The inappropriateness of relying on omissions of claims at entry interview

In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80 the Court said at [56]:

some caution should be exercised by decision-makers in relation to omissions by applicants of matters at entry interview. They are conducted shortly after a person has arrived in Australia; in the case of the appellant, after a long journey on the ocean in cramped and difficult conditions. On the evidence, a significant part of the entry interview content concerns questions designed to elicit information about so-called “people smuggling”. They are the first substantive and formal engagement with Australian officials by people who come, as the appellant does, from regimes where authority figures may be viewed with some fear and mistrust. A person is asked to articulate personal matters of family and individual history not only to a strange official, but also to an interpreter who is a stranger, without the assistance and support of a lawyer or migration agent. It is unlikely many interviewees appreciate the use to which the information they give might be put, notwithstanding the script which is read to them. The interviewees are being asked to digest a lot of information quickly and in circumstances they may perceive as hostile.

Discounting evidence due to ‘conflicting evidence’ or ‘doubt’

In Re Minister of Immigration, Local Government and Ethnic Affairs v Gamdur Singh Dhillon and Marcelle Suzanne Maree Lievense Dhillon [1990] FCA 144 the Court said:

it is not correct to discount a factor favourable to an applicant by reference to conflicting evidence or doubts. A person affected by a statutory decision is entitled to have the case determined by reference to found facts, not suspicions or conflicts of evidence.

Abandonment of claims

The issue is discussed in MZZES v Minister for Immigration and Border Protection [2015] FCA 397.

Also, the mere fact that a claim on the materials before the Tribunal is not subject of oral submissions does not mean it is abandoned: SZVWF v Minister For Immigration & Border Protection [2016] FCCA 2532, [24]-[25]; SZTSM v Minister for Immigration and Border Protection [2015] FCCA 583, [25]; SZSRQ v Minister for Immigration [2014] FCCA 2205, [58]-[62].

What the AAT must do to actually ‘consider’ a claim

Perry J summarised them in SZSZW v Minister for Immigration and Border Protection [2015] FCA 562 at [15]-[19]:

Secondly, the requirement under s 414 of the Act to “review” the decision requires that the Tribunal consider the applicant’s claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]:

To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding.

Thirdly, as I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] in determining whether a claim has been made attracting the obligation to consider it:

A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument” that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26; (2003) 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; (2014) 142 ALD 150 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely” arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]).

(Abbreviations omitted.)

In the fourth place, the requirement to consider a claim or integers of a claim made by an applicant requires the application of an active intellectual process. As the Full Court held in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 (MZYTS) at 559 [38], “[t]hat task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant…”.

A sharp contrast between permissible ‘cherry-picking’ of evidence (the Court’s words, not mine) to arrive at a Minister-favourable conclusion and a failure to properly consider evidence is ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721.  See [85]-[87], especially [86]-[87]:

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.

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.

The distinction between failure to take into account a “relevant consideration” or claim and a “mere failure to deal with evidence”

It is not the case that a failure to take into account evidence cannot amount to jurisdictional error.  The Minister had often previously submitted that only a failure to consider a claim could amount to jurisdictional error, and that a ‘mere failure to deal with evidence’ could not.

In Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, the Full Federal Court said at [64]:

The minister’s contention that any error was of a factual nature, not going to jurisdiction, was developed in large part by reference to a line of cases said to support a distinction between a “relevant consideration” or claim and a “mere failure to deal with evidence”. We are not persuaded the line is as bright, or the distinction as encompassing, as the minister submits.

Later, at [70] their Honours said:

With respect, we consider this is the conclusion reached by Robertson J in SZRKT, most directly expressed at [98], where his Honour states that the identification of jurisdictional error cannot “put out of account the actual course of decision-making by the tribunal” and cannot proceed “by reference to categories or formulas”, observing that “there are many ways, actual or constructive, of failing to consider the claim”. His Honour develops this at [111] by disavowing any jurisdictional/non-jurisdictional distinction between claims and evidence and instead finding, correctly in our respectful opinion, that the “fundamental question must be the importance of the material to the exercise of the tribunal’s function and thus the seriousness of any error”. We agree with his Honour’s analysis.

Similar comments were made in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67 [54].

See also What the AAT must do to actually ‘consider’ a claim.

‘Errant fact finding’

In Htun there was a distinction drawn between failure to consider an integer of a claim and ‘errant fact finding’.

What ‘errant fact finding’ is was described in SZRHL (2013) 136 ALD 641; [2013] FCA 1093:

[23] In the case mentioned in the passage cited from SZQRW, MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441 ; [2010] FCAFC 123, the Full Court observed that (at [83]):

[83] A distinction is to be drawn between the failure to deal with a claim (a constructive failure to exercise jurisdiction) and what has been described as errant fact-finding: HTUN v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 ; [2001] FCA 1802 at [42] per Allsop J; cited with approval by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ; 219 ALR 27 ; [2004] FCAFC 263 where the Full Court discussed extensively errors of fact and jurisdictional error in the Tribunal. In Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303 ; [2010] FCAFC 51 at [28] North and Lander JJ observed that an error of fact based on a misunderstanding of evidence in considering an applicant’s claims is not jurisdictional error so long as the error does not mean that the Tribunal has not considered those claims.

[24] That there is a difference between a failure to deal with the claim as made for a protection visa and dealing with a claim as made but making a wrong finding of fact in the course of so doing may be accepted. The boundaries of that difference may be elusive where the fact concerned is an integral part of the claim as made. Further, as Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 ; 73 ALD 321 ; 77 ALJR 1088 ; [2003] HCA 26 (Dranichnikov) illustrates, exactly what constitutes the nature and scope of the claim as made for a protection visa may itself be a subject upon which reasonable minds might reasonably differ. That is an ever present risk in cases of this kind where so often the protection visa application will be authored on behalf of, if not by, a person whose first language is one other than English.

[25] Yet further, a conclusion that the claim as made has been dealt with and that the error is to be regarded as “errant fact finding” does not, in itself, mean that there can be no jurisdictional error. The end result of that errant fact-finding may yet be that the tribunal has conducted its “core function” of review in a way that is unreasonable in the sense described by Gageler J in Li (at [105]):

[105] “It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason.” Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

[26] Correctly apprehending the claim as made for a protection visa but determining that claim in a way that is so unreasonable that no reasonable person could so have dealt with it is just as much a failure to exercise a review jurisdiction according to law as not dealing with the claim as made. Even where an administrator has provided reasons which disclose an “evident and intelligible justification” (compare Liat [76] per Hayne, Kiefel and Bell JJ) for a decision those reasons may be intelligible only in the sense of making evident an illogical or irrational process of reasoning to an ultimate conclusion of fact.

AAT’s use of information obtained in one review in another review

In ATP15 v Minister the Full Federal Court divided on whether information obtained in one review could be used in another review, without going through the puttage requirements in s 424A.

Section 424 provides:

Tribunal may seek information

(1)          In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

(2)          Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

(3)          A written invitation under subsection (2) must be given to the person:

(a)          except where paragraph (b) applies–by one of the methods specified in section 441A; or

(b)          if the person is in immigration detention–by a method prescribed for the purposes of giving documents to such a person.

The majority (Tracey and Griffiths JJ) considered that if the Tribunal ‘gets’ information in the course of one review, it is not information that the Tribunal ‘gets’ in the course of another review.  Therefore, even if that evidence would be corroborative of the claims in the second review, the Tribunal is not required to have regard to it: [23].

Not only that, the majority considered that there was no obligation for the Tribunal to provide the second review applicant a copy of the information obtained in the first review: [37].

 

Injunctions or court orders made without authority compared to administrative decisions affected by jurisdictional error

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid.  The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21]  Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal.  The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22]  Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

The proposition that an administrative decision affected by jurisdictional error is ‘no decision at all’ is famously articulated by Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33].  Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.  A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt.  For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act.  If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction.  The injunction must first be set aside.  It follows that disobeyance of the injunction may be a contempt of Court.

Different methodologies for assessing costs

Gross sum costs can be awarded as an alternative to costly and protracted costs on taxation.

There are different methodologies that can be used to calculate gross sum costs. Some were summarised in Wieland v Texxcon Pty Ltd [2016] VSCA 45:

Methodology Options in a Gross Sum Exercise

  1. … In my view there is no one option in terms of methodology in a gross sum exercise.  It will depend on the basis for costs recovery ordered in favour of the recovering party.

  1. As discussed in Pegela,[17] there are several options available in relation to methodology.  One option is the ‘analogy’ method to ‘review previous gross sum cases to identify what the percentage reduction on costs was in those cases and adopt an appropriate reduction by reference to previous practice’.  This is not an attractive option having regard to the wide range of percentages of recovery across a number of example cases referred to by Sackville J in the Seven Network Limited v New Limited.[18]
  1. A second option has been referred to as the ‘adjusted fees’ methodology.  This is a possible option where costs are recoverable on scale.  It involves taking the base hours from time records and multiplying them by the scale rate, adjusting it to account for the different scale rates applicable for particular types of work and then applying a loading for general care.  This is closest to the one proposed by the applicants and said in argument to Beach JA in this matter to be the only option.[19]
  1. A third option is the ‘Ausmaq’ method.  This can be favoured where costs are to be assessed on hourly rates.  This involves actual costs incurred, identifying work that falls outside the scope of the costs order, and then breaking the figure down to costs and disbursements.  As a next step appropriate hourly rates are determined and then a final calculation is made on the basis of the hourly rate options, the cost reduction for unreasonable work and the addition of disbursements.
  1. Other methodologies have been referred to in case law.[20]