AZR17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The Grounds of Appeal 13 The two grounds of appeal are expressed as follows: 1. Her Honour erred in finding that the second respondent (Authority) was not required to form an opinion as to whether the appellant had made a claim for protection in another country that had been refused by the UNHCR, for the purposes of the definition of "excluded fast track review applicant" in section 5 of the Migration Act 1958, and ought to have found that by failing to do so the Authority's decision was made in the absence of a jurisdictional fact. 2. Further or in the alternative, her Honour erred in finding that the Authority considered the submission and country information referred to at para 10(vii) of the appellant's submissions provided to it on 9 October 2016 and ought to have found that the Authority committed jurisdictional error by failing to do so. 14 Part 7AA deals with what is called a fast track review process in relation to certain protection visa decisions. Section 473CA provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. Subsection 473CC(1) provides that the IAA must review a fast track reviewable decision referred to the IAA under s 473CA and subs 473CC(2) sets out the action the IAA may take having conducted such a review. A fast track reviewable decision is defined in s 473BB of the Act as, among other decisions, a fast track decision in relation to a fast track review applicant. A fast track review applicant is defined in s 5 as meaning a fast track applicant who is not an excluded fast track review applicant. An excluded fast track review applicant is defined in s 5 as a fast track applicant: (a) who, in the opinion of the Minister: (i) is covered by section 91C or 91N; or (ii) has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or (iii) has made a claim for protection in a country other than Australia that was refused by that country; or (iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; (vi) without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; 15 The appellant submitted that the issues raised on the appeal were as follows. With respect to Ground 1, the issue is whether the IAA was required to form an opinion as to whether the appellant "had made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country" for the purposes of the definition of "excluded fast track review applicant" in s 5 of the Act. With respect to Ground 2, the issue is whether the IAA committed a jurisdictional error by failing to consider part of the appellant's written submissions made to it.

The Primary Judge's Reasons 16 The primary judge said that there was no dispute that the appellant was a "fast track applicant" within the definition in s 5 of the Act. The primary judge said that the appellant's submission was that the IAA had proceeded in the absence of a jurisdictional fact which was an opinion that the appellant had not made a claim for protection in a country other than Australia that was refused by the Office of the UNHCR in that country. In the absence of such an opinion, the appellant was not a fast track review applicant and the delegate's decision was not a "fast track reviewable decision". The primary judge said that the difficulty with this submission was that it conflated a number of issues and was inconsistent with the appellant's own application for a protection visa. Her Honour said that the question of whether an applicant was an excluded fast track review applicant was a matter of the opinion of the Minister through his delegate and not the IAA. Her Honour considered that this was evident from the wording of the definition. Furthermore, the fact of the referral to the IAA of the decision not to grant the visa was evidence that the Minister was not of the opinion that the appellant was an excluded fast track review applicant. 17 The primary judge said that there were other difficulties with the submission, even if the IAA had the same obligation as the Minister. First, the appellant's construction of the definition was not consistent with the wording of the definition in that it suggested that the Minister had to form an opinion one way or another. That is not the effect of the definition. Secondly, the primary judge said that it was difficult to understand how, in the circumstances of this case, the Minister (and, in the event it was bound to do so, the IAA) could have formed the opinion that the appellant had made a claim for protection in a country other than Australia that was refused by the Office of the UNHCR in that country in view of the information the appellant put forward in his application for a SHEV (i.e., his claim was approved) and the delegate's findings (i.e., the appellant did not wait for an interview) as set out above. 18 The primary judge referred to the IAA's finding and then said (at [20]): The submission by the Applicant that this gives rise to a suggestion that the Authority understood an assessment may have been made but that it did not consider it necessary to decide either way, is a misconstruction of the Authority's reasons. It was not a comment on jurisdiction. It was an observation as to the Authority's task of assessing the Applicant's claims on review, nothing more. The Authority's statement that the matter was "not determinative" when read in context, does not support the proposition that "it is improbably [sic] that the Authority had in fact formed an opinion one way or the other as to whether the applicant's claim had been refused by the UNHCR" as submitted by the Applicant. 19 The primary judge also noted that even if the delegate and the IAA were wrong about there not being a determination of the UNHCR process, the only other evidence about the issue was the appellant's statement that his claim in Malaysia was approved. 20 With respect to the second issue, the primary judge said that the appellant's argument was that the finding of the IAA that the information before the delegate did not support the proposition that Tamils are subject to other discrimination and harassment of a level amounting to serious harm "strongly suggests" that it had not considered the particular part of the 2015 Report to which the appellant had referred to in his submissions. The primary judge rejected this argument. Her Honour said that it was not necessary for a decision-maker to refer to every piece of evidence and every contention made by an applicant in its written reasons and in that respect her Honour referred to Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (Applicant WAEE) at [46]. The choice of which country information to refer to or to rely on was a matter for the IAA and her Honour referred to NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (NAHI) at [11]-[13]. Her Honour noted that, while an inference that the IAA had failed to consider an issue may be drawn from its failure to deal expressly with that issue in its reasons, such an inference was not to be too readily drawn, particularly where, as here, the reasons were otherwise comprehensive and the issue had been identified at one point. The primary judge noted that parts of the 2015 Report are referred to in the IAA's reasons and her Honour referred to the relevant passage in the IAA's reasons. Her Honour said that, in addition, the reference appears to be a reference to the same matters as are referred to in the appellant's submissions to the IAA in respect of the 2015 Report which was the very matter the appellant complained that the IAA did not consider.

Analysis 21 I start with a summary of the submissions of the parties. 22 With respect to the first issue, the appellant's submission on the appeal was that the IAA's jurisdiction was limited to fast track reviewable decisions and that it had not determined whether the appellant was an excluded fast track review applicant because it had not determined whether the appellant's claim for protection in Malaysia had been refused by the Office of the UNHCR in that country. The appellant submitted that, although the definition of "excluded fast track review applicant" refers to the opinion of the Minister, a jurisdictional fact can be an opinion, as well as a fact in the ordinary sense of the word. The IAA had not made a finding as to the determination by the UNHCR in Malaysia and, in fact, had said that it was not satisfied that a determination by the UNHCR in Malaysia would be determinative of the review before it. 23 The appellant submitted that the Minister had not, in fact, formed an opinion as to whether the appellant had a claim for protection which had been refused by the UNHCR. In fact, the Minister's counsel conceded (so it was said) that no opinion one way or another was, in fact, formed as to whether the appellant was an "excluded fast track review applicant". The Minister's submission was that the formation of an opinion was unnecessary and that an appellant could only be an "excluded fast track review applicant" if the Minister had, in effect, voluntarily formed an opinion that he or she had been refused by the UNHCR. The appellant submitted that the primary judge reasoned as follows. The primary judge said that the issue was whether the IAA was obliged to form an opinion about the issue and decided the case on that basis. The primary judge concluded that the IAA was not obliged to form an opinion about whether the appellant had made a claim and had been refused by the UNHCR based on the fact that the definition of "excluded fast track review applicant" refers to the opinion of the Minister, not the opinion of the IAA and on the basis it was difficult to understand in the circumstances of the present case how the IAA could form an opinion that the appellant's claim had been refused by the UNHCR. The appellant then made the following points about this reasoning: (1) the fact that the definition of "excluded fast track review applicant" refers to the opinion of the Minister is not decisive of the question of whether, on a review, the IAA is required to form an opinion on the relevant matter; (2) s 473CA refers to the Minister referring a "fast track reviewable decision" to the IAA and s 473CC refers to the IAA reviewing such a decision. If the intention of the legislation had been that the IAA was required to review any matter referred to it by the Minister, then there would have been no need to refer in the sections to "fast track reviewable decision"; and (3) the Minister's construction has the unfortunate consequence that applicants referred to the IAA "are required to independently seek review of that such [sic] decisions in the Federal Court creating a multiplicity of litigation"; and (4) insofar as her Honour's approach was influenced by the difficulty the IAA would have had in forming the opinion that the appellant's claim had been refused, that was an error. The IAA was required to form an opinion one way or another, and if it had adopted a similar view to that of the primary judge, it could have formed an opinion that the appellant's claim had not been refused by the UNHCR. 24 The Minister submitted that the primary judge is correct and he made the following points in support of the submissions: (1) the purpose of including a person who has had a claim for protection made in another country refused by the UNHCR is to remove the delay in the finalisation of cases in circumstances in which an applicant has accessed protection determination procedures both overseas and in Australia; (2) there was no evidentiary basis for either the delegate or the IAA to conclude that the appellant had made a claim for protection in a country outside Australia which had been refused by the UNHCR; (3) although the IAA conducts a de novo review (Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 264 CLR 217 at [17] per Gageler, Keane and Nettle JJ; at [95] per Edelman J), it is a more limited form of review than that conducted by the Administrative Appeals Tribunal (AAT) in the ordinary case. Critically, the IAA does not have the power to set aside or substitute a decision. It is not correct to describe the role of the IAA as involving the making of the correct or preferable decision as is the role of the AAT or, at least, there are dangers in doing so (Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136; (2017) 254 FCR 534 at [92] per Griffiths J). It cannot be assumed that the Minister's power or function to form an opinion has been conferred on the IAA; (4) there is a significant difference between the manner in which the process of review is engaged in the case of the IAA and in the case of the AAT. In the case of the former, the Minister must refer a fast track reviewable decision to the IAA and the IAA must review such a decision. In the latter case, the aggrieved party initiates the review process. It is the Minister in the case of the former process who decides that there is a fast track reviewable decision and refers it to the IAA. It is the Minister's opinion which is determinative; and (5) the appellant's submission is that if the IAA does not have an obligation to determine the issue, applicants will have to approach the Court is difficult to follow because it is not clear why applicants would approach the Court for relief that they are not entitled to a review by the IAA. 25 With respect to the second issue, the appellant submits that there is an obligation in s 473CB of the Act on the Secretary to give the IAA the material, including the material provided by the referred applicant to the person making the decision before the decision is made. Section 473DB(1) of the Act provides that, subject to this Part, the IAA must review a fast track reviewable decision referred to it under s 473CA by considering the material provided to it under s 473CB. The essence of the appellant's submission is that the IAA had not considered the statement in the 2015 Report to the effect that there were credible reports during 2015 that police and military forces abducted, tortured, raped and sexually abused citizens. The IAA had said that the information before the delegate did not support a finding that Tamils are subject to other discrimination or harassment on a level amounting to serious harm. The appellant submitted that the inference should be drawn that the IAA had not considered the passage in the submissions the appellant had made to it. 26 The Minister submitted that the primary judge's decision with respect to the second issue was correct for the reasons her Honour gave. 27 In relation to the first ground of appeal, I have reached the conclusion that it is not necessary for the IAA to conduct any independent inquiry about whether what has been referred to it is a fast track reviewable decision. As long as there is nothing obvious on the face of the reference to raise a question about whether the decision is a fast track reviewable decision, and there was nothing of that nature in this case, the IAA is entitled to proceed on the basis that what has been referred to it by the Minister is a fast track reviewable decision. There is good reason to restrict the reference to the Minister's opinion to the Minister alone because otherwise a potentially large inquiry might have to be made in each case by the IAA, not only as to the matter in subparagraph (iv), but also the other paragraphs and subparagraphs in the definition of excluded fast track review applicant. That would be a surprising result in the case of a limited form of review which is intended to be relatively expeditious. Although I consider that the passage in the IAA's reasons set out above was directed to the merits of the appellant's claim not jurisdiction, that is, even if there was a determination by the UNHCR in Malaysia, it would not be determinative in the appellant's favour of the assessment under the Act, the result on the available evidence was inevitable. The appellant was not an excluded fast track review applicant and the decision of the IAA was within jurisdiction. 28 Although the Minister's reference to the IAA was not challenged, I think that it should be inferred that he concluded that the appellant was not an excluded fast track review applicant because he did not form the opinion identified in paragraph (a)(iv) of the definition. 29 I reject Ground 1. 30 In relation to the second ground of appeal, it appears that the IAA was aware of the 2015 Report. It referred to it in its decision (at [29]). The delegate and the IAA had before them what appears to be a reasonably large quantity of country information. The IAA could choose the country information it relied upon (NAHI at [11]-[13]) and it did not have to refer to every item of evidence placed before it (Applicant WAEE at [46]). There is no reason to conclude that the IAA overlooked the passage in the 2015 Report. 31 I reject Ground 2.

Conclusion 32 The appeal must be dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.