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 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.