam. He arrived in Australia on 19 March 2011 in the company of his older sister. He applied for a Safe Haven Enterprise (Class XE) (subclass 790) visa under the Migration Act 1958 (Cth) on 13 September 2017. A delegate of the then named Minister for Immigration and Border Protection refused to grant the visa. The Immigration Assessment Authority affirmed the delegate’s decision in the exercise of its powers of review under Pt 7AA of the Act.

2    The appellant made an application for judicial review of the Authority’s decision to the Federal Circuit Court of Australia. This is an appeal from orders of the primary judge dismissing the application for judicial review:  APP18 v Minister for Home Affairs & Anor [2019] FCCA 3401.

3    The appellant contends that the primary judge erred in rejecting the single ground of judicial review advanced at first instance. As articulated by the primary judge, that ground alleged:

That the Authority committed a jurisdictional error in that it was legally unreasonable not to consider the exercise of the discretionary power in section 473DC, subsections (1) and (3) of the Migration Act 1958 to seek new information from the applicant, being comment on the alleged inconsistency between his statement and his sister’s statement referred to at paragraphs 10 and 11 of the Authority’s reasons.

4    For the reasons that follow, that ground was properly rejected by the primary judge. It follows that the appeal should be dismissed.

LEGISLATION

5    In deciding whether to grant or refuse to grant a visa, the Minister must have regard to all of the information that is set out in the application:  Act, s 54(1). At any time until the Minister makes the decision, the visa applicant may give the Minister additional information:  Act, s 55. The Minister must have regard to the additional information when making the decision.

6    In considering the application, the Minister may invite the visa applicant to give additional information:  Act, s 56. Section 57 of the Act imposes an obligation on the Minister to disclose certain information to the visa applicant and invite him or her to comment on it in certain circumstances. It provides:

57 Certain information must be given to applicant

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

  (a)    would be the reason, or part of the reason:

(i)    for refusing to grant a visa; or

…

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

(2)    The Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

7    The Minister must grant the visa if the Minister is satisfied that the visa applicant fulfils the visa criteria:  Act, s 65(1)(a). If not so satisfied, the Minister must refuse to grant the visa:  Act, s 65(1)(b).

8    To be eligible for the grant of a protection visa, the visa applicant must satisfy one of two alternative criteria prescribed in s 36(2)(a) of the Act. One of the criteria is that the Minister is satisfied that the visa applicant is a person to whom protection obligations are owed because he or she is a refugee. Section 5H(1)(a) of the Act provides that in a case where a person has a nationality, a person is a refugee if the person:

… is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.

9    Section 5J of the Act relevantly provides that a person has a well-founded fear of persecution if the person fears being persecuted by reason of his or her religion and there is a real chance that if returned to the receiving country, he or she would be persecuted for that reason.

10    The delegate’s decision to refuse to grant the appellant a protection visa was a fast track reviewable decision for the purposes of Pt 7AA of the Act. The Minister must refer such a decision to the Authority as soon as possible after it is made:  Act, s 473CA.

11    Section 473CB(1) relevantly requires the Secretary to provide to the Authority “review material”, which relevantly includes:

…

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

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

…

12    As can be seen, s 473CB(1)(c) makes provision for the Authority to be provided with material that was not before the original decision-maker when the decision under review was made.

13    In carrying out its functions, the Authority must pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Div 3 of Pt 7AA:  Act, s 473FA.

14    Division 3 is headed “Conduct of review”. It contains s 473DA to s 473DF. Together with some provisions that do not presently apply, that Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Authority. Section 473DB(1) provides:

Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:

(a)    without accepting or requesting new information; and

(b)    without interviewing the referred applicant.

15    Section 473DC of the Act confers the discretionary power at issue on this appeal. It provides:

(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.

16    Section 473DD prohibits the Authority from considering any new information unless (among other things) it is satisfied that there are exceptional circumstances to justify considering it.

17    Section 473DE(1) provides:

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.

DECISIONS

The Minister’s delegate

18    In support of his visa application, the appellant claimed that if returned to Vietnam he would be persecuted on the grounds of his Catholic religion. On that basis (among others), he claimed that he satisfied the criterion in s 36(2)(a) of the Act in that he was a person to whom Australia owed protection obligations because he was a refugee.

19    In a written statement dated 13 September 2017, the appellant alleged that his family had been threatened and harassed by authorities in Vietnam because his father had worked for the Catholic Church and had built a Christian shrine in his locality. He claimed that he had been pushed by officials who had come to the family home in 2009 to demand that his father remove the shrine. The statement continued:

5.    I told them if they continued to carry on harassing my father I would risk my life to make them leave our house so two of them kicked me. I fell down onto the computer and hurt myself on the side table containing the keyboard. I have a long scar on my right shoulder. I started shouting so the neighbours could hear what was going on and some of them came to our house to see what was happening but the officials wouldn’t let them come in.

6.    After another hour they told my father and I that we should learn from what they were doing to us as it would happen again if we didn’t listen to them and do what they wanted. They told us that they watch our family and that we would always be in their sight.

7.    My father took responsibility for the building of the shrine and told them it was all his doing and had nothing to do with the priest as he didn’t want the priest to get into trouble with the Government. Unfortunately, my father got stomach cancer five to six months after they first came to our house and died a short time later. The officials also visited the other men who had helped build the shrine but my father had been the person in charge so they harassed him more.

…

15.    There is no freedom in our district to practice our religion as the government officials believe that our priests are influencing the people to go against the government and to protest against the government.

20    The appellant participated in an interview with the delegate during which he provided more information in support of his claims. Following the interview, the appellant’s migration agent sent an email to the delegate. By that email, the agent forwarded a statement of the appellant’s older sister. The agent submitted that the sister’s statement supported the appellant’s claims about the events that had caused them both to flee Vietnam and to seek asylum in Australia.

21    The delegate accepted that the appellant was a practising Catholic but did not accept that he would face a real chance of persecution on the basis of his religion if he were to return to Vietnam, and so refused to grant the visa. In her written reasons for decision, the delegate made no reference to the existence or content of the sister’s statement. The reasons do not contain any findings as to whether or not the harassment of the appellant and his family had occurred as he had alleged in his statement and the delegate made no credibility finding against the appellant in respect of that issue. Properly understood, the delegate’s reasoning proceeded from the premise that irrespective of whether the incident had occurred, the circumstances did not give rise to a real chance that the appellant would be persecuted on the basis of his Catholic faith should he be returned to Vietnam.

The Authority

22    The appellant’s statement and the statement of his sister were among the material provided to the Authority under s 473CB of the Act. The Authority said (correctly) that the statements themselves were not “new information” for the purposes of the exercise of its powers of review. The Authority also received and considered submissions from the appellant’s migration agent concerning the delegate’s decision which it characterised as argument, rather than information. Those submissions again attached the statement of the appellant’s sister which, it was submitted, constituted “supporting evidence for his own claims”. The submissions stated:

I believe that [the appellant] and his sister would be in danger if returned to Vietnam by the authorities. They resisted their wish to destroy the shrine their father had built at their Catholic Church and fled Vietnam after being told they would have to report constantly and would not be allowed to finish school or undertake further study.

23    In its reasons for affirming the delegate’s decision, the Authority drew adverse credibility findings against the appellant because he had previously made false claims in earlier attempts to obtain a visa. The Authority went on to identify inconsistencies between the statements of the appellant and his sister. The Authority reasoned as follows:

10.    The applicant’s central claim for protection is now that he came to the attention of the authorities prior to his departure from Vietnam. This appears to have started due to his father’s stated involvement in the construction of a shrine to the Virgin Mary outside of the local Catholic church. The review material includes a statement of claims from the applicant’s sister H, which explains that in 2008 her father, together with other men from their church, built the shrine. The police came to destroy the shrine but it was defended by the priest and other parishioners, including the applicant’s father. The priest and parishioners were attacked by the police and the shrine destroyed in 2008. A house was subsequently built on the former site of the shrine. At paragraph 10 of H’s statement she notes ‘The police wanted the land that we had built the shrine on to Mary’ and references a media article from Radio Free Asia. The referenced article, however, relates to a shrine built at the [redacted] Catholic monastery in [place name redacted], and states in part ‘the issue began on Jan. 1, 2015 when authorities prevented the priests from placing a roof over an outdoor shrine honouring the Virgin Mary’. Clearly the referenced article bears no relation to the claim set out in H’s statement.

11.    In contrast to his sister’s statement, the applicant’s statement of claims reads in part: ‘My father worked for the Catholic Church and he helped build a shrine to Mary, the mother of Jesus, in front of our Church. The Government officials said that wasn’t allowed and told him to remove the shrine, to take it down. He refused and the officials kept coming to our house to insist that he remove it. My father was very scared and became sick. The officials kept asking him why had he built the shrine and kept telling him to knock it down but he refused’. The applicant then claims that during one of these visits to the family home in 2009 he was assaulted by the police. As can be seen from the summaries, the claims of the applicant and his sister regarding this issue vary widely. Do [sic] to the inconsistency and my concerns as to the applicant’s credibility I do not accept that the applicant’s father was targeted due to the building of a shrine outside the family’s local church, that police or other agents of the authorities attended the family home regarding the building of the shrine or that the applicant was assaulted by police or agents of the authorities during such a claimed visit.

(footnote omitted)

24    The reasons of the Authority contain no express reference to the discretion conferred under s 473DC of the Act. The reasons are otherwise silent as to whether the Authority gave any consideration to its exercise.

The primary judge

25    On his application for judicial review it was necessary for the appellant to show that the Authority’s decision was affected by jurisdictional error:  Act, s 474, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The burden was on the appellant to prove the facts upon which his claim for relief was founded. As the High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ) said in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; 373 ALR 196 (at [38]):

As the recent decision in Plaintiff M47/2018 v Minister for Home Affairs well enough illustrates, leaving constitutional and legislative facts aside, it is the plaintiff in an application for judicial review of administrative action who has the onus of establishing on the balance of probabilities the facts on which a claim to relief is founded. To the extent that the factual basis for a claim to relief is sought to be founded on an inference to be drawn from a decision-maker’s statement of reasons, the appropriateness of drawing the inference falls to be evaluated having regard to two settled principles. One is that such a statement of reasons must be read fairly and not in an unduly critical manner. The other is that it must be read in light of the content of the statutory obligation pursuant to which it was prepared.

(footnotes omitted)

26    The primary judge said that the Authority’s description of the inconsistency between the appellant’s statement and the sister’s statement was “somewhat confusing”:  APP18 (at [8]). His Honour continued:

However I have read the two statements included in the court book and I am satisfied that there are significant inconsistencies between the two statements. In any event, the applicant accepts that there is inconsistency in the statements and says that it was unreasonable for the Authority not to invite him to comment on this inconsistency.

27    The factual question before his Honour was whether the Authority had given any consideration to the exercise of its discretionary power to seek from the appellant an explanation for the inconsistencies it had identified. The appellant submitted that the absence of any reference in the Authority’s written reasons to any such consideration supported the inference that no consideration had in fact been given. After summarising the authorities (discussed below) the primary judge concluded that that inference could not be drawn because there was no statutory obligation on the Authority to give reasons for the exercise of its procedural powers. The application for judicial review was dismissed on that discrete basis. The primary judge went on to say (at [16]):

… I also accept Mr Rettalick’s submission for the Minister that the failure to seek comment about the inconsistency was not unreasonable. There was no procedural unfairness (although I note that this issue is not to be seen through the ‘lens’ of procedural fairness), because the applicant provided his sister’s statement himself. There were other arguably weightier reasons for making an adverse credibility assessment and the issue was not determinative, although it was clearly one of the reasons for affirming the delegate’s decision.

SUBMISSIONS

28    The appellant advanced the following propositions:

(1)    The procedural powers of the Authority were to be exercised within the bounds of legal reasonableness.

(2)    The delegate had committed jurisdictional error by failing to consider the statement of the appellant’s sister as she was required to do under s 54 of the Act.

(3)    Had the delegate considered the sister’s statement, the delegate would have been required by s 57 of the Act to bring inconsistencies between the appellant’s statement and the sister’s statement to the appellant’s attention (as information that would be the reason or part of the reason for refusing to grant the visa) and to invite his comment.

(4)    Having identified an inconsistency between the two statements that had not been identified or considered by the delegate, or put to the appellant for comment, the Authority failed to consider the exercise of its discretion under s 473DC of the Act to get new information from the appellant, namely the appellant’s comment or explanation in relation to the inconsistencies. The fact of the failure may be inferred from the absence of any reference to the existence or consideration of the power in the Authority’s reasons.

(5)    The failure to consider the exercise of the power was legally unreasonable because the appellant had not previously been afforded an opportunity to comment on any proposed finding that the statements were inconsistent, nor had he previously been afforded an opportunity to provide an explanation for any inconsistency.

(6)    Had the Authority considered the exercise of the discretion, there was a possibility that it may have exercised the power to seek the appellant’s comment or explanation. In that event the appellant might have dissuaded the Authority from its conclusion that the inconsistencies were significant and, accordingly, consideration of the discretion could have realistically resulted in a different outcome on the review:  see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at [45] (Bell, Gageler and Keane JJ).

29    The appellant did not go so far as to submit that the Authority would commit jurisdictional error if it had considered the exercise of the discretion conferred by s 473DC but determined not to exercise the power to seek the appellant’s comment about the inconsistency it had identified. A second ground of appeal to that effect was abandoned. The effect of that abandonment was to concede that if consideration had been given to the exercise of the power, the Authority would not have transgressed the bounds of reasonableness had it decided not to exercise it. Given the reasons given below in respect of this appeal, I do not consider it necessary to consider the implications that might arise had the Authority erred in failing to consider the exercise of a discretion it had no legal obligation to exercise in the appellant’s favour in any event.

30    Counsel for the Minister submitted that the primary judge did not err in failing to draw the inference that the Authority had given no consideration to the exercise of the power under s 473DC of the Act as a question of fact. Counsel submitted that any comments the appellant might have made in relation to any actual or perceived inconsistency between the two statements was not “information”, let alone “new information” capable of being obtained under s 473DC.

PRINCIPLES

31    The task of the Authority under Pt 7AA was explained by the majority (Gageler, Keane and Nettle JJ) in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [17] as follows:

Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met.

32    The majority said (and it was not disputed) that the powers of the Authority under Pt 7AA were conferred on the implied condition that they were to be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. For the purposes of a review under Pt 7AA, s 473DB established a primary requirement that the Authority was to confine itself to the review material provided to it under s 473CB without accepting or requesting new information and without interviewing the referred applicant (at [22]). The primary rule admitted of exceptions provided for in ss 473DC, 473DD and 473DE. The expression “new information” must, the majority said (at [24]), be read consistently in each of those provisions as:

…  limited to ‘information’ (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b). The first is that the information was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The second is that the Authority considers that the information may be relevant.

(footnote omitted)

33    The majority said that s 473DE was “concerned to ensure that the referred applicant has an opportunity to address new information that has been or is to be considered by the Authority under s 473DD and that would be the reason, or part of the reason, for affirming the fast track reviewable decision” (at [35]). The majority was there referring to information that had not been sourced from the referred applicant, such as material obtained by the Authority of its own volition under s 473DC or information contained in the “review material” provided under s 473CB(1)(c) that had not been previously provided to the referred applicant.

34    The plaintiff in Plaintiff M174 had argued that the limitations imposed on the Authority in obtaining and considering new information meant that there was no adequate procedure to ensure that non-compliance by the Minister with the conditions on his or her own powers (such as those contained in s 54 to s 57 of the Act) could or would be “cured” by the Authority in the exercise of its powers of review. Accordingly, it was argued, the delegate’s non-compliance with the statutory procedure deprived the original decision of legal effect such that it was not a “fast track reviewable decision” at all, with the result that the Authority had no jurisdiction to review it. Of that submission, the majority said (at [45]) that Pt 7AA of the Act was:

… undoubtedly framed on the assumption that a decision to refuse to grant a protection visa to a fast track applicant will ordinarily have been made in compliance with the code of procedure set out in subdiv AB of Div 3 of Pt 2. That is what the law requires and it is to be expected that the requirements of the law will be observed. That does not mean, however, that the Part is framed to permit review of a decision to refuse to grant a protection visa to a fast track applicant only if that decision has been made in compliance with the code of procedure. Further analysis is required of the consequences of a want of compliance with the code of procedure on the performance of the duty imposed on the Authority under Pt 7AA.

35    On that further analysis, the majority said that non-compliance by the Minister with the requirements of ss 54, 55 or 56 in making the decision under review could have no meaningful impact on the quality of the Authority’s review under Pt 7AA as the performance of its central task of considering the same material that was before the Minister would render the Minister’s non-compliance moot (at [46]). The same must be said of the asserted non-compliance by the delegate in the present case with s 54 to s 56.

36    However, the majority said, different considerations arose in relation to a breach by the Minister of s 57 of the Act. That was because non-compliance by the Minister with s 57(2) of the Act would have the effect of denying a visa applicant an opportunity to respond to prejudicial adverse information and to have that response included in the review material given by the Secretary to the Authority under s 473CB of the Act. The majority said that the Authority’s powers under Pt 7AA were not so constrained as to prevent it from conducting a review in a manner that would negate such a want of procedural fairness (at [47]). The majority posited two scenarios in which relevant information within the meaning of s 57(1), in respect of which there had been non-compliance with s 57(2), might end up being among the review material given to the Authority so as to be capable of bearing on the Authority’s decision on review:

48    …   One scenario is where the relevant information, although in the possession or control of the Secretary and considered by the Secretary to be relevant to the review, was not before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. Were the Authority in that scenario to consider that the information may be relevant to its review, the relevant information would become new information – triggering the need for the Authority, in order for the information to be considered by the Authority, to be satisfied in accordance with s 473DD(a) that exceptional circumstances existed justifying that consideration and, if the information would be the reason or a part of the reason for affirming the decision under review, to give notice to the applicant under s 473DE(1).

49    The other scenario, which the plaintiff argues exists in the present case, is where relevant information in respect of which there has been non-compliance with s 57(2) was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa. The relevant information in that scenario would not itself be new information and could not become new information. Were the Authority in that scenario to consider that the information may be relevant to its own consideration on the review, however, the Authority would not lack power to fashion its procedure so as to bring the relevant information to the attention of the referred applicant and to invite the applicant to respond. The Authority would have the capacity to exercise the discretion conferred on it by s 473DC(3) to invite the referred applicant to give new information in response to the relevant information and, in the context of issuing that invitation, to give the relevant information or particulars of it to the referred applicant. And the Authority would risk transgressing the bounds of reasonableness in the conduct of the review under s 473DB were the Authority to go on to treat the information as the reason, or a part of the reason, for affirming the decision to refuse to grant the protection visa without first exercising the discretion conferred by s 473DC(3) to issue such an invitation.

37    These passages implicitly accept that the comments that a referred applicant might make in response to an invitation issued by the Authority under s 473DC(3) would be capable of meeting the description of “new information” that may be considered by the Authority, provided that it met the requirements of s 473DD, indeed in the ordinary course it would (the Minister’s non-compliance with s 57 being an exceptional circumstance warranting its receipt):  Plaintiff M174, [50], [89].

38    To similar effect, Edelman J said:

94    The Minister submitted that any failure by the delegate to afford procedural fairness was irrelevant because the Authority’s decision ‘superseded’ that of the delegate so as to render nugatory any jurisdictional error by the delegate. But Parliament will rarely be taken to contradict itself by (i) requiring a step to be taken as a matter of law, while at the same time (ii) authorising the decision maker not to comply with that step or authorising a process which incorporated that lack of compliance. Therefore, unless the contrary legislative intention were plain, Pt 7AA of the Migration Act is unlikely to be construed in a manner requiring the Authority to make a decision by a process that relied upon, or incorporated, a jurisdictional error by the delegate. Put another way, having proscribed conduct as a jurisdictional error by the delegate it is unlikely that Parliament would be taken to have intended that the error be relied upon by the Authority.

…

97    …  Pt 7AA should be construed, as Gageler, Keane and Nettle JJ explain, so that the Authority would have power to invite an applicant to respond to relevant information not given to him or her by the Minister or delegate in contravention of s 57(2). Failure to exercise that power might be legally unreasonable. This construction is not inconsistent with s 473DA(2), which provides that, ‘[t]o avoid doubt, nothing in Pt 7AA requires the Authority to give an applicant any material that was before the Minister when the Minister made a decision to refuse a visa. That subsection is premised upon the assumption that the Minister or delegate will comply with the requirements of Pt 2, Div 3, subdiv AB, including s 57(2). There is no requirement in Pt 7AA to give the applicant the material because ‘an applicant would have already been provided an opportunity to comment on relevant information that the Minister considered was the reason, or part of the reason for refusing to grant a visa’.

(footnotes omitted, original emphasis)

39    In the result in Plaintiff M174, no breach of s 57 of the Act was found to have occurred on the facts, such that there was no transgression of the bounds of reasonableness by the Authority of the kind the majority had explored in its scenarios. The judgment in Plaintiff M174 nonetheless supports the proposition that where there has been non-compliance by the Minister with s 57 of the Act in respect of information that might bear adversely on the visa applicant in the outcome of the review, the Authority may commit jurisdictional error if it fails to consider the exercise of (and perhaps if it fails to exercise) the power conferred upon it under s 473DC of the Act before relying on that adverse information as a reason or part of the reason for affirming the original decision to refuse to grant the referred applicant a protection visa:  see also Gordon J at [89] – [90]; Edelman J at [97]. The appellant’s submissions on this appeal are accepted to that extent.

The present case

40    As has been said, the Authority in the present case concluded (correctly) that the information contained in the two statements was not “new information” for the purposes of Pt 7AA of the Act.

41    Whether or not there existed any variance between the information contained in witness statements is a question that may or may not arise in the reasoning process of a decision-maker in considering whether to grant a visa under s 65 of the Act.

42    Here, the Minister’s delegate concluded that the criteria in s 36(2)(a) of the Act was not satisfied on a discrete basis that did not turn on an assessment of whether the factual accounts of the appellant and his sister differed. In those circumstances, the absence of any reference to the sister’s statement in the delegate’s reasons does not of itself support an inference that no consideration was given to the statement at all. I am not satisfied that the delegate failed to comply with s 54 of the Act in a way that could materially have affected the exercise of the power conferred on the delegate by s 65 of the Act.

43    As to s 57 of the Act, it has not been shown that the Minister’s delegate was required at law to identify any variance between the statements, or to characterise the variance as “information” that would be a reason or part of the reason to refuse the visa so as to enliven the obligation to invite the appellant’s comment. In the course of the delegate’s reasoning process, the occasion to seek the appellant’s comments in relation to any such variance did not arise:  any inconsistency was not, in the course of the delegate’s reasoning, a reason or part of the reason for refusing to grant the visa. Accordingly, I am not satisfied that the delegate failed to comply with the condition in s 57 of the Act in the manner alleged.

44    It remains that the two statements came before the Authority without any views having previously been expressed by the delegate about whether there existed a material inconsistency between them and about the consequences of any such inconsistency for the outcome of the visa application. That is the factual and legal context in which the ground for judicial review fell to be considered.

45    In FSG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 29, Bromberg, Davies and O’Bryan JJ summarised the principles against which arguments of the kind advanced by the appellant are to be determined:

59    On a number of occasions, this Court has considered whether a failure by the Authority to seek additional information from a visa applicant when conducting a review is unreasonable in the legal sense. As observed by O’Bryan J in BLS17 v Minister for Immigration and Border Protection [2019] FCA 1079 at [31], each case turns on its own facts but it is possible to distil the following principles from the decisions:

(a)    The legislative scheme of review established by Part 7AA (review by the Authority) differs from the legislative scheme of review established by Part 7 (review by the Administrative Appeals Tribunal). In particular, under Part 7, the Administrative Appeals Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments. In those circumstances, procedural fairness requires the Tribunal to inform the applicant of potentially adverse conclusions that are not obvious on the materials and the nature and content of the adverse material: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. However, those principles are not directly applicable to a review under Part 7AA given the different statutory requirements for the review. Part 7AA of the Act is an ‘exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews by the Authority’: DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at [69] (DGZ16).

(b)    As a general proposition, Part 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate and the Authority is not required to notify the referred applicant that it is considering taking a different view, which may be adverse to the referred applicant, of the material considered by the delegate: DGZ16 at [72]. That is so even if the Authority makes an adverse credibility finding against the referred applicant on the basis of the evidence: DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222 at [74].

(c)    However, circumstances may arise in which it would be legally unreasonable for the Authority to make a finding adverse to the applicant without exercising its powers to seek further information from the applicant. An example is afforded by Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 (CRY16). In that case, the Authority had purported to determine the review on the basis that it was reasonable for the applicant to relocate to a particular part of his home country. However, that possibility had never been put to the applicant, before or during the review conducted by the Authority. The Full Court concluded that it was legally unreasonable for the Authority not to seek further information from the applicant in circumstances where the Authority knew that it did not have, but the applicant was likely to have, information on his particular circumstances and the impact upon him of relocation (CRY16 at [82]). CRY16 was a case where additional information (as to the reasonableness of relocation) was ‘necessary in order to complete the review’: DGZ16 at [70].

(d)    Another example is afforded by DPI17 v Minister for Home Affairs [2019] FCAFC 43 (DPI17). In that case, the delegate had made a positive assessment of the applicant’s demeanour at the interview and the delegate’s acceptance of certain claims by the applicant was based primarily on the delegate’s assessment of the appellant’s demeanour (DPI17 at [46]). Further, during the course of the delegate’s interview with the applicant, the delegate indicated that certain discrepancies in the applicant’s evidence were not major and that she would not put a lot of weight on those discrepancies. In reliance upon those statements, the applicant did not address the inconsistencies in his post-interview submissions to the delegate. The Authority reviewed the decision and made various credibility findings adverse to the applicant based on the discrepancies in the evidence. The Full Court found that, in circumstances where the Authority must have been aware of the delegate’s positive assessment of the applicant’s demeanour in the interview, it was legally unreasonable for the Authority not to consider exercising its power under s 473DC to invite the applicant to give new information when it was minded to give weight to the discrepancies in the applicant’s evidence and come to a different conclusion on the claim (at [46] per Griffiths and Steward JJ and [58] per Mortimer J).

46    In my view, the arguments advanced at first instance (and on appeal) conflated the concept of information on the one hand and a reasoning process in relation to the information on the other.

47    In SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 the Court considered the meaning of the word “information” in s 424A of the Act which imposed an obligation to bring to a review applicant’s attention potentially adverse information on a review undertaken in accordance with Pt 7 of the Act. The Court said (at [18]):

Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute ‘information’. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word ‘information’:

… does not encompass the tribunal’s subjective appraisals, thought processes or Determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant ‘information’ was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

(footnote omitted)

48    I consider the word “information” must bear the same meaning in s 57 of the Act as it does in s 424A and as it does in s 473DC on a limited review conducted in accordance with Pt 7AA of the Act.

49    DPI17 v Minister for Home Affairs (2019) 269 FCR 134 is distinguishable because the delegate in that case had positively reassured the visa applicant that no adverse inference would be drawn from the discrepancies and it had been established, on the facts, that the appellant had relied on that assurance and so had provided no explanation for the discrepancies to the delegate. It was that particular circumstance that rendered the Authority’s adverse decision (made in reliance on the same discrepancy) legally unreasonable.

50    Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 is distinguishable because the information upon which the Authority in that case acted was of a different quality, being knowledge of facts acquired by the Authority and on which the appellant had not previously been afforded an opportunity to comment.

51    The circumstances of the present case were such that the Authority embarked upon a different process of reasoning than that embarked upon by the original decision-maker on the basis of the same information that was before the delegate. There is nothing unusual about that occurrence in the context of the limited de novo review for which Pt 7AA of the Act provides. The statutory objective of carrying out a review that is efficient and quick would be undermined if there was an obligation on the part of the Authority to foreshadow to a referred applicant the opinions it may form in relation to the materials, even if they be opinions neither formed nor expressed by the original decision-maker.

52    There was nothing in the course of decision-making before the delegate that prevented or inhibited the appellant from giving an explanation to the delegate about the existence and significance of any differences between the two statements. In providing further submissions to the Authority about the effect of the review materials a referred applicant, proceeding on a proper understanding of the Authority’s task, ought to anticipate that the Authority may adopt a different course of reasoning to that adopted by the Minister.

53    To the extent that there were inconsistencies between the two statements, they were capable of identification by the appellant and his advisers at a time before the original decision was made. It was open to the appellant to make submissions to the delegate in connection with the information contained in the statements, including submissions about the extent to which the statements were inconsistent or corroborative. In fact, he availed himself of that opportunity, both before the delegate and before the Authority. In each case, his brief submission was to the effect that his sister’s statement supported his claims. It was for the Authority to either accept or reject that submission, irrespective of how the delegate had dealt with the same subject matter. I do not consider the delegate’s failure to invite submissions on the existence or extent of the inconsistences involved a want of procedural fairness, whether by reason of a prior breach of s 57 of the Act on the part of the delegate or otherwise. Nor do I consider the course of decision-making before the delegate to have created a circumstance whereby it would be legally unreasonable for the Authority not to consider the exercise of the discretion under s 473DC of the Act to invite comment from the appellant in relation to the subject matter:  cf DPI17.

54    The circumstances of the appellant’s case differ factually from the scenarios discussed in Plaintiff M174, each of which was concerned with the appellant being afforded an opportunity by the Authority to comment on adverse information not otherwise within his knowledge and upon which he could not reasonably anticipate the Authority rely.

55    If there was a failure by the Authority to consider the exercise of the discretion, the failure would not constitute jurisdictional error on the grounds of legal unreasonableness. Whilst the primary judge did not elaborate on the point, I consider that was what his Honour meant by the remarks extracted at [27] of these reasons. The appeal should be dismissed on that basis.

56    Given my conclusion that a failure to consider the exercise of the discretion under s 473DC would not be legally unreasonable, it is unnecessary to consider whether the primary judge erred in failing to draw the factual inference that no consideration had in fact been given to its exercise.

57    As the primary judge said, the Authority was under no obligation to give written reasons for the exercise or non-exercise of its procedural powers, and the mere absence of any reference in the Authority’s reasoning to the existence or exercise of the power cannot, without more, support the factual inference the appellant invited. As the High Court said in BVD17:

39    The appellant’s contention before the Full Court that the Authority failed to consider the exercise of the discretion conferred by s 473GB(3)(b) was based solely on an inference sought to be drawn from the fact that the Authority’s statement of its reasons for decision contains no reference to the discretion. The Full Court did not err in rejecting that contention.

40    Given that the Authority was under no obligation to give reasons for its exercise or non-exercise of any procedural power, the mere failure of the Authority to mention the discretion conferred by s 473GB(3)(b) cannot support the drawing of an inference that the exercise of the discretion was not considered. … The Authority’s reference to one statutory power having been exercised in respect of one category of information cannot be taken to indicate that the Authority failed to consider the exercise of another statutory power in respect of another category of information.

58    Counsel for the appellant acknowledged those general principles, but submitted that there is additional material in the present case capable of supporting an inference that the Authority did not turn its mind to the exercise of the discretion. It was submitted that the Authority expressly concluded that the sister’s statement was before the delegate and that the Authority should be understood to have proceeded on the mistaken assumption that the delegate had considered the sister’s statement as it was obliged to do under s 54 and s 55 Act. For reasons given earlier, if the Authority made that assumption, it would not have been mistaken.

59    It is significant that although the Authority had no statutory obligation to do so, it did provide written reasons for the exercise of its procedural powers for the purpose of the conduct of the review. It made an analysis of that information that was properly to be regarded as “new information” and that which was not. The reasons disclose an awareness of the necessity to consider the exercise of those discretions that arose for consideration on the facts. In addition, it was plain on the face of the delegate’s reasons that no assessment had been made of the differences between the two statements and the Authority may be presumed to have known that. Although the Authority had no legal obligations to give written reasons for the consideration it had given to the exercise of its procedural powers, its reasons disclose an intention to explain in reasonable detail the matters it had considered.

60    In all of the circumstances, I consider the proper inference to be drawn on the facts is that the Authority gave no consideration to affording the appellant the opportunity to comment on the extent or consequences of the inconsistencies between the two statements it had identified. My conclusion in that regard differs from that of the primary judge. However, the failure to consider the exercise of the power did not constitute jurisdictional error for the reasons I have given above.

Associate:

Dated:    9 October 2020