consideration
27 Two issues arise for consideration in this appeal: first, the effect of a failure by the Secretary to comply with s 473CB(1)(b) of the Act on the Authority's jurisdiction to conduct a fast track review and make a decision under s 473CC of the Act; and secondly, whether, in the circumstances of this case, the Secretary's failure to comply with s 473CB(1)(b) resulted in jurisdictional error on the part of the Authority in making its decision.
28 There was no dispute between the parties that a failure by the Secretary to comply with s 473CB(1)(b) of the Act could deprive the Authority of jurisdiction to conduct a fast track review in accordance with the provision of Pt 7AA of the Act. However, the parties diverged on whether, in the circumstances of this case, the Secretary's breach resulted in the Authority being prevented from conducting the review contemplated by the Act.
29 In order to resolve that divergence of views it is necessary to first consider the broader question of principle identified at [27] above.
30 A failure by the Secretary to provide documents to the Administrative Appeals Tribunal (as opposed to, as in this case, the Authority) in accordance with the Act has been considered in the context of s 418(3) which applies to "Part 7-reviewable decisions". Section 418(3) of the Act, which is in analogous terms to s 473CB(1)(c), requires the Secretary, as soon as practicable after being notified of an application for review, to provide to the Tribunal those documents which are in the Secretary's possession or control and which he or she considers to be relevant to the review. It has been held that a failure to comply with s 418(3) will not, of itself, constitute jurisdictional error. That is because the Tribunal's obligation to conduct the review under Pt 7 of the Act arises on the making of a valid application by an applicant and not on the receipt of material provided under s 418(3) of the Act: WAGP v Minister for Immigration [2006] FCAFC 103; 151 FCR 413 at [63]. Further, compliance by the Secretary with s 418(3) of the Act is not a precondition to the exercise of the Tribunal's review function and no obligation is imposed on the Tribunal to consider the documents described in s 418(3) of the Act as part of the review process: Applicants S487/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1309 at [32].
31 Despite the similarity in the terms of s 418(3) and s 473CB(1)(c), given the critical differences in the schemes of Pt 7 and Pt 7AA as they apply respectively to the review of Part 7-reviewable decisions and fast track reviewable decisions, the authorities which consider the effect of a breach of s 418(3) of the Act cannot readily be applied to s 473CB(1). As Thawley J observed in EMJ17 v Minister for Immigration and Border Protection [2018] FCA 1462 at [42(3)]:
p… A Part 7 review is triggered by the making of a valid application by the applicant, not by the receipt of material under s 418(3). The review body is not prevented from receiving new material. By contrast, under Part 7AA, the review is automatic: the Secretary "must refer a fast track reviewable decision" to the Authority: s 473CA. Subject to the terms of Part 7AA, the Authority must (s 473CC(1)) conduct its review "by considering the review material" and "without accepting or requesting new information" or "interviewing the referred applicant": s 473DB(1). Part 7AA does not contemplate the Authority affording procedural fairness in a manner equivalent to Part 7. The s 473CB(1) "review material" is, accordingly, a critical part of the process and errors under that provision are not as likely to be corrected or rendered immaterial by reason of an opportunity to be heard being provided in the review, as may occur under Part 7.
32 The language of s 473CB(1) is mandatory. The Secretary must give the Authority the material set out therein including the material provided by the applicant to the delegate before the delegate's decision was made: subs (1)(b). That obligation is to be considered in light of the objective purpose of Pt 7AA and the prescriptive way in which the Authority is required to carry out its review.
33 The intent of Pt 7AA is to provide an efficient, but fair, process of review in accordance with the terms of the Act: see [18]-[19] above. The Authority is expressly required to pursue that objective by providing a "mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3": s 473BA. Division 3 sets out the way in which the Authority is to conduct the review. It expressly confines the material to which the Authority may have regard in undertaking its review to the material provided by the Secretary under s 473CB and, except in the limited circumstances set out in Subdiv C of Div 3, without accepting or requesting new information or interviewing the applicant. Further, in undertaking its review, the Authority is not concerned with the correction of error on the part of the Minister or delegate but undertakes a de novo consideration of the merits of the decision referred to it. It is required to consider the application afresh and determine for itself whether the criteria for a protection visa have been met: see Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; 92 ALJR 481 at [17].
34 That there be a fair review, free of bias in which the Authority considers the application afresh without the benefit, except in the limited circumstances set out in Pt 7AA of the Act, of an oral hearing or the ability for the applicant to provide additional material, brings into sharp focus the importance of compliance by the Secretary with his or her obligations under s 473CB(1), and in particular, s 473CB(1)(b) of the Act, such that the Authority has all of the material before it that was provided by the applicant to the delegate.
35 What then is the consequence of a failure to comply with s 473CB(1)? A failure by the Secretary to comply with s 473CB(1)(b) of the Act may prevent the Authority from conducting the "review" contemplated by Pt 7AA such that jurisdictional error on the part of the Authority is established. But the parties were agreed, and we accept, that not every breach of s 473CB(1) of the Act will result in jurisdictional error. Rather, whether that is so will depend upon the gravity of the breach.
36 In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780, the High Court (Kiefel CJ, Gageler and Keane JJ) observed at [24] that jurisdictional error, in its most generic sense, refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made lacking characteristics necessary for it to be given effect by the statute pursuant to which it was purportedly made. At [25] their Honours said:
[25] To return to the explanation of Professor Jaffe, jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error. In the language of Selway J, the unavoidable distinction between jurisdictional errors and non-jurisdictional errors is ultimately "a distinction between errors that are authorised and errors that are not; between acts that are unauthorised by law and acts that are authorised".
(footnotes omitted)
37 Their Honours observed that identification of the extent of non-compliance with the preconditions or conditions of an exercise of decision making power which will result in an otherwise compliant decision lacking the necessary characteristics to be given effect by the statute depends on the construction of the statute: Hossain at [27]. They emphasised the need to assess materiality when considering a failure by a decision-maker to comply with a statutory condition or obligation and said at [30]-[31]:
[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made.
[31] Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.
(footnotes omitted)
38 The Minister submitted that the approach that should be adopted in interpreting the effect of a breach of s 473CB(1) is as set out in AKK17 v Minister for Immigration and Border Protection [2017] FCCA 2486; 327 FLR 343 where Judge Driver said at [60]:
[60] I accept that the Authority is not required to consider every document provided to it as a pre-condition to exercising its decision making powers. Section 473DB(1) requires the Authority to review a decision referred to it under s 473CA "by considering the review material provided to it under s 473CB". If a document is omitted by the Secretary which is inconsequential, the Authority will not be disabled from performing its statutory duty. If, however, the document is significant and material to the outcome of the review, its omission may well disable the review function.
39 The Minister said that the question that then needs to be addressed is, having regard to the circumstances of the case and the nature of the documents, was the information that the Secretary failed to provide to the Authority significant and material to the outcome such that the Authority was disabled from conducting the review in the absence of those documents. The Minister relied on Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [111]-[112] where, in considering whether a failure by the Tribunal to consider corroborative evidence constituted jurisdictional error, Robertson J held that:
[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.
[112] As the Full Court said in VAAD v Minister for Immigration and Multicultural and Indigenous Affairs at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims. To the extent that the Minister's submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal's reasons I do not agree.
40 The Minister contended that the assessment of the materiality of a particular breach of s 473CB(1) by the Secretary should be undertaken by considering whether the absence of the documents would have affected the outcome of the review having regard to the Authority's reasons and the way in which it undertook its fact finding assessment of the applicant's claims. That is, there will be jurisdictional error if the material which the Secretary failed to provide in contravention of s 473CB(1) would have impacted on the outcome of the review.
41 The reduction of the assessment of the character of the documents to any overly precise textual formula is fraught with the risk of literalism and over-refinement. The conduct of the review is intended to be, to a degree, restricted, but fair. Natural justice requirements are circumscribed by the terms of Div 3 of Pt 7AA. One aspect of the context of this is the mandatory provision to the Authority of the material (implicitly, all the material) provided by the applicant to the decision-maker: s 473CB(1)(b). An aspect of fairness is the appearance of fairness. Thus, it is an important consideration, in assessing the gravity of the error or defect in the review caused by the Secretary's failure to give to the Authority certain documents, that the applicant apparently considered them to be relevant. He wanted these documents considered. In that context, the assessment of the gravity of the failure should be by reference to assumptions of fairness, and the natural justice hearing rule that are taken to be exhaustively stated by Div 3, on the assumption of compliance with s 473CB.
42 Having regard to those considerations, the requirements of s 473CB(1) of the Act by which the Secretary must provide the material referred to therein and the nature of the review prescribed by Pt 7AA, the test for which the Minister contends is inapt. It imposes too high a bar. Given the statutory purpose of a fair hearing, a lower threshold of materiality is called for. That is, one that considers whether the documents that were not provided by the Secretary could have resulted in the making of a different decision: see Hossain at [31]. In other words, there will be jurisdictional error because the Authority was prevented from conducting the review contemplated by Pt 7AA if the documents which the Secretary failed to provide to the Authority could have affected the outcome of the review. Whether that is so should be considered by reference to an applicant's claims and the Authority's reasons.
43 The Authority's powers upon review are not at large but are limited in the way set out in s 473CC, see [22]-[23] above; BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169; 253 FCR 448 at [12]-[13]. But, in our opinion, that does not affect the approach to the assessment of materiality of a breach of s 473CB(1) for the purpose of determining whether the decision made by the Authority is vitiated although it may have an impact on the application of the test to particular facts.
44 It is then necessary to consider whether the Secretary's breach of s 473CB(1)(b) of the Act in this case, by failing to provide the Medical Documents to the Authority, prevented the Authority from conducting the review contemplated by Pt 7AA of the Act.
45 The Minister submitted that the Medical Documents were not "significant and material" to the appellant's claims such that, despite the Secretary's failure to comply with s 473CB(1)(b) of the Act, no jurisdictional error arose.
46 The Minister accepted that the Medical Documents were capable of establishing that the appellant suffered from, and received medical treatment for, a disability potentially consistent with nerve damage culminating in the condition of foot drop and causing problems with his ability to balance while walking. However, the Minister submitted that, notwithstanding that, the Medical Documents neither would nor could have satisfied the Authority that, in the period from 2009 to 2012, he suffered beatings and torture from the SLA. The Minister contended that, while the Medical Documents might not be inconsistent with the appellant's claims, that does not mean they were material to the claims in the sense that, on their face, or considered with the rest of the information that was before the Authority, they could not have impacted on the Authority's findings.
47 The Minister observed that, having regard to the appellant's disability as gleaned from the Medical Documents, the only claim raised that may have been supported by those documents was the appellant's claim to have been hit with rifle butts by the SLA in 2009. The Minister contended that, even if the disability referred to in the Medical Documents is consistent with such an injury, it could not have impacted in a material way on the Authority's assessment of whether the disability he suffers from was caused by an injury sustained in 2009. That is, the Minister said that, even if the Authority might have been satisfied, with the benefit of the Medical Documents, that the appellant had suffered a serious injury several years earlier, those documents could not have impacted in a material way on the Authority's assessment of whether the injury was suffered at the hands of the SLA in the manner described by the appellant and were not probative of the truth of his claim.
48 The Minster made two further points. First, he said that to the extent that the appellant's claims that he was beaten at other times by the SLA might have been supported or corroborated by the Medical Documents, the Authority accepted that the appellant had been beaten at times at [16] of its reasons. Secondly, he observed that it was not clear how the appellant's claim to have been tortured with chilli being placed in a cut in his knee and his big toe being ripped out could possibly have been supported or corroborated by the Medical Documents.
49 For the following reasons we have come to a different conclusion to that urged on the Court by the Minister about the effect of the Medical Documents.
50 First, the Medical Documents establish that the appellant presented with an issue to his back and right foot. They also describe his symptoms as including loss of sensation in part of his right leg, walking off balance, foot drop and mild pain in the lumbar region on deep palpation. The appellant was referred for further tests.
51 Secondly, as the Minister submitted, the appellant's claim to have been hit with rifle butts in March 2009 may have been supported and corroborated by the Medical Documents. That claim was rejected by the Authority at [16] of its reasons. The Minister said that the Authority rejected that claim because, as it explained at [15] of its reasons, the appellant "made no mention of these significant incidents in his arrival interview or SHEV application". However, given their content and notwithstanding the reason given by the Authority at [15] of its decision record for rejecting that claim, the Medical Documents could have made a difference to the Authority's consideration of that claim. Those documents could have, when considered with the balance of the material before the Authority, led it to a different conclusion. It was for the Authority to consider the appellant's claims based on its evaluation of the evidence before it, without hearing from the appellant. Critically, contrary to the Authority's belief and its statement at [16] of its reasons, it did not have "the totality of [the appellant's] evidence" before it when it reached its conclusion. The Authority may have wanted to invoke s 473DC(3) and ask for some explanation of the documents. Whilst the documents themselves may not be new information (having been before the decision-maker), an explanation of them, in particular placing them in proper context, would be new information.
52 Thirdly, contrary to the Minister's submissions, whether the Medical Documents may be corroborative of the appellant's claims (other than his claim to have been hit with rifle butts in March 2009) is an open question which once again requires an evaluative judgment on the part of the Authority based on the evidence before it. That being so, the Medical Documents could have affected the way in which the Authority might view the appellant's other claims.
53 Fourthly, we accept that the Medical Documents taken at their highest could only establish that the appellant suffered an injury in the past and not that the injury was suffered at the hands of the SLA. But acceptance of the former may result in the Authority taking a different view of the cause of the injury and, indeed, accepting the appellant's version of events.
54 The Medical Documents could have affected the outcome of the Authority's review given their content, the claims made by the appellant and the reasons given by the Authority for rejecting those claims. That is, they could have led to the Authority drawing different conclusions in relation to some of the appellant's claims which may, in turn, have affected the ultimate conclusion reached by the Authority. Here, there was no independent basis on which the Authority's decision might otherwise have been upheld such that the breach of s 473CB(1)(b) could have made no difference to the outcome, namely the Authority's decision to affirm the delegate's decision: cf Hossain at [35].
55 Although the issue was not raised in the same manner before the primary judge, his Honour came to a different view about the effect of the Medical Documents assuming that, in contravention of s 473CB(1), they were not provided by the Secretary to the delegate: see [12] above. To the extent his Honour did so, dismissing the effect of those documents on the basis that they were not "credible, relevant and significant", his Honour, with respect, erred.
56 Given the conclusion we have reached it follows that the Authority was prevented from conducting its review under Pt 7AA of the Act such that jurisdictional error is established.
57 For completeness, we acknowledge the supplementary submissions provided by the parties at the Court's request after the conclusion of the hearing. Among other things, those submissions addressed the relevance of the potential use by the Authority of some or all of the provisions of Subdiv C of Div 3 of Pt 7AA of the Act, which relevantly concerns "new information". As the appellant submitted, the Medical Documents were not "new information" as defined in s 473DC(1) of the Act for the purposes of Subdiv C because they were before the Minister when he made his decision. Thus the Authority could not obtain or consider the Medical Documents by the processes set out in Subdiv C of Div 3 of Pt 7AA of the Act. We therefore do not propose to consider these provisions further.