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.

Illogicality, irrationality (and unreasonableness) can be used to challenge intermediate facts, not just the end decision

The contention to the contrary is still sometimes agitated by the Minister, but that is plainly wrong. If authority is needed, see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47]:

… Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).

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].


The obligation to ‘have regard to’ an applicant’s wish to obtain further evidence

Section 426 of the Migration Act requires the Tribunal to ‘have regard to’ an applicant’s request to obtain further evidence from, or call, a particular witness. The Tribunal is not required to in fact do so.

However, the authorities are clear that the question of whether the Tribunal should is a discretion that must (therefore) be exercised reasonably.

In addition, the Tribunal cannot ‘merely go through the motions’–there must be a genuine consideration of whether to exercise the discretion: CBZH v Minister for Immigration and Border Protection [2014] FCA 1023.

Also, in BOL15 v Minister for Immigration and Border Protection [2016] FCCA 1994, Lucev J said:

Whether or not calling the Applicant’s Proposed Witness may have resulted in evidence being given which did not assist the applicant is not to the point, rather, the Court cannot preclude the possibility that such evidence might have assisted the applicant to establish his claims

Requirements for ‘no evidence’

In the context of migration decisions (but necessarily applicable to decision-making generally), a successful no-evidence submission requires:

  • demonstration that there was no evidence at all; and
  • the impugned fact being a jurisdictional fact.

Perry J referred to this in Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54]:

It is not the case that the “no-evidence” ground is established by a mere insufficiency of evidence to support a finding, even if the evidence is slight: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]–[19] (Gray, Moore and Weinberg JJ). There must be no evidence at all on which the finding could have been based: ibid. … Secondly and in any event, a jurisdictional fact must be involved before a jurisdictional error based on the “no-evidence” ground can be established: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [39] (Gummow and Hayne JJ, with whose reasons Gleeson CJ agreed at [1]). As Madgwick J held in SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 (SZAPC) at [57] in summarising the effect of the High Court authorities: “[a] “no evidence” attack will only suffice as such if it can be said that there is an actual ‘absence of any foundation in fact for the fulfilment of the conditions upon which, in law, the existence of a power depends’, that is, if there is no evidence to support a finding of a jurisdictional fact” (quoting Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30 at [36]).

There must literally be no evidence at all.  ‘Flimsy’ evidence is sufficient for the finding to survive: Maxwell v Minister for Immigration and Border Protection (2016) 149 ALD 604, [54].

The need for the finding (alleged to be supported by no evidence) to be a jurisdictional fact was discussed by Bromberg J in Buchwald v Minister for Immigration and Border Protection [2016] FCA 101, [32]-[40].  In particular, his Honour referred at [40] to French CJ’s observations in Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at [57]:

The term “jurisdictional fact“ applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be “a complex of elements“. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court. The decision-maker’s assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact.

The no-evidence ground often also factually overlaps with the illogicality ground: see SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 [55]-[70].  There may also be overlap with unreasonableness: see eg ABAR15 v Minister for Immigration and Border Protection (No 2) [2016] FCA 721 , [101].