CRW16 v Minister for Immigration and Border Protection

IMMIGRATION ASSESSMENT AUTHORITY Second Respondent

JUDGE: FLICK J DATE OF ORDER: 21 MAY 2018

1. Leave is granted to amend the Notice of Appeal.
2. The appeal is dismissed.
3. The Appellant is to pay the costs of the First Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 The Appellant in the present proceeding is a citizen of Sri Lanka who first arrived in Australia in August 2012. 2 On 19 November 2015, he made an application for a Safe Haven Enterprise (subclass 790) visa. A delegate of the Minister for Immigration and Border Protection refused that application in July 2016. 3 The matter was then referred to the Immigration Assessment Authority (the "Authority") on 21 July 2016. That Authority affirmed the delegate's decision on 31 August 2016. 4 An application made to the Federal Circuit Court of Australia for review of the Authority's decision was dismissed in May 2017: CRW16 v Minister for Immigration and Border Protection [2017] FCCA 984. 5 The Appellant now appeals to this Court. A Notice of Appeal was filed in May 2017. An amendment is sought to rely upon two reformulated Grounds of Appeal. 6 The Appellant appeared before this Court by Counsel as did the Respondent Minister. Pursuant to leave granted, written submissions were filed subsequent to the hearing. 7 Leave to amend the Notice of Appeal is granted but the appeal is to be dismissed.

The reformulated Grounds of Appeal 8 The two reformulated Grounds of Appeal upon which the Appellant proceeded in this Court were expressed as follows (without alteration): Grounds of appeal 1. That the primary judge erred in finding that the second respondent did not deny the appellant procedure fairness in the manner in which: a. the second respondent dealt with the appellant's attempts to have access to all the freedom of information material; and b. his request for further time to obtain that material to properly put his case. 2. That the primary judge erred in finding that the second respondent did not act unreasonably when it made the decision to proceed with the review without awaiting the outcome of the freedom of information request.

Fast track decisions & Part 7AA 9 Part 7AA of the Migration Act 1958 (Cth) is headed "[f]ast track review process in relation to certain protection visa decisions". Within Pt 7AA, s 473BA expressly sets forth in the "[s]implified outline of this Part" what is there referred to as "a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants". 10 Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). The history of some of the key provisions of that Part has been summarised in Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [12] to [27] per Griffiths J. The "starting point for analysis [of Pt 7AA] is not the different regime under Pt 7 and the cases decided in relation to those statutory provisions": DGZ16 v Minister for Immigration and Border Protection [2018] FCAFC 12 at [69] per Reeves, Robertson and Rangiah JJ. 11 The present proceeding involves a decision made by the Authority in accordance with Part 7AA. 12 Within Pt 7AA Div 2, s 473CA provides for the referral of a "fast track reviewable decision" to the Authority "as soon as reasonably practicable after the decision is made". Division 2 of Pt 7AA "sets up a mechanism designed to result in automatic review of a fast track reviewable decision": Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 at [15] per Gageler, Keane and Nettle JJ ("Plaintiff M174"). 13 Section 473CB identifies that material which must be given to the Authority by the Secretary of the Department. 14 Division 3 within Pt 7AA is headed "[c]onduct of review". Within that Division, s 473DA provides as follows: Exhaustive statement of natural justice hearing rule (1) This Division, together with sections 473GA and 473GB, is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted by the Immigration Assessment Authority. (2) To avoid doubt, nothing in this Part requires the Immigration Assessment Authority to give to a referred applicant any material that was before the Minister when the Minister made the decision under section 65. 15 Subdivision B within Div 3 provides for what is referred to as "[r]eview on the papers". Section 473DB provides as follows: Immigration Assessment Authority to review decisions on the papers (1) Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB: (a) without accepting or requesting new information; and (b) without interviewing the referred applicant. (2) Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority. 16 Section 473DC provides for the Authority "[g]etting new information" as follows: Getting new information (1) Subject to this Part, the Immigration Assessment Authority may, in relation to a fast track decision, get any documents or information (new information) that: (a) were not before the Minister when the Minister made the decision under section 65; and (b) the Authority considers may be relevant. (2) The Immigration Assessment Authority does not have a duty to get, request or accept, any new information whether the Authority is requested to do so by a referred applicant or by any other person, or in any other circumstances. (3) Without limiting subsection (1), the Immigration Assessment Authority may invite a person, orally or in writing, to give new information: (a) in writing; or (b) at an interview, whether conducted in person, by telephone or in any other way. 17 Section 473DD provides for those circumstances in which the Authority is to consider "new information" and provides as follows: Considering new information in exceptional circumstances For the purposes of making a decision in relation to a fast track reviewable decision, the Immigration Assessment Authority must not consider any new information unless: (a) the Authority is satisfied that there are exceptional circumstances to justify considering the new information; and (b) the referred applicant satisfies the Authority that, in relation to any new information given, or proposed to be given, to the Authority by the referred applicant, the new information: (i) was not, and could not have been, provided to the Minister before the Minister made the decision under section 65; or (ii) is credible personal information which was not previously known and, had it been known, may have affected the consideration of the referred applicant's claims. The phrase "new information" as used in ss 473DC, 473DD and 473DE "must be read consistently" and "as limited to 'information' (which may or may not be recorded in a document), in the ordinary sense of a communication of knowledge about some particular fact, subject or event, that meets the two conditions set out in s 473DC(1)(a) and (b)": Plaintiff M174 [2018] HCA 16 at [24] per Gageler, Keane and Nettle JJ. The limited circumstances in which the Authority may consider "new information" were emphasised by Robertson, Murphy and Kerr JJ in Minister for Immigration and Border Protection v CRY16 [2017] FCAFC 210.

A denial of procedural fairness? 18 The first of the two Grounds of Appeal as amended asserts a denial of procedural fairness on the part of the Authority as to the manner in which it dealt with the Appellant's: "attempts to have access to all the freedom of information material"; and "request for further time to obtain that material". The "freedom of information material" there referred to is information which had been sought by the Appellant pursuant to a request made under the Freedom of Information Act 1982 (Cth) on 1 August 2016. That request, it may be noted, was ultimately refused on 17 September 2017. 19 The manner in which the Authority dealt with these two matters emerges from the following paragraph in its reasons for decision: 8. The migration agent submits the applicant has a Freedom of Information ("FOI") application pending since 3 August 2016 before the [Authority] for access to all department files. As a matter of procedural fairness, the applicant requires a copy of all the review material to properly answer his case. The migration agent further submits the timeframe for lodging submissions in the Practice Direction is unreasonable. The department's inability to process FOI applications urgently should not be allowed to hinder the applicant's ability to present his case to the [Authority]. The first [Authority] submission does not clearly request I forgo making a decision until the FOI application is finalised, but the inference I draw is that is the submission the migration agent is attempting to advance. I note on 4 August 2016, the [Authority] gave to the applicant the materially relevant documents and recordings from the review material outside of the FOI scheme. In these circumstances I consider it is reasonable to proceed to make a decision on the evidence currently before me. The "timeframe" which is there referred to provided for the Appellant to file "submissions and new information" by 22 August 2016. This was an extension of the usual 21 day period which was due to expire on 11 August 2016. 20 The "starting point" for the resolution of the first Ground of Appeal and any question as to the application and content of the rules of natural justice is the statute conferring the power: Kioa v West (1985) 159 CLR 550 at 614. Brennan J there relevantly observed: To ascertain what must be done to comply with the principles of natural justice in a particular case, the starting point is the statute creating the power. By construing the statute, one ascertains not only whether the power is conditioned on observance of the principles of natural justice but also whether there are any special procedural steps which, being prescribed by statute, extend or restrict what the principles of natural justice would otherwise require. In Annetts v McCann (1990) 170 CLR 596 at 604, Brennan J later likewise observed: The relevant law must be found in the statutory provisions which create the power and confer it on the repository, though the terms of the statute may be expanded by the implication of conditions supplied by the common law. Thus the common law will usually imply a condition that a power be exercised with procedural fairness to parties whose interests might be adversely affected by the exercise of power. This is the foundation and scope of the principles of natural justice. The common law confers no jurisdiction to review an exercise of power by a repository when the power has been exercised or is to be exercised in conformity with the statute which creates or confers the power ... It follows that the statute, construed to include any terms supplied by the common law, must define the conditions governing the exercise of a statutory power by a statutory authority. See also: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 at [30] and [52], (2001) 206 CLR 57 at 69 per Gleeson CJ and Hayne J and 74 to 75 per Gaudron J. Justice McHugh in Miah likewise observed (at 94): [130] The starting point for determining the content of the duty to accord natural justice is therefore the statutory context. See also: [2001] HCA 22 at [190] to [191], (2001) 206 CLR at 115 to 116 per Kirby J. 21 Part 7AA of the Migration Act unquestionably sets forth a scheme of review which is intended by the Commonwealth legislature to be undertaken with some degree of expedition. So much is self-evident from the heading to Pt 7AA and the characterisation of the scheme of review as a "fast track review process" and a "limited form of review": Migration Act s 473BA. It is also self-evident from (inter alia) the mandate to the Minister to "refer a fast track reviewable decision … as soon as reasonably practicable after the decision is made": Migration Act s 473CA. 22 There is no question that the Commonwealth legislature can limit the content of common law rules (e.g., Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31 at [97], (2012) 246 CLR 636 at 666 per Gummow, Hayne, Crennan and Bell JJ) and that the content of the rules of procedural fairness in any given case is (accordingly) not only tempered by the facts and circumstances of the case but also by the statutory context in which the decision is made. The common law rules can be expressly or impliedly excluded by statute, although an intention on the part of the legislature to exclude those rules is "not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations": Commissioner of Police (NSW) v Tanos (1958) 98 CLR 383 at 396 per Dixon CJ and Webb J. There must be a "sufficient indication" that "they are excluded by plain words of necessary intendment": Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (WA) [2008] HCA 4 at [182], (2008) 234 CLR 532 at 595 to 596 per Crennan J. 23 It is within the statutory context of Pt 7AA, and in particular Division 3, that the Appellant's argument as to a denial of procedural fairness is to be resolved. The question is the extent to which the common law rules of procedural fairness have been excluded, either expressly or impliedly, by that Division. 24 But for such constraints as may be imposed by Pt 7AA, the present Appellant may well have been entitled - by reason of the common law rules of natural justice or procedural fairness - to be afforded a reasonable opportunity to obtain such information or other materials as he considered relevant to the claims being made: cf. R v Thames Magistrates' Court; Ex parte Polemis [1974] 1 WLR 1371 at 1375 per Lord Widgery CJ; Rogers v Law Coast Mortgages Pty Ltd [2002] FCA 181 at [24] per Finn J; SZNSI v Minister for Immigration and Citizenship [2010] FCA 223 at [10] per Flick J. In some circumstance a reasonable opportunity to be heard in respect to that information and material may also suggest that an opportunity to be heard in person by the decision-maker is prudent: cf. Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 516 per Aickin J (Stephen and Mason JJ agreeing). That which constitutes a reasonable amount of time in which to prepare for a hearing and to collect information perceived to be of potential relevance must necessarily take into account the nature and complexity of the legal and factual issues involved and the personal attributes of a claimant, including familiarity with the English language: Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748 at [76] to [86] per Kenny J. 25 But for such express or implied statutory constraints as may be found with Pt 7AA, the present Appellant may well have been denied common law procedural fairness. Such documents as may have been provided pursuant to the Freedom of Information Act request may well have been relevant to the claims being advanced before the Authority. The time between the referral of the review to the Authority on 21 July 2016 and the time constraint for making further submission by 22 August 2016 inevitably precluded the Appellant from any realistic ability to collect and present potentially relevant material. 26 But those common law entitlements have been constrained by Pt 7AA and, in particular, by Div 3 of that Part. Part 7AA expressly provides for a "limited form of review" (s 473BA) to achieve the statutory objective of a "fast track" review (s 473CA). Of particular importance is the statement in s 473DA(1) that Div 3 is taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to reviews conducted" by the Authority. Also of significance is the provision in Div 3 that the Authority is "to review decisions on the papers" (s 473DB) and is constrained in its ability to consider "new information" to those circumstances set forth in ss 473DC and 473DD. The Authority is "not burdened with a duty to get, request or accept any new information": cf. DBE16 v Minister for Immigration and Border Protection [2017] FCA 942 at [64] per Barker J. 27 For present purposes, however, it is unnecessary to resolve the extent to which s 473DA of the Migration Act excludes the content of the common law rules of procedural fairness as compared with provisions such as ss 51A(1), 357A(1) and 422B(1) of that same Act. 28 Of present concern is the extent to which the common law rules which permit a party a reasonable time in which to prepare and present his case have been excluded or modified by Pt 7AA. 29 On this question, it is concluded that Counsel for the Respondent Minister was correct in submitting that Pt 7AA impliedly constrained the time available to a claimant seeking review to collect and present information to the Authority for its consideration. Where a decision is to be reviewed by the Authority, all parties must proceed in a manner consistent with achieving the objects and purposes of the Pt 7AA review process. Part of the scheme of the Pt 7AA review process is expedition. The scheme is expressly not a scheme of review which permits a party seeking review the freedom to collect and present submissions in a manner which may otherwise be permitted by common law rules of procedural fairness, but inconsistent with a requirement for parties to proceed expeditiously. Although it may only be the Minister who is expressly the legislative target of a requirement to proceed as quickly as "reasonably practicable" (s 473CA), Div 3 impliedly imposes a like requirement upon all of the parties to the review. 30 In circumstances where a party has made a request under the Freedom of Information Act some time ago and where the production of documents is known to be or is likely to be imminent, the denial of an opportunity to present selected material to the Authority may well constitute a denial of natural justice or procedural fairness. Whether s 473DA would preclude even such a limited operation of the rules of natural justice is a question which need not be resolved. If the phrase "in relation to reviews" in s 473DA(1) were to be construed as not extending to the operation of the rules of natural justice insofar as they may operate prior to the actual commencement of the review process and not extending to the preparation by a party of his case so as to enable the Authority thereafter to undertake its review function, Div 3 would potentially not be an "exhaustive statement" applying to such pre-review steps in the administrative process. 31 But such are not the facts of the present case. The Appellant in the present case only made his request for documents under the Freedom of Information Act on 1 August 2016, being a date after 21 July 2016 when the matter was referred to the Authority for review. On such facts, there was no reason for the Authority to believe that the request for access to documents would be considered and resolved prior to the review. The review by the Authority was in fact undertaken on 31 August 2016. 32 The Appellant has not made out any case that the Authority denied him natural justice or procedural fairness in proceeding to undertake its review on 31 August 2016. Any entitlement to natural justice or procedural fairness that the Appellant was asserting in the present case has been impliedly excluded by Pt 7AA. The time necessarily involved in permitting the Freedom of Information Act request to be processed, and thereafter the time required on the part of the Appellant to select such documents as he saw fit to provide to the Authority, was inconsistent with the statutory regime of "fast track" decision-making. That is so even though no suggestion was made on behalf of the Respondent Minister that the Appellant was making the Freedom of Information Act request purely (for example) as a "delaying tactic". 33 The first Ground of Appeal is thus rejected.

An unreasonable decision to proceed to hearing? 34 The rejection of the first Ground of Appeal leaves for resolution the alternative Ground, namely that the Authority "act[ed] unreasonably" in proceeding with the review without awaiting the outcome of the Freedom of Information Act request. 35 A number of decision have expressed in various ways the manner in which the concept of "unreasonableness" is to be understood as the basis upon which a statutory decision may be set aside. One such formulation is that a decision cannot be "arbitrary or capricious" or one which "abandon[s] common sense": Minister for Immigration and Citizenship v Li [2013] HCA 18 at [28], (2013) 249 CLR 332 at 350 to 351. After referring to the oft-quoted observations of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, French CJ there made the following observations: [28] Beyond unreasonableness expressive of particular error however, it is possible to say, as Lord Greene MR said, that although a decision-maker has kept within the four corners of the matters it ought to consider "they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it." In such a case the court may interfere. That limiting case can be derived from the framework of rationality imposed by the statute. As explained by Lord Greene MR, it reflects a limitation imputed to the legislature on the basis of which courts can say that parliament never intended to authorise that kind of decision. After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense. (Footnote omitted.) Such is the approach to be followed in the present case. 36 The second Ground of Appeal is rejected. That is a conclusion driven in part by the statutory scheme but a conclusion ultimately dependent upon the facts of the present case. 37 Of relevance in reaching this conclusion, it is to be recognised that the Authority "may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority" (s 473DB(2)) and may "accept" new information, although it is not under a "duty" to do so (s 473DC(2)). And that ability to "accept" new information is constrained by s 473DD such that it cannot do so unless (inter alia) there are "exceptional circumstances". 38 Not in issue, accordingly, is the ability of the Authority to defer its consideration of a review for such period of time as is consistent with it also achieving the objective of expedition set forth in Pt 7AA. Also not in issue is the fact that the Authority was both conscious of the outstanding Freedom of Information Act request; the position being urged by the Appellant; and also the fact that the Authority was doing all that it could which was within its control to make available to the Appellant all of what it considered to be "materially relevant" material. So much emerges from para [8] of the Authority's reasons for decision. The provision of that material by the Authority to the Appellant is to be viewed against the statutory context that the Authority was not "require[d] … to give to a referred applicant any material that was before the Minister" (s 473DA(2)). 39 By not acceding to the request to defer making its decision, the Authority unquestionably precluded any ability on the part of the Appellant, before the Authority made its decision, to have his Freedom of Information Act request resolved; any ability to review such documents as were released; and thereafter make all or selected documents available to the Authority to consider whether it should "accept" that material (s 473DC(2)) and consider whether the requirements set forth in s 473DD were satisfied. 40 In proceeding not to defer its review process, the Authority failed to make any inquiries as to such matters as: whether the Minister or the Department had given any consideration to the Freedom of Information Act request and whether any claim for exemption or non-production of documents was then in contemplation; when a decision in respect to that request was likely to be made; or the extent of the delay which would be occasioned by acceding to the Appellant's request for a deferral of the Authority's consideration. Although it may have been prudent for the Authority to make such inquiries, its failure to do so does not render its decision unreasonable. 41 Given the inability on the part of the Appellant to make out any argument as to unreasonableness, it is unnecessary to resolve a further submission advanced on behalf of the Appellant that "unreasonableness", in the statutory context of Pt 7AA, confers a greater procedural protection upon a party than the rules of procedural fairness. In the present proceeding, that procedural protection would be an entitlement to have material made available under a Freedom of Information Act request prior to any consideration being given by the Authority to the review required by s 473CC. 42 Both the content of the rules of procedural fairness and the principle of "unreasonableness" must necessarily be constrained by the statutory context. Although unnecessary to resolve the argument, it is difficult to see how "unreasonableness" could so operate as to confer a procedural entitlement upon a claimant which is otherwise excluded, expressly or impliedly, by the terms of Pt 7AA. Not only would such a conclusion potentially run contrary to the scheme set forth in Pt 7AA; it would also potentially prejudice the intended legislative intent behind s 473DA(1). Such a construction would only henceforth invite grounds of review being reformulated to characterise an alleged procedural deficiency as being "unreasonable" rather than a denial of "natural justice". On such an approach, a draftsman could avoid the constraints imposed by s 473DA by re-characterising a ground of review as "unreasonableness" rather than a requirement of "natural justice". 43 The second Ground of Appeal is also rejected.

CONCLUSIONS 44 The Appellant, it should be noted, appeared by Counsel who appeared pro bono. The Court expresses appreciation to Counsel for the assistance provided. 45 Both Grounds of Appeal as amended have been rejected. 46 The appeal should thus be dismissed. 47 There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1. Leave is granted to amend the Notice of Appeal.
2. The appeal is dismissed.
3. The Appellant is to pay the costs of the First Respondent. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.