Documents covered by invalid s 438 certificates might demonstrate denial of procedural fairness or apprehended bias

MZAFZ is not dead yet. In Minister for Immigration and Border Protection v CQZ15 [2017] FCAFC 194  at [86] the Full Court confirmed the possibility that an applicant might want to (and be entitled to) demand production of documents covered by an invalid s 438 certificate, because those documents might show denial of procedural fairness or apprehended bias.

‘Exceptional circumstances’ is not limited to whether the applicant could have provided the information earlier

BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 concerned the IAA’s exclusion of information on the sole basis that the applicant could have but did not provide it to the delegate. White J said at [46]-[47] this was an unduly narrow interpretation of ‘exceptional circumstances’.

His Honour stated:

[41] Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional…

[43] … exceptional circumstances will be those which are out of the ordinary course and which will justify the new information being considered even though it had not been provided to the Minister at the time of the s 65 decision. A variety of matters may be capable of bearing upon those circumstances. (emphasis added)

His Honour also observed at [34]-[35] that the requirements in s 473DD(a) and (b) overlap, so that even though they are cumulative, the fact that information could have been provided to the delegate earlier but was not cannot be decisive. Thus, information that could have been provided earlier but was not (s 473DD(b)(i)) might nonetheless be personal information that had it been known, would have affected the decision (s 473DD(b)(ii)), and in light of that significance (or otherwise), there was an ‘exceptional’ circumstance (s 473DD(a)).

His Honour’s reasoning was endorsed in Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [102]-[112].

The Full Court left open the possibility that the IAA failing to consider a particular piece of information in deciding whether there were ‘exceptional circumstances’ may constitute jurisdictional error: [114].

Failure of judge to give adequate reasons

This can be a failure to exercise jurisdiction. See COZ16 v Minister for Immigration and Border Protection [2018] FCA 46 at [31]-[56] and DAO16 v Minister for Immigration and Border Proteciton [2018] FCAFC 2.

In COZ16, after setting out the principles, Griffiths J said:

[47] In my respectful view, for the following reasons there has been a constructive failure to exercise jurisdiction in this case.  First, the brevity of the primary judge’s substantive reasoning for rejecting the two grounds of judicial review has already been noted.  The primary judge explained in six short sentences in [50] and [51] as to why ground 1 was rejected (see [15] above).  The primary judge’s reasons for rejecting ground 2 are set out in [53] of his Honour’s reasons for judgment.  In both instances, the primary judge’s reasons amount to little more than assertions or conclusions.  In particular, in respect of ground 1, the primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE.  His Honour said that this matter had been expressly taken into account in the IAA’s reasons “as summarised above”.  No specific cross-reference was given to any particular part of the IAA’s reasons for decision which the primary judge considered supported his conclusions.  In particular, no specific cross-reference is given for his Honour’s conclusions that:

(a)          the IAA took into account the appellant’s siblings’ suspected links to the LTTE; and

(b)          there was no failure by the IAA to consider the familial connection of the appellant to his siblings.

[48] These difficulties are not overcome by the fact that in [37] of the IAA’s reasons for decision it stated that it had considered the appellant’s circumstances “in their totality”.  It seems, however, that the primary judge viewed this statement as determinative (see [51] of his Honour’s reasons).  Whether in fact the IAA considered the appellant’s circumstances in their totality fell to be determined not by a mere assertion to that effect by the IAA, but by a careful objective analysis of the IAA’s reasons and the relationship of those reasons to the claims and submissions advanced before it by the appellant.  The primary judge conducted no such analysis or evaluation and simply accepted and acted upon the IAA’s bald assertion. 

[49] Similar difficulties are presented by the inadequacy of the primary judge’s reasons for rejecting ground 2.  In [52] of his Honour’s reasons for judgment, the primary judge referred to the IAA’s identification of the appellant’s mother as a person who had complained to the HRC, yet she and other members of her family continued to reside in Sri Lanka in the absence of any harm during the period since the appellant left Sri Lanka.  His Honour then said at [53] that the IAA’s adverse reasoning “was open on the material and cannot be said to lack an evident and intelligible justification”.  As the Full Court observed in DAO16 at [48], to simply state that adverse findings were open and cannot be said to lack an evident and intelligible justification is merely to assert a conclusion.

[50] As to the appellant’s complaint that the IAA failed to give adequate reasons as to why he was not at risk, the primary judge referred at [53] to the significance which the IAA attached to the appellant’s release and its finding that he suffered no harm from the interrogations.  Reference was also made to the IAA’s findings that neither the mother nor other members of the appellant’s family been harmed since he left Sri Lanka.  What is missing from the primary judge’s reasons, however, is any attempt to address the appellant’s reliance on the Guidelines, or the significance of his uncontested evidence that his siblings were still missing. 

[51] Nor does the primary judge adequately explain why he did not accept the significance in the appellant’s case of his claim that he had been threatened in August 2012 with the same fate if he were to continue to complain to the authorities about their disappearance.  This threat, which the IAA found had been made, arguably put the appellant in a different position from his mother.  It is possible that the primary judge had this claim in mind in [53] of his reasons for judgment and the reference there to the appellant having “suffered no harm in relation to the interrogations that then subsequently took place…”.  But it is far from clear that this is what his Honour had in mind, bearing in mind that the appellant’s complaint was not that he had suffered harm in relation to the August 2012 interrogation, but rather that he was threatened with harm on that occasion if he persisted with his complaints concerning his siblings’ disappearance.  This ambiguity further exposes the inadequacy of the primary judge’s reasons. 

[52] These matters were relied upon by the appellant before the IAA.  They were also prominent in his judicial review challenge before the FCCA.  In my respectful view, the matters had to be directly addressed by the primary judge, but they were not.  Both the appellant and any reader of his Honour’s reasons for judgment is left to speculate as to why these matters were not viewed to be relevant and significant, and arguably provided some support for the appellant’s judicial review challenge. 

[53] Secondly, and related to the first matter, the primary judge never grappled directly with important elements of the appellant’s primary claim.  That claim was that the IAA fell into jurisdictional error in failing to consider the risk to the appellant by virtue of his imputed links to the LTTE by reason of his family association with the two missing siblings.  At the forefront of this claim the appellant relied on three paragraphs in the Guidelines which identified “risk profiles”, in particular sub-paragraph 6.  The primary judge made no reference at all to the Guidelines.  Nor did he explain why the appellant’s reliance on them was misconceived.

[54] It may well be that there is an adequate explanation as to why the Guidelines did not apply.  But, if that is so, it is not evident from a fair reading of the primary judge’s reasons for judgment.  The appellant (and, indeed, any other reader of the reasons) is simply left to speculate as to why relevant parts of the Guidelines, which the appellant squarely raised before both the IAA and the primary judge, did not indicate that he had a risk profile.  The primary judge found that the IAA had taken into account the siblings’ suspected links to the LTTE and also that it did not fail to consider the familial connection.  But, as noted above, the primary judge made no express cross-reference to any part of the IAA’s reasons for decision to underpin these assertions.  One rhetorically asks whether his Honour had in mind the IAA’s reasons at [10] and/or [13] of its reasons for decision.  If so, a related question arises as to how these paragraphs provide an adequate response to the appellant’s claims.  It was an important part of his case that, in spite of all of the reforms which have taken place in Sri Lanka in recent years, his two siblings remained missing and that he was threatened with the same fate if he continued to complain about their disappearance.

[55] It goes without saying that these ambiguities and shortcomings in the primary judge’s reasons for judgment are not resolved by reference to what was said in the transcript.  Reasons for judgment should speak for themselves.  They are directed not only to the parties but to the community at large who will not have easy access to the transcript.

[56] It is proper to acknowledge that the FCCA’s migration jurisdiction is a high volume and challenging jurisdiction.  Equally, however, it must be recognised that that Court is exercising an important judicial review jurisdiction and litigants are entitled to expect that the well-established features of the judicial process will be provided.  Those features include not only the requirements of procedural fairness, but also that the Court will provide adequate reasons for its decision and properly address fundamental aspects of the parties’ respective cases.  Depending on the circumstances of any case, including the detail and complexity of the submissions which are made, it may be appropriate to provide relatively brief reasons for rejecting a party’s case.  It may also be appropriate in some cases for the Court to deliver ex tempore reasons for decision, but this does not mean that the Court is somehow excused by that method of decision-making from adequately disclosing the Court’s reasoning processes, having regard to the general principles and considerations outlined in [32]-[46] above.

 

 

The concept of an “integer”

See MZANX v Minister for Immigration and Border Protection (2016) 314 FLR 461 (reversed on appeal for different reasons):

[25]  Surprisingly little judicial attention has been devoted to the concept of an “integer” of a claim, as that phrase was coined in Htun. That may explain why in 2013 Robertson J in SZRKT took the view that the authorities illuminated no clear distinction between “claims” on the one hand and “mere” items of evidence on the other. The phrase “integer” seems to have been used interchangeably with “component of claim” (Htun) yet in Tran v Minister for Immigration and Multicultural and Indigenous Affairs (Kiefel, RD Nicholson and Downes JJ) the opportunity for exposition was not taken up as the Full Court of the Federal Court of Australia merely stated that the tribunal was “required to deal with all integers of an applicant’s claim”, without providing elucidation about what an integer was. His Honour Judge Manousaridis has held that an “integer” may be taken to be the equivalent of a material question of fact. His Honour so held in SZURJ v Minister for Immigration and Border Protection that an integer was a meaningful subset of material questions of fact, which, in combination with other meaningful subsets of material questions of fact, ought to lead the Tribunal to conclude in a particular way. In my respectful view, his Honour’s consideration of the subject is accurate. It appears to be one of the only statements of principle on point. The sheer volume of decided migration cases in the federal jurisdiction over the last 10 years has overtaken observations in learned writings of the early millennium of which an example is Caron Beaton-Wells, ‘Judicial Review of Migration Decisions: Life After S157’. So far as my research has uncovered, the consideration given to the subject of integers by his Honour Judge Manousaridis is the best and only treatment on the point.

MZANX v MINISTER FOR IMMIGRATION & BORDER PROTECTION BC201608646

Jurisdictional and non-jurisdictional error in inferior courts

See Craig v The State of South Australia (1995) 184 CLR 163 esp at 179-180:

[T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

See also discussion in SZVDC v Minister for Immigration and Border Protection [2018] FCAFC 16 in the context of applications under s 39B of the Judiciary Act in relation to a Federal Circuit Court judge’s refusal to extend time under s 477 of the Migration Act.

Improper for Tribunal to selectively use country information

See eg ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721; 242 FCR 11 at [84] and [86]-[87] and [94].

  1. The statement in the 2011 UN Report to the effect that police and legal aid providers mostly investigated serious cases of domestic violence cases is consistent with the statement in the 2013 USDOS Report to the effect that authorities treated domestic violence cases as civil ones unless they involved injury to more than 11 percent of the victim’s body. These statements qualify the remaining portions of the reports concerning the existence of domestic violence laws in Vietnam and the commitment of the Vietnamese government to address the issue. The qualifications were of great importance in the application of the statutory criteria to the circumstances of the appellant’s case such that the Tribunal was not entitled to ignore them. The qualifications precluded any reasonable inference that might otherwise have been drawn from the reports to the effect that domestic violence laws in Vietnam were effectively implemented and practically protective.
  2. As I have mentioned, the written submissions of the appellant’s migration agent contained an extract from the 2013 USDOS Report which the Tribunal states it had considered. Given that the Tribunal had read the submission, and given its statutory obligation to include in its reasons for decision the evidence upon which it based its material findings of fact, I infer that the Tribunal considered the statement contained in the 2013 USDOS Report to be irrelevant to the material findings of fact it was bound to decide: see subs 430(1)(c) and (d) of the Act and the principles stated by the Full Court in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 (at [49] – [51]). That inference is supported by the absence in the Tribunal’s reasons of any reference to the very similar paragraph from the 2012 USDOS Report, notwithstanding that the Tribunal extracted or paraphrased all other relevant parts of that report in so far as it concerned the treatment of women in Vietnam (except in relation to rape).
  3. In light of the observations I have made above, the Tribunal’s statement at [62] of its reasons that “the reports are varied on [the law’s] effectiveness” has no support in the country information materials the Tribunal considered: none of the information contained any statement or opinion to the effect that the laws were effectively implemented by the Vietnamese authorities.  Nor was there contained in the country information any statistics from which the Tribunal could independently and indirectly infer that domestic violence laws in Vietnam were effectively implemented.  The country information relied upon by the Tribunal states that the Vietnamese Government did not publish statistics recording the incidence of arrest, prosecution and conviction of perpetrators.
  4. Generally speaking, it may be open to the Minister (or, on review, the Tribunal) to cherry pick from among various sources of country information so as to form, by its own evaluation of the selected material, its own conclusions of fact.  It may also be accepted that, as a general rule, an administrative decision that involves the weighing and evaluation of countervailing considerations is not a decision amenable to interference by a Court on judicial review merely because the Court might evaluate the considerations differently or accord different considerations more or less weight than that accorded by the Tribunal.
  5. However, the material before the Tribunal did not contain conflicting statements as to the effectiveness of domestic violence laws in Vietnam so that the Tribunals’ decision could properly be viewed as one involving the preference of one body of evidence over another. The statements and opinions expressed in the reports concerning the effectiveness of the law were consistent, not countervailing. They were not contradicted by any other material to which the Tribunal referred.

  1. As I have mentioned, the Tribunal stated to the appellant, in the course of its hearing, that there was “no evidence” that the Vietnamese police do not act on reports of domestic violence. The conclusion ultimately reached by the Tribunal indicates that it reasoned from that premise to a conclusion that the Vietnamese authorities could and would act on reports of domestic violence (including threats of domestic violence) that might be made by the appellant. It may well have been open to the Tribunal to refer to the contradictory material and give a reasoned explanation for rejecting it, but that is not what it has done. It instead proceeded upon the false premise that there was no evidence contradicting its conclusion at all.

Tribunal still required to consider cases not expressly articulated

See eg NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263:

The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. (see [58])

Findings of fact apparently based on credibility cannot shield what is otherwise incontrovertible

A tribunal of fact cannot insulate its fact-finding by asserting that it is all based on credibility. This obvious proposition was explained in Fox v Percy (2003) 214 CLR 118:

[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(footnotes omitted)

Don’t analyse ‘real chance’ by numbers

See Mansfield J in DZADQ v Minister for Immigration (2014) 143 ALD 659 at [65]:

The Tribunal was satisfied that the appellant was as a Shia Muslim at risk of serious harm by reason of his religion. The Tribunal however classified that risk as being too remote. In my view, the essential link in the chain of reasoning connecting the two findings was missing. Besides quoting that there are over 40 million Shia Muslims in Pakistan, the Tribunal, in its published reasons, did not consider the evidence that underpinned its ultimate finding that the risk was remote. In my view, its task was not done by the numerical analysis. It should have considered the appellants’ particular circumstances. If it be the case that there is nothing to distinguish the appellant from other Shia Muslims in Pakistan, provided the country information (common to both the delegate and the Tribunal) stands, it is hard to see how the conclusion of the Tribunal is sustainable. If there were some small or local sectarian violence, the picture the country information indicated would not be so dramatic or compelling. To the contrary, the picture appears to be that it is coordinated, pervasive and effective, and the Taliban are presented as a cogent and broadly spread instrument of its application. It should not be adequate, in the face of such data, to say in effect that although a significant number of Shia Muslims will be severely harmed or killed by that pervasive targeted violence because you as a target group are numerous, the chances of any particular one of you being as harmed or killed is not a real one or is fanciful.