The High Court has decided a special case on ‘fast track reviewable’ refugee visa decisions in Pt 7AA of the Migration Act 1958 (Cth) and the operation of s 57(2). Section 57(2) provides that, in considering a visa application, the Minister must give particulars of ‘relevant information’ to the applicant in a way that the Minister considers is appropriate in the circumstances; ensure, as far as is reasonably practicable, that the applicant understands why that information is relevant; and invite the applicant to comment on it. Pt 7AA provides the structure for fast track review, which requires that ‘fast track reviewable’ decisions by the Minister be automatically reviewed by the Immigration Assessment Authority to affirm the decision or remit it for further consideration.
The plaintiff, an Iranian citizen, applied for a temporary protection visa on the basis that he was a Christian and would face a real chance of harm if returned to Iran, and became a ‘fast track applicant’ (see at ). In support of this application, he stated that he regularly attended a Melbourne church, and submitted a letter of support from the Reverend of that church (at ). With the plaintiff’s consent, the Minister’s delegate contacted the Reverend, who mentioned that he attended the church only irregularly: the delegate did not share the file note mentioning this response with the plaintiff or invite any comment on the regularity of his attendance (at ). The delegate’s refused to grant a temporary protection on the basis that he had not genuinely converted to Christianity and would not face persecution on return to Iran, based partly on Reverend’s information about church attendance (see ff).
On review, the Authority considered the Reverend’s information and affirmed the delegate’s decision, though it rejected the delegate’s conclusion that the plaintiff had attended the church solely to strengthen his refugee claim, and instead found that he attended church because he enjoyed social contact, not because of any real commitment to Christianity (at ). In coming to that conclusion, the Authority did not interview the plaintiff or his ‘supporters’ in the congregation any further, and sought letters from other congregants that were then disregarded (see ff). The plaintiff claimed that this constituted a failure to comply with the requirements of s 57(2) in not giving him the relevant information or inviting him to comment on it, and thus that the decision of the delegate and the Authority were attended by jurisdictional error (at ff).
Before the High Court, the central issue was whether any failure to comply with s 57(2) could mean there was no ‘fast track reviewable decision’ that could be referred to the Authority under s 473CA or lack of an essential precondition for the Authority’s power under s 473CC, meaning that the Authority lacked jurisdiction to conduct a pt 7AA review (Question 2). Two additional questions in the special case were whether the delegate had failed to comply with s 57(2) (Question 1), and whether the Authority failed to conduct a review in accordance with pt 7AA because ‘it was legally unreasonable for the Authority to fail to exercise its statutory powers to get, or consider, new information’ (Question 3).
The High Court unanimously held that the Authority’s jurisdiction is to review decisions made in fact, and the merits of the evidence on which that decision was based: a ‘fast track reviewable decision’ is simply a decision to refuse to grant a visa that is made in fact, ‘regardless of non-compliance with the code of procedure’ (at ). The Court also held that the Minister’s delegate did not fail to comply with the procedure in s 57(2), and that the Authority did not act unreasonably in failing to get or consider new information (at ).
The joint judges (Gageler, Keane and Nettle JJ) first reviewed the legislative scheme (from ff), noting that the Authority’s task is not to correct errors on the part of the Minister or delegate, but to engage in a de novo consideration of the merits of the decision (at ), and that it is a decision ‘as affirmed by the Authority’ that is the determination of a valid application (at ). Examining the Authority’s statutory powers to ‘get’ any ‘new information’ (at ff), the joint judges emphasised the requirements that the information must not have been before the Minister or delegate and that it may be relevant to the decision (at ff), namely that it there are ‘exceptional circumstances’ justifying that consideration (at ff). The joint judges held that these statutory requirements meant the Authority must be satisfied that: ‘(1) the information is credible information about an identified individual, or an individual who is reasonably identifiable; (2) the information was not previously known by either the Minister or the referred applicant; and (3) had the information been known by either the Minister or the referred applicant, the information may have affected the consideration of the referred applicant’s claims.’ (at ).
Turning then to the nature of a ‘fast track reviewable decision’, the joint judges noted the landmark decision in Collector of Customs (NSW) v Brian Lawlor Automative Pty Ltd  FCA 21, where the term ‘decision’ within a system of review by a tribunal was ‘nothing more than “a decision in fact made, regardless of whether or not it is a legally effective decision”‘ (at ). The plaintiff’s arguments did not challenge the decision in Brian Lawlor, but contended that because pt 7AA was a more ‘limited’ form of review it required that the Act’s procedures be correctly followed (see at –). The joint judges rejected this contention: ‘… it is to be expected that the requirements of the law will be observed. That does not mean, however, that the Part is framed to permit review of a decision to refuse to grant a protection visa to a fast track applicant only if that decision has been made in compliance with the code of procedure.’ (at ). Non-compliance with s 57 denies an applicant the opportunity to respond to adverse information, but the procedures that Pt 7AA provides for do not prevent the Authority from conducting the review ‘in a manner which would negate the want of procedural fairness’ (at , and see the ‘scenarios’ discussed at –). Consequently, there was no sufficient reason to depart from Brian Lawlor: a fast track reviewable decision is one made in fact, regardles of whether it is legally effective (at ).
The joint judges then reviewed the facts of the plaintiffs’ claim (see above), before turning to the plaintiff’s challenge to the delegate’s decision. Their Honours noted that ‘the challenge to the delegate’s decision must fail unless the plaintiff’s challenge to the Authority’s decision (at ), because the Authority’s review does not ‘cure’ any defects in the original decision, but rather it is the Authority’s order, following review, that alone gives that decision legal force (at ). While jurisdictional error could lie against the Authority after a delegate’s non-compliance with s 57(2) (see details at ), here, the delegate complied with s 57(2): the Reverend’s information did not meet the critical condition of being ‘relevant information’ within s 57(1) (at ):
the information must in its terms be of such significance as necessarily to have led the delegate to consider in advance of reasoning on the facts of the case that the information of itself ‘would’, as distinct from ‘might’, be the reason or part of the reason for refusing to grant the protection visa. The Reverend Brown information supported the plaintiff’s claim, so far as it went.
Moving then to the Authority’s review, the joint judges stated that the plaintiff’s independent grounds here were ‘extremely weak’: the Authority’s choice not to interview the plaintiff, the Reverend, or other members of the congregation was a considered exercise of the Authority’s discretion and ’eminently justified’ in its reasons (at ). The Authority’s choice to not consider information on the plaintiff’s church attendance was justified by a lack of ‘exceptional circumstances’, as required by s 473DD(a) (at ).
The joint judges then conclude with the responses to the questions in the stated case (at ff, and see the Order replicated below).
Gordon J agreed with the conclusions of the joint judges, and added a number of observations. On Pt 7AA, Gordon J emphasised three aspects of the scheme. First, that the Authority’s review is a hearing de novo on material provided to it, and its task is review of a specific and limited kind: to determine for itself whether the visa grant criteria have been met on that material, and to either affirm or remit the decision to the Minister (at ). Secondly, and as the plurality noted, there was no dispute that the Authority’s powers must be exercised within the bounds of reasonableness (at ). Thirdly, that ‘subject to Pt 7AA‘, the Authority reviews the application by considering the material provided to it, ‘without accepting or requesting new information and without interviewing the referred applicant’ (at , emphasis in original). Gordon J then noted that the Authority must not consider new information unless there are exceptional circumstances justifying that consideration (at ). While the Minister’s compliance with s 57 would be the ‘ordinary’ circumstances, ‘where no opportunity was given by the Minister to a fast track applicant to respond to adverse information contrary to the requirement in s 57, the fact of that non-compliance with s 57 would itself be an exceptional circumstance engaging the Authority’s new information powers’ (at , emphasis in original). Exercising those new information powers in those circumstances, however, ‘cannot, and should not, be understood as the Authority conducting merits review’ (at , emphasis in original):
Rather, it is the Authority doing no more than it is directed to do – consider the application for a protection visa and determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. A failure by the Authority to do so would constitute an unreasonable failure by the Authority to exercise its powers and may invalidate the purported performance by the Authority of the duty imposed on it.
Finally, Gordon J noted that the question of whether a significant departure, other than non-compliance with s 57, would be an ‘exceptional circumstance’ does not arise and need not be decided (at ).
Edelman J likewise agreed with the joint judges’ responses to the questions in the stated case, and provided further reasons ‘in addition to those’ of the joint judges (at ) that focused on the arguments on jurisdictional error. For Edelman J, the plaintiff’s contention that the delegate’s decision was affected by jurisdictional error and was thus not a ‘fast track reviewable decision’ and not reviewable by the Authority failed for at least two reasons: first, when the scheme was enacted, Brian Lawlor was accepted as the proper interpretation of the meaning of decisions within merits review systems (at ); and secondly, that submission is contrary to the statutory goal of ‘efficiency’ in addressing the asylum application ‘backlog’ (at ). Edelman J then noted a third approach, not argued here, that would avoid any tension with legislative intentions (at ), and noted ‘other circumstances’ in which the statutory scheme ‘may need to be construed’ to not permit or require the Authority to incorporate an earlier jurisdictional error by the Minister or delegate (see further  and ).
|High Court Judgment|| HCA 16||18 April 2018|
|High Court Documents||Plaintiff M174/2016|
|Full Court Hearing|| HCATrans 251||7 December 2017|
|Hearings, Nettle J|| HCATrans 118||17 May 2017|
| HCATrans 36||22 February 2017|
| HCATrans 31||16 February 2017|
The questions referred to the Full Court be amended and answered as follows:
(b) an essential precondition for the valid exercise of power by the Authority under s 473CC of the Act is not satisfied, with the result that the Authority has no jurisdiction to conduct a review under Pt 7AA of the Act?
Did the Authority fail to conduct a review in accordance with Pt 7AA because it was legally unreasonable for the Authority to fail to exercise its statutory powers to get, or to consider, new information?
What, if any, relief should be granted?
Who should pay the costs of and incidental to the special case?