See obiter remarks entitled ‘Disturbing undercurrents’ by Flick J in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
See also [363]-[388] for a discussion about how personal non-compellable powers which may be exercised in the ‘public interest’ must still take into account relevant factors. It is an error to make a decision ‘irrespective of’ relevant factors: [372]
This is because statutes must be interpreted consistently with international law insofar as the text permits. See explanation in Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32; (2011) 244 CLR 144; (2011) 85 ALJR 891; (2011) 280 ALR 18; (2011) 122 ALD 237 at [54] per French CJ, [94]-[98] per Gummow, Hayne, Crennan and Bell JJ and [239] per Kiefel J, and Minister for Immigration & Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505; (2013) 296 ALR 525; (2013) 132 ALD 269 at [229]-[231] per Lander and Gordon JJ and [313] per Besanko and Jagot JJ.
The limitation on the removal power in section 198, identified in Plaintiff M70, was sought to be overturned by the introduction of section 197C. See discussion in WZAWB v Minister for Immigration [2016] FCCA 1345; 309 FLR 398 at [171]-[192]. The effect of section 197C does not otherwise appear to have been considered.
See the discussion in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2015) 255 CLR 231 at [35] onwards.
If a denial of procedural fairness has deprived the applicant of a fair hearing, there is no need for the applicant to prove anything more. This is contrasted with the situation where a denial of procedural fairness did not otherwise result in a fair hearing (probably a rare situation).
See discussion in Minister for Immigration and Border Protection v WZARH [2015] HCA 40; 256 CLR 326: per Gaegler and Gordon JJ at [55]-[60]:
The concern of procedural fairness, which here operates as a condition of the exercise of a statutory power, is with procedures rather than with outcomes. It follows that a failure on the part of an assessor or reviewer to give the opportunity to be heard which a reasonable assessor or reviewer ought fairly to give in the totality of the circumstances constitutes, without more, a denial of procedural fairness in breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration.
Such a breach of the implied condition which governs the exercise of the Minister’s statutory powers of consideration is material, so as to justify the grant of declaratory relief by a court of competent jurisdiction, if it operates to deprive the offshore entry person of “the possibility of a successful outcome”[61].
That approach to the determination of the existence and consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power is wholly consistent with the often-repeated observation of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam[62] that the concern of procedural fairness is to “avoid practical injustice”, and with his Honour’s conclusion in that case that there was no denial of procedural fairness where “[n]o practical injustice ha[d] been shown”[63]. The absence of practical injustice in Lam lay in the fact that “[t]he applicant lost no opportunity to advance his case”[64]; it was not “shown that he lost an opportunity to put any information or argument to the decision-maker, or otherwise suffered any detriment”[65].
Contrary to the submission of the Minister in this appeal, and as has repeatedly been recognised in the Full Court of the Federal Court[66], Lam is not authority for the proposition that it is incumbent on a person who seeks to establish denial of procedural fairness always to demonstrate what would have occurred if procedural fairness had been observed. What must be shown by a person seeking to establish a denial of procedural fairness will depend upon the precise defect alleged to have occurred in the decision-making process.
There are cases in which conduct on the part of an administrator in the course of a hearing can be demonstrated to have misled a person into refraining from taking up an opportunity to be heard that was available to that person in accordance with an applicable procedure which was otherwise fair[67]. To demonstrate that the person would have taken some step if that conduct had not occurred is, in such a case, part of establishing that the person has in fact been denied a reasonable opportunity to be heard.
Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given[68].
(emphasis added)
A restatement of the obvious: in deciding whether something has been proved on the balance of probabilities, it is important to have regard to the ability of the party who has the onus to lead evidence on a particular matter.
From Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168; BC200103028 at [16]:
[14] There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 169 CLR 638 at 642-643). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.
[15] In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970):
All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.
If the Minister in deciding to refuse the grant of a protection visa to a person to whom Australia does owe protection obligations says, in the reasons, that he wishes to consider ‘alternative management’ options than indefinite detention, then he may have misunderstood s 197C and therefore made an unlawful decision. See DMH16 v Minister for Immigration and Border Protection [2017] FCA 448.
In MZZJO v Minister for Immigration and Border Protection [2014] FCAFC 80, North, Bromberg and Mortimer JJ observed 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.
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126, the Court observed:
[37] On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a “real and meaningful” invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
See also SZQBN v Minister for Immigration and Border Protection [2014] FCA 686; 226 FCR 68 at [15] per Flick J and Gill v Minister for Immigration and Border Protection [2017] FCAFC 51 at [66] per Griffiths and Moshinsky J.
The Minister’s common retort that making findings as to credibility is a task of the tribunal ‘par excellence’ is often abused. That tautology does not mean that credibility findings cannot be challenged in judicial review. Criticism of the abuse of ‘par excellence’ was made in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [36]-[38]:
Before considering the arguments in detail, there is one topic which this appeal usefully highlights. That credibility is a matter par excellence for the Tribunal is an expression often used. It stems from Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 74 ALJR 405 per McHugh J. At [67]-[68] his Honour, sitting in the High Court’s original jurisdiction as a single judge, said (footnotes omitted):
67 In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor’s claim that members of PLOTE tried to recruit him were “utterly implausible”. However, this was essentially a finding as to whether the prosecutor should be believed in his claim – a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.
68 But there is a more fundamental reason why the argument based on s 430 fails to support a claim for prerogative relief. Even if, contrary to my view, there was a breach of s 430(1) by the Tribunal, it would not amount to a jurisdictional error. In Minister for Immigration and Ethnic Affairs v Eshetu, Gummow J referred to the requirement that, before granting a protection visa, the Minister and, on review, the Tribunal be “satisfied” that the prosecutor was a refugee. That requirement arose from ss 36 and 65 of the Act. His Honour said:
“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.”
The prosecutor argued at the hearing that s 430(1)(c) “feeds into the ascertainment of the Minister’s satisfaction” and that it is “an integral part of ascertaining the jurisdictional fact”.
(emphasis added)
It is important to note that McHugh J’s observations and his Honour’s use of the phrase “par excellence” were made in the specific context of a claim that the Tribunal had not complied with its statutory obligation under s 430 of the Migration Act to give reasons for its decision. Nothing said by McHugh J suggests that the Tribunal’s adverse findings on credibility are not amenable to judicial review on jurisdictional error grounds. There is a risk that a mechanical use of the phrase “par excellence” as a formula fails sufficiently to appreciate this important reality. The fact that credibility is a matter for the Tribunal to determine as a question of fact does not mean that challenges to credibility are not open. This appeal illustrates three of a number of potential bases of challenge to credibility findings on well‑established legal precedent. In the present appeal, the foundation for the challenge is on the basis of no logical or probative basis for the finding in relation to ground 1, illogicality and/or irrationality in relation to ground 2, and, in relation to ground 3, a lack of natural justice.
There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as:
(a) failure to afford procedural fairness;
(b) reaching a finding without any logical or probative basis;
(c) unreasonableness; and/or
(d) jurisdictional error as discussed by Flick J in SZVAP.
It is not enough for a Tribunal to conclude, in a s 501 character review, that the applicant has a prospect of release from indefinite detention through the exercise of Ministerial discretion. The legal consequences of a character refusal will often be indefinite detention (for example, if the person engages Australia’s protection obligations), and that, and only that, is certain. It therefore must be considered by the Tribunal. Anything about what might happen (other than indefinite detention) to the applicant is speculative. See eg NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1; BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; DEY16 [2016] FCA 1261.