HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJABT17 APPELLANT
AND
MINISTER FOR IMMIGRATION AND BORDER
PROTECTION & ANOR RESPONDENTSABT17 v Minister for Immigration and Border Protection
[2020] HCA 34
Date of Hearing: 6 August 2020
Date of Judgment: 14 October 2020M140/2019
ORDER
1.Appeal allowed.
2. Set aside the orders of the Federal Court of Australia made on 16 April 2019 and, in their place, order that:
(a) the appeal to that Court be allowed;
(b) the orders of the Federal Circuit Court of Australia made on 23 March 2018 be set aside and, in their place, it be ordered that:
(i) writs of certiorari and mandamus be issued to the second respondent quashing the decision made on 16 December 2016 and remitting the matter to be determined according to law; and
(ii) the first respondent pay the applicant's costs of the application for judicial review to the Federal Circuit Court of Australia; and
(c) the first respondent pay the appellant's costs of the appeal to that Court.
3. The first respondent pay the appellant's costs of the appeal to this Court.
On appeal from the Federal Court of Australia
Representation
M A Schilling with A N P McBeth for the appellant (instructed by Clothier Anderson Immigration Lawyers)
G A Hill for the first respondent (instructed by Sparke Helmore)
Submitting appearance for the second respondent
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
ABT17 v Minister for Immigration and Border Protection
Immigration – Refugees – Application for protection visa – Immigration Assessment Authority ("IAA") – Review by IAA under Pt 7AA of Migration Act 1958 (Cth) – Where delegate of Minister for Immigration and Border Protection ("Minister") refused to grant appellant temporary protection visa – Where delegate accepted appellant's account as plausible, but found appellant did not hold well‑founded fear of persecution based on country information – Where delegate's decision referred to IAA for review – Where IAA affirmed delegate's decision – Where IAA departed from delegate's assessment of appellant's credibility – Where under s 473DB IAA generally required to review fast track reviewable decision by considering review material, and without accepting new information or interviewing applicant – Where under s 473DC IAA may get new information not before Minister and that IAA considers may be relevant, including by inviting applicant to interview – Where under s 473DD IAA must not consider new information unless satisfied there are exceptional circumstances, and that new information was not and could not have been before Minister or is credible personal information – Whether legally unreasonable for IAA to depart from delegate's assessment of appellant's credibility without inviting appellant to interview – Whether appellant's demeanour "new information" within meaning of s 473DC – Whether failure to invite appellant to interview was material to IAA's decision.
Words and phrases – "credibility", "de novo review", "demeanour", "fast track reviewable decision", "Immigration Assessment Authority", "informational gap", "interview", "legal unreasonableness", "material", "materiality", "new information", "review material", "temporary protection visa".
Migration Act 1958 (Cth), Pt 7AA, ss 473DB, 473DC, 473DD.
KIEFEL CJ, BELL, GAGELER AND KEANE JJ. Part 7AA of the Migration Act 1958 (Cth) confers jurisdiction on the Immigration Assessment Authority to review a "fast track reviewable decision", referred to it by the Minister for Immigration and Border Protection, by which a delegate of the Minister has refused to grant a protection visa to the "referred applicant". The Part has been examined in detail on several occasions[1].
[1]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 225-232 [13]-[38]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1094-1096 [3]-[17]; 373 ALR 196 at 198-201; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 144-145 [2]-[8]; 375 ALR 47 at 48-50; Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706; 380 ALR 216.
The scheme of the Part is to impose a duty on the Authority to review the fast track reviewable decision referred to it by the Minister[2] by "considering" the "review material" provided to it by the Secretary of the Department of Immigration and Border Protection at the time of referral[3], without accepting or requesting "new information" and without interviewing the referred applicant[4], subject to the Authority having specific powers to "get"[5] and, in specified circumstances[6] and on specified conditions[7], to "consider" new information. One way the Authority is empowered to get new information is by inviting a person, who can be the referred applicant, to give new information at an interview which the Authority can conduct in person or by telephone or in any other way[8].
[2]Section 473CC of the Migration Act.
[3]Section 473CB of the Migration Act.
[4]Section 473DB of the Migration Act.
[5]Section 473DC of the Migration Act.
[6]Section 473DD of the Migration Act.
[7]Sections 473DE and 473DF of the Migration Act.
[8]Section 473DC(3)(b) of the Migration Act.
The duty of the Authority to review a referred decision is imposed on the implied condition that the duty must be performed within the bounds of reasonableness, and the powers of the Authority to get and consider new information are likewise conferred on the implied condition that those powers must be considered and where appropriate exercised within the bounds of reasonableness[9].
[9]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 227 [21]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1096 [15]; 373 ALR 196 at 200; CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 145 [6]-[7]; 375 ALR 47 at 50.
The question of principle in this appeal is whether compliance with the reasonableness condition can compel the Authority to exercise its powers to get and consider new information by inviting a referred applicant to an interview in order to assess and consider his or her demeanour in the conduct of a review. The answer is that it can, and that in this case it did.
The applicable principles
The nature of the jurisdiction exercised by the Authority when conducting a review of a fast track reviewable decision is settled[10]:
"[T]he Authority when conducting a review of a fast track reviewable decision is not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority ... is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met."
[10]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17].
"Review material", which the Secretary is obliged in every case to provide to the Authority and which the Authority is obliged in every case to consider in exercising that jurisdiction, comprises material within three categories. The first is a statement concerning the referred decision setting out the findings of fact made by the delegate, referring to the evidence on which those findings were based and giving reasons for the decision[11]. The second is material provided by the referred applicant to the Minister before the delegate made the referred decision[12]. The third is other material in the Secretary's possession or control considered by the Secretary to be "relevant" to the review[13] in the sense that it is "capable directly or indirectly of rationally affecting assessment of the probability of the existence of some fact about which the Authority might be required to make a finding"[14].
[11]Section 473CB(1)(a) of the Migration Act.
[12]Section 473CB(1)(b) of the Migration Act.
[13]Section 473CB(1)(c) of the Migration Act.
[14]See CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 145 [6]; 375 ALR 47 at 50.
Conformably with the nature of the jurisdiction to be exercised by the Authority in the conduct of the review, the obligation of the Authority to "consider" the review material provided to it by the Secretary is to "examine the review material ... to form and act on its own assessment of the relevance of that material to the review of the referred decision"[15].
[15]CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140 at 145 [7]; 375 ALR 47 at 50.
The purpose of obliging the Secretary to provide the review material to the Authority and of obliging the Authority to consider the review material provided to it by the Secretary is evidently to ensure that the Authority, in conducting its de novo consideration of the merits of the referred decision, has and examines for itself the same information that was before the Minister and that was therefore available to be taken into account by the delegate when making the referred decision.
"New information", which the Authority can only get and consider in the exercise of its specific powers, comprises any communication of "knowledge of facts or circumstances relating to material or documentation of an evidentiary nature"[16] which was not before the Minister when the delegate made the referred decision[17] that the Authority itself considers might be relevant to the review[18] in the sense that it might be capable directly or indirectly of rationally affecting assessment by the Authority of the probability of the existence of some fact about which the Authority might be required to make a finding in determining afresh whether or not to be satisfied that the criteria for the grant of a protection visa have been met[19].
[16]Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706 at 710-711 [21]; 380 ALR 216 at 222, quoting Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 440 [28].
[17]Section 473DC(1)(a) of the Migration Act.
[18]Section 473DC(1)(b) of the Migration Act.
[19]Minister for Immigration and Border Protection v CED16 (2020) 94 ALJR 706 at 711 [23]; 380 ALR 216 at 222.
Though review by the Authority is described in the "simplified outline" to Pt 7AA as "on the papers"[20], the information contained in the review material which the Secretary provides to the Authority will have been shaped by the Code of Procedure in Subdiv AB of Div 3 of Pt 2. The Code of Procedure has the effect of preventing a visa applicant or interested person from communicating with the Minister in relation to an application for a protection visa other than in writing[21]. But that does not mean that other material in the Secretary's possession or control which might be considered by the Secretary to be relevant to the review will necessarily be in documentary form.
[20]Section 473BA of the Migration Act.
[21]Section 52 of the Migration Act; reg 2.13 of the Migration Regulations 1994 (Cth).
The Code of Procedure empowers the Minister or a delegate, "if he or she wants to", to "get any information that he or she considers relevant" on the condition that, if he or she "gets such information", he or she "must have regard to that information in making the decision whether to grant or refuse the visa"[22]. The Minister or delegate is specifically empowered to invite the applicant to give additional information in any of three ways: "in writing", "at an interview between the applicant and an officer" or "by telephone"[23]. If the applicant is invited to give additional information at an interview, there is no need for the officer who conducts the interview to be the delegate who is going to decide whether to grant or refuse the visa. Nor is there any need for the interview to be conducted in person. Nor does any statutory provision govern the form in which the interview might be recorded or transcribed.
[22]Section 56(1) of the Migration Act.
[23]Sections 56(2) and 58(1) of the Migration Act.
Whatever the form in which any interview with a referred applicant conducted in accordance with the Code of Procedure might come to be recorded or transcribed, the record of the interview is material in the Secretary's possession or control which the Secretary could not but consider relevant to the review. The record can therefore be expected to form part of the review material which the Secretary will be obliged to give to the Authority and which the Authority will be obliged to examine for itself.
However, the potential for a record of an interview conducted in accordance with the Code of Procedure to take a variety of forms creates potential for an informational gap to arise in the review material where an interview with the referred applicant has been conducted by the delegate in person and has been audio recorded but not video recorded. Provision of the audio recording as part of the review material will then not put the Authority in the position of having and being able to examine for itself the totality of the information available to the delegate and required by the Code of Procedure to be considered by the delegate when making the referred decision. Missing from the review material will be a visual impression of how the referred applicant appeared during the interview - his or her demeanour.
An informational gap of that nature has potential to impact on the Authority's assessment of the credibility of the account given by the referred applicant during the audio recorded interview and in turn has potential to impact on the Authority's assessment of the referred applicant's overall credibility. "Impressions formed by a decision‑maker from the demeanour of an interviewee may be an important aspect of the information available to the decision‑maker."[24] That has "long been recognised"[25] and continues to be appreciated despite awareness on the part of sophisticated decision-makers that "an ounce of intrinsic merit or demerit" measured by reference to objectively established facts and the apparent logic of events "is worth pounds of demeanour"[26].
[24]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 338 [40].
[25]See Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at 338 [40], and the cases there cited.
[26]Fox v Percy (2003) 214 CLR 118 at 129 [30]-[31], quoting Société d'Avances Commerciales(Société Anonyme Egyptienne)v Merchants' Marine Insurance Co(The "Palitana") (1924) 20 Ll L Rep 140 at 152.
The potential significance of demeanour is illustrated by the present case. Here, as will be seen, the Authority was troubled by a concern that the appellant's evidence in his audio recorded interview with the delegate was generally lacking detail and at times vague and hesitant. An interview was the obvious means by which the Authority might seek to resolve these matters of concern, given that the Authority was evidently not convinced by the country information alone to uphold the delegate's ultimate decision, however "plausible" the appellant's account of his personal circumstances might be. At an interview the Authority could seek answers in relation to those aspects of the appellant's evidence that troubled the Authority by raising questions which had not previously been raised with the appellant. The Authority could thus develop an informed impression of the credibility of the appellant based on his responses to such questions and an observation of his demeanour. The appellant's responses and the demeanour of the appellant inextricably associated with them would be new information relevant to his personal circumstances.
There can be no doubt that the powers of the Authority to get and consider new information enable the Authority to bridge such an informational gap by inviting the referred applicant to a further interview to be conducted in person or by video link in order to assess and consider his or her demeanour for itself. The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility[27] and which was not before the Minister when the delegate made the referred decision[28]. The new information so got by the Authority would then meet the preconditions to its consideration by the Authority on the basis that it was not and could not have been before the Minister when the delegate made the referred decision[29] and on the basis of the Authority's satisfaction that the existence of any informational gap is sufficiently aberrant within the scheme of de novo review for which Pt 7AA provides to make existence of the informational gap in the particular review alone enough to constitute "exceptional circumstances" justifying its consideration irrespective of how frequently such an informational gap might arise in practice[30].
[27]Section 473DC(1)(b) of the Migration Act.
[28]Section 473DC(1)(a) of the Migration Act.
[29]Section 473DD(b)(i) of the Migration Act.
[30]Section 473DD(a) of the Migration Act. See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 229 [30].
Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate[31], the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment[32]. The Authority would be able to discharge that obligation by inviting the applicant to comment orally in the interview itself or subsequently in writing. But occasions when the need to take such a course might arise would be rare, as the circumstances of the present case again illustrate. The Authority was evidently inclined to reject the appellant's account of his experience of persecution because the Authority found the appellant's account vague and lacking in detail and to have been given in a hesitant fashion. An interview by the Authority would have enabled the Authority to get new information from the appellant by raising these issues with him. If the effect of this new information was that it simply failed to allay the tentative concerns that the Authority already entertained about the appellant's credibility, the obligation to invite further comment would not be engaged. The new information would not be the reason, or part of the reason, for affirming the fast track reviewable decision. The reason would remain the unallayed concerns of the Authority in relation to the appellant's account of his personal circumstances.
[31]See Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 223 [9], and the cases there cited.
[32]Section 473DE of the Migration Act.
The Authority being able to exercise its powers to get and consider new information to bridge an informational gap in the review material by inviting a referred applicant to an interview in order to gauge and consider his or her demeanour for itself, the question becomes as to when if at all compliance with the implied condition of reasonableness in the conduct of the review or in the consideration and exercise of those powers might compel the Authority to adopt that course. Contrary to the urging of the appellant, answering that question is not assisted by seeking to infuse the implied condition of reasonableness with notions of procedural fairness, separate implication of which is expressly excluded from the scheme of Pt 7AA[33].
[33]Section 473DA(1) of the Migration Act. See BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1099 [34]; 373 ALR 196 at 204-205.
The answer is to be found in recognising that "[t]he implied condition of reasonableness is not confined to why a statutory decision is made; it extends to how a statutory decision is made"[34] such that "[j]ust as a power is exercised in an improper manner if it is, upon the material before the decision-maker, a decision to which no reasonable person could come, so it is exercised in an improper manner if the decision-maker makes his or her decision in a manner so devoid of plausible justification that no reasonable person could have taken that course"[35].
[34]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 371 [91].
[35]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 290, citing Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170. cf Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at 1128-1129 [20]-[25]; 259 ALR 429 at 434-436.
Compliance with the implied condition of reasonableness in the performance by the Authority of its duty to review the decision of the delegate necessitates not only that the decision to which the Authority comes on the review has an "intelligible justification"[36] but also that the Authority comes to that decision through an intelligible decision-making process[37]. Thus, as has been recognised, there can be circumstances in which the Authority can transgress the bounds of reasonableness by treating particular information as the reason or part of the reason for the decision to which it comes without first exercising its powers to get and if appropriate to consider, as new information, further information capable of being provided by the referred applicant[38].
[36]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 367 [76].
[37]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 375 [105], quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].
[38]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 236 [49], 249 [97].
Answering the question therefore requires an examination of the decision‑making pathways reasonably open to the Authority in reviewing the decision of a delegate to determine for itself whether the criteria for the grant of a protection visa have been met where the review material that it is obliged to consider in making that determination leaves out information that was available to and required to be considered by the delegate.
The mere existence of an informational gap will not necessarily result in the Authority being "disadvantaged in comparison with the delegate"[39]. That is because, having regard to country information and other information contained in the review material, the credibility of the referred applicant will not necessarily have a significant bearing on the Authority's determination of whether the criteria for the grant of a protection visa have been met. That is also because, having regard to country information and other information contained in the review material, how the referred applicant may have presented in the interview with the delegate will not necessarily have a significant bearing on such assessment of his or her credibility as the Authority might reasonably undertake.
[39]FND17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1369 at [39].
To the extent that the credibility of the referred applicant might bear on whether the Authority is to be satisfied that the criteria for the grant of a protection visa have been met and to the extent that his or her appearance in an interview with the delegate might bear on his or her credibility, it would ordinarily be open to the Authority to form its own assessment of credibility taking into account such second-hand description or impression of his or her appearance as might be conveyed expressly or by implication in the statement forming part of the review material which sets out the delegate's findings of fact and refers to the evidence on which those findings were based. Taking into account any such description or impression of the referred applicant's appearance, it would ordinarily then be open to the Authority to reach an assessment of the referred applicant's credibility without any need for the Authority's assessment of credibility to coincide with the delegate's assessment of credibility.
The Minister is therefore correct to say that the Authority is not required to interview a referred applicant merely because credibility is in issue or merely because the Authority comes to a different view as to credibility than did the delegate[40].
[40]cf DGZ16 v Minister for Immigration and Border Protection (2018) 258 FCR 551 at 568-570 [69]-[76].
However, the Authority will act unreasonably if, without good reason, it does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given. That is what happened in this case.
The principles applied
The procedural history is comprehensively recounted in the reasons for judgment of Nettle J and need not be repeated.
The gist of what happened is that the Authority listened to an audio recording of an interview which the delegate who made the referred decision conducted in person with the appellant. Finding the appellant's evidence in the interview "to be generally lacking in detail", the appellant "appear[ing] unable to expand in any detail on a number of his written claims and at times sound[ing] vague and hesitant", the Authority rejected a central part of the account given by the appellant in the interview which the delegate had accepted as plausible and generally consistent with country information. In particular, the Authority rejected the appellant's account of having been detained and beaten and sexually tortured by the Sri Lankan Army on suspicion of having been an LTTE supporter to find that there was "no credible information" before it indicating that he was of any interest to Sri Lankan authorities and that it was not satisfied that he had a "profile" that would be of interest to those authorities at the time of its decision or in the foreseeable future.
The Authority did not suggest that anything else in the review material rendered the appellant's account of having been detained and beaten and sexually tortured inherently improbable. To the contrary, the Authority noted that there was "ample country information" confirming "sexual based torture of Tamils who are suspected of LTTE or pro-separatist sympathies". The Authority was rather led to reject the appellant's account of the incident, "despite sympathetic questioning by the delegate" and despite its acknowledgement of cultural barriers to the appellant (as a young Tamil male) discussing sexual matters, having regard to the appellant's statement to the delegate (who was female) in the presence of his representative (who was also female) that he was "unable to talk about it", having regard to him being "unable to provide any details of what happened to him other than saying there were 2 or 3 [Sri Lankan Army] men and that he was unconscious for a lot of the time", and having regard to the reasons he gave in the interview for not seeking medical treatment being "unconvincing".
Had the Authority acted reasonably in performing its duty to review the decision of the delegate cognisant of its informational disadvantage in assessing the credibility of the appellant when compared with the delegate, the Authority would not have rejected the appellant's account of having been detained and beaten and sexually tortured on the basis of how he sounded on the audio recording without inviting him to a further interview so as to see him as well as hear him. By failing to invite the appellant to a further interview, the Authority transgressed the reasonableness condition implied into both the imposition of its duty to conduct a review and the conferral of its powers to get and consider new information in conducting a review.
To be clear, the breach of the reasonableness condition by the Authority lay not in evaluating the review material for itself to arrive at a different assessment of credibility than did the delegate, but in failing in the circumstances to use the powers at its disposal to get and consider new information in order to supplement the review material so as to place itself in as good a position to assess credibility as had been the delegate.
And notwithstanding the repetition, it seems necessary in light of alternative views now expressed in this Court to spell out that the failure of the review material to place the Authority in as good a position to assess credibility as had been the delegate arose not from some latent defect in the legislative scheme of Pt 7AA rendering it incapable of fulfilling its legislative purpose and resulting in a cataclysmic breakdown in the capacity of the Authority to rise to the legislative exhortation of "providing a mechanism of limited review that is efficient [and] quick"[41]. The failure arose from an administrative practice within the Department. In particular, the failure arose from the circumstance that the delegate rather than some other officer interviewed the appellant combined with the circumstance that the interview was audio recorded but not video recorded. To the extent that the circumstances of this case throw up a systemic problem, the problem has arisen administratively and can readily be remedied administratively.
[41]Sections 473BA and 473FA of the Migration Act.
The judgment under appeal mistook the process of reasoning adopted by the Authority in concluding that country information provided an alternative basis for its lack of satisfaction that the appellant would face a serious risk of harm if he returned to Sri Lanka. The Authority's statement of reasons for its decision made clear that its conclusion was not solely dependent on country information. The conclusion was expressed to be based in part on the appellant's "personal circumstances", which included the Authority's lack of satisfaction that he had a profile that would be of interest to Sri Lankan authorities.
Disposition
Performance by the Authority of its duty to review the decision of the delegate miscarried by reason of noncompliance with the implied condition of reasonableness. Performance of that duty is therefore appropriate to be compelled by mandamus directed to the Authority. As ancillary to mandamus, the purported legal effect of the decision in fact made by the Authority to affirm the decision of the delegate is appropriate to be quashed by certiorari.
The appeal is therefore to be allowed. The judgment under appeal is to be set aside. In its place, the appeal from the judgment of the primary judge is to be allowed, the orders made by the primary judge are to be set aside, writs of certiorari and mandamus are to be issued to the Authority, and the Minister is to be ordered to pay the costs of the application for judicial review. The Minister is to pay the appellant's costs of the appeals to the Federal Court and this Court.
NETTLE J. This is an appeal from a judgment of the Federal Court of Australia (Bromberg J)[42] dismissing an appeal from a judgment of the Federal Circuit Court of Australia (Judge Smith)[43], in turn dismissing the appellant's application for judicial review of the decision of the Immigration Assessment Authority ("the IAA") to affirm a decision of the delegate of the respondent Minister not to grant the appellant a protection visa.
[42]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613.
[43]ABT17 v Minister for Immigration and Border Protection [2018] FCCA 658.
The issue presented by the appeal is whether the IAA acted with legal unreasonableness by departing from the delegate's assessment of the appellant's credibility, and thus the delegate's assessment of the plausibility of the appellant's claims. For the reasons which follow, it was legally unreasonable for the IAA to depart from the delegate's assessment of the plausibility of the appellant's claims, and the appeal should be allowed.
The facts
The appellant is a citizen of Sri Lanka of Tamil ethnicity who, on 27 August 2012, arrived in Australia by boat at an excised offshore place without a visa, and consequently as an "unauthorised maritime arrival" within the meaning of s 5AA of the Migration Act 1958 (Cth) ("the Act").
On 5August 2013, the appellant lodged an application for a temporary protection visa, which was invalid, but, on 23 October 2015, he lodged a further, valid application for a temporary protection visa in which he made the following claims:
(1)In May 2009, whilst travelling to an internally displaced persons camp, members of the Sri Lankan Army ("SLA") detained the appellant's brother on suspicion of being a member of the Liberation Tigers of Tamil Eelam ("LTTE").
(2)Shortly after the family's release from the displaced persons camp, SLA officers attended the appellant's home to question him about his travel history and involvement with the LTTE. A day later, the appellant received a letter requesting his attendance at an army camp where, upon his attendance, SLA officers interrogated him and severely beat him when he denied involvement with the LTTE. He was released later that day.
(3)Subsequently, and over a period of a number of years, SLA officers repeatedly detained the appellant and accused him of being an LTTE member. They also beat him on these occasions.
(4)In around May 2011, an SLA officer attended the appellant's home to request the appellant's attendance at the army camp. The appellant was asleep. His sister indicated to the officer that the appellant was not at home. The officer assaulted his sister and the appellant was woken by the noise and physically defended her. The following morning, a group of men detained the appellant for six days, during which time he was again beaten. The group of men indicated to the appellant that this was revenge for his defence of his sister. The appellant's brother achieved the appellant's release by paying a bribe.
(5)In April 2012, the appellant was called again to attend at the army camp. He tried to escape but was recaptured and beaten severely.
(6)Shortly after the appellant's arrival in Australia, SLA officers attended the appellant's home in Sri Lanka to inquire of his family as to the appellant's whereabouts.
The delegate's decision
On 21 September 2016, the Minister's delegate decided to refuse to grant the appellant a temporary protection visa. During the appellant's interview with the delegate ("the TPV interview"), the appellant, at the delegate's request, removed his shirt and showed the delegate scarring on his back which he said was inflicted by SLA officers. The appellant also disclosed to the delegate that he had been sexually tortured during the incident in which he was detained by the SLA for six days in May 2011, in addition to being locked up, deprived of food and beaten.
The delegate found that the appellant's evidence during the TPV interview, including that the appellant had been subjected to sexual torture during the 2011 incident, was plausible and broadly consistent with country information pertaining to the events which the appellant described. But based on country information pertaining to the improvement in circumstances relating to Tamils in Sri Lanka since the appellant's departure from that country, the delegate was not satisfied that there was any longer a real chance that the appellant would face serious or significant harm upon his return there, and, on that basis, found that the appellant could not be said to have a well-founded fear of being persecuted by the Sri Lankan authorities by reason of his Tamil ethnicity, his membership of particular social groups (broadly defined as "Tamils from the North" and "young Tamil males from Northern Sri Lanka"), or his status as a failed asylum seeker and a person who had illegally departed Sri Lanka.
The IAA's decision
The delegate's decision was referred to the IAA for review as a "fast track reviewable decision", pursuant to s 473CA of the Act. The IAA accepted some of the appellant's claims but found that others were exaggerated and embellished in order to enhance the appellant's "profile" as someone who would be of interest to the SLA or the Sri Lankan authorities. The IAA accepted that the appellant had "experienced regular, low-level harassment from members of the SLA on a day-to-day basis", and that, as a young male returnee from a displaced persons camp, he may have been viewed with a certain amount of suspicion by the SLA. But the IAA did not accept that the appellant was questioned and beaten in late 2009, or that he was targeted and beaten every three to four months by the SLA with a view to making him confess that he was in the LTTE.
The IAA accepted that the appellant's brother had been detained for over two years on suspicion of being with the LTTE, but the IAA found it implausible that the appellant was not questioned about his brother during the time that the appellant was detained.
The IAA was also not satisfied that the appellant was detained and sexually tortured in May 2011: first, because the appellant's family had not taken immediate steps to have the appellant released (as it was said they had done on other occasions); and secondly, because of the manner in which the appellant gave evidence at the TPV interview about his claim of sexual torture. In particular, from listening to an oral recording of the TPV interview, the IAA found that the appellant's evidence before the delegate was lacking in detail, the appellant appeared unable to expand in any detail on a number of his claims, and, at times, the appellant sounded vague and hesitant. The IAA also rejected the appellant's claim that he was detained and beaten in April 2012 and asked to sign a document admitting his LTTE involvement, because, the IAA said, the appellant's evidence about that claim had varied between his written claims and the evidence he gave in the TPV interview.
It followed from those findings, the IAA stated, that:
"As I have not accepted that [the April 2012 incident] occurred and there is no credible information before me that indicates that the [appellant] is of any interest to the authorities, I do not find it plausible that members of the SLA would go to his family home and ask after his whereabouts after he arrived in Australia or that his family was told to report to the authorities when he returned.
In summary, I am not satisfied that the [appellant] has a profile that would be of interest to the SLA or the Sri Lankan authorities or that he is at risk of harm on the basis of his ethnicity or imputed support for the LTTE now or in the reasonably foreseeable future." (emphasis added)
The IAA then turned to country information that the IAA found demonstrated a considerable improvement in circumstances in Sri Lanka since the appellant's departure. The IAA reasoned that:
"The 2012 Guidelines issued by the United Nations High Commissioner for Refugees (UNHCR) state that certain real or perceived links with the LTTE continue to expose individuals to treatment which may give rise to a need for protection. However, there is nothing to support a finding that all Tamils are imputed with LTTE affiliation or membership. The Guidelines also indicate that even those Tamils who lived within LTTE-controlled areas and had contact with that organisation and its civilian administration in their daily lives are not, without more, in need of protection.
The [appellant's] evidence is that neither he nor any member of his family was a member of the LTTE or supported the LTTE. While his brother L was detained for two years at the end of the war on suspicion of LTTE involvement, the [appellant] was not questioned in any detail about L or his suspected LTTE affiliations or involvement. While I accept that the [appellant] has experienced some incidents of monitoring and harassment and that LTTE support may have been imputed to him on the basis of ethnicity, I am not satisfied on the evidence before me that the [appellant] has a profile which would bring him to the attention of the Sri Lankan authorities either because he would be perceived as an LTTE supporter on the basis of his ethnicity, the fact that he originates from the north of Sri Lanka or his brother's detention on suspicion of LTTE involvement.
...
Taking into consideration the number of years that have elapsed since he left, his personal circumstances and the country information referred to, I am not satisfied that the [appellant] would face a real chance of serious harm on return to Sri Lanka, now or in the reasonably foreseeable future on the basis of his Tamil ethnicity or imputed political opinion." (emphasis added; footnotes omitted)
The IAA affirmed the delegate's decision.
The Federal Circuit Court proceedings
Before the Federal Circuit Court, the appellant's counsel put the appellant's claim for judicial review of the IAA's decision on several grounds, all of which were rejected. For present purposes, however, it is necessary to mention only one ground that the appellant sought but was refused leave to rely upon. It was that, given the delegate had found the appellant's evidence to be plausible, the IAA could not reasonably have concluded that the appellant's evidence was lacking in detail or that the appellant appeared unable to expand in any detail on a number of his claims and at times sounded vague and hesitant. Judge Smith refused the appellant leave to advance that ground because the appellant's counsel accepted that he would need to adduce evidence of the TPV interview in order to sustain it, and Judge Smith did not consider it appropriate to grant the appellant an adjournment in order to obtain that evidence. In refusing the application for adjournment, Judge Smith stated[44]:
"The ground has little prospect of success because the [appellant] is unable to establish that there was no basis upon which the [IAA] could reasonably have made its findings about the manner in which the [appellant] gave evidence at the interview before the delegate and upon which it based, to some extent, its conclusions about the extent of the truthfulness of his claims."
[44]ABT17 v Minister for Immigration and Border Protection [2018] FCCA 658 at [35].
Proceedings before the Federal Court
Before the Federal Court, the appellant appeared unrepresented and argued that Judge Smith had erred in rejecting the appellant's contention that the IAA acted unreasonably in finding that the appellant's evidence was lacking in detail and that the appellant appeared unable to expand in any detail on a number of his claims and at times sounded vague and hesitant. The appellant contended that Judge Smith's conclusions were the result of an incorrect application of the principles of reasonableness.
Bromberg J found no error in Judge Smith's rejection of the appellant's contention in the form in which it was advanced in the Federal Circuit Court. But at the suggestion of the Minister (acting as a model litigant), his Honour treated the contention as one that the fact of the IAA reaching different credibility findings from those reached by the delegate without first considering whether to exercise the IAA's power to obtain further information under s 473DC of the Act established legal unreasonableness. As his Honour observed[45], that form of contention derived support from the then recent decision of the Full Court of the Federal Court in DPI17 v Minister for Home Affairs[46] (which the Minister, acting once again as a model litigant, had drawn to his Honour's attention).
[45]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [17].
[46](2019) 269 FCR 134.
Bromberg J accepted[47] that "the IAA must have been aware that ... the delegate had the opportunity [in interview] to observe the appellant's demeanour", as opposed merely to "listen[ing] to a tape of the interview (as it appears the IAA did)", and thus "to see and evaluate the physical manifestations which must have accompanied the evidence given by the appellant". His Honour reasoned[48] that:
"In those circumstances, it may well be thought that a reasonable decision-maker would not have made credibility findings contrary to those made by the delegate without considering whether or not the powers given to the IAA under s 473DC should be exercised, including for the purpose of inviting the appellant to attend for an interview so that the IAA could conduct its own assessment of the appellant's demeanour."
[47]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [24].
[48]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [24].
Ultimately, however, Bromberg J took the view[49] that he need not arrive at a conclusion "as to whether or not there [was] a sufficient parallel between the facts of this case and the facts of DPI17". His Honour posited[50] that "in order for jurisdictional error to be established, [he] would need to be satisfied that the IAA failed to consider exercising the s 473DC discretion" and that "any such failure was material to the IAA's decision". And as it appeared to his Honour, any such failure was not material because "[b]oth the delegate and the IAA relied on country information dealing with ... changed circumstances since the appellant left Sri Lanka relating to the treatment of Tamils and persons suspected of having had a prior involvement with the LTTE"[51] as "an alternative basis for the decision made which was not reliant on whether the appellant's claims to have been beaten and sexually tortured were or were not accepted"[52]. As his Honour expressed his conclusion[53]:
"Even if the IAA had exercised affirmatively the s 473DC discretion and had arrived at the same view as that arrived at by the delegate in relation to the claims of sexual torture and other physical abuse, in the face of the alternative basis for the application's rejection, the appellant has failed to demonstrate that there was a realistic possibility of the outcome being different."
[49]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [25].
[50]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [25].
[51]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [26].
[52]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [27].
[53]ABT17 v Minister for Immigration and Border Protection [2019] FCA 613 at [27].
Accordingly, the appeal was dismissed.
The appellant's contentions
Before this Court, counsel for the appellant contended that a review authority such as the IAA, "acting with due appreciation of its responsibilities"[54] and with knowledge that it had power under s 473DC(3) to interview the appellant and thereby observe his demeanour and the scarring the appellant had shown to the delegate, could not reasonably have concluded that the review was able fairly to be completed "on the papers". It followed, it was submitted, that the IAA's failure to exercise its power under s 473DC to interview the appellant was legally unreasonable. Further, it was contended, it was not incumbent on the appellant to demonstrate that the legal unreasonableness of the IAA's failure to interview the appellant was "material". For contrary to Bromberg J's reasoning, it was submitted, although materiality might be regarded as a free-standing consideration in a case of jurisdictional error comprised of a lack of procedural fairness (either as an essential element of the existence of jurisdictional error[55] or as a basis to refuse relief in the exercise of discretion where it is apparent that a jurisdictional error could not have made any difference to the outcome[56]), in the case of jurisdictional error constituted of legal unreasonableness "materiality is bound up in the characterisation of an exercise of power as legally unreasonable" and requires no separate consideration[57]. Further and in any event, it was contended, in this matter the legal unreasonableness of the IAA's failure to exercise its power of interview under s 473DC was material because it is apparent that the IAA's analysis of the effect of country information relating to the change in circumstances in Sri Lanka since the appellant's departure was not an independent, alternative basis for the decision but rather was dependent on, or at least to a significant extent informed by, the IAA's earlier rejection of the appellant's claim to have been detained, beaten and sexually tortured, and the IAA's consequent finding that the appellant did not have "a profile which would bring him to the attention of the Sri Lankan authorities either because he would be perceived as an LTTE supporter on the basis of his ethnicity, [or because of] the fact that he originates from the north of Sri Lanka or his brother's detention on suspicion of LTTE involvement".
[54]Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 570 [69] per Gageler J, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 365 [71] per Hayne, Kiefel and Bell JJ, in turn quoting Secretary of State for Education andScience v Tameside Metropolitan Borough Council [1977] AC 1014 at 1064 per Lord Diplock.
[55]See, eg, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 134-135 [30]-[31] per Kiefel CJ, Gageler and Keane JJ; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [45] per Bell, Gageler and Keane JJ.
[56]See, eg, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89 [5] per Gleeson CJ, 106-107 [51]-[53] per Gaudron and Gummow JJ; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 137 [40] per Nettle J; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 457-458 [85]-[89], 459-460 [93]-[94] per Nettle and Gordon JJ.
[57]Relying on the reasoning of Mortimer J in dissent in DPI17 v Minister for Home Affairs (2019) 269 FCR 134 at 163 [107], citing Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 564‑566 [53]‑[56] per Gageler J, 572‑573 [80] per Nettle and Gordon JJ, 583 [131] per Edelman J.
The Minister's contentions
The Minister contended to the contrary that nothing in the delegate's reasons supported an inference that the delegate's acceptance of the appellant's claims as "plausible" depended "to any significant extent" on the appellant's demeanour. In particular, it was submitted, although it is apparent from the delegate's reasons that the delegate accepted that the appellant's evidence at interview was "plausible" and was "also broadly consistent with country information", the delegate did not make any specific finding as to the claimed sexual torture in 2011 let alone find that she accepted that claim because of the appellant's demeanour.
The Minister emphasised that the IAA gave multiple reasons for rejecting the appellant's claims in relation to the alleged May 2011 detention. They were, first, on the appellant's evidence, although he had lived in an LTTE‑controlled area, he had had no direct dealing with the LTTE, he had not supported the LTTE and no other member of his family, his friends or his neighbours had supported the LTTE. According to the IAA, it followed that it was improbable that the SLA would have targeted the appellant or that he would have been beaten every three to four months as he claimed. Secondly, even if there were an incident in May 2011, it was improbable that the appellant was then subjected to sexual torture, because, given the appellant's family's willingness to take action to secure the release of the appellant's brother, it was implausible that the family would not have taken action (such as instituting court proceedings or complaining to police) to secure the appellant's release from sexual torture. Thirdly, although the IAA accepted that it might be difficult for the appellant to talk about traumatic events, in the IAA's assessment it was notable that the appellant was unable to provide any details of his supposed sexual torture other than to say that there were two or three men and that he was unconscious for a lot of the time. Fourthly, according to the IAA it was significant that the claim of sexual torture was not made until late in the TPV interview, after the appellant had first claimed in the TPV interview that he had been tortured without mentioning anything about sexual torture.
It followed, the Minister contended, that it was not unreasonable for the IAA to make credibility findings that differed from those made by the delegate. And in the Minister's submission, that conclusion was supported by several features of the statutory scheme of Pt 7AA of the Act, including the "primary obligation"[58] of the IAA to conduct its review on the papers except in limited circumstances; the fact that the IAA conducts a "de novo" review[59], which was said to indicate that the prospect of the IAA taking a different view from that taken by the delegate concerning the credibility of particular claims "is an obvious and ordinary aspect of the scheme, it being inherent in de novo review"; that, perforce of s 473DD, the IAA may only consider new information in "exceptional circumstances"; and the fact that, because the express provisions in Div 3 of Pt 7AA, read together with ss 473GA and 473GB, are an "exhaustive statement" of the natural justice hearing rule[60], procedural fairness is not the "lens" through which the content of procedural obligations imposed on the IAA is to be determined[61].
[58]Referring to BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1096 [14] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; 373 ALR 196 at 200.
[59]Referring to Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 226 [17] per Gageler, Keane and Nettle JJ.
[60]Migration Act 1958 (Cth), s 473DA.
[61]Referring to BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1099 [34] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; 373 ALR 196 at 204‑205.
In any event, the Minister contended, the IAA had no power under s 473DC to invite the appellant to interview for the purpose of assessing the appellant's demeanour, because an interview under s 473DC may be undertaken only for the purpose of obtaining "new information" that meets the "exceptional circumstances" threshold of s 473DD, and, in the Minister's submission, a witness's demeanour is not "new information", because it is not "information" in the sense of "knowledge about some particular fact, subject or event"[62]; or, if it is that, because the "information" (the appellant's demeanour) was before and considered by the delegate; or, in any event, because there were not "exceptional circumstances" sufficient to engage the power.
[62]Referring to Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 228 [24] per Gageler, Keane and Nettle JJ, as to the meaning of "information" in this context.
Alternatively, the Minister contended that Bromberg J was correct in holding that any failure on the part of the IAA to exercise such power as it may have had to interview the appellant was immaterial, and therefore not legally unreasonable, because the IAA decided the matter on the separate and independent basis of the country information regarding the change in circumstances from which it concluded that the appellant is no longer at risk.
The standard of review under Pt 7AA
In some circumstances, it is convenient to distinguish between standards of review by reference to classes or categories of appeal, such as "appeal by way of rehearing" or "hearing de novo"[63]. Thus, as the plurality observed[64] in Plaintiff M174/2016 v Minister for Immigration and Border Protection, although, under the scheme provided by Pt 7AA of the Act, the IAA lacks the ability to substitute its own decision for the decision of the Minister or the Minister's delegate[65], the IAA is "not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it". That was an accurate description of the process in that context inasmuch as the IAA is not constrained by a need to find demonstrable error in the decision the subject of review. But classifications such as "hearing de novo" are sometimes better understood as descriptive phrases than as categories defined by "immutable characteristics or inflexible boundaries"[66]. Invariably, the true character of any administrative review, like the true character of an appeal from a judicial decision, is a question of statutory intent[67] to be determined by reference to the jurisdiction, powers, composition and functions of the body from whose decision the review lies, as well as the powers and functions of the body in which the power of review is reposed. Hence, as will be explained, for the purposes of assessing whether it was legally unreasonable for the IAA to depart from credibility findings made by the Minister's delegate pursuant to Subdivs AB and AC of Div 3 of Pt 2 of the Act, the task of the IAA is more closely analogous to an appeal by way of rehearing.
[63]See, eg, CDJ v VAJ (1998) 197 CLR 172 at 201‑202 [111] per McHugh, Gummow and Callinan JJ; Allesch v Maunz (2000) 203 CLR 172 at 180-181 [23] per Gaudron, McHugh, Gummow and Hayne JJ; Fox v Percy (2003) 214 CLR 118 at 124‑125 [20] per Gleeson CJ, Gummow and Kirby JJ; Lacey v Attorney‑General (Qld) (2011) 242 CLR 573 at 596‑597 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[64](2018) 264 CLR 217 at 226 [17] per Gageler, Keane and Nettle JJ.
[65]Migration Act 1958 (Cth), s 473CC(2).
[66]Traut v Faustmann Bros Pty Ltd (1983) 48 ALR 313 at 322 per Lockhart J.
[67]See, eg, Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621‑622 per Mason J (Barwick CJ and Stephen J agreeing), 630 per Murphy J; Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267 at 273‑274 per Deane, Gaudron and McHugh JJ; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 202‑203 [11] per Gleeson CJ, Gaudron and Hayne JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 596‑597 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
The nature of the delegate's task
Although the delegate is not a judge, the process of delegate decision-making provided for under Subdivs AB and AC of Div 3 of Pt 2 of the Act is, in relevant respects, analogous to the process of judicial decision-making undertaken by a judge sitting alone. In particular, under s 54 of the Act, the delegate must have regard to all of the information submitted by an applicant in his or her application; under s 56, the delegate may invite the applicant to provide further information orally; under s 57, the delegate must disclose all relevant information to the applicant, explain why it is relevant and invite comment; and, under s 66, the delegate must provide written reasons for decision which, in the case of a fast track reviewable decision, must set out the delegate's findings of fact, refer to the evidence on which the findings are based and give reasons for decision[68]. Evidently, it is the legislative intent of the scheme that an applicant have the fullest opportunity to put his or her case in support of an application for a visa and that the delegate thoroughly consider the case as put, with the opportunity to interview the applicant, if the delegate considers it to be desirable to do so, and so derive the advantage of seeing and hearing the applicant explain the applicant's claims.
[68]Such reasons for decision must, in turn, be provided to the IAA in respect of each fast track reviewable decision referred under Pt 7AA: see Migration Act 1958 (Cth), s 473CB(1)(a)(iii).
The nature of the IAA's task
Likewise, although the IAA is not a court of appeal, the process of fast track review under Pt 7AA of the Act is, in relevant respects, analogous to a process of appeal by way of rehearing from the judgment of a judge sitting alone[69]. Upon referral of a fast track reviewable decision to the IAA, s 473CB requires the Secretary of the Department of Immigration and Border Protection to give to the IAA "review material" comprised of any material in the Secretary's possession or control considered by the Secretary to be relevant to the review. That includes all the material that was before the delegate and a statement that sets out the findings of fact made by the delegate, refers to the evidence on which those findings were based, and gives reasons for the decision[70]. The primary obligation of the IAA under s 473CA is to review the fast track reviewable decision by considering the review material "without accepting or requesting new information" and thus, ordinarily, without interviewing the applicant[71], and to make its own decision as to whether to affirm the decision on review or to remit the matter for reconsideration in accordance with such directions as the IAA is permitted to issue[72]. That procedure is, however, subject to other provisions of Pt 7AA, which are to be exercised within the bounds of reasonableness[73], such as s 473DC(1), which confers a discretion on the IAA to get "new information" (being documents or information that were not before the delegate that the IAA considers may be relevant), and s 473DC(3), which confers a discretion on the IAA to invite any person to provide new information in writing or in an interview.
[69]As to the scheme of Pt 7AA see BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1094‑1096 [3]‑[17] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ; 373 ALR 196 at 198‑201. See also Lacey v Attorney‑General (Qld) (2011) 242 CLR 573 at 597 [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[70]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 225-226 [15] per Gageler, Keane and Nettle JJ.
[71]Migration Act 1958 (Cth), s 473DB(1); Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 245 [88] per Gordon J.
[72]Migration Act 1958 (Cth), s 473CC(2).
[73]As that concept is explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332: see Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 227 [21] per Gageler, Keane and Nettle JJ, 245 [86] per Gordon J.
The significance of a delegate's assessment of demeanour
Parliament should not be taken to have contemplated the possibility that such stultification of its statutory goals might be avoided by the introduction of new, innovative administrative techniques such as video-recording interviews between an applicant and an "officer"[146] other than the delegate who makes the decision on behalf of the Minister. Such a new practice for fast track applicants might be expected to increase the work of the Department substantially since it would require both a video-recorded interview by an officer and a viewing of that interview by the delegate, who is required to have regard to that information[147]. And if, contrary to the view expressed above, a "limited review" required the Authority to be in the same position to assess credibility as the delegate, the video-recording of interviews before an officer would impose a new burden upon the Authority to scrutinise the demeanour of a referred applicant in most or all of the video-recorded interviews where the Authority has doubts about findings dependent upon the demeanour of the referred applicant. Although this scrutiny of a video-recording would be less time-consuming for the Authority than a fresh interview, it could still imperil the statutory goals of efficiency and speed, potentially without additional benefit[148], when compared with a process of the Authority making its independent assessment upon the basis of acceptance of demeanour findings by the delegate from which there is no legal basis to depart[149].
[146]As defined in Migration Act, s 5(1).
[147]Migration Act, s 56(1).
[148]Compare Fennell v The Queen (2019) 93 ALJR 1219 at 1233 [81]; 373 ALR 433 at 451-452 on the limits to credibility assessments.
[149]Compare Pell v The Queen (2020) 94 ALJR 394 at 401 [36], 402 [39]; 376 ALR 478 at 485-486 concerning the process of an appellate court proceeding upon the assumption that evidence is found to be "credible and reliable" in the course of making "its independent assessment of the evidence".
For these reasons, if the expression "de novo" were to be understood in literal terms as meaning a hearing entirely from the beginning then, as Nettle J explains, the review is not "de novo". It is a "limited" review. One way in which it is limited is that evidence that has already been presented before a delegate does not become "new information" simply by being re-presented to the Authority. Evidence which the delegate has heard cannot be reheard by the Authority in circumstances including the mere possibility that the referred applicant might give the evidence with a different expression. Just as the Authority cannot get, as "new information", a fresh presentation of documents, such as country information, obtained by the delegate and relied upon in making the decision under s 65[150], so too the Authority cannot get, as "new information", a fresh presentation of oral evidence that was before the delegate and relied upon in making the decision under s 65. In each case, the Authority is required to consider the findings made by the delegate by a review that is based upon, and which will usually refer to, that evidence[151]. Those findings can be rejected by the Authority unless, in the process of doing so on the papers, such reasoning would be legally unreasonable.
[150]Migration Act, s 473DC(1)(a).
[151]Migration Act, s 473CB(1)(a).
Unreasonableness in the process of decision-making
There was no suggestion on this appeal that the ultimate outcome reached by the Authority, that the decision of the delegate should be affirmed, was legally unreasonable in the sense that it was not an outcome that was reasonably open within "an area of decisional freedom"[152]. The issue was instead whether the process of reasoning deployed by the Authority, which unlike that of the delegate did not involve alternative paths of reasoning to the outcome, could be characterised as legally unreasonable. To adopt the distinction made by the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Singh[153], the legal unreasonableness in issue on this appeal was process focused rather than "outcome focused".
[152]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 351 [28].
[153](2014) 231 FCR 437 at 445 [44].
During the oral hearing of this appeal the Minister accepted that "the ultimate decision can contain jurisdictional error by reason of a legally unreasonable exercise of a step along the way". The Minister then conceded that, subject to the issue of materiality (which, depending upon the location of the onus, might better be expressed as immateriality[154]), if "a delegate makes a decision that is substantially based on demeanour then the Authority will need to have an independent evidentiary basis to depart from that decision" and that it would be legally unreasonable to reach a different view "without forming its own view about demeanour".
[154]OKS v Western Australia (2019) 265 CLR 268 at 280-282 [34]-[38]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1104-1105 [66]-[67]; 373 ALR 196 at 212-213. Compare Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 445 [46] with 459-460 [93]-[95].
The concession of the Minister concerning jurisdictional error based on unreasonableness in the process of decision-making could not be accepted if it were to be understood as based upon a ground of legal unreasonableness which encompassed the process of decision-making generally, unmoored from the particular statutory duties, functions, and powers that govern that process. The recognition of such a new ground of review based upon legal unreasonableness in the abstract process of decision‑making would be a very large step. At worst, such a step could be destructive of a distinction between the legality of the exercise of administrative power and the "merits" of that exercise. The "merits" of an exercise of administrative power include the lawful exercise of power which involves "administrative injustice" or mere "error"[155]. At best, such a step would go beyond the usual, often unacknowledged, "ebb and flow" by which the judiciary has eroded this distinction[156].
[155]Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.
[156]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed (2017) at 263 [4.690].
A more orthodox conception of judicial review for legal unreasonableness in the process of decision-making recognises an implication of a duty of legal reasonableness only in the performance or exercise of a statutory duty, function, or power. Hence, decisions of this Court have recognised an implication of a requirement for legal reasonableness in the performance or exercise of specific statutory duties, functions, or powers such as the power to adjourn a review hearing[157] or a power for the Authority to invite a person to give new information in writing or at an interview[158]. And in Minister for Immigration and Citizenship v SZMDS[159], in taking an approach that was described as focusing upon legal unreasonableness in "the process of reasoning from facts and inferences" rather than in the outcome[160], a particular duty upon which Gummow A‑CJ and Kiefel J focused was the obligation of the Refugee Review Tribunal under s 430(1) of the Migration Act[161] to set out findings on material questions of fact[162].
[157]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, especially at 362 [63] considering Migration Act, s 363(1)(b) (as it then stood).
[158]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at 227 [21], 245 [86], 249 [97], considering Migration Act, s 473DC(3).
[159](2010) 240 CLR 611.
[160]Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed (2017) at 266 [4.720], comparing Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 625 [40]-[42] (Gummow A‑CJ and Kiefel J) with 647‑648 [130] (Crennan and Bell JJ).
[161]As it then stood.
[162]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 623 [33].
A passage in the decision of the Supreme Court of Canada in Dunsmuir v New Brunswick[163], to which reference is made in the reasons of Kiefel CJ, Bell, Gageler and Keane JJ[164], might, on one view, call into doubt whether a duty to give reasons can be the subject of a requirement of legal reasonableness independently of whether the outcome is legally reasonable. That passage was later considered by the Supreme Court in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board)[165], which explained that "the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes". Such a conception could not justify the Minister's concession of legal unreasonableness by the Authority in reaching its own decision about demeanour because it was not suggested that the ultimate outcome reached by the Authority fell outside the "range of possible, acceptable outcomes"[166].
[163][2008] 1 SCR 190 at 220-221 [47].
[164]At [20].
[165][2011] 3 SCR 708 at 715 [14].
[166]Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221 [47].
More recently, however, the Supreme Court of Canada has taken a broader view of the decision in Dunsmuir and the role that reasons can play in judicial review for legal unreasonableness. In Canada (Minister of Citizenship and Immigration) v Vavilov[167] seven judges of that Court held that it was "mistaken" to understand the Newfoundland and Labrador Nurses' Union decision as confining review for legal unreasonableness only to the outcome. Hence, a decision with "formal reasons that fail to justify [it]" is invalid "[e]ven if the outcome of the decision could be reasonable under different circumstances" because "it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome". Of course, where there is no specific duty, function, or power which is said to have been unreasonably omitted or exercised, including where there is no duty to give reasons and none are given, then the focus of reasonableness can only be upon the ultimate outcome[168].
[167](2019) 441 DLR (4th) 1 at 70-71 [95]-[96].
[168]Canada (Minister of Citizenship and Immigration) v Vavilov (2019) 441 DLR (4th) 1 at 86 [138]. See also Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 446 [45].
The Minister's concession on this appeal can be justified in light of the duty upon the Authority to set out its reasons for its decision, contained in s 473EA(1)(b) of the Migration Act. For the reasons above, that duty can be understood as attracting the implied duty of reasonableness in its exercise. As Nettle J explains, the step in the Authority's reasoning process involving the rejection of the demeanour assessment by the delegate was a step that was essential in the single reasoning process leading to the Authority's conclusion. Although this was not a case where an essential step in the reasoning process was unexpressed[169], the essential step that was expressed involved substantial error.
[169]cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at 224 [40] in the context of s 501G(1) of the Migration Act (as it then stood).
For these reasons, the Minister's concession should be accepted. It is necessary to emphasise that there was no submission on this appeal that the Authority's error in its reasoning process, whilst significant, was insufficient to justify a conclusion of legal unreasonableness in the performance of the duty contained in s 473EA(1)(b). It suffices to say that factors which might point to the threshold for legal unreasonableness in the performance of this duty to give reasons being high, despite the importance of the issue being decided, include: the historical background against which Parliament legislated[170], the statutory context emphasising the limited nature of the review and the need for efficiency and speed, and authorities which, using strong adjectives, had described reasons as leading to jurisdictional error where the reasons fail to provide an "intelligible justification"[171] for the decision or are "irrational or illogical irrespective of whether the same conclusion could be reached by a process of reasoning which did not suffer from the same defect"[172].
[170]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230. See Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at 586 [135].
[171]Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at 446‑447 [47]. See also Tsvetnenko v United States of America (2019) 269 FCR 225 at 243 [83].
[172]Duncan v Independent Commission Against Corruption [2016] NSWCA 143 at [287]. See also Minister for Immigration and Border Protection v Haq (2019) 267 FCR 513 at 534 [89].
Conclusion
The appeal should be allowed and orders made as proposed by Nettle J.