Federal Court of Australia

AWL18 v Minister for Home Affairs [2021] FCA 235

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

BESANKO J:

Introduction

1    This is an appeal from orders made by the Federal Circuit Court of Australia on 17 January 2020. On that day, the Federal Circuit Court dismissed the appellant’s application for judicial review of a decision made by the Immigration Assessment Authority (the Authority) under Pt 7AA of the Migration Act 1958 (Cth) (the Act) (AWL18 v Minister for Home Affairs & Anor [2020] FCCA 82).

2    The appellant is a citizen of Afghanistan. He arrived in Australia in 2013 and, on 7 April 2016, he lodged a valid application for a Class XE subclass 790 Safe Haven Enterprise visa (SHEV). On 30 March 2017, the appellant’s application was refused by a delegate of the Minister for Immigration and Border Protection. On 4 April 2017, the delegate’s decision was referred to the Authority. The Authority conducted a review and, on 25 January 2018, it decided to affirm the decision of the delegate.

The Issues on the Appeal

3    The issues on the appeal concern the construction and application of the phrase, “before the Minister when the Minister made the decision under section 65” in s 473DC(1)(a) of the Act. The first issue involves the phrase, “before the Minister” in s 473DC(1)(a) and a challenge to a finding of fact and a challenge to the primary judge’s construction of the phrase. The second issue involves the phrase, “when the Minister made the decision under section 65” and a challenge to the application of the phrase to the facts of this case.

4    Section 473DB of the Act provides that subject to Pt 7AA, the Authority must review a fast track reviewable decision referred to it under s 473CA by considering the review material provided to the Authority under s 473CB without accepting or requesting new information and without interviewing the referred applicant.

5    Section 473DC of the Act deals with the Authority getting new information and contains a definition of new information. The section is 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.

6    Section 473DD provides that the Authority must not consider any new information unless it satisfies the requirements set out in the section. The section is as follows:

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.

7    Section 473DE is also important because it places an obligation on the Authority to give particulars of new information which falls within the terms of the section to a referred applicant and invite comments on the new information from the referred applicant. The section is as follows:

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.

8    The note in s 473DE contains a cross-reference to s 473DA(2). The whole of s 473DA is as follows:

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.

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

9    The appellant was interviewed shortly after his arrival in Australia. A pro forma document of six pages entitled “Case assessment and bio-data Interview” was completed. That document records what is described by the Authority in its reasons as the “arrival interview”. The document was given the number CLF2013/79777. A little under two months later, the appellant was again interviewed and the information obtained in that interview was recorded in a document entitled “Irregular Maritime Arrival & Induction Interview”. That document records what is described by the Authority in its reasons as the “entry interview”. It seems that there is also an audio recording of the entry interview. The document and audio file were given the number 2015/498251. The reference by the Authority to the interviews and their transcripts is a reference to the written records I have identified and, for ease of reference, I will simply refer to them when dealing with them collectively, as the interviews.

10    There is no dispute that in her decision record, the delegate did not refer to either the arrival interview or the entry interview.

11    There is also no dispute that the Authority did rely on inconsistencies between the arrival interview and the entry interview, and between each of these documents and other information in order to reject aspects of the appellant’s account (see paragraphs 17, 20 (inconsistency between entry interview and SHEV interview) and 23 (inconsistency or omission between arrival interview on the one hand, and other interviews on the other)). That occurred in the context of one of the protection claims made by the appellant to the effect he feared harm as a result of having worked for the International Security Assistance Force (ISAF) as a driver, his brother having worked for the ISAF in logistics, and both of them having received multiple threats from the Taliban as a result.

12    The appellant’s submission is that the correct conclusion on the evidence is that the interviews were not before the Minister when the Minister made the decision under s 65, or if they were before the Minister, they were not before the Minister when the Minister made the decision under s 65 of the Act. If that is correct, then they constituted new information and could not be considered by the Authority unless the Authority satisfied itself that the new information met the requirements in s 473DD. There is no indication in the Authority’s reasons that it addressed whether it should consider the interviews because they met the requirements of s 473DD. If the information is considered by the Authority, then the Authority must also comply with the requirements of s 473DE of the Act.

13    In this case (as in many others), the decision was, in fact, made by a delegate of the Minister.

The Decision of the Federal Circuit Court

14    There were two grounds of judicial review before the Federal Circuit Court. Only the first ground is relevant for the purposes of the appeal. It is as follows:

1.    The Immigration Assessment Authority erred by considering the arrival and entry interviews, which were ‘new information’ within the meaning of s 473DC of the Act:

(a)    without first determining whether it was satisfied that there were exceptional circumstances justifying their consideration; and

  (b)    without it complying with its obligations under s 473DE of the Act.

15    The primary judge began his analysis of this ground by noting that the appellant accepted that he bore the onus of establishing that the interview transcripts were not before the delegate. The appellant relied on the following matters to discharge that onus:

(1)    the delegate did not refer to the interviews in her reasons;

(2)    a document entitled “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist” which is part of a form which must be completed by case officers when finalising a fast track reviewable decision shows by reference to the file numbers that the interviews fell within the following description:

TRIM Reference (for records that are NOT contained in the TPV/SHEV client file)”.

This established, so the appellant submitted, that the interviews were documents referred to the Authority by the Department and they were not part of the file of material considered by the delegate; and

(3)    there was no evidence from either the delegate or a Departmental officer with direct knowledge of the matter to the effect that the documents were before the delegate. In this respect, the primary judge noted that the appellant relied on Blatch v Archer [1774] 1 Cowp 63 (Blatch v Archer) and Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) to support an inference that the interviews were not before the delegate.

16    The primary judge noted that the Minister did not consider it necessary to file an affidavit from the decision-maker and that there is no explanation for this. The Minister relied on an affidavit affirmed by a solicitor employed by the Australian Government Solicitor, Mr Cameron Retallick, who had the conduct of the matter. Mr Retallick deposed that the Department’s electronic document system, known as TRIM, showed the date and time that the documents in the system had been “viewed, changed or extracted”. Mr Retallick did not specifically depose to his own familiarity or knowledge of the TRIM system and nor did he provide any details as to the meaning of the words “viewed, changed or extracted” in the context of the TRIM system. Mr Retallick said that a Departmental officer had provided him with “screen shots” from the TRIM system and those screen shots showed the following:

(1)    the arrival interview had been “extracted” by the delegate on 21 March 2017 at 12.20 pm;

(2)    the entry interview had been “viewed” by the delegate on 21 March 2017 at 11.59 am; and

(3)    the delegate made the decision on 30 March 2017.

17    The primary judge held that the appellant had not established that the arrival interview and the entry interview were not before the delegate at the time the delegate made the decision under s 65. He reasoned as follows (at [14]):

In my view the most probable interpretation of this material is that [the delegate] had regard to the arrival and entry interviews and/or transcripts in the lead up to her decision on 30 March 2017. As the decision-maker it is unlikely that she would have an interest in the material for any other purpose than to assist with her decision. Whether there was some difference between her having “viewed” or “extracted” the documents I cannot say and whether the material was on a computer screen or in paper form I do not know. Nevertheless, I am satisfied that she had regard to those documents as part of her decision-making process.

18    The primary judge said that the appellant had made further submissions in oral argument that were not raised in the grounds of review or in the written submissions. Those further submissions were made without objection.

19    First, the appellant submitted that proof that the delegate had regard to the arrival and entry interviews about a week before the decision, did not satisfy the requirement that those interviews were not before the delegate when the delegate made the decision under section 65. The primary judge rejected this submission. His Honour said that any complex decision involving the weighing of evidence or information is a process unfolding over time and that whilst the decision was finalised and published on 30 March 2017, “it is obvious that the decision maker must have considered the relevant information in the period leading up to that date”. The primary judge considered that the appellant’s interpretation of the section led to the “absurd conclusion” that consideration and decision must coincide instantaneously (Primary Judge at [15]).

20    Secondly, the appellant submitted that the arrival and entry interviews were not before the delegate unless the delegate had engaged in an “active intellectual process” in considering the relevant information within them. He made that submission relying on Minister for Home Affairs v Omar [2019] FCAFC 188; (2019) 272 FCR 589 (Omar). The appellant submitted that the Minister’s failure to call the decision-maker permitted such an inference to be drawn more easily. The primary judge rejected this submission. First, he said that it was for the appellant to bring forward evidence or argument to make out his case and that where the argument has not been made in the grounds of review or in the written submissions, Jones v Dunkel does not assist the appellant in having an adverse inference drawn from the Minister’s failure to provide detailed evidence about the nature of the delegate’s decision-making process. Secondly, the primary judge said that Omar was a case which was factually different and that the “active intellectual process” described by the Full Court concerned the need for a decision-maker to grapple with centrally important representations regarding the harm likely to be suffered if a mentally ill person was returned to Somalia. The case did not suggest that a decision-maker must engage in an “active intellectual process” in relation to every piece of information regardless of the relevance or importance of the information. The primary judge concluded that in this case, the delegate had regard to the information, but did not consider it of sufficient relevance or importance to refer to in her reasons for decision.

21    In essence, in the Federal Circuit Court, the appellant advanced, but was unsuccessful with respect to the following arguments:

(1)    the delegate did not have regard to the interviews and, therefore, they were not before the delegate;

(2)    even if the interviews were before the delegate within s 473DC(1)(a), they were not before the delegate when she made her decision under s 65 of the Act; and

(3)    even if the delegate had regard to the interviews, that was not sufficient and the delegate was required not only to have regard to the interviews, but also to engage in an active intellectual process with respect to them before it could be said that they were before the delegate within s 473DC(1)(a). The delegate had not engaged in such an active intellectual process.

The Appeal to this Court

22    The one ground of appeal in the appellant’s appeal to this Court is as follows:

1.    The learned primary judge erred by finding that the transcripts of the arrival and entry interviews (the written records) were ‘before’ the delegate of the Minister when she made her decision under section 65 of the Migration Act 1958 (Cth) (the Act).

Particulars

a.    The proper construction of the term ‘new information’ in Part 7AA of the Act, being ‘documents or information that were not before the Minister when the Minister made the decision under section 65’, does include documents or information that were not considered by the Minister in the course of making the decision under section 65.

b.    The learned primary judge ought not to have found on the evidence that the delegate of the Minister ‘had regard to’ the written records as part of the process of making her decision under section 65 of the Act: cf [14]. The learned primary judge instead ought to have found on the evidence that the delegate did not look at nor otherwise have ‘regard’ to the written records, either when she made her decision under section 65, or as part of the process of making her decision.

23    This ground of appeal raises a challenge to the primary judge’s conclusion that the interviews were before the delegate when she made her decision under s 65 on the ground that information not “considered” by the delegate in the course of making her decision under s 65 was not before the delegate. Further, or in the alternative, the primary judge erred in finding that the delegate had regard to the interviews and ought to have found that she did not look at or otherwise have regard to the documents.

Analysis

Were the interviews before the Minister?

24    Dictionary definitions are of limited assistance in this case. With respect to the word “before”, the Macquarie Dictionary (6th ed) provides, relevantly:

9. in the presence or sight of: before an audience. 10. under the jurisdiction or consideration of: before a magistrate.

One of the meanings of the word “regard” in the same dictionary is as follows:

4. to take into account; consider.

25    The appellant accepts that he bears the onus of bringing the case within s 473DC(1) and, in the circumstances of this case, to establish that the arrival interview and the entry interview, or either one of them, “were not before the Minister when the Minister made the decision under section 65” and, therefore, were new information. On the appeal, he contends that he has discharged that onus in circumstances in which:

(1)    it is common ground between the parties that the delegate did not refer in her decision record to either the arrival interview or the entry interview;

(2)    the evidence advanced by the appellant establishes that neither the arrival interview nor the entry interview were contained in the Department’s “TPV/SHEV client file”. This is shown in a schedule in a document titled “Referrals to the Immigration Assessment Authority (IAA) and Disclosure Checklist”; and

(3)    the delegate was not called to give evidence by the Minister. There was some debate before me as to the extent to which the appellant could deploy the reasoning in Jones v Dunkel. As the argument progressed, it became clear that the parties agreed as to how that reasoning in that case may be deployed in this case. The failure by a party to call a witness may allow an inference to be drawn that the evidence of that witness would not have assisted that party’s case. However, it does not enable an inference to be drawn that the evidence of the witness would have been adverse to the party. Adapting what the High Court said in Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at [168], the most that may be inferred from the delegate not being called by the Minister is that she could not give evidence from her own independent recollection of whether the interviews were physically before her or whether she had regard to them. The appellant submits that the inference which arises on the evidence that the arrival interview was not physically before the delegate or that the delegate did not have regard to the interviews may be drawn with more confidence in view of the Minister’s failure to adduce evidence from the delegate.

26    As I have said, the primary judge found that the arrival interview had been “extracted” by the delegate on 21 March 2017 at 12.20 pm. He found that on the same date at 11.59 am the entry interview had been “viewed” by the delegate.

27    On the appeal, the Minister added some matters about the entry interview which are shown in the records before the primary judge. The records show, in addition to the findings of the primary judge, that the delegate extracted the entry interview at 12.19 pm on 21 March 2017 and that she viewed the entry interview at 10.18 am on 30 March 2017 which was the date upon which she made her decision. I did not understand from the Minister’s submissions that he suggests that these additional facts affect the resolution of the issues on the appeal.

28    The construction issue which arises in relation to s 473DC(1)(a) concerns the meaning of “before the Minister” in the phrase “not before the Minister when the Minister made the decision under section 65”.

29    The appellant outlined a number of possible meanings of “before the Minister”. They were as follows: (1) the documents or information were before the Minister if they were physically before the Minister; (2) the documents or information were before the Minister if the Minister had regard to the documents or information; (3) the documents or information were before the Minister if the Minister gave the documents or information active intellectual consideration; or (4) something higher or further in terms of consideration by the Minister was required in order for a conclusion to be drawn that documents or information were before the Minister.

30    Although the appellant did not abandon a submission that the correct test is the third alternative, he did not say a great deal in support of this alternative in his oral submissions. Sections 54, 55 and 56 of the Act are discussed below. The interviews are not documents or information to which the Minister or his delegate must have regard. In those circumstances, I am unable to see how the statutory provision in s 473DC(1)(a) can give rise to an obligation on the Minister or his delegate to give such documents or information active intellectual consideration. In my opinion, the construction issue involves a choice between the first two alternatives.

31    The Minister submits that documents are before his delegate if they are physically before the delegate and that that was shown in this case. If that be wrong, then the primary judge’s finding that the Minister had regard to the interviews (which went further than the primary judge needed to on the Minister’s primary submission) was correct.

32    Subject to one argument concerning the arrival interview, the appellant submits that the correct legal test is that documents or information are only before the Minister’s delegate if the delegate had regard to them and that he (the appellant) had shown that the Minister’s delegate had not had regard to the interviews.

33    The one argument concerning the arrival interview to which I have referred is put by the appellant as a factual error by the primary judge and one that does not require a choice between the two alternatives. The appellant submits that there is no evidence to rebut the inference that the arrival interview was not before the Minister and that all that is known about the arrival interview is that it was “extracted” by the delegate nine days before she made her decision and there is no explanation in the evidence as to what “extracted” means. It seems to me that extracted means taken or removed from, and viewed means looked at. I reject the appellant’s argument. For reasons I will explain, I think both interviews were physically before the Minister’s delegate. Even if the second alternative is the correct test, I consider that the primary judge was correct to conclude that the Minister’s delegate had regard to the documents.

34    The issue whether documents or information were before the Minister’s delegate for the purposes of s 473DC(1)(a) seems to have arisen in two different contexts. One is the present context where an applicant seeks to prove that documents or information are new information which the Authority has failed to treat as new information and, therefore, committed jurisdictional error. The other context is where an applicant seeks to prove the documents or information are not new information and, therefore, did not need to meet the requirements of s 473DD before being considered by the Authority.

35    In support of the Minister’s primary submission that documents or information were before his delegate for the purposes of s 473DA(2) if they were physically before the delegate, the Minister relied on the following authorities.

36    In DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170; (2018) 265 FCR 538 (DTK17), the applicant for a SHEV sought to argue that a document held by the Department, but not physically before the Minister’s delegate, was before the delegate within s 473DC(1) and, therefore, not new information. The appellant in that case submitted that, therefore, the Authority should have had regard to it. The Full Court of this Court rejected that submission. The Court said that the concept of documents or information before the Minister was a narrower one than the concept of materials in the control of the Minister. The Court said the following (at [37] and [38]):

37    For the purpose of s 473DC(1)(a) the Secretary is required to make available all documents or information “before” the Minister. The primary judge was correct to conclude that this was a narrower concept than all materials in the “control” of the Minister and to distinguish the concept from “possession” as referred to by Gibbs CJ in Peko-Wallsend. We would accept the contention for the Minister that the appellant’s construction is not supported by the relevant statutory context, including ss 54, 55, 473CB and 473DB of the Act, as there is nothing in those provisions suggesting that a country of origin report prepared by the Department is sufficient for it to be characterised as a document “before” the decision-maker when making the decision under s 65 of the Act. The appellant’s construction of “before the Minister” could have the effect that any document published on the internet by the Department on a matter entirely unrelated to the case at hand could be regarded as being “before” the decision-maker. This is not a result which Parliament should be taken to have intended.

38    The expression “before the Minister” also appears at s 473DA(2) of the Act. The Explanatory Memorandum to the Migration Bill 2014 says that the purpose of s 473DA(2) is to put beyond doubt that the IAA is not required to give a referred applicant any material that was before the Minister for comment. The Explanatory Memorandum states this is because under s 57(2) of the Act and in relation to a fast track decision, an applicant would already have 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. The fact that the words “before the Minister” in s 473DA(2) refer only to material literally before the Minister would suggest that the same words appearing in s 473DC(1)(a) ought be read in the same way. This accords with the primary judge’s conclusion (at [52]) as to the meaning of the words “before the Minister” as meaning “physically before the Minister, not one in respect of which the Minister may have constructive knowledge because of the breadth of material held by the Department”. His Honour concluded, rightly in our opinion, that “before the Minister” does not mean “in the Minister’s control”.

37    The decision in DTK17 provides some support for the Minister’s argument, but it is important to bear in mind that the particular point in issue was a choice between ascribing a meaning to “before the Minister” of in the Minister’s control (the applicant’s argument) or physically before the Minister (the Minister’s argument).

38    In CVV16 v Minister for Home Affairs [2019] FCA 1890 (CVV16), the argument was that certain documents which the applicant for a visa showed the delegate, but which the delegate refused to accept, were before the Minister’s delegate and, therefore, were not new information (see at [51]). Justice Mortimer accepted the evidence of the applicant (at [69]) and then said (at [77]-[79]):

77    As the appellant submitted, in DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 at [38], the Full Court held that the words “before the Minister” in s 473DC(1)(a) do not connote constructive knowledge or possession but mean “physically before the Minister” as distinct from “in the Minister’s control”. However, as the appellant further submitted, the facts in that appeal were quite different, and the question posed by the present factual situation is not answered by DTK17.

78    In the present situation, on the basis of the appellant’s evidence which I have accepted, I find that the Commission documents were “before the Minister” for the purposes of s 473DC(1)(a), because the appellant attempted to give them to the delegate, and, in his words, “showed them” to her. They were, in a relevant sense, physically before the delegate. It was not within the appellant’s control whether the delegate kept them and placed them on the file. As it turns out, on his evidence (which I accept), she did not.

79    The purpose of the new information provisions is, in my opinion, consistent with the approach I have taken. Those provisions are designed to encourage (through subsequent prohibition) visa applicants to bring forward all relevant information at the first level consideration of their visa applications. They do not have any punitive purpose. The provisions are also designed to limit the amount of information before the Authority, so as to facilitate the “fast track” nature of the Authority’s process. I do not consider Parliament intended to require the additional hurdles in the new information provision to have to be met in circumstances where a delegate elected to refuse information proffered by a visa applicant. I do not consider Parliament contemplated that a delegate might refuse to accept relevant information. To the contrary, such information is, in its timing and purpose, no different from information the delegate accepted.

39    Although the facts of CVV16 are quite different from this case and, as Mortimer J noted, were different from the facts in DTK17, the case assists the Minister to the extent that there is no suggestion in Mortimer J’s reasons that documents were only before the Minister’s delegate if the delegate had regard to them.

40    The appellant submits that there are a number of matters which support the construction he advances. The starting point of his submissions is the undoubtedly correct proposition that the process of construing s 473DC(1)(a) involves a consideration of the whole phrase and of the context in which it appears (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]–[70] per McHugh, Gummow, Kirby and Hayne JJ). Of particular importance (he submits) is the reference to the decision under s 65 which directs attention to the decision-making process in Pt 2, Div 3, Subdiv AB of the Act. I accept the appellant’s submissions to this point.

41    Having focussed on the decision-making process before the Minister’s delegate, the appellant then made two submissions in support of his contention that “before the Minister” means documents or information to which the delegate has had regard.

42    First, the appellant submits that the decision-making process of the Minister’s delegate involves an obligation to have regard to information whether it be in the application (s 54(1)), given by the applicant to the Minister (s 55(1)) or obtained by the Minister (s 56(1)). The argument is that it would be consistent with that context to construe before the Minister as meaning documents or information to which the Minister’s delegate had regard.

43    The Minister put two matters in response to this submission, both of which have considerable force. The first point is that two of the three sections to which the appellant referred themselves draw a distinction between having the information, on the one hand, and having regard to it, on the other. Sections 55(1) and 56(1) are in the following terms:

55 Further information may be given

(1)    Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

56 Further information may be sought

(1)    In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

The Minister’s argument is that it is difficult to say that information the Minister has under s 55(1) or s 56(1) is not before the Minister.

44    Secondly, and I think more significantly, it is the statutory words in s 473DA(1)(A) which are the key consideration and they are not “had regard to”, but “before the Minister”.

45    The second submission made by the appellant is that a construction of “before the Minister” as documents or information to which the Minister had regard avoids, or at least reduces, the risk of documents or information being “before” the Minister’s delegate, but not being, for whatever reason, the subject of an invitation under s 57(2) of the Act, then being relied on by the Authority in a manner adverse to the applicant in circumstances where, because the information is not new information, the Authority does not comply with s 473DE. One answer to this is given by the High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [49] per Gageler, Keane and Nettle JJ:

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.

It should be noted that it was no part of the appellant’s argument in this case that a failure by the Authority to exercise the power in s 473DC(3) constituted jurisdictional error.

46    It should also be noted that the appellant’s construction does not entirely eliminate the risk he identified because the Minister’s delegate may give documents or information active intellectual consideration, but decide not to rely on them and, therefore, not take any action under s 57(2) of the Act. I agree that that is unlikely to occur in the case of dob-in letters, which was the example the appellant gave, but it may well occur in a case where the adverse nature of the information is not as clear-cut.

47    The appellant referred to the Explanatory Memorandum for the amendment which introduced Pt 7AA into the Act (Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)). The Explanatory Memorandum contains a reference to the definition of “new information” and a statement that that would not include review material as defined in s 473CB because that material generally would have been before the Minister before the Minister made the decision under s 65 of the Act (para 901). The purpose of s 473DA(2) is to put beyond doubt that the Authority is not required to give the referred applicant any material that was before the Minister for comment. This is because under s 57(2) of the Act, the referred applicant would already have been given an opportunity to comment on information that the Minister considered was the reason, or part of the reason, for refusing to grant a visa (para 888). I do not consider the Explanatory Memorandum advances the appellant’s arguments beyond those I have already addressed.

48    As I have said, DTK17 and CVV16 provide some support for the adoption of the first alternative, but they do not compel its adoption. There are contextual matters on both sides of the argument, but to my mind, the critical point is that had Parliament intended s 473DA(1)(a) to refer only to documents or information that the Minister’s delegate had regard to, then it would have been easy enough for it to say so. It did not. Instead it used the words “before the Minister” which I construe as meaning physically before the Minister’s delegate. The interviews were physically before the Minister’s delegate for the same reasons given below in relation to the alternative argument.

49    In case I am wrong, I will go on to consider whether the Minister’s delegate had regard to the interviews.

50    It is not entirely clear what the primary judge had in mind when he said that he was satisfied the Minister’s delegate had regard to the interviews. His Honour did make it clear in his reasons that, in his view, having regard to information did not preclude the Minister’s delegate from considering the information not of sufficient relevance or importance to refer to it in the reasons for decision and that the Minister’s delegate was not required to give the information active intellectual consideration.

51    The Minister submits that the drawing of an inference that his delegate had had regard to the arrival interview and the entry interview, probably as information obtained under s 56 of the Act, could be drawn by reference to the material before the Court and assisted by reference to what can be expected to occur in the course of the regular administration of the Act. He relied on Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 in which Bell, Gageler and Keane JJ said (at [47]):

The drawing of inferences can be assisted by reference to what can be expected to occur in the course of the regular administration of the Act. Although it is open to the Tribunal to form and act on its own view as to whether a precondition to the application of s 438 is met, the Tribunal can be expected in the ordinary course to treat a notification by the Secretary that the section applies as a sufficient basis for accepting that the section does in fact apply to a document or information to which the notification refers. Treating the section as applicable to a document or information, the Tribunal can then be expected in the ordinary course to leave that document or information out of account in reaching its decision in the absence of the Tribunal giving active consideration to an exercise of discretion under s 438(3). Absent some contrary indication in the statement of the Tribunal's reasons for decision or elsewhere in the evidence, a court on judicial review of a decision of the Tribunal can therefore be justified in inferring that the Tribunal paid no regard to the notified document or information in reaching its decision.

52    The Minister submitted that it can be safely inferred that his delegate had obtained the information acting under s 56 of the Act and then had regard to it as required by s 56. As the primary judge said, the absence of any reference to the arrival interview or the entry interview in the delegate’s reasons can be explained on the ground that she did not regard the interviews as significant or relevant. The explanation adopted by the primary judge for the delegate extracting the arrival interview and extracting and viewing the entry interview is the most probable explanation, that is, she was having regard to those documents as part of the decision-making process. No other purpose has been or can be suggested. The Minister submitted that the appellant has failed to discharge his onus to show that the interviews were not before his delegate.

53    The appellant submits that the Minister’s argument which he seeks to support by reference to the regular administration of the Act is misconceived. The appellant submits that neither the arrival interview nor the entry interview are specifically referred to in Pt 2 of the Act and they are not identified as a mandatory part of the decision-making process. In those circumstances, no inference can be drawn on the basis of the regular administration of the Act.

54    There are some similarities between this case and the case of DPT17 v Minister for Home Affairs [2019] FCA 872; (2019) 166 ALD 208 at [34]. However, that case is distinguishable on the basis that in that case the information or documents had been uploaded to the TRIM system and could be accessed, but there was no evidence of any interaction by the delegate with the documents, whereas in this case, there is evidence of the delegate’s interaction with the interviews (at [30](c) and (e) per Banks-Smith J). That, in my opinion, is a crucial difference.

55    In my opinion, the Minister’s arguments are correct. The Minister’s point is not one raising the presumption of regularity where regard to the interviews is expressly identified in the statute as an obligation to be performed. The Minister’s point is that his delegate was engaged in a decision-making process under the Act. There was no other reason for her to access the TRIM system in relation to the appellant nine days before she made her decision other than to consider the interviews and whether they were of sufficient importance and relevance to refer to in her decision. It should be inferred that is what she did and for that reason.

56    If it be a requirement that the Minister’s delegate had regard to the interviews, then that requirement was satisfied in this case.

Were the interviews before the Minister when the Minister made the decision under s 65?

57    It is important to identify the precise issue raised by the appellant with respect to this requirement.

58    The following matters are not in dispute:

(1)    the delegate’s “access” to the interviews on the TRIM system was on 21 March 2017 and that was nine days before she made her decision;

(2)    the primary judge’s conclusion that any complex decision involving the weighing of evidence or information is a process unfolding over time was, as a general proposition, accepted by the appellant. In any event, that proposition is plainly correct. As a general proposition, it is not necessary for a document or information to be physically before the Minister’s delegate or for the delegate to have had regard to it on the very day the decision is made for it to be said that the document or information was before the Minister when the Minister’s delegate made the decision under s 65;

(3)    where there is a lapse of time between when the document or information was before the Minister’s delegate and when the delegate made the decision under s 65, whether the time requirement is satisfied is a question of fact and degree and the Court will consider whether the first event is too remote from the second event to satisfy the timing requirement. That was the approach of Lee J in BDR18 v Minister for Home Affairs [2020] FCA 212 at [77] and I did not understand the appellant to challenge that approach. Again, in any event, in my respectful opinion, Lee J’s approach is correct.

59    If the appellant’s argument raised no more than a timing issue, then it could be readily disposed of. If regard was had to the interviews, nine days is not such a lengthy period to suggest, even on a prima facie basis, that the timing requirement was not met.

60    Perhaps recognising this, the appellant sought to link the timing issue to the first issue by submitting that nine days is too remote if only very fleeting consideration was given to the material. I reject this argument. If the correct test is that the interviews were physically before the Minister’s delegate, then the extent of consideration is not part of the requirement. Even if the requirement is have regard to the documents or information, I am unable to see any statutory warrant for concluding that they must be “had regard to” for any particular period of time or to any particular extent.

Conclusion

61    For these reasons, the appeal must be dismissed. I will hear the parties as to costs.

Associate:    

Dated:    22 March 2021