The IAA’s ‘visual impression’ that it forms based on observations in an interview is ‘new information’, and so should impressions based on reviews of audio or video recordings

If the IAA interviews an applicant, it might them form an impression of the demeanour of the applicant. This impression is ‘new information’ and attracts the obligation to invite comment, under s 473DE. In ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [16] the plurality said:

... The Authority's own visual impression of the referred applicant's appearance during such an interview would necessarily constitute new information within the power of the Authority to get because it would communicate knowledge of an evidentiary nature which would be open to be considered by the Authority to have the potential to bear on the Authority's assessment of the referred applicant's credibility[27] and which was not before the Minister when the delegate made the referred decision[28].

See also [17]:

Were some aspect of the referred applicant's appearance during the interview to end up being so glaringly undermining of the referred applicant's credibility as to lead the Authority to consider in advance of reasoning on the facts that the appearance of itself "would", as distinct from "might", be the reason or part of the reason for affirming the decision of the delegate[31], the Authority would come under an obligation to explain that to the referred applicant and to invite the referred applicant to comment[32]. ...

By parity of reasoning, the IAA’s impression it forms based on observations it makes from listening to or watching a recording should also be ‘new information’, because these impressions are also ‘knowledge of an evidentiary nature’.

Hence, it is unreasonable if the IAA ([25]):

... without good reason, ... does not invite a referred applicant to an interview in order to gauge his or her demeanour for itself before it decides to reject an account given by the referred applicant in an audio recorded interview which the delegate accepted in making the referred decision wholly or substantially on the basis of its own assessment of the manner in which that account was given.

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’.

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.

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.

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. 

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.

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.