All posts by Min

The duty of counsel appearing for the Minister

In DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [10], Colvin J said:

a submission by counsel appearing for the Minister that a decision under appeal is not attended with any doubt, or sufficient doubt or error must reflect the independent judgment of counsel after considering all of the materials in performance of counsel’s paramount duty to the Court. It is not to be based upon the lack of particularisation of grounds by an appellant who is appearing in person.

Assessing the ‘reasonably foreseeable future’ is not a licence for the decision-maker to engage in guesswork

Mortimer J stated in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 at [60]:

The “reasonably foreseeable future” is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience. The purpose of the “well-founded” aspect of the Art 1A test is, after all, to be an objective but realistic and accurate assessment of what risks a person may face in the practical “on the ground” circumstances she or he will be living in. Using “reasonably foreseeable” also carries with it a rejection of an assessment which becomes too remote from a person’s expected life circumstances. These are not matters which can be expressed sensibly with any more precision

No reasons required for harm when assessing complementary protection

It is surprising how often people still think that complementary protection requires the identification of a motivation or reason for the feared harm. The proposition is plainly wrong.

In AON15 v Minister For Immigration and Border Protection [2019] FCAFC 48 at [3], Besanko J said:

Furthermore, the appellant submitted that no Convention “nexus” is required to attract the operation of the complementary protection criterion. I accept both of these propositions.

Of course, this is different to reasoning along the lines of that since the asserted motivation for the harm is not believed (as opposed to not connected to some kind of Convention nexus), there is no real risk. This kind of reasoning is plainly permissible.

Illogicality, irrationality (and unreasonableness) can be used to challenge intermediate facts, not just the end decision

The contention to the contrary is still sometimes agitated by the Minister, but that is plainly wrong. If authority is needed, see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]:

… Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

Part 7 and 7AA compared: breaches by Secretary of obligation to provide documents to reviewing body

In Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40 the Full Court unanimously dismissed the Minister’s appeal, finding that on those facts, the Secretary’s breach of his obligation under s 473CB to provide all relevant documents to the IAA disabled the IAA from completing its review task. At [43]-[51] the Court rejected the Minister’s submission that the missing documents could not have made a difference to the outcome (applying SZMTA), essentially because the Minister’s submissions were ones as to the merits.

CPA16 follows EVS17 v Minister for Immigration and Border Protection [2019] FCAFC 20 in which the Full Court discussed the differences between the obligations of the Secretary under Part 7 (s 418) and Part 7AA (s 473CB). There, the Court rejected the proposition that cases such as WAGP were relevant to breaches of the obligation under Part 7AA. The effect of EVS17 and CPA16 is that a breach of the obligation under Part 7AA is more likely to be a jurisdictional error than of the equivalent obligation under Part 7, with the focus on the materiality of the withheld information and whether there is a possibility that the withheld information could have made a difference.  This is in contrast to WAGP and SZOIN, which, if correct, appear to limit findings of jurisdictional error to something more than mere materiality (see eg SZOIN at [64]: ‘at least without something more’).

 

The ‘fake news’ of Direction 75

In Omar v Minister for Home Affairs [2019] FCA 279, Direction 75 was found not to be sufficient to overcome the defects defects identified in Direction 65 by BCR16.

In particular:

  • whether a person is owed non-refoulement obligations is not the same as whether a person might be granted a protection visa: see [58], [76], and also Ali at [28]
  • whether a person is owed non-refoulement obligations and whether to comply with those questions is not the same as merely assessing the risk of harm, but instead also requires consideration of the significance of adhering to international law as ‘another reason’ to revoke a cancellation (notwithstanding s 197C, because s 197C/198 operate after a refusal to revoke a cancellation): see [65]-[66]

Non-refoulement obligations extend to individuals in respect of whom a determination of refugee status is yet to be made

See Omar v Minister for Home Affairs [2019] FCA 279, [55]:

The non-refoulement obligations in Art 33 also extend to individuals in respect of whom a determination of refugee status is yet to be made. This was emphasised by French J (as his Honour then was) in Patto v Minister for Immigration and Multicultural Affairs[2000] FCA 1554; 106 FCR 119 at [28], where his Honour stated that “[a]s a matter of necessary implication, [Art 33] will apply to persons seeking protection under the Convention whose entitlement has not been established”, and that “[t]he obligation of non-refoulement is of fundamental importance notwithstanding that individuals may not have been recognised as refugees”.

Evidence from an applicant is still ‘evidence’, and no legal requirement for corroboration

If there was ever a need for authority for the proposition that what an applicant says or writes is still ‘evidence’, and that there is no legal requirement for evidence to be corroborated before it can be accepted (and the increasing trend in Tribunal and IAA decisions suggests there is such a need), see NAKD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 321 per Hill J at [6].

Whether a document can be ‘constructively’ before a delegate such that it is not ‘new information’

In DTK17 v Minister for Immigration and Border Protection [2018] FCAFC 170 there was discussion of whether a particular document was constructively before the delegate so as to render it not ‘new information’ for the purposes of the IAA. The impugned document was an ‘issues paper’ concerning Hazaras in Afghanistan. The Full Court held that such a document was not ‘before the Minister’ (or a s 65 delegate) such that it was ‘new information’ for the purposes of the IAA.

There appears not to have been any argument about the significance of s 499 (if the document was such a document which a s 499 direction required the delegate to consider). If the document was required to be considered pursuant to a direction made under s 499, the answer as to whether the document was ‘new information’ may be different (unless the test is confined to a document which is literally before the person, which appears to be what the Full Court intimated: [38]).

The Full Court’s rejection of the argument also does not answer the question of whether a document incorporated by reference in another document that was actually before the delegate, is itself constructively ‘before the Minister’ for the purposes of s 473DC.

‘Credible’ personal information in s 473DD requires assessment only as to whether it could be true, not is actually true

The two limbs of s 473DD(b) are expressed as alternatives: CSR16 v Minister [2018] FCA 474 at [37]. Justice Bromberg there went on to conclude that “all that the ‘credible’ element of s 473DD(b)(ii) criteria requires is the Authority’s satisfaction that the ‘new information’ is information which is open to be or capable of being accepted by the Authority as truthful (or accurate, or genuine)”: [2018] FCA 474 at [41]. “It is only at the deliberative stage of its review”, said his Honour, “that the Authority will be required to determine whether or not the ‘new information’ is true”.