BBI18 v Minister for Home Affairs

GREENWOOD J: 1 These reasons should be read together with the reasons for decision in BAK18 v Minister for Home Affairs [2020] FCA 83 (the "BAK18 decision"), as aspects of the facts and circumstances relevant to these appellants, as the mother of BAK18 in the case of BBJ18, and the younger brother of BAK18 in the case of BBI18, including the family relationships between the BAK18 appellants and the appellants in this appeal, are described in those reasons. The relevant statutory framework is also described in those reasons. In these reasons, I describe the BBI18 and BBJ18 appellants as either appellants, applicants or claimants according to the context. 2 The grounds of appeal relied upon by the appellants in this appeal engage, by ground 1, the question of whether the Secretary of the Department of Home Affairs (the "Department") failed to give to the Immigration Assessment Authority ("IAA") material falling within the statutory description of "relevant material" for the purposes of s 473CB(1) of the Migration Act 1958 (Cth) (the "Act") in respect of a decision by the Minister's delegate to refuse BBI18 (the son) and BBJ18 (his mother) the grant of a Safe Haven Enterprise visa, subclass 790 (a "Safe Haven visa"). That refusal decision was a "fast track reviewable decision" for the purposes of the Act, which was required to be referred to the IAA for review: s 473CA. Section 473CB(1) casts an obligation on the Secretary to give to the IAA, in respect of that decision, "material" called "review material" which, apart from the "statement" falling within s 473CB(1)(a), comprises: (b) material provided by the referred applicant to the person making the decision before the decision was made; (c) any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review. 3 By ground 1, the appellants say that the review material included a statement lodged with the Department by BBI18 on or about 24 October 2013 which addressed his claims for protection and a further statement lodged by him with the Department on or about 7 July 2014 which also addressed aspects of his protection claims together with supporting documents. These statements are called the "Initial Statements". The appellants arrived in Australia as unauthorised maritime arrivals in 2013 together with BBJ18's son, BAK18, his wife, BAL18, their daughter, BAM18 and BBJ18's younger son, BBI18. Another daughter of BAK18 and BAL18, BAN18, was born in Australia. As to these matters, see [2] and [4] of the BAK18 decision. 4 Although the present appellants (along with the other family arrivals by boat) arrived in 2013, it was not until 18 July 2016 that the appellants were invited (under the provisions of the Act enabling such an invitation to be made), to apply for protection visas. The Initial Statements concerning the protection claims of BBI18 were lodged by BBI18 by the Refugee Advice and Casework Services ("RACS") services entity on the above dates prior to the lodging of an application for a Safe Haven visa on 4 September 2016, pursuant to the triggering invitation on 18 July 2016 to do so. 5 The appellants say that the application of 4 September 2016 for the Safe Haven visa attached a statement by BBI18 which refers to three Entry and Screening interviews with a departmental officer and a "detailed statement" provided by RACS which is said to be a reference to the statement of 24 October 2013 supplemented by the 7 July 2014 document with supporting documents. The appellants say that the Initial Statements are material provided by the referred applicant to the Department before the decision to refuse the grant of a Safe Haven visa was made. The appellants' application was refused by delegate "Stephen" on 19 October 2017 who then referred the decision to the IAA for review. The appellants emphasise delegate "Stephen's" letter sent to them dated 19 October 2017 in which it is said that the "Department has provided the following information to the IAA: "… any material you gave to the Department before the refusal decision was made". That letter also said that the Department had provided information to the IAA consisting of "any other material the Department considers to be relevant to the review". Neither the Initial Statements nor the material in the Secretary's possession concerning the BAK18 applicant family members was given to the IAA. 6 On or about 11 November 2017, a written submission was lodged with the IAA on behalf of the appellants by their solicitor and migration agent, Sudarshan Tambimuttu, which refers the IAA to the submission also provided by that solicitor to the IAA concerning the BAK18 applicants. That submission made reference to the advice from delegate "Rob" that the claims of the BAK18 applicants would be considered together with the claims of the BBI18 and BBJ18 applicants as a family unit. 7 As to the Initial Statements, the IAA, by letter dated 15 February 2018, requested the Department to identify whether the Initial Statements had been provided to the Department and, if so, whether they were provided as part of the application for a Safe Haven visa: see the quoted letter at [31] of the BAK18 decision. The IAA observed that, if so, could the statements be referred to the IAA for consideration. The Department responded by email on 18 February 2018 saying: 3. Information was provided by RACS for his screen in decision [which is probably intended to be a reference to the screening decision], not with his SHEV application. As this isn't referenced in the decision, I cannot confirm with certainty, whether or not this information was before and considered by the Case Officer [delegate "Stephen"]. 8 The IAA responded by email saying: Regarding part 3, we will not ask you to refer this document at this point in time. 9 On 28 February 2018, the IAA affirmed the refusal decision of delegate "Stephen". It did so without having the Initial Statements and it did not consider the BAK18 material. The appellants, before the primary judge, contended that the statutory review function of the IAA under s 473CC had miscarried leading to jurisdictional error because the Secretary had failed to provide the IAA with the statutory "review material" required by s 473CB(1)(b) and (c) essential to the discharge of the review function. The appellants also contended that the IAA had unreasonably failed to get in or consider getting in the Initial Statements and the BAK18 material. 10 As to those two matters, the primary judge held that there was no failure to comply with s 473CB(1)(c) by reason of delegate "Stephen's" failure to give the IAA the material concerning the claims of the BAK18 applicants (PJ at [48] and [49]). The primary judge came to the conclusion that the BAK18 material was not "obvious as part of the material" of the material relevant to the decision or review of the decision to refuse the BBI18 applicants a Safe Haven visa: PJ at [47]-[49]. The primary judge also considered that the BBI18 applicants and the BBJ18 applicants "had specific opportunities to ask for that material to be part of the review" but, "in the end" only asked for submissions to be put on. However, as discussed in the BAK18 decision, there seems to be little doubt that the appellants in both appeals were relying on the statement made by delegate "Rob" that proved to be, as the IAA said, an expectation which was unrealised. The unrealised expectation is the explanation why no "specific opportunity" was taken up to put the BAK18 material before the delegate as part of the BBI18 material and vice versa. The primary judge also found that it was not unreasonable of the IAA to not gather in that material "of its own volition": PJ at [51] and [52]. 11 As to the Initial Statements, the primary judge concluded that the Initial Statements did not fall within s 473CB(1)(b) because although they had been given to the Department prior to the refusal of the application, they had not been provided by BBI18 to the "person making the decision", that is, delegate "Stephen". The primary judge then considered whether the Initial Statements were material falling within s 473CB(1)(c) as other material in the Secretary's possession considered by the Secretary to be relevant to the review. The primary judge seems to have concluded at [67] that the Secretary "did not find the material relevant" and that that was "a mistake of the Secretary": PJ at [67]. That being so, the question became, for the primary judge, whether that error "derailed or disabled" the discharge of the IAA's statutory review function: PJ at [67]. The primary judge's answer to that question was that the IAA had, by the letter of 15 February 2018, sought to obtain the Initial Statements and once it emerged that they had not been lodged as part of the Safe Haven visa application, the IAA chose not to pursue the matter of that material further and made the refusal decision. The primary judge considered that the question then became one of whether the decision is "legally unreasonable" and concluded that it will be legally unreasonable "if there is a chance, a slight possibility that reference to those initial statements may have been matters that would have influenced or changed the decision": PJ at [68]. The primary judge then seems to move to a consideration of whether the material from BAK18's case could have changed or possibly altered the IAA's decision in reviewing BBI18's refusal decision (PJ at [61]) and says that it could not have done so: PJ at [70]. As to the Initial Statements specifically, the primary judge at [72] says that he cannot see anything in them that could have changed the decision concerning the IAA's review of the BBI18 decision. 12 In all of these remarks, the primary judge seems to be saying that there was a failure (due to the Secretary's "mistake") to give the IAA the statutory review material in compliance with s 473CB(1)(c) to the extent of the Initial Statements and although that error resulted in the IAA not being able to review the BBI18 decision by considering the statutory review material, the IAA did not fall into jurisdictional error because the Initial Statements could not have made a difference to the IAA's decision. The primary judge seems to be saying that the "threshold of materiality" was not crossed: see the authorities and the discussion at [60] of the BAK18 decision. 13 By ground 1 before this Court, the appellants contend that the IAA's review of the BBI18 refusal decision miscarried because the "review material" for the purposes of s 473CB(1) of the Act included the Initial Statements and also the BAK18 material, and none of that material was given to the IAA by the Secretary as required by s 473CB(1). 14 As to the Initial Statements, the appellants say that those documents are material "provided by the referred applicant to the person making the decision before the decision was made" and thus the integers of s 473CB(1)(b) are satisfied. The primary judge thought not, because the text of s 473CB(1)(b) contemplates that the material must be provided by the referred applicant "to the person making the decision", and thus it would be necessary for BBI18 to show that the Initial Statements had been provided to the particular delegate who decided the Safe Haven visa application which, in this case, was delegate "Stephen". That construction was said by the primary judge to follow because s 473CB(1)(d) identifies "details" that must also be given by the Secretary to the IAA in respect of the refusal decision and those details are described in terms which identify things provided by the referred applicant "to the Minister", and thus, the s 473CB(1)(b) reference to material provided "to the person making the decision" reflects, it is said, a conscious choice by the Parliament to depart from a conception of things given to the Department or the Minister, on the one hand, from material given to the actual decision-maker (case officer/delegate), on the other hand. 15 The s 473CB(1)(d) matters are these: (d) the following details: (i) the last address for service provided to the Minister by the referred applicant for the purposes of receiving documents; (ii) the last residential or business address provided to the Minister by the referred applicant for the purposes of receiving documents; (iii) the last fax number, email address or other electronic address provided to the Minister by the referred applicant for the purposes of receiving documents; (iv) if an address or fax number mentioned in subparagraph (i), (ii) or (iii) has not been provided to the Minister by the referred applicant, or if the Minister reasonably believes that the last such address or number provided to the Minister is no longer correct - such an address or number (if any) that the Minister reasonably believes to be correct at the time the decision is referred to the Authority; (v) if the referred applicant is a minor - the last address or fax number of a kind mentioned in subparagraph (i), (ii), (iii) or (iv) (if any) for a carer of the minor. 16 It can be seen from the subject matter of s 473CB(1)(d) that it consists of last known addresses for the referred applicant as provided by the referred applicant to the Minister for receiving documents so that, no doubt, the IAA will be able to readily engage with the referred applicant at and through accurate and reliable addresses, electronic or otherwise: see, for example, the last address for service of documents; the last residential or business address for receiving documents; the last fax number, email or other electronic address for receiving documents; and an address the Minister reasonably believes to be correct. 17 Some of the essential details an applicant for a Safe Haven visa or other protection visa is required to provide to the Department and thus the Minister when making an application is the applicant's residential or business address (see Item 14, Form 956, AB at p 50); postal address; all personal, student and work email addresses; and fax numbers: Form 790C, Items 37-41, AB at p 68. Again, this information is required, no doubt, so that the Department, case officers, staff and possibly the Minister or the Secretary can confidently communicate with the applicant. Any changes to details so given must be communicated to the Department. 18 Section 473CB(1)(d) is designed to put the IAA in the same informed position, as to current and accurate addresses for a referred applicant, as the Department and the Minister were in at the moment of referral of the refusal decision to the IAA. The provision is facilitative of accurate communication with the referred applicant. 19 The role and function of the addresses provision in s 473CB(1)(d) does not inform the purpose of s 473CB(1)(b) and (c) or the construction of those subsections. 20 As to s 473CB(1)(b), it would indeed be odd to attribute such a narrow construction to the section as that adopted by the primary judge. First, subsection (1)(b) refers, in literal terms, to material provided "by the referred applicant" but it cannot be thought that material provided by an authorised agent falls outside the scope of those words simply because the material is not literally provided by the referred applicant in strict compliance with those words. 21 The subsection also refers to material provided by the referred applicant "to the person making the decision". If that phrase is to be construed in a way that confines its operation, as the primary judge thought, to material provided by the referred applicant to the "actual decision-maker", that is, the "particular" named person making the decision (which, in this case, is delegate "Stephen"), the provision would have no operation should it turn out to be the case, for one reason or another (such as sickness, accident, death, workloads or file reallocations) that delegate "Julie", who was dealing with the matter and being provided with material, was unable to make the decision and another decision-maker, delegate "Joe", was now required to assume responsibility for deciding the application and making the decision. Could the Minister or the Department reasonably or rationally contend that material provided to the Department previously or to the Minister or to Julie would now have to be re-provided in its entirety to delegate "Joe" for the material to constitute statutory "material" provided by the referred applicant "to the person making the decision" for the purposes of s 473CB(1)(b) of the Act? 22 The text of s 473CB(1)(b) is not reductionist in the sense of reducing its scope to material provided to a "named person" but purposive in bringing within the statutory conception of "review material" all material provided by an applicant for a Safe Haven visa to the Departmental officers or the Minister or a delegate of the Minister engaging with the applicant and the application so as to comprehend the body of material to be put before "the person" who ultimately "makes the decision" before the decision is made. 23 The appellants also say that s 473CB(1) ought to be construed in light of the Code of procedure for dealing fairly, efficiently and quickly with visa applications established under the Act: Part 2, Div 3, Subdiv AB. The appellants say that since s 52 regulates how a visa applicant may communicate with the Minister and s 55 permits a visa applicant to give the Minister any additional relevant information to which regard must be had, it would be unlikely that the Parliament intended to enable a visa applicant to give information to the Minister and require it to be taken into account but yet limit s 473CB(1)(b) to only that class of material that happened to be provided to a particular named delegate who ultimately makes the decision, and to exclude material otherwise put forward by the referred applicant for consideration. 24 The applicants contend that once material has been provided to the departmental officers or the Minister or his delegate (in a way permitted by s 52 or in some other way permitted by the Minister), s 473CB(1)(b) is engaged as material has been provided by the referred applicant to the decision-maker and if that material, so provided, does not make its way into the hands of the actual decision-maker for one reason or another, it nevertheless remains statutory "review material" which must be given to the IAA by reason of s 473CB(1) recognising that the IAA must review a fast-track reviewable decision referred to it under s 473CA by considering the review material provided to it under s 473CB: see s 473DB. 25 As to the facts of this case, the statement of BBI18 accompanying the Safe Haven visa application refers, at paras 2 and 3, to the Entry and Screening Interviews with BBI18 and the Initial Statements. That reference engaged, for the purposes of the Safe Haven visa application, the Initial Statements which had been provided to the Minister's departmental officers on or about 24 October 2013 and 7 July 2014. To the extent that the delegate thought that the Initial Statements were confined to the "[Screening] decision" (see [7] of these reasons) and the IAA accepted that position by "not asking for the documents" (see [8] of these reasons), and thus the Initial Statements were thought to fall outside the scope of the Safe Haven visa application, the position, in truth, is that the Initial Statements had been expressly brought within the Safe Haven visa application by BBI18's statement attached to the application itself. 26 Thus, the Initial Statements formed part of the material provided by the referred applicant to the person making the decision before the decision was made for the purposes of s 473CB(1)(b). 27 In any event, the Initial Statements, if not falling within s 473CB(1)(b), fell within s 473CB(1)(c) as "any other material" in the Secretary's possession or control as material which is relevant to the review of the referred decision and material the Secretary ought to be taken to have considered to be relevant at the time of referral of the refusal decision to the IAA. Although the primary judge describes a possible decision by delegate "Stephen" to the effect that the Initial Statements were considered, by him, not to be relevant to the review of the refusal decision as, "a mistake of the Secretary" (PJ at [67]), I accept that the express cross-reference to the Entry and Screening Interviews and, more relevantly, the Initial Statements as part of the supporting statement for the Safe Haven visa application, meant that no delegate in the position of "Stephen" could reasonably have considered that the Initial Statements, as part of a review of the refusal decision, could not have been capable of assisting the IAA or capable of engaging at least the possibility that the Initial Statements taken together with the other review material could be probative of a fact in issue in the course of the review. 28 As to the BAK18 material, the delegate "Rob" had told BAK18 that the applications of the BBI18 applicants would be heard together with the BAK18 applicants as members of a family unit. The BBI18 applicants were entitled to act, and did act, on the footing that the Department had recognised early in the application process the inter-dependence between the material relating to the family members. For the reasons set out in the BAK18 decision, I am satisfied that the BAK18 material constituted material falling within s 473CB(1)(c) for the purposes of the review of the refusal decision concerning the BBI18 applicants. 29 As to these matters, it is, in my view, not possible to say that the failure on the part of the Secretary to refer the Initial Statements to the IAA and thus the failure to comply with the statutory pre-condition as part of the review process could not have materially affected the IAA's decision in reviewing the refusal decision. 30 Similarly, it is, in my view, not possible to say that the failure on the part of the Secretary to refer the BAK18 material to the IAA and thus the failure to comply with the statutory pre-condition as part of the review process could not have materially affected the IAA's decision in reviewing the refusal decision. 31 It is, in my view, not possible to say that the failure on the part of the Secretary to refer the Initial Statements and the failure to refer the BAK18 material, taken together (and thus the failure to comply with the statutory pre-condition as part of the review process in relation to the material taken together), could not have materially affected the IAA's decision in reviewing the refusal decision concerning the BBI18 referred applicant. 32 Accordingly, I am satisfied that the exercise of the review function by the IAA has miscarried. 33 I am satisfied that the primary judge was in error in not identifying jurisdictional error on the part of the IAA in its decision-making process. 34 Accordingly, the orders of the primary judge must be set aside and in their place an order made quashing the decision of the IAA and remitting the matter to the IAA for decision according to law. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

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