High Court Affirms Jurisdiction of Immigration Assessment Authority: [2018] HCA 16

“Pivotal to the operation of Pt 7AA is identification of a "fast track reviewable decision", which the Minister administering the Act ("the Minister") is obliged by s 473CA to refer to the Immigration Assessment Authority ("the Authority") and which the Authority is obliged by s 473CC to review and either to affirm or to remit to the Minister for reconsideration.

Is a fast track reviewable decision nothing more than a decision to refuse to grant a protection visa to a fast track applicant that is made in fact? Or is a fast track reviewable decision limited to a decision to refuse to grant a protection visa to a fast track applicant that is not invalid for non-compliance with the code of procedure for dealing with visa applications set out in subdiv AB of Div 3 of Pt 2 of the Act?

The answer is that a fast track reviewable decision is a decision to refuse to grant a protection visa to a fast track applicant that is made in fact, regardless of non-compliance with the code of procedure.

Two further substantive questions are raised on the agreed facts set out in the special case. They concern whether the delegate of the Minister failed to comply with s 57 of the Act in dealing with the plaintiff's application for a protection visa and whether the Authority acted unreasonably in failing to get or consider new information under s 473DC and s 473DD of the Act. Each of those further questions is answered in the negative.”

“Without further communication to or from the plaintiff, the Authority on 19 May 2016 made its decision to affirm the delegate's decision to refuse to grant the plaintiff a temporary protection visa. The record of the Authority's reasons reveals that the Authority did not accept that the plaintiff had converted to Christianity or would, on any return to Iran in the reasonably foreseeable future, be perceived by the Iranian authorities or others as a convert to Christianity. Unlike the delegate, the Authority was not satisfied that the plaintiff had attended the Syndal Baptist Church for the sole purpose of strengthening his claim to be a refugee. Rather, the Authority took the view that the plaintiff's attendance at the Syndal Baptist Church had been because he enjoyed the social contact and was not the result of any real commitment on his part to Christianity.

In so finding, the Authority took into account the Reverend Brown information. Save for the information it contained about the plaintiff's church attendance in 2016, the Authority declined to take into account the contents of the further letter of support from Reverend Brown dated 10 May 2016. “

“The task of the Authority under s 473CC(1) 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. The powers conferred on the Authority by s 473CC(2) then enable the Authority to make orders appropriate to give effect to the outcome of its own determination of the merits. If the Authority is not satisfied that the criteria for the grant of the visa have been met, the appropriate order for the Authority to make is to affirm the decision under review. If the Authority is so satisfied, and the Authority has found no other statutory impediment to the grant of the visa, the appropriate order for the Authority to make is to remit the decision for reconsideration by the Minister in accordance with such permissible directions or recommendations as the Authority considers are appropriate to give effect to the Authority's determination.

The effect of the Authority affirming the fast track reviewable decision under review is that it is no longer solely the decision of the Minister or delegate to refuse to grant the visa, but rather the decision as affirmed by the Authority, that constitutes the determination of the fast track applicant's valid application for a protection visa. That effect of the Authority affirming the fast track reviewable decision under review bears on the nature of a fast track reviewable decision that is capable of being the subject of that review in a manner which will be explored later in these reasons.”

“The Authority's choice not to exercise its power under s 473DC(3) to interview the plaintiff, Reverend Brown and members of the congregation at the Syndal Baptist Church involved a considered exercise of discretion for reasons which the Authority recorded. That exercise of discretion was open to it and was eminently justified by the reasons it gave.

The Authority's choice not to consider information concerning the plaintiff's church attendance in 2014 and 2015 contained in the letter from Reverend Brown dated 10 May 2016 and in one of the congregants' letters was based on its lack of satisfaction that there were exceptional circumstances to justify considering that new information with the result that the precondition in s 473DD(a) was not met. That lack of satisfaction involved an evaluative judgment which was elaborately explained by the Authority. The judgment made was again open to the Authority and eminently justified by the reasons it gave.“

“The law requires and expects that the Minister, in making a decision under s 65 to refuse to grant a protection visa, will comply with the procedure set out in subdiv AB of Div 3 of Pt 2 of the Act, which includes s 57. Compliance with that procedure would be the "ordinary" circumstance. But 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 under ss 473DD and 473DE in Pt 7AA of the Act.

Exercising the new information powers in those circumstances cannot, and should not, be understood as the Authority conducting merits review of the Minister's decision. 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.

Whether some significant departure from the prescribed procedure, other than non-compliance with s 57, would also be an exceptional circumstance sufficient to engage those new information powers does not arise and need not be decided."