Plaintiff M174/2016 v Minister for Immigration and Border Protection  HCA 16
On 18 April 2018 the High Court of Australia handed down its first decision considering the contentious 'fast track review' process. The key question before the High Court was whether a decision by the Minister or his delegate to refuse a visa that is impacted by jurisdictional error nonetheless constitutes a fast track reviewable decision capable of being referred to the Immigration Assessment Authority ('Authority'). In a unanimous decision, the High Court found against the plaintiff on all arguments and confirmed the Authority's power to review a decision notwithstanding jurisdictional error at the delegate stage.
However, the decision emphasised that the Authority must exercise its review powers within the bounds of legal reasonableness, expanding this as a ground of appeal in the process. This will likely have implications for judicial review both within the 'fast track review' process and more broadly.
The plaintiff was an Iranian national who arrived in Australia by boat in 2012. Along with 12,000 others, the plaintiff is thus classed as a “fast track applicant” for the purposes of the Act. Under Pt 7AA, where the Minister refuses to grant a fast track applicant a visa, the decision automatically passes to the Authority, which provides a “limited form of review" (s 473BA of the Act) and either affirms the decision or remits it to the Minister or delegate for redetermination.
The plaintiff’s claims centred around his conversion from Islam to Christianity and the fear of persecution on the basis of his religion if returned to Iran. In his application and at his interview with the delegate in 2015, the plaintiff stated that he was regularly attending Syndal Baptist Church. The plaintiff submitted a letter of support from Reverend Bill Brown.
The plaintiff consented to the delegate contacting Reverend Brown. Reverend Brown told the delegate that the plaintiff had stopped attending the church in 2013 after moving to another suburb, and that the plaintiff had attended once since then in June 2015, “at which time the plaintiff had requested a letter in support of his application” (Plaintiff M174 at ).
The delegate refused the plaintiff’s application. In written reasons accompanying the refusal, the delegate stated that the plaintiff only returned to church for the Reverend Brown letter in 2013, and participated in church services to falsely strengthen his claim for protection. The delegate further stated that they did not believe the plaintiff had genuinely converted to Christianity or would be perceived as such in Iran.
The Authority affirmed the delegate’s decision, without further communication to the plaintiff. The plaintiff submitted new information including a further letter from Reverend Brown and other letters from members in the congregation to support his claim. The Authority refused to have regard to most of the documents provided by the plaintiff on the basis that exceptional circumstances did not exist to justify their admission. The Authority did not accept that the plaintiff had converted to Christianity, or that the plaintiff would be perceived as having done so by Iranian authorities upon his return.
Grounds of Appeal
The plaintiff had three grounds of appeal:
the first was that the delegate failed to comply with s 57(2) of the Act by not putting the particulars of the Reverend Brown information to the plaintiff for his comment.
the second ground was whether any failure to comply with s 57(2) meant that the Authority lacked jurisdiction to review that decision.
the third ground was that the Authority acted unreasonably by failing to exercise its powers to get and consider new information from the plaintiff (ss 473DC and 473DD of the Act).
The decision of Gageler, Keane and Nettle JJ (Gordon and Edelman JJ concurring) found against the plaintiff in relation to all three grounds of appeal.
Delegate’s failure to comply with s 57(2)
Section 57(2) of the Act requires that 'relevant information' must be put to the applicant and invite the applicant to comment on it. Section 57(1) defines relevant information as information which "would be the reason, or part of the reason…for refusing to grant a visa…" (s 57(1)(a) of the Act).
In this instance the Reverend Brown's information supported the plaintiff's claim to a limited extent, however it was not significant enough to be the reason or part of the reason for refusing to grant the protection visa. The Court found that the Reverend Brown information did not satisfy the definition of relevant information in s 57(1) and the delegate did not fail to comply with s 57(2). .
Jurisdiction of IAA where delegate has failed to comply with s 57(2)
The second ground, a question of statutory interpretation, was considered in depth by the High Court.
The majority acknowledged that the land mark decision in Collector of Customs (NSW) v Brian Lawlor Pty Ltd (1979) 24 ALR 307 would apply in this scenario, in that the decision made by the delegate is "nothing more than a decision in fact made, regardless of whether or not it is a legally effective decision." (Plaintiff M174 at )
It was the plaintiff’s submission that "the procedures which must be followed and which are available to the Authority are insufficient to ensure that the review…will "cure" non-compliance". The plaintiff therefore reasoned that because the delegate's decision was affected by error, “it could not be a fast track reviewable decision and therefore the Authority could not review it.”(Plaintiff M174/2016 at )
On the contrary, the Minister argued that any jurisdictional error by the delegate was irrelevant, because the Authority's duty is to assess the application afresh, thus rendering failure in the original decision moot .
The Court rejected both these submissions and instead found a third interpretation that does not give rise to tension with legislative intention. The Court explains at :
The third approach is to construe Pt 7AA in a manner that would not require the Authority to make its decisions in a way that relied upon a jurisdictional error by the delegate. In relation to the particular issue raised by this special case, Pt 7AA should be construed, as Gageler, Keane and Nettle JJ explain, so that the Authority would have power to invite an applicant to respond to relevant information not given to him or her by the Minister or delegate in contravention of s 57(2). Failure to exercise that power might be legally unreasonable.
The Court described the function of the Authority as a de novo consideration of the merits of the Minister or his delegate’s decision:
The task of the Authority under s 473CC is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. (Plaintiff M174/2016 at )
The Court ultimately determined that the Authority’s jurisdiction is unaffected by the validity of the Minister or delegate's decision at law. A ‘fast track reviewable decision’ is simply a decision to refuse to grant a visa, regardless of non-compliance with the code of procedure. The Court emphasised that while compliance with the code of procedure was expected, a failure to do so does not automatically render a subsequent decision invalid.
The plaintiff's submission was that the Authority committed jurisdictional error by failing to exercise its discretion to interview the plaintiff under s 473DC and failing exercise its discretion to consider new information submitted by the plaintiff under s 473DD.
These grounds were dispelled by the majority quite quickly. At :
This is not a case in which the conduct of the Authority went anywhere near breaching the bounds of reasonableness.
However, the decision considers the concept of legal unreasonableness more broadly, beyond the factual circumstances of the case.
Gordon J explained that a failure by the Authority to consider and exercise the new information powers within the ambit of the legislative criteria would constitute unreasonableness and may invalidate the purported performance by the Authority of the duty imposed on it.
Edelman J held that Pt 7AA should be construed so that the Authority would have power to invite an applicant to respond to "relevant information" not given to him or her by the delegate in contravention of 57(2). A failure to exercise that power might therefore be legally unreasonable.
Additionally, the majority held that in a circumstance where relevant information which meets the definition in section 57(1) is not put to applicant for comment, "the Authority would risk transgressing the bounds of reasonableness" if they treated the information as the reason, or part, for affirming refusal without first exercising the discretion conferred by section 473DC(3) to invite the applicant to respond. (Plaintiff M174/2016 at )
Finally, the Court held that jurisdictional error that would impact on the validity would not lie in the prior non-compliance under s 57(2) of the Minister, but would lie in either non-compliance on the part of the Authority with the duty imposed by s 473DE (where the relevant information was not before the Minister or delegate at the time of review and is therefore capable of being new information) or, in the absence of good reason for not doing so, in an unreasonable failure to exercise the power conferred by s 473DC.
This statement is crucial in widening the understanding of legal reasonableness in the exercise of fast track review powers under the Act.
The High Court’s decision represents at least some acceptance of the limited review rights that form part of the ‘fast track review’ process.
However, the Court’s acceptance of this process appears to be premised on a presumption that a jurisdictional error in the delegate’s decision can be corrected by the Authority using its discretionary powers, such as the power to get and consider new information.
The most interesting aspect of the decision is the obiter that a failure to exercise these discretionary powers would potentially amount to legal unreasonableness. In effect, the Court appears to be using the concept of legal unreasonableness as a back door means of bringing in requirements of procedural fairness, such as a right to a hearing or to respond to allegations. This follows similar decisions in the Federal Court, including Minister for Immigration and Border Protection v CRY16  FCAFC 210 (the High Court rejected the Minister’s special leave application in this case the day after judgment in Plaintiff M174).
This use of legal unreasonableness provides a limitation on the Authority’s discretion and at least some check on unjust outcomes through delegate error. It also potentially significantly expands the scope of legal unreasonableness, which will likely have implications well beyond the ‘fast track review’ process.
The full decision can be found here.
Joshua Butler is a Lawyer and Abbey Lay is a Graduate at Lander & Rogers.