Category Archives: Migration

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”.

Unreasonableness and being a ‘reformed homosexual man’ or ‘genuinely bisexual’

A particularly egregious example of unreasonableness is Abboud v Minister [2018] FCA 185  in which the Tribunal made arbitrary assumptions as to how a gay person ought to behave.  The Tribunal has now on several occasions rejected persecution claims on the basis of sexuality through means of suggesting the applicant is involved in a gay ‘conspiracy theory’.  Patently, such approach is unreasonable, irrational or demonstrative of failing to engage with the material before it. The entire Abboud decision is worth reading in order to expose the audacity of the Tribunal’s reasoning, but see especially [23]-[26].

 

Credibility and allegedly ‘inconsistent’ evidence

Frequently a decision-maker will leap to a conclusion that an applicant has been ‘inconsistent’ in his or her account.  Frequently also, a decision-maker will bandy this label of ‘inconsistency’ incorrectly.

Often, in truth something may not be ‘inconsistent’. For example, the omission of making a particular claim at interview 1 does not mean it is an ‘inconsistency’ if raised in interview 2: see AVQ15 v Minister [2018] FCAFC 133 at [27].

Also, just because there is an ‘inconsistency’ (assuming that word is used correctly), it does not follow that a credibility issue emerges. For example, a minor inconsistency cannot be transformed into a reason to disregard the whole of an applicant’s claims: see AVQ15 v Minister [2018] FCAFC 133 at [28]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [78].

Further, special attention needs to be given to the circumstances in which an applicant is giving evidence, before leaping to a conclusion of ‘inconsistency’ (or for that matter, adverse credit).  Thus, if an applicant warns that he or she is only giving a ‘summary’ which is ‘not an exhaustive statement’ and will be giving more detail at a later stage, a failure to appreciate that qualification may create a jurisdictional error: see AVQ15 v Minister [2018] FCAFC 133 at [28], [30], [33], [41].

Representations in character cancellations are matters which must be considered

The proposition that representations in relation to a s 501 cancellation attempt are not ‘mandatory relevant considerations’ is highly doubtful if not at least reductionist. See the discussion in Viane v Minister [2018] FCAFC 116 per Rangiah J [23]-[30] and Colvin J at [67]-[77].  What matters is (or perhaps a better characterisation than ‘mandatory relevant consideration’ is) whether the relevant aspect which was not considered could amount to a ‘representation’, in which case it must be considered.

See also Hay v Minister [2018] FCAFC 149 per Colvin J.

As to what is required to show that there has been a consideration, see Minister for Immigration and Border Protection v Maioha [2018] FCAFC 216 at [41]:

What is required is the reality of consideration by the decision-maker.  On judicial review the Court must therefore assess, in a qualitative way, whether the decision-maker has as a matter of substance had regard to the representations put: compare Fraser v Minister for Immigration and Border Protection [2014] FCA 1333 at [22] per Perram J. Additional adjectives do not assist that analysis and indeed tend to distract from it by being “apt to encourage a slide into impermissible merit review”: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [30] citing Swift v SAS Trustee Corporation [2010] NSWCA 182; 6 ASTLR 339 at [45]. Because the Court must make its own qualitative assessment, the fact that a decision-maker says they have had regard to a representation does not by itself establish that they have, as a matter of substance, had that regard. Neither does the Court ignore such a statement.

Failure of Secretary to provide to IAA relevant documents

In AKK17 v Minister for Immigration (2017) 327 FLR 343 at [59]-[60] it was suggested that this might be an error depending on the nature of the document which the Secretary does not provide, notwithstanding the Secretary’s obligation under s 473CB(1)(b) to do so in respect of all documents before the delegate which were provided by the applicant.

Although inconsistent with the imperative language in s 473CB(1), it would appear that this decision is consistent with the requirement that an error have done kind of materiality in order for it to be a jurisdictional error (see eg Hossain v Minister for Immigration (2018) 92 ALJR 780).