Author: Min

New information obtained under s 473DC must necessarily mean there are exceptional circumstances

One would have thought this was obvious, despite attempts to constrain the meaning and operation of s 473DD and excessively defer to the IAA. The High Court has now confirmed that proposition. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:

.. 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].

It is not to the point that the Minister as personal non-compellable discretions that could bring about a different result

There are many cases which confirm that it is not to the point that the Minister as personal non-compellable discretions that could bring about a different result.

See eg NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [107]:

…it is not relevant to this circumstance that four of the applicants are (like NBMZ) in community detention or that the Minister has discretions under the Act which have not been exercised.

Active intellectual process required for protection claims, not just s 501CA representations

The contention that claims and evidence do not require active intellectual consideration (ie that Omar does not apply) to protection claims and that Omar instead is confined to s 501CA matters is made with alarming frequency.

In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [36] the Full Court said:

… Thus, in MZYPW v Minister for Immigration and Citizenship [ie not a s 501CA matter], the Full Court held that the Tribunal had fallen into jurisdictional error by failing to engage with the substance of the applicant’s submission in that it had merely recorded that a “submission” was made by the visa applicant and left unstated how the submission was resolved: [2012] FCAFC 99; (2012) 289 ALR 541 at [19]-[20] (Flick and Jagot JJ) and at [38] (Yates J).

This is precisely the requirement confirmed in Omar that consideration requires findings of fact ‘one way or the other’.

The requirement that illogicality or irrationality be ‘extreme’ is a gloss that adds nothing

The proposition to the contrary, that there is a requirement for illogicality or irrationality to also be ‘extreme’, is made by the Minister with alarming frequency and betrays an understanding of what exactly is required to make out a jurisdictional error of this kind.

In AWU16 v Minister for Immigration and Border Protection [2020] FCA 513 the Federal Court said:

[24] Referring to CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146; 253 FCR 496 at [61], the Minister submitted that the alleged illogicality or irrationality of reasoning must be of an “extreme” kind, not a matter on which reasonable minds might differ, and not a matter on which a supervising Court simply disagrees with a decision-maker, even emphatically.

[25] Save for the gloss arising from the word “extreme”, those propositions can also be accepted and are well established. There is nothing in High Court authorities such as Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 which suggests that the adjectival description of “extreme” is a necessary element in a finding of illogicality or irrationality. If the decision-maker’s fact finding is proven to be irrational or illogical, in a way which was material to the outcome of the review, that is sufficient. The stringency of the threshold arises in the need for the decision-maker’s reasoning to be capable, objectively, of being described as irrational or illogical.

Getting a witness to repeat a story multiple times will almost always produce an ‘inconsistency’

This proposition is obvious, and the resultant ‘inconsistency’ does not demonstrate that the witness is lying. The popular example used by Irving Younger of Max Steuer’s cross-examination in the Triangle Shirt Waist Factory fire case is a case in point: the witness there may well have fabricated her evidence, but it is self-evidently not always the case that an ‘inconsistency’ is an indicator that thw whole story is made up.

Nevertheless, particularly in immigration, decision-makers all too often seize on tiny ‘inconsitencies’ which only arise because the applicant has been forced to repeat his or her narrative multiple times over many years.

In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15] the Full Court observed:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

Already having taken steps to avoid harm is not the same as whether one can reasonably take steps to avoid harm for a Convention reason

The s 5J definition of well-founded fear of persecution deems that no such fear exists if it is reasonable to modify behaviour to avoid the harm: s 5J(3). This effectively reverses S395 (see Minister for Immigration and Border Protection v SZSCA at [36] per Gageler J).

Whether a person can take reasonable steps to modify behaviour to avoid the harm is not the same as whether a person has (already) modified his behaviour to avoid harm due to a Convention reason.

See for example, ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [34]-[36] where Rangiah J explains the difference in the context of a person who had suffered sexual abuse and remained silent because of that abuse. That is not the same as a person who has suffered sexual abuse and the decision-maker purports to apply s 5J(3) to arrive at the conclusion that it is reasonable for the person to stay silent forever about the abuse and in that way, avoid harm.

The distinction was the subject of an argument in DQU16 at [5].

The nonsense of a concept of ‘zero’ risk of re-offending

In Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [102]-[103], the Tribunal said:

102. To quote Dr Freeman: “In forensic psychology, we can never say there is no risk, because that’s not a concept that we can accept, but…using the structured professional judgment, my experience in regards to this matter is it’s very unlikely that Mr Vargas is going to engage in any more impulsive behaviours where he threatens anybody, puts his hands on anybody…”[77]

103. I have misgivings about the veracity of any propounded submission – either by an Applicant or a Respondent in a case such as this – about a decision-maker having to reach a point of satisfaction regarding an Applicant having a “zero chance” of recidivism. Surely such a concept can only exist on a hypothetical basis and, to the extent it exists at all, it can only apply to an extremely narrow sector of our community such as the very young or infantile population. The simple physical reality is that every able-bodied or otherwise physically self-sufficient member of our community can harm any other member of our community at any time.

Proof of materiality does not require proof on the balance of probabilities

In Chamoun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 66, Mortimer and Bromwich JJ said:

[66]  If the Minister understood he could seek further information from the appellant, in the context of the importance and weight he attached to the plainly adverse NSW Police Report, then acting reasonably and rationally there was, we are satisfied, a realistic possibility he may have sought further information because the Minister had no information at all about what the appellant’s response to the content of that report might be. We are not required to be satisfied it is more likely than not he would have exercised the power he did not appreciate he had, only that there is a realistic possibility he might have. In our opinion, the adjective “realistic” in the statements of principle by the majority in the High Court in Hossain and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; 364 CLR 421 is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable, no more than that.

Wrongful rejection of corroborative evidence because the initial evidence is rejected due to ‘credibility’

This bootstrap reasoning is common in decisions which read as if the decision-maker knows he or she has no intellectually-defensible way of rejecting inconvenient corroborative evidence, and so resorts to dismissing it because of some kind of domino effect arising from the rejection of the original evidence of the applicant. In BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94; 263 FCR 292 at [45] the Full Court explained that this kind of reasoning may be illogical:

… it is true that the High Court held in S20/2002 that it is not irrational (albeit not necessarily preferable) for the finder of fact to focus “first upon the case as it was put by the appellant”, before considering the alleged corroboration.  However, this does not mean that the finder of fact can ignore the allegedly corroborative material and fail to consider it in an intellectually active way (WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 at [27] (Lee and Moore JJ); semble SZDGC at [23] (Finkelstein J)). For example, as in DAO16, a finding that a visa applicant’s evidence is not credible may not of itself provide a logical or rational basis on which to dismiss all of the corroborative evidence and, once the corroborative evidence is considered, it may at least raise a doubt about whether the whole of an applicant’s claims should in fact be rejected, thereby enlivening the obligation to consider the alternative scenario that the applicant’s claims might be correct. 

More Unproved assertions by the Department of Home Affairs invoking the operations exemption (section 47E of the FOI Act)

In Asylum Seeker Resource Centre and Department of Home Affairs (Freedom of information) [2020] AICmr 7 the Information Commissioner rejected the Department’s reliance on s 47E(d) (substantial adverse effect on the proper and efficient conduct of the operations of an agency) and s 47(1)(b) (commercially-sensitive information) to block release of various Serco ‘behaviour management’ policies.

The objections are properly described as vexatious. In no way could it seriously have been argued that these internal policies are commercially sensitive. Nor could they seriously ever have been argued to have attracted the operational exemption, since the very conduct that the policies dictate are routinely implemented (and abused).

Of significance in the Commissioner’s reasons is [38] where she referred to the FOI Guidelines:

The FOI Guidelines further explain:

… the predicted effect needs to be reasonably expected to occur… There must be more than merely an assumption or allegation that damage may occur if the document were to be released. …
An agency cannot merely assert that an effect would occur following disclosure….

Despite the Guidelines, it is significant that the Department routinely engages in bare assertion that s 47E applies to block release of information that applicants at law are entitled to. However, practicalities (including the Department’s routine contravention of time limits, and the chronic under-resourcing of the Office of the Australian Information Commissioner by the government), often make it difficult if not impossible to vindicate applicant rights under the FOI Act. Proceedings seeking mandamus, set up with correspondence to protect the costs position, might achieve some degree of compliance where the lack of court action would otherwise result in no compliance at all.

The released documents are here.