Federal Court of Australia

AHF18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1283

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time is dismissed.

2.    The applicant is to pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an application under r 36.05 of the Federal Court Rules 2011 (Cth) (FCR) for an extension of time within which to file a notice of appeal from a judgment of the (then) Federal Circuit Court. The primary judge dismissed the application for judicial review of a decision of the second respondent, the Immigration Assessment Authority (also referred to as the IAA), which affirmed a decision of a Delegate of the first respondent, the Minister for Immigration, Citizenship and Multicultural Affairs, to refuse the applicant a protection visa under the Migration Act 1958 (Cth). The delay in instituting the proceeding is substantial, with the primary judge’s decision having been delivered on 18 June 2018 and the application for an extension of time filed only on 11 November 2022.

2    At the hearing of the application, the applicant was granted leave to file submissions in reply. In addition, both parties were granted leave to file short post-‍hearing submissions to address whether the error alleged by the applicant, if upheld, would invalidate the Authority’s decision to refuse the grant of the protection visa.

3    For the reasons set out below, the application for an extension of time should be refused. Given the lack of a sufficient explanation for the extraordinary length of the delay and the fact that the merits of any appeal are weak, it would not be in the interests of justice to grant the extension of time. In so finding, among other things I have taken into account that this is not a case where the grounds of appeal were unarguable. I have also taken into account and acknowledge the seriousness of consequences of this decision for the applicant and the fact that he was clearly in circumstances of considerable disadvantage for at least part of the period of the delay.

4    Finally, it is appropriate to record the Court’s gratitude to both counsel for their carefully considered and helpful submissions, in writing and orally.

2.    BACKGROUND

5    The background for this matter is not contentious and is summarised below.

6    The applicant is a citizen of Nigeria who first arrived in Australia on 18 September 2000. The applicant was in prison from 30 April 2014 until 29 October 2022, and has since been in immigration detention.

7    On 26 October 2000, the applicant applied for a protection visa on the grounds that he feared persecution in Nigeria by reason of his religion (the first PV application). That application was refused by a delegate. He subsequently withdrew an application for merits review of that decision in late 2002 following the grant of a Subclass 820 (Spouse) visa. On 12 December 2012, his subclass 820 visa was cancelled after he was convicted in Australia of drug trafficking offences.

8    The applicant made a second protection visa application (the second PV application) in which he claimed to fear harm for various reasons including past convictions in Australia, his religion, excommunication from his family or tribe, and an inability to obtain medical care in Nigeria. This protection visa application was refused by a delegate of the Minister, with the Refugee Review Tribunal affirming that decision on 4 December 2013.

9    On 21 September 2017, the applicant lodged the protection visa application the subject of the present proceeding (the third PV application) which was refused by the Delegate on 7 November 2017. In essence, the applicant claimed to fear harm, amongst other things, because his personal information was unintentionally and publicly disclosed on the website of the Department of Immigration and Border Protection (as it then was) in February 2014 (the data breach). The applicant also claimed that he owed significant sums of money to people in Nigeria, and would be murdered if returned, and that his family, including his children, would suffer if he was deported.

10    The Delegate found that any feared harm by the applicant did not meet the refugee criteria assessment in s 36(2)(a) of the Migration Act, or the complementary protection assessment criteria in s 36(2)(aa) of the Migration Act, and on that basis refused his protection visa application. The Delegate was not satisfied that the applicant had been threatened with harm on return to Nigeria for the reasons he claimed. While the Delegate accepted that the applicant’s separation from his children would have a detrimental effect on his psychological health, the Delegate did not accept that this provided a basis to grant a protection visa under the provisions of the Migration Act.

11    Following the Delegate’s refusal, the applicant’s application was then referred to the Authority for a fast track review under Part 7AA of the Migration Act. The Authority acknowledged the referral of the applicant’s case on 10 November 2017. In this regard, it was not in issue that the applicant was a fast track applicant as defined in s 5(1) of the Migration Act because the applicant was a “person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b)” of the Migration Act: s 5(a)(b) of the Migration Act. That Legislative Instrument was the Migration (IMMI 17/015: Person who is a Fast Track Applicant) Instrument, which identified a cohort of individuals who raised claims in relation to the data breach (IAA decision at [2]: see SZTVU v Minister for Home Affairs [2019] FCAFC 30; (2019) 268 FCR 497 at [29]–‍[31] (Derrington and Wheelahan JJ (with whose reasons Perry J agreed at [1])).

12    A number of events occurred between the referral and the Authority making its decision. On 28 November 2017, the solicitor for the applicant wrote a letter (undated) to the Authority requesting “copies of all documents before the IAA in this matter”. In the letter, the solicitor further stated that:

Notwithstanding the operation of the Migration Act 1958 s.473DA(2) I am instructed to request copies of all documents before the IAA in this matter.

In my submission while s473DA(2) rules out any duty to give the documents to my client, there is, similarly, no prohibition on them being given.

13    On 29 November 2017, an officer of the Authority prepared a file note of a telephone conversation with the applicant’s solicitor in response to the letter. The officer indicated that she had advised the applicant’s solicitor as follows:

I informed him that we can only provide certain documents outside of FOI means, mostly the PV application, PV interview recording, DIBP decision and notification. I advised if he requires access to other DIBP material he will need to pursue through FOI means to the DIBP. He understood. I confirmed once an F2 form has been received, the IAA will action his request for documents. He thanked me and terminated the call.

14    The primary judge accepted (at [8]) that the documents which the officer said could be provided to the applicant “outside of FOI” were in fact provided to the applicant on 5 December 2017, namely, the protection visa application, the protection visa interview recording, the Delegate’s decision record, and the letter addressed to the applicant notifying him of the Delegate’s decision.

15    The applicant’s representative made no further request for documents or an application under the Freedom of Information Act 1982 (Cth) (FOI Act) and did not provide to the Authority any submissions or “new information” (as that phrase is defined in ss 473BB and 473DC(1) of the Migration Act) on the applicant’s behalf.

16    On 20 December 2017, the Authority affirmed the Delegate’s decision not to grant the applicant a protection visa. At the time of the Authority’s decision, the applicant was still serving his sentence in prison.

3.    THE AUTHORITY’S REASONS

17    The salient aspects of the Authority’s decision affirming the Delegate’s decision to refuse the third PV application can be summarised as follows.

18    The Authority first referred to the information provided to it by the Secretary of the Department under s 473CB of the Migration Act as follows (at [4]):

As discussed below, this is the applicant’s third protection visa application, and it is apparent that the delegate considered the files relating to the earlier applications, and in particular a decision of the Refugee Review Tribunal (RRT) relating to his second application. Apart from that decision, none of the material relating to those earlier applications was included in the review material, on the basis that while the delegate had looked at it, it was ultimately not considered relevant and not relied on by the delegate.

(Citation omitted.)

19    At various points of its decision, the Authority referred to the Tribunal decision on the second PV application. It described the content of that decision as follows (at [6]):

the Tribunal set out the applicant's migration history which also includes two earlier decisions by the Minister to cancel the applicant's residence visa, both of which were successfully challenged by the applicant. The Decision Record sets out in detail the various different reasons the applicant has provided at different times as to why he should not be returned to Nigeria, as well as different accounts of his family and other personal circumstances given to different people at different times.

20    The Authority also observed (at [9]):

I note that neither in his current visa application nor in his interview with the delegate did the applicant raise, or seek to rely on, any of the claims put forward in earlier applications or submissions to the Minister as to why he should not be returned to Nigeria.

21    The Authority nonetheless referred to the Tribunal decision in its substantive consideration of the applicant’s claims: at [34] and [36]. In particular, at [34], the Authority rejected the applicant’s claim that his mother was threatened with harm in connection with her son. The Authority explained that it had rejected this claim because it was not satisfied that the documents provided by the applicant in support of the claim provided independent corroboration of those claims, as well as the “overwhelming credibility issues with the applicant personally and with his claims as a whole”. In this regard, the Authority:

note[d], furthermore, that according to the RRT decision in his first protection visa application the applicant claimed that his mother was dead, although he made different claims about her circumstances in subsequent applications.

22    After finding that the applicant’s claim that the people who threatened his mother specifically mentioned the data breach to be “self-‍serving and not credible” and “entirely fabricated” (at [35]), the Authority found that (at [36]):

This is a case where it is almost impossible to tell where the truth lies. It is apparent from the RRT decision, and from the delegate’s decision, that the applicant’s claims have changed over time in significant respects. I consider that the applicant has demonstrated himself, in the course of his dealings with the Department over more than fifteen years, to be prepared to provide untruthful information if he thinks it will be to his advantage. I consider that none of the applicant’s claims should be accepted.

23    The Authority therefore did not accept that the applicant was at risk of harm in Nigeria, and was not satisfied that the applicant is a person to whom Australia has protection obligations under either the refugee or complementary protection criteria in ss 36(2)(a) or (aa) respectively of the Migration Act.

4.    PRIMARY JUDGE’S REASONS

24    The “essence” of the applicant’s complaint before the primary judge was that, despite asking for all of the documents before the Authority, he was given only some of them: primary judge’s reasons (PJ) at [16]. In particular, the applicant’s complaint was that he was not provided with copies of the following documents (PJ at [7] and [16]):

(1)    the Tribunal decision in relation to a previous visa application made by the applicant which was cited by the Authority;

(2)    a copy of the police record of interview of the applicant’s de facto partner, M, and a transcript of her trial in the NSW District Court in June 2017; and

(3)    an affidavit of the applicant’s cousin sworn on 28 October 2017 in the High Court of Lagos and a police transcript relating to a complaint that the applicant’s mother made to police that people had come from Australia to threaten her about money owed by her son.

25    The issue before the primary judge was whether the Authority’s decision was unreasonable because the Authority made its decision without providing the applicant with all of the material before it: PJ at [13] and [17].

26    The primary judge found that the applicant’s request related to material which had been before the Delegate and that the Authority was not under any duty to give the applicant the requested material by virtue of s 473DA(2) of the Migration Act: PJ at [21]–‍[24]. That provision is considered further below.

27    Nonetheless, the primary judge found that the Authority had an implied discretionary power to give the applicant the material, because the documents sought may have contained information which the applicant needed so that his exercise of the right to make a submission would be meaningful: PJ at [31]. Critically in this regard, the primary judge had earlier held that (PJ at [26]):

The IAA has power to do what the Act expressly authorises it to do and whatever “may fairly be regarded as incidental to, or consequential upon, those things,” although a narrow approach should not be taken when considering the existence of incidental power: Attorney-‍General v Great Eastern Railway Co (1880) 5 App. Cas. 473 at 478; R v Gough; Australasian Meat Industry Employees’ Union (1965) 114 CLR 394; Dunkel v Commissioner of Taxation (1990) 27 FCR 524; Johns v Connor (1992) 35 FCR 1; Transport Workers’ Union of NSW v Australian Industrial Relations Commission (2008) 166 FCR 108.

28    Further, the primary judge held that (PJ at [28]):

The IAA's obligation to allow an applicant the opportunity to make submissions to it is an aspect of the IAA's duty to conduct a procedurally fair review of the delegate’s decision, albeit that the scope of procedural fairness is quite circumscribed in the context of IAA reviews. Incidental to that duty to conduct a procedurally fair review is a power in the IAA to provide an applicant, at his or her request, with information which is in its possession and which may be taken into account when reaching a decision on the review. The existence of such a power is necessarily incidental to the duty to conduct a procedurally fair review because its exercise may be required in particular cases so that an applicant’s exercise of the right to make a submission can be meaningful and not just an empty gesture.

29    The primary judge also held that (PJ at [30]):

Section 473DA(2) also does not require a different conclusion. Read in context, s.473DA(2) only provides that nothing in pt.7AA requires the IAA, as a matter of natural justice, to provide an applicant with material which had been before the delegate. It says nothing about whether the IAA nevertheless has power to provide such documents in certain circumstances [citing Plaintiff M174 of 2016 v Minister for Immigration & Border Protection (2018) 92 ALJR 481at [26].]

30    His Honour noted that no submissions were addressed to whether the FOI Act might have had some relevance to the question of whether the Authority had power to provide the applicant with the documents that he sought: PJ at [32].

31    The primary judge then examined whether the exercise of the implied power had miscarried in the present case. His Honour concluded that it had not for the following reasons (PJ at [37]):

The IAA’s telephone discussion and reply email evidenced its understanding that it had power to release documents to the applicant. The reply email discloses that the IAA believed that the FOI Act prevented it from releasing more than the documents referred to in that email. It has not been demonstrated that that conclusion was incorrect and it appears that it was the sole basis on which the IAA refused to release additional documents. That is to say, it has not been demonstrated by the applicant, who bore the onus of proof, that the IAA's refusal to release more documents than it did release was mistaken because it misunderstood the operation of the FOI Act or that a refusal for the reasons given amounted to a miscarriage of discretion.

5.    EVIDENCE

32    In support of his application for an extension of time, the applicant relied upon his affidavit sworn on 11 November 2022, which was read without objection. The applicant also relied on an affidavit of Fardin Nikjoo affirmed on 30 June 2023, annexing a screenshot of the Authority’s website under the heading “Access to Information”. That screenshot purports to outline the Authority’s position as to which documents it can release to a person who has an active review before it. The screenshot was relied upon by the applicant for the limited purpose of establishing that the Authority continues to take a position with respect to requests for documents before a delegate of the Minister which is consistent with that adopted vis-‍à-‍vis the applicant’s request in this case (and which the applicant contended is in error). That fact is said to demonstrate the “general importance” of the present case, which in-‍turn is said to weigh in favour of an extension of time. The evidence is clearly relevant for that purpose and the Minister’s objection to the affidavit on the ground of relevance was accordingly rejected.

6.    LEGAL PRINCIPLES ON GRANTING AN EXTENSION OF TIME

33    The discretion to extend time under r 36.05 of the FCR is not confined by express criteria, as Finn J pointed out in Peczalski v Comcare [1999] FCA 366; (1999) 58 ALD 697 at [19]. Rather, the discretion is a wide one requiring that the Court consider the particular circumstances of the case before it: Wedesweiller v Cole [1983] FCA 91; (1983) 71 FLR 256 at 259 (Sheppard J). However, there are a range of considerations which can appropriately be taken into account in the exercise of discretion of varying weight depending on the particular case, namely:

(1)    an extension of time will not be granted unless the Court is positively satisfied that it is proper to do so;

(2)    the length of the delay is a relevant factor;

(3)    the applicant must show an acceptable explanation for the delay, and that it is fair and equitable in the circumstances to extend time;

(4)    any prejudice to the respondent is a material factor militating against the grant of an extension; and

(5)    the merits of the substantive appeal, if the extension of time were granted, are properly to be taken into account.

See e.g. Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 186; (1984) 3 FCR 344 at 348–‍349 (Wilcox J) and Bechara v Bates [2018] FCA 460 at [17] (Perry J).

34    As to the fourth of these considerations, the Minister accepted that the grant of an extension of time would not cause the Minister any prejudice. However, that factor is essentially neutral given that a lack of prejudice alone to the respondent is not a sufficient reason to grant the application (as the respondent submitted): Hunter Valley Developments at 349 (Wilcox J).

35    With respect to the last of these factors, in Katoa v Minister for Immigration [2022] HCA 28; (2022) 96 ALJR 819, Kiefel CJ, Gageler, Keane and Gleeson JJ held at [17]–‍[18]:

It may be accepted that, in determining what is necessary in the interests of the administration of justice for the purposes of s 477A(2) [of the Migration Act] (or s 477(2)) [a power to extend time], it will often be appropriate to assess the merits of the proposed grounds of review at a “reasonably impressionistic level”. That is because the interests of justice are likely to be advanced by granting an extension of time to an application with some merit, depending, of course, on other relevant factors. In this regard, it may be relevant, as Mortimer J observed, that an extension of time will confer upon the applicant not only the right to a determination of their substantive application on the merits but also a right of appeal from that judgment, if adverse to the applicant.

However, and as the plaintiff accepted, there will be circumstances in which it is appropriate for the Court to engage in more than an impressionistic assessment of the merits. For example, if the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even “exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is “reasonably arguable” or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion. The broad power in s 477A(2) does not prevent a judge from undertaking such an examination and from relying upon that determination to refuse an extension of time.

(Citations omitted.)

36    Similarly, Gordon, Edelman and Steward JJ held that, while in some cases a judge may determine an application for an extension of time with a threshold level of consideration of the merits, “in order to resolve the facts and issues raised in an application, the judge may sometimes consider that it is necessary to have regard to the merits of the underlying application in greater detail”: Katoa at [62]; see e.g. Hasan v Minister for Immigration [2022] FCA 1194 at [26] (McElwaine J).

37    It is possible for the absence of an acceptable explanation for delay to be outweighed by the presence of an arguable case, especially where the decision under review is a migration one with serious consequences for the applicant: MZZGC v Minister for Immigration and Border Protection [2015] FCA 842 at [13] and [17] (Mortimer J); SZVBN v Minister for Immigration and Border Protection [2016] FCA 898 at [44] (Griffiths J). However, a very lengthy delay such as in the present case requires “compelling merit of the substantive application to be demonstrated”: AHZ21 v Minister for Immigration [2022] FCA 884 at [24] (Farrell J). As the applicant accepted, the merits of the appeal must be “exceptional” where an extension of time of many months or (as in this case) years is sought: AHZ21 at [27].

7.    SHOULD AN EXTENSION OF TIME BE GRANTED?

7.1    The length and explanation for the delay

38    The applicant filed his application to the Court on 11 December 2022, being approximately four years and three months out of time. In his affidavit sworn on 11 November 2022, the applicant deposed that:

I was incarcerated at the time [of the primary judge’s decision] and had no legal representation with the lack of communication resources. Most especially the internet in jail was preventative of my ability to lodge the application.

Furthermore, due to the circumstances at the time, I was going through episodes of mental health breakdown, for which I am still on medications, that prevented me from knowing what to do and how. I also had a physical painful impairment on my blind right eye which was intensified at the time.

My mental breakdown compounded with my physical pain without any support and resources led to my failure to exercise my legal right of appeal against the judgment.

…

I also have five Australian citizen children aged 8, 10, 18, 19, 21 whom I miss dearly. They would be adversely affected from me be removed from the lives permanently.

My children wellbeing and fear for my life are the reasons for me to bring this appeal now, very late, with the financial assistance of a friend of mine who is very concerned about my life if I be removed from Australia.

39    The Minister accepted that the applicant was incarcerated at the time of the primary judge’s decision. Nor did the Minister otherwise take issue with the applicant’s evidence.

40    That being so, I accept that the applicant has been in very difficult circumstances over the period since the primary judgment was delivered which to some extent contributed to the delay. The difficulty for the applicant, however, is that the extraordinary length of the delay here means (as he accepted) that exceptional circumstances must be demonstrated to justify the grant of an extension of time. First, while I accept that the factors on which the applicant relies to explain the delay provide some explanation for it, they do not provide a satisfactory explanation for the length of the delay. In this regard, the absence of legal representation is not a satisfactory explanation for delay: BQQ15 v Minister for Home Affairs [2019] FCAFC 218 at [38] (the Court). Nor did the applicant provide medical evidence which might have explained the impact of his mental condition on his capacity to institute the present proceedings at an earlier point in time. Secondly, as the Minister submitted, there is a significant public interest in the timely and effective disposal of litigation: Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929; (2001) 64 ALD 9 at [62] (Gyles J); see also FCFY v Minister for Home Affairs [2019] FCA 1222 at [8] (Thawley J).

7.2    General importance for the Authority’s performance of functions

41    As earlier foreshadowed, the applicant submitted that the error alleged in this proceeding “may have an ongoing significance for the Authority’s performance of its functions”. The applicant relied on the Authority’s website as of 30 June 2023. The applicant submitted that the Authority’s website demonstrates that the Authority continues to adopt the allegedly erroneous approach to the disclosure of information.

42    The Minister submitted that there was no evidence before the Court to show that decision-‍makers at the present time were continuing to act in accordance with this approach. In this respect, the respondent noted that the applicant had not produced any recent decisions of the Authority on the issue.

43    Under the heading, “Access to information”, the Authority’s website states that:

Administrative Release

If you have an active[] review before the IAA, the IAA may be able to release certain documents to you outside of the Freedom of Information Act. For example:

•    Your primary decision record & notification

•    Some interview recordings

•    Visa application/s

…

For information not available through administrative release, you can make an Freedom of Information (FOI) request to the IAA and/or the Department of Home Affairs.

44    I accept the Minister’s submission that Mr Nikjoo’s affidavit is not direct evidence of the Authority adopting this approach in other decisions. However, I consider that the approach outlined on the website is consistent with the approach adopted by the Authority in this case. As such, there is at least a real possibility that the Authority has adopted and continues to adopt this approach in other cases. I accept that this is a factor which can legitimately be taken into account in this case, given the width of the discretion to extend time.

45    However, while I accept that this consideration weighs in favour of granting the extension of time in this case, it does not alone justify the grant of an extension of time. Rather, the weight to be given to it depends largely upon the merits of the substantive appeal, which I consider to be weak for reasons I explain below.

7.3    Merits of the substantive appeal

7.3.1    The ground raised by the draft notice of appeal

46    The applicant’s draft notice of appeal contains one ground of appeal which alleges that:

The primary judge erred by failing to conclude that the Second Respondent (Authority) had made a jurisdictional error by misapprehending the scope of its power to provide to the Applicant material before the Authority, or by not applying its mind to or properly considering the power, or by unreasonably failing to exercise the power.

47    This ground is supported by the following particulars:

a.     The primary judge correctly found at paragraphs 28 and 29 of his decision that the Authority had an implied incidental power, bordered by legal unreasonableness, to provide the Applicant at his request with material before the Authority which could be relevant to its review;

b.     The primary judge correctly asked at paragraph 33 of his decision “did [the Authority's] exercise of the discretionary power to release documents miscarry when it decided what documents it would release in response to the applicant's request?”;

c.     The primary judge noted at paragraphs 34-36 of his decision the Applicant's request for material before the Authority and the Authority's reply that only certain material could be provided pursuant otherwise than under the Freedom of Information Act 1982 (Cth);

d.     The primary judge at paragraph 37 of his decision found that the Authority's reply to the Applicant's request “discloses that the IAA believed that the FOI Act prevented it from releasing more than the documents referred to in that email”;

e.     The primary judge concluded at the same paragraph of his decision that the Applicant had not “demonstrated that that conclusion was incorrect and it appears that it was the sole basis on which the IAA refused to release additional documents”;

f.     The primary judge erred as the Authority's discretionary power was not so limited and the Tribunal made a jurisdictional error by misapprehending the scope of the power, failing to apply its mind to the true scope of the power or failing properly to consider its exercise: SZSZQ v Minister for Immigration [2018] FCA 403 at [69]; Minister for Immigration v RGKY [2022] FCAFC 177 at [12]-[16], [93]);

g.     The Authority's error was material as it could realistically have decided to provide further material to the Applicant, particularly the decision of the Refugee Review Tribunal (RRT) dated 4 December 2013 and relied on by the Authority at paragraphs 34 and 36 of its decision;

h.     In the alternative, the Authority unreasonably failed to provide the material to the Applicant, as there was no evident and intelligible justification for not doing so, particularly with respect to the RRT decision.

48    Given the extraordinary length of the delay, this is a case where a strong, if not exceptional, case should be established for extending time. It does not suffice to establish that the merits are merely arguable. As such, it is appropriate and necessary to consider the merits of the proposed ground of appeal in detail: Katoa at [18]; Hasan at [26] (McElwaine J).

7.3.2    What is the source of the Authority’s power to provide the applicant with the requested material?

49    At the outset, I note that both parties accepted (as do I) that the primary judge was correct to find that the Authority did not have a duty to give the applicant the requested material by operation of s 473DA of the Migration Act. That section provides that:

(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.

50    Both parties also correctly accepted the primary judge’s finding that the Authority nonetheless had an implied discretion to provide materials, and that such a discretion was indeed exercised to the extent that the Authority provided the limited documents earlier described to the applicant. However, the parties differed in their views as to the source of that discretion. This question is significant because it is directly relevant to the question of whether the Authority was required to consider the exercise of the power. In particular, the question whether the Authority misunderstood the scope of the implied discretion, as the applicant contends, can be considered only once the source of that discretion has been identified.

51    On the one hand, the applicant submitted that the primary judge rightly held at [28] that the discretion is “necessarily incidental to the duty to conduct a procedurally fair review” (emphasis added). In the applicant’s submission, that duty derives (as the primary judge alluded) from s 473FA(1) of the Migration Act. That provision requires that the Authority, “in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. The applicant submitted, in this respect, that the proposed implication arises because the Authority must perform its functions in a manner consistent with the procedural fairness obligations provided for in Div 3. The applicant further contended that the Authority was required to consider the exercise of the “implied incidental power” upon an application for its exercise being made to it, and the Authority had to do so with a correct understanding of, or regard to, the scope of that power (citing Hicks v Aboriginal Legal Service of Western Australia (Inc) [2001] FCA 483; (2001) 108 FCR 589 at [11] (Lee, Lindgren and Katz JJ) and SZSZQ v Minister for Immigration and Border Protection [2018] FCA 403 at [69] (Katzmann J)).

52    On the other hand the Minister submitted that, contrary to the primary judge’s finding at [28], the source of the discretionary power is s 473DC(3) of the Migration Act, relying on Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217. While the Minister did not file a notice of contention (and contended that one was not necessary given the primary judge’s reliance at [30] on Plaintiff M174), the applicant in any event accepted that “it may be that the absence of the notice of contention would sound only in costs, rather than preventing the Minister from putting the argument”. In circumstances where the applicant is legally represented, the applicant was on notice of the Minister’s position prior to the hearing, and I have had the benefit of submissions from both parties on this issue, I am satisfied that it is not unfair to the applicant to consider this issue: Minister for Immigration and Border Protection v SZSNW [2014] FCAFC 145 at [94]–‍[96] (Buchanan J); CIH16 v Minister for Immigration and Border Protection [2018] FCA 1317 at [40] (Derrington J).

53    That being so, the Minister’s submission should be accepted. Section 473DC(1) of the Migration Act, entitled “Getting new information”, confers a power on the Authority to obtain new information not before the Minister which the Authority considers may be relevant. Subsection (3) makes it clear that that power extends to the discretion to invite a person to give new information as follows:

(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.

54    However, it is clear from sub-‌s (2), that the Authority is under no obligation or “duty to get, request or accept any new information”, including where the referred applicant makes a request for that information to be provided.

55    Justices Gageler, Keane and Nettle in Plaintiff M174 held that the Authority has power to give to a referred applicant, material which was before the Minister when making her or his decision as an implied incident of the power conferred on the Authority by s 473DC(3) of the Migration Act. Specifically, at [26] their Honours held that:

In relation to information contained in review material given to the Authority by the Secretary that was before the Minister or delegate at the time of making the decision to refuse to grant the protection visa, s 473DA(2) makes clear that there is no general requirement for the Authority to give that material to the referred applicant. There is, however, nothing in Pt 7AA to preclude the Authority from giving the whole or some part of that material to the applicant or another person in the context of exercising the power conferred by s 473DC(3) to invite the giving of new information, and s 473DA(2) is not addressed to what might be required of the Authority in particular circumstances in order to exercise that power reasonably.

(Emphasis added.)

56    Further, their Honours observed at [49] that:

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.

57    However, the applicant contended in effect that the present case was distinguishable on the basis that, in the exercise of the “implied incidental power”, the Authority is not providing the review applicant with an opportunity to provide “new information” for the purposes of s 473DC(3) of the Migration Act. Instead, the applicant submitted that the Authority, in exercising the incidental power, is extending to the review applicant an opportunity to provide fresh submissions, and that those fresh submissions do not constitute “new information” for the purposes of Part 7AA of the Migration Act.

58    The applicant’s contention that submissions do not constitute new information for the purposes of Part 7AA is plainly correct insofar as the submissions are about existing factual material before the Minister and do not seek to communicate knowledge about some new fact. Thus in Minister for Immigration v CED16 [2020] HCA 24; (2020) 380 ALR 216 on which the applicant relied, Gageler, Keane, Nettle and Gordon JJ agreed at [21] that “[t]he term ‘information’ in the context of [Div 3 of Part 7AA] cannot sensibly be read as extending beyond knowledge of facts or circumstances relating to material or documentation of an evidentiary nature” (quoting Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 with approval): see also Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [35] (Flick, Griffiths and Perry JJ). Furthermore, in CLV16 the Full Court held that “section 473DC of the Migration Act does not preclude the Authority from considering a submission, being a submission confined to the existing pool of factual information which was before the delegate”: at [36] (emphasis added). Similarly, the Full Court held in that case, in a passage relied upon by the primary judge (at [91]) that:

Section 473DA in Pt 7AA of the Migration Act severely constrains the procedural protections which the common law may otherwise have afforded a participant in the fast track review process undertaken by the Authority. But no construction of Pt 7AA should be countenanced which further constrains the ability of a visa applicant to make submissions as to the consequences flowing from such factual material as was before the delegate or the ability to seek to have the Authority exercise its power under s 473DD to consider “new information”.

59    Referring to that passage, the primary judge reasoned that the Authority had an “obligation to allow an applicant the opportunity to make submissions … as an aspect of the IAA’s duty to conduct a procedurally fair review”, and held that an incident of that power was a power “to provide an applicant, at his or her request, with information which is in its possession and which may be taken into account when reaching its decision” (PJ at [28]).

60    With respect, that approach is in error. The fact that the Authority is not precluded from affording an applicant the opportunity to make submissions limited to the existing pool of factual material does not, with respect, amount to an “obligation” on the Authority to afford the applicant an opportunity to provide new submissions as an aspect of a duty to conduct a procedurally fair review. The notion that the Authority is obliged to invite new submissions runs contrary to s 473DB of the Migration Act, which ordinarily requires the Authority’s decision to be made on the papers.

61    In any event, s 473DA(1) of Part 7AA precludes any possibility of any such “implied incidental power” being derived from obligations of procedural fairness. That section provides in unequivocal terms that Div 3 of Part 7AA and ss 473GA and 473GB are taken to be “an exhaustive statement of the requirements of the natural justice hearing rule” in relation to reviews conducted by the Authority. As such, the express words of Part 7AA leave no scope for any further obligation of procedural fairness to be implied. Hence, Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ held in BVD17 v Minister for Immigration and Border Protection [2019] HCA 34; (2019) 268 CLR 29 at [33] that:

The evident purpose of s 473DA(1)… is to require that those provisions be construed as a codification of the incidents of the Authority's acknowledged obligation of procedural fairness. The prescription does not preclude all implications. Importantly, it does not preclude an implication that a statutory power within the provisions to which s 473DA(1) refers must be exercised only within the bounds of legal reasonableness. What the prescription does preclude is an incident of the Authority's obligation of procedural fairness arising as a matter of implication through the application of the common law principle of statutory interpretation according to which, where the exercise of a power or the performance of a duty is conditioned by a requirement to afford procedural fairness, “regard must be had to the circumstances of the particular case to ascertain what is needed to satisfy the condition” with the result that “[i]t is not possible precisely and exhaustively to state what the repository of a statutory power must always do to satisfy [the] condition”.

(Emphasis added.)

62    That passage makes abundantly clear, in my view, that it is not possible to imply a power for the Authority to provide the applicant with the requested material as an incident of procedural fairness: “Procedural fairness … is not the “lens” through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Pt 7AA is to be determined” (BVD17 at [34] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ)).

63    As there is, therefore, no duty imposed on the Authority to allow an applicant to make submissions, it follows that there can be no implied incidental power sourced in such a duty to provide an applicant at her or his request with information in the Authority’s possession which may be taken into account by it in reaching a decision. The primary judge’s findings to the contrary at [28] cannot be sustained and are inconsistent with s 473DA(2) providing that there is no duty on the Authority to give a referred applicant any material that was before the Minister. The source of the Authority’s implied power to give existing material to a referred applicant is found in the discretion conferred on the Authority under s 473DC(3), as the High Court held in Plaintiff 174, which the Authority is under no duty to exercise.

64    Finally, this is not to deny that in some circumstances a failure by the Authority to give such material to an applicant might be legally unreasonable. As Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ observed in BVD17 at [36]:

The prescription in s 473DA(2), it will be recalled, is to the effect that nothing in Pt 7AA requires the Authority to give to a referred applicant any material that was before the Minister when making the decision under s 65. There might be circumstances in which the prescription would not prevent the Authority being required to provide material that was before the Minister to a referred applicant as an incident of a legally reasonable exercise of the discretion conferred on it by s 473DC(3). Similarly, there might be circumstances in which the prescription would not prevent the Authority being required to provide such material to a referred applicant as a consequence of a legally reasonable exercise of the discretion conferred on it by s 473GB(3)(b). However, the prescription does operate to preclude an obligation on the part of the Authority to give such material to a referred applicant from otherwise arising as a matter of implication.

(Citations omitted; emphasis added.)

65    Thus, the discretion in s 473DC must be exercised within the bounds of reasonableness: DPI17 v Minister for Home Affairs [2019] FCAFC 43; (2019) 269 FCR 134 at [35](3) (Griffiths and Steward JJ).

7.3.3    The sole proposed ground of appeal lacks sufficient merit to warrant the grant of an requested material?

66    It will be recalled that the issue before the primary judge was whether the Authority’s decision was unreasonable because it made a decision without providing the applicant with all of the material before it ([13] at [17]). In these proceedings, the applicant submitted that the Authority “misunderst[ood]… the scope of the implied discretionary power” or “misconstrue[ed] ... the implied discretionary power” to provide the applicant with the material before it. While the Minister contended that this argument was not raised below, and therefore leave would be required to raise it on appeal, the applicant submitted that this argument formed part of his case before the primary judge, albeit that it is “more developed and specific than it was below”. In the circumstances, I have assumed for the purposes of considering the application for an extension of time that the issue was raised before the primary judge but find (as I explain below) that the argument lacks any real merit.

67    First, I accept the Minister’s submission that the Authority understood that it had a discretion to give documents to the applicant. This is evident from the fact that the Authority provided some of the documents requested by the applicant to him in the exercise of that discretion, as the primary judge held at [37].

68    Secondly, I accept the applicant’s submission that the primary judge was correct to hold at [37], as a matter of fact, that the Authority believed that the FOI Act prevented it from releasing documents before the Delegate other than those which the Authority did in fact release. Specifically, the file note of the conversation between the officer of the Authority and the applicant’s solicitor records that the officer conveyed to the applicant’s solicitor that the Authority could “only provide certain documents outside of FOI means” to the applicant and if the applicant required access to other documents, he would “need” to pursue that through the FOI process (emphasis added). The email from the Authority to the applicant’s solicitor then stated “[a]s noted in the phone call to you of 29 November 2017, the IAA can release the following documents to [you] administratively outside of the Freedom of Information Act”. I therefore disagree with the Minister’s submission that the Authority “appreciated that it had a discretion to provide such material to the applicant”.

69    Thirdly, the FOI Act clearly does not purport to limit the Authority’s implied power to provide documents before a delegate to a referred applicant. Nor did any party contend otherwise. To the contrary, s 3A of the FOI Act relevantly provides that:

(1)    This section applies if a Minister, or an officer of an agency, has the power to … give access to, information or a document (including an exempt document) apart from under this Act.

Publication and access powers not limited

(2)     The Parliament does not intend, by this Act, to limit that power, or to prevent or discourage the exercise of that power:

…

(b)     in the case of the power to give access to the information or document—whether or not access to the information or document has been requested under section 15.

(Emphasis in original.)

70    Further, there was no dispute that the Authority is an “agency” on the basis that it is a prescribed authority within the meaning of s 4(1) of the FOI Act. It follows that the Authority did in fact misunderstand the scope of its implied incidental power to provide documents before the Delegate to the applicant. The primary judge, with respect, therefore erred in holding at [37] that the applicant had not established that the Authority’s belief that it had no discretion to release any of the other documents requested was wrong. That error is understandable in circumstances where, as the applicant accepted, the primary judge did not have the benefit of submissions as to the effect of the FOI Act (PJ at [32]).

71    Fourthly, the applicant’s submission that the error made by the Authority is jurisdictional because it “relates to giving the applicant a procedurally fair opportunity to prepare his case” could not succeed because this is premised on an incorrect understanding of the source of the power. As I have earlier explained, there is no implied obligation on the Authority to conduct a procedurally fair review: the requirements of procedural fairness from the perspective of the right to be heard are exhaustively set out in Div 3 of Part 7AA of the Migration Act. Nor has the applicant pointed to anything suggesting that the failure to provide the remaining documents rendered the Authority’s exercise of the implied power to provide documents before the Minister so unjust as to be legally unreasonable. The highest that the matter is pleaded is that there was no evident and intelligible justification for the Authority failing to do so. However, that allegation is simply tantamount to a claim that it was legally unreasonable for the Authority to fail to provide the material because it held a wrong view of the law in circumstances where it was under no obligation to provide the documents anyway. Further, the applicant provided no submission, orally or in writing, as to why the non-exercise of the discretion was legally unreasonable. The applicant’s bare assertion, without more, of legal unreasonableness is self-‍evidently insufficient to demonstrate jurisdictional error. This is so because the applicant bears the onus of establishing error in a judicial review case: Minister for Immigration & Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] (Gummow J) (with whose reasons Heydon and Crennan JJ agreed at [91] and [92] respectively). As such, the contention would fall far short of establishing legal unreasonableness in the exercise of the implied discretionary power, let alone in the Authority’s decision to affirm the decision to refuse the applicant the visa which is ultimately sought to be impugned.

72    Finally, in the event that I found that the “implied incidental power” to provide the documents in question was founded in s 473DC of the Migration Act, the applicant submitted that the refusal to exercise the implied power due to a misunderstanding of the scope of that power would be jurisdictional, in circumstances where the Authority proceeded to rely on the requested material despite the applicant having been deprived of the opportunity to make submissions with the benefit of that material. Yet that demonstrates immediately the fatal flaw in the applicant’s argument: that he cannot escape framing the argument ultimately in terms of a breach of procedural fairness.

73    Absent legal unreasonableness, there is therefore effectively a disconnect between the legal error which the applicant has correctly identified in the exercise of the implied incidental power to provide documents before the Delegate on the one hand, and the power and duty to make a decision on the fast track review, on the other hand. As there is no duty of procedural fairness to allow an applicant to make submissions on a fast track review and there is therefore no implied incidental duty to provide the applicant with documents before the Minister, it cannot be said that an error in comprehending the scope of the implied incidental power could bear upon the legality of the Authority’s decision on the review. To hold otherwise would be inconsistent with the statutory regime governing the fast track review and, in particular, the express exclusion of any obligation to give a referred applicant any material before the Minister and the exclusion of the common law hearing rule.

74    It follows that applicant has not established that any appeal would have sufficient merit to warrant the grant of an extension of time given the length of the delay. Any misunderstanding of the law by the Authority was an error made within jurisdiction. In these circumstances, there is no need to consider the issue of materiality.

75    I reiterate that this does not preclude the possibility that a failure by the Authority to exercise the implied incidental power under s 473DC to provide all or some of the documents before the Minister to a referred applicant might in other circumstances be exercised unreasonably such as to bear upon the validity of decision on the review. However, the present case is, with respect, not such a case.

8.    CONCLUSION

76    It follows for these reasons that the merits of the proposed appeal are weak. Indeed, in my view the appeal would not succeed. Given the extraordinary length of the delay and the failure to adduce evidence sufficient to explain the length of that delay, the lack of sufficient merit in any appeal outweighs the fact that there is at least a possibility that the Authority may continue to operate on the incorrect assumption that it is precluded from providing some of the kinds of documents before the Minister. That said, however, it is hoped that this decision will suffice to bring that error to the Authority’s attention.

77    I do not consider that, in the circumstances outlined at [52] above, the Minister’s failure to file a notice of contention is a sufficient reason to deprive the Minister of any part of his costs. The application for an extension of time is, therefore, dismissed with costs.

Associate:

Dated:    25 October 2023