CWZ18 v Minister for Home Affairs

THE act 7 Subject to exceptions that need not be considered here, s 65(1)(a) of the Act provides that, after considering a valid application for a visa, the Minister is to grant the visa if satisfied that (among other things) the criteria prescribed for the visa by the Act or the Migration Regulations 1994 (Cth) have been satisfied. If not so satisfied, the Minister is to refuse to grant the visa: s 65(1)(b) of the Act. The same provisions applied to the Authority in the exercise of its review powers. 8 For the appellant to qualify for the SHEV it was necessary for the Minister to be satisfied that he fulfilled either of the criteria in s 36(2)(a) or s 36(2)(aa) of the Act. Section 36(2) relevantly provides: (2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or … 9 The word "refugee" is defined in s 5H of the Act relevantly as follows: 5H Meaning of refugee (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality - is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or … 10 Subject to Pt 7AA, the Authority must review a referred decision by considering material provided to it by the Secretary of the Department of Home Affairs without accepting or requesting new information and without interviewing the referred applicant: s 473CB and s 473DB. Section 473DC of the Act confers a discretion on the Authority to get new information. It provides: 473DC 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. 11 Section 473DD restricts the Authority's power to consider any new information obtained in accordance with s 473DC. 12 Upon making a decision on the review, the Authority must make a written statement that sets out the decision, and the reasons for it: s 473EA(1).

ARGUMENT ON THE APPEAL 13 The single ground of appeal concerns the Authority's treatment of the threatening letters claimed by the appellant to have been given to his brother in 2008 and the Verdict in Absentia said to have been issued upon the appellant's desertion from the army. 14 The letters took the form of internal memos passing between the Basra and Khodar offices of the AAH. The first letter (dated 20 April 2008) contained a request from the Basra office that the Khodar office hunt down and liquidate the appellant "so that he may be an example for others". In the second letter (dated 28 April 2008) the Khodar office informed the Basra office "we inform you that we have tracked down and identified. We have recorded all the places he goes to and spent time at. We are now waiting for the nearest opportunity to murder him and punish him and cleanse our country of the like of him". 15 The Verdict in Absentia is dated 20 December 2016. It purports to impose a sentence on the appellant of two years imprisonment with hard labour. 16 The appellant relies on the differences in approach to these materials taken by the delegate on the one hand and the Authority on the other. 17 The delegate referred to the documents as follows: As I do not accept that the applicant had an individual profile of interest with any militia in Iraq or was known to the militia in Iraq in his own right and as I have found that the applicant was able to return to Muthanna without being targeted, I do not give weight to the two threat letters from 2008 the applicant has claimed were sent to his family threatening to kill him. … Considering the circumstances of the applicant's departure, his abilities in obtaining his identity documents including his passport from Muthanna and the detailed planning with which the applicant departed Iraq via Basra, taken in conjunction with my findings that the applicant was not targeted or harmed in Iraq, I find it implausible that the applicant would desert the Iraqi Army. I am of the view that the applicant resigned from the Iraqi Army following protocols about returning his military-issued weapons and ID cards. Given that I do not accept that the applicant was a military deserter and country information regarding the prevalence of document fraud in Iraq, I do not give any weight to the document titled 'Verdict in Absentia' presented to the department two days prior to the applicant's interview. (footnotes omitted) 18 The Authority said this of the two threatening letters (at [7]): … I have significant concerns as to the veracity of these letters, which were not mentioned by the applicant in his 2013 interviews. The first is that they are not the usual letters directed to a person, threatening them directly with harm including death. It is unclear why the applicant's tribe member would have been handed two AAH internal memos to give to the applicant's brother. The second concern is that the memo from the Khodar branch does not mention the applicant's name at any point. Had the Basra office received this response it would be unable to identify to whom their Khodar brothers referred. There is no reference number or other identifier included. The final concern is that Operation Knight's Charge commenced on 26 March 2008. The applicant and his unit remained in Basra after the completion of the immediate hostilities until the end of the year. There would have been no opportunity for the Khodar office to record all the places he goes to and spends time at in April 2008 because he was at that time in Basra. I am not satisfied that these letters are genuine. … 19 And this of the Verdict in Absentia (at [9]): … He has not stated how or when he obtained this document. He has not provided any other documents relating to charges of desertion from the Army, such as any summons to appear before the Military Court. He made no mention of having deserted from the army in his arrival interview. He made no mention of desertion or having an ongoing matter before the courts in his PV application or in his statutory declaration of 2 December 2016. A significant concern is also the applicant's name as listed on the document he has provided. It is listed as his forename, followed by the names of his father, grandfather, great-grandfather and his tribal name. None of the applicant's Iraqi identity documents list his tribal name. All of his documents relating to his military service refer to him by his forename and the names of his father and grandfather only. I am not satisfied that a military court would refer to a former enlisted man by a name other than that which he used during his service. I am not satisfied that this document is genuine. … 20 The appellant's argument is that the Authority proceeded on a different factual premise to that of the delegate. More specifically, it was submitted that the delegate had not made any finding that the documents were not genuine and that, accordingly, the appellant was "entitled to assume that the authenticity of these documents was not in issue" on the review. There was, he submitted, a failure by the Authority to consider the exercise of the discretion conferred by s 473CD of the Act to invite the appellant to comment on the authenticity and provenance of the documents. In all of the circumstances, that failure was legally unreasonable in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and therefore constituted jurisdictional error, so it was submitted. 21 The appellant did not go so far as to say that the Authority had a legal obligation to afford him the opportunity to be heard prior to concluding that the documents were not genuine. What is complained of is an alleged failure to give consideration to the exercise of the discretion to offer him that opportunity. The appellant contended that the failure should be inferred from the absence of any reference to the existence or exercise of the discretion in the Authority's written reasons for its decision. 22 The contention that there was a legally unreasonable failure to consider the exercise of the discretion was advanced in the first ground for judicial review in the proceedings below. In oral submissions it was contended that the primary judge only dealt with the argument at a higher level of generality and otherwise erred in rejecting it.

CONSIDERATION 23 As the Full Court said in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448, the function of the Authority on a review conducted under Pt 7AA of the Act is to make a fresh decision. The Authority is not restricted to the correction of error in relation to the issues considered by the delegate to be dispositive. The Authority may affirm a decision to refuse a visa on a different factual premise to that upon which the delegate's decision rests. 24 Part 7AA of the Act differs from the review provisions contained in Pt 7 of the Act in critical respects that are now the subject of settled authority. Particularly relevant to the present case is the absence in Pt 7AA of a provision equivalent to s 425, which requires the Administrative Appeals Tribunal to invite the review applicant to appear before it to give evidence and present arguments "relating to the issues arising in relation to the decision under review". There may be cases in which the Tribunal will commit jurisdictional error in the exercise of its review functions under Pt 7 if it determines the review by reference to issues other than the issues the delegate considered to be dispositive without first affording the review applicant an opportunity to be heard: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. 25 Division 3 of Pt 7AA (together with two other provisions that do not presently apply) is expressed to be an exhaustive statement of the natural justice hearing rule: s 473CA. The express exclusion of the rules of procedural fairness, the absence of a provision equivalent to s 425 and the express exclusion of a duty to get new information provided for by s 473DC(2) all form a part of the statutory context in which the arguments founded on legal unreasonableness are to be determined. 26 In Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475, the referred applicant had been refused a protection visa having had his factual claims rejected by the Minister's delegate. On review, the Authority affirmed the delegate's decision, albeit on a different basis. The Authority accepted the applicant's claim that he was at risk of harm by reason of sectarian violence in his home province in Lebanon, but concluded that he did not meet the statutory definition of a refugee because he could relocate to Beirut where he would be safe. The applicant had not been afforded the opportunity to be heard on the question of relocation. On judicial review, the primary judge held that the Authority had given no consideration to the exercise of the discretion conferred by s 473DC to afford him that opportunity. The primary judge in that case concluded that the Authority's failure to consider the exercise of the power was legally unreasonable. 27 On appeal, the Minister submitted that the express exclusion by s 473DC(2) of any positive duty to obtain new information meant that the Authority's failure to consider the exercise of the discretion to get new information could not be affected by legal unreasonableness. The Full Court rejected that submission (at [72]). 28 The Full Court agreed with the factual conclusion of the primary judge that the Authority had not considered the exercise of the discretion, there being no reference to the discretionary power in the 47 paragraphs of the Authority's decision. The Full Court said that the Authority knew or must be taken to have known that the question of relocation had not been considered by the delegate and that the resolution of the question turned upon the particular circumstances of the review applicant. Later in its reasons the Full Court said: 82 Our conclusion is that it was legally unreasonable, in the circumstances, not to consider getting documents or information from the respondent. The legislature is to be taken to intend that the Authority's statutory power in s 473DC will be exercised reasonably. The failure to consider the exercise of that discretionary power lacks an evident and intelligible justification in circumstances where the Authority knew that it did not have, but the respondent was likely to have, information on his particular circumstances and the impact upon him of relocation to Beirut. The Authority did not have that information because the question of relocation, either at all or to Beirut, was not explored, or the subject of findings, by the delegate. The Authority's failure to consider the exercise of that discretionary power meant that it disabled itself from considering what was reasonable, in the sense of 'practicable', in terms of relocation. In our opinion, as a consequence, the review by the Authority under s 473CC miscarried for jurisdictional error. 83 As in Li, at [82], it is not apparent how the conclusion not to consider the exercise of the discretionary power was reached in the present case, having regard to the facts and to the statutory purpose for which the discretion to get new information was directed. 29 An application for special leave to appeal from the judgment of the Full Court was dismissed. 30 In DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551, the Full Court said that there may be cases in which it is legally unreasonable not to consider the exercise of the discretionary power conferred by s 473DC. Importantly, however, the Authority in DGZ16 had reassessed the same material that had been considered by the delegate and made different findings of fact in relation to the same issues: whilst the delegate had rejected the review applicant's claim to have been a secret informant in Iraq, the Authority had accepted that aspect of his claims. Whether or not the applicant was a secret informant was an issue arising before both the delegate and the Authority. Accordingly, no new issue (whether relocation or otherwise) had arisen. The Full Court concluded: 72 In our opinion, Pt 7AA contemplates that the Authority will evaluate for itself the material considered by the delegate. We do not consider that the fast track statutory regime of Pt 7AA requires the Authority to notify the referred applicant that it is considering taking a different view, adverse to the referred applicant, of the material considered by the delegate. To that extent we agree with the primary judge, at [106], that the Authority is not required to inform the appellant of specific reservations about the appellant's case and to provide the appellant with an opportunity to respond. 73 We would not however approach the resolution of the appeal by considering whether or not the delegate's decision indicated that all aspects of the appellant's credit were at issue in the Authority's review. That is to view the procedure through a natural justice lens. 74 We do not accept the submission put on behalf of the appellant that the fact that the Authority in the present case accepted as being before it the submissions made by the appellant, and accepted the new information involved in those submissions, implies that the Authority was required, as a matter of legal reasonableness or otherwise, to seek further submissions from the appellant once it formed specific reservations about the appellant's case, and to provide the appellant with an opportunity to respond. 75 There is no requirement in Pt 7AA, equivalent to s 425, which provides that the Tribunal must invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. Indeed, as we have noted, by s 473DB, subject to Pt 7AA, the Authority must review the fast track reviewable decision by considering the review material provided to it without accepting or requesting new information and without interviewing the referred applicant. 76 It was open to the Authority to disagree with the delegate's evaluation of the material without providing to the appellant an opportunity to respond. 77 If we are wrong in this conclusion, for completeness we would indicate that whether or not the appellant was a secret informant to the CTS was not a new issue in the relevant sense even though the reasons given by the Authority for rejecting the claim differed from those of the delegate. … 31 Returning to the present case, the appellant's submissions proceed from the initial premise that the Authority in fact gave no consideration to the exercise of the discretion conferred by s 473CD. That inference is said to be supported by the reasons given for the decision, which make no reference to the discretionary power and that otherwise do not evidence any consideration having been given to its existence or exercise. 32 Given the statutory context, I have some difficulty accepting the submission that the reasons support an inference that no consideration was given to the exercise of the power. Whilst the Authority has an obligation to give reasons for its decision on the review, that obligation does not extend to antecedent procedural decisions made in the performance of its review functions. This Court has held that the Authority is not required to give reasons for refusing to exercise the discretion under s 473DC in a referred applicant's favour: CCQ17 v Minister for Immigration and Border Protection [2018] FCA 1641 at [39]. It seems to me that the absence of any reference in the Authority's reasons to the existence of the discretion does not, without more, support an inference that its existence was not adverted to, nor that there was a failure to consider its exercise. The apparently opposite conclusion of the Full Court in CRY16 must be regarded as obiter: the Minister in that case had not disputed that no consideration had been given: CRY16 at [23]. 33 In the result, I do not consider it necessary to express a concluded view on this aspect of the appeal. I will proceed on the assumption that there was a failure to consider the exercise of the discretion and turn to consider the legal consequences of that assumed failure. 34 Counsel for the appellant submitted that the appellant's case "fell somewhere between" CRY16 and DGZ16. I reject that submission. In my view, the circumstances do not materially differ from those that arose in DGZ16. 35 The documents considered by each decision-maker had been provided by the appellant in support of his claims that his life was threatened by the militia and that he would be imprisoned for deserting the Iraqi army. The provision of the documents necessarily carried with it an assertion by the appellant that they were authentic. That assertion would either be accepted or it would not. The authenticity of the documents was clearly in issue before the delegate, just as it was before the Authority. It was open to the appellant to make submissions and produce further evidence before the delegate going to that critical topic. Had he done so, the submissions and evidence would have formed a part of the material referred to the Authority in accordance with s 473CB of the Act. 36 The delegate rejected the appellant's claims that he was a person of interest to the militia and so rejected his claims that he had a well-founded fear of persecution at the hands of the militia should he return to Iraq. The delegate gave the threatening letters "no weight". It is clear that the appellant's claims to have been targeted by the militia had been wholly rejected by the delegate notwithstanding his provision of the letters. To the extent that his subjective expectations bear any relevance to the outcome, the appellant could have no reasonable expectation that the authenticity of the letters would not be considered and determined by the Authority, nor any expectation that the Authority would determine the question in precisely the same way as the delegate. No such expectation could be founded in the delegate's reasons, nor could it be founded in the scheme established under Pt 7AA. The circumstances are not such as to render legally unreasonable any failure by the Authority to consider inviting the appellant to comment on the authenticity and provenance of the documents. 37 The same considerations apply to the Verdict in Absentia. The delegate had positively rejected the appellant's claim that he had unlawfully deserted the army. The ascription of "no weight" to the Verdict in Absentia could only be explained by those adverse findings. The only inference to be drawn from the delegate's reasons is that the Verdict in Absentia was given no weight because it was not considered genuine. Had it been considered genuine, the appellant's claim to have been tried and sentenced as a deserter would necessarily have been accepted. No jurisdictional error is demonstrated in relation to that document. 38 It is appropriate to comment on the curious use by the delegate of the phrase "no weight" in connection with the documents. The appellant's claims and the nature of the documents produced in support of them required a finding to be made as to whether the documents were authentic. The question is a binary one: the documents are either authentic (and so must rationally lend evidentiary support to the claims) or they are not. In the circumstances of the present case, determination of that question could not be avoided. The use of the phrase "no weight" (without more) may convey an impression that the decision maker has sought to avoid the task of determining the authenticity of the material. It may also convey the impression that the decision-maker has failed to determine the claims by reference to the evidence as a whole, for if the documents are authentic it would not be open to the decision maker, in a case such as the present, to attribute them "no weight". Where there is an absence of an express finding about the authenticity of a document, the impression might be conveyed that the decision-maker has failed to grapple with the issue and so failed to perform an essential part of his or her task. I have concluded that in the present case the proper inference to be drawn is that the delegate found that the documents were not genuine. The delegate could and should have made that conclusion plain. To properly expose his or her reasoning to a person in the appellant's position, it is preferable that the findings of an administrative decision-maker in respect of such a critical question not be left to interpretation and inference.

CONCLUSION 39 Consistent with what I have said above, the primary judge concluded (at [24]) that "there was no new issue raised in the Authority's reasons of a kind in respect of which it could be said that it was legally unreasonable for the Authority not to expressly consider the exercise of its power under s 473DC" and that the absence of an express reference to considering the exercise of that power could not be said to lack an evident and intelligible foundation. There is no appealable error affecting these conclusions. 40 The parties should be heard as to costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth.