MIGRATION - Review of decision of Independent Merits Reviewer - evocation of the Court's jurisdiction by the relief sought - whether it is in the administration of justice to extend time to hear the "second" application - application of M61/M69 - whether the reviewer denied procedural fairness - legitimate expectation - the use of country information - natural justice hearing rule - application of s.91X - "first" application dismissed as not competent - "second" application dismissed.
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 82
[22]
United Nations Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
[23]
Judicial Review of Administrative Action: 4th Edition, Mark Aronson, Bruce Dyer, Matthew Groves, Lawbook Company, Sydney, 2009
[24]
DAVID CONNOLLY IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER
[25]
(1) The application made on 10 February 2011 is not competent.
(2) The time for the making of the application of 15 April 2011 is extended pursuant to s.477(2) of the Migration Act 1958 (Cth).
(3) The application made on 15 April 2011 is dismissed.
(4) The applicant pay the first respondent's costs as agreed between the parties or pursuant to Rule 21.02(2)(c) of the Federal Magistrates Court Rules 2001 (Cth) for referral for taxation under Order 62 of the Federal Court Rules 1979 (Cth).
[26]
The issue in this case is whether, in light of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia[2010] HCA 41; (2010) 272 ALR 14; (2010) 85 ALJR 133 ("M61/M69"), the Court should grant declaratory relief in relation to a recommendation made by the second respondent to the Minister for Immigration and Citizenship that Mr Darabi ("the applicant") does not meet a relevant criterion for the grant of a protection visa under the Migration Act 1958 (Cth) ("the Act").
The recommendation was that the applicant should not be recognised as a person to whom Australia has protection obligations. That is, in essence, that he does not meet the definition of "refugee" as set out in Article 1A(2) of the United Nations Convention Relating to the Status of Refugees[1] (see s.36(2) of the Act).
[27]
The relevant background to this case can be largely derived from the Court Book ("CB") and the Supplementary Court Book ("SCB"), filed in these proceedings by the Minister.
The applicant arrived at Christmas Island by boat on 31 January 2010. The Minister for Immigration and Citizenship had put in place certain arrangements to deal with any such persons who, on arrival or subsequently, submitted claims to be in need of Australia's protection because they feared persecutory harm, as that term is understood in the Refugees Convention, if they were to return to their country of origin.
That part of the arrangements relevant to these proceedings was put before the Court as an annexure to the affidavit of Kevin Bede Ford, migration agent, sworn on 13 April 2011 (annexure "A" - Guidelines for the Independent Merits Review of Refugee Status Assessments").
With the assistance of a migration agent, on 31 March 2010, the applicant submitted his claims to the Minister in support of a request that he be assessed as, in effect, a "refugee" (CB 24 to CB 46).
The applicant claimed to be ethnically a Faili Kurd, born in Iran to parents who had been expelled from Iraq in 1980. He said that he and his family were "unregistered Iraqi refugees" in Iran and, in all the circumstances, he was stateless.
His claims to engage Australia's protection obligations under the Refugees Convention were put in relation to the country of his former habitual residence, namely Iran. These were that he would be harmed by the Iranian authorities, particularity through the Basij-e Mostaz'afin ("the Basij"), an auxiliary arm of the Islamic Revolutionary Guards (see CB 71.5), because he was an "unlawful" Faili Kurd. That is, his status in Iran was "undocumented" (he had no identity documents). Further, that he was denied access to basic services.
He further claimed that he could not go to Iraq because he was not an Iraqi, and that his parents had no relevant documents. They had been unlawfully in Iraq and were expelled for that reason and by reason of their ethnicity.
The applicant was interviewed by an officer of the Minister's department in relation to the assessment of his claims. Ultimately the outcome of that assessment was that the officer was not satisfied that the applicant met the definition of "refugee" and therefore was not someone to whom Australia owed protection (see the decision record at CB 61 to CB 80).
[28]
With the assistance of a migration agency (Playfair Visa and Migration Services) the applicant sought independent merits review of that decision on 2 June 2010 (CB 81 to CB 86).
In a submission dated 26 July 2010 (CB 87 to CB 110) the applicant's representative clarified that the applicant should be assessed as against Iraq as the country of "reference". The representative argued that the applicant "may have a right to Iraqi nationality" (CB 90.8).
In this context the applicant claimed to fear persecutory harm in Iraq because he was a Faili Kurd and would be subject to harm for this reason.
In the alternative the representative submitted that the applicant would not be in a position to satisfy requirements for the grant of Iranian citizenship, and in any event pressed the claims in the initial statement to fear persecution because of violence against Faili Kurds in Iran.
The applicant and a registered migration agent, acting within an agreement with the applicant's migration agents, attended an interview before Mr D Connolly AM, the second respondent ("the reviewer"), on 30 August 2010 (see the annexure to the affidavit of Sue Archer made on 28 March 2011, and [6] of the affidavit of Kevin Bede Ford sworn on 13 April 2011).
Mr Connolly made the recommendation to the Minister which is the subject of this review on 20 December 2010 (CB 114 to CB 143 for the statement of reasons). It appears these reasons were made available to the applicant on 19 January 2011 (CB 143).
The reviewer addressed each of the applicant's claims as they had been clarified or explained by his migration agent ([57] at CB 179):
Despite some doubt, the reviewer accepted that the applicant was a Faili Kurd. Although he found that the applicant would have the right to apply for either Iraqi or Iranian citizenship, it could not be assumed that any such claim would be successful. This was because the applicant had not applied in the past, and because of his undocumented status. On this basis the reviewer found that the applicant did not currently have citizenship of either Iraq or Iran and therefore determined the claims with reference to the country of former habitual residence, namely Iran (see [59] at
[29]
CB 130 to [71] at CB 132).
2. The reviewer accepted that undocumented Faili Kurds in Iran face discrimination and do not have access to services or opportunities available to Iranian nationals, or even other "documented" persons in Iran. This concerned such matters as education, health and employment opportunities. However the reviewer found that the applicant did not and would not suffer "serious harm" arising from these matters such as to amount to "persecution" as that term is understood in light of the Refugees Convention and s.91R(2) of the Act ([77] at CB 134 to [94] at CB 137).
3. The reviewer did not accept that the applicant would face persecution in Iran as a result of being a Faili Kurd. Further he found that there was "no evidence" of persecution against Faili Kurds following elections in 2009 as the applicant had claimed (see generally [95] to [97] at CB 137 and [109] to [112] at CB 139).
4. The applicant's particular claim that he suffered extortion and regular bullying at the hands of the Basij was not accepted as being credible. Further, based on country information, the reviewer accepted that: "... the methods used by the Basij to enforce law and order and their brand of Islamic morality include physical assault and taking bribes" ([108] at CB 139), but that this was enforced in the same manner as against all persons in Iran, whether or not they were nationals (see generally [98] at CB 138 to [111] at CB 139).
5. The reviewer also stated that he had found "no credible evidence" to lead to the conclusion that the applicant would face persecution in Iran if he were to re-enter by reason of having travelled with "false documentation" (see [115] at CB 140, and generally [113] at CB 139 to [115] at CB 140).
6. The reviewer did not accept the applicant's claim relating to the denial of Iranian nationality or the applicant's inability to obtain Iranian citizenship, or even "found legal status" (as described), constituted persecution. Nor that in relation to the relevant nationality and legal status laws, the applicant was "targeted" as a result of being a Faili Kurd (see [116] at CB 140 to [122] at CB 141).
7. The reviewer also found that the applicant would not have a well-founded fear of persecution if he were to seek to settle in southern Iraq ([123] at CB 141 to [127] at CB 142).
8. The reviewer found that the applicant did not have a well-founded fear of persecution for any Convention reason if he were to return to Iran. He found that Mr Darabi did not meet the relevant criterion under the Act for a protection visa, and therefore recommended to the Minister that he not be recognised as a person to whom Australia had protection obligations arising from the Refugees Convention ([129] to [130] at CB 142).
[30]
By way of "amended" application (see below) the applicant put forward the following grounds:
"1. The second respondent (the reviewer) did not afford procedural fairness to the applicant:
[31]
Particulars
* Procedural fairness required the reviewer to take all reasonable steps to ensure that all reasonably available evidence was available to the applicant in exercise of the applicant's right that the reviewer's findings be based on evidence.
* Procedural fairness required the reviewer to identify to the applicant the independent evidence and country material he relied upon in a way which made the information available to the applicant where such material could be found on the internet, or otherwise provide copies.
* Except for the World Refugee Survey 2009, the reviewer did not identify or otherwise make available country information he relied on which could have been found on the internet.
[32]
The reviewer did not identify or provide to the applicant copies of the DFAT cable information he relied upon.
* The requirements of procedural fairness described above were conditioned by the version of the Procedural Manual titled 'Guidelines for the Independent Merits Review of Refugee Status Assessments' (the IMR Guidelines) made available to the applicant's IAAAS adviser.
* The IMR Guidelines provide that the IMR will consider afresh all claims for protection and conduct reviews in accordance with any guidelines, procedures and ministerial directions that may be issued from time to time.
* The IMR Guidelines specifically provide detailed
[33]
step-by-step information on how Independent Reviewers are to ensure procedural fairness in the conduct of the entire independent merits review process. The information is set out in Attachment D to the IMR Guidelines.
* The IMR Guidelines at Annexure D provide that reviewers should take all reasonable steps to ensure that all reasonably available evidence is available to claimants.
* The terms of the Guidelines in all the circumstances generated the requirements of procedural fairness set out above, including from the creation of legitimate expectations in the applicant's advisors.
* In reliance upon the expectation of being provided with the country material of which the substance had been put to the applicant in the hearing, the applicant's advisors held off making submissions on the said country material.
[34]
2. The second respondent (the reviewer) erred in law in taking into account an irrelevant consideration in recommending that Australia did not owe protection obligations to the applicant.
[35]
The reviewer took into account findings in relation to Iraq in making the recommendation.
Relocation should be considered only within the country of reference, ie Iran."
[36]
[At the conclusion of submissions the applicant advised that he no longer pressed ground 2.]
[37]
A number of points arise from M61/M69 which particularly bears on the current proceedings.
In M61/M69 the High Court found that the decision by the Minister for Immigration and Citizenship to establish and implement procedures to deal with persons who arrive (as in M61/M69 at Christmas Island) by boat ("the offshore entry person"), and who claim that Australia owes them protection, was a decision "... by the Minister to consider whether to exercise..." powers under either s.46A or s.195A of the Act in respect of any such person (see M61/M69 at [65] to [66] in particular).
The High Court also found that the initial assessment and the subsequent review assessment made under these procedures, undertaken for the purpose of the Minister considering whether to exercise power under either s.46A or s.195A, were subject to the principles of procedural fairness given that the claimants right "... to liberty from restraint at the behest of the Australian Executive is directly affected..." (at [77]). In addition, any such consideration and review conducted under these procedures "... must proceed by reference to correct legal principles, correctly applied." (at [78]).
The High Court found that, as one of the powers whose exercise was being considered was the power to lift the "bar" under s.46A of the Act to enable the claimant to make an application for a protection visa, the exercise of that power must be made "... according to the criteria and principles identified in the Migration Act, as construed and applied by the courts of Australia...". For present purposes, what was referred to in the relevant review procedural manual as: "... Australian legislation and relevant case law..." was "... to be treated as binding..." on the reviewer (at [88]).
[38]
The Court's Jurisdiction and the Competency of the Application
[39]
In this light also, some consideration must be given to this Court's jurisdiction and the competency of the application made.
The application to the Court in this case was made on 10 February 2011. Mr Connolly's recommendation is dated 20 December 2010. Section 477(1) of the Act requires application to this Court for a remedy to be granted pursuant to this Court's original jurisdiction under s.476 of the Act in relation to a "migration decision" to be made within 35 days of that decision.
I took the view that the circumstances of this case fall within the definition of the "date of the migration decision" as set out at s.477(3)(d). The relevant date therefore is the date of the written notice to the applicant of the reviewer's decision, 17 January 2011 (CB 116). The application therefore was made within the time specified in s.477(1).
However, the application to the Court was deficient in one important respect. It did not properly invoke the jurisdiction of this Court pursuant to s.476(1) of the Act. That section provides that this Court has the same original jurisdiction in relation to a migration decision as the High Court has under s.75(v) of the Constitution. It does not have, as the High Court has, jurisdiction in relation to, relevantly, s.75(i) or (iii).
Further, the status of the reviewer as an "independent contractor", and the assumption therefore that he is not "an officer of the Commonwealth", which must be seen in light of s.75(v), led the High Court to state that "... a claim for mandamus, prohibition or injunction against [such] persons would not, standing alone, found the original jurisdiction of [the High Court] under s 75(v) of the Constitution." (M61/M69 at [51]). By extension, therefore, it is the same before this Court.
It was not necessary, given the circumstances of the cases before it, for the High Court to consider whether the reviewers, as "independent contractors", could nevertheless fall within the expression of an "officer of the Commonwealth" in s.75(v) (M61/M69 at [51]).
However in the current circumstances there is no need to enter into any greater consideration or analysis of the High Court's judgment in this regard. Both parties agreed that, given the relevant analysis and reasoning of the High Court, an application to this Court which is made within time and which seeks injunctive and declaratory relief is valid and competent. An application that seeks a declaration, but does not seek an injunction restraining the Minister from relying on the reviewer's recommendation, is not (see variously M61/M69 at [8],
[40]
[50] - [52] and [99] - [103]).
8. The application to the Court did not meet this requirement. Only a declaration was sought. It was therefore not competent. The Minister did not oppose the Court granting the applicant leave to file and serve an "amended" application addressing this deficiency. The applicant filed such an application on 15 April 2011. It sought both an injunction and a declaration.
9. However, on reflection, there is a strong argument to say that this application should not be considered an "amending" application. The "first" application was not competent because of want of jurisdiction of this Court given the nature of the relief sought and the provisions of s.476.
10. In my view the filing of the "amended" application could not serve to, in some way "retrospectively", make an application that is not competent, competent. The "amending" or "second" application therefore is to be viewed as being competent in the sense that it properly invoked the jurisdiction of this Court pursuant to s.476. It was, however, filed outside the time limit provided for in s.477(1) of the Act. The application however does seek an extension of time pursuant to s.477(2), the application for which complies with s.477(2)(a) of the Act.
11. The reasons generally advanced in support of this application are that the applicant commenced his application at a time when he had no realistic opportunity to obtain legal advice as to how to properly invoke the jurisdiction of this Court in light of M61/M69. Further, he suffered from the disadvantage of not being able to speak English, and was held in immigration detention which further mitigated against the capacity to obtain such advice. Even further, that the applicant, notwithstanding any difficulties, did attempt to make his application within time.
12. I would add to this that this is amongst the first of this type of matter to be put before this Court. That also would be, in itself, a disadvantage to the applicant in the sense that there was no or little precedent as to how he could go about properly invoking the jurisdiction of this Court.
13. It is also important to note that the Minister, fairly, did not oppose the granting of any such extension in the interests of the administration of justice, but sought the dismissal of the application on the basis that there was no legal error in the decision of Mr Connolly to recommend that the applicant was not a person to whom Australia owed any protection obligations.
14. These reasons are sufficient, in my view, and of such weight as to satisfy the Court that it is in the interests of the administration of justice to extend time pursuant to s.477(2) without having regard for this purpose to the merits or prospects of success of the grounds of the application as pleaded.
[41]
The sole remaining complaint in the application asserts a denial of procedural fairness said to have been derived from a failure by Mr Connolly to properly and relevantly apply the Minister's guidelines in his assessment of the applicant's claims, and from general principles of procedural fairness at common law.
The complaint is that, at the interview, while the reviewer generally raised certain country information, he did not do it in such a way that it was practically available to the applicant's representative to make relevant, let alone meaningful comment. The obligation to do so is said to arise from principles at common law and the Minister's guidelines themselves, which create a legitimate expectation that this would be done.
In relation to the general principles at common law, the applicant relies on ApplicantVEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] HCA 72; (2005) 225 CLR 88; (2005) 222 ALR 411; (2005) 80 ALJR 228, especially at [15] - [17], for the propositions that:
principles of procedural fairness focus on procedures rather than outcomes; and
the obligation to provide to the applicant, during the course of processing, information that is "credible, relevant and significant" (which I understood to be as that phrase was first explained in Kioa v West[1985] HCA 81; (1985) 159 CLR 550 ("Kioa") at 628 - 629 per Brennan J).
The argument appeared to be that the High Court had clarified that the relevant unfairness is concerned with procedures that must be observed with the exercise of whatever relevant power the reviewer is seeking to exercise, not with outcomes.
The relevant part of the Minister's guidelines to which the Court was specifically referred was (at page 38):
"ATTACHMENT D Procedural Fairness
...
• the right to have the finding based on evidence: ["the third dot point".]
...
- while reviewers do not have an obligation to make a claimant's case for them, they should take reasonable steps to ensure that all reasonably available evidence is available to them." ["The second dash point".]
The Whole of Attachment D is as follows (pages 38 to 40):
"ATTACHMENT D Procedural Fairness
Procedural Fairness in the Non-Statutory Independent Merits Review Process
Claimants seeking independent merits review of a Departmental officer's Refugee Status Assessment (RSA) are to have access to an independent merits review process that is consistent with the principles of procedural fairness.
Principles of Procedural Fairness
The three principles of procedural fairness can be summarised as follows:
• the right to be heard, that is the right to have a fair hearing, with the opportunity to present one's case:
- this does not necessarily always have to be in person, or wholly in person. In some circumstances a fair hearing and the opportunity to present the case could be on the basis of consideration of documents alone or a combination of a hearing in person and on the documents;
- the person is to be given an opportunity to comment on adverse information that is credible, relevant and significant to the making of the recommendation;
- even though a person only has responsibility to conduct an interview, gather evidence and make recommendations, procedural fairness should be observed throughout.
• the right to have a finding made by an unbiased person:
- bias may be actual or apparent;
- if actual bias is alleged, evidence is needed. The test is whether the reviewer is actually incapable of considering the matter fairly
- allegations of apparent bias will need to be tested on the basis of whether a reasonable and informed bystander would suspect that the reviewer is not impartial.
• the right to have the finding based on evidence:
- the evidence relied on must be relevant.
- while reviewers do not have an obligation to make a claimant's case for them, they should take reasonable steps to ensure that all reasonably available evidence is available to them.
Independent Merits Review Process
In the context of the non-statutory independent merits review process and taking into account the above summary of procedural fairness principles, the independent merits review process is to be conducted along the following lines:
Under both lines of attack (procedural fairness at common law and as arising from the Minister's guidelines) the applicant's position is that, while the substance of the particular information at issue was put to the applicant, it was not done in such a "complete" way as to allow the applicant, or relevantly his representative, to respond to it in a meaningful way.
While the applicant's submissions ranged over some matters of detail, the complaint specifically came down to the following. The reviewer had before him a report from the Australian Department of Foreign Affairs and Trade ("DFAT") concerning Faili Kurds ("Country Information Report No. 10/13 - Iran: Faili Kurds" - see SCB 180 to SCB 184). In the decision record the reviewer made specific reference to this document ([96] at CB 137):
"DFAT in March 2010 DFAT made reference to this situation in cable CIR No 10/13 - Iran: Faili Kurds, 18 March. CX241170.
'Treatment of Faili Kurds after the Iranian election has not changed. Those who are politically active with the opposition risk targeting, but this is not because of their ethnicity. Nonetheless, those detected without documents risk deportation.'"
The matters covered in this document include references to the status and treatment of Faili Kurds in Iran, including those who are "undocumented".
Mr Gormly referred the Court to various parts of the transcript ("T") of the reviewer's interview with the applicant (see the annexure to the affidavit of Ms Archer) to submit that, while certain matters and information relevant to the issue of the treatment of undocumented Faili Kurds in Iran were raised at the interview, the applicant was not given the information in such a way, including not given the document itself, that his representative could make a meaningful response.
These parts included:
At T7.3:
"MR CONNOLLY: The country information on this green card suggests pretty strongly that if you are in a camp people were registered. If they were not in a camp that might be another story bur if they were in a camp they were registered, in other words they should have got green cards. That's the issue."
At T9.8:
"MR CONNOLLY: What it says here is that treatment depends on whether there is education, health care, depends on whether individuals were registered as refugees before Iranian Government policy changed in 2001 or not. Those who are registered enjoy education, health care and informal employment. Those without documents do not enjoy access although access to education for children is theoretically possible because of an Iranian Government policy allowing all children access to education. Anyway there are obviously some issues there. But there's no, according to our post there is no evidence of Faili Kurds being targeted because of their ethnicity, however those without documents risk deportation detected by the authorities. It's too hard for you to read all that."
At T10.5:
"MR CONNOLLY: But there is an Iranian birth registration law which provides for any person born in Iran to be registered to ensure official existence."
At T10.8:
"MR CONNOLLY: According to the law when you reach 19 you are eligible to apply for Iranian citizenship."
At T11.10:
"MR CONNOLLY: "... But as I said to you there is some country information which suggests that probably or possibly you could have been an Iranian citizen so I have to be quite satisfied in my mind that that is not the case. So it is simply saying that you have no knowledge of the law which is what you have said, in our legal system is not a defence. Ignorance is not a defence...".
At T15.2:
"MR CONNOLLY: You know in Iran everyone is supposed to carry an ID and that's why this Basij treat everybody including Iranians in a brutal manner. They're meant to promote virtue and prevent vice."
At T15.4:
"MR CONNOLLY: Well why don't you apply for a document? As I said to you under the law you are allowed to apply, as somebody who was born in Iran you're allowed to apply for a document according to the information that I have."
At T16.4:
"MR CONNOLLY: You see I find that difficult to understand. As I understand the law as it's been told to me, the Iranian birth registration law provides for any person born in Iran to be registered to ensure official existence, and as a person who had lived in Iran for twenty-three years I have no evidence that you were not eligible to apply for that registration. In fact the law of Iran actually states it is a criminal offence to be born in Iran and not to seek registration."
Mr Gormly identified at least one of the parts of the interview which he said illustrated what the reviewer should have done in relation to the DFAT document and the information it contained. At T22 the reviewer makes specific reference to the "World Refugee Survey 2009" and a "UNHCR" document (United Nations High Commissioner for Refugees). Here, the reviewer is said to have not only made reference to the relevant information but to have specifically identified and named the source. Presumably, therefore, this would have enabled the representative to have accessed the report and made meaningful submissions on it.
Mr Gormly submitted this approach is an example of what would satisfy both common law procedural fairness and the relevant part of the Minister's guidelines (the third dot point - see [42] to [43] above). By contrast, putting the issue and the substance of the country information was not sufficient to satisfy the procedural fairness requirement arising generally at common law or specifically from the Minister's guidelines.
It must be said that Mr Gormly had some difficulty in explaining this attack in light of what McHugh J said in Muin v Refugee Review Tribunal[2002] HCA 30; (2002) 190 ALR 601 ("Muin") at [123]:
"Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power. This does not mean that the source and nature of all material that comes before the decision-maker must be disclosed. But 'in the ordinary case... an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made'. What is required to discharge this duty depends on the circumstances of the particular case."
[Footnotes omitted and emphasis added.]
The reference to the requirement that a person (as in the applicant's case) be given an opportunity to deal with matters adverse to their case does not mean that the "source and nature" of the relevant material must be disclosed. This would appear, certainly on its face, to provide a complete answer to the applicant's complaint.
But I also understood Mr Gormly to argue that what is required to discharge this obligation depends on the circumstances of each case. In the current case, the Minister's guidelines themselves created a legitimate expectation that the document would be provided, or at least fully identified. This "expectation" was also identified as an "objective requirement" under the Minister's guidelines. This was said with specific reference to "Attachment D" (as referred to at [43] above). In essence, the argument is that this part of the Minister's guidelines is concerned with setting out a procedurally fair process.
This proposes that the applicant has a right to have the finding based on evidence. The evidence must be relevant. The second dash point under the third dot point at page 18 (see [42] to [43] above) is read to mean that the reviewer is to take all reasonable steps to make this evidence (in the current case the DFAT document) available to the claimant.
Mr Ford gave evidence that it was his general understanding of the Minister's guidelines, and his expectation, that the reviewer would provide copies of all the country information, including DFAT reports, on which he intended to rely to an applicant's representative prior to the making of his decision.
Beyond this Mr Ford's evidence was of no real assistance to the specific argument raised by the applicant. He had no knowledge of this case. There was no clear evidence that his expectation arose from his actual experience with similar cases with which he was involved on Christmas Island. That is, that he actually received copies of all country information relied on by other reviewers. In fact, on cross-examination, Mr Ford agreed that, in his experience, it had not been the practice to routinely provide copies of all country information documents to claimants or their representatives.
What remained unexplained from Mr Ford, therefore, was how the expectation arose from the Minister's guidelines. I cannot see that any plain reading of "Attachment D" objectively gives rise to any such expectation.
Mr Gormly essentially raised two issues in support of his position.
The first is that "Attachment D" is concerned with procedural fairness. As was set out elsewhere in the Minister's guidelines (page 10):
"Attachment D sets out detailed step-by-step information on how Independent Reviewers are to ensure procedural fairness in the conduct of the entire independent merits review process."
In relation to country information, the Minister's guidelines also say (page 11):
"...
- the Independent Reviewer will provide the claimant with an opportunity to comment on adverse information which is credible, relevant and significant to the review.
Independent Reviewers must also refer to current and reliable country information available through CISNET and through the RRT. All country information considered must be individually cited in the reviewer's report."
"Attachment D", being concerned with procedural fairness, set out, at each of the relevant dot points, references to (page 38):
"• the right to be heard, ["the first dot point"]
...
• the right to have a finding made by an unbiased person:..." ["the second dot point"]
Mr Gormly submitted these two points constitute the two limbs of procedural fairness. I understood this to be a reference to the aspects of the natural justice hearing rule.
It is of course the case that the natural justice hearing rule requires that, where a person's interests will be affected by a decision, they will be given a fair hearing. A basic principle relevant to this is that a person should have a reasonable opportunity to present their case and to meet the case put against them (see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; (2001) 179 ALR 238; (2001) 75 ALJR 889 ("Ex parte Miah") at [99] per Gaudron J).
The other limb is that there be no bias, actual or apprehended, on the part of the decision maker.
In essence, the first and second dot points at "Attachment D" are plainly an attempt to confirm these principles for the purposes of the Minister's guidelines.
Mr Gormly argued that the third dot point (see [42] to [43] above) deals with matters that would not normally be expected in any summary of common law procedural fairness. When seen in this light, therefore, the guidelines have sought to create an additional aspect of what is fair in relation to this cohort of cases.
Although it is not determinative of this matter, it is the case that there does exist in English law the concept of the "no evidence" rule, or "probative evidence" rule, which has at times been seen as part of procedural fairness or natural justice at common law (see for example R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965]
[42]
1 QB 456 per Diplock LJ and Minister for Immigration and Ethnic Affairs v Pochi[1980] FCA 85; (1980) 31 ALR 666 at 690 per Deane J). When regard is had to what in particular Diplock LJ said, then the third dot point, and the second dash under it, are no more than an expression of the "no evidence rule".
31. Mr Gormly's submission has some force when regard is had to the uncertainty as to whether the "no evidence rule" takes the natural justice concept beyond a procedural focus more consistent with the notion of procedural fairness (see the discussion in Judicial Review of Administrative Action: 4th Edition,[2] at Chapter 7.20 to 7.30, and in particular what is said to be a "[T]hird reading of Dranichnikov", which I read as referring to Dranichnikov v Minister for Immigration and Multicultural Affairs[2003] HCA 26; (2003) 197 ALR 389; (2003) 77 ALJR 1088).
32. In my view the drafter of the Minister's guidelines was most probably seeking to incorporate or reflect a more traditional view or, with reference to the unclear current Australian position, an historical view of what is included in the notion of the natural justice hearing rule, or, more pointedly, the principles of procedural fairness at common law.
33. In any event, Mr Gormly's second issue in support cannot be made out on what is before the Court. This provides the complete answer to this submission.
34. This approach was to submit that the "second dash point" (under "the third dot point") should be read both of itself, and in context, as meaning that there is an obligation on the reviewer to take all reasonable steps to ensure all reasonably available evidence is made available to the claimant (see [42] above). The crux of this reading is to understand the word "them" (as it appears at the second dash point of the third dot point - see [43] above) as referring to "claimants" and not to "reviewers".
35. While this part of the Minister's guidelines could have benefited from clearer expression, on balance I do not understand "Attachment D" as a whole, or the specific point relied on by Mr Gormly, to purport to create any additional procedural fairness obligations for the purposes of the review beyond those found in the common law.
36. First, the entire document must be understood for what it is, namely "guidelines". It is not an academic treatise on the law.
37. Second, as was plainly stated at page 10 of the Minister's guidelines (see [59] above), "Attachment D" is a detailed step-by-step guide to ensure procedural fairness in the review.
38. Third, the Minister's guidelines give specific direction to the reviewers that they are "expected to act in accordance with the principles of procedural fairness in order to determine the merits of the case" (see page 10.6). The absence of any qualification to this leads to the inference that this is a reference to procedural fairness principles at common law.
39. As against this background, the language of "Attachment D" (see [43] above) is focussed on guiding the reviewer as to what is otherwise said to be consistent with the notion of procedural fairness. For example (at page 38.2):
* "...
* Claimants seeking independent merits review of a Departmental officer's Refugee Status Assessment (RSA) are to have access to an independent merits review process that is consistent with the principles of procedural fairness."
40. There is no reference here to procedural fairness as set out in the Minister's guidelines, but rather a direction that the review must be "consistent with the principles of procedural fairness". There is nothing here to suggest any specific addition to the principles beyond what is found at common law, or more precisely, given the discussion above, the drafter's view of what may constitute procedural fairness at common law.
41. I agree with Mr Markus that what is set out at "Attachment D" is simply the drafter's understanding of the natural justice hearing rule. The first two dot points are clearly accepted in Australia as being the two limbs of that rule. The third dot point is nothing more than a "paraphrasing", as Mr Markus described it, of the requirement to make decisions on the basis of logically probative material. Given the historical relationship of this concept with the natural justice hearing rule, I agree in context that it represents the drafter's view of the extent of the whole rule (i.e. a third limb).
42. That leads to a plain reading of the actual words. In my view, the reference to "them" (at the second dash point of the third dot point) can only properly be understood as a reference to the reviewers and not claimants. The right to have a finding based on evidence which is relevant is explained in the two aspects of the second dash point of the third dot point as the need for reviewers to take all reasonable steps to ensure reasonably available evidence is put before the reviewer, limited by the circumstance that the reviewer does not have an obligation to make out the claimant's case for them (the first part of the dash point). The first part of the dash point only makes sense and has meaning if the word "them" relates to the reviewer and not the claimant.
43. This view is emphasised when regard is had to what follows under the heading of "Independent Merits Review Process" (at pages 38 to 40). When regard is had to what is set out there it is clear that this is the "step-by-step" process promised earlier at page 10.
44. The steps follow, and are consistent with, and in a real sense add substance to, the three dot points and their dashes set out at page 38 of the Minister's guidelines (see [43] above).
45. In relation to the second dash point of the third dot point (see [42] - [43] above) relied on by Mr Gormly, the subsequent process provides that after the interview:
[43]
"• the Independent Reviewer may initiate further enquiries in order to ensure that he/she is as well informed as possible about the relevant issues."
[44]
This is clearly connected to, and entirely consistent with, the procedural fairness requirement that the reviewers "should take reasonable steps to ensure that all reasonably available evidence is available to them" (emphasis added) (the second dash point of the third dot point).
In short, I cannot see that the Minister's guidelines create any obligation or expectation that claimants will be given the actual documents containing relevant country information. Importantly even Mr Ford, the applicant's witness, did not give any such evidence beyond some vague and unexplained reference. At its highest, his evidence was that he generally had this expectation.
In submissions Mr Markus correctly reminded the Court that the starting point for any consideration of procedural fairness for this cohort of cases is M61/M69 itself. Relevantly (at [91]):
"Third, procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims... The reviewer should have put to the plaintiff for his consideration and comment those aspects of country information known to the reviewer which the reviewer considered may bear upon the claims the plaintiff made. He did not."
In the current case, as conceded for the applicant, the reviewer did.
As the Minister submitted, Flick J in Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations[2011] FCA 370 at [34] gives clear relevant direction:
_"First, irrespective of whether the requirement of disclosure is to be found by way of implication in s 487-10(1) or in the common law rules of procedural fairness, it is considered that the requirement is satisfied where the '_substance' of the legal and factual concern is disclosed. There is no requirement that the documents or other material relied upon need necessarily also be disclosed. Thus, in the context of procedural fairness, in M61/2010E v The Commonwealth _[2010] HCA 41 at [91], [2010] HCA 41; 272 ALR 14 at 36 French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ said that '_procedural fairness required the reviewer to put before the plaintiff the substance of matters that the reviewer knew of and considered may bear upon whether to accept the plaintiff's claims'. The 'precise detail of all matters upon which' a decision-maker intends to rely need not necessarily be disclosed: McVeigh v Willarra Pty Ltd [1984] FCA 379; (1984) 6 FCR 587 at 601 per Toohey, Wilcox and Spender JJ. See also: Karina Fisheries Pty Ltd v Evans (Unreported, Federal Court of Australia, Forster J, 1 July 1988)."
It must be said that, to a large part, the applicant's reliance on authorities in the present case was directed to the question of the need to adhere to a declared procedure (that is, in the current case, the Minister's guidelines). (See for example Darling Casino Ltd v NSW Casino Control Authority[1997] HCA 11; (1996) 191 CLR 602 at 609 per Brennan CJ, Dawson and Toohey JJ, Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] HCA 62; (2004) 221 CLR 1; (2004) 211 ALR 660; (2004) 79 ALJR 397, Applicants M16 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs[2005] FCA 1641; (2005) 148 FCR 46; (2005) 228 ALR 519 at [35] - [53]).
For the reasons already set out above, reliance on the Minister's guidelines to argue that they created an obligation to give to the applicant the actual document containing the relevant country information does not assist the applicant. That complaint does not succeed.
The relevant authorities in relation to procedural fairness at common law, which in the current case encompass the Minister's guidelines, do not assist the applicant. This may explain their absence from his arguments.
The natural justice hearing rule, or, more relevantly, the accepted obligations of procedural fairness, require the decision-maker to give a claimant the opportunity to put his or her case. Fairness requires that a claimant be given the opportunity to be heard. An element of this is that the decision-maker has an obligation to unambiguously and clearly raise the critical issues on which the decision will turn (Kioa at 587, VAAC v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 74; (2003) 129 FCR 168 at [27]). There was no argument between the parties that the extent of this requirement is derived from the circumstances of each particular case (Haoucher v Minister for Immigration and Ethnic Affairs[1990] HCA 22; (1990) 169 CLR 648 at 672 per Gaudron J).
There is a clear requirement of fairness that a claimant be informed of the type of matters that the reviewer may take into account, but this does not lead to the proposition that procedural fairness requires the claimant to have the opportunity to comment on all "adverse" information irrespective of its credibility, relevance or significance (Kioa at 628 per Brennan J).
The reviewer's obligation, and indeed the claimant's entitlement, is to have the claimant's mind directed to the core or critical issues on which the decision will turn. This is, of course, so that the claimant will have the opportunity of dealing with it (Commissioner for ACT Revenue v Alphaone Pty Ltd[1994] FCA 1074; (1994) 49 FCR 576 at 591). This is especially the case where the critical issue to the decision is not apparent from its very nature or even the terms of the statute under which it is made (here the Migration Act) (Ex parte Miah at [194] per Kirby J).
Relevantly, again depending on the circumstances of the particular case, procedural fairness at common law may require that country information be put to the claimant as a matter of fairness (Ex parte Miah, WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs[2003] FCAFC 188), particularly where the country information is determinative of the assessment or decision (Muin at [24], [131] - [137] per McHugh J, at [229] - [236] per Kirby J, at [263] - [268] per Hayne J, with whom Gummow J agreed and at [64] per Gaudron J, Ex parte Miah at [97] - [99] per Gaudron J, at [140] - [141] per McHugh J, at [193] - [194] per Kirby J, Minister for Immigration and Multicultural and Indigenous Affairs v NAMW[2004] FCAFC 264; (2004) 140 FCR 572 at [144]).
But here again, and depending on the circumstances, where the country information is used by the reviewer as a basis against which to assess a complainant's claims, procedural fairness does not require that country information, even where it is perceived to be of relevance, be provided as long as the issues of concern are raised and the claimant has an opportunity to put his or her case (VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 82 ("VHAP of 2002") at [27] - [28] per Allsop J, Gyles and Conti JJ agreeing at [17]).
Some caution must be taken with the bald assertion made in the respondent's written submissions (at [15] - page 5) that: "Fairness does not require the provision to an applicant of the documents or the specific text of country information in which the information might be contained".
The Minister says he relies on, in part, VHAP of 2002 per Allsop J at [27] - [28] in support of this submission:
"[27] Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
[28] Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of theMigration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant's claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance."
It is the case that Allsop J states, with respect, with reference to the circumstances before him, that where subjects of concern are raised there is no need as a matter of fairness to provide the specific text of the country information.
In my respectful view this still allows for the possibility that it should be provided where, for example, the subjects of concern are raised in such a way, or are of such character, that the claimant can only have the opportunity to meaningfully respond when he has been given the actual text.
The answer lays in what Allsop J said at [27] and at the beginning of [28]: "Natural justice is ultimately a question of fairness". This, with respect, is consistent with the authorities to which I have referred above. What is fair depends on the circumstances of the particular case. That is, it is those circumstances that will dictate what is required by way of procedural fairness. I emphasise that what is required is such as to ensure that the claimant knows the case against him, and has the opportunity to put his case.
The resolution of this issue for this Court, therefore, is to be determined having regard to the relevant actual and specific circumstances of this case and whether, in those circumstances, the reviewer put the critical issues to the claimant in such a way, and in such circumstance, that he was in a position to meaningfully respond.
The substance of the issues and the substance of the subject country information was put to the claimant. The transcript annexed to the affidavit of Ms Archer makes that clear. There was no real dispute about this from the claimant before the Court (see T9 - T10 in particular).
Further, and bearing in mind the approach I have taken above as to how to answer the question of what is procedurally fair in any particular circumstances, as submitted by the Minister, the very information the subject of the applicant's complaint now had been referred to in the departmental assessment of the claimant's case which was the subject of the review by Mr Connolly (see at CB 65.7 - item 28 and compare the "CX" reference number to what is set out in Mr Connolly's record at [96] at CB 137 - "CX 241170" - the same).
Further, again as the Minister submits, the applicant's advisers who represented him before Mr Connolly (Playfair Visa and Migration Services) stated in a written submission to Mr Connolly (see generally CB 87 to CB 116) and in particular at CB 108.9:
"Amongst other problems likely to be faced by undocumented Faili Kurds/Iraqi refugees in Iran, the decision maker indicates that country information (DFAT cable dated 18 March 2010) confirms that those without documents risk deportation in Iran. A real chance of forced deportation for convention reasons (ie an undocumented Faili Kurd/Iraqi Refugee) in itself should engage Australia's protection obligations."
Mr Gormly argued that Mr Connolly was required to conduct the review and consider the claims "afresh" in accordance with the principles of procedural fairness. Certainly the need to consider "afresh" is a part of the Minister's guidelines (see page 10 - item 4.1: "The Independent Reviewer will consider afresh all claims for protection...").
Further, it is the case that the reviewer should not feel constrained by, or without proper consideration, follow the findings made by the Minister's department. In short, the reviewer should not be, or be apprehended to be, biased in favour of any such findings. But I do not see this, or any other part of the Minister's guidelines, as providing a basis for ignoring what has relevantly occurred before the matter was referred to the reviewer.
Mr Gormly relies on what the High Court said in M61/M69 at [80]:
"The written and oral submissions advanced on behalf of Plaintiff M61 about procedural fairness and error of law focused upon the review of the Refugee Status Assessment that was conducted by the third-named defendant (the reviewer). The steps taken by the fourth-named defendant in conducting the initial Refugee Status Assessment were rightly treated as overtaken by the subsequent review...".
With respect, I do not understand this to provide support for Mr Gormly's submission. The High Court was, on my reading, dealing with the way submissions had been advanced by M61 and the focus on the review (as opposed to the initial assessment) in those submissions. The High Court was plainly focussed on the issue as it emerged before it, namely whether M61 had been denied procedural fairness by the reviewer in the conduct of that review. In this circumstance, that even if some error were evident in the initial assessment, then that was "overtaken by the subsequent review".
This understanding is reinforced when regard is had to what the High Court said in the parallel part of its judgment dealing with M69 (at [93]):
"Plaintiff M69 made a number of complaints about want of procedural fairness and error of law. Although his submissions were directed to both the recommendation made at the end of the Refugee Status Assessment and the Independent Merits Review, attention can be confined to the latter recommendation...".
In short, the nature of the review may indeed be a "review de novo", but as the Minister's guidelines make clear, this is a "review de novo" of the applicant's claims. That is a fresh mind, not influenced by the initial findings, is to be brought to bear on those claims.
Yet again, and further, emphasis must be given as to what is fair in the particular circumstances of this case. I cannot see any unfairness in what the reviewer had done. The substance of the country information was put to the claimant at the interview. Its relevance to the disposition of his claims was explained or was, in context, clear. An adviser ("agent") was present at the interview to assist the applicant. Specific reference was made at the hearing by the agent to the written submissions prepared and submitted by "the person representing the applicant" (see T25.5 - "This is Playfair this one" - and see generally at T25 to T27).
If there were further written submissions to be made then there was nothing preventing the representatives from doing so. The relevant issues had been identified in sufficient detail so as to allow a finding now that the claimant knew the case against him and was able therefore to respond.
It is the case that the adviser foreshadowed some further "written submissions" (T31.7). That no such submissions appear to have been made between the time of the interview (30 August 2010) and the making of the decision (20 December 2010), let alone the handing down of the decision record (17 January 2011), does not reveal any failure of procedural fairness on the part of the reviewer.
In all the circumstances I cannot see any legal error, as asserted now by the applicant, in the decision by Mr Connolly to recommend to the Minister that Mr Darabi not be recognised as a refugee. In these circumstances I will make relevant orders that his application to the Court be dismissed.
[45]
Mr Darabi, through his counsel, sought that he be known in these proceedings by his name rather than the pseudonym routinely assigned to him by the Court's Registry, and as is common with all those who come before this Court having sought to be recognised as refugees by the Australian Government.
The Minister raised concerns that Mr Darabi's motive was to create some "refugee sur place" claim to compel the Minister to recognise him as a person to whom Australia owes protection, on publication of this judgment, contrary to the recommendation given by Mr Connolly.
At the first Court date, prior to obtaining legal representation, Mr Darabi was, on the Court's inquiry, content to be known by a pseudonym in these proceedings.
However, whatever his motives subsequently, what remains is that a pseudonym had been assigned to his matter by the Court's Registry acting in reliance on s.91X of the Act.
In my view, this section does not apply to Mr Darabi. He is not a person who has applied for a protection visa, a protection visa related bridging visa or a person whose protection visa or protection visa related bridging visa has been cancelled. While there remains the possibility that ultimately Mr Darabi may be granted a protection visa at some time in the future, such a possibility does not bring him within the scope of s.91X now.
Given what was found by the High Court in M61/M69 the initial assessment and subsequent review of Mr Darabi's claim to be a person to whom Australia has protection obligations were conducted for the purpose of the Minister considering whether to exercise his powers under s.46A or s.195A of the Act. The Minister cannot be compelled to exercise these powers (see M61/M69 at [99]). The current terms of s.91X do not extend to include such circumstances.
Nor was any application made to the Court pursuant to s.61(b) of the Federal Magistrates Court Act 1999 (Cth) for prohibition of the publication of his name. In these circumstances it was not necessary to consider this. It must be said, however, that it appears unlikely that any such suppression order can be made under s.61 of that Act, given the limited circumstances in which such orders are envisaged in that section. That is, that it appears necessary in order to prevent prejudice to the administration of justice or the security of the Commonwealth (s.61(f) and (g) of the Federal Magistrates Court Act.)
[46]
I respectfully ask the Minister, or those who advise him, to consider replacing "dots" and "dashes" as markers in the "guidelines" with a numbering system more amenable to subsequent reference.
[47]
I certify that the preceding 122122one hundred122122twenty-twofiveone hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Nicholls FM
[48]
[1] Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) and the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) ("Refugees Convention").
[49]
[2] Mark Aronson, Bruce Dyer, Matthew Groves, Lawbook Company, Sydney, 2009
Parties
Applicant/Plaintiff:
Darabi
Respondent/Defendant:
Minister for Immigration & Anor [2011] FMCA 371
Legislation Cited (3)
Magistrates Court Rules 2001
Court Rules 1979
Magistrates Court Act 1999
Cases Cited (24)
(1985) 159 CLR 550
(2001) 179 ALR 238
(2001) 75 ALJR 889
(1980) 31 ALR 666
(2003) 197 ALR 389
(1996) 191 CLR 602
(2004) 221 CLR 1
(1994) 49 FCR 576
(2004) 140 FCR 572
(2005) 225 CLR 88
(2005) 222 ALR 411
(2002) 190 ALR 601
(2001) 206 CLR 57
(2003) 77 ALJR 1088
(2004) 211 ALR 660
(2004) 79 ALJR 397
(2005) 148 FCR 46
(2005) 228 ALR 519
(2003) 129 FCR 168
(1990) 169 CLR 648
(1984) 6 FCR 587
(2010) 272 ALR 14
(2010) 85 ALJR 133
(2005) 80 ALJR 228
• a request for review is lodged by a claimant - as part of this request, the claimant will be required to agree to all Departmental documents relevant to their case being provided to an Independent Reviewer, and to an Independent Reviewer using that information in the course of any enquiries they may make as part of their consideration of the case.
• an Independent Reviewer is identified to undertake the independent merits review.
• the Independent Reviewer is advised of the contact details for the claimant and their agent.
• the claimant and their agent are advised of contact details of the Independent Reviewer.
• the relevant folios of Departmental files are copied and provided to the Independent Reviewer.
• the files are examined by the Independent Reviewer. The Independent Reviewer identifies any additional information required (eg. from the RRT, the claimant or the Department).
• the claimant or their agent may request the Independent Reviewer to:
- seek additional information relevant to the claimant's case;
- interview other persons who may have information relevant to claimant's case.
If the Independent Reviewer considers the request to be reasonable and appropriate then the Independent Reviewer should agree to such a request.
• having received this new information, the Independent Reviewer provides the claimant and their agent with relevant details/copies of this information. If any of this information may be considered adverse to the claimant's case, the Independent Reviewer will set out the reasons as to why they consider it to be adverse and provide a copy to the claimant and their agent for them to respond.
• the Independent Reviewer, the claimant's agent and the Department agree to a timetable for travel to Christmas Island to interview the claimant.
• if another person is to be interviewed, the Department, the Independent Reviewer and the claimant or their agent agree to appropriate interview arrangements.
• the interview with the claimant is conducted on Christmas Island (should the claimant be detained there) at a time agreed between the Independent Reviewer, the claimant's agent and the Department. The interview should commence with a brief description of the review process and the purpose of the interview. The Independent Reviewer should also draw to the claimant's attention the importance of them not withholding information or providing incomplete or misleading information to the Independent Reviewer, as should this be discovered it might bring into question their credibility.
• a supplementary interview may be conducted with the claimant, if needed, in order to address any new information not previously put to the claimant (ie. information that has become available while the Independent Reviewer is on Christmas Island) or to allow a claimant more time to respond to issues raised in the initial interview.
• after the interview, the claimant's agent will be given the opportunity to put further submissions to the Independent Reviewer should they wish to do so.
• the Independent Reviewer may initiate further enquiries in order to ensure that he/she is as well informed as possible about the relevant issues.
• if new credible, relevant and significant information becomes available that is adverse to the claimant, the information, along with written reasons why it may be adverse to the claimant, should be provided to the claimant through their agent for comment.
• the Independent Reviewer will consider all of the information available to him/her and prepare his/her report which will include a recommendation as to whether the claimant appears to engage Australia's protection obligations under the Refugees Convention.
When requesting information from a claimant and their agent, an Independent Reviewer should state the timeframe within which a written response must be provided and advise the claimant and their agent that if a response is not provided within the specified timeframe, they intend to continue with the review process and/or finalise the review (as applicable). If, for any reason, the specified timeframe cannot be met, the claimant or the agent must contact the Independent Reviewer before the end of the specified timeframe to seek an extension of time in which to provide a response. The Independent Reviewer should inform the agent of their preferred method of communication (ie. written) for the response. In the event that the claimant or their agent do not respond within the timeframe set by the Independent Reviewer and no alternative timeframe has been agreed to by the Independent Reviewer, the Independent Reviewer should notify the claimant and their agent that he/she will continue with the review and that a finding may be made without giving the claimant the opportunity to provide any further comment of information.
In setting time periods for responses to requests for comment and/or information or for claimants or their agent to provide submissions, regard should be had to the timeframes applicable to RRT cases (see Attachment E). However, the overriding consideration is that the time allowed must be reasonable under the circumstances, taking into account that:
• claimants are in immigration detention and anything that unnecessarily extends their time in detention should be avoided; and
• the potential difficulties for an agent making contact with the claimant and any difficulties sourcing information, particularly from overseas sources."