The application before this Court therefore succeeds.
I will hear from the parties in relation to costs.
[2]
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing.
Parties
Applicant/Plaintiff:
CTL18
Respondent/Defendant:
Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 489
Legislation Cited (1)
Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Cases Cited (10)
(a) it was implied by s 473DD that, if proposed new information is given to the IAA by an applicant, the IAA must (in the sense of an indispensable legal duty, or in the mandatory sense) consider whether to admit that proposed new information to the review material; and
(b) the IAA must act on the basis of all information available to it, including the most current information available to it: X v Minister for Immigration[2002] FCAFC 3; (2002) 67 ALD 355, [5]-[6], [15]-[17], [50] (X).
The applicants submitted that, as to the first proposition, it was difficult to see how s 473DD could operate if the position were otherwise. This was said to be the basis for the implication. As to the second proposition, the applicants submitted that this was an implication of long-standing practice from the nature of administrative decision making and that there was "no reason to think it is not the position under Part 7AA in relation to whatever be the review material before the IAA".
The applicants submitted that, taking the two propositions together, Part 7AA of the Act created a situation such that, if a person furnished proposed new information at any time prior to the IAA decision, then the IAA was required to consider whether to admit it to the review material. The applicants submitted that the IAA was required to consider such new information against the statutory criteria for admission under s 473DD of the Act.
It was submitted that, within this context, the power to make practice directions in s 473FB of the Act did not include a power to establish an un-extendable time limit on the provision of new information. It was submitted that, where cl 28 of the Practice Direction uses the word "must", this should be construed as "should" or as merely "an exhortation to applicants and their representatives" emphasising the potential consequence that the IAA may decide the review without waiting upon material beyond the 21-day period.
To the extent that cl 28 was to be construed as creating a rigid timeframe for proposed new information, the applicants submitted that it was invalid. The applicants submitted that the Practice Direction could not cut down an implied statutory right to furnish proposed new information at any point prior to decision.
I am not persuaded by the applicants' arguments. As set out above, s 473DD of the Act proscribed consideration of new information unless certain preconditions were met. The IAA could, in certain circumstances, fall into error in failing to assess new information under s 473DD. It does not follow that there was an implied obligation upon the IAA to consider admission of information under s 473DD of the Act, where that information had not been provided in accordance with a practice direction issued under s 473FB. Nor does it follow that there was any implied "right" on the part of the applicants to have the information considered against the criteria in s 473DD, in the event of non-compliance with the Practice Direction. I am not persuaded that cases such as X, which occurred in a different statutory context, are capable of assisting the applicants in this regard.
Clause 28 of the Practice Direction required that any new information that had not been requested by the IAA "must be given" to the IAA "within 21 days" of the referral. This may be contrasted with more permissive language used elsewhere in the direction regarding when material "should be" provided. I do not accept the applicants' submission that cl 28 should be read as simply "practice guidance" or a mere "normative expectation" that was incapable of mandating compliance. The ordinary meaning of the language used mandated compliance.
I do not accept that the IAA was unable to include a mandatory deadline regarding the provision of new information under a practice direction. Such provision arguably related "to the application of efficient processing practices in the conduct of reviews": s 473FB(2)(a). It was certainly a "procedure... to be followed by persons giving new information": s 473FB(2)(b). I am not persuaded that a mandatory timeframe was inconsistent with the Act because of s 473DD. As found above, s 473DD prescribed limitations upon the ability of the IAA to consider new information. Section 473FB(5) provided the IAA with a discretion not to accept new information that was non-compliant with the Practice Direction. These requirements were capable of operating alongside each other. If the IAA declined to consider new information pursuant to s 473FB(5), then the information would not be considered (whether or not it may have otherwise met the requirements of s 473DD). If the IAA were not minded to exercise its discretion under s 473FB(5) against consideration of the information, then it would still have needed to meet the requirements of s 473DD in order to be considered.
I do not accept the applicants' suggestion at hearing that the latter exercise of discretion would be contrary to s 473FB(3) of the Act if the applicants' interpretation of cl 28 of the Practice Direction were not accepted. As was considered in EAV16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[2020] FCA 1329 (EAV16) at [89] (Farrell J), the obligations imposed by the Practice Direction were obligations imposed upon applicants (and their representatives and authorised recipients), rather than the IAA. An exercise of discretion not to refuse consideration of information pursuant to s 473FB(5), despite non-compliance by an applicant with the Practice Direction, would not result in non-compliance by the IAA with the Practice Direction. Rather, it would be an exercise of discretion available to the IAA under s 473FB(5) in dealing with the applicant's non-compliance.
It does not follow that matters relevant to the assessment that may have been undertaken under s 473DD were necessarily incapable of informing application of s 473FB(5). However, I am not persuaded that the IAA was obliged to assess the information against s 473DD in circumstances where it had declined to consider it pursuant to s 473FB(5). I accept that the Minister's contrary interpretation is supported by the approach taken in DHV16 v Minister for Immigration and Border Protection[2018] FCCA 349; (2018) 331 FLR 204 at [97] (Judge Driver), DHJ16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2)[2021] FCA 364 at [29] (Collier J) and EAV16 at [115]. I also accept the Minister's submission that to find otherwise would be contrary to the language of s 473FB(5).
The applicants' suggestion that the IAA had misled them into thinking that it had the power to extend time was largely undeveloped. I do not accept that this occurred. Rather, the applicants sought an extension of time in which to make "submissions". The IAA declined that request. Provision in the Practice Direction regarding submissions was made at cl 21, rather than cl 28 that is under consideration. Clause 21 provided that submissions "should be" provided within the 21-day limit, in contrast to the compulsory language used in cl 28. In any event, the request for additional time was refused. The IAA nonetheless had a discretion to consider new information provided outside of the 21-day period. Without further development of this part of the applicants' complaint, I am not persuaded that it demonstrates relevant error on the part of the IAA.
(1) Questions of legal unreasonableness are not only fact-dependent but also informed by the subject matter, scope and purpose of the legislation in question: Minister for Immigration and Border Protection v SZVFW[2018] HCA 30; (2018) 264 CLR 541 at [12] (Keifel CJ), [78]-[79] (Nettle and Gordon JJ) and [134]-[135] (Edelman J).
(2) The task of reviewing a decision for legal unreasonableness is not definitional but one of characterisation. The decision is to be evaluated and a conclusion reached about whether it has the character of being unreasonable having regard to the terms, scope and purpose of the statutory source of power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. Decisions have been said to be legally unreasonable because they lack sufficient rational foundation or an evident or intelligible justification, or because they are plainly unjust, arbitrary, capricious, or because they lack common sense having regard to the terms, scope and purpose of the statutory source of the power. Those descriptions are not exhaustive, they are only explanations of legal unreasonableness, of going beyond the source of power: see Minister for Immigration and Border Protection v Stretton[2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ).
(3) Even though reasonableness is closely linked to procedural fairness, the question of legal unreasonableness is not to be approached through the lens of the principles of natural justice unaffected by statute: see BVD17 at [33] and CCQ17 v Minister for Immigration and Border Protection[2018] FCA 1641 at [45] (Thawley J) ; (2017) 253 FCR 475 () (Robertson, Murphy and Kerr JJ) at [67]; at [99]; at .
Such principles have developed following (inter alia) cases such as Minister for Immigration and Citizenship v Li[2013] HCA 18; (2013) 249 CLR 332 (Li) and Minister for Immigration and Border Protection v Singh[2014] FCAFC 1; (2014) 231 FCR 437 (Singh). Those cases were the subject of consideration in some of the cases referred to above.
Grounds such as legal unreasonableness have high thresholds: see Li at [66] per Hayne J, Kiefel J (as her Honour then was) and Bell J, and at [113] per Gageler J (as his Honour then was). However, those thresholds may be reached where a decision is shown, within context, to be arbitrary, capricious or lacking in common sense: Li at [28] per French CJ. They may be reached where a decision lacks "an evident and intelligible justification": Li at [76] per Hayne J, Kiefel J (as her Honour then was) and Bell J. Error may be demonstrated where a decision maker does not give active consideration to a discretion, on its merits and in context: see Singh at [66]. Where reasons are given for the exercise of a discretion, the "intelligible justification" must be found within the reasons given (rather than such other potential reasons as may be contemplated by the Court or by the Minister): Singh at [47].
As was raised with the Minister at hearing, the current matter is in some ways reminiscent of cases such as Li. In that case, the Tribunal had declined an adjournment request and proceeded to a determination. The reasons given by the Tribunal were limited and referable to the applicant having been "provided with enough opportunities to present her case" and the Tribunal not being "prepared to delay any further". This was in a context in which reasons had been given on behalf of the applicant for seeking the adjournment (which were not rejected), the adjournment was sought for purposes central to the applicant's ability to meet the criteria for the visa and it was not apparent why there was a sudden urgency for determination of the matter within the context of the review in question. In , similarly, unreasonableness was found where the Tribunal did not give active consideration to an adjournment request, on its merits and in context at the time that it was made. This was after foreshadowing that the Tribunal would not grant any further extension of time, considering opportunities that had already been afforded to the applicant.
(2014) 231 FCR 437
(2018) 264 CLR 541
(2016) 237 FCR 1
(2017) 253 FCR 475
(2018) 331 FLR 204
(2013) 249 CLR 332
Minister for Immigration and Border Protection v CRY16
(4) Section 437DA(1) does not preclude the implication that a power of the Authority under Part 7AA must be exercised reasonably and that is the "lens" through which the content of the procedural obligations imposed on the Authority in the conduct of a review under Part 7AA is to be determined: see BVD17 at [33]-[34].
(5) Unfairness in a process can be relevant to whether or not there is legal unreasonableness: see CRY16 at [67].
(6) The existence of a discretion rather than a duty does not answer the question of whether or not a power is or has been exercised reasonably nor do the principles of legal unreasonableness apply only to a circumstance where the Authority has considered whether or not to exercise the power: see CRY16 at [69], [70], [72] and [82].
(7) The Authority's ability to receive a submission is not restricted by ss 473DC or 473DD: see CLV16 at [45]-[56]. Part 7AA contains no express statutory constraint upon a party's ability to participate in the review process by way of making submissions; nor is any such constraint necessarily to be implied: CLV16 at [92].
(8) Section 473FB(1) of the Migration Act authorises the President to issue directions in writing which are not inconsistent with that Act or regulations made under it with respect to the conduct of reviews by the Authority. Section 473FB(2) authorises directions that relate to efficient processing practices in the conduct of reviews by the Authority.
(9) The Practice Direction at [21] is not inconsistent with s 437DC or s 473DD nor is it an unreasonable exercise of the power conferred on the President by s 473FB: DGZ16 at [107].
Singh
Cases in which legal unreasonableness is alleged must inevitably turn upon their own facts, in the particular statutory context in which they arise. The statutory context in the present matter is different to that considered in Li and Singh. The present case occurred in the context of Part 7AA of the Act. That statutory scheme provided as the general position that the review would occur on the papers, on the basis of the review material, with new information only able to be considered in limited circumstances. It contemplated the making of practice directions relating to "efficient processing practices". Section 473FA required the IAA to pursue the objective of "providing a mechanism of limited review" that was "efficient, quick, free of bias" and consistent with the applicable provisions regarding conduct of the review. Clearly enough, efficiency in case management was contemplated by the applicable statutory scheme.
The statutory scheme also contemplated, however, new information being considered in certain circumstances. This intention was reflected in s 473FB(5) of the Act, which provided the IAA with a discretion to consider, or not consider, information that had not been provided in compliance with a practice direction. It was reflected in s 473DD, which did not prevent new information from being considered provided that certain conditions were met.
The Minister submitted that the IAA exercised its discretion under s 473FB(5) reasonably. The Minister submitted that the IAA had described the content of the new information (relative to the Applicant's circumstances), as well as the circumstances in which the 21-day time limit had been exceeded. The IAA had then considered that the applicants and their representative were on notice of the 21-day period, that the applicants had been represented by the same representative throughout the process, and that the IAA had previously refused an extension of time. The IAA had concluded that it was not satisfied that the documents could not have been provided earlier.
I accept that the IAA summarised the content of the new information and the circumstances in which it had been provided at [7]-[15] of its decision. However, there is nothing in those paragraphs demonstrating that the IAA engaged with the probative value of the material (beyond its non-compliance with the Practice Direction) within the context of the review. It is apparent that the IAA considered, in a similar manner to the Tribunal in Li, that the applicants had been given sufficient opportunity to provide the information. The IAA was not satisfied that it could not have been provided earlier. However, it is not evident in the IAA's reasons why the IAA, within context, considered that this was sufficient basis for declining to consider the material. This was in circumstances where the IAA had not reached a decision by the time that the information was received and did not go on to reach a decision until 2 May 2018 (nearly 2 months after the last provided information). It was in circumstances where the information was, on the face of it, highly relevant to the applicants' claims. The new information included a document purporting to be a statement by a police officer confirming that an arrest warrant had been issued for the Applicant, as well as a claim that the Applicant's mother had been told that her son would be arrested. This was in the context of the Applicant's claims to face harm from the Sri Lankan authorities.
As in Li, the IAA's reasons disclose no process of weighing the new information proposed to be relied upon against case management considerations: see Li at [80]. The IAA appears to have simply reasoned that the information was not provided in accordance with the Practice Direction and that it could have been. It is therefore not apparent if or how the IAA evaluated the exercise of discretion in its context, including by reference to the nature and probative value of the information that was proposed to be relied upon. It is therefore difficult to understand the exercise of discretion, from the reasons given and in the particular factual and statutory context in which it was exercised.
Having regard to the above in its totality, I accept the applicants' contention that the IAA's exercise of discretion was affected by legal unreasonableness.