BKY17 v Minister for Immigration and Border Protection

1. The appeal be dismissed.
2. The Appellant pay the First Respondent's costs as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an appeal from the Federal Circuit Court. It raises issues about: (a) the applicability of the High Court's reasoning in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 ('SZBEL') to the regime of review in Pt 7AA of the Migration Act 1958 (Cth) ('the Act'); (b) whether a submission is 'information' under Pt 7AA; and (c) whether the Immigration Assessment Authority ('the Authority') has the power under Pt 7AA to seek submissions from an applicant. For the reasons which follow, the appeal should be dismissed. As will become apparent, this is not a fair outcome. However, it appears to be what Pt 7AA requires. 2 The Appellant is an Iranian citizen. He fled Iran in 2013 and claims to fear persecution on a number of bases. Amongst these is a claim that he had become an atheist and would be targeted as an apostate. Another was that he had once attended a Christian church in Tehran and had been arrested and tortured as a result. He claimed that he would be persecuted by the religious authorities because they thought he had converted to Christianity. 3 He arrived in Australia by boat without a visa in July 2013 and was taken to Christmas Island and then Wickham Point Immigration Detention Centre near Darwin. Shortly after he arrived he was interviewed on at least two occasions. During these interviews he mentioned that he had visited a Christian church and had been detained for two or three hours afterwards. It also appears that at one of these interviews he had said that he had never been arrested or detained in Iran and, at another, that after his visit to the church he received telephone calls from the police and security services requiring him to report to their offices where he was verbally warned about his religious practices. There is a question about the consistency of these accounts to which I will return. 4 Because the Appellant had arrived in Australia without a visa and on board a boat, he was an 'unauthorised maritime arrival' within the meaning of the Act and was not permitted to apply for a protection visa unless the Minister first determined that he could apply. This the Minister eventually did but not until 27 July 2016. The Appellant then applied for a safe haven enterprise visa on 21 November 2016. This application was accompanied by a statutory declaration by the Appellant dated 21 November 2016. In this statutory declaration, he did not mention that he had attended the church or that had been arrested afterwards. Nor did the visa application make explicit that a claim for protection was to be made on the basis of an imputed religious faith (i.e., conversion to Christianity). 5 The Appellant was interviewed about his claims for protection by a delegate of the Minister on 6 January 2017. At that time, the Appellant mentioned that he had attended the church and had been arrested. The delegate appears to have permitted the Appellant to put on further material about this incident which the Appellant did by means of a second statutory declaration dated 9 January 2017. In this second statutory declaration he explained that he attended the Saint Sarkis Armenian Cathedral in Tehran following a heated argument with his father about religion during which he had told his father he was going to convert to Christianity. This was said in the heat of the moment, however, and his true purpose in attending the church was only to find out more about Christianity. He quizzed the priest in particular about whether Christianity permits the drinking of alcohol, along with many other questions. He was at the church for about 30 minutes after which he left. It was as he left that he was stopped by a police car, arrested and taken to an interrogation centre for several hours before being released. Whilst there he claims to have been tortured. 6 In the second statutory declaration the Appellant also explained to the delegate that the reason he had not mentioned the incident at the church in his protection visa application was because he was not a Christian and did not think that the claim based on being a Christian would be of any assistance for his visa application (which was, it will be recalled, principally premised on his being an atheist). 7 The delegate considered the Appellant's claim and, on 23 January 2017, concluded that the application should be refused. It is not entirely clear that the delegate apprehended that a claim based on imputed conversion to Christianity was being pursued by the Appellant but he nevertheless dealt with the incident at the church. The delegate accepted that the Appellant had attended the church and that he had been arrested thereafter. The delegate did not explicitly say that he rejected the Appellant's claim to have been tortured at the interrogation centre. What the delegate did say, however, was this: In his arrival interview, the applicant had claimed that he had been arrested in 2011 for attending a Christian Church. He did not include this aspect of his claims in his Protection visa application but it was discussed at the interview and a submission was received following the interview. The applicant advised that he attended a church once to seek more information about Christianity. I accept that he attended a Christian Church and as detained as a result and then released. However, as the applicant was not charged or sentenced and was able to depart Iran travelling on his own passport, I find that he is not of ongoing interest to the authorities on account of attending a Christian Church and I will not consider this aspect of his claims any further. 8 The implication of this is that the delegate did not use the fact that the incident at the church had not been mentioned in the protection visa application as a reason for rejecting the Appellant's account of the incident. 9 Because the Appellant was an unauthorised maritime arrival he did not have the right to seek a merits review of the delegate's decision before the Administrative Appeals Tribunal under Pt 7 of the Act. Instead, his matter was automatically referred to the Authority under Pt 7AA of the Act without the need for any application on his part. The Authority was not obliged to conduct a hearing and did not do so. It did, however, write to the Appellant on 27 January 2017 and informed him that it would receive a written submission from him of no more than 5 pages so long as it was sent within 21 days. On 17 February 2017, the Appellant's migration agent lodged such a submission. It expressly articulated a claim that the Appellant would have imputed to him that he was a Christian convert because of his attendance at the church. 10 The Authority affirmed the decision of the delegate on 10 March 2017. It recorded the fact that the Appellant was making a claim that it might be imputed to him that he had converted to Christianity because he had attended the church. It set out the evidence about the claim at [11]-[12]. These were as follows: At the entry interviews, which were conducted about one month after the applicant arrived in Australia, he stated that he had left Iran because he did not want to be a Muslim any more and his life was therefore in danger. He indicated that he had been looking at other religions in Iran, but at the time he arrived in Australia he did not consider himself to have any religion. He indicated that he had been detained for two or three hours because he had attended a Christian church, although he also appears to have stated at one interview that he had never been detained or arrested or charged with any offence in Iran. In his SHEV application an at the SHEV interview he stated that he fears harm because he is an atheist and does not believe in any god or religion. He did not mention having attended a Christian church in Iran or having considered converting to Christianity until he was specifically asked about it by the delegate at the end of the SHEV interview. After the SHEV interview he provided a statutory declaration stating that he had gone to the Armenian Church in Tehran with an Armenian friend following a big argument with his father. He had told his father that he was going to convert but really he only went to find out more about Christianity. When they left the church after about thirty minutes the applicant was stopped by a car and taken to a "local interrogation centre" where he was questioned and tortured for several hours and made to promise not to attend church again. He said that he did not raise this in his SHEV application because he is not a Christian and did not think this matter was of any relevance to his protection claims. 11 The Authority then considered the claim at [24]-[26] which it rejected. It did so on the basis that it did not accept that he had attended the church at all or, consequently, that he had been detained for doing so. Its reasons for rejecting his account of the incident at the church were threefold. First, it felt that he had given differing accounts of what had happened at the church. Secondly, the Appellant had not mentioned the incident in his protection visa application. Thirdly, it did not accept that that failure could be explained by the Appellant's evidence that he had not included it in the visa application because he did not think it was material. 12 The Appellant had been given an opportunity by the delegate to explain his position in relation to the second and third points which were raised with him. Although the delegate did not reject the Appellant's version of events on the basis of these second and third points it was open to the delegate to do so. Consequently, I do not think there are any particular difficulties in the Authority reaching a different conclusion on these matters to that of the delegate. The Appellant was given an opportunity to explain why he failed to include the incident in his protection visa application and he took it. The delegate implicitly accepted the explanation but did not have to do so. The Authority did not have to do so either. 13 The first point, however, is more problematic. The Authority's treatment of it was at [24]: I do not accept that the applicant attended church or that he was arrested or detained as a consequence. Even though he raised the claim on arrival in Australia, he provided apparently inconsistent details, stating at one point that he was arrested and/or detained after attending the church, and elsewhere that he had never been detained or arrested or charged with any offence in Iran. He stated at another point at the entry interview that after attending church he had received several phone calls from the police and security forces requiring him to report to their offices where he received verbal warnings about his religious practice; he said that the last occasion when this had happened was about six months before he arrived in Australia, when he had been held at the police station for a couple of hours. Given that the applicant has not been asked to explain or clarify these apparent inconsistencies I have not given them great weight, but in view of the other problems with his evidence I consider it appropriate to have some regard to them in assessing the credibility of the claim that he attended church and was arrested as a consequence. 14 This is perhaps not perfectly expressed but the basic point is that the Appellant had given three different accounts which were inconsistent, at least when viewed in relation to the suggested incident at the church. These were: (a) that he had said that he had been arrested after he left the church; (b) that he had said that he had never been arrested in Iran; and (c) that he had been telephoned by the police and security services and instructed to come to their offices where he was verbally warned about his religious practice. It is not entirely evident that (c) is inconsistent with (a) - he could have been arrested and released and then later called in for a follow up verbal warning. Further, there may be an issue about the rationality of (b) when the Authority subsequently concluded that he had been arrested in Iran due to his participation in political demonstrations. However, whatever one's misgivings about that might be, I do not think that the logic of the Authority's inconsistency point is really open to challenge. The Appellant's account did certainly vary and it was open to the Authority to conclude that this was a reason to reject his account of what had occurred at the church. 15 But, as the Authority itself accepted, the Appellant had not been asked to comment on these inconsistencies. The last sentence of [24] has the Authority appearing to downplay the significance of the inconsistencies to its reasoning because the Appellant had not been asked about them but it is nevertheless clear that the Authority decided that it would have 'some regard' to them in reaching its view. And, of course, the Authority ended up rejecting in its entirety his account of the incident so one cannot say that this tributary of reasoning did not flow into any actual conclusion. Nor can one say that this conclusion is immaterial because the Authority had two other sufficient reasons to reject his account of what occurred at the church (i.e. the second and third points set out above at [11]). It is impossible to say that these conclusions are not interrelated so that the rejection of one of them cannot have any impact on the others. 16 Had the Appellant not been an unauthorised maritime arrival the review of the delegate's decision would have been carried out by the Administrative Appeals Tribunal pursuant to the regime in Pt 7. Under Pt 7, had that Tribunal acted as the Authority did in this case, there would have been a denial of procedural fairness which would have resulted in the setting aside of its decision. So much is established by the High Court's decision in SZBEL. In that case, the applicant gave to the delegate an account of how it was that he came to jump ship from an Iranian vessel. The delegate, whilst refusing the application for the protection visa, did accept the correctness of this account. On review the Tribunal, without any notice to the applicant, concluded that his account of how he came to jump ship was implausible. The High Court held that this conclusion involved a denial of procedural fairness (at 163 [35]): The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 17 That reasoning, however, cannot be applied to cases under the provisions regulating the conduct by the Authority of reviews under Pt 7AA (the relevant provisions of which are contained in Div 3). No provision in Div 3 of Pt 7AA imposes upon the Authority an obligation to notify an applicant whose case it is reviewing that it is intending to depart from a favourable finding made by the delegate. Nor is there a correlative provision under Pt 7AA to ss 423(1)(b) or 425(1) for an applicant to give submissions relating to 'issues arising in relation to the decision under review'. This matters because Div 3 of Pt 7AA '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': s 473DA. The effect of this is to protect a review decision of the Authority from an SZBEL procedural fairness challenge. So much has been held by the Full Court of this Court in DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12; 258 FCR 551 at 568-569 [69] per Reeves, Robertson and Rangiah JJ. 18 Despite that conclusion, it is to be noted that the Authority is equipped with a power to obtain information or documents which were not before the delegate which it considers relevant (s 473DC(1)). It is under no obligation to exercise this power (s 473DC(2)). Further, there is a distinction between the power of the Authority to obtained information under s 473DC and its power to consider new information which springs from s 473DD. This second power which can only be exercised if the Authority is satisfied that there are exceptional circumstances which justify considering the new information (s 473DD(a)). Further, the new information must either have been not available at the time of the delegate's decision (s 473DD(b)(i)) or must be credible personal information which was not previously known and which could have affected the outcome of the review if known (s 473DD(b)(ii)). 19 If a submission by the Appellant about the inconsistency in his evidence can be characterised as 'information' then it will most likely be legally unreasonable for the Authority not to consider exercising the power in s 473DC to receive the information: Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210; 253 FCR 475 ('CRY16') at 492 [70]; cf Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 353 ALR 600 ('Plaintiff M174') at 607 [21] per Gageler, Keane and Nettle JJ; 613 [49] per Edelman J. However, whether the Authority has failed to consider exercising the power in s 473DC is a question of fact which must be proved: ASB17 v Minister for Home Affairs [2019] FCAFC 38 at [46]-[49]. 20 On the current state of the law I do not think, however, that I can characterise a pure submission or comment as 'information'. In the context of Pt 7AA 'information' has been held to mean 'a communication of knowledge about some particular fact, subject or event': Plaintiff M174 at 608 [24]. Nor is this a case like CRY16 where the dividing line between a submission and factual material was less clear (as it may often be). There may be many cases in which a submission does include new information but a purely argumentative document will not satisfy that standard. I am aware that the Full Court appeared to assume that a submission about inconsistencies in evidence would be new information in DPI17 v Minister for Home Affairs [2019] FCAFC 43 ('DPI17') at [45]-[47] but the point appears not to have been argued. Although the Court referred to Plaintiff M174 it does not appear to have engaged with the proposition that an argument about an inconsistency is not a communication of knowledge about a fact. I do not think therefore that DPI17 binds me to a view which appears to be contrary to Plaintiff M174 (although if it mattered, and with great respect, I do not entirely agree with the High Court's statement about the nature of 'information' either). 21 Part 7AA confers an express power on the Authority to receive a submission (called a 'comment') only in s 473DE(1)(c) when the Authority has decided to rely upon some new information in reaching the conclusion that the delegate's decision should be affirmed. This might suggest that it has no power to receive submissions outside of that context. Certainly, that view would be consistent with orthodox principles applying to inferior tribunals who must find their powers in their enabling statutes. As has been often enough pointed out, in the case of such an inferior tribunal '[i]f the power does not flow from the Act as properly construed, it cannot exist': Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447 per Herron CJ, Wallace P and Manning JA (applied by Palmer v Clarke (1989) 19 NSWLR 158 at 166-167 per Kirby P); see also John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA. 22 Here the scheme of Pt 7AA suggests that there is no procedural hearing power other than that which is expressly provided for. Submissions are apt to be seen as part of the machinery of procedural fairness and s 473DA is clear that Pt 7AA is an exhaustive statement of those requirements. Accordingly, I do not think that Pt 7AA by itself would have permitted the Authority to seek from the Appellant a submission about the inconsistency in his evidence. 23 That is not the end the inquiry, however. At the times relevant to this appeal, the Authority had a practice direction dated 1 October 2016. Clauses 20-22 provided: 20. For the purposes of the review, you may provide a written submission on the following: • why you disagree with the decision of the Department • any claim or matter that you presented to the Department that was overlooked. 21. Any submission must be concise. It should identify and address the issues you want us to consider in our review. Your submission should be no longer than 5 pages and should be provided to us within 21 days of your case being referred to us by the Department. We may return longer submissions. If we return your submission we will give you a short deadline by which to provide a revised submission that complies with this direction. If you do not comply with that deadline we will make our decision without the benefit of your submissions. 22. We can only consider new information (information that was not before the Department) in very limited circumstances as set out in section 473DD of the Migration Act. We must be satisfied that there are exceptional circumstances to justify considering the new information provided by either you or the Department. 24 There are some questions about the validity of clauses 20-22. First, the power to make a direction is conferred upon the Authority by s 473FB. By subs (1) a direction may deal with 'the operations' of the Authority and 'the conduct of reviews by the Authority'. By the same subsection any such direction must not be inconsistent with the Act which includes Pt 7AA. Part 7AA provides, by s 473DA, that its provisions dealing with reviews (Div 3) are an exhaustive statement of the natural justice hearing rule. If one took the view that submissions are part of the machinery of the natural justice hearing rule, then it would likely follow that the making of submissions which are not explicitly provided for in Pt 7AA would be contrary to the Act. On that view, a direction purporting to provide for the making of submissions would be invalid. That argument might well be buttressed by the observation that Pt 7AA does provide for the making of submissions but only in the very limited circumstance set out in s 473DE(1)(c) (i.e. where the Authority is going to decide the matters adversely in reliance upon new information). 25 Secondly, there is something possibly incongruous about the suggestion in cl 20 that the submission should be directed to the errors of the delegate. This is because the hearing conducted by the Authority is a hearing de novo (see Plaintiff M174 at 606 [17] per Gageler, Keane and Nettle JJ; 620 [85] per Edelman J). If so, the question of whether the delegate has made mistakes is not part of the legally relevant inquiry. The question is what does the Authority think. 26 However, it is not necessary to express any concluded view on those matters. Even assuming that cll 20-22 were valid, they would not have supplied a power in this case to seek from the Appellant a submission on whether the Authority should find his evidence unreliable because of freshly discerned inconsistencies. This is because such a submission would not have answered the description in cl 20. It would not have been a submission about errors in the approach of the delegate. 27 Consequently, I can only conclude that the Authority would have had no power to seek any further submission from the Appellant about the inconsistencies in his accounts. This is a different question as to whether the Authority can receive a submission which is made to it. The ability of the Authority to do so was accepted by the Full Court in Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80 ('CLV16') at [54]-[59]. For myself, and again with great respect in this very difficult area, I doubt the correctness of that conclusion. However, this is not a material matter since CLV16 may be distinguished in the present circumstances. 28 In that circumstance, I can detect no error in any failure by the Authority to ask the Appellant about the inconsistencies. 29 Were I to be in error in reasoning that way, and the Authority in truth does have a power to seek submissions, then I would have concluded that that power (from wherever it derives) was conferred on the implied condition that it was to be exercised within the bounds of reasonableness in the sense explained in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332: see Plaintiff M174 at 607 [21]. It would, in that circumstance, have been unreasonable for the Authority to rely upon an inconsistency in the evidence of the Appellant which he had not previously been heard on by the delegate without giving him the opportunity to make a submission. Largely, this conclusion would follow from applying by analogy the reasoning in CRY16 (which is about the power in s 473DC(1) to obtain new information) to the newly-discovered power to obtain submissions. 30 However, since I cannot find a power in the Authority to seek submissions I cannot alight on this final step in the argument. This leads to the conclusion that the appeal must be dismissed. 31 One question which may arise, in that circumstance, is whether the conclusion I have reached throws light on the nature of the review being conducted by the Authority. The High Court gave this topic attention in Plaintiff M174 at 606 [17]: Notwithstanding the inability of the Authority to set aside a fast track reviewable decision and to substitute its own decision, the Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination. 32 I would not read the reference to the hearing being a hearing de novo as necessarily entailing that the review is full. Rather, the expression appears only to underscore that the review does not involve the identification of error on the Minister's part. It is clear enough that the review is a highly attenuated one and very far from a 'full' review. The information which can be relied upon by the Authority is circumscribed as are the procedures which it may adopt. 33 In light of that last observation, one possible reading of the review provided for under Pt 7AA is that the Authority may not make a finding which was not made by the delegate where to do so would be procedurally unfair. This would have the effect, not that the Authority is to afford procedural fairness to an applicant before taking such a step, but instead that it is beyond the jurisdiction of the Authority to ever take such a step. In this case, it would mean that the Authority could not conclude that the Appellant's account was false on any basis upon which the Appellant had not been heard by the delegate. 34 Such a statutory construction of Pt 7AA as a whole would be consistent with what said by Gleeson CJ in Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at 494 [37] ('Parliament has not evinced an intention that a decision made by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand'). However, I do not think on the present state of the authorities I can approach the matter that way. In this case, Parliament appears to have evinced such an intention through s 473DA. Further, the High Court appeared to accept in Plaintiff M174 that the scheme of Pt 7AA could in fact work unfairly. At 614 [51] this was said: The prospect of non-compliance by the Minister or delegate with the code of procedure set out in Subdiv AB of Div 3 of Pt 2 resulting in procedural unfairness to the referred applicant in the review to be conducted by the Authority under Pt 7AA cannot be dismissed as an impossibility. But that prospect cannot be treated as of such magnitude as would invoke the presumption against procedural unfairness on which the plaintiff relies or as would justify the conclusion that Pt 7AA is framed to permit of review of a decision to refuse to grant a protection visa only if that decision has been made in compliance with the code of procedure. The legislative choice to define a fast track decision simply as a decision to refuse to grant a protection visa to a fast track applicant suggests otherwise. 35 In that circumstance, I do not think it is open to me to read the review as being confined in the manner I have suggested. The result I have arrived at is not attractive. 36 I make the following orders: