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A representation as to ‘another reason’ does not have to meet any threshold of column-inches before it must be considered

In Tran v Minister for Immigration and Border Protection [2019] FCAFC 126 at [123], Greenwood J said:

… The statute suggests engagement with the “representations”, “about” revocation going to a “reason or reasons”, not every individual statement, line by line, set out in the representations although, plainly enough, the representations must be meaningfully read and considered as a whole (or, put another way, see [113] of these reasons).
It may be, however, that in the relevant case one or two sentences in the representations may contain highly material information said to support “another reason” for revocation in which event, the repository of the power would need to engage, as a matter of substance, with that information in those sentences.

Charlesworth and O’Callaghan JJ agreed with this statement of principle (at [152]).

The limits of DGZ16 in rejecting an argument that it was unreasonable to fail to exercise the power in s 473DC

For some time, it had been thought that the argument that it was unreasonable for the IAA to fail to exercise its power in s 473DC to obtain new information if the IAA was proposing to make a different and adverse conclusion to that of the delegate was limited to where the delegate did not consider relocation (or a particular place of relocation) and the IAA affirmed the refusal based on relocation (or to a different place of relocation).

This has been confirmed as wrong.

In DPI17 v Minister for Home Affairs [2019] FCAFC 43, the IAA rejected the applicant’s claim to have been sexually abused, even though the delegate accepted the claim. The IAA did not put to the applicant that it intended to reach a different finding, and seek new information.  Griffiths and Steward JJ said at [40]-[42]:

It is appropriate to say something more about DGZ16 and the Minister’s strong reliance upon it. In particular, the Minister pointed to what the Full Court said in DGZ16 at [72] (which is set out in [32] above). That passage should be read in the context of the particular facts and circumstances of that case. As the Full Court had earlier emphasised at [70], that was not a case where the IAA had decided a point which was not the point decided by the delegate. Instead, as is made clear at [74], the Full Court was responding there to a contention made by the appellant there that, merely because the IAA had before it the appellant’s submissions and had accepted the new information in those submissions, the IAA was obliged, whether as a matter of legal reasonableness or otherwise, to invite the appellant to respond once the IAA formed specific reservations about the appellant’s case. It was in this context, and with particular reference to the circumstances of that case, that the Full Court stated at [76] that it was open to the IAA to disagree with the delegate’s evaluation of the material without providing the appellant with an opportunity to respond.

These statements by the Full Court should not be viewed as establishing a general principle that the IAA is never obliged to provide the appellant with an opportunity to respond if the IAA disagrees with the delegate’s evaluation of material.

It is significant that the Full Court in DGZ16 viewed the case there as being different from that in CRY16 (where the IAA affirmed the delegate’s decision to refuse the SHEV but on a different basis of reallocation which had not been addressed by the delegate). In DGZ16, their Honours expressly stated at [70] that in DGZ16 that “there may be circumstances in which it is legally unreasonable not to consider the exercise of the discretionary power in s 473DC(3)”. This statement serves to underline the central importance of paying close attention to the particular facts and circumstances in which the issue of legal unreasonableness is raised.

Mortimer J’s also reasons set out the particular facts and importance of being able to observe demeanour in cases where sexual abuse are claimed (the IAA did not have the benefit of observing the applicant in the interview). However, her Honour’s reasons do not suggest that unreasonableness is limited to this kind of fact scenario, and the applicability of DPI17 is not confined in this way.

Estoppel and public law duties

In Asaad v Minister for Home Affairs (No 2) [2019] FCAFC 214 the Full Court explained the interaction of estoppel and public law duties.

Care however must be taken to not interpret the Court’s observations as laying down a blanket rule that it will always be lawful for a Minister to revisit the exercise of a discretion. For example, when it is the re-exercise of the discretion in relation to the same set of facts, it may be that the subsequent exercise is unlawful as an abuse of process, or an exercise of the duty for an improper purpose, or otherwise invalid because of bad faith. Assad does not preclude these conclusions in the appropriate scenario.

Irrationality and Tendency reasoning in speculating that there will be a future ‘unacceptable risk’ of re-offending

In Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132, Mortimer J examined the circumstances of the decision-maker making findings of fact, when the subject-matter of those findings were not mandatory relevant considerations.

Generally speaking, it is difficult to identify any mandatory consideration going to the exercise of the discretion in s 501CA(4)(b)(ii) to revoke a mandatory cancellation of a visa due to the existence of ‘another reason’, when the decision is made by the Minister (or Assistant Minister) and so he or she is not bound by any directions made under s 499.

Mortimer J said:

24. It is true that Mr Splendido could have included details of the facts and circumstances of his offences in his “representations” to the Assistant Minister, which may have provided more information about his offending conduct. Nevertheless, there was no onus on Mr Splendido to establish that he posed no risk to the Australian community, or that he posed an “acceptable” risk. That is significant if the Assistant Minister continues to contend (see [103] below) that this matter is not a legally relevant consideration. If the Assistant Minister chose to put that matter at the forefront of his reasoning (despite contending he was not obliged to consider it), then the Assistant Minister was required to have a probative basis to make findings of fact about the existence of any such risk. For example, he could not avoid this requirement by relying on a proposition to the effect that if Mr Splendido wished to submit he posed no risk, he needed to establish that fact positively through documents such as sentencing remarks.

25. At [79] of the Assistant Minister’s reasons, he stated that Mr Splendido was “on notice that his criminal conduct was calling his visa status into question”, and yet still committed further offences. The Assistant Minister’s finding was based in part on a finding (in the first sentence in [79]) that Mr Splendido “received a formal warning from the Department” (my emphasis) on 2 May 2013. The date 2 May 2013 is in fact the date of the warning letter.

26. On the material before the Court, the Assistant Minister did not have any information before him which would support a finding of the kind he made in the first sentence of [79] of his reasons. The warning letter was addressed to Mr Splendido at a private residential address in suburban Melbourne. There is no evidence whether he was living there at that time. There is no evidence whether he received it. The copy of the acknowledgment which the letter instructed Mr Splendido to sign and return is unsigned, and there is no evidence it was returned by Mr Splendido. There is no acknowledgment in the other material submitted by Mr Splendido that he received that warning letter. There is no basis in the evidence for a finding that Mr Splendido received the letter, or (more importantly) that he knew the potential consequences for his ability to remain in Australia if he committed further offences after the notice had been issued. Given Mr Splendido had, on 13 July 2012, been sentenced to a period of 15 months imprisonment to be served concurrently with his (then) restored suspended sentence, it would seem unlikely that in May 2013 he was residing at a private residential address in suburban Melbourne.

27. It is true, as the Assistant Minister’s reasons note, that on an earlier occasion, in approximately August 2012, Mr Splendido had acknowledged receipt of a letter containing a “notice of intention to consider cancelling a visa under subsection 501(2) of the Migration Act 1958”. That notice was not in evidence, nor was there any evidence about the circumstances in which Mr Splendido received the notice, or the circumstances in which he signed the acknowledgment in August 2012, at which point in time it seems likely (for the same reasons I have expressed above) that he was incarcerated. On this occasion in August 2012, he gave his address as Beechworth Correctional Centre in a “Personal Details Form” dated the same date as the signed acknowledgment. Therefore, the circumstances in which he signed the acknowledgment, and what he understood by it, might have called for some examination and reflection.

28. While it might therefore have been open to the Assistant Minister to find that Mr Splendido was “on notice” in August 2012 that his criminal conduct was “calling his visa status into question”, even that finding had the slimmest of probative bases without any evidence (so far as the Court can tell) about the circumstances in which Mr Splendido signed the acknowledgement. Further, certainly on the evidence before the Court, the additional finding by the Assistant Minister about receipt of the 2013 warning letter was not supported by any evidence.

29. In itself, whether or not Mr Splendido received the 2013 warning letter and understood its contents, or had any similar understanding in mid-2012 because of earlier Departmental correspondence, might have been of marginal relevance on judicial review and on this appeal. However, when “facts” to this effect are found by the decision-maker, and then used in a reasoning process to conclude that, in substance, Mr Splendido deliberately chose to contravene the law when he knew his migration status in Australia was at risk, then there must be probative evidence of the underlying fact of receipt, and (by extension) Mr Splendido’s understanding of the letter’s contents.

(emphasis added)

The Assistant Minister also used the bare fact that there had been historical offending, to conclude that there would be a likelihood (as opposed to unacceptable ‘risk’) of future reoffending.  The leap in this logic was discussed at [72]-[85].

 

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]